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G.R. No.

93833 September 28, 1995

SOCORRO D. RAMIREZ, petitioner,


vs.
HONORABLE COURT OF APPEALS, and ESTER S. GARCIA, respondents.

KAPUNAN, J.:

A civil case damages was filed by petitioner Socorro D. Ramirez in the Regional Trial Court of Quezon City alleging that the private respondent,
Ester S. Garcia, in a confrontation in the latter's office, allegedly vexed, insulted and humiliated her in a "hostile and furious mood" and in a manner
offensive to petitioner's dignity and personality," contrary to morals, good customs and public policy." 1

In support of her claim, petitioner produced a verbatim transcript of the event and sought moral damages, attorney's fees and other expenses of
litigation in the amount of P610,000.00, in addition to costs, interests and other reliefs awardable at the trial court's discretion. The transcript on
which the civil case was based was culled from a tape recording of the confrontation made by petitioner. 2 The transcript reads as follows:

Plaintiff Soccoro D. Ramirez (Chuchi) Good Afternoon M'am.

Defendant Ester S. Garcia (ESG) Ano ba ang nangyari sa 'yo, nakalimot ka na kung paano ka napunta rito,
porke member ka na, magsumbong ka kung ano ang gagawin ko sa 'yo.

CHUCHI Kasi, naka duty ako noon.

ESG Tapos iniwan no. (Sic)

CHUCHI Hindi m'am, pero ilan beses na nila akong binalikan, sabing ganoon

ESG Ito and (sic) masasabi ko sa 'yo, ayaw kung (sic) mag explain ka, kasi hanggang 10:00 p.m.,
kinabukasan hindi ka na pumasok. Ngayon ako ang babalik sa 'yo, nag-aaply ka sa States, nag-aaply ka sa
review mo, kung kakailanganin ang certification mo, kalimutan mo na kasi hindi ka sa akin makakahingi.

CHUCHI Hindi M'am. Kasi ang ano ko talaga noon i-cocontinue ko up to 10:00 p.m.

ESG Bastos ka, nakalimutan mo na kung paano ka pumasok dito sa hotel. Magsumbong ka sa Union kung
gusto mo. Nakalimutan mo na kung paano ka nakapasok dito "Do you think that on your own makakapasok
ka kung hindi ako. Panunumbyoyan na kita (Sinusumbatan na kita).

CHUCHI Itutuloy ko na M'am sana ang duty ko.

ESG Kaso ilang beses na akong binabalikan doon ng mga no (sic) ko.

ESG Nakalimutan mo na ba kung paano ka pumasok sa hotel, kung on your own merit alam ko naman
kung gaano ka "ka bobo" mo. Marami ang nag-aaply alam kong hindi ka papasa.

CHUCHI Kumuha kami ng exam noon.

ESG Oo, pero hindi ka papasa.

CHUCHI Eh, bakit ako ang nakuha ni Dr. Tamayo

ESG Kukunin ka kasi ako.

CHUCHI Eh, di sana

ESG Huwag mong ipagmalaki na may utak ka kasi wala kang utak. Akala mo ba makukuha ka dito kung
hindi ako.

CHUCHI Mag-eexplain ako.

ESG Huwag na, hindi ako mag-papa-explain sa 'yo, makaalala ka kung paano ka puma-rito. "Putang-ina"
sasabi-sabihin mo kamag-anak ng nanay at tatay mo ang mga magulang ko.

ESG Wala na akong pakialam, dahil nandito ka sa loob, nasa labas ka puwede ka ng hindi pumasok, okey
yan nasaloob ka umalis ka doon.

CHUCHI Kasi M'am, binbalikan ako ng mga taga Union.

ESG Nandiyan na rin ako, pero huwag mong kalimutan na hindi ka makakapasok kung hindi ako. Kung
hindi mo kinikilala yan okey lang sa akin, dahil tapos ka na.

CHUCHI Ina-ano ko m'am na utang na loob.


ESG Huwag na lang, hindi mo utang na loob, kasi kung baga sa no, nilapastangan mo ako.

CHUCHI Paano kita nilapastanganan?

ESG Mabuti pa lumabas ka na. Hindi na ako makikipagusap sa 'yo. Lumabas ka na. Magsumbong ka. 3

As a result of petitioner's recording of the event and alleging that the said act of secretly taping the confrontation was illegal, private respondent filed
a criminal case before the Regional Trial Court of Pasay City for violation of Republic Act 4200, entitled "An Act to prohibit and penalize wire
tapping and other related violations of private communication, and other purposes." An information charging petitioner of violation of the said Act,
dated October 6, 1988 is quoted herewith:

INFORMATION

The Undersigned Assistant City Fiscal Accusses Socorro D. Ramirez of Violation of Republic Act No. 4200, committed as
follows:

That on or about the 22nd day of February, 1988, in Pasay City Metro Manila, Philippines, and within the
jurisdiction of this honorable court, the above-named accused, Socorro D. Ramirez not being authorized by
Ester S. Garcia to record the latter's conversation with said accused, did then and there willfully, unlawfully
and feloniously, with the use of a tape recorder secretly record the said conversation and thereafter
communicate in writing the contents of the said recording to other person.

Contrary to law.

Pasay City, Metro Manila, September 16, 1988.

MARIANO M. CUNETA
Asst. City Fiscal

Upon arraignment, in lieu of a plea, petitioner filed a Motion to Quash the Information on the ground that the facts charged do not constitute an
offense, particularly a violation of R.A. 4200. In an order May 3, 1989, the trial court granted the Motion to Quash, agreeing with petitioner that 1)
the facts charged do not constitute an offense under R.A. 4200; and that 2) the violation punished by R.A. 4200 refers to a the taping of a
communication by a personother than a participant to the communication. 4

From the trial court's Order, the private respondent filed a Petition for Review on Certiorari with this Court, which forthwith referred the case to the
Court of Appeals in a Resolution (by the First Division) of June 19, 1989.

On February 9, 1990, respondent Court of Appeals promulgated its assailed Decision declaring the trial court's order of May 3, 1989 null and void,
and holding that:

[T]he allegations sufficiently constitute an offense punishable under Section 1 of R.A. 4200. In thus quashing the information
based on the ground that the facts alleged do not constitute an offense, the respondent judge acted in grave abuse of discretion
correctible by certiorari. 5

Consequently, on February 21, 1990, petitioner filed a Motion for Reconsideration which respondent Court of Appeals denied in its
Resolution 6 dated June 19, 1990. Hence, the instant petition.

Petitioner vigorously argues, as her "main and principal issue" 7 that the applicable provision of Republic Act 4200 does not apply to the taping of a
private conversation by one of the parties to the conversation. She contends that the provision merely refers to the unauthorized taping of a private
conversation by a party other than those involved in the communication. 8 In relation to this, petitioner avers that the substance or content of the
conversation must be alleged in the Information, otherwise the facts charged would not constitute a violation of R.A. 4200. 9 Finally, petitioner agues
that R.A. 4200 penalizes the taping of a "private communication," not a "private conversation" and that consequently, her act of secretly taping her
conversation with private respondent was not illegal under the said act. 10

We disagree.

First, legislative intent is determined principally from the language of a statute. Where the language of a statute is clear and unambiguous, the law is
applied according to its express terms, and interpretation would be resorted to only where a literal interpretation would be either impossible 11 or
absurb or would lead to an injustice. 12

Section 1 of R.A. 4200 entitled, " An Act to Prohibit and Penalized Wire Tapping and Other Related Violations of Private Communication and Other
Purposes," provides:

Sec. 1. It shall be unlawfull for any person, not being authorized by all the parties to any private communication or spoken word,
to tap any wire or cable, or by using any other device or arrangement, to secretly overhear, intercept, or record such
communication or spoken word by using a device commonly known as a dictaphone or dictagraph or detectaphone or walkie-
talkie or tape recorder, or however otherwise described.

The aforestated provision clearly and unequivocally makes it illegal for any person, not authorized by all the parties to any private communication to
secretly record such communication by means of a tape recorder. The law makes no distinction as to whether the party sought to be penalized by the
statute ought to be a party other than or different from those involved in the private communication. The statute's intent to penalize all persons
unauthorized to make such recording is underscored by the use of the qualifier "any". Consequently, as respondent Court of Appeals correctly
concluded, "even a (person) privy to a communication who records his private conversation with another without the knowledge of the latter (will)
qualify as a violator" 13 under this provision of R.A. 4200.
A perusal of the Senate Congressional Records, moreover, supports the respondent court's conclusion that in enacting R.A. 4200 our lawmakers
indeed contemplated to make illegal, unauthorized tape recording of private conversations or communications taken either by the parties themselves
or by third persons. Thus:

xxx xxx xxx

Senator Taada: That qualified only "overhear".

Senator Padilla: So that when it is intercepted or recorded, the element of secrecy would not appear to be material. Now, suppose,
Your Honor, the recording is not made by all the parties but by some parties and involved not criminal cases that would be
mentioned under section 3 but would cover, for example civil cases or special proceedings whereby a recording is made not
necessarily by all the parties but perhaps by some in an effort to show the intent of the parties because the actuation of the parties
prior, simultaneous even subsequent to the contract or the act may be indicative of their intention. Suppose there is such a
recording, would you say, Your Honor, that the intention is to cover it within the purview of this bill or outside?

Senator Taada: That is covered by the purview of this bill, Your Honor.

Senator Padilla: Even if the record should be used not in the prosecution of offense but as evidence to be used in Civil Cases or
special proceedings?

Senator Taada: That is right. This is a complete ban on tape recorded conversations taken without the authorization of all the
parties.

Senator Padilla: Now, would that be reasonable, your Honor?

Senator Taada: I believe it is reasonable because it is not sporting to record the observation of one without his knowing it and
then using it against him. It is not fair, it is not sportsmanlike. If the purpose; Your honor, is to record the intention of the parties.
I believe that all the parties should know that the observations are being recorded.

Senator Padilla: This might reduce the utility of recorders.

Senator Taada: Well no. For example, I was to say that in meetings of the board of directors where a tape recording is taken,
there is no objection to this if all the parties know. It is but fair that the people whose remarks and observations are being made
should know that the observations are being recorded.

Senator Padilla: Now, I can understand.

Senator Taada: That is why when we take statements of persons, we say: "Please be informed that whatever you say here may
be used against you." That is fairness and that is what we demand. Now, in spite of that warning, he makes damaging statements
against his own interest, well, he cannot complain any more. But if you are going to take a recording of the observations and
remarks of a person without him knowing that it is being taped or recorded, without him knowing that what is being recorded
may be used against him, I think it is unfair.

xxx xxx xxx

(Congression Record, Vol. III, No. 31, p. 584, March 12, 1964)

Senator Diokno: Do you understand, Mr. Senator, that under Section 1 of the bill as now worded, if a party secretly records a
public speech, he would be penalized under Section 1? Because the speech is public, but the recording is done secretly.

Senator Taada: Well, that particular aspect is not contemplated by the bill. It is the communication between one person and
another person not between a speaker and a public.

xxx xxx xxx

(Congressional Record, Vol. III, No. 33, p. 626, March 12, 1964)

xxx xxx xxx

The unambiguity of the express words of the provision, taken together with the above-quoted deliberations from the Congressional Record, therefore
plainly supports the view held by the respondent court that the provision seeks to penalize even those privy to the private communications. Where the
law makes no distinctions, one does not distinguish.

Second, the nature of the conversations is immaterial to a violation of the statute. The substance of the same need not be specifically alleged in the
information. What R.A. 4200 penalizes are the acts of secretly overhearing, intercepting or recording private communications by means of the
devices enumerated therein. The mere allegation that an individual made a secret recording of a private communication by means of a tape recorder
would suffice to constitute an offense under Section 1 of R.A. 4200. As the Solicitor General pointed out in his COMMENT before the respondent
court: "Nowhere (in the said law) is it required that before one can be regarded as a violator, the nature of the conversation, as well as its
communication to a third person should be professed." 14

Finally, petitioner's contention that the phrase "private communication" in Section 1 of R.A. 4200 does not include "private conversations" narrows
the ordinary meaning of the word "communication" to a point of absurdity. The word communicate comes from the latin word communicare,
meaning "to share or to impart." In its ordinary signification, communication connotes the act of sharing or imparting signification, communication
connotes the act of sharing or imparting, as in a conversation, 15 or signifies the "process by which meanings or thoughts are shared between
individuals through a common system of symbols (as language signs or gestures)" 16 These definitions are broad enough to include verbal or non-
verbal, written or expressive communications of "meanings or thoughts" which are likely to include the emotionally-charged exchange, on February
22, 1988, between petitioner and private respondent, in the privacy of the latter's office. Any doubts about the legislative body's meaning of the
phrase "private communication" are, furthermore, put to rest by the fact that the terms "conversation" and "communication" were interchangeably
used by Senator Taada in his Explanatory Note to the bill quoted below:

It has been said that innocent people have nothing to fear from their conversations being overheard. But this statement ignores
the usual nature of conversations as well the undeniable fact that most, if not all, civilized people have some aspects of their lives
they do not wish to expose. Free conversationsare often characterized by exaggerations, obscenity, agreeable falsehoods, and the
expression of anti-social desires of views not intended to be taken seriously. The right to the privacy of communication, among
others, has expressly been assured by our Constitution. Needless to state here, the framers of our Constitution must have
recognized the nature of conversations between individuals and the significance of man's spiritual nature, of his feelings and of
his intellect. They must have known that part of the pleasures and satisfactions of life are to be found in the unaudited, and free
exchange ofcommunication between individuals free from every unjustifiable intrusion by whatever means. 17

In Gaanan vs. Intermediate Appellate Court, 18 a case which dealt with the issue of telephone wiretapping, we held that the use of a telephone
extension for the purpose of overhearing a private conversation without authorization did not violate R.A. 4200 because a telephone extension devise
was neither among those "device(s) or arrangement(s)" enumerated therein, 19 following the principle that "penal statutes must be construed strictly in
favor of the accused." 20 The instant case turns on a different note, because the applicable facts and circumstances pointing to a violation of R.A. 4200
suffer from no ambiguity, and the statute itself explicitly mentions the unauthorized "recording" of private communications with the use of tape-
recorders as among the acts punishable.

WHEREFORE, because the law, as applied to the case at bench is clear and unambiguous and leaves us with no discretion, the instant petition is
hereby DENIED. The decision appealed from is AFFIRMED. Costs against petitioner.

SO ORDERED.
G.R. No. L-69809 October 16, 1986

EDGARDO A. GAANAN, petitioner,


vs.
INTERMEDIATE APPELLATE COURT and PEOPLE OF THE PHILIPPINES, respondents.

GUTIERREZ, JR., J.:

This petition for certiorari asks for an interpretation of Republic Act (RA) No. 4200, otherwise known as the Anti-Wiretapping Act, on the issue of
whether or not an extension telephone is among the prohibited devices in Section 1 of the Act, such that its use to overhear a private conversation
would constitute unlawful interception of communications between the two parties using a telephone line.

The facts presented by the People and narrated in the respondent court's decision are not disputed by the petitioner.

In the morning of October 22, 1975, complainant Atty. Tito Pintor and his client Manuel Montebon were in the living room of
complainant's residence discussing the terms for the withdrawal of the complaint for direct assault which they filed with the
Office of the City Fiscal of Cebu against Leonardo Laconico. After they had decided on the proposed conditions, complainant
made a telephone call to Laconico (tsn, August 26, 1981, pp. 3-5).

That same morning, Laconico telephoned appellant, who is a lawyer, to come to his office and advise him on the settlement of
the direct assault case because his regular lawyer, Atty. Leon Gonzaga, went on a business trip. According to the request,
appellant went to the office of Laconico where he was briefed about the problem. (Exhibit 'D', tsn, April 22, 1982, pp. 4-5).

When complainant called up, Laconico requested appellant to secretly listen to the telephone conversation through a telephone
extension so as to hear personally the proposed conditions for the settlement. Appellant heard complainant enumerate the
following conditions for withdrawal of the complaint for direct assault.

(a) the P5,000.00 was no longer acceptable, and that the figure had been increased to P8,000.00. A breakdown of the P8,000.00
had been made together with other demands, to wit: (a) P5,000.00 no longer for the teacher Manuel Montebon, but for Atty.
Pintor himself in persuading his client to withdraw the case for Direct Assault against Atty. Laconico before the Cebu City
Fiscal's Office;

(b) Public apology to be made by Atty. Laconico before the students of Don Bosco Technical High School;

(c) Pl,000.00 to be given to the Don Bosco Faculty club;

(d) transfer of son of Atty. Laconico to another school or another section of Don Bosco Technical High School;

(e) Affidavit of desistance by Atty. Laconico on the Maltreatment case earlier filed against Manuel Montebon at the Cebu City
Fiscal's Office, whereas Montebon's affidavit of desistance on the Direct Assault Case against Atty. Laconico to be filed later;

(f) Allow Manuel Montebon to continue teaching at the Don Bosco Technical School;

(g) Not to divulge the truth about the settlement of the Direct Assault Case to the mass media;

(h) P2,000.00 attorney s fees for Atty. Pintor. (tsn, August 26, 1981, pp. 47-48).

Twenty minutes later, complainant called up again to ask Laconico if he was agreeable to the conditions. Laconico answered
'Yes'. Complainant then told Laconico to wait for instructions on where to deliver the money. (tsn, March 10, 1983, pp. 2-12).

Complainant called up again and instructed Laconico to give the money to his wife at the office of the then Department of Public
Highways. Laconico who earlier alerted his friend Colonel Zulueta of the Criminal Investigation Service of the Philippine
Constabulary, insisted that complainant himself should receive the money. (tsn, March 10, 1982, pp. 26-33). When he received
the money at the Igloo Restaurant, complainant was arrested by agents of the Philippine Constabulary.

Appellant executed on the following day an affidavit stating that he heard complainant demand P8,000.00 for the withdrawal of
the case for direct assault. Laconico attached the affidavit of appellant to the complainant for robbery/extortion which he filed
against complainant. Since appellant listened to the telephone conversation without complainant's consent, complainant charged
appellant and Laconico with violation of the Anti-Wiretapping Act.

After trial on the merits, the lower court, in a decision dated November 22, 1982, found both Gaanan and Laconico guilty of violating Section 1 of
Republic Act No. 4200. The two were each sentenced to one (1) year imprisonment with costs. Not satisfied with the decision, the petitioner
appealed to the appellate court.

On August 16, 1984, the Intermediate Appellate Court affirmed the decision of the trial court, holding that the communication between the
complainant and accused Laconico was private in nature and, therefore, covered by Rep. Act No. 4200; that the petitioner overheard such
communication without the knowledge and consent of the complainant; and that the extension telephone which was used by the petitioner to overhear
the telephone conversation between complainant and Laconico is covered in the term "device' as provided in Rep. Act No. 4200.

In this petition for certiorari, the petitioner assails the decision of the appellate court and raises the following issues; (a) whether or not the telephone
conversation between the complainant and accused Laconico was private in nature; (b) whether or not an extension telephone is covered by the term
"device or arrangement" under Rep. Act No. 4200; (c) whether or not the petitioner had authority to listen or overhear said telephone conversation
and (d) whether or not Rep. Act No. 4200 is ambiguous and, therefore, should be construed in favor of the petitioner.
Section 1 of Rep. Act No. 4200 provides:

Section 1. It shall be unlawful for any person, not being authorized by all the parties to any private communication or spoken
word, to tap any wire or cable or by using any other device or arrangement, to secretly overhear, intercept, or record such
communication or spoken word by using a device commonly known as a dictaphone or dictagraph or detectaphone or walkie-
talkie or tape-recorder, or however otherwise described:

It shall be unlawful for any person, be he a participant or not in the act or acts penalized in the next preceeding sentence, to
knowingly possess any tape record, wire record, disc record, or any other such record, or copies thereof, of any communication or
spoken word secured either before or after the effective date of this Act in the manner prohibited by this law; or to replay the
same for any other person or persons; or to communicate the contents thereof, either verbally or in writing, or to furnish
transcriptions thereof, whether complete or partial, to any other person: Provided, that the use of such record or any copies
thereof as evidence in any civil, criminal investigation or trial of offenses mentioned in Section 3 hereof, shall not be covered by
this prohibition.

We rule for the petitioner.

We are confronted in this case with the interpretation of a penal statute and not a rule of evidence. The issue is not the admissibility of evidence
secured over an extension line of a telephone by a third party. The issue is whether or not the person called over the telephone and his lawyer
listening to the conversation on an extension line should both face prison sentences simply because the extension was used to enable them to both
listen to an alleged attempt at extortion.

There is no question that the telephone conversation between complainant Atty. Pintor and accused Atty. Laconico was "private" in the sense that the
words uttered were made between one person and another as distinguished from words between a speaker and a public. It is also undisputed that only
one of the parties gave the petitioner the authority to listen to and overhear the caller's message with the use of an extension telephone line.
Obviously, complainant Pintor, a member of the Philippine bar, would not have discussed the alleged demand for an P8,000.00 consideration in order
to have his client withdraw a direct assault charge against Atty. Laconico filed with the Cebu City Fiscal's Office if he knew that another lawyer was
also listening. We have to consider, however, that affirmance of the criminal conviction would, in effect, mean that a caller by merely using a
telephone line can force the listener to secrecy no matter how obscene, criminal, or annoying the call may be. It would be the word of the caller
against the listener's.

Because of technical problems caused by the sensitive nature of electronic equipment and the extra heavy loads which telephone cables are made to
carry in certain areas, telephone users often encounter what are called "crossed lines". An unwary citizzen who happens to pick up his telephone and
who overhears the details of a crime might hesitate to inform police authorities if he knows that he could be accused under Rep. Act 4200 of using his
own telephone to secretly overhear the private communications of the would be criminals. Surely the law was never intended for such mischievous
results.

The main issue in the resolution of this petition, however, revolves around the meaning of the phrase "any other device or arrangement." Is an
extension of a telephone unit such a device or arrangement as would subject the user to imprisonment ranging from six months to six years with the
accessory penalty of perpetual absolute disqualification for a public officer or deportation for an alien? Private secretaries with extension lines to
their bosses' telephones are sometimes asked to use answering or recording devices to record business conversations between a boss and another
businessman. Would transcribing a recorded message for the use of the boss be a proscribed offense? or for that matter, would a "party line" be a
device or arrangement under the law?

The petitioner contends that telephones or extension telephones are not included in the enumeration of "commonly known" listening or recording
devices, nor do they belong to the same class of enumerated electronic devices contemplated by law. He maintains that in 1964, when Senate Bill No.
9 (later Rep. Act No. 4200) was being considered in the Senate, telephones and extension telephones were already widely used instruments, probably
the most popularly known communication device.

Whether or not listening over a telephone party line would be punishable was discussed on the floor of the Senate. Yet, when the bill was finalized
into a statute, no mention was made of telephones in the enumeration of devices "commonly known as a dictaphone or dictagraph, detectaphone or
walkie talkie or tape recorder or however otherwise described." The omission was not a mere oversight. Telephone party lines were intentionally
deleted from the provisions of the Act.

The respondent People argue that an extension telephone is embraced and covered by the term "device" within the context of the aforementioned law
because it is not a part or portion of a complete set of a telephone apparatus. It is a separate device and distinct set of a movable apparatus consisting
of a wire and a set of telephone receiver not forming part of a main telephone set which can be detached or removed and can be transferred away
from one place to another and to be plugged or attached to a main telephone line to get the desired communication corning from the other party or
end.

The law refers to a "tap" of a wire or cable or the use of a "device or arrangement" for the purpose of secretly overhearing, intercepting, or recording
the communication. There must be either a physical interruption through a wiretap or the deliberate installation of a device or arrangement in order to
overhear, intercept, or record the spoken words.

An extension telephone cannot be placed in the same category as a dictaphone, dictagraph or the other devices enumerated in Section 1 of RA No.
4200 as the use thereof cannot be considered as "tapping" the wire or cable of a telephone line. The telephone extension in this case was not installed
for that purpose. It just happened to be there for ordinary office use. It is a rule in statutory construction that in order to determine the true intent of
the legislature, the particular clauses and phrases of the statute should not be taken as detached and isolated expressions, but the whole and every part
thereof must be considered in fixing the meaning of any of its parts. (see Commissioner of Customs v. Esso Estandard Eastern, Inc., 66 SCRA
113,120).

In the case of Empire Insurance Com any v. Rufino (90 SCRA 437, 443-444), we ruled:

Likewise, Article 1372 of the Civil Code stipulates that 'however general the terms of a contract may be, they shall not be
understood to comprehend things that are distinct and cases that are different from those upon which the parties intended to
agree.' Similarly, Article 1374 of the same Code provides that 'the various stipulations of a contract shall be interpreted together,
attributing to the doubtful ones that sense which may result from all of them taken jointly.
xxx xxx xxx

Consequently, the phrase 'all liabilities or obligations of the decedent' used in paragraph 5(c) and 7(d) should be then restricted
only to those listed in the Inventory and should not be construed as to comprehend all other obligations of the decedent. The rule
that 'particularization followed by a general expression will ordinarily be restricted to the former' is based on the fact in human
experience that usually the minds of parties are addressed specially to the particularization, and that the generalities, though broad
enough to comprehend other fields if they stood alone, are used in contemplation of that upon which the minds of the parties are
centered. (Hoffman v. Eastern Wisconsin R., etc., Co., 134 Wis. 603, 607, 115 NW 383, cited in Francisco, Revised Rules of
Court (Evidence), 1973 ed, pp. 180-181).

Hence, the phrase "device or arrangement" in Section 1 of RA No. 4200, although not exclusive to that enumerated therein, should be construed to
comprehend instruments of the same or similar nature, that is, instruments the use of which would be tantamount to tapping the main line of a
telephone. It refers to instruments whose installation or presence cannot be presumed by the party or parties being overheard because, by their very
nature, they are not of common usage and their purpose is precisely for tapping, intercepting or recording a telephone conversation.

An extension telephone is an instrument which is very common especially now when the extended unit does not have to be connected by wire to the
main telephone but can be moved from place ' to place within a radius of a kilometer or more. A person should safely presume that the party he is
calling at the other end of the line probably has an extension telephone and he runs the risk of a third party listening as in the case of a party line or a
telephone unit which shares its line with another. As was held in the case of Rathbun v. United States (355, U.S. 107, 2 L Ed 2d 137-138):

Common experience tells us that a call to a particular telephone number may cause the bell to ring in more than one ordinarily
used instrument. Each party to a telephone conversation takes the risk that the other party may have an extension telephone and
may allow another to overhear the conversation. When such takes place there has been no violation of any privacy of which the
parties may complain. Consequently, one element of 605, interception, has not occurred.

In the same case, the Court further ruled that the conduct of the party would differ in no way if instead of repeating the message he held out his hand-
set so that another could hear out of it and that there is no distinction between that sort of action and permitting an outsider to use an extension
telephone for the same purpose.

Furthermore, it is a general rule that penal statutes must be construed strictly in favor of the accused. Thus, in case of doubt as in the case at bar, on
whether or not an extension telephone is included in the phrase "device or arrangement", the penal statute must be construed as not including an
extension telephone. In the case of People v. Purisima, 86 SCRA 542, 562, we explained the rationale behind the rule:

American jurisprudence sets down the reason for this rule to be the tenderness of the law of the rights of individuals; the object is
to establish a certain rule by conformity to which mankind would be safe, and the discretion of the court limited. (United States v.
Harris, 177 US 305, 44 L Ed 780, 20 S Ct 609; Braffith v. Virgin Islands (CA3) 26 F2d 646; Caudill v. State, 224 Ind 531, 69
NE2d; Jennings v. Commonwealth, 109 VA 821,63 SE 1080, all cited in 73 Am Jur 2d 452). The purpose is not to enable a guilty
person to escape punishment through a technicality but to provide a precise definition of forbidden acts." (State v. Zazzaro, 20 A
2d 737, quoted in Martin's Handbook on Statutory Construction, Rev. Ed. pp. 183-184).

In the same case of Purisima, we also ruled that on the construction or interpretation of a legislative measure, the primary rule is to search for and
determine the intent and spirit of the law. A perusal of the Senate Congressional Records will show that not only did our lawmakers not contemplate
the inclusion of an extension telephone as a prohibited device or arrangement" but of greater importance, they were more concerned with penalizing
the act of recording than the act of merely listening to a telephone conversation.

xxx xxx xxx

Senator Taada. Another possible objection to that is entrapment which is certainly objectionable. It is made
possible by special amendment which Your Honor may introduce.

Senator Diokno.Your Honor, I would feel that entrapment would be less possible with the amendment than
without it, because with the amendment the evidence of entrapment would only consist of government
testimony as against the testimony of the defendant. With this amendment, they would have the right, and the
government officials and the person in fact would have the right to tape record their conversation.

Senator Taada. In case of entrapment, it would be the government.

Senator Diokno. In the same way, under this provision, neither party could record and, therefore, the court
would be limited to saying: "Okay, who is more credible, the police officers or the defendant?" In these cases,
as experienced lawyers, we know that the Court go with the peace offices.

(Congressional Record, Vol. 111, No. 33, p. 628, March 12, 1964).

xxx xxx xxx

Senator Diokno. The point I have in mind is that under these conditions, with an agent outside listening in, he
could falsify the testimony and there is no way of checking it. But if you allow him to record or make a
recording in any form of what is happening, then the chances of falsifying the evidence is not very much.

Senator Taada. Your Honor, this bill is not intended to prevent the presentation of false testimony. If we
could devise a way by which we could prevent the presentation of false testimony, it would be wonderful.
But what this bill intends to prohibit is the use of tape record and other electronic devices to intercept private
conversations which later on will be used in court.

(Congressional Record, Vol. III, No. 33, March 12, 1964, p. 629).
It can be readily seen that our lawmakers intended to discourage, through punishment, persons such as government authorities or representatives of
organized groups from installing devices in order to gather evidence for use in court or to intimidate, blackmail or gain some unwarranted advantage
over the telephone users. Consequently, the mere act of listening, in order to be punishable must strictly be with the use of the enumerated devices in
RA No. 4200 or others of similar nature. We are of the view that an extension telephone is not among such devices or arrangements.

WHEREFORE, the petition is GRANTED. The decision of the then Intermediate Appellate Court dated August 16, 1984 is ANNULLED and SET
ASIDE. The petitioner is hereby ACQUITTED of the crime of violation of Rep. Act No. 4200, otherwise known as the Anti-Wiretapping Act.

SO ORDERED.
G.R. No. 107383 February 20, 1996

CECILIA ZULUETA, petitioner,


vs.
COURT OF APPEALS and ALFREDO MARTIN, respondents.

DECISION

MENDOZA, J.:

This is a petition to review the decision of the Court of Appeals, affirming the decision of the Regional Trial Court of Manila (Branch X) which
ordered petitioner to return documents and papers taken by her from private respondent's clinic without the latter's knowledge and consent.

The facts are as follows:

Petitioner Cecilia Zulueta is the wife of private respondent Alfredo Martin. On March 26, 1982, petitioner entered the clinic of her husband, a doctor
of medicine, and in the presence of her mother, a driver and private respondent's secretary, forcibly opened the drawers and cabinet in her husband's
clinic and took 157 documents consisting of private correspondence between Dr. Martin and his alleged paramours, greetings cards, cancelled
checks, diaries, Dr. Martin's passport, and photographs. The documents and papers were seized for use in evidence in a case for legal separation and
for disqualification from the practice of medicine which petitioner had filed against her husband.

Dr. Martin brought this action below for recovery of the documents and papers and for damages against petitioner. The case was filed with the
Regional Trial Court of Manila, Branch X, which, after trial, rendered judgment for private respondent, Dr. Alfredo Martin, declaring him "the
capital/exclusive owner of the properties described in paragraph 3 of plaintiff's Complaint or those further described in the Motion to Return and
Suppress" and ordering Cecilia Zulueta and any person acting in her behalf to a immediately return the properties to Dr. Martin and to pay him
P5,000.00, as nominal damages; P5,000.00, as moral damages and attorney's fees; and to pay the costs of the suit. The writ of preliminary injunction
earlier issued was made final and petitioner Cecilia Zulueta and her attorneys and representatives were enjoined from "using or submitting/admitting
as evidence" the documents and papers in question. On appeal, the Court of Appeals affirmed the decision of the Regional Trial Court. Hence this
petition.

There is no question that the documents and papers in question belong to private respondent, Dr. Alfredo Martin, and that they were taken by his
wife, the herein petitioner, without his knowledge and consent. For that reason, the trial court declared the documents and papers to be properties of
private respondent, ordered petitioner to return them to private respondent and enjoined her from using them in evidence. In appealing from the
decision of the Court of Appeals affirming the trial court's decision, petitioner's only ground is that in Alfredo Martin v. Alfonso Felix, Jr., 1 this Court
ruled that the documents and papers (marked as Annexes A-1 to J-7 of respondent's comment in that case) were admissible in evidence and,
therefore, their use by petitioner's attorney, Alfonso Felix did not constitute malpractice or gross misconduct, For this reason it is contended that the
Court of Appeals erred in affirming the decision of the trial court instead of dismissing private respondent's complaint.

Petitioner's contention has no merit. The case against Atty. Felix, Jr. was for disbarment. Among other things, private respondent, Dr. Alfredo
Martin, as complainant in that case, charged that in using the documents in evidence, Atty. Felix, Jr. committed malpractice or gross misconduct
because of the injunctive order of the trial court. In dismissing the complaint against Atty. Felix, Jr., this Court took note of the following defense of
Atty. Felix; Jr. which it found to be "impressed with merit:"2

On the alleged malpractice or gross misconduct of respondent [Alfonso Felix, Jr.], he maintains that:

....

4. When respondent refiled Cecilia's case for legal separation before the Pasig Regional Trial Court, there was admittedly an order of the
Manila Regional Trial Court prohibiting Cecilia from using the documents Annex "A-1 to J-7." On September 6, 1983, however having
appealed the said order to this Court on a petition for certiorari, this Court issued a restraining order on aforesaid date which order
temporarily set aside the order of the trial court. Hence, during the enforceability of this Court's order, respondent's request for petitioner to
admit the genuineness and authenticity of the subject annexes cannot be looked upon as malpractice. Notably, petitioner Dr. Martin finally
admitted the truth and authenticity of the questioned annexes, At that point in time, would it have been malpractice for respondent to use
petitioner's admission as evidence against him in the legal separation case pending in the Regional Trial Court of Makati? Respondent
submits it is not malpractice.

Significantly, petitioner's admission was done not thru his counsel but by Dr. Martin himself under oath, Such verified admission
constitutes an affidavit, and, therefore, receivable in evidence against him. Petitioner became bound by his admission. For Cecilia to avail
herself of her husband's admission and use the same in her action for legal separation cannot be treated as malpractice.

Thus, the acquittal of Atty. Felix, Jr. in the administrative case amounts to no more than a declaration that his use of the documents and papers for the
purpose of securing Dr. Martin's admission as to their genuiness and authenticity did not constitute a violation of the injunctive order of the trial
court. By no means does the decision in that case establish the admissibility of the documents and papers in question.

It cannot be overemphasized that if Atty. Felix, Jr. was acquitted of the charge of violating the writ of preliminary injunction issued by the trial court,
it was only because, at the time he used the documents and papers, enforcement of the order of the trial court was temporarily restrained by this
Court. The TRO issued by this Court was eventually lifted as the petition for certiorari filed by petitioner against the trial court's order was dismissed
and, therefore, the prohibition against the further use of the documents and papers became effective again.

Indeed the documents and papers in question are inadmissible in evidence. The constitutional injunction declaring "the privacy of communication
and correspondence [to be] inviolable"3 is no less applicable simply because it is the wife (who thinks herself aggrieved by her husband's infidelity)
who is the party against whom the constitutional provision is to be enforced. The only exception to the prohibition in the Constitution is if there is a
"lawful order [from a] court or when public safety or order requires otherwise, as prescribed by law." 4 Any violation of this provision renders the
evidence obtained inadmissible "for any purpose in any proceeding." 5

The intimacies between husband and wife do not justify any one of them in breaking the drawers and cabinets of the other and in ransacking them for
any telltale evidence of marital infidelity. A person, by contracting marriage, does not shed his/her integrity or his right to privacy as an individual
and the constitutional protection is ever available to him or to her.

The law insures absolute freedom of communication between the spouses by making it privileged. Neither husband nor wife may testify for or
against the other without the consent of the affected spouse while the marriage subsists. 6Neither may be examined without the consent of the other as
to any communication received in confidence by one from the other during the marriage, save for specified exceptions. 7 But one thing is freedom of
communication; quite another is a compulsion for each one to share what one knows with the other. And this has nothing to do with the duty of
fidelity that each owes to the other.

WHEREFORE, the petition for review is DENIED for lack of merit.

SO ORDERED.
IN THE MATTER OF THE PETITION G.R. No. 160792
FOR HABEAS CORPUS OF
CAPT. GARY ALEJANO, PN (MARINES)
CAPT. NICANOR FAELDON, PN (MARINES)
CAPT. GERARDO GAMBALA, PA
LT. SG JAMES LAYUG, PN
CAPT. MILO MAESTRECAMPO, PA
LT. SG ANTONIO TRILLANES IV, PN
HOMOBONO ADAZA, and
ROBERTO RAFAEL (ROEL) PULIDO,
Petitioners,
Present:
Davide, Jr., C.J.,
Puno,
Panganiban,
Quisumbing,
Ynares-Santiago,
Sandoval-Gutierrez,
- versus - Carpio,
Austria-Martinez,
Corona,
Carpio Morales,
Callejo, Sr.,
Azcuna,
Tinga,
Chico-Nazario, and
Garcia, JJ.
GEN. PEDRO CABUAY,
GEN. NARCISO ABAYA,
SEC. ANGELO REYES, and Promulgated:
SEC. ROILO GOLEZ,
Respondents. August 25, 2005

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

DECISION

CARPIO, J.:

The Case

This petition for review[1] seeks to nullify the Decision[2] of the Court of Appeals dated 17 September 2003 and Resolution dated 13
November 2003 in CA-G.R. SP No. 78545. The Court of Appeals Decision and Resolution dismissed the petition for habeas corpus filed by lawyers
Homobono Adaza and Roberto Rafael Pulido (petitioners) on behalf of their detained clients Capt. Gary Alejano (PN-Marines), Capt. Nicanor
Faeldon (PN-Marines), Capt. Gerardo Gambala (PA), Lt. SG James Layug (PN), Capt. Milo Maestrecampo (PA), and Lt. SG Antonio Trillanes IV
(PN) (detainees).

Petitioners named as respondent Gen. Pedro Cabuay (Gen. Cabuay), Chief of the Intelligence Service of the Armed Forces of the
Philippines (ISAFP), who has custody of the detainees. Petitioners impleaded Gen. Narciso Abaya (Gen. Abaya), Sec. Angelo Reyes and Roilo
Golez, who are respectively the Chief of Staff of the Armed Forces of the Philippines (AFP), Secretary of National Defense and National Security
Adviser, because they have command responsibility over Gen. Cabuay.

Antecedent Facts

Early morning of 27 July 2003, some 321 armed soldiers, led by the now detained junior officers, entered and took control of the Oakwood Premier
Luxury Apartments (Oakwood), an upscale apartment complex, located in the business district of Makati City. The soldiers disarmed the security
officers of Oakwood and planted explosive devices in its immediate surroundings. The junior officers publicly renounced their support for the
administration and called for the resignation of President Gloria Macapagal-Arroyo and several cabinet members.

Around 7:00 p.m. of the same date, the soldiers voluntarily surrendered to the authorities after several negotiations with government
emissaries. The soldiers later defused the explosive devices they had earlier planted. The soldiers then returned to their barracks.

On 31 July 2003, Gen. Abaya, as the Chief of Staff of the AFP, issued a directive to all the Major Service Commanders to turn over custody of ten
junior officers to the ISAFP Detention Center. The transfer took place while military and civilian authorities were investigating the soldiers
involvement in the Oakwood incident.

On 1 August 2003, government prosecutors filed an Information for coup detat with the Regional Trial Court of Makati City, Branch 61, against the
soldiers involved in the 27 July 2003 Oakwood incident. The government prosecutors accused the soldiers of coup detat as defined and penalized
under Article 134-A of the Revised Penal Code of the Philippines, as amended. The case was docketed as Criminal Case No. 03-2784. The trial court
later issued the Commitment Orders giving custody of junior officers Lt. SG Antonio Trillanes IV (Trillanes) and Capt. Gerardo Gambala to the
Commanding Officers of ISAFP.
On 2 August 2003, Gen. Abaya issued a directive to all Major Service Commanders to take into custody the military personnel under their command
who took part in the Oakwood incident except the detained junior officers who were to remain under the custody of ISAFP.

On 11 August 2003, petitioners filed a petition for habeas corpus with the Supreme Court. On 12 August 2003, the Court issued a Resolution, which
resolved to:

(a) ISSUE the WRIT OF HABEAS CORPUS; (b) require respondents to make a RETURN of the writ on Monday, 18 August
2003, at 10:00 a.m. before the Court of Appeals; (c) refer the case to the Court of Appeals for RAFFLE among the Justices
thereof for hearing, further proceedings and decision thereon, after which a REPORT shall be made to this Court within ten (10)
days from promulgation of the decision.[3]

Thus, the Court issued a Writ of Habeas Corpus dated 12 August 2003 directing respondents to make a return of the writ and to appear and
produce the persons of the detainees before the Court of Appeals on the scheduled date for hearing and further proceedings.

On the same date, the detainees and their other co-accused filed with the Regional Trial Court of Makati City a Motion for Preliminary
Investigation, which the trial court granted.

On 18 August 2003, pursuant to the directives of the Court, respondents submitted their Return of the Writ and Answer to the petition and
produced the detainees before the Court of Appeals during the scheduled hearing. After the parties filed their memoranda on 28 August 2003, the
appellate court considered the petition submitted for decision.

On 17 September 2003, the Court of Appeals rendered its decision dismissing the petition. Nonetheless, the appellate court ordered Gen.
Cabuay, who was in charge of implementing the regulations in the ISAFP Detention Center, to uphold faithfully the rights of the detainees in
accordance with Standing Operations Procedure No. 0263-04. The appellate court directed Gen. Cabuay to adhere to his commitment made in court
regarding visiting hours and the detainees right to exercise for two hours a day.

The Ruling of the Court of Appeals

The Court of Appeals found the petition bereft of merit. The appellate court pointed out that the detainees are already charged of coup
detat before the Regional Trial Court of Makati. Habeas corpus is unavailing in this case as the detainees confinement is under a valid indictment,
the legality of which the detainees and petitioners do not even question.

The Court of Appeals recognized that habeas corpus may also be the appropriate remedy to assail the legality of detention if there is a
deprivation of a constitutional right. However, the appellate court held that the constitutional rights alleged to have been violated in this case do not
directly affect the detainees liberty. The appellate court ruled that the regulation of the detainees right to confer with their counsels is reasonable
under the circumstances.

The appellate court declared that while the opening and reading of Trillanes letter is an abhorrent violation of his right to privacy of
communication, this does not justify the issuance of a writ of habeas corpus. The violation does not amount to illegal restraint, which is the proper
subject of habeas corpus proceedings.

The Court of Appeals thus dismissed the petition and ordered Gen. Cabuay to fulfill the promise he made in open court to uphold the
visiting hours and the right of the detainees to exercise for two hours a day. The dispositive portion of the appellate courts decision reads:

WHEREFORE, the foregoing considered, the instant petition is hereby DISMISSED. Respondent Cabuay is hereby
ORDERED to faithfully adhere to his commitment to uphold the constitutional rights of the detainees in accordance with the
Standing Operations Procedure No. 0263-04 regarding visiting hours and the right of the detainees to exercise for two (2) hours a
day.

SO ORDERED.[4]

The Issues

Petitioners raise the following issues for resolution:

A. THE COURT OF APPEALS ERRED IN REVIEWING AND REVERSING A DECISION OF


THE SUPREME COURT;

B. THE COURT OF APPEALS ERRED IN NOT ACKNOWLEDGING THE APPROPRIATENESS OF THE REMEDY
PETITIONERS SEEK; and

C. THE COURT OF APPEALS ERRED IN ASSERTING THE LEGALITY OF THE CONDITIONS OF THE DETAINED
JUNIOR OFFICERS DETENTION.[5]

The Ruling of the Court


The petition lacks merit.

Petitioners claim that the Courts 12 August 2003 Order granted the petition and the Court remanded the case to the Court of Appeals only
for a factual hearing. Petitioners thus argue that the Courts Order had already foreclosed any question on the propriety and merits of their petition.

Petitioners claim is baseless. A plain reading of the 12 August 2003 Order shows that the Court referred to the Court of Appeals the duty to
inquire into the cause of the junior officers detention. Had the Court ruled for the detainees release, the Court would not have referred the hearing of
the petition to the Court of Appeals. The Court would have forthwith released the detainees had the Court upheld petitioners cause.

In a habeas corpus petition, the order to present an individual before the court is a preliminary step in the hearing of the petition. [6] The
respondent must produce the person and explain the cause of his detention.[7] However, this order is not a ruling on the propriety of the remedy or on
the substantive matters covered by the remedy. Thus, the Courts order to the Court of Appeals to conduct a factual hearing was not an affirmation of
the propriety of the remedy of habeas corpus.
For obvious reasons, the duty to hear the petition for habeas corpus necessarily includes the determination of the propriety of the remedy.
If a court finds the alleged cause of the detention unlawful, then it should issue the writ and release the detainees. In the present case, after hearing the
case, the Court of Appeals found that habeas corpus is inapplicable. After actively participating in the hearing before the Court of Appeals,
petitioners are estopped from claiming that the appellate court had no jurisdiction to inquire into the merits of their petition.

The Court of Appeals correctly ruled that the remedy of habeas corpus is not the proper remedy to address the detainees complaint against
the regulations and conditions in the ISAFP Detention Center. The remedy of habeas corpus has one objective: to inquire into the cause of detention
of a person.[8] The purpose of the writ is to determine whether a person is being illegally deprived of his liberty. [9] If the inquiry reveals that the
detention is illegal, the court orders the release of the person. If, however, the detention is proven lawful, then the habeas corpus proceedings
terminate. The use of habeas corpus is thus very limited. It is not a writ of error.[10] Neither can it substitute for an appeal.[11]

Nonetheless, case law has expanded the writs application to circumstances where there is deprivation of a persons constitutional rights. The
writ is available where a person continues to be unlawfully denied of one or more of his constitutional freedoms, where there is denial of due process,
where the restraints are not merely involuntary but are also unnecessary, and where a deprivation of freedom originally valid has later become
arbitrary.[12]

However, a mere allegation of a violation of ones constitutional right is not sufficient. The courts will extend the scope of the writ only if
any of the following circumstances is present: (a) there is a deprivation of a constitutional right resulting in the unlawful restraint of a person; (b) the
court had no jurisdiction to impose the sentence; or (c) an excessive penalty is imposed and such sentence is void as to the excess.[13] Whatever
situation the petitioner invokes, the threshold remains high. The violation of constitutional right must be sufficient to void the entire proceedings.[14]

Petitioners admit that they do not question the legality of the detention of the detainees. Neither do they dispute the lawful indictment of the
detainees for criminal and military offenses. What petitioners bewail is the regulation adopted by Gen. Cabuay in the ISAFP Detention Center
preventing petitioners as lawyers from seeing the detainees their clients any time of the day or night. The regulation allegedly curtails the detainees
right to counsel and violates Republic Act No. 7438 (RA 7438). [15] Petitioners claim that the regulated visits made it difficult for them to prepare for
the important hearings before the Senate and the Feliciano Commission.

Petitioners also point out that the officials of the ISAFP Detention Center violated the detainees right to privacy of communication when
the ISAFP officials opened and read the personal letters of Trillanes and Capt. Milo Maestrecampo (Maestrecampo). Petitioners further claim that the
ISAFP officials violated the detainees right against cruel and unusual punishment when the ISAFP officials prevented the detainees from having
contact with their visitors. Moreover, the ISAFP officials boarded up with iron bars and plywood slabs the iron grills of the detention cells, limiting
the already poor light and ventilation in the detainees cells.

Pre-trial detainees do not forfeit their constitutional rights upon confinement. [16] However, the fact that the detainees are confined makes
their rights more limited than those of the public.[17] RA 7438, which specifies the rights of detainees and the duties of detention officers, expressly
recognizes the power of the detention officer to adopt and implement reasonable measures to secure the safety of the detainee and prevent his escape.
Section 4(b) of RA 7438 provides:

Section 4. Penalty Clause. a) x x x

b) Any person who obstructs, prevents or prohibits any lawyer, any member of the immediate family of a person arrested, detained
or under custodial investigation, or any medical doctor or priest or religious minister or by his counsel, from visiting and conferring
privately chosen by him or by any member of his immediate family with him, or from examining and treating him, or from
ministering to his spiritual needs, at any hour of the day or, in urgent cases, of the night shall suffer the penalty of imprisonment
of not less than four (4) years nor more than six (6) years, and a fine of four thousand pesos (P4,000.00).

The provisions of the above Section notwithstanding, any security officer with custodial responsibility over any detainee or
prisoner may undertake such reasonable measures as may be necessary to secure his safety and prevent his escape.
(Emphasis supplied)

True, Section 4(b) of RA 7438 makes it an offense to prohibit a lawyer from visiting a detainee client at any hour of the day or, in urgent
cases, of the night. However, the last paragraph of the same Section 4(b) makes the express qualification that notwithstanding the provisions of
Section 4(b), the detention officer has the power to undertake such reasonable measures as may be necessary to secure the safety of the detainee and
prevent his escape.

The last paragraph of Section 4(b) of RA 7438 prescribes a clear standard. The regulations governing a detainees confinement must be
reasonable measures x x x to secure his safety and prevent his escape. Thus, the regulations must be reasonably connected to the governments
objective of securing the safety and preventing the escape of the detainee. The law grants the detention officer the authority to undertake such
reasonable measures or regulations.

Petitioners contend that there was an actual prohibition of the detainees right to effective representation when petitioners visits were limited
by the schedule of visiting hours. Petitioners assert that the violation of the detainees rights entitle them to be released from detention.

Petitioners contention does not persuade us. The schedule of visiting hours does not render void the detainees indictment for criminal and
military offenses to warrant the detainees release from detention. The ISAFP officials did not deny, but merely regulated, the detainees right to
counsel. The purpose of the regulation is not to render ineffective the right to counsel, but to secure the safety and security of all detainees. American
cases are instructive on the standards to determine whether regulations on pre-trial confinement are permissible.
In Bell v. Wolfish,[18] the United States (U.S.) Supreme Court held that regulations must be reasonably related to maintaining security and
must not be excessive in achieving that purpose. Courts will strike down a restriction that is arbitrary and purposeless. [19] However, Bell v.
Wolfish expressly discouraged courts from skeptically questioning challenged restrictions in detention and prison facilities. [20] The U.S. Supreme
Court commanded the courts to afford administrators wide-ranging deference in implementing policies to maintain institutional security. [21]

In our jurisdiction, the last paragraph of Section 4(b) of RA 7438 provides the standard to make regulations in detention centers
allowable: such reasonable measures as may be necessary to secure the detainees safety and prevent his escape. In the present case, the visiting
hours accorded to the lawyers of the detainees are reasonably connected to the legitimate purpose of securing the safety and preventing the escape of
all detainees.

While petitioners may not visit the detainees any time they want, the fact that the detainees still have face-to-face meetings with their
lawyers on a daily basisclearly shows that there is no impairment of detainees right to counsel. Petitioners as counsels could visit their clients
between 8:00 a.m. and 5:00 p.m. with a lunch break at 12:00 p.m. The visiting hours are regular business hours, the same hours when lawyers
normally entertain clients in their law offices. Clearly, the visiting hours pass the standard of reasonableness. Moreover, in urgent cases, petitioners
could always seek permission from the ISAFP officials to confer with their clients beyond the visiting hours.

The scheduled visiting hours provide reasonable access to the detainees, giving petitioners sufficient time to confer with the detainees. The
detainees right to counsel is not undermined by the scheduled visits. Even in the hearings before the Senate and the Feliciano
Commission,[22] petitioners were given time to confer with the detainees, a fact that petitioners themselves admit.[23] Thus, at no point were the
detainees denied their right to counsel.

Petitioners further argue that the bars separating the detainees from their visitors and the boarding of the iron grills in their cells with
plywood amount to unusual and excessive punishment. This argument fails to impress us. Bell v. Wolfish pointed out that while a detainee may not
be punished prior to an adjudication of guilt in accordance with due process of law, detention inevitably interferes with a detainees desire to live
comfortably.[24] The fact that the restrictions inherent in detention intrude into the detainees desire to live comfortably does not convert those
restrictions into punishment.[25] It is when the restrictions are arbitrary and purposeless that courts will infer intent to punish.[26] Courts will also infer
intent to punish even if the restriction seems to be related rationally to the alternative purpose if the restriction appears excessive in relation to that
purpose.[27] Jail officials are thus not required to use the least restrictive security measure.[28] They must only refrain from implementing a restriction
that appears excessive to the purpose it serves.[29]

We quote Bell v. Wolfish:

One further point requires discussion. The petitioners assert, and respondents concede, that the essential objective of
pretrial confinement is to insure the detainees presence at trial. While this interest undoubtedly justifies the original decision to
confine an individual in some manner, we do not accept respondents argument that the Governments interest in ensuring a
detainees presence at trial is the only objective that may justify restraints and conditions once the decision is lawfully made to
confine a person. If the government could confine or otherwise infringe the liberty of detainees only to the extent necessary to
ensure their presence at trial, house arrest would in the end be the only constitutionally justified form of detention. The
Government also has legitimate interests that stem from its need to manage the facility in which the individual is detained. These
legitimate operational concerns may require administrative measures that go beyond those that are, strictly speaking, necessary to
ensure that the detainee shows up at trial. For example, the Government must be able to take steps to maintain security and order
at the institution and make certain no weapons or illicit drugs reach detainees.Restraints that are reasonably related to the
institutions interest in maintaining jail security do not, without more, constitute unconstitutional punishment, even if they are
discomforting and are restrictions that the detainee would not have experienced had he been released while awaiting trial. We
need not here attempt to detail the precise extent of the legitimate governmental interests that may justify conditions or
restrictions of pretrial detention. It is enough simply to recognize that in addition to ensuring the detainees presence at trial, the
effective management of the detention facility once the individual is confined is a valid objective that may justify imposition of
conditions and restrictions of pretrial detention and dispel any inference that such restrictions are intended as punishment. [30]

An action constitutes a punishment when (1) that action causes the inmate to suffer some harm or disability, and (2) the purpose of the
action is to punish the inmate.[31] Punishment also requires that the harm or disability be significantly greater than, or be independent of, the inherent
discomforts of confinement.[32]

Block v. Rutherford,[33] which reiterated Bell v. Wolfish, upheld the blanket restriction on contact visits as this practice was reasonably
related to maintaining security. The safety of innocent individuals will be jeopardized if they are exposed to detainees who while not yet convicted
are awaiting trial for serious, violent offenses and may have prior criminal conviction.[34] Contact visits make it possible for the detainees to hold
visitors and jail staff hostage to effect escapes.[35]Contact visits also leave the jail vulnerable to visitors smuggling in weapons, drugs, and other
contraband.[36] The restriction on contact visits was imposed even on low-risk detainees as they could also potentially be enlisted to help obtain
contraband and weapons.[37] The security consideration in the imposition of blanket restriction on contact visits was ruled to outweigh the sentiments
of the detainees.[38]

Block v. Rutherford held that the prohibition of contact visits bore a rational connection to the legitimate goal of internal security. [39] This
case reaffirmed the hands-off doctrine enunciated in Bell v. Wolfish, a form of judicial self-restraint, based on the premise that courts should decline
jurisdiction over prison matters in deference to administrative expertise. [40]

In the present case, we cannot infer punishment from the separation of the detainees from their visitors by iron bars, which is merely a
limitation on contact visits. The iron bars separating the detainees from their visitors prevent direct physical contact but still allow the detainees to
have visual, verbal, non-verbal and limited physical contact with their visitors. The arrangement is not unduly restrictive. In fact, it is not even a strict
non-contact visitation regulation like in Block v. Rutherford. The limitation on the detainees physical contacts with visitors is a reasonable, non-
punitive response to valid security concerns.

The boarding of the iron grills is for the furtherance of security within the ISAFP Detention Center. This measure intends to fortify the
individual cells and to prevent the detainees from passing on contraband and weapons from one cell to another. The boarded grills ensure security
and prevent disorder and crime within the facility. The diminished illumination and ventilation are but discomforts inherent in the fact of detention,
and do not constitute punishments on the detainees.
We accord respect to the finding of the Court of Appeals that the conditions in the ISAFP Detention Center are not inhuman, degrading and
cruel. Each detainee, except for Capt. Nicanor Faeldon and Capt. Gerardo Gambala, is confined in separate cells, unlike ordinary cramped detention
cells. The detainees are treated well and given regular meals. The Court of Appeals noted that the cells are relatively clean and livable compared to
the conditions now prevailing in the city and provincial jails, which are congested with detainees. The Court of Appeals found the assailed measures
to be reasonable considering that the ISAFP Detention Center is a high-risk detention facility. Apart from the soldiers, a suspected New Peoples
Army (NPA) member and two suspected Abu Sayyaf members are detained in the ISAFP Detention Center.
We now pass upon petitioners argument that the officials of the ISAFP Detention Center violated the detainees right to privacy when the
ISAFP officials opened and read the letters handed by detainees Trillanes and Maestrecampo to one of the petitioners for mailing. Petitioners point
out that the letters were not in a sealed envelope but simply folded because there were no envelopes in the ISAFP Detention Center. Petitioners
contend that the Constitution prohibits the infringement of a citizens privacy rights unless authorized by law. The Solicitor General does not deny
that the ISAFP officials opened the letters.
Courts in the U.S. have generally permitted prison officials to open and read all incoming and outgoing mail of convicted prisoners to
prevent the smuggling of contraband into the prison facility and to avert coordinated escapes.[41] Even in the absence of statutes specifically allowing
prison authorities from opening and inspecting mail, such practice was upheld based on the principle of civil deaths.[42] Inmates were deemed to have
no right to correspond confidentially with anyone. The only restriction placed upon prison authorities was that the right of inspection should not be
used to delay unreasonably the communications between the inmate and his lawyer. [43]

Eventually, the inmates outgoing mail to licensed attorneys, courts, and court officials received respect.[44] The confidential
correspondences could not be censored.[45] The infringement of such privileged communication was held to be a violation of the inmates First
Amendment rights.[46] A prisoner has a right to consult with his attorney in absolute privacy, which right is not abrogated by the legitimate interests
of prison authorities in the administration of the institution.[47]Moreover, the risk is small that attorneys will conspire in plots that threaten prison
security.[48]

American jurisprudence initially made a distinction between the privacy rights enjoyed by convicted inmates and pre-trial detainees. The
case of Palmigiano v. Travisono[49] recognized that pre-trial detainees, unlike convicted prisoners, enjoy a limited right of privacy in communication.
Censorship of pre-trial detainees mail addressed to public officials, courts and counsel was held impermissible. While incoming mail may be
inspected for contraband and read in certain instances, outgoing mail of pre-trial detainees could not be inspected or read at all.

In the subsequent case of Wolff v. McDonnell,[50] involving convicted prisoners, the U.S. Supreme Court held that prison officials could
open in the presence of the inmates incoming mail from attorneys to inmates. However, prison officials could not read such mail from attorneys.
Explained the U.S. Supreme Court:

The issue of the extent to which prison authorities can open and inspect incoming mail from attorneys to inmates, has been
considerably narrowed in the course of this litigation. The prison regulation under challenge provided that (a)ll incoming and
outgoing mail will be read and inspected, and no exception was made for attorney-prisoner mail. x x x

Petitioners now concede that they cannot open and read mail from attorneys to inmates, but contend that they may open all letters
from attorneys as long as it is done in the presence of the prisoners. The narrow issue thus presented is whether letters determined or
found to be from attorneys may be opened by prison authorities in the presence of the inmate or whether such mail must be delivered
unopened if normal detection techniques fail to indicate contraband.

xxx
x x x If prison officials had to check in each case whether a communication was from an attorney before opening it for inspection, a
near impossible task of administration would be imposed. We think it entirely appropriate that the State require any such
communications to be specially marked as originating from an attorney, with his name and address being given, if they are to receive
special treatment. It would also certainly be permissible that prison authorities require that a lawyer desiring to correspond with a
prisoner, first identify himself and his client to the prison officials, to assure that the letters marked privileged are actually from
members of the bar. As to the ability to open the mail in the presence ofinmates, this could in no way constitute censorship, since the
mail would not be read. Neither could it chill such communications, since the inmates presence insures that prison officials will not
read the mail. The possibility that contraband will be enclosed in letters, even those from apparent attorneys, surely warrants prison
officials opening the letters. We disagree with the Court of Appeals that this should only be done in appropriate circumstances. Since
a flexible test, besides being unworkable, serves no arguable purpose in protecting any of the possible constitutional rights
enumerated by respondent, we think that petitioners, by acceding to a rule whereby the inmate is present when mail from attorneys is
inspected, have done all, and perhaps even more, than the Constitution requires. [51]

In Hudson v. Palmer,[52] the U.S. Supreme Court ruled that an inmate has no reasonable expectation of privacy inside his cell. The U.S.
Supreme Court explained that prisoners necessarily lose many protections of the Constitution, thus:

However, while persons imprisoned for crime enjoy many protections of the Constitution, it is also clear that imprisonment carries
with it the circumscription or loss of many significant rights. These constraints on inmates, and in some cases the complete
withdrawal of certain rights, are justified by the considerations underlying our penal system. The curtailment of certain rights is
necessary, as a practical matter, to accommodate a myriad of institutional needs and objectives of prison facilities, chief among which
is internal security. Of course, these restrictions or retractions also serve, incidentally, as reminders that, under our system of justice,
deterrence and retribution are factors in addition to correction.[53]

The later case of State v. Dunn,[54] citing Hudson v. Palmer, abandoned Palmigiano v. Travisono and made no distinction as to the
detainees limited right to privacy. State v. Dunn noted the considerable jurisprudence in the United States holding that inmate mail may be censored
for the furtherance of a substantial government interest such as security or discipline. State v. Dunn declared that if complete censorship is
permissible, then the lesser act of opening the mail and reading it is also permissible. We quote State v. Dunn:

[A] right of privacy in traditional Fourth Amendment terms is fundamentally incompatible with the close and continual
surveillance of inmates and their cells required to ensure institutional security and internal order. We are satisfied that society
would insist that the prisoners expectation of privacy always yield to what must be considered a paramount interest in
institutional security. We believe that it is accepted by our society that [l]oss of freedom of choice and privacy are inherent
incidents of confinement.

The distinction between the limited privacy rights of a pre-trial detainee and a convicted inmate has been blurred as courts in the U.S. ruled
that pre-trial detainees might occasionally pose an even greater security risk than convicted inmates. Bell v. Wolfish reasoned that those who are
detained prior to trial may in many cases be individuals who are charged with serious crimes or who have prior records and may therefore pose a
greater risk of escape than convicted inmates.[55]Valencia v. Wiggins[56] further held that it is impractical to draw a line between convicted prisoners
and pre-trial detainees for the purpose of maintaining jail security.
American cases recognize that the unmonitored use of pre-trial detainees non-privileged mail poses a genuine threat to jail
security.[57] Hence, when a detainee places his letter in an envelope for non-privileged mail, the detainee knowingly exposes his letter to possible
inspection by jail officials.[58] A pre-trial detainee has no reasonable expectation of privacy for his incoming mail.[59] However, incoming mail from
lawyers of inmates enjoys limited protection such that prison officials can open and inspect the mail for contraband but could not read the contents
without violating the inmates right to correspond with his lawyer. [60]The inspection of privileged mail is limited to physical contraband and not to
verbal contraband.[61]

Thus, we do not agree with the Court of Appeals that the opening and reading of the detainees letters in the present case violated the
detainees right to privacy of communication. The letters were not in a sealed envelope. The inspection of the folded letters is a valid measure as it
serves the same purpose as the opening of sealed letters for the inspection of contraband.

The letters alleged to have been read by the ISAFP authorities were not confidential letters between the detainees and their lawyers. The
petitioner who received the letters from detainees Trillanes and Maestrecampo was merely acting as the detainees personal courier and not as their
counsel when he received the letters for mailing. In the present case, since the letters were not confidential communication between the
detainees and their lawyers, the officials of the ISAFP Detention Center could read the letters. If the letters are marked confidential
communication between the detainees and their lawyers, the detention officials should not read the letters but only open the envelopes for inspection
in the presence of the detainees.

That a law is required before an executive officer could intrude on a citizens privacy rights [62] is a guarantee that is available only to the
public at large but not to persons who are detained or imprisoned. The right to privacy of those detained is subject to Section 4 of RA 7438, as well as
to the limitations inherent in lawful detention or imprisonment. By the very fact of their detention, pre-trial detainees and convicted prisoners have a
diminished expectation of privacy rights.

In assessing the regulations imposed in detention and prison facilities that are alleged to infringe on the constitutional rights of the detainees and
convicted prisoners, U.S. courts balance the guarantees of the Constitution with the legitimate concerns of prison administrators. [63] The deferential
review of such regulations stems from the principle that:

[s]ubjecting the day-to-day judgments of prison officials to an inflexible strict scrutiny analysis would seriously hamper their
ability to anticipate security problems and to adopt innovative solutions to the intractable problems of prison administration.[64]

The detainees in the present case are junior officers accused of leading 300 soldiers in committing coup detat, a crime punishable
with reclusion perpetua.[65]The junior officers are not ordinary detainees but visible leaders of the Oakwood incident involving an armed takeover of
a civilian building in the heart of the financial district of the country. As members of the military armed forces, the detainees are subject to the
Articles of War.[66]

Moreover, the junior officers are detained with other high-risk persons from the Abu Sayyaf and the NPA. Thus, we must give the military
custodian a wider range of deference in implementing the regulations in the ISAFP Detention Center. The military custodian is in a better position to
know the security risks involved in detaining the junior officers, together with the suspected Abu Sayyaf and NPA members. Since the appropriate
regulations depend largely on the security risks involved, we should defer to the regulations adopted by the military custodian in the absence of
patent arbitrariness.

The ruling in this case, however, does not foreclose the right of detainees and convicted prisoners from petitioning the courts for the redress
of grievances. Regulations and conditions in detention and prison facilities that violate the Constitutional rights of the detainees and prisoners will be
reviewed by the courts on a case-by-case basis. The courts could afford injunctive relief or damages to the detainees and prisoners subjected to
arbitrary and inhumane conditions. However,habeas corpus is not the proper mode to question conditions of confinement. [67] The writ of habeas
corpus will only lie if what is challenged is the fact or duration of confinement. [68]

WHEREFORE, we DISMISS the petition. We AFFIRM the Decision of the Court of Appeals in CA-G.R. SP No. 78545.

No pronouncement as to costs.

SO ORDERED
G.R. No. L-68635 May 14, 1987

IN THE MATTER OF PROCEEDINGS FOR DISCIPLINARY ACTION AGAINST ATTY. WENCESLAO LAURETA, AND OF
CONTEMPT PROCEEDINGS AGAINST EVA MARAVILLA-ILUSTRE in G.R. No. 68635, entitled "EVA MARAVILLA-ILUSTRE, vs.
HON. INTERMEDIATE APPELLATE COURT, ET AL."

RESOLUTION

PER CURIAM:

Before us are 1) Atty. Wenceslao Laureta's Motion for Reconsideration of the Per Curiam Resolution of this Court promulgated on March 12, 1987,
finding him guilty of grave professional misconduct and suspending him indefinitely from the practice of law; and 2) Eva Maravilla-Ilustre's Motion
for Reconsideration of the same Resolution holding her in contempt and ordering her to pay a fine of P1,000.00.

Essentially, Atty. Laureta maintains that the Order of suspension without hearing violated his right to life and due process of law and by reason
thereof the Order is null and void; that the acts of misconduct imputed to him are without basis; that the charge against him that it was he who had
circulated to the press copies of the Complaint filed before the Tanodbayan is unfounded such that, even in this Court's Resolution, his having
distributed copies to the press is not stated positively; that the banner headline which appeared In the Daily Express is regrettable but that he was not
responsible for such "misleading headline;" that he "did nothing of the sort" being fully conscious of his responsibilities as a law practitioner and
officer of the Court; that as a former newspaperman, he would not have been satisfied with merely circulating copies of the Complaint to the press in
envelopes where his name appears; "he himself would have written stories about the case in a manner that sells newspapers; even a series of juicy
articles perhaps, something that would have further subjected the respondent justices to far worse publicity;" that, on the contrary, the press
conference scheduled by Ilustre was cancelled through his efforts in order to prevent any further adverse publicity resulting from the filing of the
complaint before the Tanodbayan; that, as a matter of fact, it was this Court's Resolution that was serialized in the Bulletin Today, which newspaper
also made him the subject of a scathing editorial but that he "understands the cooperation because after all, the Court rendered a favorable judgment
in the Bulletin union case last year;" that he considered it "below his dignity to plead for the chance to present his side" with the Editor, Mr. Ben
Rodriguez, "a long-time personal friend" since he "can afford to be the sacrificial lamb if only to help the Honorable Court uphold its integrity;" that
he was called by a reporter of DZRH and was asked to comment on the case filed before the Tanodbayan but that his remarks were confined to the
filing of the case by Ilustre herself, and that the judgment of the trial Court had attained its finality long ago; that he is not Ilustre's counsel before the
Tanodbayan and did not prepare the complaint filed before it, his professional services having been terminated upon the final dismissal of Ilustre's
case before this Court; that similarities in the language and phraseology used in the Ilustre letters, in pleadings before this Court and before the
Tanodbayan do not prove his authorship since other lawyers "even of a mediocre caliber" could very easily have reproduced them; that the
discussions on the merits in the Per Curiam Resolution are "more properly addressed to the Tanodbayan, Justice Raul M. Gonzales being competent
to deal with the case before him;" that he takes exception to the accusation that he has manifested lack of respect for and exposed to public ridicule
the two highest Courts of the land, all he did having been to call attention to errors or injustice committed in the promulgation of judgments or orders;
that he has "not authorized or assisted and/or abetted and could not have prevented the contemptuous statements, conduct, acts and malicious charges
of Eva Maravilla Ilustre who was no longer his client when these alleged acts were done; that "he is grateful to this Court for the reminder on the first
duty of a lawyer which is to the Court and not to his client, a duty that he has always impressed upon his law students;" and finally, that "for the
record, he is sorry for the adverse publicity generated by the filing of the complaint against the Justices before the Tanodbayan."

In her own Motion for Reconsideration, Eva Maravilla-Ilustre also raises as her main ground the alleged deprivation of her constitutional right to due
process. She maintains that as contempt proceedings are commonly treated as criminal in nature, the mode of procedure and rules of evidence in
criminal prosecution should be assimilated, as far as practicable, in this proceeding, and that she should be given every opportunity to present her
side. Additionally, she states that, with some sympathetic lawyers, they made an "investigation" and learned that the Resolution of the First Division
was arrived at without any deliberation by its members; that Court personnel were "tight-lipped about the matter, which is shrouded mystery" thereby
prompting her to pursue a course which she thought was legal and peaceful; that there is nothing wrong in making public the manner of voting by the
Justices, and it was for that reason that she addressed Identical letters to Associate Justices Andres Narvasa, Ameurfina M. Herrera, Isagani Cruz and
Florentino Feliciano; that "if the lawyers of my opponents were not a Solicitor General, and member of the Supreme Court and a Division Chairman,
respectively, the resolution of May 14, 1986 would not have aroused my suspicion;" that instead of taking the law into her own hands or joining any
violent movement, she took the legitimate step of making a peaceful investigation into how her case was decided, and brought her grievance to the
Tanodbayan "in exasperation" against those whom she felt had committed injustice against her "in an underhanded manner."

We deny reconsideration in both instances.

The argument premised on lack of hearing and due process, is not impressed with merit. What due process abhors is absolute lack of opportunity to
be heard (Tajonera vs. Lamaroza, et al., 110 SCRA 438 [1981]). The word "hearing" does not necessarily connote a "trial-type" proceeding. In the
show-cause Resolution of this Court, dated January 29, 1987, Atty. Laureta was given sufficient opportunity to inform this Court of the reasons why
he should not be subjected to dispose action. His Answer, wherein he prayed that the action against him be dismissed, contained twenty-two (22)
pages, double spaced. Eva Maravilla-Ilustre was also given a like opportunity to explain her statements, conduct, acts and charges against the Court
and/or the official actions of the Justices concerned. Her Compliance Answer, wherein she prayed that the contempt proceeding against her be
dismissed, contained nineteen (19) pages, double spaced. Both were afforded ample latitude to explain matters fully. Atty. Laureta denied having
authored the letters written by Ilustre, his being her counsel before the Tanodbayan, his having circularized to the press copies of the complaint filed
before said body, and his having committed acts unworthy of his profession. But the Court believed otherwise and found that those letters and the
charges levelled against the Justices concerned, of themselves and by themselves, betray not only their malicious and contemptuous character, but
also the lack of respect for the two highest Courts of the land, a complete obliviousness to the fundamental principle of separation of powers, and a
wanton disregard of the cardinal doctrine of independence of the Judiciary. Res ipsa loquitur. Nothing more needed to have been said or proven. The
necessity to conduct any further evidentially hearing was obviated (See People vs. Hon. Valenzuela, G.R. Nos. 63950-60, April 19, 1985, 135 SCRA
712). Atty. Laureta and Ilustre were given ample opportunity to be heard, and were, in fact, heard.

(1)

In his Motion for Reconsideration, Atty. Laureta reiterates his allegations in his Answer to the show-cause Resolution that his professional services
were terminated by Ilustre after the dismissal of the main petition by this Court; that he had nothing to do with the contemptuous letters to the
individual Justices; and that he is not Ilustre's counsel before the Tanodbayan.
Significantly enough, however, copy of the Tanodbayan Resolution dismissing Ilustre's Complaint was furnished Atty. Laureta as "counsel for the
complainant" at his address of record. Of note, too, is the fact that it was he who was following up the Complaint before the Tanodbayan and, after its
dismissal, the Motion for Reconsideration of the Order of dismissal.

Of import, as well, is the report of Lorenzo C. Bardel, a process server of this Court, that after having failed to serve copy of the Per Curiam
Resolution of March 12, 1987 of this Court on Ilustre personally at her address of record, "101 F. Manalo St., Cubao, Quezon City," having been
informed that she is 6 not a resident of the place," he proceeded to the residence of Atty. Laureta where the latter's wife "voluntarily received the two
copies of decision for her husband and for Ms. Maravina-Ilustre" (p. 670, Rollo, Vol. 11).

That Ilustre subsequently received copy of this Court's Resolution delivered to Mrs. Laureta is shown by the fact that she filed, as of March 27, 1987,
a "Petition for Extension of Time to file Motion for Reconsideration" and subsequently the Motion for Reconsideration. In that Petition Ilustre
acknowledged receipt of the Resolution on March 12, 1987, the very same date Mrs. Laureta received copy thereof. If, indeed, the lawyer-client
relationship between her husband and Ilustre had been allegedly completely severed, all Mrs. Laureta had to do was to return to the Sheriff the copy
intended for Ilustre. As it was, however, service on Atty. Laureta proved to be service on Ilustre as well. The close tie- up between the corespondents
is heightened by the fact that three process servers of this Court failed to serve copy of this Court's Per Curiam Resolution on Ilustre personally.

Noteworthy, as well, is that by Atty. Laureta's own admission, he was the one called by a "reporter" of DZRH to comment on the Ilustre charges
before the Tanodbayan. If, in fact, he had nothing to do with the complaint, he would not have been pinpointed at all. And if his disclaimer were the
truth, the logical step for him to have taken was to refer the caller to the lawyer/s allegedly assisting Ilustre, at the very least, out of elementary
courtesy and propriety. But he did nothing of the sort. " He gave his comment with alacrity.

The impudence and lack of respect of Atty. Laureta for this Court again surfaces when he asserts in his Motion for Reconsideration that he
"understands the cooperation" of the Bulletin Today as manifested in the serialized publication of the Per Curiam Resolution of this Court and his
being subjected to a scathing editorial by the same newspaper "because after all, the Court rendered a favorable judgment in the Bulletin union case
last year." The malice lurking in that statement is most unbecoming of an officer of the Court and is an added reason for denying reconsideration.

Further, Atty. Laureta stubbornly contends that discussions on the merits in the Court's Per Curiam Resolution are more properly addressed to the
Tanodbayan, forgetting, however, his own discourse on the merits in his Answer to this Court's Resolution dated January 29, 1987. He thus
incorrigibly insists on subordinating the Judiciary to the executive notwithstanding the categorical pronouncement in the Per Curiam Resolution of
March 12, 1987, that Article 204 of the Revised Penal Code has no application to the members of a collegiate Court; that a charge of violation of the
Anti-Graft and Corrupt Practices Act on the ground that a collective decision is "unjust" cannot prosper; plus the clear and extended dissertation in
the same Per Curiam Resolution on the fundamental principle of separation of powers and of checks and balances, pursuant to which it is this Court
"entrusted exclusively with the judicial power to adjudicate with finality all justifiable disputes, public and private. No other department or agency
may pass upon its judgments or declare them 'unjust' upon controlling and irresistible reasons of public policy and of sound practice."

Atty. Laureta's protestations that he has done his best to protect and uphold the dignity of this Court are belied by environmental facts and
circumstances. His apologetic stance for the "adverse publicity" generated by the filing of the charges against the Justices concerned before the
Tanodbayan rings with insincerity. The complaint was calculated precisely to serve that very purpose. The threat to bring the case to "another forum
of justice" was implemented to the fun. Besides, he misses the heart of the matter. Exposure to the glare of publicity is an occupational hazard. If he
has been visited with disciplinary sanctions it is because by his conduct, acts and statements, he has, overall, deliberately sought to destroy the
"authenticity, integrity, and conclusiveness of collegiate acts," to "undermine the role of the Supreme Court as the final arbiter of all justifiable
disputes," and to subvert public confidence in the integrity of the Courts and the Justices concerned, and in the orderly administration of justice.

In fine, we discern nothing in Atty. Laureta's Motion for Reconsideration that would call for a modification, much less a reversal, of our finding that
he is guilty of grave professional misconduct that renders him unfit to continue to be entrusted with the duties and responsibilities pertaining to an
attorney and officer of the Court.

(2)

Neither do we find merit in Ilustre's Motion for Reconsideration. She has turned deaf ears to any reason or clarification. She and her counsel have
refused to accept the untenability of their case and the inevitability of losing in Court. They have allowed suspicion alone to blind their actions and in
so doing degraded the administration of justice. "Investigation" was utterly uncalled for. All conclusions and judgments of the Court, be they en
banc or by Division, are arrived at only after deliberation. The fact that no dissent was indicated in the Minutes of the proceedings held on May 14,
1986 showed that the members of the Division voted unanimously. Court personnel are not in a position to know the voting in any case because all
deliberations are held behind closed doors without any one of them being present. No malicious inferences should have been drawn from their
inability to furnish the information Ilustre and Atty. Laureta desired The personality of the Solicitor General never came into the picture. It was
Justice Abad Santos, and not Justice Yap, who was Chairman of the First Division when the Resolution of May 14, 1986 denying the Petition was
rendered. Thereafter Justice Yap inhibited himself from any participation. The fact that the Court en banc upheld the challenged Resolutions of the
First Division emphasizes the irrespective of Ilustre's case irrespective of the personalities involved.

Additionally, Ilustre has been trifling with this Court. She has given our process servers the run-around. Three of them failed to serve on her
personally her copy of this Court's Per Curiam Resolution of March 12, 1987 at her address of record. Mrs. Laureta informed process server Lorenzo
C. Bardel that Ilustre was residing at 17-D, Quezon St., Tondo, Manila. Romeo C. Regala, another process server, went to that address to serve copy
of the Resolution but he reported:

4. That inspite of diligent efforts to locate the address of ms.Eva Maravilla-Ilustre, said address could not be located;

5. That I even asked the occupants (Cerdan Family) of No. 17 Quezon Street, Tondo, Manila, and they informed that there is no
such Ms. Eva Maravilla-Ilustre in the neighborhood and/or in the vicinity; ... (p. 672, Rollo, Vol. 11).

The third process server, Nelson C. Cabesuela, was also unable to serve copy of this Court's Resolution on Ilustre. He reported:

2. On March 17, 1987, at about 9:30 A.M., I arrived at the house in the address furnished at; the notice of judgment (101 Felix
Manalo St., Cubao, Quezon City), and was received by an elderly woman who admitted to be the owner of the house but
vehemently refused to be Identified, and told me that she does not know the addressee Maravilla, and told me further that she
always meets different persons looking for Miss Maravilla because the latter always gives the address of her house;
3. That, I was reminded of an incident that I also experienced in the same place trying to serve a resolution to Miss Maravilla
which was returned unserved because she is not known in the place; ... (p. 674, Rollo, Vol. II).

And yet, in her Petition for Extension of Time and in her Motion for Reconsideration she persists in giving that address at 101 Felix Manalo St.,
Cubao, Quezon City, where our process servers were told that she was not a resident of and that she was unknown thereat. If for her contumacious
elusiveness and lack of candor alone, Ilustre deserves no further standing before this Court.

ACCORDINGLY, the respective Motions for reconsideration of Atty. Wenceslao G. Laureta for the setting aside of the order suspending him from
the practice of law, and of Eva Maravilla Ilustre for the lifting of the penalty for contempt are DENIED, and this denial is FINAL. Eva Maravilla
Ilustre shall pay the fine of P1,000.00 imposed on her within ten (10) days from notice, or, suffer imprisonment for ten (10) days upon failure to pay
said fine within the stipulated period.

SO ORDERED.
G.R. No. 152072 January 31, 2006

ROMEO G. ROXAS and SANTIAGO N. PASTOR, Petitioners,


vs.
ANTONIO DE ZUZUARREGUI, JR., ENRIQUE DE ZUZUARREGUI, PACITA JAVIER, ELIZABETH R. GONZALES, JOSEFINA R.
DAZA, ELIAS REYES, NATIVIDAD REYES, TERESITA REYES, JOSE REYES and ANTONIO REYES, Respondents.

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

G.R. No. 152104 January 31, 2006

ANTONIO DE ZUZUARREGUI, JR., ENRIQUE DE ZUZUARREGUI, PACITA JAVIER, ELIZABETH R. GONZALES, JOSEFINA R.
DAZA, ELIAS REYES, NATIVIDAD REYES, TERESITA REYES, JOSE REYES and ANTONIO REYES, Petitioners,
vs.
THE NATIONAL HOUSING AUTHORITY, JOSE B. H. PEDROSA, ROMEO G. ROXAS and SANTIAGO N. PASTOR, Respondents.

DECISION

CHICO-NAZARIO, J.:

Before Us are two petitions for review on certiorari1 which were consolidated per Resolution2 of this Court dated 27 November 2002. The petitioners
in G.R. No. 152072, Attys. Romeo G. Roxas and Santiago N. Pastor, seek the reversal and annulment of the Decision 3 and Resolution4 of the Court
of Appeals dated 25 June 2001 and 06 February 2002, respectively. The petitioners in G.R. No. 152104, the Zuzuarreguis, on the other hand, pray
that the said Decision and Resolution of the Court of Appeals be modified. Said Decision and Resolution reversed and set aside the decision of the
Regional Trial Court (RTC), Branch 98, Quezon City, dated 03 January 1994.

THE ANTECEDENTS

The instant cases had their beginnings in 1977 when the National Housing Authority (NHA) filed expropriation proceedings against the
Zuzuarreguis, petitioners in G.R. No. 152104, for parcels of land belonging to the latter situated in Antipolo, Rizal, with a total land area of
1,790,570.36 square meters, more or less. This case was lodged before the RTC, Branch 141, Municipality of Makati, 5 docketed therein as Civil Case
No. 26804 entitled, "National Housing Authority v. Pilar Ibaez Vda. De Zuzuarregui, et al."

On 25 May 1983, said case was ordered archived 6 by Branch 141.

About a month before the aforecited case was ordered archived, the Zuzuarreguis engaged the legal services of Attys. Romeo G. Roxas and Santiago
N. Pastor, to represent them in Civil Case No. 26804. This was sealed by a Letter-Agreement dated 22 April 1983, which is partly reproduced
hereunder:

April 22, 1983

Mr. Antonio de Zuzuarregui, Jr.


Mrs. Pacita Javier (as heir to the late Jose de Zuzuarregui)
Mr. Antonio de Zuzuarregui ( as heir to the late Pilar Y. vda. De Zuzuarregui)

Dear Sir and Madam:

This is to confirm in writing our verbal negotiations for us to represent you in the expropriation proceedings filed by the National
Housing Authority against your goodselves before the Court of First Instance of Rizal (now the Regional Trial Court) and docketed as
Civil Case No. 26804. Our representation shall also include the areas taken over by the Ministry of Public Works and Highways
which now formed part of the Marcos Highway at Antipolo, Rizal.

The areas affected are the following:

xxxx

We shall endeavor to secure the just compensation with the National Housing Authority and other governmental agencies at a price of
ELEVEN PESOS (P11.00) or more per square meter. Any lower amount shall not entitle us to any attorneys fees. At such price of
P11.00 per square meter or more our contingent fee[s] is THIRTY PERCENT (30%) of the just compensation.

The other terms and conditions of our proposal are:

xxxx

5. You are willing to accept NHA 5-year bonds as part payment up to 75% of the total compensation. In the event of your desire to
discount the bonds, we shall assist to have them discounted at 75% of its face value.

6. Our lawyers fees shall be in the proportion of the cash/bonds ratio of the just compensation. Likewise our fees are subject to 10%
withholding tax.

xxxx

Should the above proposal be acceptable to your goodselves, kindly signify your formal acceptance as (sic) the space hereunder
provided.

Very truly yours,


(Sgd.) (Sgd.)
SANTIAGO N. PASTOR ROMEO G. ROXAS
Lawyer Lawyer
CONFORME:
(Sgd.) (Sgd.)
ANTONIO DE ZUZUARREGUI, JR. PACITA JAVIER
In my behalf and
as heir to the late Pilar Y. vda. De Zuzuarregui as heir to the late Jose De Zuzuarregui7

A Motion to Set Case for Hearing,8 dated 14 February 1984, was filed by Attys. Roxas and Pastor in Civil Case No. 26804, praying that the case be
revived and be set for hearing by the court at the earliest date available in its calendar.

The appropriate proceedings thereafter ensued. On 29 October 1984, a Partial Decision was rendered by Branch 141 in Civil Case No. 26804 fixing
the just compensation to be paid to the Zuzuarreguis at P30.00 per square meter.

The NHA filed a Motion for Reconsideration9 dated 23 November 1984 praying that the Partial Decision be reconsidered and set aside, and a new
one rendered lowering the amount of just compensation in accordance with applicable laws. Pending resolution thereof, a Joint Special Power of
Attorney was executed by Antonio De Zuzuarregui, Jr., Enrique De Zuzuarregui and Pacita Javier, in favor of Attys. Roxas and Pastor, viz:

JOINT SPECIAL POWER OF ATTORNEY

KNOW ALL MEN BY THESE PRESENTS:

That We, ANTONIO DE ZUZUARREGUI, JR., ENRIQUE DE ZUZUARREGUI and PACITA JAVIER, all of
legal age, , do hereby appoint, name and constitute ATTYS. ROMEO G. ROXAS and SANTIAGO PASTOR, to
be our true and lawful attorneys to act in our names and on our behalves to do and execute all or any of the
following acts and deeds subject to our approval:

xxxx

(2) To represent us in the negotiations for a compromise with the National Housing Authority for our
properties subject of the above case;

(3) To negotiate for and in our behalves for the settlement of the just compensation of our properties
payable in cash or in bonds;

(4) To sign and prepare all papers relative to the preparation of a Compromise Agreement or any papers
and communications which shall eventually bear our signatures; and

(5) That this Special Power of Attorney is enforce (sic) as long as ATTYS. ROMEO G. ROXAS AND
SANTIAGO PASTOR are our lawyers in Civil Case No. 26804 before the Regional Trial Court, Makati,
Branch CXLI.

HEREBY GIVING AND GRANTING unto our said attorneys full power and authority whatsoever requisite or
necessary or proper to be done in or about the premises, as fully to all intents and purposes as we might or could
lawfully do if personally present, and hereby ratifying and confirming all that our said attorneys shall do or cause to
be done under and by virtue of these presents.

IN WITNESS WHEREOF, We have hereunto set our hands this 26th day of August, 1985, in Makati, M. M.,
Philippines.

(Sgd.)
ANTONIO DE ZUZUARREGUI, JR.1avvph!l.ne+

(Sgd.)
ENRIQUE DE ZUZUARREGUI

(Sgd.)
PACITA JAVIER10

On 22 November 1985, a Special Power of Attorney was executed by Beatriz Zuzuarregui vda. De Reyes in favor of Attys. Romeo G. Roxas,
Santiago Pastor and Basilio H. Toquero, quoted as follows:
SPECIAL POWER OF ATTORNEY

KNOW ALL MEN BY THESE PRESENTS:

That I, BEATRIZ ZUZUARREGUI VDA. DE REYES, Filipino, of legal age, widow, and a resident of E.
Rodriguez Ave., Quezon City, Philippines do hereby appoint, name and constitute ATTYS. ROMEO G. ROXAS,
SANTIAGO PASTOR and BASILIO H. TOQUERO, to be my true and lawful attorneys :

1. To represent me in the negotiation for a Compromise with the National Housing Authority for my
properties subject to my approval in CIVIL CASE No. 26804, entitled "National Housing Authority vs.
Pilar Ibaez de Zuzuarregui, et al., before the Regional Trial Court, Makati, Branch CXLI;

2. To negotiate for and in my behalf for the settlement of the just compensation of my properties payable
in cash or in bond, subject to my approval;

3. To sign and prepare all papers relative to the preparation of a Compromise Agreement or any papers
and communications which shall eventually bear my signature;

4. To accept for and in my behalf payments for my properties after the Compromise Agreement is duly
approved by the Court, the actual receipts of which payments shall be signed by me.

HEREBY GIVING AND GRANTING unto my said attorneys full power and authority whatsoever requisite,
necessary or proper to be done under and by virtue of these presents.

IN WITNESS WHEREOF, I have hereunto set my hand this 22nd day of November 1985, in the City of Manila,
Philippines.

(Sgd.)
BEATRIZ ZUZUARREGUI VDA. DE REYES11

On 10 December 1985, a Letter-Agreement was executed by and between Antonio Zuzuarregui, Jr., Pacita Javier and Enrique De Zuzuarregui, on the
one hand, and Attys. Romeo G. Roxas and Santiago Pastor, on the other. The said Letter-Agreement reads:

December 10, 1985

Atty. Romeo G. Roxas


Atty. Santiago Pastor
Makati Executive Center
Salcedo Village, Makati

Dear Atty. Roxas & Atty. Pastor:

This will confirm an amendment to our agreement regarding your attorneys fees as our lawyers and counsels for the Zuzuarreguis properties
expropriated by National Housing Authority covering ONE HUNDRED SEVENTY-NINE (179) HECTARES, more or less, covered by TCT Nos.
138340, 85633 and 85634 and filed as Civil Case No. 26804.

We hereby confirm and agree that we are willing to accept as final and complete settlement for our 179 hectares expropriated by NHA a price of
SEVENTEEN PESOS (P17.00) per square meter, or for a total of THIRTY MILLION FOUR HUNDRED THOUSAND PESOS (P30.4 Million), all
payable in NHA Bonds.

We also agree and confirm that for and in consideration of your services as our lawyers and counsels in the said expropriation case, we commit and
bind ourselves to pay to you, your heirs or assignees-in-interest, as your contingent attorneys fees any and all amount in excess of the SEVENTEEN
PESOS (P17.00) per square meter payable in NHA bonds as mentioned above.

This Letter Agreement serves also as your authority to collect directly from NHA the amount pertaining to you as your contingent attorneys fees.

This Letter Agreement hereby amends and supersedes our previous agreement regarding your attorneys fees as our lawyers and counsels in the
above-mentioned expropriation case.

Very truly yours,

(Sgd.) ANTONIO DE ZUZUARREGUI, JR.


In my behalf as heir to the late Pilar I. vda. de Zuzuarregui

(Sgd.)PACITA JAVIER
As heir to the late Jose De Zuzuarregui
(Sgd.)
ENRIQUE DE ZUZUARREGUI

CONFORME:

(Sgd.)ATTY. ROMEO G. ROXAS

(Sgd.)ATTY. SANTIAGO PASTOR12

Resolution No. 117413 dated 16 December 1985 was issued by the NHA stating that the Zuzuarregui property would be acquired at a cost of P19.50
per square meter; that the Zuzuarreguis would be paid in NHA Bonds, subject to the availability of funds; and that the yield on the bonds to be paid
to the Zuzuarreguis shall be based on the Central Bank rate at the time of payment.

As a result of the aforesaid NHA Resolution, a Compromise Agreement was executed between the Zuzuarreguis and the NHA in Civil Case No.
26804. The Compromise Agreement, stipulated among other things, that the just compensation of the Zuzuarregui properties would be at P19.50 per
square meter payable in NHA Bonds. In a Decision dated 20 December 1985, the RTC, Branch 141, Makati, approved the Compromise Agreement
submitted by the parties.

On 27 December 1985, the NHA Legal Department, through Atty. Jose B. H. Pedrosa, released to Atty. Romeo G. Roxas, in behalf of the
Zuzuarreguis, the amount of P20,000,000.00 in NHA Bearer Bonds as "partial payment for several parcels of land with a total area of 1,790,570.36
square meters located in Antipolo, Rizal."14 On even date, Atty. Romeo G. Roxas delivered NHA Bonds to Antonio De Zuzuarregui in the amount
of P15,000,000.00.15 On 04 February 1986, the amount of P34,500,000.00 in Bearer Bonds was again released by the NHA to Atty. Romeo G. Roxas
in behalf of the Zuzuarreguis.16 On 14 February 1986, the Zuzuarreguis issued a receipt 17 for receiving the amount of P30,070,000.00. This receipt
included the P15,000,000.00 given to them last 27 December 1985. Again on 17 February 1986, the Zuzuarreguis, through Beatriz Zuzuarregui vda.
De Reyes, issued another receipt for the amount of P450,000.00 in NHA bonds.18 The total amount in NHA bonds released to Atty. Romeo G. Roxas
in behalf of the Zuzuarreguis amounted to P54,500,000.00. Out of this amount, the records show that the amount turned over to the Zuzuarreguis by
Atty. Roxas amounted to P30,520,000.00 in NHA bonds.

Computed at P19.50 per square meter, the 1,790,570.36 square meters property of the Zuzuarreguis was expropriated at a total price
of P34,916,122.00. The total amount released by the NHA was P54,500,000.00. The difference of P19,583,878.00 is, undoubtedly, the yield on the
bonds.

On 25 August 1987, a letter19 was sent by the Zuzuarreguis new counsel, Jose F. Gonzalez, to Attys. Roxas and Pastor, demanding that the latter
deliver to the Zuzuarreguis the yield corresponding to bonds paid by the NHA within a period of 10 days from receipt, under pain of administrative,
civil and/or criminal action.

Attys. Roxas and Pastor answered via a letter dated 21 September 1987 explaining their side of the story. They stated therein, among other things,
that the amount that they got seems huge from the surface, but it just actually passed their hands, as it did not really go to them.20

On 29 September 1987, a letter21 was sent by the Zuzuarreguis through Antonio De Zuzuarregui, Jr., to Attys. Romeo G. Roxas and Santiago N.
Pastor, informing the latter that their services as counsels of the Zuzuarreguis (except Betty) in the expropriation proceedings filed by the NHA,
docketed as Civil Case No. 26804, was being formally terminated.

Apparently unsatisfied with the explanation of Attys. Roxas and Pastor, the Zuzuarreguis filed a civil action for Sum of Money and Damages on 14
November 1989 before the RTC, Quezon City, Branch 98, docketed as Civil Case No. Q-89-4013, against the NHA, Jose B. H. Pedrosa, Atty.
Romeo G. Roxas and Atty. Santiago N. Pastor. The Zuzuarreguis demanded that the yield on the NHA bonds be turned over to them.

After due hearing, a Decision22 in Civil Case No. Q-89-4013 was rendered on 03 January 1994, dismissing the Complaint. The dispositive portion
reads:

WHEREFORE, in view of the foregoing consideration[s], judgment is hereby rendered ordering the dismissal of the complaint against all the
defendants; and, further ordering plaintiffs, jointly and solidarily, to:

1. Pay each of the defendants Romeo G. Roxas, Santiago Pastor and Jose B. H. Perdosa, the amount of P200,000.00, P200,000.00 and
P100,000.00, respectively, as moral damages;

2. Pay each of the defendants Roxas, Pastor and Pedrosa, the amount of P50,000.00, P50,000.00, and P25,000.00, respectively as
exemplary damages;

3. Pay attorneys fees to defendants Roxas and Pastor in the amount of P20,000.00; and

4. Pay the costs of this suit.

A Notice of Appeal23 dated 10 February 1994 was filed by the Zuzuarreguis. Subsequently, on 26 April 1995, the Zuzuarreguis filed their appeal
brief with the Court of Appeals. The case was docketed as CA-G.R. CV No. 45732.

A Decision24 was eventually promulgated by the Fifteenth Division of the Court of Appeals on 25 June 2001, reversing and setting aside the ruling of
Branch 98, viz:

Therefore, We find that the amount of P4,476,426.275 is, in the opinion of this Court, commensurate to the services rendered by defendants-
appellees. This amount has been arrived at by giving to defendants-appellees P2.50 per square meter of the 1,790,570.51 square meter expropriated
properties of herein plaintiffs-appellants.

WHEREFORE, IN VIEW OF THE FOREGOING, the decision dated January 3, 1994 of the Regional Trial Court, National Capital Judicial Region,
Branch 98, Quezon City in Civil Case No. 89-4013 entitled "Antonio Zuzuarregui, Jr., et al. versus National Housing Authority, et al." for "Sum of
Money and Damages," is hereby REVERSED and SET ASIDE. Defendants-Appellees Roxas and Pastor are hereby ordered to return to plaintiffs-
appellants the amount of P12,596,696.425, the balance from the P17,073,122.70, received as yield from NHA bonds after deducting the reasonable
attorneys fees in the amount of P4,476,426.275.25

Attys. Roxas and Pastor filed a Motion for Reconsideration 26 on 25 July 2001. The Zuzuarreguis also filed a Motion for Reconsideration27 on 30 July
2001, not having been satisfied with the award, while the NHA and Pedrosa filed their Motions for Reconsideration 28 on 03 August 2001.

In a Resolution dated 06 February 2002, the Court of Appeals denied for lack of merit all the Motions for Reconsideration.

On 05 March 2002, Attys. Roxas and Pastor filed a Petition for Review on Certiorari 29 assailing the Decision of the Court of Appeals, docketed as
G.R. No. 152072. Likewise, on 21 March 2002, the Zuzuarreguis filed their own Petition for Review on Certiorari 30 assailing the same Decision,
docketed as G.R. No. 152104.1avvph!l.ne+

ASSIGNMENT OF ERRORS

Attys. Roxas and Pastor, petitioners in G.R. No. 152072, assign as errors the following:

THE HONORABLE COURT OF APPEALS GRAVELY ERRED ON A QUESTION OF LAW IN HOLDING THAT THE LETTER-
AGREEMENT DATED DECEMBER 10, 1985 CANNOT BE ALLOWED TO STAND AS THE LAW BETWEEN THE PARTIES; and

II

THE HONORABLE COURT OF APPEALS GRAVELY ERRED ON A QUESTION OF LAW IN HOLDING THAT DEFENDANTS-
APPELLANTS, HEREIN PETITIONERS, CONCEALED TO THE PLAINTIFFS-APPELLEES, HEREIN RESPONDENTS, THE YIELD OF THE
NHA BONDS31

The Zuzuarreguis, petitioners in G.R. No. 152101, on the other hand, assign as errors the following:

THE COURT OF APPEALS ERRED IN AWARDING TO PETITIONERS THE PRINCIPAL AMOUNT OF ONLY P12,596,696.425 AND NOT
P17,073,122.70 MAKING A DIFFERENCE OF P4,476,426.28

II

THE RESPONDENTS SHOULD BE HELD LIABLE FOR INTEREST FROM THE DATE OF THE FILING OF THE COMPLAINT UNTIL
FULLY PAID

III

THE RESPONDENTS SHOULD BE HELD LIABE FOR MORAL AND EXEMPLARY DAMAGES AND ATTORNEYS FEES

IV

THE RESPONDENTS NHA AND JOSE B.H. PEDROSA ARE JOINTLY AND SEVERALLY LIABLE WITH RESPONDENTS ROXAS AND
PASTOR32

ISSUE FOR RESOLUTION

Drawn from the above assignment of errors, it is patent that the principal issue that must be addressed by this Court is:

WHETHER OR NOT THE LETTER-AGREEMENT DATED 10 DECEMBER 1985, EXECUTED BY THE ZUZUARREGUIS, AND ATTYS.
ROXAS AND PASTOR, FIXING THE EXACT AMOUNT THAT MUST GO TO THE FORMER, SHOULD STAND AS LAW BETWEEN THE
PARTIES.

THE COURTS RULING

Attys. Roxas and Pastor, petitioners in G.R. No. 152072, contend in the main that the Zuzuarreguis are only entitled to the amount of P17.00 per
square meter for the 1,790,570.36 square meters expropriated by the government. This was, according to them, embodied in the Letter-Agreement
dated 10 December 1985, wherein the Zuzuarreguis agreed to accept the price of P17.00 per square meter. Besides, Attys. Roxas and Pastor contend
that the price ofP17.00 was even way above the P11.00 that the Zuzuarreguis were willing to accept for their properties under the Letter of
Engagement executed by the parties earlier on 22 April 1983. Computed at P17.00 per square meter, they stress that the amount that should go to the
Zuzuarreguis for their 1,790,570.36 square meters property should beP30,439,696.10, and that in fact the Zuzuarreguis have
received P30,520,000.00. The Letter-Agreement dated 10 December 1985 should thus stand as law between the parties. Since this Letter-Agreement,
which was "as plain and simple as can be such that there is no need for any further construction," already fixed the amount that would go to the
Zuzuarreguis (P17.00 per square meter), then it should be so.

Attys. Roxas and Pastor further assert that the receipts issued by the Zuzuarreguis dated 14 February 1986 and 17 February 1986 indicated that the
amounts received by the latter were in "full and final payment" for the subject properties.

The NHA, for its part, insists that there was no conspiracy between Attys. Roxas and Pastor on the one hand, and the NHA and Atty. Pedrosa on the
other, on the application of yields from NHA bonds.33 The Zuzuarreguis, according to the NHA, "miserably failed to substantiate and establish
conspiracy" between them.
The Zuzuarreguis, for their part, though they were triumphant in the Court of Appeals, insist that the amounts awarded them were not enough.
According to them, the P12,596,696.425 awarded by the Court of Appeals was not correct. They should have been awarded the amount
of P17,073,122.70. Quoting the Zuzuarreguis:

Respondents Roxas and Pastor retained for themselves the amount of P3,980,000.00 which represented the agreed attorneys fees of Roxas and
Pastor at P2.50 per square meter. The amount of P20,000,000.00 representing the yield of all the bearer bonds was, in the words of the Court of
Appeals, "deliberately hidden" by respondents Roxas and Pastor from petitioners. By mathematical computation, the P20,000,000.00 yield should be
proportionately divided at the ratio of P17.00 (petitioners) and P2.50 (share of respondents Roxas and Pastor). Following this ratio of division, of the
P20,000,000.00 yield, P17,073,122.70 should pertain to petitioners and the balance of P2,926,877.30 to respondents Roxas and Pastor. Add this
amount to the total of P3,980,000.00 at the agreed rate of P2.50 per square meter, the total attorneys fees of respondents Roxas and Pastor should be
P6,906,877.30, not bad, again in the words of the Court of Appeals, for handling "a simple expropriation case which ended up in a compromise
agreement." It was, therefore, in error to still deduct the amount of P4,476,426.28 from petitioners share in the yield in the amount of P17,073,122.70
leaving then only P12,596,696.42.

What was done, however, is that the product of 1,790,570.36 sq m. (area of the expropriated land of petitioners) and P2.50 which is 4,476,426.28 was
again deducted from the P17,073,122.70 which is the corresponding share of the petitioners out of the total yield of P20,000,000.00. If this were a
criminal case, petitioners were being sentenced twice for the same offense.34

The Zuzuarreguis further insist that legal interest on the amount of P17,073,122.70 be imposed from the date of the filing of the complaint, including
moral and exemplary damages, and attorneys fees.

We sustain the Court of Appeals, but with modification in the computation.

A contract is a meeting of the minds between two persons whereby one binds himself, with respect to the other, to give something or to render some
service.35 Contracts shall be obligatory, in whatever form they may have been entered into, provided all the essential requisites for their validity are
present.36

Under Article 1318 of the Civil Code, there are three essential requisites which must concur in order to give rise to a binding contract: (1) consent of
the contracting parties; (2) object certain which is the subject matter of the contract; and (3) cause of the obligation which is established.37

All these requisites were present in the execution of the Letter-Agreement.

Consent is manifested by the meeting of the offer and the acceptance upon the thing and the cause which are to constitute the contract.38 The
Zuzuarreguis, in entering into the Letter-Agreement, fully gave their consent thereto. In fact, it was them (the Zuzuarreguis) who sent the said letter
to Attys. Roxas and Pastor, for the purpose of confirming all the matters which they had agreed upon previously. There is absolutely no evidence to
show that anybody was forced into entering into the Letter-Agreement. Verily, its existence, due execution and contents were admitted by the
Zuzuarreguis themselves.39

The second requisite is the object certain. The objects in this case are twofold. One is the money that will go to the Zuzuarreguis (P17.00 per square
meter), and two, the money that will go to Attys. Roxas and Pastor (any and all amount in excess of P17.00 per square meter). There was certainty as
to the amount that will go to the Zuzuarreguis, and there was likewise certainty as to what amount will go to Attys. Roxas and Pastor.

The cause is the legal service that was provided by Attys. Roxas and Pastor. In general, cause is the why of the contract or the essential reason which
moves the contracting parties to enter into the contract.40

It is basic that a contract is the law between the parties.41 Obligations arising from contracts have the force of law between the contracting parties and
should be complied with in good faith. Unless the stipulations in a contract are contrary to law, morals, good customs, public order or public policy,
the same are binding as between the parties.42

In Licudan v. Court of Appeals,43 we did not allow the Contract for Professional Services between the counsel and his client to stand as the law
between them as the stipulation for the lawyers compensation was unconscionable and unreasonable. We said:

Although the Contract for Professional Services dated August 30, 1979 was apparently voluntarily signed by the late Aurelio Licudan for himself and
on behalf of his daughter, petitioner Cristina Licudan-Campos and by the petitioner Wilfredo Licudan who both manifested in open court that they
gave their free and willing consent to the said contract, we cannot allow the said contract to stand as the law between the parties involved considering
that the rule that in the presence of a contract for professional services duly executed by the parties thereto, the same becomes the law between the
said parties is not absolute but admits an exception that the stipulations therein are not contrary to law, good morals, good customs, public policy or
public order.44

Under the contract in question, Attys. Roxas and Pastor are to receive contingent fees 45 for their professional services. It is a deeply-rooted rule that
contingent fees are not per se prohibited by law. They are sanctioned by Canon 13 of the Canons of Professional Ethics, viz:

13. Contingent Fees.

A contract for contingent fee, where sanctioned by law, should be reasonable under all the circumstances of the case including the risk and
uncertainty of the compensation, but should always be subject to the supervision of a court, as to its reasonableness.

and Canon 20, Rule 20.01 of the Code of Professional Responsibility,46 viz:

CANON 20 A LAWYER SHALL CHARGE ONLY FAIR AND REASONABLE FEES.

Rule 20.01. A lawyer shall be guided by the following factors in determining his fees:

(a) The time spent and the extent of the services rendered or required;

(b) The novelty and difficulty of the question involved;


(c) The importance of the subject matter;

(d) The skill demanded;

(e) The probability of losing other employment as a result of acceptance of the proffered case;

(f) The customary charges for similar services and the schedule of fees of the IBP chapter to which he belongs;

(g) The amount involved in the controversy and the benefits resulting to the client from the service;

(h) The contingency or certainty of compensation;

(i) The character of the employment, whether occasional or established; and

(j) The professional standing of the lawyer.

However, in cases where contingent fees are sanctioned by law, the same should be reasonable under all the circumstances of the case, and should
always be subject to the supervision of a court, as to its reasonableness, 47such that under Canon 20 of the Code of Professional Responsibility, a
lawyer is tasked to charge only fair and reasonable fees.

Indubitably entwined with the lawyers duty to charge only reasonable fees is the power of this Court to reduce the amount of attorneys fees if the
same is excessive and unconscionable.48 Thus, Section 24, Rule 138 of the Rules of Court partly states:

SEC. 24. Compensation of attorneys; agreement as to fees. An attorney shall be entitled to have and recover from his client no more than a
reasonable compensation for his services, with a view to the importance of the subject matter of the controversy, the extent of the services rendered,
and the professional standing of the attorney. x x x. A written contract for services shall control the amount to be paid therefore unless found by the
court to be unconscionable or unreasonable.

Attorneys fees are unconscionable if they affront ones sense of justice, decency or reasonableness. 49 It becomes axiomatic therefore, that power to
determine the reasonableness or the, unconscionable character of attorney's fees stipulated by the parties is a matter falling within the regulatory
prerogative of the courts.50

In the instant case, Attys. Roxas and Pastor received an amount which was equal to forty-four percent (44%) of the just compensation paid (including
the yield on the bonds) by the NHA to the Zuzuarreguis, or an amount equivalent to P23,980,000.00 of the P54,500,000.00. Considering that there
was no full blown hearing in the expropriation case, ending as it did in a Compromise Agreement, the 44% is, undeniably, unconscionable and
excessive under the circumstances. Its reduction is, therefore, in order. This is in accordance with our ruling in the earlier case of Tanhueco v. De
Dumo51, where we reduced the amount of attorneys fees from sixty percent (60%) to fifteen percent (15%), for being excessive and unreasonable.

It is imperative that the contingent fees received by Attys. Roxas and Pastor must be equitably reduced. In the opinion of this Court, the yield that
corresponds to the percentage share of the Zuzuarreguis in the P19.50 per square meter just compensation paid by the NHA must be returned by
Attys. Roxas and Pastor.1avvph!l.ne+

The yield on the NHA bonds amounted to P19,583,878.00. This amount must therefore be divided between the Zuzuarreguis, on the one hand, and
Attys. Roxas and Pastor, on the other. The division must be pro rata. The amount of P17.00 that should go to the Zuzuarreguis represents 87.18% of
the P19.50 per square meter just compensation, The P2.50 per square meter that was to go to Attys. Roxas and Pastor, on the other hand, represents
12.82%.

The Zuzuarreguis are entitled to the yield equal to 87.18% of the P19,583,878.00, while Attys. Roxas and Pastor are entitled to 12.82% of said
amount. The amount corresponding to 87.17% of P19,583,878.00 is P17,073,224.84. This is the yield that the Zuzuarreguis are entitled to. Attys.
Roxas and Pastor, on the other hand, are entitled to P2,510,653.16.

Attys. Roxas and Pastor, in the opinion of this Court, were not shortchanged for their efforts for they would still be earning or actually earned
attorneys fees in the amount of P6,987,078.75 (P4,476,425.59 + P2,510,653.16).

The amount of P17,073,224.84 must therefore be returned by Attys. Roxas and Pastor to the Zuzuarreguis. They can take this out from the yield in
the amount of P19,583,878.00 which they have appropriated for themselves.

On the issue of moral and exemplary damages, we cannot award the same for there was no direct showing of bad faith on the part of Attys. Roxas
and Pastor, for as we said earlier, contingency fees are not per se prohibited by law. It is only necessary that it be reduced when excessive and
unconscionable, which we have already done.

We likewise cannot hold the NHA and Atty. Pedrosa jointly and severally liable to the Zuzuarreguis for there is no evidence to show conspiracy
between them.

WHEREFORE, in view of all the foregoing considerations, the Decision and Resolution of the Court of Appeals dated 25 June 2001 and 06 February
2002, respectively, are AFFIRMED but with the MODIFICATION that Attys. Romeo G. Roxas and Santiago N. Pastor are hereby ordered to return
to the Zuzuarreguis the amount of P17,073,224.84. No costs.

SO ORDERED.
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.

FELICIANO, J.:

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 for commercial viewing and for Philippine and international release, the histolic peaceful struggle
of the Filipinos at EDSA (Epifanio de los Santos Avenue). Petitioners discussed this Project with local movie producer Lope V. Juban who suggested
th 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 wel 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 Powera unique event in modern history that-made possible the
Peaceful revolution in the Philippines in 1986.

Faced with the task of dramatising these rerkble 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 Feb
revolution and the fleeing of Marcos from the country.

These character stories have been woven through the real events to help our huge international audience understand this ordinary
period inFilipino history.

First, there's Tony O'Neil, an American television journalist working for major network. Tony reflects the average American
attitude to the Phihppinence 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
dear that the time has come for a change. Through Angle 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.

The fourth fictitious character is Ben Balano, a middle-aged editor of a Manila newspaper who despises the Marcos regime and is
a supporter an promoter of Cory Aquino. Ben has two daughters, Cehea 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
thintertwining 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 Davi Wilhamgon they have developed a script we
believe accurately depicts the complex issues and events that occurred during th period .

The six hour series is a McElroy and McElroy co-production with Home Box Office in American, the Australian Broadcast
Corporation in Australia and Zenith Productions in the United Kingdom

The proposed motion picture would be essentially a re-enact. ment 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 not 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 Wilt of Pretion 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 Temporary Restraining Order and set
for hearing the application for preliminary injunction.

On 9 March 1988, Hal McElroy flied a Motion to Dismiss with Opposition to the Petition for Preliminary Injunction contending that the mini-series
fim 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 rent substantial or marked resemblance or similarity to, or is otherwise
Identifiable with, plaintiff in the production and any similar film or photoplay, until further orders from this Court, upon
plaintiff's filing of a bond in the amount of P 2,000,000.00, 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.

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, petitiioner Hal McElroy also filed 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 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 respondent.

Private respondent seasonably filed his Consolidated Answer on 6 April 1988 invoking in the main a right of privacy.

The constitutional and legal issues raised by the present Petitions are sharply drawn. Petitioners' claim that in producing and "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 univesally 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, 3former 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 effect on the perception by our people of issues and public officials or public figures as well as the pre cultural traits is
considerable. Nor as pointed out in Burstyn v. Wilson(343 US 495 [19421) 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 pailt 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 exerciseof constitutionally protected om of speech and of expression can only result in the drastic contraction of such constitutional
liberties in our country.

The counter-balancing of private respondent is to a right of privacy. It was 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 scope and content of this right in
differing types 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 of apublic character. 7 Succinctly put, the right of privacy cannot be invoked 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 fortion 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 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 Justice Melencio-Herrera, said:

Neither do we agree with petitioner's subon 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 bad pled 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 member 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 deperson to protect his memory, but the privilege
wts for the benefit of the living, to protect their feelings and to preventa violation of their own rights in the character and memory
of the deceased.'

Petitioners 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 he or she may be (Garner v. Triangle Publications, DCNY 97 F. Supp., SU
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 petitioners 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 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 doctine is that the clear and present danger rule is such a limitation. Another criterion for permissible limitation on
freedom of speech and the press, which includes such vehicles of the mass media as radio, television and the movies, is the
"balancing of interest 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 given situation or type of situation"
(Separation Opinion of the late Chief Justice Castro in Gonzales v. Commission on Elections, supra, p. 899).

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."

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 speech and of expression, a weighty presumption of invalidity
vitiates. 14 The invalidity of a measure of prior restraint doesnot, 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 trian 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 countryand 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 mater, 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 instrusion 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 entertainment. 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.

Such public figures were held to have lost, to some extent at least, their tight to 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 complaint when they
received it; that their personalities and their affairs has already 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 hum-drum 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 definination of news, as a glance at any morning newspaper
will sufficiently indicate. It includes homicide and othe 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.

The privilege of enlightening the public was not, however, limited, to the dissemination of news in the scene 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 Film Productions, Hal McElroy, Lope Juban and PMP Motion for Pictures Production" enjoining him and his
production company from further filimg any scene of the projected mini-series film. Petitioner alleged that Honasan's complaint was a "scissors and
paste" pleading, cut out straight grom 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 petitoner 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
on 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.
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 to 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 in fugitive from justice, must be deemed
to have forfeited any right the 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.

No pronouncement as to costs.

SO ORDERED.
G.R. No. L-44640 October 12, 1976

PABLO C. SANIDAD and PABLITO V. SANIDAD, petitioner,


vs.
HONORABLE COMMISSION ON ELECTIONS and HONORABLE NATIONAL TREASURER, respondents.

G.R. No. L-44684. October 12,1976

VICENTE M. GUZMAN, petitioner,


vs.
COMMISSION ELECTIONS, respondent.

G.R. No. L-44714. October 12,1976

RAUL M. GONZALES, RAUL T. GONZALES, JR., and ALFREDO SALAPANTAN, petitioners,


vs.
HONORABLE COMMISSION ON SELECTIONS and HONORABLE NATIONAL TREASURER, respondents.

MARTIN, J,:

The capital question raised in these prohibition suits with preliminary injunction relates to the power of the incumbent President of the Philippines to
propose amendments to the present Constitution in the absence of the interim National Assembly which has not been convened.

On September 2, 1976, President Ferdinand E. Marcos issued Presidential Decree No. 991 calling for a national referendum on October 16, 1976 for
the Citizens Assemblies ("barangays") to resolve, among other things, the issues of martial law, the I . assembly, its replacement, the powers of such
replacement, the period of its existence, the length of the period for tile exercise by the President of his present powers.1

Twenty days after or on September 22, 1976, the President issued another related decree, Presidential Decree No. 1031, amending the previous
Presidential Decree No. 991, by declaring the provisions of presidential Decree No. 229 providing for the manner of voting and canvass of votes in
"barangays" (Citizens Assemblies) applicable to the national referendum-plebiscite of October 16, 1976. Quite relevantly, Presidential Decree No.
1031 repealed Section 4, of Presidential Decree No. 991, the full text of which (Section 4) is quoted in the footnote below. 2

On the same date of September 22, 1976, the President issued Presidential Decree No. 1033, stating the questions to be submitted to the people in the
referendum-plebiscite on October 16, 1976. The Decree recites in its "whereas" clauses that the people's continued opposition to the convening of the
National Assembly evinces their desire to have such body abolished and replaced thru a constitutional amendment, providing for a legislative body,
which will be submitted directly to the people in the referendum-plebiscite of October 16.

The questions ask, to wit:

(1) Do you want martial law to be continued?

(2) Whether or not you want martial law to be continued, do you approve the following amendments to the Constitution? For the purpose of the
second question, the referendum shall have the effect of a plebiscite within the contemplation of Section 2 of Article XVI of the Constitution.

PROPOSED AMENDMENTS:

1. There shall be, in lieu of the interim National Assembly, an interim Batasang Pambansa. Members of the interim Batasang Pambansa which shall
not be more than 120, unless otherwise provided by law, shall include the incumbent President of the Philippines, representatives elected from the
different regions of the nation, those who shall not be less than eighteen years of age elected by their respective sectors, and those chosen by the
incumbent President from the members of the Cabinet. Regional representatives shall be apportioned among the regions in accordance with the
number of their respective inhabitants and on the basis of a uniform and progressive ratio while the sectors shall be determined by law. The number
of representatives from each region or sector and the, manner of their election shall be prescribed and regulated by law.

2. The interim Batasang Pambansa shall have the same powers and its members shall have the same functions, responsibilities, rights, privileges, and
disqualifications as the interim National Assembly and the regular National Assembly and the members thereof. However, it shall not exercise the
power provided in Article VIII, Section 14(l) of the Constitution.

3. The incumbent President of the Philippines shall, within 30 days from the election and selection of the members, convene the interim Batasang
Pambansa and preside over its sessions until the Speaker shall have been elected. The incumbent President of the Philippines shall be the Prime
Minister and he shall continue to exercise all his powers even after the interim Batasang Pambansa is organized and ready to discharge its functions
and likewise he shall continue to exercise his powers and prerogatives under the nineteen hundred and thirty five. Constitution and the powers vested
in the President and the Prime Minister under this Constitution.

4. The President (Prime Minister) and his Cabinet shall exercise all the powers and functions, and discharge the responsibilities of the regular
President (Prime Minister) and his Cabinet, and shall be subject only to such disqualifications as the President (Prime Minister) may prescribe. The
President (Prime Minister) if he so desires may appoint a Deputy Prime Minister or as many Deputy Prime Ministers as he may deem necessary.

5. The incumbent President shall continue to exercise legislative powers until martial law shall have been lifted.

6. Whenever in the judgment of the President (Prime Minister), there exists a grave emergency or a threat or imminence thereof, or whenever the
interim Batasang Pambansa or the regular National Assembly fails or is unable to act adequately on any matter for any reason that in his judgment
requires immediate action, he may, in order to meet the exigency, issue the necessary decrees, orders or letters of instructions, which shall form part
of the law of the land.

7. The barangays and sanggunians shall continue as presently constituted but their functions, powers, and composition may be altered by law.
Referenda conducted thru the barangays and under the Supervision of the Commission on Elections may be called at any time the government deems
it necessary to ascertain the will of the people regarding any important matter whether of national or local interest.

8. All provisions of this Constitution not inconsistent with any of these amendments shall continue in full force and effect.

9. These amendments shall take effect after the incumbent President shall have proclaimed that they have been ratified by I majority of the votes cast
in the referendum-plebiscite."

The Commission on Elections was vested with the exclusive supervision and control of the October 1976 National Referendum-Plebiscite.

On September 27, 1976, PABLO C. SANIDAD and PABLITO V. SANIDAD, father and son, commenced L-44640 for Prohibition with Preliminary
Injunction seeking to enjoin the Commission on Elections from holding and conducting the Referendum Plebiscite on October 16; to declare without
force and effect Presidential Decree Nos. 991 and 1033, insofar as they propose amendments to the Constitution, as well as Presidential Decree No.
1031, insofar as it directs the Commission on Elections to supervise, control, hold, and conduct the Referendum-Plebiscite scheduled on October 16,
1976.

Petitioners contend that under the 1935 and 1973 Constitutions there is no grant to the incumbent President to exercise the constituent power to
propose amendments to the new Constitution. As a consequence, the Referendum-Plebiscite on October 16 has no constitutional or legal basis.

On October 5, 1976, the Solicitor General filed the comment for respondent Commission on Elections, The Solicitor General principally maintains
that petitioners have no standing to sue; the issue raised is political in nature, beyond judicial cognizance of this Court; at this state of the transition
period, only the incumbent President has the authority to exercise constituent power; the referendum-plebiscite is a step towards normalization.

On September 30, 1976, another action for Prohibition with Preliminary Injunction, docketed as L-44684, was instituted by VICENTE M.
GUZMAN, a delegate to the 1971 Constitutional Convention, asserting that the power to propose amendments to, or revision of the Constitution
during the transition period is expressly conferred on the interim National Assembly under Section 16, Article XVII of the Constitution.3

Still another petition for Prohibition with Preliminary Injunction was filed on October 5, 1976 by RAUL M. GONZALES, his son RAUL, JR., and
ALFREDO SALAPANTAN, docketed as L- 44714, to restrain the implementation of Presidential Decrees relative to the forthcoming Referendum-
Plebiscite of October 16.

These last petitioners argue that even granting him legislative powers under Martial Law, the incumbent President cannot act as a constituent
assembly to propose amendments to the Constitution; a referendum-plebiscite is untenable under the Constitutions of 1935 and 1973; the submission
of the proposed amendments in such a short period of time for deliberation renders the plebiscite a nullity; to lift Martial Law, the President need not
consult the people via referendum; and allowing 15-.year olds to vote would amount to an amendment of the Constitution, which confines the right of
suffrage to those citizens of the Philippines 18 years of age and above.

We find the petitions in the three entitled cases to be devoid of merit.

Justiciability of question raised.

1. As a preliminary resolution, We rule that the petitioners in L-44640 (Pablo C. Sanidad and Pablito V. Sanidad) possess locus standi to challenge
the constitutional premise of Presidential Decree Nos. 991, 1031, and 1033. It is now an ancient rule that the valid source of a stature Presidential
Decrees are of such nature-may be contested by one who will sustain a direct injuries as a in result of its enforcement. At the instance of taxpayers,
laws providing for the disbursement of public funds may be enjoined, upon the theory that the expenditure of public funds by an officer of the State
for the purpose of executing an unconstitutional act constitutes a misapplication of such funds. 4 The breadth of Presidential Decree No. 991 carries
all appropriation of Five Million Pesos for the effective implementation of its purposes. 5 Presidential Decree No. 1031 appropriates the sum of Eight
Million Pesos to carry out its provisions. 6 The interest of the aforenamed petitioners as taxpayers in the lawful expenditure of these amounts of
public money sufficiently clothes them with that personality to litigate the validity of the Decrees appropriating said funds. Moreover, as regards
taxpayer's suits, this Court enjoys that open discretion to entertain the same or not. 7 For the present case, We deem it sound to exercise that
discretion affirmatively so that the authority upon which the disputed Decrees are predicated may be inquired into.

2. The Solicitor General would consider the question at bar as a pure political one, lying outside the domain of judicial review. We disagree. The
amending process both as to proposal and ratification, raises a judicial question. 8This is especially true in cases where the power of the Presidency to
initiate the of normally exercised by the legislature, is seriously doubted. Under the terms of the 1973 Constitution, the power to propose
amendments o the constitution resides in the interim National Assembly in the period of transition (See. 15, Transitory provisions). After that period,
and the regular National Assembly in its active session, the power to propose amendments becomes ipso facto the prerogative of the regular National
Assembly (Sec. 1, pars. 1 and 2 of Art. XVI, 1973 constitution). The normal course has not been followed. Rather than calling the National Assembly
to constitute itself into a constituent assembly the incumbent President undertook the proposal of amendments and submitted the proposed
amendments thru Presidential Decree 1033 to the people in a Referendum-Plebiscite on October 16. Unavoidably, the regularity regularity of the
procedure for amendments, written in lambent words in the very Constitution sought to be amended, raises a contestable issue. The implementing
Presidential Decree Nos. 991, 1031, and 1033, which commonly purport to have the force and effect of legislation are assailed as invalid, thus the
issue of the validity of said Decrees is plainly a justiciable one, within the competence of this Court to pass upon. Section 2 (2), Article X of the new
Constitution provides: "All cases involving the constitutionality of a treaty, executive agreement, or law may shall be heard and decided by the
Supreme Court en banc and no treaty, executive agreement, or law may be declared unconstitutional without the concurrence of at least ten Members.
..." The Supreme Court has the last word in the construction not only of treaties and statutes, but also of the Constitution itself The amending, like all
other powers organized in the Constitution, is in form a delegated and hence a limited power, so that the Supreme Court is vested with that authorities
to determine whether that power has been discharged within its limits.

Political questions are neatly associated with the wisdom, of the legality of a particular act. Where the vortex of the controversy refers to the legality
or validity of the contested act, that matter is definitely justiciable or non-political. What is in the heels of the Court is not the wisdom of the act of
the incumbent President in proposing amendments to the Constitution, but his constitutional authority to perform such act or to assume the power of a
constituent assembly. Whether the amending process confers on the President that power to propose amendments is therefore a downright justiciable
question. Should the contrary be found, the actuation of the President would merely be abrutum fulmen. If the Constitution provides how it may be
amended, the judiciary as the interpreter of that Constitution, can declare whether the procedure followed or the authority assumed was valid or
not. 10
We cannot accept the view of the Solicitor General, in pursuing his theory of non-justiciability, that the question of the President's authority to
propose amendments and the regularity of the procedure adopted for submission of the proposal to the people ultimately lie in the judgment of the A
clear Descartes fallacy of vicious circle. Is it not that the people themselves, by their sovereign act, provided for the authority and procedure for the
amending process when they ratified the present Constitution in 1973? Whether, therefore, the constitutional provision has been followed or not is
the proper subject of inquiry, not by the people themselves of course who exercise no power of judicial but by the Supreme Court in whom the
people themselves vested that power, a power which includes the competence to determine whether the constitutional norms for amendments have
been observed or not. And, this inquiry must be done a prior not a posterior i.e., before the submission to and ratification by the people.

Indeed, the precedents evolved by the Court or, prior constitutional cases underline the preference of the Court's majority to treat such issue of
Presidential role in the amending process as one of non-political impression. In the Plebiscite Cases, 11 the contention of the Solicitor General that the
issue on the legality of Presidential Decree No. 73 "submitting to the Pilipino people (on January 15, 1973) for ratification or rejection the
Constitution of the Republic of the Philippines proposed by the 1971 Constitutional Convention and appropriating fund s therefore "is a political one,
was rejected and the Court unanimously considered the issue as justiciable in nature. Subsequently in the Ratification Cases 12involving the issue of
whether or not the validity of Presidential Proclamation No. 1102. announcing the Ratification by the Filipino people of the constitution proposed by
the 1971 Constitutional Convention," partakes of the nature of a political question, the affirmative stand of' the Solicitor General was dismissed, the
Court ruled that the question raised is justiciable. Chief Justice Concepcion, expressing the majority view, said, Thus, in the aforementioned
plebiscite cases, We rejected the theory of the respondents therein that the question whether Presidential Decree No. 73 calling a plebiscite to be held
on January 15, 1973, for the ratification or rejection of the proposed new Constitution, was valid or not, was not a proper subject of judicial inquiry
because, they claimed, it partook of a political nature, and We unanimously declared that the issue was a justiciable one. With Identical unanimity.
We overruled the respondent's contention in the 1971 habeas corpus cases, questioning Our authority to determine the constitutional sufficiency of
the factual bases of the Presidential proclamation suspending the privilege of the writ of habeas corpus on August 21, 1971, despite the opposite view
taken by this Court in Barcelon vs. Baker and Montenegro vs. Castaneda, insofar as it adhered to the former case, which view We, accordingly,
abandoned and refused to apply. For the same reason, We did not apply and expressly modified, in Gonzales vs. Commission on Elections, the
political-question theory adopted in Mabanag vs. Lopez Vito." 13 The return to Barcelon vs. Baker and Mabanag vs. Lopez Vito, urged by the
Solicitor General, was decisively refused by the Court. Chief Justice Concepcion continued: "The reasons adduced in support thereof are, however,
substantially the same as those given in support on the political question theory advanced in said habeas corpus and plebiscite cases, which were
carefully considered by this Court and found by it to be legally unsound and constitutionally untenable. As a consequence. Our decisions in the
aforementioned habeas corpus cases partakes of the nature and effect of a stare decisis which gained added weight by its virtual reiteration."

II

The amending process as laid out

in the new Constitution.

1. Article XVI of the 1973 Constitution on Amendments ordains:

SECTION 1. (1) Any amendment to, or revision of, this Constitution may be proposed by the National Assembly upon a vote of
three-fourths of all its Members, or by a constitutional convention. (2) The National Assembly may, by a vote of two-thirds of all
its Members, call a constitutional convention or, by a majority vote of all its Members, submit the question of calling such a
convention to the electorate in an election.

SECTION 2. Any amendment to, or revision of, this Constitution shall be valid when ratified by a majority of the votes cast in a
plebiscite which shall be held not later than three months after the approval of such amendment or revision.

In the present period of transition, the interim National Assembly instituted in the Transitory Provisions is conferred with that amending power.
Section 15 of the Transitory Provisions reads:

SECTION 15. The interim National Assembly, upon special call by the interim Prime Minister, may, by a majority vote of all its
Members, propose amendments to this Constitution. Such amendments shall take effect when ratified in accordance with Article
Sixteen hereof.

There are, therefore, two periods contemplated in the constitutional life of the nation, i.e., period of normalcy and period of transition. In times of
normally, the amending process may be initiated by the proposals of the (1) regular National Assembly upon a vote of three-fourths of all its
members; or (2) by a Constitutional Convention called by a vote of two-thirds of all the Members of the National Assembly. However the calling of a
Constitutional Convention may be submitted to the electorate in an election voted upon by a majority vote of all the members of the National
Assembly. In times of transition, amendments may be proposed by a majority vote of all the Members of the National Assembly upon special call by
the interim Prime Minister,.

2. This Court in Aquino v. COMELEC," had already settled that the incumbent President is vested with that prerogative of discretion as to when he
shall initially convene the interim National Assembly. Speaking for the majority opinion in that case, Justice Makasiar said: "The Constitutional
Convention intended to leave to the President the determination of the time when he shall initially convene the interim National Assembly, consistent
with the prevailing conditions of peace and order in the country." Concurring, Justice Fernandez, himself a member of that Constitutional
Convention, revealed: "(W)hen the Delegates to the Constitutional Convention voted on the Transitory Provisions, they were aware of the fact that
under the same, the incumbent President was given the discretion as to when he could convene the interim National Assembly; it was so stated
plainly by the sponsor, Delegate Yaneza; as a matter of fact, the proposal that it be convened 'immediately', made by Delegate Pimentel (V) was
rejected. The President's decision to defer the convening of the interim National Assembly soon found support from the people themselves. In the
plebiscite of January 10-15, 1973, at which the ratification of the 1973 Constitution was submitted, the people voted against the convening of the
interim National Assembly. In the referendum of July 24, 1973, the Citizens Assemblies ("bagangays") reiterated their sovereign will to withhold the
convening of the interim National Assembly. Again, in the referendum of February 27, 1975, the proposed question of whether the interim National
Assembly shall be initially convened was eliminated, because some of the members of Congress and delegates of the Constitutional Convention, who
were deemed automatically members of the I interim National Assembly, were against its inclusion since in that referendum of January, 1973, the
people had already resolved against it.

3. In sensu strictiore, when the legislative arm of the state undertakes the proposals of amendment to a Constitution, that body is not in the usual
function of lawmaking. lt is not legislating when engaged in the amending process.16 Rather, it is exercising a peculiar power bestowed upon it by
the fundamental charter itself. In the Philippines, that power is provided for in Article XVI of the 1973 Constitution (for the regular National
Assembly) or in Section 15 of the Transitory Provisions (for the National Assembly). While ordinarily it is the business of the legislating body to
legislate for the nation by virtue of constitutional conferment amending of the Constitution is not legislative in character. In political science a
distinction is made between constitutional content of an organic character and that of a legislative character'. The distinction, however, is one of
policy, not of law. 17 Such being the case, approval of the President of any proposed amendment is a misnomer 18 The prerogative of the President to
approve or disapprove applies only to the ordinary cases of legislation. The President has nothing to do with proposition or adoption of amendments
to the Constitution. 19

III

Concentration of Powers

in the President during

crisis government.

1. In general, the governmental powers in crisis government the Philippines is a crisis government today are more or less concentrated in the
President. 20 According to Rossiter, "(t)he concentration of government power in a democracy faced by an emergency is a corrective to the crisis
inefficiencies inherent in the doctrine of the separation of powers. In most free states it has generally been regarded as imperative that the total power
of the government be parceled out among three mutually independent branches executive, legislature, and judiciary. It is believed to be destructive of
constitutionalism if any one branch should exercise any two or more types of power, and certainly a total disregard of the separation of powers is, as
Madison wrote in the Federalist, No. 47, 'the very definition of tyranny.' In normal times the separation of powers forms a distinct obstruction to
arbitrary governmental action. By this same token, in abnormal times it may form an insurmountable barrier to a decisive emergency action in behalf
of the state and its independent existence. There are moments in the life of any government when all powers must work together in unanimity of
purpose and action, even if this means the temporary union of executive, legislative, and judicial power in the hands of one man. The more complete
the separation of powers in a constitutional system, the more difficult and yet the more necessary will be their fusion in time of crisis. This is evident
in a comparison of the crisis potentialities of the cabinet and presidential systems of government. In the former the all-important harmony of
legislature and executive is taken for granted; in the latter it is neither guaranteed nor to be to confidently expected. As a result, cabinet is more easily
established and more trustworthy than presidential dictatorship. The power of the state in crisis must not only be concentrated and expanded; it must
also be freed from the normal system of constitutional and legal limitations. 21 John Locke, on the other hand, claims for the executive in its own
right a broad discretion capable even of setting aside the ordinary laws in the meeting of special exigencies for which the legislative power had not
provided.22 The rationale behind such broad emergency powers of the Executive is the release of the government from "the paralysis of constitutional
restrains" so that the crisis may be ended and normal times restored.

2. The presidential exercise of legislative powers in time of martial law is now a conceded valid at. That sun clear authority of the President is
saddled on Section 3 (pars. 1 and 2) of the Transitory Provisions, thus: 23

The incumbent President of the Philippines shall initially convene the interim National Assembly and shall preside over its
sessions until the interim Speaker shall have been elected. He shall continue to exercise his powers and prerogatives under the
nineteen hundred and thirty-five Constitution and the powers vested in the President and the Prime Minister under this
Constitution until the calls upon the interim National Assembly to elect the interim President and the interim Prime Minister, who
shall then exercise their respective powers vested by this Constitution.

All proclamations, orders, decrees, instructions, and acts promulgated, issued, or done by the incumbent President shall be part of
the law of the land, and shall remain valid, binding, and effective even after lifting of martial law or the ratification of this
Constitution, unless modified, revoked, or superseded by subsequent proclamations, orders, decrees, instructions, or other acts of
the incumbent President, or unless expressly and explicitly modified or repealed by the regular National Assembly.

"It is unthinkable," said Justice Fernandez, a 1971 Constitutional Convention delegate, "that the Constitutional Convention, while giving to the
President the discretion when to call the interim National Assembly to session, and knowing that it may not be convened soon, would create a
vacuum in the exercise of legislative powers. Otherwise, with no one to exercise the lawmaking powers, there would be paralyzation of the entire
governmental machinery."24 Paraphrasing Rossiter, this is an extremely important factor in any constitutional dictatorship which extends over a
period of time. The separation of executive and legislature ordained in the Constitution presents a distinct obstruction to efficient crisis government.
The steady increase in executive power is not too much a cause for as the steady increase in the magnitude and complexity of the problems the
President has been called upon by the Filipino people to solve in their behalf, which involve rebellion, subversion, secession, recession, inflation, and
economic crisis-a crisis greater than war. In short, while conventional constitutional law just confines the President's power as Commander-in-Chief
to the direction of the operation of the national forces, yet the facts of our political, social, and economic disturbances had convincingly shown that in
meeting the same, indefinite power should be attributed to tile President to take emergency measures 25

IV

Authority of the incumbent

President t to propose

amendments to the Constitution.

1. As earlier pointed out, the power to legislate is constitutionally consigned to the interim National Assembly during the transition period. However,
the initial convening of that Assembly is a matter fully addressed to the judgment of the incumbent President. And, in the exercise of that judgment,
the President opted to defer convening of that body in utter recognition of the people's preference. Likewise, in the period of transition, the power to
propose amendments to the Constitution lies in the interim National Assembly upon special call by the President (See. 15 of the Transitory
Provisions). Again, harking to the dictates of the sovereign will, the President decided not to call the interim National Assembly. Would it then be
within the bounds of the Constitution and of law for the President to assume that constituent power of the interim Assembly vis-a-vis his assumption
of that body's legislative functions? The answer is yes. If the President has been legitimately discharging the legislative functions of the interim
Assembly, there is no reason why he cannot validly discharge the function of that Assembly to propose amendments to the Constitution, which is but
adjunct, although peculiar, to its gross legislative power. This, of course, is not to say that the President has converted his office into a constituent
assembly of that nature normally constituted by the legislature. Rather, with the interim National Assembly not convened and only the Presidency
and the Supreme Court in operation, the urges of absolute necessity render it imperative upon the President to act as agent for and in behalf of the
people to propose amendments to the Constitution. Parenthetically, by its very constitution, the Supreme Court possesses no capacity to propose
amendments without constitutional infractions. For the President to shy away from that actuality and decline to undertake the amending process
would leave the governmental machineries at a stalemate or create in the powers of the State a destructive vacuum, thereby impeding the objective of
a crisis government "to end the crisis and restore normal times." In these parlous times, that Presidential initiative to reduce into concrete forms the
constant voices of the people reigns supreme. After all, constituent assemblies or constitutional conventions, like the President now, are mere agents
of the people .26

2. The President's action is not a unilateral move. As early as the referendums of January 1973 and February 1975, the people had already rejected the
calling of the interim National Assembly. The Lupong Tagapagpaganap of the Katipunan ng mga Sanggunian, the Pambansang Katipunan ng mga
Barangay, and the Pambansang Katipunan ng mga Barangay, representing 42,000 barangays, about the same number of Kabataang Barangay
organizations, Sanggunians in 1,458 municipalities, 72 provinces, 3 sub-provinces, and 60 cities had informed the President that the prevailing
sentiment of the people is for the abolition of the interim National Assembly. Other issues concerned the lifting of martial law and amendments to the
Constitution .27 The national organizations of Sangguniang Bayan presently proposed to settle the issues of martial law, the interim Assembly, its
replacement, the period of its existence, the length of the period for the exercise by the President of its present powers in a referendum to be held on
October 16 . 28 The Batasang Bayan (legislative council) created under Presidential Decree 995 of September 10, 1976, composed of 19 cabinet
members, 9 officials with cabinet rank, 91 members of the Lupong Tagapagpaganap (executive committee) of the Katipunan ng mga Sangguniang
Bayan voted in session to submit directly to the people in a plebiscite on October 16, the previously quoted proposed amendments to the
Constitution, including the issue of martial law .29 Similarly, the "barangays" and the "sanggunians" endorsed to the President the submission of the
proposed amendments to the people on October 16. All the foregoing led the President to initiate the proposal of amendments to the Constitution and
the subsequent issuance of Presidential Decree No, 1033 on September 22, 1976 submitting the questions (proposed amendments) to the people in
the National Referendum-Plebiscite on October 16.

The People is Sovereign

1. Unlike in a federal state, the location of sovereignty in a unitary state is easily seen. In the Philippines, a republican and unitary state, sovereignty
"resides in the people and all government authority emanates from them.30 In its fourth meaning, Savigny would treat people as "that particular
organized assembly of individuals in which, according to the Constitution, the highest power exists." 31 This is the concept of popular sovereignty. It
means that the constitutional legislator, namely the people, is sovereign 32 In consequence, the people may thus write into the Constitution their
convictions on any subject they choose in the absence of express constitutional prohibition. 33 This is because, as Holmes said, the Constitution "is an
experiment, as all life is all experiment." 34 "The necessities of orderly government," wrote Rottschaefer, "do not require that one generation should
be permitted to permanently fetter all future generations." A constitution is based, therefore, upon a self-limiting decision of the people when they
adopt it. 35

2. The October 16 referendum-plebiscite is a resounding call to the people to exercise their sovereign power as constitutional legislator. The proposed
amendments, as earlier discussed, proceed not from the thinking of a single man. Rather, they are the collated thoughts of the sovereign will reduced
only into enabling forms by the authority who can presently exercise the powers of the government. In equal vein, the submission of those proposed
amendments and the question of martial law in a referendum-plebiscite expresses but the option of the people themselves implemented only by the
authority of the President. Indeed, it may well be said that the amending process is a sovereign act, although the authority to initiate the same and the
procedure to be followed reside somehow in a particular body.

VI

Referendum-Plebiscite not

rendered nugatory by the

participation of the 15-year olds.

1. October 16 is in parts a referendum and a plebiscite. The question - (1) Do you want martial law to be continued? - is a referendum question,
wherein the 15-year olds may participate. This was prompted by the desire of the Government to reach the larger mas of the people so that their true
pulse may be felt to guide the President in pursuing his program for a New Order. For the succeeding question on the proposed amendments, only
those of voting age of 18 years may participate. This is the plebiscite aspect, as contemplated in Section 2, Article XVI of the new Constitution. 36 On
this second question, it would only be the votes of those 18 years old and above which will have valid bearing on the results. The fact that the voting
populace are simultaneously asked to answer the referendum question and the plebiscite question does not infirm the referendum-plebiscite. There is
nothing objectionable in consulting the people on a given issue, which is of current one and submitting to them for ratification of proposed
constitutional amendments. The fear of commingled votes (15-year olds and 18-year olds above) is readily dispelled by the provision of two ballot
boxes for every barangay center, one containing the ballots of voters fifteen years of age and under eighteen, and another containing the ballots of
voters eighteen years of age and above. 37 The ballots in the ballot box for voters fifteen years of age and under eighteen shall be counted ahead of the
ballots of voters eighteen years and above contained in another ballot box. And, the results of the referendum-plebiscite shall be separately prepared
for the age groupings, i.e., ballots contained in each of the two boxes. 38

2. It is apt to distinguish here between a "referendum" and a "plebiscite." A "referendum" is merely consultative in character. It is simply a means of
assessing public reaction to the given issues submitted to the people foe their consideration, the calling of which is derived from or within the totality
of the executive power of the President. 39 It is participated in by all citizens from the age of fifteen, regardless of whether or not they are illiterates,
feeble-minded, or ex- convicts . 40 A "plebiscite," on the other hand, involves the constituent act of those "citizens of the Philippines not otherwise
disqualified by law, who are eighteen years of age or over, and who shall have resided in the Philippines for at least one year and in the place wherein
they propose to vote for at least six months preceding the election Literacy, property or any other substantive requirement is not imposed. It is
generally associated with the amending process of the Constitution, more particularly, the ratification aspect.

VII

1. There appeals to be no valid basis for the claim that the regime of martial law stultifies in main the freedom to dissent. That speaks of a bygone
fear. The martial law regime which, in the observation of Justice Fernando, 41 is impressed with a mild character recorded no State imposition for a
muffled voice. To be sure, there are restraints of the individual liberty, but on certain grounds no total suppression of that liberty is aimed at. The for
the referendum-plebiscite on October 16 recognizes all the embracing freedoms of expression and assembly The President himself had announced
that he would not countenance any suppression of dissenting views on the issues, as he is not interested in winning a "yes" or "no" vote, but on the
genuine sentiment of the people on the issues at hand. 42 Thus, the dissenters soon found their way to the public forums, voicing out loud and clear
their adverse views on the proposed amendments and even (in the valid ratification of the 1973 Constitution, which is already a settled
matter. 43 Even government employees have been held by the Civil Service Commission free to participate in public discussion and even campaign
for their stand on the referendum-plebiscite issues. 44

VIII

Time for deliberation

is not short.

1. The period from September 21 to October 16 or a period of 3 weeks is not too short for free debates or discussions on the referendum-plebiscite
issues. The questions are not new. They are the issues of the day. The people have been living with them since the proclamation of martial law four
years ago. The referendums of 1973 and 1975 carried the same issue of martial law. That notwithstanding, the contested brief period for discussion is
not without counterparts in previous plebiscites for constitutional amendments. Justice Makasiar, in the Referendum Case, recalls: "Under the old
Society, 15 days were allotted for the publication in three consecutive issues of the Official Gazette of the women's suffrage amendment to the
Constitution before the scheduled plebiscite on April 30, 1937 (Com. Act No. 34). The constitutional amendment to append as ordinance the
complicated Tydings-Kocialskowski was published in only three consecutive issues of the Official Gazette for 10 days prior to the scheduled
plebiscite (Com. Act 492). For the 1940 Constitutional amendments providing for the bicameral Congress, the reelection of the President and Vice
President, and the creation of the Commission on Elections, 20 days of publication in three consecutive issues of the Official Gazette was fixed (Com
Act No. 517). And the Parity Amendment, an involved constitutional amendment affecting the economy as well as the independence of the Republic
was publicized in three consecutive issues of the Official Gazette for 20 days prior to the plebiscite (Rep. Act No. 73)." 45

2. It is worthy to note that Article XVI of the Constitution makes no provision as to the specific date when the plebiscite shall be held, but simply
states that it "shall be held not later than three months after the approval of such amendment or revision." In Coleman v. Miller, 46 the United States
Supreme court held that this matter of submission involves "an appraisal of a great variety of relevant conditions, political, social and economic,"
which "are essentially political and not justiciable." The constituent body or in the instant cases, the President, may fix the time within which the
people may act. This is because proposal and ratification are not treated as unrelated acts, but as succeeding steps in a single endeavor, the natural
inference being that they are not to be widely separated in time; second, it is only when there is deemed to be a necessity therefor that amendments
are to be proposed, the reasonable implication being that when proposed, they are to be considered and disposed of presently, and third, ratification is
but the expression of the approbation of the people, hence, it must be done contemporaneously. 47 In the words of Jameson, "(a)n alteration of the
Constitution proposed today has relation to the sentiment and the felt needs of today, and that, if not ratified early while that sentiment may fairly be
supposed to exist. it ought to be regarded as waived, and not again to be voted upon, unless a second time proposed by proper body

IN RESUME

The three issues are

1. Is the question of the constitutionality of Presidential Decrees Nos. 991, 1031 and 1033 political or justiciable?

2. During the present stage of the transition period, and under, the environmental circumstances now obtaining, does the President possess power to
propose amendments to the Constitution as well as set up the required machinery and prescribe the procedure for the ratification of his proposals by
the people?

3. Is the submission to the people of the proposed amendments within the time frame allowed therefor a sufficient and proper submission?

Upon the first issue, Chief Justice Fred Ruiz Castro and Associate Justices Enrique M. Fernando, Claudio Teehankee, Antonio P. Barredo, Cecilia
Munoz Palma, Hermogenes Concepcion Jr. and Ruperto G. Martin are of the view that the question posed is justiciable, while Associate Justices
Felix V. Makasiar, Felix Q. Antonio and Ramon C. Aquino hold the view that the question is political.

Upon the second issue, Chief Justice Castro and Associate Justices Barredo, Makasiar, Antonio, Aquino, Concepcion Jr. and Martin voted in the
affirmative, while Associate Justices Teehankee and Munoz Palma voted in the negative. Associate Justice Fernando, conformably to his concurring
and dissenting opinion in Aquino vs. Enrile (59 SCRA 183), specifically dissents from the proposition that there is concentration of powers in the
Executive during periods of crisis, thus raising serious doubts as to the power of the President to propose amendments.

Upon the third issue, Chief Justice Castro and Associate Justices Barredo, Makasiar, Aquino, Concepcion Jr. and Martin are of the view that there is
a sufficient and proper submission of the proposed amendments for ratification by the people. Associate Justices Barredo and Makasiar expressed the
hope, however that the period of time may be extended. Associate Justices Fernando, Makasiar and Antonio are of the view that the question is
political and therefore beyond the competence and cognizance of this Court, Associate Justice Fernando adheres to his concurrence in the opinion of
Chief Justice Concepcion in Gonzales vs. COMELEC (21 SCRA 774).Associate Justices Teehankee and MUNOZ Palma hold that prescinding from
the President's lack of authority to exercise the constituent power to propose the amendments, etc., as above stated, there is no fair and proper
submission with sufficient information and time to assure intelligent consent or rejection under the standards set by this Court in the controlling cases
of Gonzales, supra, and Tolentino vs. COMELEC (41 SCRA 702).

Chief Justice Castro and Associate Justices Barredo, Makasiar, Antonio, Aquino, Concepcion Jr. and Martin voted to dismiss the three petitions at
bar. For reasons as expressed in his separate opinion, Associate Justice Fernando concurs in the result. Associate Justices Teehankee and Munoz
Palma voted to grant the petitions.

ACCORDINGLY, the vote being 8 to 2 to dismiss, the said petitions are hereby dismissed. This decision is immediately executory.

SO ORDERED.

Aquino, J, in the result.


G.R. No. 103956 March 31, 1992

BLO UMPAR ADIONG, petitioner,


vs.
COMMISSION ON ELECTIONS, respondent.

GUTIERREZ, JR., J.:

The specific issue in this petition is whether or not the Commission on Elections (COMELEC) may prohibit the posting of decals and stickers on
"mobile" places, public or private, and limit their location or publication to the authorized posting areas that it fixes.

On January 13, 1992, the COMELEC promulgated Resolution No. 2347 pursuant to its powers granted by the Constitution, the Omnibus Election
Code, Republic Acts Nos. 6646 and 7166 and other election laws.

Section 15(a) of the resolution provides:

Sec. 15. Lawful Election Propaganda. The following are lawful election propaganda:

(a) Pamphlets, leaflets, cards, decals, stickers, handwritten or printed letters, or other written or printed materials not more than
eight and one-half (8-1/2) inches in width and fourteen (14) inches in length.Provided, That decals and stickers may be posted
only in any of the authorized posting areas providedin paragraph (f) of Section 21 hereof.

Section 21 (f) of the same resolution provides:

Sec. 21(f). Prohibited forms of election propaganda.

It is unlawful:

xxx xxx xxx

(f) To draw, paint, inscribe, post, display or publicly exhibit any election propaganda in any place, whether public or private,
mobile or stationary, except in the COMELEC common posted areas and/or billboards, at the campaign headquarters of the
candidate or political party, organization or coalition, or at the candidate's own residential house or one of his residential houses,
if he has more than one:Provided, that such posters or election propaganda shall not exceed two (2) feet by three (3) feet in size.
(Emphasis supplied)

xxx xxx xxx

The statutory provisions sought to be enforced by COMELEC are Section 82 of the Omnibus Election Code on lawful election propaganda which
provides:

Lawful election propaganda. Lawful election propaganda shall include:

(a) Pamphlets, leaflets, cards, decals, stickers or other written or printed materials of a size not more than eight and one-half
inches in width and fourteen inches in length;

(b) Handwritten or printed letters urging voters to vote for or against any particular candidate;

(c) Cloth, paper or cardboard posters, whether framed or posted, with an area not exceeding two feet by three feet, except that, at
the site and on the occasion of a public meeting or rally, or in announcing the holding of said meeting or rally, streamers not
exceeding three feet by eight feet in size, shall be allowed: Provided, That said streamers may not be displayed except one week
before the date of the meeting or rally and that it shall be removed within seventy-two hours after said meeting or rally; or

(d) 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. (Section 37, 1978 EC)

and Section 11(a) of Republic Act No. 6646 which provides:

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 the 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) and not exceeding
three (3) feet by eight (8) feet 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; . . . (Emphasis supplied)

Petitioner Blo Umpar Adiong, a senatorial candidate in the May 11, 1992 elections now assails the COMELEC's Resolution insofar as it prohibits the
posting of decals and stickers in "mobile" places like cars and other moving vehicles. According to him such prohibition is violative of Section 82 of
the Omnibus Election Code and Section 11(a) of Republic Act No. 6646. In addition, the petitioner believes that with the ban on radio, television and
print political advertisements, he, being a neophyte in the field of politics stands to suffer grave and irreparable injury with this prohibition. The
posting of decals and stickers on cars and other moving vehicles would be his last medium to inform the electorate that he is a senatorial candidate in
the May 11, 1992 elections. Finally, the petitioner states that as of February 22, 1992 (the date of the petition) he has not received any notice from
any of the Election Registrars in the entire country as to the location of the supposed "Comelec Poster Areas."

The petition is impressed with merit. The COMELEC's prohibition on 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.

First the prohibition unduly infringes on the citizen's fundamental right of free speech enshrined in the Constitution (Sec. 4, Article III). There is
no public interest substantial enough to warrant the kind of restriction involved in this case.

There are various concepts surrounding the freedom of speech clause which we have adopted as part and parcel of our own Bill of Rights provision
on this basic freedom.

All of the protections expressed in the Bill of Rights are important but we have accorded to free speech the status of a preferred freedom. (Thomas v.
Collins, 323 US 516, 89 L. Ed. 430 [1945]; Mutuc v. Commission on Elections, 36 SCRA 228 [1970])

This qualitative significance of freedom of expression arises from the fact that it is the matrix, the indispensable condition of nearly every other
freedom. (Palko v. Connecticut, 302 U.S. 319 [1937]; Salonga v. Pao, 134 SCRA 438 [1985]) It is difficult to imagine how the other provisions of
the Bill of Rights and the right to free elections may be guaranteed if the freedom to speak and to convince or persuade is denied and taken away.

We have adopted the principle that debate on public issues should be uninhibited, robust, and wide open and that it may well include vehement,
caustic and sometimes unpleasantly sharp attacks on government and public officials. (New York Times Co. v. Sullivan, 376 U.S. 254, 11 L. Ed. 686
[1964]; cited in the concurring opinion of then Chief Justice Enrique Fernando in Babst v. National Intelligence Board, 132 SCRA 316 [1984]) Too
many restrictions will deny to people the robust, uninhibited, and wide open debate, the generating of interest essential if our elections will truly be
free, clean and honest.

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

The determination of the limits of the Government's power to regulate the exercise by a citizen of his basic freedoms in order to promote fundamental
public interests or policy objectives is always a difficult and delicate task. The so-called balancing of interests individual freedom on one hand and
substantial public interests on the other is made even more difficult in election campaign cases because the Constitution also gives specific
authority to the Commission on Elections to supervise the conduct of free, honest, and orderly elections.

We recognize the fact that under the Constitution, the COMELEC during the election period is granted regulatory powers vis-a-vis the conduct and
manner of elections, 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, time, and space, and the right to reply, including reasonable equal rates therefore, for public information campaigns
and forms among candidates in connection with the object of holding free, orderly, honest, peaceful and credible elections.
(Article IX(c) section 4)

The variety of opinions expressed by the members of this Court in the recent case of National Press Club v. Commission on Elections (G.R. No.
102653, March 5, 1991) and its companion cases underscores how difficult it is to draw a dividing line between permissible regulation of election
campaign activities and indefensible repression committed in the name of free and honest elections. In the National Press Club, case, the Court had
occasion to reiterate the preferred status of freedom of expression even as it validated COMELEC regulation of campaigns through political
advertisements. The gray area is rather wide and we have to go on a case to case basis.

There is another problem involved. Considering that the period of legitimate campaign activity is fairly limited and, in the opinion of some, too short,
it becomes obvious that unduly restrictive regulations may prove unfair to affected parties and the electorate.

For persons who have to resort to judicial action to strike down requirements which they deem inequitable or oppressive, a court case may prove to
be a hollow remedy. The judicial process, by its very nature, requires time for rebuttal, analysis and reflection. We cannot act instantly on knee-jerk
impulse. By the time we revoke an unallowably restrictive regulation or ruling, time which is of the essence to a candidate may have lapsed and
irredeemable opportunities may have been lost.

When faced with border line situations where freedom to speak by a candidate or party and freedom to know on the part of the electorate are invoked
against actions intended for maintaining clean and free elections, the police, local officials and COMELEC, should lean in favor of freedom. For in
the ultimate analysis, the freedom of the citizen and the State's power to regulate are not 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.

There were a variety of opinions expressed in the National Press Club v. Commission on Elections (supra) case but all of us were unanimous that
regulation of election activity has its limits. We examine the limits of regulation and not the limits of free speech. The carefully worded opinion of
the Court, through Mr. Justice Feliciano, shows that regulation of election campaign activity may not pass the test of validity if it is too general in its
terms or not limited in time and scope in its application, if it restricts one's expression of belief in a candidate or one's opinion of his or her
qualifications, if it cuts off the flow of media reporting, and if the regulatory measure bears no clear and reasonable nexus with the constitutionally
sanctioned objective.

Even as the Court sustained the regulation of political advertisements, with some rather strong dissents, in National Press Club, we find the
regulation in the present case of a different category. The promotion of a substantial Government interest is not clearly shown.

A government 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 incidental restriction on alleged First Amendment freedoms is no greater than is essential to the furtherance of that interest.
(Id., at 377, 20 L Ed 2d 672, 88 S Ct 1673. (City Council v. Taxpayers For Vincent, 466 US 789, 80 L Ed 2d 772, 104 S Ct 2118
[1984])

The posting of decals and stickers in mobile places like cars and other moving vehicles does not endanger any substantial government interest. There
is no clear public interest threatened by such activity so as to justify the curtailment of the cherished citizen's right of free speech and expression.
Under the clear and present danger rule not only must the danger be patently clear and pressingly present but the evil sought to be avoided must be so
substantive as to justify a clamp over one's mouth or a writing instrument to be stilled:

The case confronts us again with the duty our system places on the Court to say where the individual's freedom ends and the
State's power begins. Choice on that border, now as always delicate, is perhaps more so where the usual presumption supporting
legislation is balanced by the preferred place given in our scheme to the great, the indispensable democratic freedom secured by
the first Amendment . . . That priority gives these liberties a sanctity and a sanction not permitting dubious intrusions and it is the
character of the right, not of the limitation, which determines what standard governs the choice . . .

For these reasons any attempt to restrict those liberties must be justified by clear public interest, threatened not doubtfully or
remotely, but by clear and present danger. The rational connection between the remedy provided and the evil to be curbed, which
in other context might support legislation against attack on due process grounds, will not suffice. These rights rest on firmer
foundation. Accordingly, whatever occasion would restrain orderly discussion and persuasion, at appropriate time and place,
must have clear support in public danger, actual or impending. Only the greatest abuses, endangering permanent interests, give
occasion for permissible limitation. (Thomas V. Collins, 323 US 516 [1945]). (Emphasis supplied)

Significantly, the freedom of expression curtailed by the questioned prohibition is not so much that of the candidate or the political party. The
regulation strikes at the freedom of an individual to express his preference and, by displaying it on his car, to convince others to agree with him. A
sticker may be furnished by a candidate but once the car owner agrees to have it placed on his private vehicle, the expression becomes a statement by
the owner, primarily his own and not of anybody else. If, in the National Press Club case, the Court was careful to rule out restrictions on reporting
by newspapers or radio and television stations and commentators or columnists as long as these are not correctly paid-for advertisements or
purchased opinions with less reason can we sanction the prohibition against a sincere manifestation of support and a proclamation of belief by an
individual person who pastes a sticker or decal on his private property.

Second the questioned prohibition premised on the statute and as couched in the resolution is void for overbreadth.

A statute is considered void for overbreadth when "it offends the constitutional principle that a governmental purpose to control or prevent activities
constitutionally subject to state regulations may not be achieved by means which sweep unnecessarily broadly and thereby invade the area of
protected freedoms." (Zwickler v. Koota, 19 L ed 2d 444 [1967]).

In a series of decisions this Court has held that, even though the governmental purpose be legitimate and substantial, that purpose
cannot be pursued by means that broadly stifle fundamental personal liberties when the end can be more narrowly achieved. The
breadth of legislative abridgment must be viewed in the light of less drastic means for achieving the same basic purpose.

In Lovell v. Griffin, 303 US 444, 82 L ed 949, 58 S Ct 666, the Court invalidated an ordinance prohibiting all distribution of
literature at any time or place in Griffin, Georgia, without a license, pointing out that so broad an interference was unnecessary to
accomplish legitimate municipal aims. In Schneider v. Irvington, 308 US 147, 84 L ed 155, 60 S Ct. 146, the Court dealt with
ordinances of four different municipalities which either banned or imposed prior restraints upon the distribution of handbills. In
holding the ordinances invalid, the court noted that where legislative abridgment of fundamental personal rights and liberties is
asserted, "the courts should be astute to examine the effect of the challenged legislation. 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," 308 US, at 161. In
Cantwell v Connecticut, 310 US 296, 84 L ed 1213, 60 S Ct. 900, 128 ALR 1352, the Court said that "[c]onduct remains subject
to regulation for the protection of society," but pointed out that in each case "the power to regulate must be so exercised as not, in
attaining a permissible end, unduly to infringe the protected freedom." (310 US at 304) (Shelton v. Tucker, 364 US 479 [1960]

The resolution prohibits the posting of decals and stickers not more than eight and one-half (8-1/2) inches in width and fourteen (14) inches in
length in any place, including mobile places whether public or private except in areas designated by the COMELEC. Verily, the restriction as to
where the decals and stickers should be posted is so broad that it encompasses even the citizen's private property, which in this case is a privately-
owned vehicle. In consequence of this prohibition, another cardinal rule prescribed by the Constitution would be violated. Section 1, Article III of the
Bill of Rights provides that no person shall be deprived of his property without due process of law:

Property is more than the mere thing which a person owns, it includes the right to acquire, use, and dispose of it; and the
Constitution, in the 14th Amendment, protects these essential attributes.

Property is more than the mere thing which a person owns. It is elementary that it includes the right to acquire, use, and dispose
of it. The Constitution protects these essential attributes of property. Holden v. Hardy, 169 U.S. 366, 391, 41 L. ed. 780, 790, 18
Sup. Ct. Rep. 383. Property consists of the free use, enjoyment, and disposal of a person's acquisitions without control or
diminution save by the law of the land. 1 Cooley's Bl. Com. 127. (Buchanan v. Warley 245 US 60 [1917])

As earlier stated, we have to consider the fact that in the posting of decals and stickers on cars and other moving vehicles, the candidate needs the
consent of the owner of the vehicle. In such a case, the prohibition would not only deprive the owner who consents to such posting of the decals and
stickers the use of his property but more important, in the process, it would deprive the citizen of his right to free speech and information:

Freedom to distribute information to every citizen wherever he desires to receive it is so clearly vital to the preservation of a free
society that, putting aside reasonable police and health regulations of time and manner of distribution, it must be fully preserved.
The danger of distribution can so easily be controlled by traditional legal methods leaving to each householder the full right to
decide whether he will receive strangers as visitors, that stringent prohibition can serve no purpose but that forbidden by the
constitution, the naked restriction of the dissemination of ideas." (Martin v. City of Struthers, Ohio, 319 U.S. 141; 87 L. ed. 1313
[1943])

The right to property may be subject to a greater degree of regulation but when this right is joined by a "liberty" interest, the burden of justification
on the part of the Government must be exceptionally convincing and irrefutable. The burden is not met in this case.
Section 11 of Rep. Act 6646 is so encompassing and invasive that it prohibits the posting or display of election propaganda in any place, whether
public or private, except in the common poster areas sanctioned by COMELEC. This means that a private person cannot post his own crudely
prepared personal poster on his own front door or on a post in his yard. While the COMELEC will certainly never require the absurd, there are no
limits to what overzealous and partisan police officers, armed with a copy of the statute or regulation, may do.

The provisions allowing regulation are so loosely worded that they include the posting of decals or stickers in the privacy of one's living room or
bedroom. This is delegation running riot. As stated by Justice Cardozo in his concurrence in Panama Refining Co. v. Ryan (293 U.S. 388; 79 L. Ed.
446 [1935), "The delegated power is unconfined and vagrant . . . This is delegation running riot. No such plentitude of power is susceptible of
transfer."

Third the constitutional objective to give a rich candidate and a poor candidate equal opportunity to inform the electorate as regards their
candidacies, mandated by Article II, Section 26 and Article XIII, section 1 in relation to Article IX (c) Section 4 of the Constitution, is not impaired
by posting decals and stickers on cars and other private vehicles. Compared to the paramount interest of the State in guaranteeing freedom of
expression, any financial considerations behind the regulation are of marginal significance.

Under section 26 Article II of the Constitution, "The State shall guarantee equal access to opportunities for public service, . . . while under section 1,
Article XIII thereof "The Congress shall give highest priority to the enactment of measures that protect and enhance the right of all the people to
human dignity, reduce social, economic, andpolitical inequalities, and remove cultural inequities by equitably diffusing wealth and political power
for the common good." (Emphasis supplied)

It is to be reiterated that the posting of decals and stickers on cars, calesas, tricycles, pedicabs and other moving vehicles needs the consent of the
owner of the vehicle. Hence, the preference of the citizen becomes crucial in this kind of election propaganda not the financial resources of the
candidate. Whether the candidate is rich and, therefore, can afford to doleout more decals and stickers or poor and without the means to spread out
the same number of decals and stickers is not as important as the right of the owner to freely express his choice and exercise his right of free speech.
The owner can even prepare his own decals or stickers for posting on his personal property. To strike down this right and enjoin it is impermissible
encroachment of his liberties.

In sum, the prohibition on posting of decals and stickers on "mobile" places whether public or private except in the authorized areas designated by the
COMELEC becomes censorship which cannot be justified by the Constitution:

. . . The concept of the Constitution as the fundamental law, setting forth the criterion for the validity of any public act whether
proceeding from the highest official or the lowest functionary, is a postulate of our system of government. That is to manifest
fealty to the rule of law, with priority accorded to that which occupies the topmost rung in the legal hierarchy. The three
departments of government in the discharge of the functions with which it is entrusted have no choice but to yield obedience to
its commands. Whatever limits it imposes must be observed. Congress in the enactment of statutes must ever be on guard lest the
restrictions on its authority, either substantive or formal, be transcended. The Presidency in the execution of the laws cannot
ignore or disregard what it ordains. In its task of applying the law to the facts as found in deciding cases, the judiciary is called
upon to maintain inviolate what is decreed by the fundamental law. Even its power of judicial review to pass upon the validity of
the acts of the coordinate branches in the course of adjudication is a logical. corollary of this basic principle that the Constitution
is paramount. It overrides any governmental measure that fails to live up to its mandates. Thereby there is a recognition of its
being the supreme law. (Mutuc v. Commission on Elections, supra)

The unusual circumstances of this year's national and local elections call for a more liberal interpretation of the freedom to speak and the right to
know. It is not alone the widest possible dissemination of information on platforms and programs which concern us. Nor are we limiting ourselves to
protecting the unfettered interchange of ideas to bring about political change. (Cf. New York Times v. Sullivan, supra) The big number of candidates
and elective positions involved has resulted in the peculiar situation where almost all voters cannot name half or even two-thirds of the candidates
running for Senator. The public does not know who are aspiring to be elected to public office.

There are many candidates whose names alone evoke qualifications, platforms, programs and ideologies which the voter may accept or reject. When
a person attaches a sticker with such a candidate's name on his car bumper, he is expressing more than the name; he is espousing ideas. Our review of
the validity of the challenged regulation includes its effects in today's particular circumstances. We are constrained to rule against the COMELEC
prohibition.

WHEREFORE, the petition is hereby GRANTED. The portion of Section 15 (a) of Resolution No. 2347 of the Commission on Elections providing
that "decals and stickers may be posted only in any of the authorized posting areas provided in paragraph (f) of Section 21 hereof" is DECLARED
NULL and VOID.

SO ORDERED.

Narvasa, C.J., Melencio-Herrera, Paras, Padilla, Bidin, Grio-Aquino, Medialdea, Regalado, Davide, Jr., Romero and Nocon, J.J., concur.

Feliciano and Bellosillo, JJ., are on leave.


G.R. No. 133486 January 28, 2000

ABS-CBN BROADCASTING CORPORATION, petitioner,


vs.
COMMISSION ON ELECTIONS, respondent.

PANGANIBAN, J.:

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 can be vital tools in eliminating the evils of 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-
14191 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.

The Court's Ruling

The Petition5 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 Pao, 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 andcertiorari 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 or the May 11, 1998 elections. Moreover, not only is time of the essence; the Petition involves
transcendental constitutional issues. 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 groups 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 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.

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 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.20They 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. Fernandez22 this Court had occasion to discuss two theoretical test 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 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.
Fugoso25 and American Bible Society v. City of Manila;26 as well as in later ones, Vera v. Arca,27Navarro v. Villegas,28 Imbong v. Ferrer,29 Blo
Umpar Adiong v. Comelec30 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.33The 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.

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 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' answer 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.1wphi1.nt

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 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
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.

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
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.

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.
Kapunan, J., see dissenting opinion.
Vitug, J., please see separate opinion.
Melo and Mendoza, JJ., are join the separate opinion of Justice Vitug.
Pardo, J., took no part.

EN BANC
FRANCISCO CHAVEZ, G.R. No. 168338
Petitioner,
Present:

PUNO, C.J.,
QUISUMBING,
YNARES-SANTIAGO,
- versus - SANDOVAL-GUTIERREZ,
CARPIO,
AUSTRIA-MARTINEZ,
CORONA,
CARPIO MORALES,
AZCUNA,
TINGA,
CHICO-NAZARIO,
RAUL M. GONZALES, VELASCO, JR.,
in his capacity as the NACHURA,
Secretary of the REYES, and
Department of Justice; LEONARDO-DE CASTRO, JJ.
and NATIONAL TELECOMMUNICATIONS
COMMISSION (NTC), Promulgated:
Respondents.
February 15, 2008

DECISION

PUNO, C.J.:

A. Precis

In this jurisdiction, it is established that freedom of the press is crucial and so inextricably woven into the right to free speech and free expression,
that any attempt to restrict it must be met with an examination so critical that only a danger that is clear and present would be allowed to curtail it.
Indeed, we have not wavered in the duty to uphold this cherished freedom. We have struck down laws and issuances meant to curtail this
right, as in Adiong v. COMELEC,[1] Burgos v. Chief of Staff,[2] Social Weather Stations v. COMELEC,[3] and Bayan v. Executive Secretary
Ermita.[4] When on its face, it is clear that a governmental act is nothing more than a naked means to prevent the free exercise of speech, it must be
nullified.

B. The Facts

1. The case originates from events that occurred a year after the 2004 national and local elections. On June 5, 2005, Press Secretary Ignacio
Bunye told reporters that the opposition was planning to destabilize the administration by releasing an audiotape of a mobile phone
conversation allegedly between the President of the Philippines, Gloria Macapagal Arroyo, and a 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 Presidents
favor. [6] It seems that Secretary Bunye admitted that the voice was that of President Arroyo, but subsequently made a retraction. [7]

2. On June 7, 2005, former counsel of deposed President Joseph Estrada, Atty. Alan Paguia, subsequently released an alleged authentic tape
recording of the wiretap. Included in the tapes were purported conversations of the President, the First Gentleman Jose Miguel Arroyo,
COMELEC Commissioner Garcillano, and the late Senator Barbers.[8]

3. On June 8, 2005, respondent Department of Justice (DOJ) Secretary Raul Gonzales warned reporters that those who had copies of the
compact disc (CD) and those broadcasting or publishing its contents could be held liable under the Anti-Wiretapping Act. These persons
included Secretary Bunye and Atty. Paguia.He also stated that persons possessing or airing said tapes were committing a continuing
offense, subject to arrest by anybody who had personal knowledge if the crime was committed or was being committed in their presence.[9]

4. On June 9, 2005, in another press briefing, Secretary Gonzales ordered the National Bureau of Investigation (NBI) to go after media
organizations found to have caused the spread, the playing and the printing of the contents of a tape of an alleged wiretapped conversation
involving the President about fixing votes in the 2004 national elections. Gonzales said that he was going to start with Inq7.net, a joint
venture between the Philippine Daily Inquirer and GMA7television network, because by the very nature of the Internet medium, it was
able to disseminate the contents of the tape more widely. He then expressed his intention of inviting the editors and managers of Inq7.net
and GMA7 to a probe, and supposedly declared, I [have] asked the NBI to conduct a tactical interrogation of all concerned. [10]
5. On June 11, 2005, the NTC issued this press release: [11]
NTC GIVES FAIR WARNING TO RADIO AND TELEVISION OWNERS/OPERATORS TO OBSERVE ANTI-
WIRETAPPING LAW AND PERTINENT CIRCULARS ON PROGRAM STANDARDS

xxx xxx xxx

Taking into consideration the countrys unusual situation, and in order not to unnecessarily aggravate the same, the
NTC warns all radio stations and television network owners/operators that the conditions of the authorization and
permits issued to them by Government like the Provisional Authority and/or Certificate of Authority explicitly provides
that said companies shall not use [their] stations for the broadcasting or telecasting of false information or willful
misrepresentation. Relative thereto, it has come to the attention of the [NTC] that certain personalities are in possession
of alleged taped conversations which they claim involve the President of the Philippines and a Commissioner of the
COMELEC regarding supposed violation of election laws.

These personalities have admitted that the taped conversations are products of illegal wiretapping operations.

Considering that these taped conversations have not been duly authenticated nor could it be said at this time that the
tapes contain an accurate or truthful representation of what was recorded therein, it is the position of the [NTC] that the
continuous airing or broadcast of the said taped conversations by radio and television stations is a continuing violation
of the Anti-Wiretapping Law and the conditions of the Provisional Authority and/or Certificate of Authority issued to
these radio and television stations. It has been subsequently established that the said tapes are false and/or fraudulent
after a prosecution or appropriate investigation, the concerned radio and television companies are hereby warned that
their broadcast/airing of such false information and/or willful misrepresentation shall be just cause for the
suspension, revocation and/or cancellation of the licenses or authorizations issued to the said companies.

In addition to the above, the [NTC] reiterates the pertinent NTC circulars on program standards to be observed by radio
and television stations. NTC Memorandum Circular 111-12-85 explicitly states, among others, that all radio
broadcasting and television stations shall, during any broadcast or telecast, cut off from the air the speech, play, act or
scene or other matters being broadcast or telecast the tendency thereof is to disseminate false information or such other
willful misrepresentation, or to propose and/or incite treason, rebellion or sedition. The foregoing directive had been
reiterated by NTC Memorandum Circular No. 22-89, which, in addition thereto, prohibited radio, broadcasting and
television stations from using their stations to broadcast or telecast any speech, language or scene disseminating false
information or willful misrepresentation, or inciting, encouraging or assisting in subversive or treasonable acts.

The [NTC] will not hesitate, after observing the requirements of due process, to apply with full force the
provisions of said Circulars and their accompanying sanctions on erring radio and television stations and their
owners/operators.

6. On June 14, 2005, NTC held a dialogue with the Board of Directors of the Kapisanan ng mga Brodkaster sa Pilipinas (KBP). NTC
allegedly assured the KBP that the press release did not violate the constitutional freedom of speech, of expression, and of the press, and
the right to information. Accordingly, NTC and KBP issued a Joint Press Statement which states, among others, that: [12]

NTC respects and will not hinder freedom of the press and the right to information on matters of public concern. KBP &
its members have always been committed to the exercise of press freedom with high sense of responsibility and
discerning judgment of fairness and honesty.

NTC did not issue any MC [Memorandum Circular] or Order constituting a restraint of press freedom or censorship. The
NTC further denies and does not intend to limit or restrict the interview of members of the opposition or free
expression of views.

What is being asked by NTC is that the exercise of press freedom [be] done responsibly.

KBP has program standards that KBP members will observe in the treatment of news and public affairs programs. These
include verification of sources, non-airing of materials that would constitute inciting to sedition and/or rebellion.

The KBP Codes also require that no false statement or willful misrepresentation is made in the treatment of news or
commentaries.

The supposed wiretapped tapes should be treated with sensitivity and handled responsibly giving due consideration to the
process being undertaken to verify and validate the authenticity and actual content of the same.

C. The Petition

Petitioner Chavez filed a petition under Rule 65 of the Rules of Court against respondents Secretary Gonzales and the NTC, praying for the
issuance of the writs of certiorari and prohibition, as extraordinary legal remedies, to annul void proceedings, and to prevent the unlawful,
unconstitutional and oppressive exercise of authority by the respondents. [13]

Alleging that the acts of respondents are violations of the freedom on expression and of the press, and the right of the people to information
on matters of public concern,[14] petitioner specifically asked this Court:

[F]or [the] nullification of acts, issuances, and orders of respondents committed or made since June 6, 2005 until the present that
curtail the publics rights to freedom of expression and of the press, and to information on matters of public concern specifically
in relation to information regarding the controversial taped conversion of President Arroyo and for prohibition of the further
commission of such acts, and making of such issuances, and orders by respondents. [15]

Respondents[16] denied that the acts transgress the Constitution, and questioned petitioners legal standing to file the petition. Among the
arguments they raised as to the validity of the fair warning issued by respondent NTC, is that broadcast media enjoy lesser constitutional guarantees
compared to print media, and the warning was issued pursuant to the NTCs mandate to regulate the telecommunications industry. [17] It was also
stressed that most of the [television] and radio stations continue, even to this date, to air the tapes, but of late within the parameters agreed upon
between the NTC and KBP. [18]
D. THE PROCEDURAL THRESHOLD: LEGAL STANDING

To be sure, the circumstances of this case make the constitutional challenge peculiar. Petitioner, who is not a member of the broadcast
media, prays that we strike down the acts and statements made by respondents as violations of the right to free speech, free expression and a free
press. For another, the recipients of the press statements have not come forwardneither intervening nor joining petitioner in this action. Indeed, as a
group, they issued a joint statement with respondent NTC that does not complain about restraints on freedom of the press.

It would seem, then, that petitioner has not met the requisite legal standing, having failed to allege such a personal stake in the outcome of
the controversy as to assure that concrete adverseness which sharpens the presentation of issues upon which the Court so largely depends for
illumination of difficult constitutional questions. [19]

But as early as half a century ago, we have already held that where serious constitutional questions are involved, the transcendental importance to the
public of these cases demands that they be settled promptly and definitely, brushing aside if we must, technicalities of procedure. [20] Subsequently,
this Court has repeatedly and consistently refused to wield procedural barriers as impediments to its addressing and resolving serious legal questions
that greatly impact on public interest,[21] in keeping with the Court's duty under the 1987 Constitution to determine whether or not other branches of
government have kept themselves within the limits of the Constitution and the laws and that they have not abused the discretion given to them.

Thus, in line with the liberal policy of this Court on locus standi when a case involves an issue of overarching significance to our society,[22] we
therefore brush aside technicalities of procedure and take cognizance of this petition,[23] seeing as it involves a challenge to the most exalted of all the
civil rights, the freedom of expression. The petition raises other issues like the extent of the right to information of the public. It is
fundamental, however, that we need not address all issues but only the most decisive one which in the case at bar is whether the acts of the
respondents abridge freedom of speech and of the press.

But aside from the primordial issue of determining whether free speech and freedom of the press have been infringed, the case at bar
also gives this Court the opportunity: (1) to distill the essence of freedom of speech and of the press now beclouded by the vagaries of
motherhood statements; (2) to clarify the types of speeches and their differing restraints allowed by law; (3) to discuss the core concepts of
prior restraint, content-neutral and 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 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 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 jurisprudencewhether here or abroadwill 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 doctrinewhich permits limitations on speech once a rational connection has been established between the speech restrained and the danger
contemplated; [48] (b) thebalancing 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 test to 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 issuanceactually 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 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 approachsomewhere 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-basedrestrictions. The acts of respondents focused solely on but one objecta 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 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 limitedFirst 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 thatas 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.

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 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 medias 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 expressionin terms of diversitycomes 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 governmentalaction 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 whos and the hows of the wiretapping act is ambivalent, especially considering the
tapes 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 persons 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, violations oflaw 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.
G.R. No. 119673 July 26, 1996

IGLESIA NI CRISTO, (INC.), petitioner,


vs.
THE HONORABLE COURT OF APPEALS, BOARD OF REVIEW FOR MOVING PICTURES AND TELEVISION and HONORABLE
HENRIETTA S. MENDOZA, respondents.

PUNO, J.:p

This is a petition for review of the Decision dated March 24, 1995 of the respondent Court of Appeals affirming the action of the respondent Board of
Review for Moving Pictures and Television which x-rated the TV Program "Ang Iglesia ni Cristo."

Petitioner Iglesia ni Cristo, a duly organized religious organization, has a television program entitled "Ang Iglesia ni Cristo" aired on Channel 2 every
Saturday and on Channel 13 every Sunday. The program presents and propagates petitioner's religious beliefs, doctrines and practices often times in
comparative studies with other religions.

Sometime in the months of September, October and November 1992 petitioner submitted to the respondent Board of Review for Moving Pictures and
Television the VTR tapes of its TV program Series Nos. 116, 119, 121 and 128. The Board classified the series as "X" or not for public viewing on
the ground that they "offend and constitute an attack against other religions which is expressly prohibited by law."

Petitioner pursued two (2) courses of action against the respondent Board. On November 28, 1992, it appealed to the Office of the President the
classification of its TV Series No. 128. It succeeded in its appeal for on December 18, 1992, the Office of the President reversed the decision of the
respondent Board. Forthwith, the Board allowed Series No. 128 to be publicly telecast.

On December 14, 1992, petitioner also filed against the respondent Board Civil Case No. Q-92-14280, with the RTC, NCR Quezon City. 1 Petitioner
alleged that the respondent Board acted without jurisdiction or with grave abuse of discretion in requiring petitioner to submit the VTR tapes of its
TV program and in x-rating them. It cited its TV Program Series Nos. 115, 119, 121 and 128. In their Answer, respondent Board invoked its power
under PD No. 1986 in relation to Article 201 of the Revised Penal Code.

On January 4, 1993, the trial court held a hearing on petitioner's prayer for a writ of preliminary injunction. The parties orally argued and then
marked their documentary evidence. Petitioner submitted the following as its exhibits,viz.:

(1) Exhibit "A," respondent Board's Voting Slip for Television showing its September 9, 1992 action on petitioner's Series No.
115 as follows: 2

REMARKS:

There are some inconsistencies in the particular program as it is very surprising for this program to show series of Catholic
ceremonies and also some religious sects and using it in their discussion about the bible. There are remarks which are direct
criticism which affect other religions.

Need more opinions for this particular program. Please subject to more opinions.

(2) Exhibit "A-1," respondent Board's Voting Slip for Television showing its September 11, 1992 subsequent action on
petitioner's Series No. 115 as follows: 3

REMARKS:

This program is criticizing different religions, based on their own interpretation of the Bible.

We suggest that the program should delve on explaining their own faith and beliefs and avoid attacks on other faith.

(3) Exhibit "B," respondent Board's Voting Slip for Television showing its October 9, 1992 action on petitioner's Series No. 119,
as follows: 4

REMARKS:

The Iglesia ni Cristo insists on the literal translation of the bible and says that our (Catholic) veneration of the Virgin Mary is not
to be condoned because nowhere it is found in the bible that we should do so.

This is intolerance and robs off all sects of freedom of choice, worship and decision.

(4) Exhibit "C," respondent Board's Voting Slip for Television showing its October 20, 1992 action on petitioner's Series No. 121
as follows: 5

REMARKS:

I refuse to approve the telecast of this episode for reasons of the attacks, they do on, specifically, the Catholic religion.

I refuse to admit that they can tell, dictate any other religion that they are right and the rest are wrong, which they clearly present
in this episode.
(5) Exhibit "D," respondent Board's Voting Slip for Television showing its November 20, 1992 action on petitioner's Series No.
128 as follows: 6

REMARKS:

The episode presented criticizes the religious beliefs of the Catholic and Protestant's beliefs.

We suggest a second review.

(6) Exhibits "E," "E-1," petitioner's block time contract with ABS-CBN Broadcasting Corporation dated September 1, 1992. 7

(7) Exhibit "F," petitioner's Airtime Contract with Island Broadcasting Corporation. 8

(8) Exhibit "G," letter dated December 18, 1992 of former Executive Secretary Edelmiro A. Amante, Sr., addressed for Henrietta
S. Mendez reversing the decision of the respondent Board which x-rated the showing of petitioner's Series No. 129. The letter
reads in part:

xxx xxx xxx

The television episode in question is protected by the constitutional guarantee of free speech and expression
under Article III, section 4 of the 1987 Constitution.

We have viewed a tape of the television episode in question, as well as studied the passages found by
MTRCB to be objectionable and we find no indication that the episode poses any clear and present danger
sufficient to limit the said constitutional guarantee.

(9) Exhibits "H," "H-1," letter dated November 26, 1992 of Teofilo C. Ramos, Sr., addressed to President Fidel V. Ramos
appealing the action of the respondent Board x-rating petitioner's Series No. 128.

On its part, respondent Board submitted the following exhibits, viz.:

(1) Exhibit "1," Permit Certificate for Television Exhibition No. 15181 dated December 18, 1992 allowing the showing of Series
No. 128 under parental guidance.

(2) Exhibit "2," which is Exhibit "G" of petitioner.

(3) Exhibit "3," letter dated October 12, 1992 of Henrietta S. Mendez, addressed to the Christian Era Broadcasting Service which
reads in part:

xxx xxx xxx

In the matter of your television show "Ang Iglesia ni Cristo" Series No. 119, please be informed that the
Board was constrained to deny your show a permit to exhibit. The material involved constitute an attack
against another religion which is expressly prohibited by law. Please be guided in the submission of future
shows.

After evaluating the evidence of the parties, the trial court issued a writ of preliminary injunction on petitioner's bond o P10,000.00.

The trial court set the pre-trial of the case and the parties submitted their pre-trial briefs. 9 The pre-trial briefs show that the parties' evidence is
basically the evidence they submitted in the hearing of the issue of preliminary injunction. The trial of the case was set and reset several times as the
parties tried to reach an amicable accord. Their efforts failed and the records show that after submission of memoranda, the trial court rendered a
Judgment, 10 on December 15, 1993, the dispositive portion of which reads:

xxx xxx xxx

WHEREFORE, judgment is hereby rendered ordering respondent Board of Review for Moving Pictures and Television
(BRMPT) to grant petitioner Iglesia ni Cristo the necessary permit for all the series of "Ang Iglesia ni Cristo" program.

Petitioner Iglesia ni Cristo, however, is directed to refrain from offending and attacking other existing religions in showing "Ang
Iglesia ni Cristo" program.

SO ORDERED.

Petitioner moved for reconsideration 11 praying: (a) for the deletion of the second paragraph of the dispositive portion of the Decision, and (b) for the
Board to be perpetually enjoined from requiring petitioner to submit for review the tapes of its program. The respondent Board opposed the
motion. 12 On March 7, 1993, the trial court granted petitioner's Motion for Reconsideration. It ordered: 13

xxx xxx xxx

WHEREFORE, the Motion for Reconsideration is granted. The second portion of the Court's Order dated December 15, 1993,
directing petitioner to refrain from offending and attacking other existing religions in showing "Ang Iglesia ni Cristo" program is
hereby deleted and set aside. Respondents are further prohibited from requiring petitioner Iglesia ni Cristo to submit for review
VTR tapes of its religious program "Ang Iglesia ni Cristo."
Respondent Board appealed to the Court of Appeals after its motion for reconsideration was denied. 14

On March 5, 1995, the respondent Court of Appeals 15 reversed the trial court. It ruled that: (1) the respondent board has jurisdiction and power to
review the TV program "Ang Iglesia ni Cristo," and (2) the respondent Board did not act with grave abuse of discretion when it denied permit for the
exhibition on TV of the three series of "Ang Iglesia ni Cristo" on the ground that the materials constitute an attack against another religion. It also
found the series "indecent, contrary to law and contrary to good customs.

In this petition for review on certiorari under Rule 45, petitioner raises the following issues:

WHETHER OR NOT THE HONORABLE COURT OF APPEALS ERRED IN HOLDING THAT THE "ANG IGLESIA NI
CRISTO" PROGRAM IS NOT CONSTITUTIONALLY PROTECTED AS A FORM OF RELIGIOUS EXERCISE AND
EXPRESSION.

II

WHETHER OR NOT THE HONORABLE COURT OF APPEALS ERRED IN NOT HOLDING THAT BEING AN
EXERCISE OF RELIGIOUS FREEDOM, THE "ANG IGLESIA NI CRISTO" PROGRAM IS SUBJECT TO THE POLICE
POWER OF THE STATE ONLY IN THE EXTREME CASE THAT IT POSES A CLEAR AND PRESENT DANGER.

III

WHETHER OR NOT THE HONORABLE COURT OF APPEALS ERRED IN HOLDING THAT THE MTRCB IS VESTED
WITH THE POWER TO CENSOR RELIGIOUS PROGRAMS.

IV

WHETHER OR NOT THE HONORABLE COURT OF APPEALS ERRED IN HOLDING THAT THE "ANG IGLESIA NI
CRISTO," A PURELY RELIGIOUS PROGRAM IS INDECENT AND CONTRARY TO LAW AND GOOD CUSTOMS.

The basic issues can be reduced into two: (1) first, whether the respondent Board has the power to review petitioner's TV program "Ang Iglesia ni
Cristo," and (2) second, assuming it has the power, whether it gravely abused its discretion when it prohibited the airing of petitioner's religious
program, series Nos. 115, 119 and 121, for the reason that they constitute an attack against other religions and that they are indecent, contrary to law
and good customs.

The first issue can be resolved by examining the powers of the Board under PD No. 1986. Its section 3 pertinently provides:

Sec. 3 Powers and Functions. -- The BOARD shall have the following functions, powers and duties:

xxx xxx xxx

b) To screen, review and examine all motion pictures as herein defined, television programs, including publicity materials such
as advertisements, trailers and stills, whether such motion pictures and publicity materials be for theatrical or non-theatrical
distribution for television broadcast or for general viewing, imported or produced in the Philippines and in the latter case,
whether they be for local viewing or for export.

c) To approve, delete objectionable portion from and/or prohibit the importation, exportation, production, copying, distribution,
sale, lease, exhibition and/or television broadcast of the motion pictures,television programs and publicity materials, subject of
the preceding paragraph, which, in the judgment of the BOARD applying contemporary Filipino cultural values as standard, are
objectionable for beingimmoral, indecent, contrary to law and/or good customs, injurious to the prestige of the Republic of the
Philippines and its people, or with a dangerous tendency to encourage the commission of violence or of a wrong or crime, such as
but not limited to:

i) Those which tend to incite subversion, insurrection, rebellion or sedition against the State, or otherwise
threaten the economic and/or political stability of the State;

ii) Those which tend to undermine the faith and confidence of the people, their government and/or duly
constituted authorities;

iii) Those which glorify criminals or condone crimes;

iv) Those which serve no other purpose but to satisfy the market for violence or pornography;

v) Those which tend to abet the traffic in and use of prohibited drugs;

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

vii) Those which may constitute contempt of court or of any quasi-judicial tribunal, or pertain to matters
which are subjudice in nature (emphasis ours).

The law gives the Board the power to screen, review and examine all "television programs." By the clear terms of the law, the Board has
the power to "approve, delete . . . and/or prohibit the . . . exhibition and/or television broadcast of . . . television programs . . ." The law also
directs the Board to apply "contemporary Filipino cultural values as standard" to determine those which are objectionable for being
"immoral, indecent, contrary to law and/or good customs, injurious to the prestige of the Republic of the Philippines and its people, or with
a dangerous tendency to encourage the commission of violence or of a wrong or crime."

Petitioner contends that the term "television program" should not include religious programs like its program "Ang Iglesia ni Cristo." A contrary
interpretation, it is urged, will contravene section 5, Article III of the Constitution which guarantees that "no law shall be made respecting an
establishment of religion, or prohibiting the free exercise thereof. The free exercise and enjoyment of religious profession and worship, without
discrimination or preference, shall forever be allowed."

We reject petitioner's submission which need not set us adrift in a constitutional voyage towards an uncharted sea. Freedom of religion has been
accorded a preferred status by the framers of our fundamental laws, past and present. We have affirmed this preferred status well aware that it is
"designed to protect the broadest possible liberty of conscience, to allow each man to believe as his conscience directs, to profess his beliefs, and to
live as he believes he ought to live, consistent with the liberty of others and with the common good." 16 We have also laboriously defined in our
jurisprudence the intersecting umbras and penumbras of the right to religious profession and worship. To quote the summation of Mr. Justice Isagani
Cruz, our well-known constitutionalist: 17

Religious Profession and Worship

The right to religious profession and worship has a two-fold aspect, viz., freedom to believe and freedom to act on one's beliefs.
The first is absolute as long as the belief is confined within the realm of thought. The second is subject to regulation where the
belief is translated into external acts that affect the public welfare.

(1) Freedom to Believe

The individual is free to believe (or disbelieve) as he pleases concerning the hereafter. He may indulge his own theories about life
and death; worship any god he chooses, or none at all; embrace or reject any religion; acknowledge the divinity of God or of any
being that appeals to his reverence; recognize or deny the immortality of his soul -- in fact, cherish any religious conviction as he
and he alone sees fit. However absurd his beliefs may be to others, even if they be hostile and heretical to the majority, he has full
freedom to believe as he pleases. He may not be required to prove his beliefs. He may not be punished for his inability to do so.
Religion, after all, is a matter of faith. "Men may believe what they cannot prove." Every one has a right to his beliefs and he may
not be called to account because he cannot prove what he believes.

(2) Freedom to Act on One's Beliefs

But where the individual externalizes his beliefs in acts or omissions that affect the public, his freedom to do so becomes subject
to the authority of the State. As great as this liberty may be, religious freedom, like all the other rights guaranteed in the
Constitution, can be enjoyed only with a proper regard for the rights of others. It is error to think that the mere invocation of
religious freedom will stalemate the State and render it impotent in protecting the general welfare. The inherent police power can
be exercised to prevent religious practices inimical to society. And this is true even if such practices are pursued out of sincere
religious conviction and not merely for the purpose of evading the reasonable requirements or prohibitions of the law.

Justice Frankfurter put it succinctly: "The constitutional provision on religious freedom terminated disabilities, it did not create
new privileges. It gave religious liberty, not civil immunity. Its essence is freedom from conformity to religious dogma, not
freedom from conformity to law because of religious dogma.

Accordingly, while one has lull freedom to believe in Satan, he may not offer the object of his piety a human sacrifice, as this
would be murder. Those who literally interpret the Biblical command to "go forth and multiply" are nevertheless not allowed to
contract plural marriages in violation of the laws against bigamy. A person cannot refuse to pay taxes on the ground that it would
be against his religious tenets to recognize any authority except that of God alone. An atheist cannot express in his disbelief in act
of derision that wound the feelings of the faithful. The police power can validly asserted against the Indian practice of
the suttee, born of deep religious conviction, that calls on the widow to immolate herself at the funeral pile of her husband.

We thus reject petitioner's postulate that its religious program is per se beyond review by the respondent Board. Its public broadcast on TV of its
religious program brings it out of the bosom of internal belief. Television is a medium that reaches even the eyes and ears of children. The Court
iterates the rule that the exercise of religious freedom can be regulated by the State when it will bring about the clear and present danger of some
substantive evil which the State is duty bound to prevent, i.e., serious detriment to the more overriding interest of public health, public morals, or
public welfare. A laissez faire policy on the exercise of religion can be seductive to the liberal mind but history counsels the Court against its blind
adoption as religion is and continues to be a volatile area of concern in our country today. Across the sea and in our shore, the bloodiest and bitterest
wars fought by men were caused by irreconcilable religious differences. Our country is still not safe from the recurrence of this stultifying strife
considering our warring religious beliefs and the fanaticism with which some of us cling and claw to these beliefs. Even now, we have yet to settle
the near century old strife in Mindanao, the roots of which have been nourished by the mistrust and misunderstanding between our Christian and
Muslim brothers and sisters. The bewildering rise of weird religious cults espousing violence as an article of faith also proves the wisdom of our rule
rejecting a strict let alone policy on the exercise of religion. For sure, we shall continue to subject any act pinching the space for the free exercise of
religion to a heightened scrutiny but we shall not leave its rational exercise to the irrationality of man. For when religion divides and its exercise
destroys, the State should not stand still.

It is also petitioner's submission that the respondent appellate court gravely erred when it affirmed the ruling of the respondent Board x-rating its TV
Program Series Nos. 115, 119, 121 and 128. The records show that the respondent Board disallowed the program series for "attacking" other
religions. Thus, Exhibits "A," "A-1," (respondent Board's Voting Slip for Television) reveal that its reviewing members x-rated Series 115 for ". . .
criticizing different religions, based on their own interpretation of the Bible." They suggested that the program should only explain petitioner's ". . .
own faith and beliefs and avoid attacks on other faiths." Exhibit "B" shows that Series No. 119 was x-rated because "the Iglesia ni Cristo insists on
the literal translation of the bible and says that our Catholic veneration of the Virgin Mary is not to be condoned because nowhere it is found in the
bible that we should do so. This is intolerance . . ." Exhibit "C" shows that Series No. 121 was x-rated ". . . for reasons of the attacks, they do on,
specifically, the Catholic religion. . . . (T)hey can not tell, dictate any other religion that they are right and the rest are wrong
. . ." Exhibit "D" also shows that Series No. 128 was not favorably recommended because it ". . . outrages Catholic and Protestant's beliefs." On
second review, it was x-rated because of its "unbalanced interpretations of some parts of the bible." 18 In sum, the respondent Board x-rated
petitioner's TV program series Nos. 115, 119, 121 and 128 because of petitioner's controversial biblical interpretations and its "attacks" against
contrary religious beliefs. The respondent appellate court agreed and even held that the said "attacks" are indecent, contrary to law and good customs.
We reverse the ruling of the appellate court.

First. Deeply ensconced in our fundamental law is its hostility against all prior restraints on speech, including religious speech. Hence, any act that
restrains speech is hobbled by the presumption of invalidity and should be greeted with furrowed brows. 19 It is the burden of the respondent Board to
overthrow this presumption. If it fails to discharge this burden, its act of censorship will be struck down. It failed in the case at bar.

Second. The evidence shows that the respondent Board x-rated petitioners TV series for "attacking" either religions, especially the Catholic church.
An examination of the evidence, especially Exhibits "A," "A-1," "B," "C," and "D" will show that the so-called "attacks" are mere criticisms of some
of the deeply held dogmas and tenets of other religions. The videotapes were not viewed by the respondent court as they were not presented as
evidence. Yet they were considered by the respondent court as indecent, contrary to law and good customs, hence, can be prohibited from public
viewing under section 3(c) of PD 1986. This ruling clearly suppresses petitioner's freedom of speech and interferes with its right to free exercise of
religion. It misappreciates the essence of freedom to differ as delineated in the benchmark case of Cantwell v. Connecticut, so viz.: 20

xxx xxx xxx

In the realm of religious faith, and in that of political belief, sharp differences arise. In both fields, the tenets of one man may
seem the rankest error to his neighbor. To persuade others to his own point of view, the pleader, as we know, at times, resorts to
exaggeration, to vilification of men who have been, or are prominent in church or state or even to false statements. But the people
of this nation have ordained in the light of history that inspite of the probability of excesses and abuses, these liberties are, in the
long view, essential to enlightened opinion and right conduct on the part of the citizens of democracy.

The respondent Board may disagree with the criticisms of other religions by petitioner but that gives it no excuse to interdict such
criticisms, however, unclean they may be. Under our constitutional scheme, it is not the task of the State to favor any religion by protecting
it against an attack by another religion. Religious dogmas and beliefs are often at war and to preserve peace among their followers,
especially the fanatics, the establishment clause of freedom of religion prohibits the State from leaning towards any religion. Vis-a-
visreligious differences, the State enjoys no banquet of options. Neutrality alone is its fixed and immovable stance. In fine, respondent
board cannot squelch the speech of petitioner Iglesia ni Cristo simply because it attacks other religions, even if said religion happens to be
the most numerous church in our country. In a State where there ought to be no difference between the appearance and the reality of
freedom of religion, the remedy against bad theology is better theology. The bedrock of freedom of religion is freedom of thought and it is
best served by encouraging the marketplace of dueling ideas. When the luxury of time permits, the marketplace of ideas demands that
speech should be met by more speech for it is the spark of opposite speech, the heat of colliding ideas that can fan the embers of truth.

Third. The respondents cannot also rely on the ground "attacks against another religion" in x-rating the religious program of petitioner. Even a
sideglance at section 3 of PD No. 1986 will reveal that it is not among the grounds to justify an order prohibiting the broadcast of petitioner's
television program. The ground "attack against another religion" was merely added by the respondent Board in its Rules. 21 This rule is void for it
runs smack against the hoary doctrine that administrative rules and regulations cannot expand the letter and spirit of the law they seek to enforce.

It is opined that the respondent board can still utilize" attack against any religion" as a ground allegedly ". . . because section 3 (c) of PD No. 1986
prohibits the showing of motion pictures, television programs and publicity materials which are contrary to law and Article 201 (2) (b) (3) of the
Revised Penal Code punishes anyone who exhibits "shows which offend any race or religion." We respectfully disagree for it is plain that the word
"attack" is not synonymous with the word "offend." Moreover, Article 201 (2) (b) (3) of the Revised Penal Code should be invoked to justify
the subsequent punishment of a show which offends any religion. It cannot be utilized to justify prior censorship of speech. It must be emphasized
that E.O. 876, the law prior to PD 1986, included "attack against any religion" as a ground for censorship. The ground was not, however, carried over
by PD 1986. Its deletion is a decree to disuse it. There can be no other intent. Indeed, even the Executive Department espouses this view.

Thus, in an Opinion dated November 28, 1985 then Minister of Justice, now President of the Senate, Neptali Gonzales explained:

xxx xxx xxx

However, the question whether the BRMPT (now MTRCB) may preview and censor the subject television program of INC
should be viewed in the light of the provision of Section 3, paragraph (c) of PD 1986, which is substantially the same as the
provision of Section 3, paragraph (c) of E.O. No. 876-A, which prescribes the standards of censorship, to wit: "immoral,
indecent, contrary to law and/or good customs, injurious to the prestige of the Republic of the Philippines or its people or with
dangerous tendency to encourage the commission of violence, or of a wrong" as determined by the Board, "applying
contemporary Filipino cultural values as standard." As stated, the intention of the Board to subject the INC's television program
to "previewing and censorship is prompted by the fact that its religious program makes mention of beliefs and practices of other
religion." On the face of the law itself, there can conceivably be no basis for censorship of said program by the Board as much as
the alleged reason cited by the Board does not appear to he within the contemplation of the standards of censorship set by law.
(Emphasis supplied).

Fourth. In x-rating the TV program of the petitioner, the respondents failed to apply the clear and present danger rule. In American Bible Society
v. City of Manila, 22 this Court held: "The constitutional guaranty of free exercise and enjoyment of religious profession and worship carries with it
the right to disseminate religious information. Any restraint of such right can be justified like other restraints on freedom of expression on the ground
that there is a clear and present danger of any substantive evil which the State has the right to prevent." In Victoriano vs. Elizalde Rope Workers
Union, 23 we further ruled that ". . . it is only where it is unavoidably necessary to prevent an immediate and grave danger to the security and welfare
of the community that infringement of religious freedom may be justified, and only to the smallest extent necessary to avoid the danger."

The records show that the decision of the respondent Board, affirmed by the respondent appellate court, is completely bereft of findings of facts to
justify the conclusion that the subject video tapes constitute impermissible attacks against another religion. There is no showing whatsoever of
the type of harm the tapes will bring about especially the gravity and imminence of the threatened harm. Prior restraint on speech, including
religious speech, cannot be justified by hypothetical fears but only by the showing of a substantive and imminent evil which has taken the life of a
reality already on ground.

It is suggested that we re-examine the application of clear and present danger rule to the case at bar. In the United States, it is true that the clear and
present danger test has undergone permutations. It was Mr. Justice Holmes who formulated the test in Schenck v. US, 24 as follows: ". . . 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." Admittedly, the test was originally designed to determine the latitude which
should be given to speech that espouses anti-government action. Bannered by Justices Holmes and Brandeis, the test attained its full flowering in the
decade of the forties, when its umbrella was used to protect speech other than subversive speech. 25 Thus, for instance, the test was applied to annul a
total ban on labor picketing. 26 The use of the test took a downswing in the 1950's when the US Supreme Court decided Dennis v. United
States involving communist conspiracy. 27In Dennis, the components of the test were altered as the High Court adopted Judge Learned Hand's
formulation that ". . . in each case [courts] must ask whether the gravity of the 'evil,' discounted by its improbability, justifies such invasion of free
speech as is necessary to avoid the danger." The imminence requirement of the test was thus diminished and to that extent, the protection of the rule
was weakened. In 1969, however, the strength of the test was reinstated in Brandenburg v. Ohio, 28when the High Court restored in the test the
imminence requirement, and even added an intent requirement which according to a noted commentator ensured that only speech directed at inciting
lawlessness could be punished. 29 Presently in the United States, the clear and present danger test is not applied to protect low value speeches such as
obscene speech, commercial speech and defamation. Be that as it may, the test is still applied to four types of speech: speech that advocates
dangerous ideas, speech that provokes a hostile audience reaction, out of court contempt and release of information that endangers a fair
trial. 30 Hence, even following the drift of American jurisprudence, there is reason to apply the clear and present danger test to the case at bar which
concerns speech that attacks other religions and could readily provoke hostile audience reaction. It cannot be doubted that religious truths disturb
and disturb tenribly.

It is also opined that it is inappropriate to apply the clear and present danger test to the case at bar because the issue involves the content of speech
and not the time, place or manner of speech. Allegedly, unless the speech is first allowed, its impact cannot be measured, and the causal connection
between the speech and the evil apprehended cannot be established. The contention overlooks the fact that the case at bar involves videotapes that
are pre-taped and hence, their speech content is known and not an X quantity. Given the specific content of the speech, it is not unreasonable to
assume that the respondent Board, with its expertise, can determine whether its sulphur will bring about the substantive evil feared by the law.

Finally, it is also opined by Mr. Justice Kapunan that ". . . the determination of the question as to whether or not such vilification, exaggeration or
fabrication falls within or lies outside the boundaries of protected speech or expression is a judicial function which cannot be arrogated by an
administrative body such as a Board of Censors." He submits that a "system of prior restraint may only be validly administered by judges and not left
to administrative agencies. "The same submission is made by Mr. Justice Mendoza.

This thoughtful thesis is an attempt to transplant another American rule in our jurisdiction. Its seedbed was laid down by Mr. Justice Brennan in his
concurring opinion in the 1962 case of Manual Enterprise v. Day 31 By 1965, the US Supreme Court in Freedman v. Maryland 32 was ready to hold
that "the teaching of cases is that, because only a judicial determination in an adversary proceeding ensures the necessary sensitivity to freedom of
expression only a procedure requiring a judicial determination suffices to impose a valid final restraint." 33

While the thesis has a lot to commend itself, we are not ready to hold that it is unconstitutional for Congress to grant an administrative body quasi-
judicial power to preview and classify TV programs and enforce its decision subject to review by our courts. As far back as 1921, we upheld this set-
up in Sotto vs. Ruiz, 34 viz.:

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

On the other hand, the exclusion of newspaper and other publications from the mails, in the exercise of executive power, is
extremely delicate in nature and can only be justified where the statute is unequivocably applicable to the supposed objectionable
publication. In excluding any publication for the mails, the object should be not to interfere with the freedom of the press or with
any other fundamental right of the people. This is the more true with reference to articles supposedly libelous than to other
particulars of the law, since whether an article is or is not libelous, is fundamentally a legal question. In order for there to be due
process of law, the action of the Director of Posts must be subject to revision by the courts in case he had abused his discretion
or exceeded his authority. (Ex parteJackson [1878], 96 U.S., 727;

Public Cleaning House vs. Coyne [1903], 194 U.S., 497; Post Publishing Co. vs. Murray [1916]. 23 - Fed., 773)

As has been said, the performance of the duty of determining whether a publication contains printed matter of a libelous
character rests with the Director of Posts and involves the exercise of his judgment and discretion. Every intendment of the law
is in favor of the correctness of his action. The rule is (and we go only to those cases coming from the United States Supreme
Court and pertaining to the United States Postmaster-General), that the courts will not interfere with the decision of the Director
of Posts unless clearly of opinion that it was wrong. (Bates & Guilid Co. vs. Payne [1904], 194 U.S., 106; Smith vs. Hitchcock
[1912], 226 U.S., 63; Masses Pub. Co. vs. Patten [1917], 246 Fed., 24. But see David vs. Brown [1900], 103 Fed., 909,
announcing a somewhat different doctrine and relied upon by the Attorney-General).

To be sure, legal scholars in the United States are still debating the proposition whether or not courts aloneare competent to decide whether
speech is constitutionally protected. 35 The issue involves highly arguable policy considerations and can be better addressed by our
legislators.

IN VIEW WHEREOF, the Decision of the respondent Court of Appeals dated March 24, 1995 is affirmed insofar as it sustained the jurisdiction of
the respondent MTRCB to review petitioner's TV program entitled "Ang Iglesia ni Cristo," and is reversed and set aside insofar as it sustained the
action of the respondent MTRCB x-rating petitioner's TV Program Series Nos. 115, 119, and 121. No costs.

SO ORDERED.

Regalado, Davide, Jr., Romero and Francisco, JJ., concur.

Narvasa, C.J., concurs in the result.


G.R. No. 155282 January 17, 2005

MOVIE AND TELEVISION REVIEW AND CLASSIFICATION BOARD (MTRCB), petitioner,


vs.
ABS-CBN BROADCASTING CORPORATION and LOREN LEGARDA, respondents.

DECISION

SANDOVAL-GUTIERREZ, J.:

For our resolution is the petition for review on certiorari under Rule 45 of the 1997 Rules of Court, as amended, filed by petitioner Movie and
Television Review and Classification Board (MTRCB) against ABS-CBN Broadcasting Corporation (ABS-CBN) and former Senator Loren Legarda,
respondents, assailing the (a) Decision dated November 18, 1997,1 and (b) Order dated August 26, 20022 of the Regional Trial Court, Branch 77,
Quezon City, in Civil Case No. Q-93-16052.

The facts are undisputed.

On October 15, 1991, at 10:45 in the evening, respondent ABS-CBN aired "Prosti-tuition," an episode of the television (TV) program "The Inside
Story" produced and hosted by respondent Legarda. It depicted female students moonlighting as prostitutes to enable them to pay for their tuition
fees. In the course of the program, student prostitutes, pimps, customers, and some faculty members were interviewed. The Philippine Womens
University (PWU) was named as the school of some of the students involved and the facade of PWU Building at Taft Avenue, Manila conspicuously
served as the background of the episode.

The showing of "The Inside Story" caused uproar in the PWU community. Dr. Leticia P. de Guzman, Chancellor and Trustee of the PWU, and the
PWU Parents and Teachers Association filed letter-complaints3 with petitioner MTRCB. Both complainants alleged that the episode besmirched the
name of the PWU and resulted in the harassment of some of its female students.

Acting on the letter-complaints, the MTRCB Legal Counsel initiated a formal complaint with the MTRCB Investigating Committee, alleging among
others, that respondents (1) did not submit "The Inside Story" to petitioner for its review and (2) exhibited the same without its permission, thus,
violating Section 74 of Presidential Decree (P.D.) No. 19865 and Section 3,6 Chapter III and Section 7,7 Chapter IV of the MTRCB Rules and
Regulations.8

In their answer,9 respondents explained that the "The Inside Story" is a "public affairs program, news documentary and socio-political editorial," the
airing of which is protected by the constitutional provision on freedom of expression and of the press. Accordingly, petitioner has no power,
authority and jurisdiction to impose any form of prior restraint upon respondents.

On February 5, 1993, after hearing and submission of the parties memoranda, the MTRCB Investigating Committee rendered a Decision, the
decretal portion of which reads:

"WHEREFORE, the aforementioned premises, the respondents are ordered to pay the sum of TWENTY THOUSAND PESOS (P20,000.00) for
non-submission of the program, subject of this case for review and approval of the MTRCB.

Heretofore, all subsequent programs of the The Inside Story and all other programs of the ABS-CBN Channel 2 of the same category shall be
submitted to the Board of Review and Approval before showing; otherwise the Board will act accordingly."101awphi1.nt

On appeal, the Office of Atty. Henrietta S. Mendez, Chairman of the MTRCB, issued a Decision dated March 12, 1993 affirming the above ruling of
its Investigating Committee.11 Respondents filed a motion for reconsideration but was denied in a Resolution dated April 14, 1993.12

Respondents then filed a special civil action for certiorari with the Regional Trial Court (RTC), Branch 77, Quezon City. It seeks to: (1) declare as
unconstitutional Sections 3(b),13 3(c),14 3(d),15 4,16 7,17 and 1118 of P. D. No. 1986 and Sections 3,19 7,20 and 2821 (a) of the MTRCB Rules and
Regulations;22 (2) (in the alternative) exclude the "The Inside Story" from the coverage of the above cited provisions; and (3) annul and set aside the
MTRCB Decision dated March 12, 1993 and Resolution dated April 14, 1993. Respondents averred that the above-cited provisions constitute "prior
restraint" on respondents exercise of freedom of expression and of the press, and, therefore, unconstitutional. Furthermore, the above cited
provisions do not apply to the "The Inside Story" because it falls under the category of "public affairs program, news documentary, or socio-political
editorials" governed by standards similar to those governing newspapers.

On November 18, 1997, the RTC rendered a Decision 23 in favor of respondents, the dispositive portion of which reads:

"WHEREFORE, PREMISES CONSIDERED, judgment is hereby rendered:

1. ANNULLING AND SETTING ASIDE the assailed Decision and Resolution of MTRCB dated March 12, 1993;

2. DECLARING AND DECREEING that Sections 3 (b), (c), and (d), 4, 7, and 11 of P.D. No. 1986 and Sections 3, 7, 28 (a) of its
Implementing Rules do not cover the TV Program "The Inside Story" and other similar programs, they being public affairs programs which
can be equated to newspapers; and

3. MAKING PERMANENT the Injunction against Respondents or all persons acting in their behalf.

SO ORDERED."

Petitioner filed a motion for reconsideration but was denied. 24

Hence, this petition for review on certiorari.


Petitioner MTRCB through the Solicitor General, contends inter alia: first, all television programs, including "public affairs programs, news
documentaries, or socio-political editorials," are subject to petitioners power of review under Section 3 (b) of P.D. No. 1986 and pursuant to this
Courts ruling in Iglesia ni Cristo vs. Court of Appeals ;25 second, television programs are more accessible to the public than newspapers, thus, the
liberal regulation of the latter cannot apply to the former; third, petitioners power to review television programs under Section 3(b) of P. D. No.
1986 does not amount to "prior restraint;" and fourth, Section 3(b) of P. D. No. 1986 does not violate respondents constitutional freedom of
expression and of the press.

Respondents take the opposite stance.

The issue for our resolution is whether the MTRCB has the power or authority to review the "The Inside Story" prior to its exhibition or broadcast by
television.

The petition is impressed with merit.

The present controversy brings into focus the provisions of Section 3 of P. D. No. 1986, partly reproduced as follows:

"SEC. 3. Powers and Functions. The BOARD shall have the following functions, powers and duties:

xxxxxx

b) To screen, review and examine all motion pictures as herein defined, television programs, including publicity materials such as advertisements,
trailers and stills, whether such motion pictures and publicity materials be for theatrical or non-theatrical distribution, for television broadcast or for
general viewing, imported or produced in the Philippines, and in the latter case, whether they be for local viewing or for export.1a\^/phi1.net

c) To approve or disapprove, delete objectionable portions from and/or prohibit the importation, exportation, production, copying, distribution, sale,
lease exhibition and/or television broadcast of the motion pictures, television programs and publicity materials subject of the preceding paragraph,
which, in the judgment of the BOARD applying contemporary Filipino cultural values as standard, are objectionable for being immoral, indecent,
contrary to law and/or good customs, injurious to the prestige of the Republic of the Philippines or its people, or with a dangerous tendency to
encourage the commission of violence or of a wrong or crime, such as but not limited to:

xxx

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

x x x x x x."

Vis-a-vis the foregoing provisions, our task is to decide whether or not petitioner has the power to review the television program "The Inside Story."
The task is not Herculean because it merely resurrects this Court En Bancsruling in Iglesia ni Cristo vs. Court of Appeals.26 There, the Iglesia ni
Cristo sought exception from petitioners review power contending that the term "television programs" under Sec. 3 (b) does not include "religious
programs" which are protected under Section 5, Article III of the Constitution. 27 This Court, through Justice Reynato Puno, categorically ruled that
P.D. No. 1986 gives petitioner "the power to screen, review and examine "all television programs," emphasizing the phrase "all television
programs," thus:

"The law gives the Board the power to screen, review and examine all television programs. By the clear terms of the law, the Board has the
power to approve, delete x x x and/or prohibit the x x x exhibition and/or television broadcast of x x x television programs x x x. The law also
directs the Board to apply contemporary Filipino cultural values as standard to determine those which are objectionable for being immoral,
indecent, contrary to law and/or good customs, injurious to the prestige of the Republic of the Philippines and its people, or with a dangerous
tendency to encourage the commission of violence or of a wrong or crime."

Settled is the rule in statutory construction that where the law does not make any exception, courts may not except something therefrom, unless there
is compelling reason apparent in the law to justify it.28 Ubi lex non distinguit nec distinguere debemos. Thus, when the law says "all television
programs," the word "all" covers all television programs, whether religious, public affairs, news documentary, etc. 29 The principle assumes that the
legislative body made no qualification in the use of general word or expression.30

It then follows that since "The Inside Story" is a television program, it is within the jurisdiction of the MTRCB over which it has power of review.

Here, respondents sought exemption from the coverage of the term "television programs" on the ground that the "The Inside Story" is a "public
affairs program, news documentary and socio-political editorial" protected under Section 4,31 Article III of the Constitution. Albeit, respondents
basis is not freedom of religion, as in Iglesia ni Cristo,32 but freedom of expression and of the press, the ruling in Iglesia ni Cristo applies squarely to
the instant issue. It is significant to note that in Iglesia ni Cristo, this Court declared that freedom of religion has been accorded a preferred status by
the framers of our fundamental laws, past and present, "designed to protect the broadest possible liberty of conscience, to allow each man to believe
as his conscience directs x x x." Yet despite the fact that freedom of religion has been accorded a preferred status, still this Court, did not exempt
the Iglesia ni Cristosreligious program from petitioners review power.

Respondents claim that the showing of "The Inside Story" is protected by the constitutional provision on freedom of speech and of the press.
However, there has been no declaration at all by the framers of the Constitution that freedom of expression and of the press has a preferred status.

If this Court, in Iglesia ni Cristo, did not exempt religious programs from the jurisdiction and review power of petitioner MTRCB, with more reason,
there is no justification to exempt therefrom "The Inside Story" which, according to respondents, is protected by the constitutional provision on
freedom of expression and of the press, a freedom bearing no preferred status.

The only exceptions from the MTRCBs power of review are those expressly mentioned in Section 7 of P. D. No. 1986, such as (1) television
programs imprinted or exhibited by the Philippine Government and/or its departments and agencies, and (2) newsreels. Thus:
"SEC. 7. Unauthorized showing or exhibition. It shall be unlawful for any person or entity to exhibit or cause to be exhibited in any moviehouse,
theatre, or public place or by television within the Philippines any motion picture, television program or publicity material, including trailers, and
stills for lobby displays in connection with motion pictures, not duly authorized by the owner or his assignee and passed by the BOARD; or to print
or cause to be printed on any motion picture to be exhibited in any theater or public place or by television a label or notice showing the same to have
been officially passed by the BOARD when the same has not been previously authorized, except motion pictures, television programs or publicity
material imprinted or exhibited by the Philippine Government and/or its departments and agencies, and newsreels."

Still in a desperate attempt to be exempted, respondents contend that the "The Inside Story" falls under the category of newsreels.

Their contention is unpersuasive.

P. D. No. 1986 does not define "newsreels." Websters dictionary defines newsreels as short motion picture films portraying or dealing with current
events.33 A glance at actual samples of newsreels shows that they are mostly reenactments of events that had already happened. Some concrete
examples are those of Dziga Vertovs RussianKino-Pravda newsreel series (Kino-Pravda means literally "film-truth," a term that was later translated
literally into the French cinema verite) and Frank Capras Why We Fight series.34 Apparently, newsreels are straight presentation of events. They
are depiction of "actualities." Correspondingly, the MTRCB Rules and Regulations35 implementing P. D. No. 1986 define newsreels as "straight
news reporting, as distinguished from news analyses, commentaries and opinions. Talk shows on a given issue are not considered
newsreels."36Clearly, the "The Inside Story" cannot be considered a newsreel. It is more of a public affairs program which is described as a variety of
news treatment; a cross between pure television news and news-related commentaries, analysis and/or exchange of opinions.37 Certainly, such kind
of program is within petitioners review power.

It bears stressing that the sole issue here is whether petitioner MTRCB has authority to review "The Inside Story." Clearly, we are not called upon to
determine whether petitioner violated Section 4, Article III (Bill of Rights) of the Constitution providing that no law shall be passed abridging the
freedom of speech, of oppression or the press. Petitioner did not disapprove or ban the showing of the program. Neither did it cancel respondents
permit. Respondents were merely penalized for their failure to submit to petitioner "The Inside Story" for its review and approval. Therefore, we need
not resolve whether certain provisions of P. D. No. 1986 and the MTRCB Rules and Regulations specified by respondents contravene the
Constitution.

Consequently, we cannot sustain the RTCs ruling that Sections 3 (c) (d), 4, 7 and 11 of P. D. No. 1986 and Sections 3, 7 and 28 (a) of the MTRCB
Rules and Regulations are unconstitutional. It is settled that no question involving the constitutionality or validity of a law or governmental act may
be heard and decided by the court unless there is compliance with the legal requisites for judicial inquiry, namely: (1) that the question must be raised
by the proper party; (2) that there must be an actual case or controversy; (3) that the question must be raised at the earliest possible opportunity;
and, (4) that the decision on the constitutional or legal question must be necessary to the determination of the case itself.38

WHEREFORE, the instant petition is GRANTED.l^vvphi1.net The assailed RTC Decision dated November 18, 1997 and Order dated August 26,
2002 are hereby REVERSED. The Decision dated March 12, 1993 of petitioner MTRCB is AFFIRMED. Costs against respondents.

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.

MENDOZA, J.:

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
news- worthy items of information including election surveys. 1wphi1.nt

Petitioners brought this action for prohibition to enjoin the Commission on Elections from enforcing 5.4 of RA. 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 be- fore 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").

The implement 5.4, Resolution 3636, 24(h), dated March I, 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 be- fore 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 tile 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. 1wphi1.nt

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 RA. No. 9006 is much more limited.

For reasons hereunder given, we hold that 5.4 of R.A. No. 9006 constitutes an unconstitutional abridgment of freedom of speech, expression, and
the press.

To be sure, 5.4Iays a prior restraint on freedom of speech, expression, and the press prohibiting the publication of election survey results affecting
candidates within the prescribed periods of fifteen (15) days immediately preceding a national election seven (7) days before a local election.
Because of tile preferred status of tile constitutional rights of speech, expression, and he 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 in enforcement of such restraint. "' 3 There, 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 tile 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 "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:

Viewed in the light of the legitimate and significant objectives of Section 5.4, It may be seen that its limitingimpact on the rights of free
speech and of the press is not unduly repressive or unreasonable. In 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 note worthy that in the
United States no restriction on the publication of election survey results exists. It cannot be argued that this is because the United States is a mature
democracy. Neither are there laws imposing an embargo on survey results, even for a limited period, in other countries. As pointed out by petitioners,
the United Kingdom, Austria, Belgium, Denmark, Estonia, Finland, Iceland, Ireland, Latvia, Malta, Macedonia, the Netherlands, Norway, Sweden,
and Ukraine, some of which are no older nor more mature than the Philippines in political development, do not restrict the publication of election
survey results.

What test should then be employed to determine the constitutional validity of 5.4? The United States Supreme Court, through Chief Justice Warren,
held in United States v. O 'Brien:
[A] Government regulation is sufficiently justified [1] if it is within the constitutional power of the Government; [2] if it furthers an
important or substantial governmental interest; [3] if the governmental interest is unrelated to the suppression of free expression; and [4] if
the incidental restriction on alleged First Amendment freedoms [of speech, expression and press] is no greater than is essential to the
furtherance of that interest.8

This is so far the most influential test for distinguishing content-based from content neutral regulations and is said to have "become canonical in the
review of such laws."9 is noteworthy that the O 'Brien test has been applied by this Court in at least two cases.10

Under this test, even if a law furthers an important or substantial governmental interest, it should be invalidated if such governmental interest is "not
unrelated to the Expression of free expression." Moreover, even if the purpose is unrelated to the suppression of free speech, the law should
nevertheless be invalidated if the restriction on freedom of expression is greater than is necessary to achieve the governmental purpose in question.

Our inquiry should accordingly focus on these two considerations as applied to 5.4.

>First. Sec. 5.4 fails to meet criterion [3] of the O 'Brien test because the causal connection of expression to the asserted governmental interest makes
such interest "not related to the suppression of free expression." By prohibiting the publication of election survey results because of the possibility
that such publication might undermine the integrity of the election, 5.4 actually suppresses a whole class of expression, while allowing the
expression of opinion concerning the same subject matter by newspaper columnists, radio and TV commentators, armchair theorists, and other
opinion takers. In effect, 5.4 shows a bias for a particular subject matter, if not viewpoint, by referring personal opinion to statistical results. The
constitutional guarantee of freedom of expression means that "the government has no power to restrict expression because of its message, its ideas,
its subject matter, or its content."11 The 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 5.4Iays on protected speech. 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 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 overthrow by
force of orderly government

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 'Brientest, 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 1987,17the COMELEC is given the power:

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 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 resolution may be reviewed by this
Court only certiorari. The flaws in this argument is that it assumes that its Resolution 3636, March 1, 2001 is a "decision, order, or resolution" within
the meaning of Art. IX-A, 7. Indeed, counsel for COMELEC maintain that Resolution 3636 was "rendered" by the Commission. However, the
Resolution does not purport to adjudicate the right of any party. It is not an exercise by the COMELEC of its adjudicatory power to settle the claims
of parties. To the contrary, Resolution 3636 clearly states that it is promulgated to implement the provisions of R.A. No. 9006. Hence, there is no
basis for COMELEC's claim that this petition for prohibition is inappropriate. Prohibition has been fund appropriate for testing the constitutionality
of various election laws, rules, and regulations.19
WHEREFORE, the petition for prohibited GRANTED and 5.4 of R.A. No. 9006 24(h) of COMELEC Resolution 3636, March 1, 2001, are
declared unconstitutional. 1wphi1.nt

SO ORDERED.1wphi1.nt
G.R. No. L-21049 December 22, 1923

THE PEOPLE OF THE PHILIPPINE ISLANDS, plaintiff-appellee,


vs.
ISAAC PEREZ, defendant-appellant.

Mario Guaria for appellant.


Attorney-General Villa Real for appellee.

MALCOLM, J.:

Isaac Perez, the municipal secretary of Pilar, Sorsogon, and Fortunato Lodovice, a citizen of that municipality, happening to meet on the morning of
April 1, 1992, in the presidencia of Pilar, they became engaged in a discussion regarding the administration of Governor-General Wood, which
resulted in Perez shouting a number of times: "The Filipinos, like myself, must use bolos for cutting off Wood's head for having recommended a bad
thing for the Filipinos, for he has killed our independence." Charged in the Court of First Instance of Sorsogon with a violation of article 256 of the
Penal Code having to do with contempt of ministers of the Crown or other persons in authority, and convicted thereof, Perez has appealed the case to
this court. The question presented for decision is, What crime, if any, did the accused commit?

A logical point of departure is the information presented in this case. It reads in translation as follows:

That on or about April 1, 1922, in the municipality of Pilar, Province of Sorsogon, Philippine Islands, the said accused, Isaac Perez, while
holding a discussion with several persons on political matters, did criminally, unlawfully and wilfully and with knowledge that Honorable
Leonard Wood was the Governor-General of the Philippine Islands and in the discharge of his functions as such authority, insult by word,
without his presence, said Governor-General, uttering in a loud voice and in the presence of many persons, and in a public place, the
following phrases: "Asin an manga filipinos na caparejo co, maninigong gumamit nin sundang asin haleon an payo ni Wood huli can
saiyang recomendacion sa pag raot con Filipinas," which in English, is as follows: "And the Filipinos, like myself, must use bolos for
cutting off Wood's head for having recommended a bad thing for the Philippines.

Contrary to article 256 of the Penal Code.

At the trial of the case, two witnesses were called on behalf of the prosecution and three witnesses on behalf of the defense. According to the first
witness for the Government, Juan Lumbao, the municipal president of Pilar, what Perez said on the occasion in question was this:

"The Filipinos, like myself, should get a bolo and cut off the head of Governor-General Wood, because he has recommended a bad administration in
these Islands and has not made a good recommendation; on the contrary, he has assassinated the independence of the Philippines and for this reason,
we have not obtained independence and the head of that Governor-General must be cut off." Higinio J. Angustia, justice of the peace of Pilar, in a
written statement, and Gregorio Cresencio, another witness for the prosecution, corroborated the testimony of the first witness. Cresencio understood
that Perez invited the Filipinos including himself to get their bolos and cut off the head of Governor-General Wood and throw it into the sea.

The witnesses for the defense did not deny that an altercation took place on the morning of April 1, 1922, in which the accused participated. But they
endeavored to explain that the discussion was between Perez and one Severo Madrid, the latter maintaining that the fault was due to the Nacionalista
Party, while Perez argued that the Governor-General was to blame. The accused testified that the discussion was held in a peaceful manner, and that
what he wished to say was that the Governor-General should be removed and substituted by another. On the witness stand, he stated that his words
were the following: "We are but blaming the Nacionalista Party which is in power but do not take into account that above the representatives there is
Governor-General Wood who controls everything, and I told him that the day on which the Democrats may kill that Governor-General, then we, the
Filipinos will install the government we like whether you Democratas want to pay or not to pay taxes."

The trial judge found as a fact, and we think with abundant reason, that it had been proved beyond a reasonable doubt that the accused made use of
the language stated in the beginning of this decision and set out in the information. The question of fact thus settled, the question of law recurs as to
the crime of which the accused should be convicted.

It should be recalled that the fiscal named, in the information, article 256 of the Penal Code as having been infringed and the trial judge so found in
his decision. The first error assigned by counsel for the appellant is addressed to this conclusion of the lower court and is to the effect that article 256
of the Penal Code is no longer in force.

In the case of United States vs. Helbig ([1920], R. G. No. 14705 1), the accused was charged with having uttered the following language: "To hell
with the President of the United States and his proclamation!" Mr. Helbig was prosecuted under article 256, and though the case was eventually sent
back to the court of origin for a new trial, the appellate court by majority vote held as a question of law that article 256 is still in force.

In the case of People vs. Perfecto ([1922], 43 Phil., 887), the accused was charged with having published an article reflecting on the Philippine Senate
and its members in violation of article 256 of the Penal Code. In this court, Mr. Perfecto was acquitted by unanimous vote, with three members of the
court holding that article 256 was abrogated completely by the change from Spanish to American sovereignty over the Philippines, and with six
members holding that the Libel Law had the effect of repealing so much of article 256 as relates to written defamation, abuse, or insult, and that
under the information and the facts, the defendant was neither guilty of a violation of article 256 of the Penal Code nor of the libel Law. In the course
of the main opinion in the Perfecto case, is found this significant sentence: "Act No. 292 of the Philippine Commission, the Treason and Sedition
Law, may also have affected article 256, but as to this point, it is not necessary to make a pronouncement."

It may therefore be taken as settled doctrine, to which those of us who retain a contrary opinion must bow with as good grace as we can muster, that
until otherwise decided by higher authority, so much of article 256 of the Penal Code as does not relate to ministers of the Crown or to writings
coming under the Libel Law, exist and must be enforced. To which proposition, can properly be appended a corollary, namely: Seditious words,
speeches, or libels, constitute a violation of Act No. 292, the Treason and Sedition Law, and to this extent, both the Penal Code and the Libel Law are
modified.
Accepting the above statements relative to the continuance and status of article 256 of the Penal Code, it is our opinion that the law infringed in this
instance is not this article but rather a portion of the Treason and Sedition Law. In other words, as will later appear, we think that the words of the
accused did not so much tend to defame, abuse, or insult, a person in authority, as they did to raise a disturbance in the community.

In criminal law, there are a variety of offenses which are not directed primarily against individuals, but rather against the existence of the State, the
authority of the Government, or the general public peace. The offenses created and defined in Act No. 292 are distinctly of this character. Among
them is sedition, which is the raising of commotions or disturbances in the State. It is a revolt against legitimate authority. Though the ultimate object
of sedition is a violation of the public peace or at least such a course of measures as evidently engenders it, yet it does not aim at direct and open
violence against the laws, or the subversion of the Constitution. (2 Bouvier's Law Dictionary, 974; U.S. vs. Abad [1902], 1 Phil., 437;
People vs. Cabrera [1922], 43 Phil., 64.)

It is of course fundamentally true that the provisions of Act No. 292 must not be interpreted so as to abridge the freedom of speech and the right of
the people peaceably to assemble and petition the Government for redress of grievances. Criticism is permitted to penetrate even to the foundations
of Government. Criticism, no matter how severe, on the Executive, the Legislature, and the Judiciary, is within the range of liberty of speech, unless
the intention and effect be seditious. But when the intention and effect of the act is seditious, the constitutional guaranties of freedom of speech and
press and of assembly and petition must yield to punitive measures designed to maintain the prestige of constituted authority, the supremacy of the
constitution and the laws, and the existence of the State. (III Wharton's Criminal Law, pp. 2127 et seq.; U.S. vs. Apurado [1907], 7 Phil., 422;
People vs. Perfecto,supra.)

Here, the person maligned by the accused is the Chief Executive of the Philippine Islands. His official position, like the Presidency of the United
States and other high offices, under a democratic form of government, instead, of affording immunity from promiscuous comment, seems rather to
invite abusive attacks. But in this instance, the attack on the Governor-General passes the furthest bounds of free speech was intended. There is a
seditious tendency in the words used, which could easily produce disaffection among the people and a state of feeling incompatible with a disposition
to remain loyal to the Government and obedient to the laws.

The Governor-General is an executive official appointed by the President of the United States by and with the advice and consent of the Senate of the
United States, and holds in his office at the pleasure of the President. The Organic Act vests supreme executive power in the Governor-General to be
exercised in accordance with law. The Governor-General is the representative of executive civil authority in the Philippines and of the sovereign
power. A seditious attack on the Governor-General is an attack on the rights of the Filipino people and on American sovereignty.
(Concepcion vs. Paredes [1921], 42 Phil., 599; U.S. vs. Dorr [1903], 2 Phil., 332.)

Section 8 of Act No. 292 of the Philippine Commission, as amended by Act No. 1692, appears to have been placed on the statute books exactly to
meet such a situation. This section reads as follows:

Every person who shall utter seditious words or speeches, or who shall write, publish or circulate scurrilous libels against the Government
of the United States or against the Government of the Philippine Islands, or who shall print, write, publish utter or make any statement, or
speech, or do any act which tends to disturb or obstruct any lawful officer in executing his office or in performing his duty, or which tends
to instigate others to cabal or meet together for unlawful purposes, or which suggests or incites rebellious conspiracies or which tends to
stir up the people against the lawful authorities, or which tends to disturb the peace of the community or the safety or order of the
Government, or who shall knowingly conceal such evil practices from the constituted authorities, shall be punished by a fine not exceeding
two thousand dollars United States currency or by imprisonment not exceeding two years, or both, in the discretion of the court.

In the words of the law, Perez has uttered seditious words. He has made a statement and done an act which tended to instigate others to cabal or meet
together for unlawful purposes. He has made a statement and done an act which suggested and incited rebellious conspiracies. He has made a
statement and done an act which tended to stir up the people against the lawful authorities. He has made a statement and done an act which tended to
disturb the peace of the community and the safety or order of the Government. All of these various tendencies can be ascribed to the action of Perez
and may be characterized as penalized by section 8 of Act No. 292 as amended.

A judgment and sentence convicting the accused of a violation of section 8 of Act No. 292 as amended, is, in effect, responsive to, and based upon,
the offense with which the defendant is charged. The designation of the crime by the fiscal is not conclusive. The crime of which the defendant
stands charged is that described by the facts stated in the information. In accordance with our settled rule, an accused may be found guilty and
convicted of a graver offense than that designated in the information, if such graver offense is included or described in the body of the information,
and is afterwards justified by the proof presented during the trial. (Guevarra's Code of Criminal Procedure, p. 9; De Joya's Code of Criminal
Procedure, p. 9.)

The penalty meted out by the trial court falls within the limits provided by the Treason and Sedition Law, and will, we think, sufficiently punish the
accused.

That we have given more attention to this case than it deserves, may be possible. Our course is justified when it is recalled that only last year, Mr.
Chief Justice Taft of the United States Supreme Court, in speaking of an outrageous libel on the Governor of the Porto Rico, observed: "A reading of
the two articles removes the slightest doubt that they go far beyond the "exuberant expressions of meridional speech," to use the expression of this
court in a similar case in Gandia vs. Pettingill (222 U.S. , 452, 456). Indeed they are so excessive and outrageous in their character that they suggest
the query whether their superlative vilification has not overleapt itself and become unconsciously humorous." (Balzac vs. Porto Rico [1922], 258
U.S., 298.) While our own sense of humor is not entirely blunted, we nevertheless entertain the conviction that the courts should be the first to stamp
out the embers of insurrection. The fugitive flame of disloyalty, lighted by an irresponsible individual, must be dealt with firmly before it endangers
the general public peace.

The result is to agree with the trial Judge in his findings of fact, and on these facts to convict the accused of a violation of section 8 of Act No. 292 as
amended. With the modification thus indicated, judgment is affirmed, it being understood that, in accordance with the sentence of the lower court, the
defendant and appellant shall suffer 2 months and 1 day's imprisonment and pay the costs. So ordered.

Street, Ostrand, Johns and Romualdez, JJ., concur.


G.R. No. L-16027 May 30, 1962

LUMEN POLICARPIO, plaintiff-appellant,


vs.
THE MANILA TIMES PUB. CO., INC., CONSTANTE C. ROLDAN,
MANUEL V. VILLA-REAL, E. AGUILAR CRUZ and CONSORCIO BORJE, defendant-appellees.

Mario Bengzon for plaintiff-appellant.


Alfredo Gonzales and Rafael M. Delfin for defendants-appellees.

CONCEPCION, J.:

Appeal from a decision of the Court of First Instance of Manila dismissing plaintiff's complaint and defendants' counterclaim, without special
pronouncement as to costs. Originally certified to the Court of Appeals, the record on appeal was subsequently forwarded to us in view of the amount
involved in the complaint (P300,000.00).

Plaintiff Lumen Policarpio seeks to recover P150,000.00, as actual damages, P70,000, as moral damages, P60,000 as correctional and exemplary
damages, and P20,000, as attorney's fees, aside from the costs, by reason of the publication in the Saturday Mirror of August 11, 1956, and in the
Daily Mirror of August 13, 1956, of two (2) articles or news items which are claimed to be per se defamatory, libelous and false, and to have exposed
her to ridicule, jeopardized her integrity, good name and business and official transactions, and caused her grave embarrassment, untold and extreme
moral, mental and physical anguish and incalculable material, moral, professional and business damages. The defendants are The Manila Times
Publishing Co., Inc., as publisher of The Saturday Mirror and The Daily Mirror, which are newspapers of general circulation in the Philippines, and
Constante C. Roldan, Manuel V. Villa-Real, E. Aguilar Cruz and Consorcio Borje, as the reporter or author of the first article and the managing
editor, the associate editor and the news editor, respectively, of said newspapers.

After its motion to dismiss the complaint had been denied by the Court of First Instance of Manila, in which the present action was initiated, the
defendants filed a joint answer admitting the formal allegations of the complaint, denying the other allegations thereof, alleging special defenses and
setting up a counterclaim for P10,000, as attorney's fees and expenses of litigation. In due course, later on, said court rendered the aforementioned
decision, upon the ground that plaintiff had not proven that defendants had acted maliciously in publishing the aforementioned articles, although
portions thereof were inaccurate or false.

Plaintiff is a member of the Philippine bar. On August 11 and 13, 1956, and for sometime prior thereto, she was executive secretary of the local
UNESCO National Commission. As such officer, she had preferred charges against Herminia D. Reyes, one of her subordinates in said Commission,
and caused her to be separated from the service. Miss Reyes, in turn, preferred counter-charges which were referred to Col. Crisanto V. Alba, a
Special Investigator in the Office of the President. Pending completion of the administrative investigation, which began in June, 1956, Miss Reyes
filed with the Office of the City Fiscal of Manila, on August 8, 1956, a complaint against the plaintiff for alleged malversation of public funds and
another complaint for alleged estafa thru falsification of public documents, which were scheduled for investigation by said office on August 22, 1956,
at 2:00 p.m. Meanwhile, or on August 11, 1956, the following appeared, with a picture of the plaintiff, in the front page of The Saturday Mirror:

WOMAN OFFICIAL SUED


PCAC RAPS L. POLICARPIO ON FRAUDS
Unesco Official Head Accused on
Supplies, Funds Use by Colleague

By Constante C. Roldan

Lumen Policarpio, executive secretary of the Unesco national commission here, was charged with malversation and estafa in complaints filed with
the city fiscal's office by the Presidential Complaints and Action Commission today.

The criminal action was initiated as a result of current administrative investigation against the Unesco official being conducted by Col. Crisanto V.
Alba, Malacaan technical assistant, on charges filed by Herminia D. Reyes, a Unesco confidential assistant. The Unesco commission functions
under the Office of the President.

Fiscal Manases G. Reyes, to whom the cases were assigned, immediately scheduled preliminary investigation of the charges on August 22 at 2 p.m.
Colonel Alba, in turn, indicated that the administrative phase of the inquiry will continue Monday and then resume on August 21 at Malacaan Park.
The Palace Investigator said there are other charges, but would not specify these.

Alba said Miss Reyes had testified on circumstances supposedly substantiating the malversation charge. Testimony had allegedly indicated that the
accused had used Unesco stencils for private and personal purposes. Specification reputedly said that Miss Policarpio had taken stencils from the
Unesco storeroom and used these for French lessons not at all connected with Unesco work; for the preparation of contracts of sale of pianos in her
business establishment; for preparation of invitations sent to members of the League of Women Voters of which she is one of the officers.

Cited as witnesses on this charge are Miss Reyes, Francisco Manalo of Barrio Salabat, Taal, Batangas, Federico Vergara and Pablo Armesto both of
the Unesco.1wph1.t

Regarding the charge of estafa through falsification of public documents allegedly also committed sometime in 1955, Miss Policarpio was accused of
having collected expenses for supposed trips. The accusation said the Unesco official had sought reimbursement of expenses for a trip to Baler,
Quezon, on Aug. 19, last year, representing expenses of her car when in fact she supposedly rode in an army plane.

Testimony indicated that a newspaper woman who was a supposed co-passenger had even written about the plane trip in her newspaper column. The
same voucher also allegedly collected expenses for going to a Unesco Bayambang (Pangasinan) project, although records reputedly showed that she
was absent in that conferences.

Witnesses cited on the charge include Aurelio Savalbaro, a Philippine Air Force pilot, Lt. Clemente Antonio and others, also of the PAF.
Miss Policarpio becomes the second high-ranking woman government official to face charges involving financial disbursements in their office. The
first was Sen. Pacita M. Gonzales who is still under charge mis-spending funds of the Social Welfare Administration and the UNAC while she had
charge of these.

The complainant, Miss Reyes, was earlier ordered relieved from her Unesco post by Miss Policarpio on charges including conduct "unbecoming a
lady", and as a result had not been paid her salary. She appealed to Malacaan which dismissed her suit and later she sued before Judge Rafael
Amparo to compel payment of her salary. The court also rejected her plea on the ground that she had not exhausted all administrative remedies, the
Palace not having made a clearcut decision on her case.

The Daily Mirror of August 13, 1956, likewise, carried on its first page with a picture of plaintiff and of Miss Reyes, taken during the
administrative investigation being conducted by Col. Alba another news item, reading:

"PALACE OPENS INVESTIGATION OF RAPS AGAINST POLICARPIO


Alba Probes Administrative Phase of
Fraud Charges Against Unesco Woman
Official; Fiscal Sets Prelim Quiz
Of Criminal Suit on Aug. 22.

The administrative phase of two-pronged investigation Miss Lumen Policarpio, head of the Unesco national commission here, opened in Malacaan
before Col. Crisanto V. Alba.

The judicial inquiry of charges filed by Herminia D. Reyes, also the complainant in the Malacaan case before the Presidential Complaints and
Action Commission, will be conducted by Fiscal Manases G. Reyes on Aug. 22 at 2 p.m.

Miss Policarpio stands accused by Reyes of having malversed public property and of having fraudulently sought reimbursement of supposed official
expenses.

Colonel Alba, at the start of his investigation at the Malacaan Park, clarified that neither he nor the PCAC had initiated the criminal action before
the city fiscal's office. The complaint before the fiscal was started by an information she naming Herminia D. Reyes as complainant and citing other
persons as witnesses. Fiscal Reyes set preliminary investigation of these charges for Aug. 22.

Miss Reyes, technical assistant of the Unesco, stated at the Palace inquiry that during 1955 Miss Policarpio allegedly used several sheets of
government stencils for her private and personal use, such as for French lessons, contracts of sale of pianos and for invitations of the League of
Women Voters of which she (Miss Policarpio) is an officer. The Unesco commission here functions under the Office of the President.

The charge was filed with the PCAC, and the PCAC endorsed it to Colonel Alba for investigation.

Miss Policarpio this morning was not represented by an lawyer. Federico Diaz, lawyer representing complainant Miss Reyes, petitioned for the
suspension of Miss Policarpio, executive secretary of the Unesco.

Alba did not act immediately on the petition. He said he was holding a hearing on the petition on August 15.

During this morning's investigation three witness appeared. The first witness was Atty. Antonio Lopez of the PCAC who brought with him 18 sheets
of stencil which were allegedly used by Miss Policarpio for her personal use. These sheets were admitted as temporary exhibits.

The second witness was Federico Vergara of the Unesco who said that he received four of the 18 sheets, but he could not identify which of the sheets
he had received.

The third witness was Francisco Manalo who certified on the charge of oppression in office against Miss Policarpio.

The other charge of Miss Reyes corresponded to supposed reimbursements sought by Miss Policarpio for a trip to Quezon Province and to
Pangasinan. On the first, Miss Reyes' complaint alleged the Unesco official had asked for refund of expenses for use of her car when, Miss Reyes
claimed she had actually made the trip aboard an army plane.

Miss Reyes also said Miss Policarpio was absent from the Bayambang conference for which she also sought allegedly refund of expenses.

The complainant had previously been ordered relieved of her Unesco post by Miss Policarpio and had later sued at the Palace and before the Court
for payment of her salary.

The title of the article of August 11, 1956 "WOMAN OFFICIAL SUED" was given prominence with a 6-column (about 11 inches) banner
headline of one-inch types. Admittedly, its sub-title "PCAC RAPS L. POLICARPIO PIO ON FRAUD" printed in bold one-centimeter types, is
not true. Similarly, the statement in the first paragraph of the article, to the effect that plaintiff "was charged with malversation and estafa in
complaints filed with the city fiscal's office by the Presidential Complaint and Action Commission" otherwise known as PCAC is untrue, the
complaints for said offenses having been filed by Miss Reyes. Neither is it true that said "criminal action was initiatedas a result of current
administrative, investigation", as stated in the second paragraph of the same article.

Plaintiff maintains that the effect of these false statements was to give the general impression that said investigation by Col. Alba had shown that
plaintiff was guilty, or, at least, probably guilty of the crimes aforementioned, and that, as a consequence, the PCAC had filed the corresponding
complaints with the city fiscal's office. She alleges, also, that although said article indicates that the charges for malversation and for estafa through
falsification against her referred, respectively, to the use by her of Unesco stencils allegedly for private and personal purposes, and to the collection
of transportation expenses, it did not mention the fact that the number of stencils involved in the charge was only 18 or 20, that the sum allegedly
misappropriated by her was only P54, and that the falsification imputed to her was said to have been committed by claiming that certain expenses for
which she had sought and secured reimbursement were incurred in trips during the period from July 1, 1955 to September 30, 1955, although the
trips actually were made, according to Miss Reyes, from July 8 to August 31, 1955. By omitting these details, plaintiff avers, the article of August 11,
1956, had the effect of conveying the idea that the offenses imputed to her were more serious than they really were. Plaintiff, likewise, claims that
there are other inaccuracies in the news item of August 13, 1956, but, we do not deem it necessary to dwell upon the same for the determination of
this case.

Upon the other hand, defendants contend that, although the complaints in the city fiscal's office were filed, not by the PCAC, but by Miss Reyes, this
inaccuracy is insignificant and immaterial to the case, for the fact is that said complaints were filed with said office. As regards the number of sheets
of stencil allegedly misused and the amount said to have been misappropriated by plaintiff, as well as the nature of the falsification imputed to her,
defendants argue that these "details" do not affect the truthfulness of the article as a whole, and that, in any event, the insignificant value of said
sheets of stencil and the small amount allegedly misappropriated, would have had, if set forth in said article, a greater derogatory effect upon the
plaintiff, aside from the circumstance that defendants had no means of knowing such "details". It appears, however, that prior to August 11, 1956,
Col. Alba had already taken the testimony of Antonio P. Lopez, Francisco Manalo and Federico Vergara, as witnesses for Miss Reyes. Hence,
defendants could have ascertained the "details" aforementioned, had they wanted to. Indeed, some of the defendants and/or their representatives had
made appropriate inquiries from Col. Alba before said date, and some "details" though not those adverted to above appear in the article then
published, whereas the number of sheets of stencil allegedly misused was mentioned in the news item of August 13, 1956.

Moreover, the penalty prescribed by law for the crime either of estafa or of embezzlement depends partly upon the amount of the damage caused to
the offended party (Articles 315 to 318, Revised Penal Code). Hence, the amount or value of the property embezzled is material to said offense.

Again, it is obvious that the filing of criminal complaints with the city fiscal's office by another agency of the Government, like the PCAC,
particularly after an investigation conducted by the same, imparts the ideal that the probability of guilty on the part of the accused is greater than
when the complaints are filed by a private individual, specially when the latter is a former subordinate of the alleged offender, who was responsible
for the dismissal of the complainant from her employment. It is only too apparent that the article published on August 11, 1956, presented the
plaintiff in a more unfavorable light than she actually was.

It goes without saying that newspapers must enjoy a certain degree of discretion in determining the manner in which a given event should be
presented to the public, and the importance to be attached thereto, as a news item, and that its presentation in a sensational manner is not per se
illegal. Newspaper may publish news items relative to judicial, legislative or other official proceedings, which are not of confidential nature, because
the public is entitled to know the truth with respect to such proceedings, which, being official and non-confidential, are open to public consumption.
But, to enjoy immunity, a publication containing derogatory information must be not only true, but, also, fair, and it must be made in good faith and
without any comments or remarks.

Defendants maintain that their alleged malice in publishing the news items in question had not been established by the plaintiff. However, Article 354
of the Revised Penal Code, provides:

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 other functions.

In the case at bar, aside from containing information derogatory to the plaintiff, the article published on August 11, 1956, presented her in a worse
predicament than that in which she, in fact, was. In other words, said article was not a fair and true report of the proceedings there in alluded to. What
is more, its sub-title "PCAC RAPS L. POLICARPIO ON FRAUD" is a comment or remark, besides being false. Accordingly, the defamatory
imputations contained in said article are "presumed to be malicious".

Then too, how could defendants claim to have acted with good intentions or justifiable motive in falsely stating that the complaints had been filed
with the Office of the City Fiscal by the PCAC as a result of the administrative investigation of Col. Alba? Either they knew the truth about it or they
did not know it. If they did, then the publication would be actually malicious. If they did not or if they acted under a misapprehension of the facts,
they were guilty of negligence in making said statement, for the consequences of which they are liable solidarily (Articles 2176, 2194, 2208 and 2219
[I], Civil Code of the Philippines; 17 R.C.L. sec. 95, p. 349).

We note that the news item published on August 13, 1956, rectified a major inaccuracy contained in the first article, by stating that neither Col. Alba
nor the PCAC had filed the aforementioned complaints with the city fiscal's office. It, likewise, indicated the number of sheets of stencil involved in
said complaints. But, this rectification or clarification does not wipe out the responsibility arising from the publication of the first article, although it
may and should mitigate it (Jimenez vs. Reyes, 27 Phil. 52). For this reason, we feel that the interest of justice and of all parties concerned would be
served if the defendants indemnify the plaintiff in the sums of P3,000, by way of moral damages, and P2,000, as attorney's fees.

WHEREFORE, the decision appealed from is hereby reversed and another one shall be entered sentencing the defendants herein to pay jointly and
severally to the plaintiff the aforementioned sums of P3,000, as moral damages, and P2,000, by way of attorney's fees, in addition to the costs. It is so
ordered.

Padilla, Bautista Angelo, Reyes, J.B.L., Barrera, Paredes and Dizon, JJ., concur.
Bengzon, C.J., is on leave.
[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.

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.:

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 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.
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 moneymaking
gimmick.

19 June 1989
x x x 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
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, thats 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 mans dubious deals. His notoriety, according to reliable sources, has reached the Premier Guest House where his name is
spoken like dung.

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

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 'organizers' 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

The 'organizers' principal gamely went along, 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

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

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

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
Borjals columns.[4] In a subsequent letter to The Philippine Star, private respondent refuted the matters contained in petitioner Borjals 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]

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 attorneys 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 attorneys 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 dealswho
has a lot of trash tucked inside his closet," "thick face," and "a person with dubious ways;" that petitioners 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
pretentions 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 courts 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 courts 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 the FNCLT who were present at its
inception, and who had pledged their assistance to it.
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 x x x[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 x x x 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 Borjals 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 neitherprivate 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 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 effloresence 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 -

x x x x 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 offical" 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.
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 -

x x x x 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 publics 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.
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 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 x x x 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 counsels fees be awarded every time a party wins a suit.[51]
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 asubject 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.
SO ORDERED.
[G.R. No. 113216. September 5, 1997]

RHODORA M. LEDESMA, petitioner, vs. COURT OF APPEALS and HON. MAXIMIANO C. ASUNCION, in his capacity as Presiding
Judge of RTC, Quezon City, respondents.

DECISION
PANGANIBAN, J.:

When confronted with a motion to withdraw an information on the ground of lack of probable cause based on a resolution of the secretary of
justice, the bounden duty of the trial court is to make an independent assessment of the merits of such motion. Having acquired jurisdiction over the
case, the trial court is not bound by such resolution but is required to evaluate it before proceeding further with the trial. While the secretarys ruling is
persuasive, it is not binding on courts. A trial court, however, commits reversible error or even grave abuse of discretion if it refuses/neglects to
evaluate such recommendation and simply insists on proceeding with the trial on the mere pretext of having already acquired jurisdiction over the
criminal action.
This principle is explained in this Decision resolving a petition for review on certiorari of the Decision[1] of the Court of
Appeals,[2] promulgated on September 14, 1993 in CA-G.R. SP No. 30832 which in effect affirmed an order of the Regional Trial Court of Quezon
City denying the prosecutions withdrawal of a criminal information against petitioner.

The Antecedent Facts

From the pleadings submitted in this case, the undisputed facts are as follows:

Sometime in April 1992, a complaint for libel was filed by Dr. Juan F. Torres, Jr. against Dr. Rhodora M. Ledesma, petitioner herein, before the
Quezon City Prosecutors Office, docketed as I.S. No. 92-5433A. Petitioner filed her counter-affidavit to the complaint.

Finding sufficient legal and factual basis, the Quezon City Prosecutors Office filed on July 6, 1992 an Information for libel against petitioner with the
Regional Trial Court of Quezon City, Branch 104.[3] The Information filed by Assistant City Prosecutor Augustine A. Vestil reads: [4]

That on or about the 27th day of June 1991, in Quezon City, Metro Manila, Philippines, the said accused, acting with malice, did, then and there,
wilfully, unlawfully and feloniously send a letter addressed to Dr. Esperanza I. Cabral, Director of Philippine Heart Center, East Avenue, this city,
and furnished the same to other officers of the said hospital, said letter containing slanderous and defamatory remarks against DR. JUAN F.
TORRES, JR., which states in part, to wit:

27June 1991

Dr. Esperanza I. Cabral

Director

Subject: Return of all professional fees due Dr. Rhodora M. Ledesma, Nuclear Medicine Specialist/Consultant, Philippine Heart Center, from
January 31, 1989 to January 31, 1991.

Respondents: Dr. Juan F. Torres, Jr., Chief, Nuclear Medicine Section

Dr. Orestes P. Monzon,

Staff Consultant

Dear Dr. Cabral,

This is to demand the return of all professional fees due me as a consultant in Nuclear Medicine, this Center, since January 31, 1989 until my
resignation effective January 31, 1991, amounting to at least P100,000.00 for the year 1990 alone. Records in the Nuclear Medicine Section will
show that from January 1989 to January 1991, a total of 2,308 patients were seen. Of these, I had officially supervised, processed, and interpreted
approximately a total of 1,551 cases as against approximately 684 and 73 cases done by Dr. Monzon and Dr. Torres respectively.

Until my resignation I had received a monthly share of professional fees averaging P1,116.90/month supposedly representing 20% of the total
monthly professional fees. The rest were divided equally between Dr. Monzon and Dr. Torres. There was never any agreement between us three
consultants that this should be the arrangement and I am certain that this was not with your approval. The burden of unfairness would have been
lesser if there was an equal distribution of labor and the schedule of duties were strictly followed. As it was, the schedule of duties submitted monthly
to the office of the Asst. Director for Medical Services was simply a dummy to comply with administrative requirements rather than a guideline for
strict compliance. Both consultants have complete daily time records even if they did not come regularly. Dr. Torres came for an hour every week,
Dr. Monzon came sporadically during the week while I was left with everything from training the residents and supervising the Techs to processing
and interpreting the results on a regular basis. I had a part time appointment just like Dr. Monzon and Dr. Torres.

In the interest of fairness and to set a precedent for the protection of future PHC Nuclear Medicine Alumni I am calling your attention to the unfair
and inhuman conditions I went through as a Consultant in that Section. I trust that your sense of professionalism will put a stop to this corruption.
I suggest that a committee be formed to make an audit of the distribution of professional fees in this Section. At this point, let me stress that since
professional fees vary according to the type of procedure done and since there was no equity of labor between us I am not settling for an equal
percentage share. I demand that I be indemnified of all professional fees due me on a case to case basis.

Let me make clear my intention of pursuing this matter legally should there be no favorable action in my behalf. Let me state at this point6 that the
actions of Dr. Torres and Dr. Monzon are both unprofessional and unbecoming and are clearly violating the code of ethics of the medical profession
and the Philippine Civil Service Rules and Regulations related to graft and corruption.

Thank you.

and other words of similar import, when in truth and in fact, as the accused very well knew, the same are entirely false and untrue but were publicly
made for no other purpose than to expose said DR. JUAN F. TORRES, JR. to public ridicule, thereby casting dishonor, discredit and contempt upon
the person of the said offended party, to his damage and prejudice.

A petition for review of the resolution of Assistant City Prosecutor Vestil was filed by petitioner before the Department of Justice pursuant to
P.D. No. 77 as amended by P.D. No. 911.
The Department of Justice gave due course to the petition and directed the Quezon City prosecutor to move for deferment of further
proceedings and to elevate the entire records of the case.[5] Accordingly, a Motion to Defer Arraignment dated September 7, 1992 was filed by
Prosecutor Tirso M. Gavero before the court a quo.[6] On September 9, 1992, the trial court granted the motion and deferred petitioners arraignment
until the final termination of the petition for review. [7]
Without the consent or approval of the trial prosecutor, private complainant, through counsel, filed a Motion to Lift the Order dated September
9, 1992 and to Set the Case for Arraignment/Trial.[8]
On January 8, 1993, the trial court issued an Order setting aside its earlier Order of September 9, 1992 and scheduling petitioners arraignment
on January 18, 1993 at two oclock in the afternoon. [9]
In a resolution dated January 27, 1993, then Justice Secretary Franklin M. Drilon reversed the Quezon City investigating prosecutor. Pertinent
portions of Drilons ruling read:[10]

From the circumstances obtaining, the subject letter was written to bring to the attention of the Director of the Philippine Heart Center for Asia and
other responsible authorities the unjust and unfair treatment that Dr. Ledesma was getting from complainants. Since complainants and respondent are
government employees, and the subject letter is a complaint to higher authorities of the PHCA on a subject matter in which respondent has an interest
and in reference to which she has a duty to question the same is definitely privileged (US vs. Bustos, 37 Phil. 131). Moreover, in Ang vs. Castro, 136
SCRA 455, the Supreme Court, citing Santiago vs. Calvo, 48 Phil. 922, ruled that A communication made in good faith upon any subject matter in
which the party making the communication has an interest or concerning which he has a duty is privileged... although it contains incriminatory or
derogatory matter which, without the privilege, would be libelous and actionable.

The follow-up letter sent by respondent to the director of the PHCA, is a direct evidence of respondents righteous disposition of following the rule of
law and is a clear indication that her purpose was to seek relief from the proper higher authority who is the Director of PHCA.

The same interpretation should be accorded the civil and administrative complaints which respondent filed against complainants. They are mere
manifestations of her earnest desire to pursue proper relief for the alleged injustice she got from complainants. If she was motivated by malice and ill-
will in sending the subject communication to the Director of the PHCA, she would not have sent the second letter and filed the administrative and
civil cases against complainants.

Moreover, it is unbelievable that it took complainants one year to realize that the questioned letter subjected them to public and malicious imputation
of a vice or omission. It is beyond the ordinary course of human conduct for complainants to start feeling the effects of the alleged libelous letter -
that of experiencing sleepless nights, wounded feelings, serious anxiety, moral shock and besmirched reputation - one year after they read the
communication in question.

The claim that the case of Crespo vs. Mogul, 151 SCRA 462 is applicable to the instant case is unfounded. In the first place, the instant cases are not
being reinvestigated. It is the resolutions of the investigating prosecutor that are under review. Further, the record shows that the court has issued an
order suspending the proceedings pending the resolutions of the petitions for review by this Office. In the issuance of its order, the court recognizes
that the Secretary of Justice has the power and authority to review the resolutions of prosecutors who are under his control and supervision.

In view of the foregoing, the appealed resolutions are hereby reversed. You are directed to withdraw the Informations which you filed in
Court. Inform this Office of the action taken within ten (10) days from receipt hereof.

In obedience to the above directive, Quezon City Trial Prosecutor Tirso M. Gavero filed a Motion to Withdraw Information dated February
17,1993,[11] attaching thereto the resolution of Secretary Drilon. The trial judge denied this motion in his Order dated February 22, 1993, as
follows:[12]

The motion of the trial prosecutor to withdraw the information in the above-entitled case is denied. Instead, the trial prosecutor of this court is hereby
directed to prosecute the case following the guidelines and doctrine laid down by the Supreme Court in the case of Crespo vs. Mogul, 151 SCRA
462.

Petitioners motion for reconsideration[13] was denied by the trial judge in the Order dated March 5, 1993, as follows:[14]

Finding no cogent reason to justify the reconsideration of the ruling of this Court dated February 22, 1993, the Motion for Reconsideration dated
March 1, 1993 filed by the accused through counsel is hereby denied.

Aggrieved, petitioner filed a petition for certiorari and prohibition with the Supreme Court. In a Resolution dated March 31, 1993, this Court
referred the case to the Court of Appeals for proper determination and disposition pursuant to Section 9, paragraph 1 of B.P. 129. [15]
Respondent Court dismissed the petition for lack of merit, holding that it had no jurisdiction to overturn the doctrine laid down in Crespo
vs. Mogul -- once a complaint or information has been filed in court, any disposition of the case, i.e., dismissal, conviction or acquittal of the accused,
rests on the sound discretion of the trial court.[16]
Hence, this recourse to this Court.

The Issues

For unexplained reasons, petitioner failed to make an assignment of errors against the appellate court. Her counsel merely repeated the alleged
errors of the trial court: [17]

I. The Orders, dated February 22, 1993 and March 5, 1993, of respondent Judge Asuncion relied solely on the Crespo vs. Mogul (151 SCRA 462)
decision. It is respectfully submitted that said case is not applicable because:

1. It infringes on the constitutional separation of powers between the executive and judicial branches of the government;

2. It constitutes or it may lead to misuse or misapplication of judicial power as defined in the Constitution;

3. It goes against the constitutional proscription that rules of procedure should not diminish substantive rights;

4. It goes against the principle of non-delegation of powers;

5. It sets aside or disregards substantive and procedural rules;

6. It deprives a person of his constitutional right to procedural due process;

7. Its application may constitute or lead to denial of equal protection of laws;

8. It deprives the secretary of justice or the president of the power to control or review the acts of a subordinate official;

9. It will lead to, encourage, abet or promote abuse or even corruption among the ranks of investigating fiscals;

10. It does not subserve the purposes of a preliminary investigation because -

(10.a) It subjects a person to the burdens of an unnecessary trial, specially in cases where the investigating fiscal recommends no bail for the accused;

(10.b) It subjects the government, both the executive and the judiciary, to unnecessary time and expenses attendant to an unnecessary trial;

(10.c) It contributes to the clogging of judicial dockets; and

11. It has no statutory or procedural basis or precedent.

II. On the assumption that Crespo vs. Mogul is applicable, it is submitted that -

1. Respondent Judge Asuncion committed grave abuse of discretion, amounting to lack of jurisdiction, when he denied the Motion to Withdraw
Information since he had already deferred to, if not recognized, the authority of the Secretary of Justice; and

2. The facts in Crespo vs. Mogul are different from the instant case. Hence, respondent Judge Asuncion committed grave abuse of discretion,
amounting to lack of jurisdiction, when he relied solely on said case in denying the Motion to Withdraw Information.

In sum, the main issue in this petition is: Did Respondent Court commit any reversible error in affirming the trial courts denial of the
prosecutions Motion to Withdraw Information?

The Courts Ruling

The petition is impressed with merit. We answer the above question in the affirmative.

Preliminary Matter

Before discussing the substance of this case, the Court will preliminarily address a procedural matter. Prior to the effectivity of the 1997 Rules
of Civil Procedure on July 1, 1997, Section 2 of Rule 45, which governed appeals from the Court of Appeals to the Supreme Court, provided:

SEC. 2. Contents of petition.The petition shall contain a concise statement of x x x the assignment of errors made in the court below x x x.

A petition for review on certiorari under Rule 45 requires a concise statement of the errors committed by the Court of Appeals, not of the trial
court. For failure to follow this Rule, the petition could have been dismissed by this Court motu proprio, considering that under Section 4 of the same
Rule, review is not a matter of right but of sound discretion.
We take this occasion to stress the need for precision and clarity in the assignment of errors. Review under this rule is unlike an appeal in a
criminal case where the death penalty, reclusin perpetua or life imprisonment is imposed and where the whole case is opened for review. Under Rule
45, only the issues raised therein by the petitioner will be passed upon by the Court, such that an erroneous specification of the issues may cause the
dismissal of the petition. We stressed this in Circular No. 2-90, entitled Guidelines to be Observed in Appeals to the Court of Appeals and to the
Supreme Court, as follows:

4. Erroneous Appeals. x x x x

e) Duty of counsel.It is therefore incumbent upon every attorney who would seek review of a judgment or order promulgated against his client to
make sure of the nature of the errors he proposes to assign, whether these be of fact or of law; then upon such basis to ascertain carefully which Court
has appellate jurisdiction; and finally, to follow scrupulously the requisites for appeal prescribed by law, ever aware that any error or imprecision in
compliance may well be fatal to his clients cause.

FOR STRICT COMPLIANCE.

Be that as it may, the Court noting the importance of the substantial matters raised decided to overlook petitioners lapse and granted due course
to the petition per Resolution dated July 15, 1996, with a warning that henceforth petitions which fail to specify an assignment of errors of the proper
lower court may be denied due course motu proprio by this Court.

Determination of Probable Cause Is an Executive Function

The determination of probable cause during a preliminary investigation is judicially recognized as an executive function and is made by the
prosecutor. The primary objective of a preliminary investigation is to free a respondent from the inconvenience, expense, ignominy and stress of
defending himself/herself in the course of a formal trial, until the reasonable probability of his or her guilt has been passed upon in a more or less
summary proceeding by a competent officer designated by law for that purpose.Secondarily, such summary proceeding also protects the state from
the burden of unnecessary expense and effort in prosecuting alleged offenses and in holding trials arising from false, frivolous or groundless
charges.[18]
Such investigation is not a part of the trial. A full and exhaustive presentation of the parties evidence is not required, but only such as may
engender a well-grounded belief that an offense has been committed and that the accused is probably guilty thereof. [19] By reason of the abbreviated
nature of preliminary investigations, a dismissal of the charges as a result thereof is not equivalent to a judicial pronouncement of acquittal. Hence,
no double jeopardy attaches.
In declaring this function to be lodged in the prosecutor, the Court distinguished the determination of probable cause for the issuance of a
warrant of arrest or a search warrant from a preliminary investigation proper in this wise:[20]

xxx Judges and prosecutors alike should distinguish the preliminary inquiry which determines probable cause for the issuance of a warrant of arrest
from a preliminary investigation proper which ascertains whether the offender should be held for trial or released. xxx The determination of probable
cause for the warrant of arrest is made by the Judge. The preliminary investigation proper--whether xxx there is reasonable ground to believe that the
accused is guilty of the offense charged and, therefore, whether xxx he should be subjected to the expense, rigors and embarrassment of trial--is the
function of the prosecutor.

We reiterate that preliminary investigation should be distinguished as to whether it is an investigation for the determination of a sufficient ground for
the filing of the information or it is an investigation for the determination of a probable cause for the issuance of a warrant of arrest. The first kind of
preliminary investigation is executive in nature. It is part of the prosecutors job.The second kind of preliminary investigation which is more properly
called preliminary examination is judicial in nature and is lodged with the judge.

Sound policy supports this distinction. Otherwise, judges would be unduly laden with the preliminary examination and investigation of
criminal complaints instead of concentrating on hearing and deciding cases filed before their courts. The Separate Opinion of Mr. Chief Justice
Andres R. Narvasa in Roberts, Jr. vs. Court of Appealsstressed that the determination of the existence of probable cause properly pertains to the
public prosecutor in the established scheme of things, and that the proceedings therein are essentially preliminary, prefatory and cannot lead to a
final, definite and authoritative judgment of the guilt or innocence of the persons charged with a felony or a crime. [21]
In Crespo vs. Mogul,[22] the Court emphasized the cardinal principle that the public prosecutor controls and directs the prosecution of criminal
offenses thus:

It is a cardinal principle that all criminal actions either commenced by complaint or by information shall be prosecuted under the direction and
control of the fiscal. The institution of a criminal action depends upon the sound discretion of the fiscal. He may or may not file the complaint or
information, follow or not follow that presented by the offended party, according to whether the evidence in his opinion, is sufficient or not to
establish the guilt of the accused beyond reasonable doubt. The reason for placing the criminal prosecution under the direction and control of the
fiscal is to prevent malicious or unfounded prosecution by private persons. It cannot be controlled by the complainant. Prosecuting officers under the
power vested in them by law, not only have the authority but also the duty of prosecuting persons who, according to the evidence received from the
complainant, are shown to be guilty of a crime committed within the jurisdiction of their office. They have equally the legal duty not to prosecute
when after an investigation they become convinced that the evidence adduced is not sufficient to establish a prima facie case.

In the same case, the Court added that where there is a clash of views between a judge who did not investigate and a fiscal who conducted a
reinvestigation, those of the prosecutor should normally prevail: [23]

x x x x The Courts cannot interfere with the fiscals discretion and control of the criminal prosecution. It is not prudent or even permissible for a Court
to compel the fiscal to prosecute a proceeding originally initiated by him on an information, if he finds that the evidence relied upon by him is
insufficient for conviction. Neither has the Court any power to order the fiscal to prosecute or file an information within a certain period of time,
since this would interfere with the fiscals discretion and control of criminal prosecutions. Thus, a fiscal who asks for the dismissal of the case for
insufficiency of evidence has authority to do so, and Courts that grant the same commit no error. The fiscal may re-investigate a case and
subsequently move for the dismissal should the re-investigation show either that the defendant is innocent or that his guilt may not be established
beyond reasonable doubt. In a clash of views between the judge who did not investigate and the fiscal who did, or between the fiscal and the offended
party or the defendant, those of the fiscals should normally prevail. x x x x.

Appeal as an Exercise of the Justice Secretarys Power of Control Over Prosecutors


Decisions or resolutions of prosecutors are subject to appeal to the secretary of justice who, under the Revised Administrative Code, exercises
the power of direct control and supervision over said prosecutors; and who may thus affirm, nullify, reverse or modify their rulings.
Section 39, Chapter 8, Book IV in relation to Section 5, 8, and 9, Chapter 2, Title III of the Code gives the secretary of justice supervision and
control over the Office of the Chief Prosecutor and the Provincial and City Prosecution Offices. The scope of his power of supervision and control is
delineated in Section 38, paragraph 1, Chapter 7, Book IV of the Code:

(1) Supervision and Control. Supervision and control shall include authority to act directly whenever a specific function is entrusted by law or
regulation to a subordinate; direct the performance of duty; restrain the commission of acts; review, approve, reverse or modify acts and decisions of
subordinate officials or units; xxxx.

Supplementing the aforequoted provisions are Section 3 of R.A. 3783 and Section 37 of Act 4007, which read:

Section 3. x x x x

The Chief State Prosecutor, the Assistant Chief State Prosecutors, the Senior State Prosecutors, and the State Prosecutors shall x x x perform such
other duties as may be assigned to them by the Secretary of Justice in the interest of public service.

xxx xxx xxx

Section 37. The provisions of the existing law to the contrary notwithstanding, whenever a specific power, authority, duty, function, or activity is
entrusted to a chief of bureau, office, division or service, the same shall be understood as also conferred upon the proper Department Head who shall
have authority to act directly in pursuance thereof, or to review, modify, or revoke any decision or action of said chief of bureau, office, division or
service.

Supervision and control of a department head over his subordinates have been defined in administrative law as follows:[24]

In administrative law supervision means overseeing or the power or authority of an officer to see that subordinate officers perform their duties. If the
latter fail or neglect to fulfill them, the former may take such action or step as prescribed by law to make them perform such duties. Control, on the
other hand, means the power of an officer to alter or modify or nullify or set aside what a subordinate officer had done in the performance of his
duties and to substitute the judgment of the former for that of the latter.

Review as an act of supervision and control by the justice secretary over the fiscals and prosecutors finds basis in the doctrine of exhaustion of
administrative remedies which holds that mistakes, abuses or negligence committed in the initial steps of an administrative activity or by an
administrative agency should be corrected by higher administrative authorities, and not directly by courts. As a rule, only after administrative
remedies are exhausted may judicial recourse be allowed.

Appeal to the Secretary of Justice Is Not Foreclosed by the Ruling in Crespo

In Marcelo vs. Court of Appeals,[25] the Court clarified that Crespo[26] did not foreclose the power or authority of the secretary of justice to
review resolutions of his subordinates in criminal cases. The Court recognized in Crespo that the action of the investigating fiscal or prosecutor in the
preliminary investigation is subject to the approval of the provincial or city fiscal or chief state prosecutor. Thereafter, it may be appealed to the
secretary of justice.
The justice secretarys power of review may still be availed of despite the filing of an information in court. In his discretion, the secretary may
affirm, modify or reverse resolutions of his subordinates pursuant to Republic Act No. 5180, as amended, [27] specifically in Section 1 (d):

(d) x x x Provided, finally, That where the resolution of the Provincial or City Fiscal or the Chief State Prosecutor is, upon review, reversed by the
Secretary of Justice, the latter may, where he finds that no prima facie case exists, authorize and direct the investigating fiscal concerned or any other
fiscal or state prosecutor to cause or move for the dismissal of the case, or, where he finds a prima facie case, to cause the filing of an information in
court against the respondent, based on the same sworn statements or evidence submitted without the necessity of conducting another preliminary
investigation.

Pursuant thereto, the Department of Justice promulgated Circular No. 7 dated January 25, 1990 governing appeals in preliminary
investigation. Appeals under Section 2 are limited to resolutions dismissing a criminal complaint. However, Section 4 provides an exception: appeals
from resolutions finding probable cause upon a showing of manifest error or grave abuse of discretion are allowed, provided the accused has not been
arraigned. In the present case, petitioners appeal to the secretary of justice was given due course on August 26, 1992 pursuant to this Circular.
On June 30, 1993, Circular No. 7 was superseded by Department Order No. 223; however, the scope of appealable cases remained unchanged:

SECTION 1. What May Be Appealed. -- Only resolutions of the Chief State Prosecutor/Regional State Prosecutor/Provincial or City Prosecutor
dismissing a criminal complaint may be the subject of an appeal to the Secretary of Justice except as otherwise provided in Section 4 hereof.

Appeals from the resolutions of provincial/city prosecutors where the penalty prescribed for the offense charged does not exceed prisin
correccional, regardless of the imposable fine, shall be made to the Regional State Prosecutors who shall resolve the appeals with finality, pursuant
to Department Order No. 318 dated August 28, 1991 as amended by D.O. No. 34 dated February 4, 1992, D.O. No. 223 dated August 11, 1992 and
D.O. No. 45 dated February 2, 1993. Such appeals shall also be governed by these rules.

SEC. 4. Non-Appealable Cases; Exceptions.--No appeal may be taken from a resolution of the Chief State Prosecutor/Regional State
Prosecutor/Provincial or City Prosecutor finding probable cause except upon showing of manifest error or grave abuse of discretion. Notwithstanding
the showing of manifest error or grave abuse of discretion, no appeal shall be entertained where the appellant had already been arraigned. If the
appellant (is) arraigned during the pendency of the appeal, x x x appeal shall be dismissed motu proprio by the Secretary of Justice.

An appeal/motion for reinvestigation from a resolution finding probable cause, however, shall not hold the filing of the information in court.
Apart from the foregoing statutory and administrative issuances, the power of review of the secretary of justice is recognized also by Section 4
of Rule 112 of the Rules of Court:

SEC. 4. Duty of investigating fiscal.--x x x x

xxx xxx xxx

If upon petition by a proper party, the Secretary of Justice reverses the resolution of the provincial or city fiscal or chief state prosecutor, he shall
direct the fiscal concerned to file the corresponding information without conducting another preliminary investigation or to dismiss or move for
dismissal of the complaint or information.

This appeal rests upon the sound discretion of the secretary of justice arising from his power of supervision and control over the prosecuting
arm of the government, not on a substantial right on the part of the accused as claimed by petitioner.

Appeal Did Not Divest the Trial Court of Jurisdiction

Where the secretary of justice exercises his power of review only after an information has been filed, trial courts should defer or suspend
arraignment and further proceedings until the appeal is resolved. Such deferment or suspension, however, does not signify that the trial court is ipso
facto bound by the resolution of the secretary of justice. Jurisdiction, once acquired by the trial court, is not lost despite a resolution by the secretary
of justice to withdraw the information or to dismiss the case.

Judicial Review of the Resolution of the Secretary of Justice

Judicial power is defined under the 1987 Constitution as the duty of courts to settle actual controversies involving rights which are legally
demandable and enforceable.Such power includes the determination of whether there has been a grave abuse of discretion amounting to lack or
excess of jurisdiction on the part of any branch or instrumentality of the government.[28] Under this definition, a court is without power to directly
decide matters over which full discretionary authority has been delegated to the legislative or executive branch of the government. It is not
empowered to substitute its judgment for that of Congress or of the President. It may, however, look into the question of whether such exercise has
been made in grave abuse of discretion.
Judicial review of the acts of other departments is not an assertion of superiority over them or a derogation of their functions. In the words of
Justice Laurel in Angara vs. Electoral Commission:[29]

x x x [W]hen the judiciary mediates to allocate constitutional boundaries, it does not in reality nullify or invalidate an act of the legislature, but only
asserts the solemn and sacred obligation assigned to it by the Constitution to determine conflicting claims of authority under the Constitution and to
establish for the parties in an actual controversy the rights which that instrument sources and guarantees to them. This is in truth all that is involved in
what is termed judicial supremacy which properly is the power of the judicial review under the Constitution. x x x.

It is not the purpose of this Court to decrease or limit the discretion of the secretary of justice to review the decisions of the government
prosecutors under him. In Crespo, the secretary was merely advised to restrict such review to exceptionally meritorious cases. Rule 112, Section 4 of
the Rules of Court, which recognizes such power, does not, however, allow the trial court to automatically dismiss the case or grant the withdrawal of
the information upon the resolution of the secretary of justice. This is precisely the import of Crespo, Marcelo, Martinez vs. Court of Appeals[30] and
the recent case of Roberts, Jr. vs. Court of Appeals, which all required the trial court to make its own evaluation of the merits of the case, because
granting the motion to dismiss or to withdraw the information is equivalent to effecting a disposition of the case itself.

The Marcelo and Martinez Cases Are Consistent

In Marcelo vs. Court of Appeals,[31] this Court ruled that, although it is more prudent to wait for a final resolution of a motion for review or
reinvestigation from the secretary of justice before acting on a motion to dismiss or a motion to withdraw an information, a trial court nonetheless
should make its own study and evaluation of said motion and not rely merely on the awaited action of the secretary. The trial court has the option to
grant or deny the motion to dismiss the case filed by the fiscal, whether before or after the arraignment of the accused, and whether after a
reinvestigation or upon instructions of the secretary who reviewed the records of the investigation; provided that such grant or denial is made from its
own assessment and evaluation of the merits of the motion.
In Martinez vs. Court of Appeals,[32] this Court overruled the grant of the motion to dismiss filed by the prosecuting fiscal upon the
recommendation of the secretary of justice because such grant was based upon considerations other than the judges own assessment of the
matter. Relying solely on the conclusion of the prosecution to the effect that there was no sufficient evidence against the accused to sustain the
allegation in the information, the trial judge did not perform his function of making an independent evaluation or assessment of the merits of the case.
Despite the pronouncement in Marcelo that a final resolution of the appeal to the Department of Justice is necessary, both decisions followed
the rule in Crespo vs. Mogul:Once a complaint or information is filed in court, any disposition of the case such as its dismissal or its continuation
rests on the sound discretion of the court. Trial judges are thus required to make their own assessment of whether the secretary of justice committed
grave abuse of discretion in granting or denying the appeal, separately and independently of the prosecutions or the secretarys evaluation that such
evidence is insufficient or that no probable cause to hold the accused for trial exists. They should embody such assessment in their written order
disposing of the motion.
The above-mentioned cases depict two extreme cases in complying with this rule. In Marcelo, the dismissal of the criminal action upon the
favorable recommendation of the Review Committee, Office of the City Prosecutor, was precipitate in view of the pendency of private complainants
appeal to the secretary of justice. In effect, the secretarys opinion was totally disregarded by the trial court. In contrast, in Martinez the dismissal of
the criminal action was an erroneous exercise of judicial discretion as the trial court relied hook, line and sinker on the resolution of the secretary,
without making its own independent determination of the merits of the said resolution.
No Grave Abuse of Discretion in theResolution of the Secretary of Justice

In the light of recent holdings in Marcelo and Martinez; and considering that the issue of the correctness of the justice secretarys resolution has
been amply threshed out in petitioners letter, the information, the resolution of the secretary of justice, the motion to dismiss, and even the exhaustive
discussion in the motion for reconsideration all of which were submitted to the court -- the trial judge committed grave abuse of discretion when it
denied the motion to withdraw the information, based solely on his bare and ambiguous reliance on Crespo. The trial courts order is inconsistent with
our repetitive calls for an independent and competent assessment of the issue(s) presented in the motion to dismiss. The trial judge was tasked to
evaluate the secretarys recommendation finding the absence of probable cause to hold petitioner criminally liable for libel. He failed to do so. He
merely ruled to proceed with the trial without stating his reasons for disregarding the secretarys recommendation.
Had he complied with his judicial obligation, he would have discovered that there was, in fact, sufficient ground to grant the motion to
withdraw the information. The documents before the trial court judge clearly showed that there was no probable cause to warrant a criminal
prosecution for libel.
Under the established scheme of things in criminal prosecutions, this Court would normally remand the case to the trial judge for his or her
independent assessment of the motion to withdraw the information. However, in order not to delay the disposition of this case and to afford the
parties complete relief, we have decided to make directly the independent assessment the trial court should have done. The petitioner has attached as
annexes to the present petition for review the information, which contains a complete and faithful reproduction of the subject letter, the resolution of
the secretary of justice, the prosecutions motion for reconsideration of the trial courts Order of February 22, 1993, and even the private complainants
opposition to said motion. The records below have been reproduced and submitted to this Court for its appreciation. Thus, a remand to the trial court
serves no purpose and will only clog the dockets.
We thus proceed to examine the substance of the resolution of the secretary of justice. The secretary reversed the finding of probable cause on
the grounds that (1) the subject letter was privileged in nature and (2) the complaint was merely a countercharge.
In every case for libel, the following requisites must concur:

(a) it must be defamatory;

(b) it must be malicious;

(c) it must be given publicity; and

(d) the victim must be identifiable.

At the preliminary investigation stage, these requisites must show prima facie a well-founded belief that a crime has been committed and that
the accused probably committed it. A cursory reading of the information immediately demonstrates a failure on the part of the complainant to
establish the foregoing elements of libel.
Every defamatory imputation, even if true, is presumed malicious, if no good intention or justifiable motive for making it is shown. There is
malice when the author of the imputation is prompted by personal ill will or spite and speaks not in response to duty but merely to injure the
reputation of the person who claims to have been defamed. [33] In this case however, petitioners letter was written to seek redress of proper grievance
against the inaccurate distribution and payment of professional fees and against unfair treatment in the Nuclear Medicine Department of the
Philippine Heart Center. It is a qualified privileged communication under Article 354(1) of the Revised Penal Code which provides:

ART. 354. Requirement of publicity. -- Every defamatory imputation is presumed to be malicious, even if it be true, if no good intention and
justifiable motive for making it is shown, except in the following cases:

1. A private communication made by any person to another in the performance of any legal, moral or social duty; and

xxx xxx xxx


The rule on privileged communication is that a communication made in good faith on any subject matter in which the communicator has an
interest, or concerning which he has a duty, is privileged if made to a person having a corresponding interest or duty, although it contains
incriminatory matter which, without the privilege, would be libelous and actionable. Petitioners letter was a private communication made in the
performance of a moral duty on her part. Her intention was not to inflict an unjustifiable harm on the private complainant, but to present her
grievance to her superior. The privileged nature of her letter overcomes the presumption of malice. There is no malice when justifiable motive exists;
and in the absence of malice, there is no libel. We note that the information itself failed to allege the existence of malice.
Thus, we agree with the ruling of the secretary of justice:[34]

x x x (T)he subject letter was written to bring to the attention of the Director of the Philippine Heart Center for Asia and other responsible authorities
the unjust and unfair treatment that Dr. Ledesma was getting from government employees, and the subject letter is a complaint x x x on a subject
matter in which respondent has an interest and in reference to which she has a duty to question the same is definitely privileged (US vs. Bustos, 37
Phil. 131). Moreover, in Ang vs. Castro, 136 SCRA 455, the Supreme Court, citing Santiago vs. Calvo, 48 Phil. 922, ruled that a communication
made in good faith upon any subject matter in which the party making the communication has an interest or concerning which he has a duty is
privileged although it contains incriminatory or derogatory matter which, without the privilege, would be libelous and actionable.

The follow-up letter sent by respondent to the director of the PHCA, is a direct evidence of respondents righteous disposition of following the rule of
law and is a clear indication that her purpose was to seek relief from the proper higher authority xxx.

The same interpretation should be accorded the civil and administrative complaints which respondent filed against complainants. They are mere
manifestations of her earnest desire to pursue proper relief for the alleged injustice she got from complainants. If she was motivated by malice and ill-
will in sending the subject communication to the Director of the PHCA, she would not have sent the second letter and filed the administrative and
civil cases against complainants.

In Alonzo, the settled rule is that, when a public officer, in the discharge of his or her official duties, sends a communication to another officer
or to a body of officers, who have a duty to perform with respect to the subject matter of the communication, such communication does not amount to
publication within the meaning of the law on defamation. [35] Publication in libel means making the defamatory matter, after it has been written,
known to someone other than the person to whom it has been written. [36] The reason for such rule is that a communication of the defamatory matter to
the person defamed cannot injure his reputation though it may wound his self-esteem. A mans reputation is not the good opinion he has of himself,
but the estimation in which others hold him.[37] In this case, petitioner submitted the letter to the director of said hospital; she did not disseminate the
letter and its contents to third persons. Hence, there was no publicity and the matter is clearly covered by paragraph 1 of Article 354 of the Penal
Code.
Further, we note that the information against petitioner was filed only on July 27, 1992 or one year after June 27, 1991, the date the letter was
sent. It is obviously nothing more than a countercharge to give Complainant Torres a leverage against petitioners administrative action against him.
Ineluctably, Judge Asuncions denial of the motion to withdraw the information and the reconsideration thereof was not only precipitate but
manifestly erroneous. This is further compounded by the fact that he did not explain his grounds for his denial inasmuch as he did not make an
independent assessment of the motion or the arguments in the resolution of the secretary of justice. All in all, such rash action did not do justice to the
sound ruling in Crespo vs. Mogul upon which, ironically, he supposedly rested his action, or to the directive in Marcelo and Martinez where this
Court required trial courts to make an independent assessment of the merits of the motion.
WHEREFORE, the assailed Decision is hereby REVERSED and SET ASIDE. The Motion to Withdraw the Information dated February 17,
1993 filed before the trial court is GRANTED. No costs.
SO ORDERED.
[G.R. No. 139987. March 31, 2005]

SALVADOR D. FLOR, petitioner, vs. PEOPLE OF THE PHILIPPINES, respondent.

DECISION
CHICO-NAZARIO, J.:

Before Us is a petition for review on certiorari seeking to reverse the Decision of the Court of Appeals in CA-G.R. CR Nos. 11577 and
33204[1] which affirmed the joint decision of the Regional Trial Court (RTC), Branch 33 of Pili, Camarines Sur, in Criminal Case No. P-1855
convicting the petitioner and Nick Ramos[2] for libel and Civil Case No. P-1672 awarding damages in favor of the private complainant, former
Governor of Camarines Sur and Minister of the Presidential Commission on Government Reorganization Luis R. Villafuerte.
The facts are not disputed.
An information for libel was filed before the RTC, Branch 20, Naga City, against the petitioner and Ramos who were then the managing editor
and correspondent, respectively, of the Bicol Forum, a local weekly newspaper circulated in the Bicol Region. The information reads as follows:

That on or about the 18th day up to the 24th day of August, 1986, in the Bicol Region comprised by the Provinces of Albay, Catanduanes, Sorsogon,
Masbate, Camarines Sur, and Camarines Norte, and the Cities of Iriga and Naga, Philippines, and within the jurisdiction of this Honorable Court
under R.A. No. 4363, and B.P. Blg. 129, the above-named accused who are the news correspondent and the managing editor, respectively, of the
local weekly newspaper Bicol Forum, did then and there willfully, unlawfully and feloniously, without justifiable motive and with malicious intent of
impeaching, discrediting and destroying the honor, integrity, good name and reputation of the complainant as Minister of the Presidential
Commission on Government Reorganization and concurrently Governor of the Province of Camarines Sur, and to expose him to public hatred,
ridicule and contempt, write, edit, publish and circulate an issue of the local weekly newspaper BICOL FORUM throughout the Bicol Region, with
banner headline and front page news item read by the public throughout the Bicol Region, pertinent portions of which are quoted verbatim as
follows:

VILLAFUERTES DENIAL CONVINCES NO ONE

NAGA CITY-Gov. Luis Villafuertes denial that he did not spend government money for his trips to Japan and Israel two weeks ago has
failed to convince people in Camarines Sur, reliable sources said.

What the people know, the sources said, is that the two trips of the governor who is also the minister of the Government Reorganization Commission
was purely junket.

This was confirmed when capitol sources disclosed that about P700,000.00 collected by way of cash advances by ranking provincial officials were
allegedly used for the two trips.

The cash advances, the sources said, were made at the instance of Villafuerte.

It was learned that the amount was withdrawn without resolution approving its release.

Villarfuerte however said that he spent his own money for the two trips.

The governor was accompanied abroad by political supporters mostly municipal mayors in Camarines Sur, the report said.

This was contested by several individuals who told Bicol Forum that the members of Villafuertes entourage did not have official functions in the
province.

Villafuerte and his companions reportedly attended the 1986 baseball games in Japan.

When in truth and in fact said allegations are false and utterly untrue as the complainant has not done such acts, thus embarrassing, discrediting and
ridiculing him before his friends, followers and other people.[3]

The information was later amended to include Jose Burgos, Jr., who was at that time the publisher-editor of the Bicol Forum.[4] The trial court,
however, never acquired jurisdiction over his person as he did not surrender nor was he ever arrested by the authorities.
It appears from the records that prior to the filing of the criminal complaint, the private complainant had already instituted a separate civil
action for damages arising out of the questioned news article before the RTC, Branch 23, Naga City. Due to this, the criminal suit for libel was
ordered consolidated with the civil case pursuant to Article 360 of the Revised Penal Code, as amended. [5] Subsequently, the consolidated actions
were transferred to RTC, Branch 33, Pili, Camarines Sur, in accordance with Republic Act No. 4363 which outlines the venue of libel cases in the
event that the offended party is a public official such as in this case.[6] Thereafter, a joint trial of the cases ensued with accused Burgos, Jr., being
declared as in default in the civil case due to his failure to attend its pre-trial conference.
Upon being arraigned, the petitioner and Ramos both pleaded not guilty. [7]
During the trial, the private complainant himself took the witness stand to refute the statements contained in the subject news article. According
to him, there were previous news reports and broadcasts regarding the cash advances allegedly made by some provincial government officials of
Camarines Sur and that it was also reported that he made a trip to Japan which was branded as a mere junket. [8] The private complainant, however,
explained that after he clarified over the radio that he never went to Japan, the issue was never discussed again until the matter was included in the
questioned news item.[9] As for the cash advances, the private complainant stated that the Provincial Auditor and the Budget Officer had already
made a statement to the effect that he had no pending cash advances.[10] Further, the private complainant clarified that he made his trip to Israel in his
capacity as a cabinet member of former President Corazon C. Aquino and that he spent his own money for the said official trip thereby debunking
Bicol Forums report that his travel to Israel was purely a junket. [11] The private complainant also complained that no one from the Bicol Forum made
any attempt to get his side of the story nor was he aware of any effort exerted by the representatives of said publication to confirm the veracity of the
contents of the subject news article from any source at the provincial capitol.[12] Finally, the private complainant took exception to the banner
headline which states Villafuertes Denial Convinces No One. According to him, the Bicol Forum seemed to be making a mockery of his previous
explanations regarding the cash advances and his trips abroad and such a sweeping statement subjected him to public ridicule and humiliation.[13]
On the other hand, Ramos testified that he wrote the questioned news item on the basis of a note given to him by a source whom he refused to
identify.[14] Said source was allegedly connected with the Provincial Treasurers Office.[15] The note reads:

Media consultants of Villafuerte specially DWLV announcers had been announcing the travels of Villafuerte to Israel and Japan without spending a
single centavo. This is unbelievable as lately the Gov. said he [spent] his own money for the trips.

No one will believe this. The governor and party went to Israel and Japan as there were some P700,000.00 cash advances collected in form of
advances by top provincial officials for the trips. No [doubt] Villafuerte had a hand on this because he is the governor approving cash advances.
Among them were Panes and Maceda.

There were no resolution, please publish this that people concern will react and they be forced to account for the money. Authenticated papers will
follow. Bulls eye ito.

capr[16]

Ramos likewise alleged that prior to writing the subject news article, he went to his source to ask some clarificatory questions and was told that
he would be given authenticated records of the cash advances. Later, he was given a copy of the Schedule of Cash Advances of Disbursing Officers
and Other Officers (as of June 30 1987).[17]Among the provincial government officials listed therein were the private respondent who had a 1986
balance of P25,000.00 incurred for cultural activities; Atty. Jose Maceda who also had a 1986 balance of P130,084.00 for sports development,
Operation Smile, NAMCYA Festival, and prisoners subsistence; and Eulogio Panes, Jr., who had beside his name a 1986 balance of P250,000 for the
purpose of sports development. Ramos also claimed that when he went to the Provincial Treasurers Office to conduct his investigation, he was shown
some vouchers and was told that many of the members of the baseball delegation to Japan were not elected provincial officials and, in fact, some
mayors and private individuals were sent as part of the Philippine group. [18]
During his turn at the witness stand, the petitioner admitted that the headline was written by him in his capacity as the managing editor [19] in
accordance with the policy of their paper to print as headlines matters dealing with public concerns and public officials. [20] According to him, the
banner headline and the sub-headline truthfully reflect the substance of the story prepared by Ramos.[21]
After the trial, the court a quo rendered a joint decision the dispositive portion of which reads:

IN VIEW OF ALL THE FOREGOING CONSIDERATIONS, judgment is hereby rendered:

In Criminal Case No. P-1855

Finding the accused Nick Ramos and Salvador D. Flor guilty beyond reasonable doubt of the crime of Libel defined and punished under Article 353 in
connection with Article 355 of the Revised Penal Code and they are each sentenced to pay a fine of Two Thousand Pesos (P2,000.00) with subsidiary
imprisonment in case of insolvency; and to pay the costs of suit.

In Civil Case No. P-1672

Ordering the defendants Nick Ramos, Salvador D. Flor and Jose Burgos, Jr. to pay jointly and severally to the plaintiff the following:

1. The amount of Three Hundred Thousand Pesos (P300,000.00) as moral damages;

2. The amount of Five Thousand Pesos (P5,000.00) as exemplary damages;

3. The amount of Five Thousand Pesos (P5,000.00) as attorneys fees; and to pay the costs of suit. [22]

Unsatisfied with the findings of the trial court, the petitioner and Ramos filed an appeal with the Court of Appeals which affirmed the judgment
of the trial court through its decision dated 10 December 1996.[23] They thereafter filed a motion for reconsideration[24] which was denied for lack of
merit by the appellate court in its resolution of 19 August 1999. [25]
In upholding the conclusion reached by the trial court, the Court of Appeals ratiocinated, thus:

The informant of Nick Ramos made a sweeping conclusion that it was Gov. Villafuerte who made the trips abroad using government money as there
were cash advances of P700,000.00 made by top provincial officials, without first having verified the truth about the matters contained in his report.
The imputation became malicious when they are based on mere conjectures. The alleged libelous article must be construed as a whole. The effect of
the news item upon the minds of the readers must be considered in the prosecution of libel cases. The words used in the news report tends to impute a
criminal act on the governor which may cause the readers to hold him up to public ridicule and induce them to believe that the governor was indeed
guilty. The accused editor admitted that he did not make any personal investigation as to the truth of the statements made in the report. When such
communication was sent for publication, the so-called privilege was destroyed when malice in fact was present.[26]

In fine, the sole issue brought for the consideration of this Court is whether the questioned news item is libelous. We reverse.
Libel is defined as a public and malicious imputation of a crime, or of a vice or defect, real or imaginary, or any act, omission, condition, status,
or circumstance tending to cause the dishonor, discredit, or contempt of a natural person or juridical person, or to blacken the memory of one who is
dead.[27] Any of these imputations is defamatory and under the general rule stated in Article 354 of the Revised Penal Code, every defamatory
imputation is presumed to be malicious.[28] The presumption of malice, however, does not exist in the following instances:

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.[29]

The law recognizes two kinds of privileged matters. First are those which are classified as absolutely privileged which enjoy immunity from
libel suits regardless of the existence of malice in fact. Included herein are statements made in official proceedings of the legislature by the members
thereof.[30] Likewise, statements made in the course of judicial proceedings are absolutely privileged but only if pertinent or relevant to the case
involved.[31]
The other kind of privileged matters are the qualifiedly or conditionally privileged communications which, unlike the first classification, may
be susceptible to a finding of libel provided the prosecution establishes the presence of malice in fact. The exceptions provided for in Article 354 of
the Revised Penal Code fall into this category.
In the case, however, of Borjal v. Court of Appeals,[32] this Court recognized that the enumeration stated in Article 354 of the Revised Penal
Code is not exclusive but is rendered more expansive by the constitutional guarantee of freedom of the press, thus:

. . . 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 nations penal code but in the Bill of Rights
of the Constitution guaranteeing freedom of speech and of the press. As early as 1918, inUnited States v. 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.[33]

Clearly, when confronted with libel cases involving publications which deal with public officials and the discharge of their official functions,
this Court is not confined within the wordings of the libel statute; rather, the case should likewise be examined under the constitutional precept of
freedom of the press. As enunciated in the seminal case ofUnited States v. Bustos[34] -

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 authorize 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. [35]

Of course, this does not mean that a public official is barred from recovering damages in cases involving defamations. His entitlement,
however, is limited to instances when the defamatory statement was made with actual malice that is, with knowledge that it was false or with reckless
disregard of whether it was false or not.[36] This is the test laid down in the leading case of New York Times Co. v. Sullivan.[37]
In the case at bar, the Office of the Solicitor General (OSG) argues that the purported libelous news item was designed to malign the integrity
and reputation of the [private complainant] for it ascribed to the latter corruption and dishonesty in government service. [38] Moreover, the OSG
maintains that the questioned news article does not enjoy the mantle of protection afforded a privileged matter as the petitioner and Ramos published
the news item based on mere speculation and conjecture.[39] Their decision to publish the unverified information furnished them by the unnamed
source, who was never presented before the trial court, and their failure to verify the truth of statements which appeared under the banner headline of
the 18-24 August 1986 issue of the Bicol Forum indicates that the news item was published intemperately and maliciously. [40] The OSG is therefore
of the opinion that the subject news item satisfied the test pronounced in the New York Times case. We do not agree.
As the US Supreme Court itself declared, reckless disregard cannot be fully encompassed in one infallible definition. Inevitably its outer limits
will be marked out through case-by-case adjudication.[41] The case of Garrison v. State of Louisiana[42] stressed that only those false statements made
with the high degree of awareness of their probable falsity demanded by New York Times may be the subject of either civil or criminal
sanctions[43] and concluded by restating the reckless disregard standard in the following manner:

. . . The test which we laid down in New York Times is not keyed to ordinary care; defeasance of the privilege is conditioned, not on mere
negligence, but on reckless disregard for the truth.[44]

Subsequently, in St. Amant v. Thompson[45] it was stated that

. . . These cases are clear that reckless conduct is not measured by whether a reasonably prudent man would have published, or would have
investigated before publishing. There must be sufficient evidence to permit the conclusion that the defendant in fact entertained serious doubts as to
the truth of his publication. Publishing with such doubts shows reckless disregard for truth or falsity and demonstrates actual malice. [46]

Applied to the case at bar, we hold that the prosecution failed to meet the criterion of reckless disregard. As the records reveal, the issue of cash
advances against the coffers of the provincial government of Camarines Sur was a major political topic in said locality at that time. Even the private
respondent himself admitted during his direct testimony that he went on radio in order to address the matter. It was clearly a legitimate topic to be
discussed not only by the members of the media but by the public as what was involved was the dispensation of taxpayers money.
Further, it bears emphasis that in this case, the petitioner and Ramos had in their possession information relating to the cash advances and the
private respondents travels abroad. The information was provided by one who worked in the provincial treasurers office and had access to the
pertinent financial records of the provincial government. Their informant was familiar with the procedure with regard to the approval of cash
advances. The inference they drew from the note given by their source that the private respondent prodded some of the provincial government
officials to take out cash advances may have been false but the same does not warrant a conviction for libel nor support a claim for damages. As
discussed by Newell

Slight unintentional errors, however, will be excused. If a writer in the course of temperate and legitimate criticism falls into error as to some detail,
or draws an incorrect inference from the facts before him, and thus goes beyond the limits of strict truth, such inaccuracies will not cause judgment to
go against him, if the jury are satisfied, after reading the whole publication, that it was written honestly, fairly and with regard to what truth and
justice require. It is not to be expected that a public journalist will always be infallible. [47]

During the hearing of these cases, the private complainant also refuted the material points contained in the subject news article in an effort to
prove the falsity of the allegations contained therein. This Court finds such effort inadequate to adjudge the petitioner guilty of the crime of libel or to
entitle the private respondent to damages. Under the New York Times test, false statements alone are not actionable; maliciousness may be shown
only through knowledge of falsity or reckless disregard of truth or falsity.[48]
Further, both the prosecution and the OSG make capital of Ramos and the petitioners failure to confirm the information supplied by the
unidentified source which ultimately became the basis for the news article under consideration in an obvious attempt to establish the element of
reckless disregard for truth. The prosecution also painstakingly tried to establish malice in fact on the part of the petitioner by harping on the fact that
neither he nor Ramos took the time to give the private respondent the chance to air his side before putting the alleged libelous news story to print.
The contention fails to persuade.
While substantiation of the facts supplied is an important reporting standard, still, a reporter may rely on information given by a lone source
although it reflects only one side of the story provided the reporter does not entertain a high degree of awareness of [its] probable falsity.[49] The
prosecution, in this case, utterly failed to prove that the petitioner and Ramos entertained such awareness.
We also hold that the petitioners and Ramoss failure to present their informant before the court as well as other evidence that would prove
Ramos claim that he had conducted an investigation to verify the information passed on to him should not be taken against them. On this point, we
turn to our pronouncement in the case of Rodolfo R. Vasquez v. Court of Appeals, et al.,[50] to wit:

A rule placing on the accused the burden of showing the truth of allegations of official misconduct and/or good motives and justifiable ends for
making such allegations would not only be contrary to Art. 361 of the Revised Penal Code. It would, above all, infringe on the constitutionally
guaranteed freedom of expression. Such a rule would deter citizens from performing their duties as members of a self-governing community. Without
free speech and assembly, discussions of our most abiding concerns as a nation would be stifled. As Justice Brandeis has said, public discussion is a
political duty and the greatest menace to freedom is an inert people. [51]

Indeed, the difficulty of producing evidence, both documentary and testimonial, on behalf of the petitioner was readily apparent when, during
his cross-examination, Ramos testified that he was not allowed by the custodians of the material provincial financial records to photocopy the latter
particularly because said documents dealt with the matter of cash advances. [52]
Further, as their informant was employed in the provincial treasurers office, it is understandable why he opted not to expose himself and openly
charge his superior, the private complainant herein, lest he incur the latters wrath.
Finally, the private respondent claims that the banner headline ridiculed him before the public does not merit consideration as the rule in this
jurisdiction is that [t]he headline of a newspaper story or publication claimed to be libelous must be read and construed in connection with the
language that follows.[53] A perusal of the entire news story accompanying the headline in this case readily establishes the fact that the questioned
article dealt with refutations by the private respondents critics of his explanation over the radio with regard to the issues mentioned therein. The
wording of the headline may have contained an exaggeration but the same nevertheless represents a fair index of the contents of the news story
accompanying it.[54]
WHEREFORE, the petition is GRANTED. The Decision of the Court of Appeals of 10 December 1996 which affirmed the Joint Decision
dated 18 March 1991 of the Regional Trial Court, Branch 33, Pili, Camarines Sur, and its Resolution of 19 August 1999 denying reconsideration are
REVERSED and SET ASIDE. No costs.
SO ORDERED.
PHILIPPINE JOURNALISTS, INC. (PEOPLES G.R. No. 143372
JOURNAL), ZACARIAS NUGUID, JR. and
CRISTINA LEE, P e t i t i o n e r s, Present:

PUNO,
Chairman,
- versus - AUSTRIA-MARTINEZ,
CALLEJO, SR.,
TINGA, and
CHICO-NAZARIO, JJ.
FRANCIS THOENEN,
R e s p o n d e n t. Promulgated:

December 13, 2005


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DECISION

CHICO-NAZARIO, J.:

For almost a century, this Court has sought that elusive equilibrium between the law on defamation on one hand, and the constitutionally guaranteed
freedoms of speech and press on the other. This case revisits that search.

On 30 September 1990, the following news item appeared in the Peoples Journal, a tabloid of general circulation:

Swiss Shoots Neighbors Pets

RESIDENTS of a subdivision in Paraaque have asked the Bureau of Immigration to deport a Swiss who allegedly shoots
wayward neighbors pets that he finds in his domain.

The BF Homes residents through lawyer Atty. Efren Angara complained that the deportation of Francis Thoenen, of 10 Calcutta
BF Homes Phase III, could help prevent the recurrence of such incident in the future.

Angara explained that house owners could not control their dogs and cats when they slip out of their dwellings unnoticed.

An alleged confrontation between Thoenen and the owner of a pet he shot recently threatens to exacerbate the problem, Angara
said.

Cristina Lee[1]

The subject of this article, Francis Thoenen, is a retired engineer permanently residing in this country with his Filipina wife and their children.
Claiming that the report was false and defamatory, and that the petitioners acted irresponsibly in failing to verify the truth of the same prior to
publication, he filed a civil case for damages against herein petitioners Philippine Journalists, Inc., Zacarias Nuguid, Jr., its publisher, and reporter
Cristina Lee.

Thoenen claimed that the article destroyed the respect and admiration he enjoyed in the community, and that since it had been published, he and his
wife received several queries and angry calls from friends, neighbors and relatives. For the impairment of his reputation and standing in the
community, and his mental anguish, Thoenen sought P200,000.00 in moral damages, P100,000.00 in exemplary damages, and P50,000.00 in
attorneys fees.

The petitioners admitted publication of the news item, ostensibly out of a social and moral duty to inform the public on matters of general interest,
promote the public good and protect the moral public (sic) of the people, and that the story was published in good faith and without malice.[2]

The principal source of the article was a letter[3] by a certain Atty. Efren Angara addressed to Commissioner Andrea Domingo of the Commission on
Immigration and Deportation (CID, now Bureau of Immigration), which states:

Dear Madame:

We would like to request your office to verify the true status/authenticity of the residency in the Philippines of a foreign
national (a Swiss) by the name of Francis Thoenen who is presently residing at No. 10 Calcuta cor. Beirut Street, BF Homes
(PH. III), Paraaque, Metro Manila. I received (sic) complaint from my clients residing around his vicinity that this foreigner
had (sic) been causing troubles ever since he showed up. He is too meticulous and had (sic) been shooting dogs and cats
passing his house wall everytime.

Such act which (sic) is unacceptable to the owners especially if inspite (sic) of control their pets slips (sic) out
unnoticed. A confrontation between him and the owner of the dog he shoot, (sic) already occurred last time. In some
instances this guy had been always driving his car barbarously inside the subdivision with children playing around (sic) the
street. Before my clients petitioned themselves with the endorsement of the Homeowners Association and filed to your
office for deportation were respectfully seeking your assistance to investigate this alien to prevent further incident
occurrence (sic) in the future. He should not be allowed to dominate the citizens of this country.

Very truly yours,

Atty. Efren B. Angara


The petitioners claim that Lee, as the reporter assigned to cover news events in the CID, acquired a copy of the above letter from a trusted source in
the CIDs Intelligence Division. They claimed to have reasonable grounds to believe in the truth and veracity of the information derived (from their)
sources.[4]

It was proven at trial that the news article contained several inaccuracies. The headline, which categorically stated that the subject of the article
engaged in the practice of shooting pets, was untrue.[5] Moreover, it is immediately apparent from a comparison between the above letter and the
news item in question that while the letter is a mere request for verification of Thoenens status, Lee wrote that residents of BF Homes had asked the
Bureau of Immigration to deport a Swiss who allegedly shoots neighbors pets. No complaints had in fact been lodged against him by any of the BF
Homeowners,[6] nor had any pending deportation proceedings been initiated against him in the Bureau of Immigration. [7]

Thoenen also submitted a Certification[8] from the Office of the Bar Confidant that there was no lawyer in its rolls by the name of Efren Angara,
earlier cited by petitioner Lee as the author of the letter on which she based her article. Finally, the trial also showed that despite the fact that
respondents address was indicated in the letter, Cristina Lee made no efforts to contact either him or the purported letter-writer, Atty. Angara.[9]

The petitioners claim that Lee sought confirmation of the story from the newspapers correspondent in Paraaque, who told her that a woman who
refused to identify herself confirmed that there had indeed been an incident of pet-shooting in the neighborhood involving the
respondent.[10] However, the correspondent in question was never presented in court to verify the truth of this allegation. Neither was the alleged CID
source presented to verify that the above letter had indeed come from the Department, nor even that the same was a certified true copy of a letter on
file in their office.

On 31 August 1994, the Regional Trial Court, Branch 62, Makati City, rendered a Decision [11] in favor of the petitioners, which reads in part:

There is no malice on the part of the defendants in publishing the news item done in the exercise of their profession as
journalists reporting to the people on matters of public interest. The news report was based on an official communication filed
with the Bureau of Immigration and Deportation.

As noted by the Court of Appeals in Marti(r)ez vs. Alanao, CA-G.R No. 27086, September 30, 1991, which is similar
to the present case:

While indeed, the news item subject of the present case might have ruffled the sensitivities of
plaintiff, this Court however believes that the alleged defamatory articles falls within the purview of a
qualifiedly privileged matter, and that therefore, it cannot be presumed to be malicious. The onus of proving
malice is accordingly shifted to the plaintiff, that is, that he must prove that the defendants were actuated by
ill-will in what they caused to be printed and published, with a design to carelessly or wantonly injure the
plaintiff. (US vs. Bustos, et al., 37 Phil. 731)

This, plaintiff failed to do, consequently, his case must fall.

The publication in question is a privileged communication protected by the freedom of the press.

WHEREFORE, the Complaint is hereby ordered DISMISSED WITHOUT PRONOUNCEMENT AS TO COSTS. [12]

On appeal, the court a quo reversed[13] the trial court. It held that although freedom of expression and the right of speech and of the press are among
the most zealously guarded in the Constitution, still, in the exercise of these rights, Article 19 of the Civil Code requires everyone to act with justice,
give everyone his due, and observe honesty and good faith. The appellate court emphasized that Thoenen was neither a public official nor a public
figure, and thus,
. . . [E]ven without malice on the part of defendants-appellees, the news item published in the 30 September 1990 edition of
Peoples Journal had been done in violation of the principle of abuse of right under Article 19 of the Civil Code, in the absence of
a bona fide effort to ascertain the truth thereof, i.e., to observe honesty and good faith, which makes their act a wrongful
omission. Neither did they act with justice and give everyone his due, because without ascertaining the veracity of the
information given them by the Intelligence Bureau of the Bureau of Immigration, they published a news article which they were
aware would bring the person specifically named therein, viz, Francis Thoenen, the plaintiff-appellant in this case, into disrepute.
.

WHEREFORE, the foregoing considered, the Decision appealed from is hereby REVERSED and SET ASIDE. In its
stead, We find for the appellant and award him moral damages of P200,000.00; exemplary damages of P50,000.00, and legal fees
to P30,000.00; all of which shall be borne jointly and severally by appellees.[14]

Petitioners motion for reconsideration having been denied,[15] this petition for certiorari under Rule 45 of the 1997 Rules of Civil
Procedure was filed on the following grounds:

1. The Court of Appeals erred in finding the petitioners Cristina Lee, Nuguid and PJI liable under Article 19 of the Civil
Code.

2. The Court of Appeals erred in finding the petitioners liable for libel even if the article was based on a letter released by the
Bureau of Immigration, hence a qualified privilege communication.

3. The Court of Appeals erred in concluding that petitioners did not ascertain the truth of the subject news item.

4. The Court of Appeals erred in awarding damages notwithstanding that the same was excessive unconscionable and devoid
of any basis.

The petitioners argue that this case is one for damages arising from libel, and not one for abuse of rights under the New Civil Code. They
further claim the constitutional protections extended by the freedom of speech and of the press clause of the 1987 Constitution against liability for
libel, claiming that the article was published in fulfillment of its social and moral duty to inform the public on matters of general interest, promote the
public good and protect the moral [fabric] of the people. [16] They insist that the news article was based on a letter released by the Bureau of
Immigration, and is thus a qualifiedly privileged communication. To recover damages, the respondent must prove its publication was attended by
actual malice - that is, with knowledge that it was false or with reckless disregard of whether it was false or not. [17]

For the reasons stated below, we hold that the constitutional privilege granted under the freedom of speech and the press against liability
for damages does not extend to the petitioners in this case.

The freedom of speech and of the press is not absolute. The freedom of speech and press and assembly, first laid down by
President McKinley in the Instruction to the Second Philippine Commission of 07 April 1900, is an almost verbatim restatement of the first
amendment of the Constitution of the United States.[18] Enshrined in Section 4, Article III of the Bill of Rights of the 1987 Constitution, it states, 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.

But not all speech is protected. The right of free speech is not absolute at all times and under all circumstances. There are certain well-
defined and narrowly limited classes of speech, the prevention and punishment of which has never been thought to raise any Constitutional problem.
These include the lewd and obscene, the profane, the libelous, and the insulting or fighting words - those which by their very utterance inflict injury
or tend to incite an immediate breach of the peace. It has been well observed that such utterances are no essential part of any exposition of ideas, and
are of such slight social value as a step to truth that any benefit that may be derived from them is clearly outweighed by the social interest in order
and morality. [19]

Libel is not protected speech. Article 353 of the Revised Penal Code defines libel as a public and malicious imputation of a crime, or of a
vice or defect, real or imaginary, or any act, omission, condition, status, or circumstance tending to cause the dishonor, discredit, or contempt of a
natural or juridical person, or to blacken the memory of one who is dead.

For an imputation to be libelous, the following requisites must be met: (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. [20] In Vasquez v. Court of Appeals,[21] we had
occasion to further explain. Thus:

An allegation is considered defamatory if it ascribes to a person the commission of a crime, the possession of a vice or
defect, real or imaginary, or any act, omission, condition, status or circumstance which tends to dishonor or discredit or put him
in contempt, or which tends to blacken the memory of one who is dead.
There is publication if the material is communicated to a third person. It is not required that the person defamed has read or
heard about the libelous remark. What is material is that a third person has read or heard the libelous statement, for a mans
reputation is the estimate in which others hold him, not the good opinion which he has of himself.
On the other hand, to satisfy the element of identifiability, it must be shown that at least a third person or a stranger was
able to identify him as the object of the defamatory statement.
Finally, malice or ill will must be present. Art. 354 of the Revised Penal Code provides:
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
security 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. (citations omitted, emphasis supplied)

In this case, there is no controversy as to the existence of the three elements. The respondents name and address were clearly indicated in
the article ascribing to him the questionable practice of shooting the wayward pets of his neighbors. The backlash caused by the publication of the
article was in fact such that stones had been thrown at their house, breaking several flower pots, and daily and nightly calls compelled him to request
a change of their telephone number.[22] These facts are not contested by the petitioners. What the petitioners claim is the absence of proof of the
fourth element - malice.

As a general rule, malice is presumed. Article 354 of the Revised Penal Code states:

ART. 354. Requirement of Publicity. - Every defamatory imputation is presumed to be malicious, even if it be true, if no good
intention and justifiable motive for making it is shown, except in the following cases:

1. 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.

The article is not a privileged communication. We first discussed the freedom of speech and press and assembly vis-a-vis the laws on libel
and slander in the groundbreaking case of US v. Bustos,[23] where we applied the prevailing English and American jurisprudence to the effect 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. Of course, criticism does not authorize 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. (citations omitted)
The demand to protect public opinion for the welfare of society and the orderly administration of government inevitably lead to the
adoption of the doctrine of privileged communication. 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.[24]

The appellate court correctly ruled that the petitioners story is not privileged in character, for it is neither private communication nor a fair
and true report without any comments or remarks.

US v. Bustos defined the concept of private communication thus: 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. 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.[25]

This defense is unavailing to petitioners. In Daez v. Court of Appeals[26] we held that:

As a rule, it is the right and duty of a citizen to make a complaint of any misconduct on the part of public officials,
which comes to his notice, to those charged with supervision over them. Such a communication is qualifiedly privileged and the
author is not guilty of libel. The rule on privilege, however, imposes an additional requirement. Such complaints should be
addressed solely to some official having jurisdiction to inquire into the charges, or power to redress the grievance or has some
duty to perform or interest in connection therewith. (emphasis supplied)

In the instant case, even if we assume that the letter written by the spurious Atty. Angara is privileged communication, it lost its character
as such when the matter was published in the newspaper and circulated among the general population. A written letter containing libelous matter
cannot be classified as privileged when it is published and circulated in public,[27] which was what the petitioners did in this case.

Neither is the news item a fair and true report without any comments or remarks of any judicial, legislative or other official proceedings;
there is in fact no proceeding to speak of. Nor is the article related to any act performed by public officers in the exercise of their functions, for it
concerns only false imputations against Thoenen, a private individual seeking a quiet life.

The petitioners also claim to have made the report out of a social and moral duty to inform the public on matters of general interest.

In Borjal v. Court of Appeals, we stated that 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. We stated that the doctrine of fair commentaries
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.[28]

Again, this argument is unavailing to the petitioners. As we said, the respondent is a private individual, and not a public official or public
figure. We are persuaded by the reasoning of the United States Supreme Court in Gertz v. Robert Welch, Inc.,[29] that a newspaper or broadcaster
publishing defamatory falsehoods about an individual who is neither a public official nor a public figure may not claim a constitutional privilege
against liability, for injury inflicted, even if the falsehood arose in a discussion of public interest.[30]

Having established that the article cannot be considered as privileged communication, malice is therefore presumed, and the fourth
requisite for the imputation of libel to attach to the petitioners in this case is met. The news article is therefore defamatory and is not within the realm
of protected speech. There is no longer a need to discuss the other assignment of errors, save for the amount of damages to which respondent is
entitled.

In Policarpio v. Manila Times Publishing Co., Inc.,[31] we awarded damages where the defendants deliberately presented a private
individual in a worse light that what she actually was, and where other factual errors were not prevented although defendants had the means to
ascertain the veracity of their report. Such are the facts obtaining here.

We must point out that Lees brief news item contained falsehoods on two levels. On its face, her statement that residents of BF Homes had
asked the Bureau of Immigration to deport a Swiss who allegedly shoots neighbors pets is patently untrue since the letter of the spurious Atty.
Angara was a mere request for verification of Thoenens status as a foreign resident. Lees article, moreover, is also untrue, in that the events she
reported never happened. The respondent had never shot any of his neighbors pets, no complaints had been lodged against him by his neighbors, and
no deportation proceedings had been initiated against him. Worse, the author of Lees main source of information, Atty. Efren Angara, apparently
either does not exist, or is not a lawyer. Petitioner Lee would have been enlightened on substantially all these matters had she but tried to contact
either Angara or Thoenen.

Although it has been stressed that a newspaper should not be held to account to a point of suppression for honest mistakes, or imperfection
in the choice of words,[32] even the most liberal view of free speech has never countenanced the publication of falsehoods, especially the persistent
and unmitigated dissemination of patent lies.[33] There is no constitutional value in false statements of fact. Neither the intentional lie nor the careless
error materially advances societys interest in uninhibited, robust, and wide-open debate.[34] The use of the known lie as a tool is at once at odds with
the premises of democratic government and with the orderly manner in which economic, social, or political change is to be effected. Calculated
falsehood falls into that class of utterances which 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 The knowingly false statement and
the false statement made with reckless disregard of the truth, do not enjoy constitutional protection (citations omitted). [35]

The legitimate state interest underlying the law of libel is the compensation of the individuals for the harm inflicted upon them by
defamatory falsehood. After all, the individuals right to protection of his own good name reflects no more than our basic concept of the essential
dignity and worth of every human being a concept at the root of any decent system of ordered liberty. [36]

The appellate court awarded Thoenen moral damages of P200,000.00, exemplary damages of P50,000.00 and legal fees of P30,000.00, to
be borne jointly and severally by the herein petitioners. In Guevarra v. Almario,[37] we noted that the damages in a libel case must depend upon the
facts of the particular case and the sound discretion of the court, although appellate courts were more likely to reduce damages for libel than to
increase them.[38] So it is in this case.
WHEREFORE, the Decision of the Court of Appeals of 17 January 2000 reversing the Decision of the Regional Trial Court, Branch 62,
Makati City, of 31 August 1994 is hereby AFFIRMED, subject to the modification that petitioners are ordered to pay, jointly and severally, moral
damages in the sum of P100,000.00, exemplary damages of P30,000.00, and legal fees of P20,000.00. No costs.

SO ORDERED.
A.M. No. 93-2-037 SC April 6, 1995

IN RE Emil (Emiliano) P. JURADO Ex Rel.: Philippine Long Distance Telephone Company (PLDT), per its First Vice-President, Mr.
Vicente R. Samson, appellant,

NARVASA, C.J.:

Liability for published statements demonstrably false or misleading, and derogatory of the courts and individual judges, is what is involved in the
proceeding at bar than which, upon its facts, there is perhaps no more appropriate setting for an inquiry into the limits of press freedom as it
relates to public comment about the courts and their workings within a constitutional order.

1. Basic Postulates

To resolve the issue raised by those facts, application of fairly elementary and self-evident postulates is all that is needed, these being:

1) that the utterance or publication by a person of falsehood or half-truths, or of slanted or distorted versions of facts or
accusations which he made no bona fide effort previously to verify, and which he does not or disdains to prove cannot be
justified as a legitimate exercise of the freedom of speech and of the press guaranteed by the Constitution, and cannot be deemed
an activity shielded from sanction by that constitutional guaranty;

2) that such utterance or publication is also violative of "The Philippine Journalist's Code of Ethics" which inter alia commands
the journalist to "scrupulously report and interpret the news, taking care not to suppress essential facts nor to distort the truth by
improper omission or emphasis," and makes it his duty "to air the other side and to correct substantive errors promptly;" 1

3) that such an utterance or publication, when it is offensive to the dignity and reputation of a Court or of the judge presiding over
it or degrades or tends to place the courts in disrepute and disgrace or otherwise to debase the administration of justice,
constitutes contempt of court and is punishable as such after due proceedings; and

4) that prescinding from the obvious proposition that any aggrieved party may file a complaint to declare the utterer or writer in
contempt, the initiation of appropriate contempt proceedings against the latter by the court is not only its prerogative but indeed
its duty, imposed by the overmastering need to preserve and protect its authority and the integrity, independence and dignity of
the nation's judicial system.

2. Antecedents

This proceeding treats of Emiliano P. Jurado, a journalist who writes in a newspaper of general circulation, the "Manila Standard." He describes
himself as a columnist, who "incidentally happens to be a lawyer," remarking that while he values his membership in the law profession, "such
membership is neither a critical nor indispensable adjunct in the exercise of his occupation as a newspaperman." 2 His column in the "Manila
Standard" is entitled "Opinion."

Jurado had been writing about alleged improperties and irregularities in the judiciary over several months (from about October, 1992 to March,
1993). Other journalists had also been making reports or comments on the same subject. At the same time, anonymous communications were being
extensively circulated, by hand and through the mail, about alleged venality and corruption in the courts. And all these were being repeatedly and
insistently adverted to by certain sectors of society.

In light of these abnormal developments, the Chief Justice took an extraordinary step. He issued Administrative Order No. 11-93 dated January 25,
1993, "Creating an Ad Hoc Committee to Investigate Reports of Corruption in the Judiciary," 3 reading as follows:

WHEREAS, the Court's attention has been drawn to the many and persistent rumors and unverified reports respecting corruption
in the judiciary, said rumors and reports not only having been mentioned by media and in anonymous communications, but
having also been adverted to by certain government officials and civic leaders.

NOW, THEREFORE, by authority of the Court, an Ad Hoc committee is hereby constituted composed of Chief Justice Andres R.
Narvasa, as Chairman, and former Justices of the Court, Hon. Lorenzo Relova and Hon. Ameurfina A. Melencio-Herrera, as
Members, which shall seek to ascertain the truth respecting said reports and statements, and to this end, forthwith interview at
closed-door sessions or otherwise, such persons as may appear to it to have some knowledge of the matter and who may be
appealed to to share that knowledge with the Court, and otherwise gather such evidence as may be available. The Committee is
hereby authorized to use such facilities and personnel of the court as may be necessary or convenient in the fulfillment of its
assigned mission, and shall submit its report to the Court within thirty (30) days.

Material to the present inquiry are Jurado's published statements from late 1992 to the middle of February, 1993.

1. In his column of October 21, 1992, he wrote of "(j)udges in a number of regional trial courts in Metro Manila (who) have
become so notorious in their dealings with litigants and lawyers that they are now called the "Magnificent Seven."" He stated that
"(i)t has come to a point where lawyers and litigants try their darndest to stay away from these judges. The answer, of course, is
obvious."

2. In his February 3, 1993 column, he adverted to another group, also named "Magnificent Seven," which, he said, should be
distinguished from the first. He wrote: "When lawyers speak of the "Magnificent Seven" one has to make sure which group they
are referring to. Makati's "Magnificent Seven" are a bunch of Makati regional trial court judges who fix drug-related cases. The
"Magnificent Seven" in the Supreme Court consists of a group of justices who vote as one." 4
3. Aside from the "Magnificent Seven," he also wrote about a group which he dubbed the "Dirty Dozen." In his column of
October 21, 1992 he said that there are " . . . 12 judges who have acquired such reputation for graft and corruption that they are
collectively known as the "dirty dozen". These judges, I am told, are not satisfied with accepting bribes; they actually sell their
decisions to the litigants and "solicit" their bids for what is clearly an auction for the judge's decision."

According to him, the most corrupt judges now are Makati's "Dirty Dozen" judges, supplanting some of those from Pasay, Pasig
and Quezon City; corruption in lower Courts had been admitted by an Executive Judge in a Metro Manila Regional Trial Court
(column of November 9, 1992); and because the "Dirty Dozen" had given Makati the reputation of having the most corrupt RTC
in the country, multi-nationals and financing institutions explicitly stipulate in their agreements that litigation in connection with
these contracts may be held anywhere in Metro Manila except in Makati; and lawyers confirm that Makati Judges, including
some persons in the sheriffs office, are the most corrupt, where before, Pasay and Quezon City had that dubious distinction
(column of December 1, 1992).

4. In his November 9, 1992 column, he wrote about "a former appellate justice (who) "holds office" at a restaurant near the Court
of Appeals building. He is known as the contact man of five CA divisions. Lawyers say that this former jurist really delivers." In
his column of January 29, 1993, he adverted to the same unnamed former Justice as being "known for fixing cases for five CA
divisions (that is what he tells lawyers and litigants) for a fee. And if the price is right, the lawyer of the litigant paying can even
write his own decision using a CA justice as ponente. This ex-justice holds court at the mezzanine of a restaurant owned by the
wife of a former Marcos cabinet member and which has become a meeting place for judges, CA justices, practicing lawyers,
prosecutors and even Supreme Court justices. The former CA justice also has his own Chinese contact. After I exposed this last
year, the habitues became scarce. But they are back again, and the ex-justice is still-doing brisk business."

5. In his column of March 24, 1993, he made the claim that one can "get a temporary restraining order from a regional trial court
in Metro-Manila by paying the judge anywhere between P30,000.00 and P50,000.00."

Other columns of Jurado refer to:

a) a police from the South Capital Command . . . (to the effect) that 8 Makati judges where paid for decisions favoring drug-
traffickers and other big-time criminals, naming the judges and giving detailed accounts of the bribery (January 30, 1993);

b) a bank, later identified by him as the Equitable Banking Corporation (Ermita Branch), which had "hosted a lunch at its
penthouse mainly for some justices, judges, prosecutors and law practitioners" (January 12, 1993); 5

c) the lady secretary of an RTC Judge in Makati who allegedly makes sure, for a fee of P10,000.00 or more, depending on how
much money is at stake, that a case is raffled off to a Judge who will be "extremely sympathetic," and can arrange to have the
Court issue attachments or injunctions for a service fee of 1% over and above the regular premium of the attachment or
injunction bond; a Chinese-Filipino businessman who paid this "miracle worker" P300,000.00 on top of the regular premium on
the attachment/injunction bond (October 27, 1992);

d) Executive Judge de la Rosa, who "has unilaterally decided to discard the rule that cases seeking provisional remedies should
be raffled off to the judges," thus violating the rule that no case may be assigned in multi-sala courts without a raffle (January 28,
1993);

e) the Secretary of the Judicial and Bar Council (JBC), who had supposedly gotten that body to nominate him to the Court of
Appeals; and a son and a nephew of JBC members, who were also nominated to the Court of Appeals, contrary to ethics
and delicadeza (January l6, 1993; and January 29, 1993);

f) what he denominates "a major determinant of promotion," i.e., having a relative in the JBC or the Supreme Court, or having a
powerful politician as sponsor, citing specifically, the following nominees to the Court of Appeals Conrado Vasquez, Jr., son
and namesake of the Ombudsman and brother of the head of the Presidential Management Staff; Rosalio de la Rosa, "nephew of
Justice Relova and cousin of Chief Justice Narvasa;" and the fact that nomination of some worthy individuals was blocked
because they "incurred the ire of the powers that be," e.g., Judge Maximiano Asuncion, Quezon City RTC, and Raul Victorino,
closely identified with former Senate President Salonga (January 25, 1993).

3. Events Directly Giving Rise


to the Proceeding at Bar

What may be called the seed of the proceeding at bar was sown by the decision promulgated by this Court on August 27, 1992, in the so-called
"controversial case" of "Philippine Long Distance Telephone Company v. Eastern Telephone Philippines, Inc. (ETPI)," G.R. No, 94374. In that
decision the Court was sharply divided; the vote was 9 to 4, in favor of the petitioner PLDT. Mr. Justice Hugo E. Gutierrez, Jr., wrote the opinion for
the
majority. 6 A motion for reconsideration of the decision was filed in respondent's behalf on September 16, 1992, which has recently been resolved.

In connection with this case, G.R. No. 94374, the "Philippine Daily Inquirer" and one or two other newspapers published, on January 28, 1993, a
report of the purported affidavit of a Mr. David Miles Yerkes, an alleged expert in linguistics. This gentleman, it appears, had been commissioned by
one of the parties in the case, Eastern Telephone Philippines, Inc. (ETPI), to examine and analyze the decision of Justice Gutierrez in relation to a
few of his priorponencias and the writings of one of the lawyers of PLDT, Mr. Eliseo Alampay, to ascertain if the decision had been written, in whole
or in part, by the latter. Yerkes proffered the conclusion that the Gutierrez decision "looks, reads and sounds like the writing of the PLDT's
counsel," 7

As might be expected, the Yerkes "revelations" spawned more public discussion and comment about the judiciary and the Supreme Court itself,
much of it unfavorable. There were calls for impeachment of the justices, for resignation of judges. There were insistent and more widespread
reiterations of denunciations of incompetence and corruption in the judiciary. Another derogatory epithet for judges was coined and quickly gained
currency: "Hoodlums in Robes."

It was at about this time and under these circumstances particularly the furor caused by the Yerkes opinion that the PLDT decision was authored
by a PLDT lawyer that Jurado wrote in his column on February 8, 1993, an item entitled, "Who will judge the Justices?" referring among other
things to" . . .
(a) report that six justices, their spouses, children and grandchildren (a total of 36 persons) spent a vacation in Hong Kong some time last year
and that luxurious hotel accommodations and all their other expenses were paid by a pubic utility firm . . . and that the trip . . . was arranged by the
travel agency patronized by this public utility firm." 8

This was the event that directly gave rise to the proceeding at bar.

a. Letter and Affidavit of PLDT

For shortly afterwards, on February 10, 1993, Mr. Vicente R. Samson, First Vice President of the PLDT (Philippine Long Distance Telephone
Company), addressed a letter to the Chief Justice, submitting his sworn statement in confutation of "the item in the column of Mr. Emil P. Jurado of
the Manila Standard on a vacation trip supposedly taken by six Justices with their families last year," and requesting that the Court "take such action
as may be appropriate." In his affidavit, Samson made the following averments: 9

xxx xxx xxx

While the name of the public utility which supposedly financed the alleged vacation of the Justices in Hongkong has not been
disclosed in the Jurado column, the publication thereof, taken in relation to the spate of recent newspaper reports alleging that the
decision of the Supreme Court, penned by Mr. Justice Hugo E. Gutierrez, Jr., in the pending case involving the PLDT and
Eastern Telecommunications Phils., Inc. was supposedly ghost written by a lawyer of PLDT, gives rise to the innuendo or unfair
inference that Emil Jurado is alluding to PLDT in the said column; and, this in fact was the impression or perception of those who
talked to me and the other officers of the PLDT after having read the Jurado column;

4. In as much as the PLDT case against Eastern Telecommunications Philippines is still sub-judice, since the motions for
reconsideration filed by the losing litigants therein, Eastern Telecommunications Philippines, Inc. and NTC are still pending
before the Court, we have tried to refrain from making any public comments on these matters, lest any statement we make be
interpreted to be an attempt on our part to unduly influence the final decision of the Supreme Court in the above described case.
However in the interest of truth and justice, PLDT is compelled to emphatically and categorically declare that it is not the public
utility firm referred to in the Jurado column and that specifically, it has never paid for any such trip, hotel or other
accommodations for any justice of the Supreme Court or his family during their vacation, if any, in Hongkong last year. It is not
even aware that any of the justices or their families have made the trip referred to in the Jurado column;

5. I further state that neither Atty. Emil P. Jurado nor anyone in his behalf has ever spoken to me or any other responsible officer
of PLDT about the matter quoted in par. 2 hereof;

6. PLDT further emphatically and categorically denies that it had ever talked to or made arrangements with any travel agency or
any person or entity in connection with any such alleged trip of the Justices and their families to Hongkong, much less paid
anything therefor to such agencies, fully or in part, in the year 1992 as referred to in Par. 2 hereinabove;

7. The travel agencies which PLDT patronizes or retains for the trips, hotels or other accommodations of its officers and
employees are:

a. Philway Travel Corporation


M-7 Prince Tower Cond.
Tordesillas St., Salcedo Village
Makati, Metro Manila

b. Citi-World Travel Mart Corp.


Suite 3-4 Ramada Midtown Arcade
M. Adriatico Street
Ermita, Manila.

The records of these travel agencies will bear out the fact that no arrangements were made by them at the instance of PLDT for
the trip referred to in the Jurado column.

b. Affidavit of Atty. William Veto

The Samson affidavit was followed by another submitted to the Court by Atty. William Veto, the "in-house counsel of Equitable Banking
Corporation since 1958," subscribed and sworn to on February 10, 1993, in relation to another article of Jurado. 10 Veto deposed that on Tuesday,
January 5, 1993 he had "hosted a lunch party at the Officers' Lounge, 7th Floor of the Equitable Banking Corporation Building, Ermita Branch . . .
upon prior permission . . . obtained;" that the "expenses for said party were exclusively from my personal funds and the food was prepared in my
house by my wife and served by my house help . . . and four (4) waiters . . . hired from the nearby Barrio Fiesta Restaurant;" that among the invited
guests "were members of the Supreme Court and Court of Appeals who . . . were my friends of forty years since our days in law school;" and that the
party was held in the lounge of the bank instead of in "my residence" "unlike in former years . . . because my birthday happened to fall on a working
day and my friends from the Equitable Banking
Corporation . . . suggested that I hold it there (at the lounge) for their convenience because my residence is far from down town."

However, this birthday luncheon of Atty. Veto was reported in Jurado's column (in the Manila Standard issues of January 12 and 28, 1993) as having
been "hosted (by the Equitable Bank) at its penthouse mainly for some justices, judges, prosecutors and law practitioners. . . ." And upon this
premise, Jurado indulged in the following pontification: "When those in the judiciary fraternize this way, what chances before the courts do other
lawyers, who are not "batang club," have against others who belong to the fraternity? In the case of prosecutors and fiscals, what chances do
opposing counsels have against those in the fraternity?" (column of January 12, 1993)

c. Information from Ad Hoc Committee

At about this time, too, the Court received information from the Ad Hoc Committee (created by Administrative Order No. 11-93) to the following
effect:
1) that by letter dated February 1, 1993, the Chairman of the Ad Hoc Committee extended an invitation to Atty. Emiliano Jurado
to appear before it "at 2 o'clock in the afternoon of February 4, 1993 . . . (to) give the committee information that will assist it in
its task," i.e., to definitely and accurately determine the facts as regards the published rumors and reports of corruption in the
judiciary;

2) that despite receipt of this letter by a responsible individual at the business address of Jurado, the latter failed to appear at the
time and place indicated; that instead, in his column in the issue of Manila Standard of February 4, 1993, Jurado stated that he
was told he was being summoned by the Ad HocCommittee, but "(t)here is really no need to summon me. The committee can go
by the many things I have written in my column about corruption in the judiciary. Many of these column items have been borne
out by subsequent events."

3) that another letter was sent by the Chairman to Jurado, dated February 5, 1993, reiterating the Committee's invitation, viz.:

It is regretted that you failed to respond to the invitation of the Ad Hoc Committee to appear at its session of February 4, 1992.
All indications are that you are the person with the most knowledge about corruption in the judiciary and hence, appear to be best
positioned to assist the Ad Hoc Committee in its function of obtaining evidence, or leads, on the matter. You have, I believe,
expressed more than once the laudable desire that the judiciary rid itself of the incompetents and the misfits in its ranks, and we
believe you will want to help the Court do precisely that, by furnishing the Committee with competent evidence, testimonial or
otherwise. Clearly, the purging process cannot be accomplished without proof, testimonial or otherwise, as you must no doubt
realize, being yourself a lawyer.

We would like you to know that the Ad Hoc Committee created by Administrative Order No. 11-93 is simply a fact-finding body.
Its function is evidence-gathering. Although possessed of the authority to maintain and enforce order in its proceedings, and to
compel obedience to its processes, it is not an adjudicative body in the sense that it will pronounce persons guilty or innocent, or
impose sanctions, on the basis of such proofs as may be presented to it. That function is reserved to the Supreme Court itself, in
which it is lodged by the Constitution and the laws. Thus, at the conclusion of its evidence-gathering mission, the Ad
Hoc Committee will submit its report and recommendations to the Court which will then take such action as it deems appropriate.

The Ad Hoc Committee has scheduled hearings on the 11th and 12th of February, 1993. Mr. Justice Hilario G. Davide, Jr. will
preside as Chairman at these hearings since I will be unable to do so in view of earlier commitments. We reiterate our invitation
that you come before the Committee, and you may opt to appear either on the 11th or 12th of February, 1993, at 2 o'clock in the
afternoon."

4) that notwithstanding receipt of this second letter by a certain Mr. Gerry Gil of the Manila Standard, Jurado still failed to
appear.

4. Statement of the Case:


Resolutions and Pleadings

a. Resolution of the February 16, 1993

After considering all these circumstances, the Court by Resolution dated February 16, 1993, ordered:

1) that the matter dealt with in the letter and affidavit of the PLDT herein mentioned be duly DOCKETED, and hereafter
considered and acted upon as an official Court proceeding for the determination of whether or not the allegations made by Atty.
Emil Jurado herein specified are true;

2) that the Clerk of Court SEND COPIES of the PLDT letter and affidavit, and of the affidavit of Atty. William Veto to Atty.
Emil Jurado, c/o the Manila Standard, Railroad & 21 Streets, Port Area, Manila; and copies of the same PLDT letter and
affidavit, to Philway Travel Corporation, M-7 Prince Tower Cond., Tordesillas St., Salcedo Village, Makati, Metro Manila; and
Citi-World Travel Mart Corp., Suite 3-4 Ramada Midtown Arcade, M. Adriatico Street, Ermita, Manila;

3) that within five (5) days from their receipt of notice of this resolution and of copies of the PLDT letter and affidavit, the
Philway Travel Corporations and the Citi-World Travel Mart Corporation each FILE A SWORN STATEMENT affirming or
denying the contents of the PLDT affidavit; and

4) that within fifteen (15) days from his receipt of notice of this resolution and of copies of said PLDT letter and affidavit and of
the affidavit of Atty. Veto, Atty. Emil Jurado FILE A COMMENT on said affidavits as well as the allegations made by him in his
columns, herein specified, in which he shall make known to the Court the factual or evidentiary bases of said allegations.

b. Jurado's Comment dated


March 1, 1993.

As directed, Jurado filed his comment, dated March 1, 1993.

He explained that he had not "snubbed" the invitation of the Ad Hoc Committee, it being in fact his desire to cooperate in any investigation on
corruption in the judiciary as this was what "his columns have always wanted to provoke." What had happened, according to him, was that the first
invitation of the Ad Hoc Committee was routed to his desk at the Manila Standard office on the day of the hearing itself, when it was already
impossible to cancel previous professional and business appointments; and the second invitation, "if it was ever received" by his office, was never
routed to him; and he had yet to see
it." 11 If the impression had been created that he had indeed "snubbed" the Ad Hoc Committee, he "sincerely apologizes."

He averred that his columns are self-explanatory and reflect his beliefs, and there was no need to elaborate further on what he had written. He
expressed his firm belief that justice can be administered only by a judicial system that is itself just and incorruptible, and the hope that this Court
would view his response in this light.

He also made the following specific observations:


1. The affidavit of Antonio Samson of the PLDT dated February 9, 1993 was an assertion of the affiant's belief and opinion and
he (Jurado) would not comment on it except to say that while Mr. Samson is entitled to his beliefs and opinions, these "bind only
him and the PLDT."

2. Atty. William Veto's affidavit substantially corroborated what he had written in vital details; hence, further substantiation
would be surplusage. In fact, the Supreme Court had confirmed the story in its press statement quoted by him (Jurado) in his
January 30, 1993 column. His column about the Veto party constitutes fair comment on the public conduct of public officers.

3. The column about Executive Judge Rosalio de la Rosa merely summarized the position of Judge Teresita Dy-Liaco Flores on
the actuations of Judge de la Rosa and called the attention of the Court thereto, Judge Flores' complaint, a copy of which had
been sent to the Court Administrator, being on meriting its attention.

4. The "factual and evidentiary basis" of his column of January 30, 1993 was the police report on seven (7) Makati judges
authored by Chief Inspector Laciste Jr., of the Narcotics Branch of the RPIU, South CAPCOM, PNP, addressed to Vice-President
Joseph E. Estrada, a copy of which he had received in the news room of the Manila Standard. The existence of the report had
been affirmed by a reporter of the Manila Standard, Jun Burgos, when he appeared at the hearing of the Ad Hoc Committee on
January 11, 1993.

5. His observations in his columns of January 6 and 29, 1993 regarding the nominations of relatives in the Judicial and Bar
Council echo the public perception, and constitute fair comment on a matter of great public interest and concern.

6. His columns with respect to the "RTC's Magnificent Seven" (October 20, 1992); the "RTC-Makati's Dirty Dozen" (October 2,
1992, November 9, 1992, and December 1, 1992); the "Magnificent Seven" in the Supreme Court (February 3,1993); 12 the lady
secretary of an RTC Judge (October 27, 1992); and the former Court of Appeals Justice "fixing" cases (January 29, 1993) were
all based on information given to him in strict confidence by sources he takes to be highly reliable and credible; and he could not
elaborate on the factual and evidentiary basis of the information without endangering his sources.

By necessity and custom and usage, he relies as a journalist not only on first-hand knowledge but also on information from
sources he has found by experience to be trustworthy. He cannot compromise these sources. He invokes Republic Act No. 53, as
amended by R.A. No. 1477, exempting the publisher, editor or reporter of any publication from revealing the source of published
news or information obtained in confidence, and points out that none of the matters subject of his columns has any bearing on the
security of the state.

c. Resolution of March 2, 1993

Subsequent to the Resolution of February 16, 1993 and before the filing of Jurado's comment above mentioned, the Court received the affidavits of
the executive officials of the two travel agencies mentioned in the affidavit of PLDT Executive Vice-President Vicente R. Samson in relation to
the Jurado column of February 8, 1993: that of Mr. Ermin Garcia, Jr., President of the Citi-World Travel Mart Corporation, dated February 22, 1993,
and that of Mrs. Marissa de la Paz, General Manager of Philway Travel Corporation, dated February 19, 1993. Both denied ever having made any
travel arrangements for any of the Justices of the Supreme Court or their families to Hongkong, clearly and categorically belying the Jurado article.

By Resolution dated March 2, 1993, the Court directed that Jurado be given copies of these two (2) affidavits and that he submit comment thereon, if
desired, within ten (10) days from receipt thereof.

d. Jurado's Supplemental Comment


with Request for Clarification

In response, Jurado filed a pleading entitled "Supplemental Comment with Request for Clarification" dated March 15, 1993. In this pleading he
alleged that the sworn statements of Mr. Ermin Garcia, Jr. and Mrs. Marissa de la Paz are affirmations of matters of their own personal knowledge;
that he (Jurado) had no specific knowledge of "the contents of these, let alone their veracity;" and that the affidavits "bind no one except the affiants
and possibly the PLDT." He also sought clarification on two points as to the capacity in which he is being cited in these administrative
proceedings whether "as full time journalist or as a member of the bar," and why he is being singled out, from all his other colleagues in media
who had also written about wrongdoings in the judiciary, and required to comment in a specific administrative matter before the Court sitting En
Banc so that he might "qualify his comment and/or assert his right and privileges . . . .

e. Resolution of March 18, 1993

Through another Resolution, dated March 18, 1993, the Court directed the Clerk of Court to inform Jurado that the Resolutions of February 16 and
March 2, 1993 had been addressed to him (according to his own depiction) in his capacity as "a full-time journalist" "who coincidentally happens to
be a member of the bar at the same time," and granted him fifteen (15) days from notice" to qualify his comment and/or assert his rights and
privileges . . . in an appropriate manifestation or pleading."

f. Jurado's Manifestation
dated March 31, 1993

Again in response, Jurado filed a "Manifestation" under date of March 31, 1993. He moved for the termination of the proceeding on the following
posited premises:

1. The court has no administrative supervision over him as a member of the press or over his work as a journalist.

2. The present administrative matter is not a citation for (a) direct contempt as there is no pending case or proceeding out of
which a direct contempt charge against him may arise, or (b) indirect contempt as no formal charge for the same has been laid
before the court in accordance with Section 3 (Rule 71) of the Rules of Court.

3. His comments would be more relevant and helpful to the Court if taken together with the other evidence and reports of other
journalists gathered before the Ad Hoc Committee. He perceives no reason why his comments should be singled out and taken up
in a separate administrative proceeding.
It is against this background of the material facts and occurrences that the Court will determine Jurado's liability, if any, for the above mentioned
statements published by him, as well as "such action as may be appropriate" in the premises, as the PLDT asks.

5. Norms for Proper Exercise of


Press Freedom

a. Constitutional Law Norms

In Zaldivar v. Gonzalez (166 SCRA 316 [1988]), the Court underscored the importance both of the constitutional guarantee of free speech and the
reality that there are fundamental and equally important public interests which need on occasion to be balanced against and accommodated with one
and the other. There, the Court stressed the importance of the public interest in the maintenance of the integrity and orderly functioning of the
administration of justice. The Court said: 13

The principal defense of respondent Gonzalez is that he was merely exercising his constitutional right of free speech. He also
invokes the related doctrines of qualified privileged communications and fair criticism in the public interest.

Respondent Gonzalez is entitled to the constitutional guarantee of free speech. No one seeks to deny him that right, least of all
this Court. What respondent seems unaware of is that freedom of speech and of expression, like all constitutional freedoms, is not
absolute and that freedom of expression needs on occasion to be adjusted to and accommodated with the requirements of equally
important public interests. One of these fundamental public interests is the maintenance of the integrity and orderly functioning
of the administration of justice. There is no antinomy between free expression and the integrity of the system of administering
justice. For the protection and maintenance of freedom of expression itself can be secured only within the context of a
functioning and orderly system of dispensing justice, within the context, in other words, of viable independent institutions for
delivery of justice which are accepted by the general community. As Mr. Justice Frankfurter put it:

. . . A free press is not to be preferred to an independent judiciary, nor an independent judiciary to a free
press. Neither has primacy over the other; both are indispensable to a free society.

The freedom of the press in itself presupposes an independent judiciary through which that freedom may, if
necessary, be vindicated. And one of the potent means for assuring judges their independence is a free press.
(Concurring in Pennekamp v. Florida, 328 U.S. 331 at 354-356 [1946]).

Mr. Justice. Malcolm of this Court expressed the same thought in the following terms:

The Organic Act wisely guarantees freedom of speech and press. This constitutional right must be protected
in its fullest extent. The Court has heretofore given evidence of its tolerant regard for charges under the Libel
Law which come dangerously close to its violation. We shall continue in this chosen path. The liberty of the
citizens must be preserved in all of its completeness. But license or abuse of liberty of the press and of the
citizens should not be confused with liberty in its true sense. As important as is the maintenance of an
unmuzzled press and the free exercise of the rights of the citizens is the maintenance of the independence of
the Judiciary. Respect for the Judiciary cannot be had if persons are privileged to scorn a resolution of the
court adopted for good purposes, and if such persons are to be permitted by subterranean means to diffuse
inaccurate accounts of confidential proceedings to the embarrassment of the parties and the court. (In Re
Severino Lozano and Anastacio Quevedo, 54 Phil. 801 at 807 [1930]).

b. Civil Law Norms

The Civil Code, in its Article 19 lays down the norm for the proper exercise of any right, constitutional or otherwise,viz.:

Art. 19. Every person must, in the exercise of his rights and in the performance of his duties, act with justice, give everyone his
due, and observe honesty and good faith.

The provision is reflective of the universally accepted precept of "abuse of rights," "one of the most dominant principles which must be deemed
always implied in any system of law." 14 It parallels too "the supreme norms of justice which the law develops" and which are expressed in three
familiar Latin maxims: honeste vivere, alterum non laedere and jus suum quique tribuere (to live honorably, not to injure others, and to render to
every man his due). 15

Freedom of expression, the right of speech and of the press is, to be sure, among the most zealously protected rights in the Constitution. But every
person exercising it is, as the Civil Code stresses, obliged "to act with justice, give everyone his due, and observe honesty and good faith." The
constitutional right of freedom of expression may not be availed of to broadcast lies or half-truths this would not be "to observe honesty and good
faith;" it may not be used to insult others; destroy their name or reputation or bring them into disrepute. this would not be "to act with justice" or
"give everyone his due."

c. Philippine Journalist's
Code of Ethics

Also relevant to the determination of the propriety of Jurado's acts subject of the inquiry at bar are the norms laid down in "The Philippine
Journalist's Code of Ethics." The Code was published in the issue of February 11, 1993 of the Manila Standard, for which Jurado writes, as part of the
paper's "Anniversary Supplement." The first paragraph of the Code, 16 and its corresponding annotations, read as follows:

1. I shall scrupulously report and interpret the news, taking care not to suppress essential facts nor to distort the truth by improper
omission or emphasis. I recognize the duty to air the other side and the duty to correct substantive errors promptly.

1. Scrupulous news gathering and beat coverage is required. Relying exclusively on the telephone or on what
fellow reporters say happened at one's beat is irresponsible.
2. The ethical journalist does not bend the facts to suit his biases or to please benefactors.He gathers all the
facts, forms a hypothesis, verifies it and arrives at an honest interpretation of what happened.

3. The duty to air the other side means that the journalist must contact the person or persons against whom
accusations are lodged. A court proceeding provides for this balance by presenting the prosecution and then
the defense. A news story or editorial column that fails to present the other side is like a court that does not
hear the side of the defense.

4. Correcting substantive errors is the mark of mature newspapers like the New York Times, the International
Herald Tribune, and some of Manila's papers.

d. Right to Private Honor


and Reputation

In the present proceeding, there is also involved an acknowledged and important interest of individual persons: the right to private reputation. Judges,
by becoming such, are commonly and rightly regarded as voluntarily subjecting themselves to norms of conduct which embody more stringent
standards of honesty, integrity, and competence than are commonly required from private persons. 17 Nevertheless, persons who seek or accept from
appointment to the Judiciary cannot reasonably be regarded as having thereby forfeited any right whatsoever to private honor and reputation. For so
to rule will be simply, in the generality of cases, to discourage all save those who feel no need to maintain their self-respect as a human being in
society, from becoming judges, with obviously grievous consequences for the quality of our judges and the quality of the justice that they will
dispense. Thus, the protection of the right of individual persons to private reputations is also a matter of public interest and must be reckoned with as
a factor in identifying and laying down the norms concerning the exercise of press freedom and free speech.

Clearly, the public interest involved in freedom of speech and the individual interest of judges (and for that matter, all other public officials) in the
maintenance of private honor and reputation need to be accommodated one to the other. And the point of adjustment or accommodation between
these two legitimate interest is precisely found in the norm which requires those who, invoking freedom of speech, publish statements which are
clearly defamatory to identifiable judges or other public officials to exercise bona fide care in ascertaining the truth of the statements they publish.
The norm does not require that a journalist guarantee the truth of what he says or publishes. But the norm does prohibit the reckless disregard of
private reputation by publishing or circulating defamatory statements without any bona fide effort to ascertain the truth thereof. That this norm
represents the generally accepted point of balance or adjustment between the two interests involved is clear from a consideration of both the pertinent
civil law norms and the Code of Ethics adopted by the journalism profession in the Philippines. 17a

6. Analysis of Jurado Columns

a. Re "Public Utility Firm"

Now, Jurado's allegation in his column of February 8, 1993 "that six justices, their spouses, children and grandchildren (a total of 36 persons)
spent a vacation in Hong Kong some time last year and that luxurious hotel accommodations and all their other expenses were paid by a public
utility firm and that the trip reportedly was arranged by the travel agency patronized by this public utility firm," supra is in the context of the facts
under which it was made easily and quickly perceived as a transparent accusation that the PLDT had bribed or "rewarded" six (6) justices for their
votes in its favor in the case of "Philippine Long Distance Telephone Company v. Eastern Telephone Philippines, Inc. (ETPI)," G.R. No. 94374, 18 by
not only paying all their expenses i.e., hotel accommodations and all other expenses for the trip but also by having one of its own travel
agencies arrange for such a trip.

As already stated, that allegation was condemned as a lie, an outright fabrication, by the PLDT itself, through one of its responsible officers, Mr.
Vicente Samson, as well as by the heads of the two (2) travel agencies "patronized by it," Ermin Garcia, Jr. and Marissa de la Paz, supra.

That categorical denial logically and justly placed on Jurado the burden of proving the truth of his grave accusation, or showing that it had been made
through some honest mistake or error committed despite good faith efforts to arrive at the truth, or if unable to do either of these things, to offer to
atone for the harm caused.

But the record discloses that Jurado did none of these things. He exerted no effort whatever to contest or qualify in any manner whatever the
emphatic declaration of PLDT Vice-President Samson that

While the name of the public utility which supposedly financed the alleged vacation of the Justices in Hongkong has not been
disclosed in the Jurado column, the publication thereof, taken in relation to the spate of recent newspaper reports alleging that the
decision of the Supreme Court, penned by Mr. Justice Hugo E. Gutierrez, Jr., in the pending case involving the PLDT and
Eastern Telecommunications Phils., Inc. was supposedly ghost written by a lawyer of PLDT, gives rise to the innuendo or unfair
inference that Emil Jurado is alluding to PLDT in the said column; and, this in fact was the impression or perception of those who
talked to me and the other officers of the PLDT after having read the Jurado column.

The record shows that he made no effort whatsoever to impugn, modify, clarify or explain Samson's positive assertion that:

. . . (the PLDT) has never paid for any such trip, hotel or other accommodations for any justice of the Supreme Court or his
family during their vacation, if any, in Hongkong last year. It is not even aware that any of the justices or their families have
made the trip referred to in the Jurado column;

. . . neither Atty. Emil P. Jurado nor any one in his behalf has ever spoken to me or any other responsible officer of PLDT about
the matter. . .;

. . . PLDT . . . (never) talked to or made arrangements with any travel agency or any person or entity in connection with any such
alleged trip of the Justices and their families to Hongkong, much less paid anything therefor to such agencies, fully or in part, in
the year 1992 as referred to in Par. 2 hereinabove;

What appears from the record is that without first having made an effort to talk to any one from the PLDT or the Supreme Court to ascertain the
veracity of his serious accusation, Jurado went ahead and published it.
His explanation for having aired the accusation consists simply of a declaration that Samson's affidavit, as well as the affidavits of the heads of the
two travel agencies regularly patronized by it, were just assertions of the affiants' belief and opinion; and that he (Jurado) would not comment on
them except to say that while they are entitled to their beliefs and opinions, these were binding on them only. This is upon its face evasion of duty of
the most cavalier kind; sophistry of the most arrant sort. What is made plain is that Jurado is in truth unable to challenge any of the averments in the
affidavits of PLDT and its travel agencies, or otherwise substantiate his accusation, and that his is a mere resort to semantics to justify the
unjustifiable. What is made plain is that his accusation is false, and possesses not even the saving grace of honest error.

If relying on second-hand sources of information is, as the Journalists' Code states, irresponsible, supra, then indulging in pure speculation or gossip
is even more so; and a failure to "present the other side" is equally reprehensible, being what in law amounts to a denial of due process.

b. Re Equitable Bank Party

Jurado is also shown by the record to have so slanted his report of the birthday luncheon given by Atty. William Veto (the "in-house counsel of
Equitable Banking Corporation since 1958") as to project a completely false depiction of it. His description of that affair (in the Manila Standard
issues of January 12 and 28, 1993) as having been hosted by the Equitable Bank "at its penthouse mainly for some justices, judges, prosecutors and
law
practitioners . . . , carries the sanctimonious postscript already quoted, putting the rhetorical question about how such fraternization affects the
chances in court of lawyers outside that charmed circle.

When confronted with Veto's affidavit to the effect that the party was given by him at his (Veto's) own expense, the food having been prepared by his
wife in his house, and served by his house help and waiters privately hired by him; that he had invited many persons including friends of long
standing, among them justices of the Supreme Court and the Court of Appeals; and that the party had been held in the Officers' Lounge of Equitable
Bank, instead of his home, as in years past, to suit the convenience of his guests because his birthday fell on a working day, Jurado could not, or
would not deign to, contradict any of those statements. He merely stated that Veto's affidavit substantially corroborated what he had written in vital
details, which is obviously far from correct.

Most importantly, the record does not show that before he published that story, Jurado ever got in touch with Veto or anyone in Equitable Bank,
Ermita Branch, to determine the accuracy of what he would later report. If he did, he would quickly have learned that his sources, whoever or
whatever they were, were not to be relied upon. If he did not, he was gravely at fault at the very least for disregarding the Journalist's Code of
Ethics in failing to exertbona fide efforts to verify the accuracy of his information.

In either case, his publication of the slanted, therefore misleading and false, report of the affair is censurable. His proffered explanation that the
justices having confirmed their presence at the luncheon, thus corroborating what he had written in vital details and making further substantiation
unnecessary, and that his report constituted fair comment on the public conduct of public officers, obviously does not at all explain why a party given
by Atty. Vetowas reported by him as one tendered by Equitable Bank. The only conclusion that may rationally be drawn from these circumstances is
that Jurado, unable to advance any plausible reason for the conspicuous divergence between what in fact transpired and what he reported, again
resorts to semantics and sophistry to attempt an explanation of the unexplainable. Paraphrasing the Code of Ethics, he failed to scrupulously report
and interpret the news; on the contrary, his failure or refusal to verify such essential facts as who really hosted and tendered the luncheon and spent
for it, and his playing up of the Bank's supposed role as such host have resulted in an improper suppression of those facts and a gross distortion of the
truth about them.

c. Re Other Items

Jurado disregarded the truth again, and in the process vilified the Supreme Court, in the item in his column of February 3, 1993 already adverted
to, 19 and more fully quoted as follows:

When lawyers speak of the "Magnificent Seven" one has to make sure which group they are referring to. Makati's "Magnificent
Seven" are a bunch of Makati regional trial court judges who fix drug related cases. The "Magnificent Seven" in the Supreme
Court consists of a group of justices who vote as one."

About the last (italicized) statement there is, as in other accusations of Jurado, not a shred of proof; and the volumes of the Supreme Court Reports
Annotated (SCRA) in which are reported the decisions of the Supreme Court En Banc for the year 1992 (January to December) and for January 1993,
divulge not a single non-unanimous decision or resolution where seven (7) justices voted "as one," nor any group of decisions or resolutions where
the recorded votes would even suggest the existence of such a cabal.

This is yet another accusation which Jurado is unable to substantiate otherwise than, as also already pointed out, by invoking unnamed and
confidential sources which he claims he considers highly credible and reliable and which would be imperiled by elaborating on the information
furnished by them. He would justify reliance on those sources on grounds of necessity, custom and usage and claim the protection of Republic Act
No. 53, as amended by Republic Act No. 1477 from forced, revelation of confidential news sources except when demanded by the security of the
state. 20

Surely it cannot be postulated that the law protects a journalist who deliberately, prints lies or distorts the truth; or that a newsman may escape
liability who publishes derogatory or defamatory allegations against a person or entity, but recognizes no obligation bona fide to establish beforehand
the factual basis of such imputations and refuses to submit proof thereof when challenged to do so. It outrages all notions of fair play and due
process, and reduces to uselessness all the injunctions of the Journalists' Code of Ethics to allow a newsman, with all the potential of his profession to
influence popular belief and shape public opinion, to make shameful and offensive charges destructive of personal or institutional honor and repute,
and when called upon to justify the same, cavalierly beg off by claiming that to do so would compromise his sources and demanding acceptance of
his word for the reliability of those sources.

Jurado's other writings already detailed here are of the same sort. While it might be tedious to recount what has already been stated about the nature
and content of those writings, it is necessary to do so briefly in order not only to stress the gravity he makes, but also to demonstrate that his response
to the call for their substantiation has been one of unvarying intransigence: an advertance to confidential sources with whose reliability he professes
satisfaction and whom fuller disclosure would supposedly compromise.

There can be no doubt of the serious and degrading character not only to the Court of Appeals, but also to the judiciary in general of his
columns of November 9, 1992 and January 29, 1993 concerning an unnamed former justice of the Court of Appeals who had allegedly turned "fixer"
for five of the Court's divisions and who, for the right price, could guarantee that a party's lawyer could write his own decision for and in the name of
the ponente; and of his column of March 24, 1993 to the effect that anywhere from P30,000 to P50,000 could buy a temporary restraining order from
a regional trial court in Manila.

The litany of falsehoods, and charges made without bona fide effort at verification or substantiation, continues:

(a) Jurado's column of January 30, 1993 about eight (8) Makati judges who were "handsomely paid" for decisions favoring drug-
traffickers and other big-time criminals was based on nothing more than raw intelligence contained is confidential police report.
It does not appear that any part of that report has been reliably confirmed.

(b) He has refused to offer any substantiation, either before the Ad Hoc Committee or in this proceeding, for his report of October
27, 1992 concerning an unnamed lady secretary of a Makati RTC Judge who, besides earning at least P10,000 for making sure a
case is raffled off to a "sympathetic" judge, can also arrange the issuance of attachments and injunctions for a fee of one (1%)
percent over and above usual premium for the attachment or injunction bond, a fee that in one instance amounted to P300,000.

(c) His report (columns of January 16 and 29, 1993) that the Judicial and Bar Council acted contrary to ethics and delicadeza in
nominating to the Court of Appeals a son and a nephew of its members is completely untrue. The most cursory review of the
records of the Council will show that since its organization in 1987, there has not been a single instance of any son or nephew of
a member of the Council being nominated to the Court of Appeals during said member's incumbency; and in this connection, he
mistakenly and carelessly identified RTC Judge Rosalio de la Rosa as the nephew of Justice (and then Member of the Judicial
and Bar Council) Lorenzo Relova when the truth, which he subsequently learned and admitted, was that the person referred to
was Judge Joselito de la Rosa, the son-in-law, not the nephew, of Justice Relova. Had he bothered to make any further
verification, he would have learned that at all sessions of the Council where the nomination of Judge Joselito de la Rosa was
considered, Justice Relova not only declined to take part in the deliberations, but actually left the conference room; and he would
also have learned that Judge Rosalio de la Rosa had never been nominated indeed, to this date, he has not been nominated to
the Court of Appeals.

(d) He has recklessly slandered the Judicial and Bar Council by charging that it has improperly made nominations to the Court of
Appeals on considerations other than of merit or fitness, through the manipulations of the Council's Secretary, Atty. Daniel
Martinez; or because the nominee happens to be a relative of a member of the Council (e.g., Judge Joselito de la Rosa, initially
identified as Judge Rosalio de la Rosa) or of the Supreme Court (he could name none so situated); or has powerful political
sponsor (referring to RTC Judge Conrado Vasquez, Jr., son and namesake of the Ombudsman). Acceptance of the truth of these
statements is precluded, not only by the familiar and established presumption of regularity in the performance of official
functions, but also, and even more conclusively by the records of the Judicial and Bar Council itself, which attest to the
qualifications of Atty. Daniel Martinez, Clerk of Court of the Supreme Court, Judge Joselito de la Rosa, and Judge Conrado
Vasquez, Jr., for membership in the Appellate Tribunal;

(e) Equally false is Jurado's report (column of January 25, 1993) that nomination to the Court of Appeals of some worthy
individuals like Quezon City RTC Judge Maximiano Asuncion, and Atty. Raul Victorino (who was closely identified with former
Senate President Salonga) had been blocked because they had "incurred the ire of the powers that be," the truth, which could very
easily have been verified, being that a pending administrative case against Judge Asuncion had stood in the way of his
nomination, and since Mr. Victorino had been sponsored or recommended by then Senate President Salonga himself, the fact that
he was not nominated can hardly be attributed to the hostility or opposition of persons in positions of power or influence.

(f) Jurado was similarly unfair, untruthful and unfoundedly judgmental in his reporting about Executive Judge Rosalio de la Rosa
of the Manila Regional Trial Court as:

(1) having been nominated to the Court of Appeals by the Judicial and Bar Council chiefly, if not only, by
reason of being the nephew of Justice Relova and the cousin of Chief Justice Narvasa, the truth, as already
pointed out, being that Judge Rosalio de la Rosa had never been thus nominated to the Court of Appeals, the
nominee having been JudgeJoselito de la Rosa, the son-in-law (not nephew) of Justice Relova; and

(2) having discarded the rule that cases seeking provisional remedies should be raffled off to the judges
(column of January 28, 1993) and adopted a system of farming out applications for temporary restraining
orders, etc., among all the branches of the court; here again, Jurado is shown to have written without
thinking, and made statements without verifying the accuracy of his information or seeking the views of the
subject of his pejorative statements; the merest inquiry would have revealed to him that while Circular No. 7
dated September 23, 1974 requires that no case may be assigned in multi-sala courts without raffle (for
purposes of disposition on the merits), Administrative Order No. 6, dated June 30, 1975 (Sec. 15, Par.
IV), 21 empowers Executive Judges to act on all applications for provisional remedies (attachments,
injunctions, or temporary restraining orders, receiverships, etc.), or on interlocutory matters before raffle, in
order to "balance the workload among courts and judges, (Sec. l, par. 2, id.), and exercise such other powers
and prerogatives as may in his judgment be necessary or incidental to the performance of his functions as a
Court Administrator" (Sec. 7, par. 1, id.) these provisions being broad enough, not only to authorize
unilateral action by the Executive Judge himself on provisional remedies and interlocutory matters even prior
to raffle of the main case, but also to delegate the authority to act thereon to other judges.

Jurado does not explain why: (1) he made no effort to verify the state of the rules on the matter; (2) he
precipitately assumed that the views of Judge Teresita Dy-Liaco Flores, whose complaint on the subject he
claims he merely summarized, were necessarily correct and the acts of Judge de la Rosa necessarily wrong or
improper; and (3) he did not try to get Judge de la Rosa's side at all.

Common to all these utterances of Jurado is the failure to undertake even the most cursory verification of their objective truth; the
abdication of the journalist's duty to report and interpret the news with scrupulous fairness; and the breach of the law's injunction that a
person act with justice, give everyone his due and observe honesty and good faith both in the exercise of his rights and in the performance
of his duties.

7. Jurado's Proffered Excuses


and Defenses
The principle of press freedom is invoked by Jurado in justification of these published writings. That invocation is obviously unavailing in light of
the basic postulates and the established axioms or norms for the proper exercise of press freedom earlier set forth in this opinion. 22

Jurado next puts in issue this Court's power to cite him for contempt. The issue is quickly disposed of by adverting to the familiar principle
reiterated inter alia in Zaldivar v. Gonzales: 23

. . . (T)he Supreme Court has inherent power to punish for contempt, to control in the furtherance of justice the conduct of
ministerial officers of the Court including lawyers and all other persons connected in any manner with a case before the Court (In
re Kelly, 35 Phil. 944 [1916]; In re Severino Lozano and Anastacio Quevedo, 54 Phil. 801 (1930]; In re Vicente Pelaez, 44 Phil.
567 [1923]; and In re Vicente Sotto, 82 Phil. 595 [1949]). The power to punish for contempt is "necessary for its own protection
against improper interference with the due administration of justice," "(i)t is not dependent upon the complaint of any of the
parties litigant" (Halili v. Court of Industrial Relations, 136 SCRA 112 [1985]; Andres v. Cabrera, 127 SCRA 802 [1984];
Montalban v. Canonoy, 38 SCRA 1 [1971]; Commissioner of Immigration v. Cloribel, 20 SCRA 1241 [1967]; Herras Teehankee
v. Director of Prisons, 76 Phil. 630 [1946]).

Contempt is punishable, even if committed without relation to a pending case. Philippine jurisprudence parallels a respectable array of English
decisions holding contumacious scurrilous attacks against the courts calculated to bring them into disrepute, even when made after the trial stage or
after the end of the proceedings. The original doctrine laid down in People vs. Alarcon 24 that there is no contempt if there is no pending case
has been abandoned in subsequent rulings of this Court which have since adopted the Moran dissent therein, 25 viz.:

Contempt, by reason of publications relating to court and to court proceedings, are of two kinds. A publication which tends to
impede, obstruct, embarrass or influence the courts in administering justice in a pending suit or proceeding, constitutes criminal
contempt which is summarily punishable by courts. This is the rule announced in the cases relied upon by the majority. A
publication which tends to degrade the courts and to destroy public confidence in them or that which tends to bring them in any
way into disrepute, constitutes likewise criminal contempt, and is equally punishable by courts. In the language of the majority,
what is sought, in the first kind of contempt, to be shielded against the influence of newspaper comments, is the all-important
duty of the courts to administer justice in the decision of a pending case. In the second kind of contempt, the punitive hand of
justice is extended to vindicate the courts from any act or conduct calculated to bring them into disfavor or to destroy public
confidence in them. In the first, there is no contempt where there is no action pending, as there is no decision which might in any
be influenced by the newspaper publication. In the second, the contempt exists, with or without a pending case, as what is sought
to be protected is the court itself and its dignity. (12 Am. Jur. pp. 416-417.) Courts would lose their utility if public confidence in
them is destroyed.

The foregoing disposes of Jurado's other contention that the present administrative matter is not a citation for direct contempt, there being no pending
case or proceeding out of which a charge of direct contempt against him may arise; this, even without regard to the fact that the statements made by
him about sojourn in Hongkong of six Justices of the Supreme Court were clearly in relation to a case involving two (2) public utility companies,
then pending in this Court. 26

His theory that there is no formal charge against him is specious. His published statements about that alleged trip are branded as false in no uncertain
terms by the sworn statement and letter of Vice-President Vicente R. Samson of the Philippine Long Distance Telephone Company which:

(a) "emphatically and categorically" deny that PLDT had made any arrangements with any travel agency, or with the two travel
agencies it patronized or retained, or paid anything, on account of such alleged trip;

(b) positively affirm (i) that PLDT was "not even aware that any of the justices or their families . . . (had) made the trip referred
to in the Jurado column," and (ii) that neither Atty. Emil P. Jurado nor anyone in his behalf has ever spoken to . . . (said Mr.
Samson) or any other responsible officer of PLDT about the matter . . .; and

(c) beseech the Court to "take such action (on the matter) as may be appropriate.

As already stated, the Court, in its Resolution of February 16, 1993:


(a) ordered the subject of Samson's letter and affidavit docketed as an official Court proceeding to determine the truth of Jurado's allegations about it;
and
(b) directed also that Jurado be furnished copies of Atty. William Veto's affidavit on the luncheon party hosted by him (which Jurado reported as one
given by Equitable Bank) and that Jurado file comment on said affidavits as well as allegations in specified columns of his. Jurado was also furnished
copies of the affidavits later submitted by the two travel agencies mentioned in Samson's statement, and was required to comment thereon.

It was thus made clear to him that he was being called to account for his published statements about the matters referred to, and that action would be
taken thereon against him as "may be appropriate." That that was in fact how he understood it is evident from his submitted defenses, denying or
negativing liability for contempt, direct indirect. Indeed, as journalist of no little experience and a lawyer to boot, he cannot credibly claim an
inability to understand the nature and import of the present proceedings.

Jurado would also claim that the Court has no administrative supervision over him as a member of the press or over his work as a journalist, and asks
why he is being singled out, and, by being required to submit to a separate administrative proceeding, treated differently than his other colleagues in
media who were only asked to explain their reports and comments about wrongdoing in the judiciary to the Ad Hoc Committee. The answer is that
upon all that has so far been said, the Court may hold anyone to answer for utterances offensive to its dignity, honor or reputation which tend to put it
in disrepute, obstruct the administration of justice, or interfere with the disposition of its business or the performance of its functions in an orderly
manner. Jurado has not been singled out. What has happened is that there have been brought before the Court, formally and in due course, sworn
statements branding his reports as lies and thus imposing upon him the alternatives of substantiating those reports or assuming responsibility for their
publication.

Jurado would have the Court clarify in what capacity whether a journalist, or as a member of the bar he has been cited in these proceeding.
Thereby he resurrects the issue he once raised in a similar earlier proceeding: that he is being called to account as a lawyer for his statements as a
journalist. 27 This is not the case at all. Upon the doctrines and principles already inquired into and cited, he is open to sanctions as journalist who has
misused and abused press freedom to put the judiciary in clear and present to the danger of disrepute and of public obdium and opprobrium,
detriment and prejudice of the administration of justice. That he is at the same time a member of the bar has nothing to do with the setting in of those
sanctions, although it may aggravate liability. At any rate, what was said about the matter in that earlier case is equally cogent here:
Respondent expresses perplexity at being called to account for the publications in question in his capacity as a member of the bar,
not as a journalist. The distinction is meaningless, since as the matter stands, he has failed to justify his actuations in either
capacity, and there is no question of the Court's authority to call him to task either as a newsman or as a lawyer. What respondent
proposes is that in considering his actions, the Court judge them only as those of a member of the press and disregard the fact that
he is also a lawyer. But his actions cannot be put into such neat compartments. In the natural order of things, a person's acts are
determined by, and reflect, the sum total of his knowledge, training and experience. In the case of respondent in particular the
Court will take judicial notice of the frequent appearance in his regular columns of comments and observations utilizing legal
language and argument, bearing witness to the fact that in pursuing his craft as a journalist he calls upon his knowledge as a
lawyer to help inform and influence his readers and enhance his credibility. Even absent this circumstance, respondent cannot
honestly assert that in exercising his profession as journalist he does not somehow, consciously or unconsciously, draw upon his
legal knowledge and training. It is thus not realistic, nor perhaps even possible, to come to fair, informed and intelligent judgment
of respondent's actuations by divorcing from consideration the fact that he is a lawyer as well as a newspaperman, even
supposing, which is not the case that he may thereby be found without accountability in this matter.

To repeat, respondent cannot claim absolution even were the Court to lend ear to his plea that his actions be judged solely as
those of a newspaperman unburdened by the duties and responsibilities peculiar to the law profession of which he is also a
member.

8. The Dissents

The eloquent, well-crafted dissents of Messrs. Justices Puno and Melo that would invoke freedom of the press to purge Jurado's conduct of any taint
of contempt must now be briefly addressed.

a. Apparent Misapprehension
of Antecedents and Issue

Regrettably, there appears to be some misapprehension not only about the antecedents directly leading to the proceedings at bar but also the basic
issues involved.

The dissents appear to be of the view, for instance, that it was chiefly Jurado's failure to appear before the Ad HocCommittee in response to two (2)
letters of invitation issued to him, that compelled the Court to order the matter to be docketed on February 16, 1993 and to require respondent Jurado
to file his Comment. This is not the case at all. As is made clear in Sub-Heads 3 and 4 of this opinion, supra, the direct cause of these proceedings
was not Jurado's refusal to appear and give evidence before the Ad Hoc Committee. The direct cause was the letters of PLDT and Atty. William Veto,
supported by affidavits, denouncing certain of his stories as false, 28 with the formerpraying that the Court take such action as may be appropriate.
And it was precisely "the matter dealt with in the letter and affidavit of the PLDT" that this Court ordered to "be duly DOCKETED, and hereafter
considered and acted upon as an official Court proceeding;" this, by Resolution dated February 16, 1993; the Court also requiring, in the same
Resolution, "that the Clerk of Court SEND COPIES of the PLDT letter and affidavit, and of the affidavit of Atty. William Veto to Atty. Emil Jurado .
. .," and that Jurado should comment thereon "as well as (on) the allegations made by him in his columns, herein specified" because of explicit
claims, and indications of the falsity or, inaccuracy thereof.

There thus also appears to be some misapprehension of the basic issues, at least two of which are framed in this wise: (1) the right of newsmen to
refuse subpoenas, summons, or "invitations" to appear in administrative investigations," and (2) their right "not to reveal confidential sources of
information under R.A. No. 53, as amended" which are not really involved here in respect of which it is theorized that the majority opinion will
have an inhibiting effect on newsmen's confidential sources of information, and thereby abridges the freedom of the press.

(1) No Summons or Subpoena


Ever Issued to Jurado

The fact is that no summons or subpoena was ever issued to Jurado by the Ad Hoc Committee; nor was the issuance of any such or similar processes,
or any punitive measures for disobedience thereto, intended or even contemplated. Like most witnesses who gave evidence before the Committee,
Jurado was merely invited to appear before it to give information in aid of its assigned task of ascertaining the truth concerning persistent rumors and
reports about corruption in the judiciary. When he declined to accept the invitations, the Ad Hoc Committee took no action save to inform the Court
thereof; and the Court itself also took no action. There is thus absolutely no occasion to ascribe to that investigation and the invitation to appear
thereat a "chilling effect" on the by and large "hard-boiled" and self-assured members of the media fraternity. If at all, the patience and forbearance of
the Court, despite the indifference of some of its invitees and projected witnesses, appear to have generated an attitude on their part bordering on
defiant insolence.

(2) No Blanket Excuse Under RA 53


From Responding to Subpoena

Even assuming that the facts were as presented in the separate opinion, i.e., that subpoenae had in fact been issued to and served on Jurado, his
unexplained failure to obey the same would prima facie constitute constructive contempt under Section 3, Rule 71 of the Rules of Court. It should be
obvious that a journalist may not refuse to appear at all as required by a subpoena on the bare plea that under R.A. No 53, he may not be compelled
to disclose the source of his information. For until he knows what questions will be put to him as witness for which his presence has been
compelled the relevance of R.A. No. 53 cannot be ascertained. His duty is clear. He must obey the subpoena. He must appear at the appointed
place, date and hour, ready to answer questions, and he may invoke the protection of the statute only at the appropriate time.

b. The Actual Issue

The issue therefore had nothing to do with any failure of Jurado's to obey a subpoena, none ever having been issued to him, and the Ad
Hoc Committee having foreborne to take any action at all as regards his failure to accept its invitations. The issue, as set out in the opening sentence
of this opinion, essentially concerns "(l)iability for published statements demonstrably false or misleading, and derogatory of the courts and
individual judges."

Jurado is not being called to account for declining to identify the sources of his news stories, or for refusing to appear and give testimony before
the Ad Hoc Committee. He is not being compelled to guarantee the truth of what he publishes, but to exercise honest and reasonable efforts to
determine the truth of defamatory statements before publishing them. He is being meted the punishment appropriate to the publication of stories
shown to be false and defamatory of the judiciary stories that he made no effort whatsoever to verify and which, after being denounced as lies, he
has refused, or is unable, to substantiate.

c. RA 53 Confers No Immunity from Liability


for False or Defamatory Publications

This opinion neither negates nor seeks to enervate the proposition that a newsman has a right to keep his sources confidential; that he cannot be
compelled by the courts to disclose them, as provided by R.A. 53, unless the security of the State demands such revelation. But it does hold that he
cannot invoke such right as a shield against liability for printing stories that are untrue and derogatory of the courts, or others. The ruling, in other
words, is that when called to account for publications denounced as inaccurate and misleading, the journalist has the option (a) to demonstrate their
truthfulness or accuracy even if in the process he disclose his sources, or (b) to refuse, on the ground that to do so would require such disclosure. In
the latter event, however, he must be ready to accept the consequences of publishing untruthful or misleading stories the truth and accuracy of which
he is unwilling or made no bona fide effort to prove; for R.A. 53, as amended, is quite unequivocal that the right of refusal to disclose sources is
"without prejudice to . . . liability under civil and criminal laws."

R.A. 53 thus confers no immunity from prosecution for libel or for other sanction under law. It does not declare that the publication of any news
report or information which was "related in confidence" to the journalist is not actionable; such circumstance (of confidentiality) does not purge, the
publication of its character as defamatory, if indeed it be such, and actionable on that ground. All it does is give the journalist the right to refuse (or
not to be compelled) to reveal the source of any news report published by him which was revealed to him in confidence.

A journalist cannot say, e.g.: a person of whose veracity I have no doubt told me in confidence that Justices X and Y received a bribe of P1M each
for their votes in such and such a case, or that a certain Judge maintains a mistress, and when called to account for such statements, absolve himself
by claiming immunity under R.A. 53, or invoking press freedom.

d. A Word about "Group Libel"

There is hardly need to belabor the familiar doctrine about group libel and how it has become the familiar resort of unscrupulous newsmen who can
malign any number of anonymous members of a common profession, calling or persuasion, thereby putting an entire institution like the judiciary
in this case in peril of public contumely and mistrust without serious risk of being sued for defamation. The preceding discussions have revealed
Jurado's predilection for, if not his normal practice of, refusing to specifically identify or render identifiable the persons he maligns. Thus, he speaks
of the "Magnificent Seven," by merely referring to undisclosed regional trial court judges in Makati; the "Magnificent Seven" in the Supreme Court,
as some undesignated justices who supposedly vote as one; the "Dirty Dozen," as unidentified trial judges in Makati and three other cities. He adverts
to an anonymous group of justices and judges for whom a bank allegedly hosted a party; and six unnamed justices of this Court who reportedly spent
a prepaid vacation in Hong Kong with their families. This resort to generalities and ambiguities is an old and familiar but reprehensible expedient of
newsmongers to avoid criminal sanctions since the American doctrine of group libel is of restricted application in this jurisdiction. For want of a
definitely identified or satisfactorily identifiable victim, there is generally no actionable libel, but such a craven publication inevitably succeeds in
putting all the members of the judiciary thus all together referred to under a cloud of suspicion. A veteran journalist and lawyer of long standing that
he is, Jurado could not have been unaware of the foregoing realities and consequences.

e. Substantiation of News Report


Not Inconsistent with RA 53

It is argued that compelling a journalist to substantiate the news report or information confidentially revealed to him would necessarily negate or
dilute his right to refuse disclosure of its source. The argument will not stand scrutiny.

A journalist's "source" either exists or is fictitious. If the latter, plainly, the journalist is entitled to no protection or immunity whatsoever.

If the "source" actually exists, the information furnished is either capable of independent substantiation, or it is not. If the first, the journalist's duty is
clear: ascertain, if not obtain, the evidence by which the information may be verifiedbefore publishing the same; and if thereafter called to account
therefor, present such evidence and in the process afford the party adversely affected thereby opportunity to dispute the information or show it to be
false.

If the information is not verifiable, and it is derogatory of any third party, then it ought not to be published for obvious reasons. It would be unfair to
the subject of the report, who would be without means of refuting the imputations against him. And it would afford an unscrupulous journalist a
ready device by which to smear third parties without the obligation to substantiate his imputations by merely claiming that the information had been
given to him "in confidence".

It is suggested that there is another face to the privileged character of a journalist's source of information than merely the protection of the journalist,
and that it is intended to protect also the source itself. What clearly is implied is that journalist may not reveal his source without the latter's clearance
or consent. This totally overlooks the fact that the object of a derogatory publication has at least an equal right to know the source thereof and, if
indeed traduced, to the opportunity of obtaining just satisfaction from the traducer.

9. Need for Guidelines

Advertences to lofty principle, however eloquent and enlightening, hardly address the mundane, but immediate and very pertinent, question of
whether a journalist may put in print unverified information derogatory of the courts and judges and yet remain immune from liability for contempt
for refusing, when called upon, to demonstrate their truth on the ground of press freedom or by simply claiming that he need not do so since (or if) it
would compel him to disclose the identity of his source or sources.

The question, too, is whether or not we are prepared to say that a journalist's obligation to protect his sources of information transcends, and is greater
than, his duty to the truth; and that, accordingly, he has no obligation whatsoever to verify, or exercise bona fide efforts to verify, the information he
is given or obtain the side of the party adversely affected before he publishes the same.

True, the pre-eminent role of a free press in keeping freedom alive and democracy in full bloom cannot be overemphasized. But it is debatable if that
role is well and truly filled by a press let loose to print what it will, without reasonable restraints designed to assure the truth and accuracy of what is
published. The value of information to a free society is in direct proportion to the truth it contains. That value reduces to little or nothing when it is no
longer possible for the public to distinguish between truth and falsehood in news reports, and the courts are denied the mechanisms by which to make
reasonably sure that only the truth reaches print.

a. No Constitutional Protection for Deliberately


False or Recklessly Inaccurate Reports

It is worth stressing that false reports about a public official or other person are not shielded from sanction by the cardinal right to free speech
enshrined in the Constitution. Even the most liberal view of free speech has never countenanced the publication of falsehoods, specially the persistent
and unmitigated dissemination of patent lies. The U.S. Supreme Court, 29 while asserting that "(u)nder the First Amendment there is no such thing as
a false idea," and that "(h)owever pernicious an opinion may seem, we depend for its correction not on the conscience of judges and juries but on the
competition of other ideas" (citing a passage from the first Inaugural Address of Thomas Jefferson), nonetheless made the firm pronouncement that
"there is no constitutional value in false statements of fact," and "the erroneous statement of fact is not worthy of constitutional protection (although)
. . . nevertheless inevitable in free debate." "Neither the intentional lie nor the careless error," it said, "materially advances society's interest in
"unhibited, robust, and wide-open" debate on public issues. New York Times Co. v. Sullivan, 376 US, at 270, 11 L Ed 2d 686, 95 ALR2d 1412. They
belong to that category of utterances which "are no essential part of any exposition of ideas, and are of such slight social value as a step to the truth
that any benefit that may be derived from them is clearly outweighed by the social interest in order and morality." Chaplinsky v, new Hampshire, 315
US 568, 572, 86 L Ed 1031, 62 S Ct 766 (1942).

"The use of calculated falsehood," it was observed in another case, 30 "would put a different cast on the constitutional question. Although honest
utterances, even if inaccurate, may further the fruitful exercise of the right of free speech, it does not follow that the lie, knowingly and deliberately
published about a public official, should enjoy a like immunity. . . . (T)he knowingly false statement and the false statement made with reckless
disregard of the truth, do not enjoy constitutional protection."

Similarly, in a 1969 case concerning a patently false accusation made against a public employee avowedly in fulfillment of a "legal, moral, or social
duty," 31 this Court, through the late Chief Justice Roberto Concepcion, ruled that the guaranty of free speech cannot be considered as according
protection to the disclosure of lies, gossip or rumor, viz.:

. . . Defendant's civil duty was to help the Government clean house and weed out dishonest, unfit or disloyal officers and
employees thereof, where there is reasonable ground to believe that they fall under this category. He had no legal right, much
less duty, to gossip, or foster the circulation of rumors, or jump at conclusions and more so if they are gratuitous or groundless.
Otherwise, the freedom of speech, which is guaranteed with a view to strengthening our democratic institutions and promoting
the general welfare, would be a convenient excuse to engage in the vituperation of individuals, for the attainment of private,
selfish and vindictive ends, thereby hampering the operation of the Government with. administrative investigations of charges
preferred without any color or appearance of truth and with no other probable effect than the harassment of the officer or
employee concerned, to the detriment of public service and public order.

b. No "Chilling Effect"

The fear expressed, and earlier adverted to, that the principles here affirmed would have a "chilling effect" on media professionals, seems largely
unfounded and should be inconsequential to the greater number of journalists in this country who, by and large, out of considerations of truth,
accuracy, and fair play, have commendably refrained from ventilating what would otherwise be "sensational" or "high-visibility" stories. In merely
seeking to infuse and perpetuate the same attitude and sense of responsibility in all journalists, i.e., that there is a need to check out the truth and
correctness of information before publishing it, or that, on the other hand, recklessness and crass sensationalism should be eschewed, this decision,
surely, cannot have such "chilling effect," and no apprehension that it would deter the determination of truth or the public exposure of wrong can
reasonably be entertained.

The people's right to discover the truth is not advanced by unbridled license in reportage that would find favor only with extremist liberalism. If it has
done nothing else, this case has made clear the compelling necessity of the guidelines and parameters elsewhere herein laid down. They are
eminently reasonable, and no responsible journalist should have cause to complain of difficulty in their observance.

10. Afterword

It seems fitting to close this opinion, with the words of Chief Justice Moran, whose pronouncements have already been earlier quoted, 32 and are as
germane today as when they were first written more than fifty (50) years ago. 33

It may be said that respect to courts cannot be compelled and that public confidence should be a tribute to judicial worth, virtue
and intelligence. But compelling respect to courts is one thing and denying the courts the power to vindicate themselves when
outraged is another. I know of no principle of law that authorizes with impunity a discontended citizen to unleash, by newspaper
publications, the avalanche of his wrath and venom upon courts and judges. If he believes that a judge is corrupt and that justice
has somewhere been perverted, law and order require that he follow the processes provided by the Constitution and the statutes
by instituting the corresponding proceedings for impeachment or otherwise. . . .

xxx xxx xxx

It might be suggested that judges who are unjustly attacked have a remedy in an action for libel. This suggestion has, however, no
rational basis in principle. In the first place, the outrage is not directed to the judge as a private individual but to the judge as such
or to the court as an organ of the administration of justice. In the second place, public interests will gravely suffer where the
judge, as such, will, from time to time, be pulled down and disrobed of his judicial authority to face his assailant on equal
grounds and prosecute cases in his behalf as a private individual. The same reasons of public policy which exempt a judge from
civil liability in the exercise of his judicial functions, most fundamental of which is the policy to confine his time exclusively to
the discharge of his public duties, applies here with equal, if not superior, force (Hamilton v. Williams, 26 Ala. 529; Busteed v.
Parson, 54 Ala. 403; Ex parte McLeod, 120 Fed. 130; Coons v. State, 191 Ind. 580; 134 N. E. 194). . . .

Jurado's actuations, in the context in which they were done, demonstrate gross irresponsibility, and indifference to factual accuracy and the injury that
he might cause to the name and reputation of those of whom he wrote. They constitute contempt of court, directly tending as they do to degrade or
abase the administration of justice and the judges engaged in that function. By doing them, he has placed himself beyond the circle of reputable,
decent and responsible journalists who live by their Code or the "Golden Rule" and who strive at all times to maintain the prestige and nobility of
their calling.
Clearly unrepentant, exhibiting no remorse for the acts and conduct detailed here, Jurado has maintained a defiant stance. "This is a fight I will not
run from," he wrote in his column of March 21, 1993; and again, "I will not run away from a good fight," in his column of March 23, 1993. Such an
attitude discourages leniency, and leaves no choice save the application of sanctions appropriate to the offense.

WHEREFORE, the Court declares Atty. Emil (Emiliano) P. Jurado guilty of contempt of court and in accordance with Section 6, Rule 71 of the
Rules of Court, hereby sentences him to pay a fine of one thousand pesos (P1,000,00).

IT IS SO ORDERED.

Feliciano, Bidin, Regalado Davide, Jr., Romero, Bellosillo, Quiason, Mendoza and Francisco, JJ., concur.

Vitug and Kapunan, JJ., took no part.


PHARMACEUTICAL and HEALTH G.R. NO. 173034
CARE ASSOCIATION of the
PHILIPPINES,
Petitioner,
Present:

PUNO, C.J.
QUISUMBING,
YNARES-SANTIAGO,
SANDOVAL-GUTIERREZ,
CARPIO,
- versus - AUSTRIA-MARTINEZ,
CORONA,
CARPIO-MORALES,
AZCUNA,
TINGA,
CHICO-NAZARIO,
GARCIA,
VELASCO, JR.,
NACHURA, and
REYES, JJ.
HEALTH SECRETARY
FRANCISCO T. DUQUE III;
HEALTH UNDERSECRETARIES
DR. ETHELYN P. NIETO,
DR. MARGARITA M. GALON,
ATTY. ALEXANDER A. PADILLA,
& DR. JADE F. DEL MUNDO; and
ASSISTANT SECRETARIES
DR. MARIO C. VILLAVERDE,
DR. DAVID J. LOZADA, AND
DR. NEMESIO T. GAKO, Promulgated:
Respondents. October 9, 2007
x- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - x
DECISION

AUSTRIA-MARTINEZ, J.:

The Court and all parties involved are in agreement that the best nourishment for an infant is mother's milk. There is nothing greater than for a
mother to nurture her beloved child straight from her bosom. The ideal is, of course, for each and every Filipino child to enjoy the unequaled benefits
of breastmilk. But how should this end be attained?
Before the Court is a petition for certiorari under Rule 65 of the Rules of Court, seeking to nullify Administrative Order (A.O.) No. 2006-0012
entitled, Revised Implementing Rules and Regulations of Executive Order No. 51, Otherwise Known as The Milk Code, Relevant International
Agreements, Penalizing Violations Thereof, and for Other Purposes (RIRR). Petitioner posits that the RIRR is not valid as it contains provisions
that are not constitutional and go beyond the law it is supposed to implement.

Named as respondents are the Health Secretary, Undersecretaries, and Assistant Secretaries of the Department of Health (DOH). For purposes of
herein petition, the DOH is deemed impleaded as a co-respondent since respondents issued the questioned RIRR in their capacity as officials of said
executive agency.[1]

Executive Order No. 51 (Milk Code) was issued by President Corazon Aquino on October 28, 1986 by virtue of the legislative powers granted to the
president underthe Freedom Constitution. One of the preambular clauses of the Milk Code states that the law seeks to give effect to Article 11 [2] of
the International Code of Marketing of Breastmilk Substitutes (ICMBS), a code adopted by the World Health Assembly (WHA) in 1981. From 1982
to 2006, the WHA adopted several Resolutions to the effect that breastfeeding should be supported, promoted and protected, hence, it should be
ensured that nutrition and health claims are not permitted for breastmilk substitutes.

In 1990, the Philippines ratified the International Convention on the Rights of the Child. Article 24 of said instrument provides that State Parties
should take appropriate measures to diminish infant and child mortality, and ensure that all segments of society, specially parents and children, are
informed of the advantages of breastfeeding.

On May 15, 2006, the DOH issued herein assailed RIRR which was to take effect on July 7, 2006.

However, on June 28, 2006, petitioner, representing its members that are manufacturers of breastmilk substitutes, filed the present Petition
for Certiorari and Prohibition with Prayer for the Issuance of a Temporary Restraining Order (TRO) or Writ of Preliminary Injunction.
The main issue raised in the petition is whether respondents officers of the DOH acted without or in excess of jurisdiction, or with grave abuse of
discretion amounting to lack or excess of jurisdiction, and in violation of the provisions of the Constitution in promulgating the RIRR.[3]

On August 15, 2006, the Court issued a Resolution granting a TRO enjoining respondents from implementing the questioned RIRR.
After the Comment and Reply had been filed, the Court set the case for oral arguments on June 19, 2007. The Court issued an Advisory (Guidance
for Oral Arguments) dated June 5, 2007, to wit:

The Court hereby sets the following issues:

1. Whether or not petitioner is a real party-in-interest;

2. Whether Administrative Order No. 2006-0012 or the Revised Implementing Rules and Regulations (RIRR) issued by
the Department of Health (DOH) is not constitutional;
2.1 Whether the RIRR is in accord with the provisions of Executive Order No. 51 (Milk Code);

2.2 Whether pertinent international agreements1 entered into by the Philippines are part of the law of the land and may be
implemented by the DOH through the RIRR; If in the affirmative, whether the RIRR is in accord with the international
agreements;
2.3 Whether Sections 4, 5(w), 22, 32, 47, and 52 of the RIRR violate the due process clause and are in restraint of trade; and

2.4 Whether Section 13 of the RIRR on Total Effect provides sufficient standards.
_____________
1 (1) United Nations Convention on the Rights of the Child; (2) the WHO and Unicef 2002 Global Strategy on Infant and Young Child
Feeding; and (3) various World Health Assembly (WHA) Resolutions.
The parties filed their respective memoranda.

The petition is partly imbued with merit.

On the issue of petitioner's standing

With regard to the issue of whether petitioner may prosecute this case as the real party-in-interest, the Court adopts the view enunciated in Executive
Secretary v. Court of Appeals,[4] to wit:
The modern view is that an association has standing to complain of injuries to its members. This view fuses the legal identity of
an association with that of its members. An association has standing to file suit for its workers despite its lack of direct
interest if its members are affected by the action. An organization has standing to assert the concerns of its constituents.

xxxx

x x x We note that, under its Articles of Incorporation, the respondent was organized x x x to act as the representative of any
individual, company, entity or association on matters related to the manpower recruitment industry, and to perform other acts and
activities necessary to accomplish the purposes embodied therein. The respondent is, thus, the appropriate party to assert the
rights of its members, because it and its members are in every practical sense identical. x x x The respondent [association]
is but the medium through which its individual members seek to make more effective the expression of their voices and
the redress of their grievances. [5] (Emphasis supplied)

which was reasserted in Purok Bagong Silang Association, Inc. v. Yuipco,[6] where the Court ruled that an association has the legal personality to
represent its members because the results of the case will affect their vital interests.[7]

Herein petitioner's Amended Articles of Incorporation contains a similar provision just like in Executive Secretary, that the association is formed to
represent directly or through approved representatives the pharmaceutical and health care industry before the Philippine Government and any of its
agencies, the medical professions and the general public.[8] Thus, as an organization, petitioner definitely has an interest in fulfilling its avowed
purpose of representing members who are part of the pharmaceutical and health care industry. Petitioner is duly authorized[9] to take the appropriate
course of action to bring to the attention of government agencies and the courts any grievance suffered by its members which are directly affected by
the RIRR. Petitioner, which is mandated by its Amended Articles of Incorporation to represent the entire industry, would be remiss in its duties if it
fails to act on governmental action that would affect any of its industry members, no matter how few or numerous they are. Hence, petitioner, whose
legal identity is deemed fused with its members, should be considered as a real party-in-interest which stands to be benefited or injured by any
judgment in the present action.

On the constitutionality of the provisions of the RIRR

First, the Court will determine if pertinent international instruments adverted to by respondents are part of the law of the land.
Petitioner assails the RIRR for allegedly going beyond the provisions of the Milk Code, thereby amending and expanding the coverage of said
law. The defense of the DOH is that the RIRR implements not only the Milk Code but also various international instruments [10] regarding infant and
young child nutrition. It is respondents' position that said international instruments are deemed part of the law of the land and therefore the DOH may
implement them through the RIRR.
The Court notes that the following international instruments invoked by respondents, namely: (1) The United Nations Convention on the Rights of
the Child; (2) The International Covenant on Economic, Social and Cultural Rights; and (3) the Convention on the Elimination of All Forms of
Discrimination Against Women, only provide in general terms that steps must be taken by State Parties to diminish infant and child mortality and
inform society of the advantages of breastfeeding, ensure the health and well-being of families, and ensure that women are provided with services
and nutrition in connection with pregnancy and lactation. Said instruments do not contain specific provisions regarding the use or marketing
of breastmilk substitutes.
The international instruments that do have specific provisions regarding breastmilk substitutes are the ICMBS and various WHA Resolutions.
Under the 1987 Constitution, international law can become part of the sphere of domestic law either by transformation or incorporation.[11] The
transformation method requires that an international law be transformed into a domestic law through a constitutional mechanism such as local
legislation. The incorporation method applies when, by mere constitutional declaration, international law is deemed to have the force of domestic
law.[12]

Treaties become part of the law of the land through transformation pursuant to Article VII, Section 21 of the Constitution which provides that [n]o
treaty or international agreement shall be valid and effective unless concurred in by at least two-thirds of all the members of the Senate. Thus, treaties
or conventional international law must go through a process prescribed by the Constitution for it to be transformed into municipal law that can be
applied to domestic conflicts.[13]

The ICMBS and WHA Resolutions are not treaties as they have not been concurred in by at least two-thirds of all members of the Senate as required
under Section 21, Article VII of the 1987 Constitution.

However, the ICMBS which was adopted by the WHA in 1981 had been transformed into domestic law through local legislation, the Milk
Code. Consequently, it is the Milk Code that has the force and effect of law in this jurisdiction and not the ICMBS per se.

The Milk Code is almost a verbatim reproduction of the ICMBS, but it is well to emphasize at this point that the Code did not adopt the provision in
the ICMBS absolutely prohibiting advertising or other forms of promotion to the general public of products within the scope of the
ICMBS. Instead, the Milk Code expressly provides that advertising, promotion, or other marketing materials may be allowed if such
materials are duly authorized and approved by the Inter-Agency Committee (IAC).
On the other hand, Section 2, Article II of the 1987 Constitution, to wit:

SECTION 2. The Philippines renounces war as an instrument of national policy, adopts the generally accepted principles of
international law as part of the law of the land and adheres to the policy of peace, equality, justice, freedom, cooperation and
amity with all nations. (Emphasis supplied)

embodies the incorporation method.[14]

In Mijares v. Ranada,[15] the Court held thus:

[G]enerally accepted principles of international law, by virtue of the incorporation clause of the Constitution, form part of the
laws of the land even if they do not derive from treaty obligations. The classical formulation in international law sees
those customary rules accepted as binding result from the combination [of] two elements: the established, widespread, and
consistent practice on the part of States; and a psychological element known as the opinion juris sive necessitates (opinion as
to law or necessity). Implicit in the latter element is a belief that the practice in question is rendered obligatory by the
existence of a rule of law requiring it.[16] (Emphasis supplied)
Generally accepted principles of international law refers to norms of general or customary international law which are binding on all states,[17] i.e.,
renunciation of war as an instrument of national policy, the principle of sovereign immunity, [18] a person's right to life, liberty and due
process,[19] and pacta sunt servanda,[20]among others. The concept of generally accepted principles of law has also been depicted in this wise:

Some legal scholars and judges look upon certain general principles of law as a primary source of international law because they
have the character of jus rationale and are valid through all kinds of human societies. (Judge Tanaka in his dissenting
opinion in the 1966 South West Africa Case, 1966 I.C.J. 296). O'Connell holds that certainpriniciples are part of international law
because they are basic to legal systems generally and hence part of the jus gentium. These principles, he believes, are
established by a process of reasoning based on the common identity of all legal systems. If there should be doubt or disagreement,
one must look to state practice and determine whether the municipal law principle provides a just and acceptable
solution. x x x [21] (Emphasis supplied)

Fr. Joaquin G. Bernas defines customary international law as follows:

Custom or customary international law means a general and consistent practice of states followed by them from a sense of legal
obligation [opinio juris]. (Restatement) This statement contains the two basic elements of custom: the material factor, that is,
how states behave, and the psychological or subjective factor, that is, why they behave the way they do.

xxxx

The initial factor for determining the existence of custom is the actual behavior of states. This includes several elements:
duration, consistency, and generality of the practice of states.

The required duration can be either short or long. x x x

xxxx

Duration therefore is not the most important element. More important is the consistency and the generality of the practice. x x x

xxxx

Once the existence of state practice has been established, it becomes necessary to determine why states behave the way they
do. Do states behave the way they do because they consider it obligatory to behave thus or do they do it only as a matter of
courtesy? Opinio juris, or the belief that a certain form of behavior is obligatory, is what makes practice an international
rule. Without it, practice is not law.[22] (Underscoring and Emphasis supplied)

Clearly, customary international law is deemed incorporated into our domestic system. [23]

WHA Resolutions have not been embodied in any local legislation. Have they attained the status of customary law and should they then be deemed
incorporated as part of the law of the land?

The World Health Organization (WHO) is one of the international specialized agencies allied with the United Nations (UN) by virtue of Article
57,[24] in relation to Article 63[25] of the UN Charter. Under the 1946 WHO Constitution, it is the WHA which determines the policies of the
WHO,[26] and has the power to adopt regulations concerning advertising and labeling of biological, pharmaceutical and similar products moving in
international commerce,[27] and to make recommendations to members with respect to any matter within the competence of the Organization. [28] The
legal effect of its regulations, as opposed to recommendations, is quite different.

Regulations, along with conventions and agreements, duly adopted by the WHA bind member states thus:

Article 19. The Health Assembly shall have authority to adopt conventions or agreements with respect to any matter within the
competence of the Organization. A two-thirds vote of the Health Assembly shall be required for the adoption of
such conventions or agreements, which shall come into force for each Member when accepted by it in accordance with its
constitutional processes.

Article 20. Each Member undertakes that it will, within eighteen months after the adoption by the Health Assembly of a
convention or agreement, take action relative to the acceptance of such convention or agreement. Each Member shall notify
the Director-General of the action taken, and if it does not accept such convention or agreement within the time limit, it will
furnish a statement of the reasons for non-acceptance. In case of acceptance, each Member agrees to make an annual report to the
Director-General in accordance with Chapter XIV.

Article 21. The Health Assembly shall have authority to adopt regulations concerning: (a) sanitary and quarantine requirements
and other procedures designed to prevent the international spread of disease; (b) nomenclatures with respect to diseases, causes of
death and public health practices; (c) standards with respect to diagnostic procedures for international use; (d) standards with
respect to the safety, purity and potency of biological, pharmaceutical and similar products moving in international commerce;
(e) advertising and labeling of biological, pharmaceutical and similar products moving in international commerce.

Article 22. Regulations adopted pursuant to Article 21 shall come into force for all Members after due notice has been given
of their adoption by the Health Assembly except for such Members as may notify the Director-General of rejection or
reservations within the period stated in the notice. (Emphasis supplied)
On the other hand, under Article 23, recommendations of the WHA do not come into force for members, in the same way that conventions or
agreements under Article 19 and regulations under Article 21 come into force. Article 23 of the WHO Constitution reads:

Article 23. The Health Assembly shall have authority to make recommendations to Members with respect to any matter within
the competence of the Organization. (Emphasis supplied)

The absence of a provision in Article 23 of any mechanism by which the recommendation would come into force for member states is conspicuous.

The former Senior Legal Officer of WHO, Sami Shubber, stated that WHA recommendations are generally not binding, but they carry moral and
political weight, as they constitute the judgment on a health issue of the collective membership of the highest international body in the field of
health.[29] Even the ICMBS itself was adopted as a mere recommendation, as WHA Resolution No. 34.22 states:

The Thirty-Fourth World Health Assembly x x x adopts, in the sense of Article 23 of the Constitution, the International Code
of Marketing of Breastmilk Substitutes annexed to the present resolution. (Emphasis supplied)

The Introduction to the ICMBS also reads as follows:

In January 1981, the Executive Board of the World Health Organization at its sixty-seventh session, considered the fourth draft
of the code, endorsed it, and unanimously recommended to the Thirty-fourth World Health Assembly the text of a resolution by
which it would adopt the code in the form of a recommendation rather than a regulation. x x x (Emphasis supplied)

The legal value of WHA Resolutions as recommendations is summarized in Article 62 of the WHO Constitution, to wit:

Art. 62. Each member shall report annually on the action taken with respect to recommendations made to it by the Organization,
and with respect to conventions, agreements and regulations.

Apparently, the WHA Resolution adopting the ICMBS and subsequent WHA Resolutions urging member states to implement the ICMBS are merely
recommendatory and legally non-binding. Thus, unlike what has been done with the ICMBS whereby the legislature enacted most of the
provisions into law which is the Milk Code, the subsequent WHA Resolutions,[30] specifically providing for exclusive breastfeeding from 0-6
months, continued breastfeeding up to 24 months, and absolutely prohibiting advertisements and promotions of breastmilk substitutes, have
not been adopted as a domestic law.

It is propounded that WHA Resolutions may constitute soft law or non-binding norms, principles and practices that influence state behavior.[31]

Soft law does not fall into any of the categories of international law set forth in Article 38, Chapter III of the 1946 Statute of the International Court
of Justice.[32] It is, however, an expression of non-binding norms, principles, and practices that influence state behavior.[33] Certain declarations and
resolutions of the UN General Assembly fall under this category. [34] The most notable is the UN Declaration of Human Rights, which this Court has
enforced in various cases, specifically,Government of Hongkong Special Administrative Region v. Olalia,[35] Mejoff v. Director of
Prisons,[36] Mijares v. Raada[37] and Shangri-la International Hotel Management, Ltd. v. Developers Group of Companies, Inc..[38]

The World Intellectual Property Organization (WIPO), a specialized agency attached to the UN with the mandate to promote and protect intellectual
property worldwide, has resorted to soft law as a rapid means of norm creation, in order to reflect and respond to the changing needs and demands of
its constituents.[39]Other international organizations which have resorted to soft law include the International Labor Organization and the Food and
Agriculture Organization (in the form of the Codex Alimentarius).[40]

WHO has resorted to soft law. This was most evident at the time of the Severe Acute Respiratory Syndrome (SARS) and Avian flu outbreaks.

Although the IHR Resolution does not create new international law binding on WHO member states, it provides an excellent
example of the power of "soft law" in international relations. International lawyers typically distinguish binding rules of
international law-"hard law"-from non-binding norms, principles, and practices that influence state behavior-"soft law."
WHO has during its existence generated many soft law norms, creating a "soft law regime" in international governance for
publichealth.

The "soft law" SARS and IHR Resolutions represent significant steps in laying the political groundwork for improved
international cooperation on infectious diseases. These resolutions clearly define WHO member states' normative duty to
cooperate fully with other countries and with WHO in connection with infectious disease surveillance and response to outbreaks.

This duty is neither binding nor enforceable, but, in the wake of the SARS epidemic, the duty is powerful politically for two
reasons. First, the SARS outbreak has taught the lesson that participating in, and enhancing, international cooperation on
infectious disease controls is in a country's self-interest x x x if this warning is heeded, the "soft law" in the SARS and IHR
Resolution could inform the development of general and consistent state practice on infectious disease surveillance and outbreak
response, perhaps crystallizing eventually into customary international law on infectious disease prevention and control. [41]

In the Philippines, the executive department implemented certain measures recommended by WHO to address the outbreaks of SARS and Avian flu
by issuing Executive Order (E.O.) No. 201 on April 26, 2003 and E.O. No. 280 on February 2, 2004, delegating to various departments broad powers
to close down schools/establishments, conduct health surveillance and monitoring, and ban importation of poultry and agricultural products.

It must be emphasized that even under such an international emergency, the duty of a state to implement the IHR Resolution was still considered not
binding or enforceable, although said resolutions had great political influence.

As previously discussed, for an international rule to be considered as customary law, it must be established that such rule is being followed by
states because theyconsider it obligatory to comply with such rules (opinio juris). Respondents have not presented any evidence to prove that the
WHA Resolutions, although signed by most of the member states, were in fact enforced or practiced by at least a majority of the member states;
neither have respondents proven that any compliance by member states with said WHA Resolutions was obligatory in nature.

Respondents failed to establish that the provisions of pertinent WHA Resolutions are customary international law that may be deemed part of the law
of the land.

Consequently, legislation is necessary to transform the provisions of the WHA Resolutions into domestic law. The provisions of the WHA
Resolutions cannot be considered as part of the law of the land that can be implemented by executive agencies without the need of a law
enacted by the legislature.

Second, the Court will determine whether the DOH may implement the provisions of the WHA Resolutions by virtue of its powers and functions
under the Revised Administrative Code even in the absence of a domestic law.

Section 3, Chapter 1, Title IX of the Revised Administrative Code of 1987 provides that the DOH shall define the national health policy and
implement a national health plan within the framework of the government's general policies and plans, and issue orders and regulations concerning
the implementation of established health policies.

It is crucial to ascertain whether the absolute prohibition on advertising and other forms of promotion of breastmilk substitutes provided in some
WHA Resolutions has been adopted as part of the national health policy.

Respondents submit that the national policy on infant and young child feeding is embodied in A.O. No. 2005-0014, dated May 23, 2005. Basically,
the Administrative Order declared the following policy guidelines: (1) ideal breastfeeding practices, such as early initiation of breastfeeding,
exclusive breastfeeding for the first six months, extended breastfeeding up to two years and beyond; (2) appropriate complementary feeding, which is
to start at age six months; (3) micronutrient supplementation; (4) universal salt iodization; (5) the exercise of other feeding options; and (6) feeding in
exceptionally difficult circumstances. Indeed, the primacy of breastfeeding for children is emphasized as a national health policy. However, nowhere
in A.O. No. 2005-0014 is it declared that as part of such health policy, the advertisement or promotion of breastmilk substitutes should be
absolutely prohibited.

The national policy of protection, promotion and support of breastfeeding cannot automatically be equated with a total ban on advertising
for breastmilk substitutes.
In view of the enactment of the Milk Code which does not contain a total ban on the advertising and promotion of breastmilk substitutes, but instead,
specifically creates an IAC which will regulate said advertising and promotion, it follows that a total ban policy could be implemented only pursuant
to a law amending the Milk Code passed by the constitutionally authorized branch of government, the legislature.

Thus, only the provisions of the Milk Code, but not those of subsequent WHA Resolutions, can be validly implemented by the DOH through the
subject RIRR.

Third, the Court will now determine whether the provisions of the RIRR are in accordance with those of the Milk Code.

In support of its claim that the RIRR is inconsistent with the Milk Code, petitioner alleges the following:

1. The Milk Code limits its coverage to children 0-12 months old, but the RIRR extended its coverage to young children or those from
ages two years old and beyond:

MILK CODE RIRR


WHEREAS, in order to ensure that safe and adequate Section 2. Purpose These Revised Rules and Regulations
nutrition for infants is provided, there is a need to protect are hereby promulgated to ensure the provision of safe and
and promote breastfeeding and to inform the public about adequate nutritionfor infants and young children by the
the proper use of breastmilk substitutes and supplements promotion, protection and support of breastfeeding and by
and related products through adequate, consistent and ensuring the proper use
objective information and appropriate regulation of the of breastmilk substitutes, breastmilksupplements and
marketing and distribution of the said substitutes, related products when these are medically indicated and
supplements and related products; only when necessary, on the basis of adequate information
and through appropriate marketing and distribution.
SECTION 4(e). Infant means a person falling within the
age bracket of 0-12 months. Section 5(ff). Young Child means a person from the age
of more than twelve (12) months up to the age of three (3)
years (36 months).

2. The Milk Code recognizes that infant formula may be a proper and possible substitute for breastmilk in certain instances; but the RIRR
provides exclusive breastfeeding for infants from 0-6 months and declares that there is no substitute nor replacement for breastmilk:

MILK CODE RIRR


WHEREAS, in order to ensure that safe and adequate Section 4. Declaration of Principles The following are
nutrition for infants is provided, there is a need to protect the underlying principles from which the revised rules and
and promote breastfeeding and to inform the public about regulations are premised upon:
the proper use of breastmilk substitutes and supplements
and related products through adequate, consistent and a. Exclusive breastfeeding is for infants from 0 to six (6)
objective information and appropriate regulation of the months.
marketing and distribution of the said substitutes,
supplements and related products; b. There is no substitute or replacement forbreastmilk.

3. The Milk Code only regulates and does not impose unreasonable requirements for advertising and promotion; RIRR imposes an
absolute ban on such activities for breastmilk substitutes intended for infants from 0-24 months old or beyond, and forbids the use of
health and nutritional claims. Section 13 of the RIRR, which provides for a total effect in the promotion of products within the scope of
the Code, is vague:

MILK CODE RIRR


SECTION 6. The General Public and Mothers. Section 4. Declaration of Principles The following are
(a) No advertising, promotion or other marketing the underlying principles from which the revised rules and
materials, whether written, audio or visual, for products regulations are premised upon:
within the scope of this Code shall be printed, published,
distributed, exhibited and broadcast unless such materials xxxx
are duly authorized and approved by an inter-agency
committee created herein pursuant to the applicable f. Advertising, promotions, or sponsor-shipsof infant
standards provided for in this Code. formula, breastmilk substitutes and other related
products are prohibited.

Section 11. Prohibition No advertising, promotions,


sponsorships, or marketing materials and
activities for breastmilksubstitutes intended for infants and
young children up to twenty-four (24) months, shall be
allowed, because they tend to convey or give subliminal
messages or impressions that undermine breastmilk and
breastfeeding or otherwise
exaggerate breastmilk substitutes and/or replacements, as
well as related products covered within the scope of this
Code.

Section 13. Total Effect - Promotion of products within


the scope of this Code must be objective and should not
equate or make the product appear to be as good or equal
tobreastmilk or breastfeeding in the advertising concept. It
must not in any case underminebreastmilk or
breastfeeding. The total effect should not directly or
indirectly suggest that buying their product would produce
better individuals, or resulting in greater love, intelligence,
ability, harmony or in any manner bring better health to
the baby or other such exaggerated and unsubstantiated
claim.

Section 15. Content of Materials. - The following shall


not be included in advertising, promotional and marketing
materials:

a. Texts, pictures, illustrations or information which


discourage or tend to undermine the benefits or superiority
of breastfeeding or which idealize the use
of breastmilksubstitutes and milk supplements. In this
connection, no pictures of babies and children together
with their mothers, fathers, siblings, grandparents, other
relatives or caregivers (oryayas) shall be used in any
advertisements for infant formula
and breastmilk supplements;
b. The term humanized, maternalized, close to mother's
milk or similar words in describingbreastmilk substitutes
or milk supplements;

c. Pictures or texts that idealize the use of infant and milk


formula.

Section 16. All health and nutrition claims for products


within the scope of the Code are absolutely prohibited. For
this purpose, any phrase or words that connotes to increase
emotional, intellectual abilities of the infant and young
child and other like phrases shall not be allowed.

4. The RIRR imposes additional labeling requirements not found in the Milk Code:

MILK CODE RIRR


SECTION 10. Containers/Label. Section 26. Content Each container/label shall contain
(a) Containers and/or labels shall be designed to such message, in both Filipino and English languages, and
provide the necessary information about the which message cannot be readily separated therefrom,
appropriate use of the products, and in such a relative the following points:
way as not to discourage breastfeeding. (a) The words or phrase Important Notice or Government
(b) Each container shall have a clear, conspicuous Warning or their equivalent;
and easily readable and understandable message (b) A statement of the superiority of breastfeeding;
in Pilipino or English printed on it, or on a (c) A statement that there is no substitute forbreastmilk;
label, which message can not readily become (d) A statement that the product shall be used only on the
separated from it, and which shall include the advice of a health worker as to the need for its use
following points: and the proper methods of use;
(i) the words Important Notice or their (e) Instructions for appropriate prepara-tion, and a warning
equivalent; against the health hazards of inappropriate
(ii) a statement of the superiority of preparation;and
breastfeeding; (f) The health hazards of unnecessary or improper use of
(iii) a statement that the product shall be infant formula and other related products
used only on the advice of a health worker including information that powdered infant
as to the need for its use and the proper formula may contain pathogenic microorganisms
methods of use; and and must be prepared and used appropriately.
(iv) instructions for appropriate
preparation, and a warning against the
health hazards of inappropriate
preparation.

5. The Milk Code allows dissemination of information on infant formula to health professionals; the RIRR totally prohibits such activity:

MILK CODE RIRR


SECTION 7. Health Care System. Section 22. No manufacturer, distributor, or
(b) No facility of the health care system shall be used for representatives of products covered by the Code shall be
the purpose of promoting infant formula or other products allowed to conduct or be involved in any activity on
within the scope of this Code. This Code does not, breastfeeding promotion, education and production of
however, preclude the dissemination of information to Information, Education and Communication (IEC)
health professionals as provided in Section 8(b). materials on breastfeeding, holding of or participating as
speakers in classes or seminars for women and children
SECTION 8. Health Workers. - activities and to avoid the use of these venues to market
(b) Information provided by manufacturers and their brands or company names.
distributors to health professionals regarding products
within the scope of this Code shall be restricted SECTION 16. All health and nutrition claims for
to scientific and factual matters and such information products within the scope of the Code are absolutely
shall not imply or create a belief that bottle-feeding is prohibited. For this purpose, any phrase or words that
equivalent or superior to breastfeeding. It shall also connotes to increase emotional, intellectual abilities of the
include the information specified in Section 5(b). infant and young child and other like phrases shall not be
allowed.

6. The Milk Code permits milk manufacturers and distributors to extend assistance in research and continuing education of health
professionals; RIRR absolutely forbids the same.

MILK CODE RIRR


SECTION 8. Health Workers Section 4. Declaration of Principles
(e) Manufacturers and distributors of products within the The following are the underlying principles from which
scope of this Code may assist in the research, scholarships the revised rules and regulations are premised upon:
and continuing education, of health professionals,in i. Milk companies, and their
accordance with the rules and regulations promulgated by representatives, should not form part of any
the Ministry of Health. policymaking body or entity in relation to the
advancement ofbreasfeeding.

SECTION 22. No manufacturer, distributor, or


representatives of products covered by the Code shall be
allowed to conduct or be involved in any activity on
breastfeeding promotion, education and production of
Information, Education and Communication (IEC)
materials on breastfeeding, holding of or participating as
speakers in classes or seminars for women and children
activitiesand to avoid the use of these venues to market
their brands or company names.

SECTION 32. Primary Responsibility of Health


Workers - It is the primary responsibility of the health
workers to promote, protect and support breastfeeding and
appropriate infant and young child feeding. Part of this
responsibility is to continuously update their knowledge
and skills on breastfeeding. No assistance, support,
logistics or training from milk companies shall be
permitted.

7. The Milk Code regulates the giving of donations; RIRR absolutely prohibits it.

MILK CODE RIRR


SECTION 6. The General Public and Mothers. Section 51. Donations Within the Scope of This Code -
(f) Nothing herein contained shall prevent donations from Donations of products, materials, defined and covered
manufacturers and distributors of products within the under the Milk Code and these implementing rules and
scope of this Code upon request by or with the approval regulations, shall be strictly prohibited.
of the Ministry of Health.
Section 52. Other Donations By Milk Companies Not
Covered by this Code. -Donations of products,
equipments, and the like, not otherwise falling within the
scope of this Code or these Rules, given by milk
companies and their agents, representatives, whether in
kind or in cash, may only be coursed through the Inter
Agency Committee (IAC), which shall determine whether
such donation be accepted or otherwise.
8. The RIRR provides for administrative sanctions not imposed by the Milk Code.

MILK CODE RIRR


Section 46. Administrative Sanctions. The following
administrative sanctions shall be imposed upon any
person, juridical or natural, found to have violated the
provisions of the Code and its implementing Rules and
Regulations:
a) 1st violation Warning;
b) 2nd violation Administrative fine of a minimum of Ten
Thousand (P10,000.00) to Fifty Thousand
(P50,000.00) Pesos, depending on the gravity and
extent of the violation, including the recall of the
offending product;
c) 3rd violation Administrative Fine of a minimum of
Sixty Thousand (P60,000.00) to One Hundred
Fifty Thousand (P150,000.00) Pesos, depending
on the gravity and extent of the violation, and in
addition thereto, the recall of the offending
product, and suspension of the Certificate of
Product Registration (CPR);
d) 4th violation Administrative Fine of a minimum of Two
Hundred Thousand (P200,000.00) to Five
Hundred (P500,000.00) Thousand Pesos,
depending on the gravity and extent of the
violation; and in addition thereto, the recall of the
product, revocation of the CPR, suspension of the
License to Operate (LTO) for one year;
e) 5th and succeeding repeated violations Administrative
Fine of One Million (P1,000,000.00) Pesos, the
recall of the offending product, cancellation of the
CPR, revocation of the License to Operate (LTO)
of the company concerned, including the
blacklisting of the company to be furnished the
Department of Budget and Management (DBM)
and the Department of Trade and Industry (DTI);
f) An additional penalty of Two Thou-sand Five Hundred
(P2,500.00) Pesos per day shall be made for every
day the violation continues after having received
the order from the IAC or other such appropriate
body, notifying and penalizing the company for
the infraction.
For purposes of determining whether or not there is
repeated violation, each product violation belonging or
owned by a company, including those of their
subsidiaries, are deemed to be violations of the concerned
milk company and shall not be based on the specific
violating product alone.

9. The RIRR provides for repeal of existing laws to the contrary.

The Court shall resolve the merits of the allegations of petitioner seriatim.

1. Petitioner is mistaken in its claim that the Milk Code's coverage is limited only to children 0-12 months old. Section 3 of the
Milk Code states:

SECTION 3. Scope of the Code The Code applies to the marketing, and practices related thereto, of the following
products: breastmilk substitutes, including infant formula; other milk products, foods and beverages, including bottle-fed
complementary foods, when marketed or otherwise represented to be suitable, with or without modification, for use as a partial or
total replacement of breastmilk; feeding bottles and teats. It also applies to their quality and availability, and to information
concerning their use.

Clearly, the coverage of the Milk Code is not dependent on the age of the child but on the kind of product being marketed to the public. The law
treats infant formula, bottle-fed complementary food, and breastmilk substitute as separate and distinct product categories.

Section 4(h) of the Milk Code defines infant formula as a breastmilk substitute x x x to satisfy the normal nutritional requirements
of infants up to between four to six months of age, and adapted to their physiological characteristics; while under Section 4(b), bottle-fed
complementary food refers to any food, whether manufactured or locally prepared, suitable as a complement to breastmilk or infant formula, when
either becomes insufficient to satisfy the nutritional requirements of the infant. An infant under Section 4(e) is a person falling within the age bracket
0-12 months. It is the nourishment of this group of infants or children aged 0-12 months that is sought to be promoted and protected by the Milk
Code.

But there is another target group. Breastmilk substitute is defined under Section 4(a) as any food being marketed or otherwise presented as
a partial or total replacement for breastmilk, whether or not suitable for that purpose. This section conspicuously lacks reference to any particular
age-group of children. Hence, the provision of the Milk Code cannot be considered exclusive for children aged 0-12 months. In other
words, breastmilk substitutes may also be intended for young children more than 12 months of age. Therefore, by regulating breastmilk substitutes,
the Milk Code also intends to protect and promote the nourishment ofchildren more than 12 months old.

Evidently, as long as what is being marketed falls within the scope of the Milk Code as provided in Section 3, then it can be subject to
regulation pursuant to said law, even if the product is to be used by children aged over 12 months.
There is, therefore, nothing objectionable with Sections 2 [42] and 5(ff)[43] of the RIRR.

2. It is also incorrect for petitioner to say that the RIRR, unlike the Milk Code, does not recognize that breastmilk substitutes may
be a proper and possible substitute for breastmilk.

The entirety of the RIRR, not merely truncated portions thereof, must be considered and construed together. As held in De Luna
v. Pascual,[44] [t]he particular words, clauses and phrases in the Rule should not be studied as detached and isolated expressions, but the whole and
every part thereof must be considered in fixing the meaning of any of its parts and in order to produce a harmonious whole.
Section 7 of the RIRR provides that when medically indicated and only when necessary, the use of breastmilk substitutes is proper if
based on complete and updated information. Section 8 of the RIRR also states that information and educational materials should include information
on the proper use of infant formula when the use thereof is needed.

Hence, the RIRR, just like the Milk Code, also recognizes that in certain cases, the use of breastmilk substitutes may be proper.

3. The Court shall ascertain the merits of allegations 3 [45] and 4[46] together as they are interlinked with each other.

To resolve the question of whether the labeling requirements and advertising regulations under the RIRR are valid, it is important to deal first with
the nature, purpose, and depth of the regulatory powers of the DOH, as defined in general under the 1987 Administrative Code,[47] and as delegated
in particular under the Milk Code.

Health is a legitimate subject matter for regulation by the DOH (and certain other administrative agencies) in exercise of police powers
delegated to it. The sheer span of jurisprudence on that matter precludes the need to further discuss it..[48] However, health information, particularly
advertising materials on apparently non-toxic products like breastmilk substitutes and supplements, is a relatively new area for regulation by the
DOH.[49]
As early as the 1917 Revised Administrative Code of the Philippine Islands, [50] health information was already within the ambit of the
regulatory powers of the predecessor of DOH.[51] Section 938 thereof charged it with the duty to protect the health of the people, and vested it with
such powers as (g) the dissemination of hygienic information among the people and especially the inculcation of knowledge as to the proper care of
infants and the methods of preventing and combating dangerous communicable diseases.

Seventy years later, the 1987 Administrative Code tasked respondent DOH to carry out the state policy pronounced under Section 15,
Article II of the 1987 Constitution, which is to protect and promote the right to health of the people and instill health consciousness among
them.[52] To that end, it was granted under Section 3 of the Administrative Code the power to (6) propagate health information and educate the
population on important health, medical and environmental matters which have health implications. [53]

When it comes to information regarding nutrition of infants and young children, however, the Milk Code specifically delegated to the
Ministry of Health (hereinafter referred to as DOH) the power to ensure that there is adequate, consistent and objective information on breastfeeding
and use of breastmilk substitutes, supplements and related products; and the power to control such information. These are expressly provided for in
Sections 12 and 5(a), to wit:

SECTION 12. Implementation and Monitoring


xxxx

(b) The Ministry of Health shall be principally responsible for the implementation and enforcement of the provisions of
this Code. For this purpose, the Ministry of Health shall have the following powers and functions:

(1) To promulgate such rules and regulations as are necessary or proper for the implementation of
this Code and the accomplishment of its purposes and objectives.

xxxx

(4) To exercise such other powers and functions as may be necessary for or incidental to the
attainment of the purposes and objectives of this Code.

SECTION 5. Information and Education

(a) The government shall ensure that objective and consistent information is provided on infant feeding, for use by families
and those involved in the field of infant nutrition.This responsibility shall cover the planning, provision, design and dissemination
of information, and the control thereof, on infant nutrition. (Emphasis supplied)

Further, DOH is authorized by the Milk Code to control the content of any information on breastmilk vis--vis breastmilk substitutes, supplement and
related products, in the following manner:
SECTION 5. x x x

(b) Informational and educational materials, whether written, audio, or visual, dealing with the feeding of infants and intended to
reach pregnant women and mothers of infants, shall include clear information on all the following points: (1) the
benefits and superiority of breastfeeding; (2) maternal nutrition, and the preparation for and maintenance of
breastfeeding; (3) the negative effect on breastfeeding of introducing partial bottlefeeding; (4) the difficulty of
reversing the decision not to breastfeed; and (5) where needed, the proper use of infant formula, whether manufactured
industrially or home-prepared. When such materials contain information about the use of infant formula, they shall
include the social and financial implications of its use; the health hazards of inappropriate foods or feeding
methods; and, in particular, the health hazards of unnecessary or improper use of infant formula and
other breastmilk substitutes. Such materials shall not use any picture or text which may idealize the use
of breastmilk substitutes.

SECTION 8. Health Workers

xxxx
(b) Information provided by manufacturers and distributors to health professionals regarding products within the scope of this
Code shall be restricted to scientific and factual matters, and such information shall not imply or create a belief
that bottlefeeding is equivalent or superior to breastfeeding. It shall also include the information specified in
Section 5(b).

SECTION 10. Containers/Label

(a) Containers and/or labels shall be designed to provide the necessary information about the appropriate use of the
products, and in such a way as not to discourage breastfeeding.

xxxx

(d) The term humanized, maternalized or similar terms shall not be used. (Emphasis supplied)

The DOH is also authorized to control the purpose of the information and to whom such information may be disseminated under Sections 6
through 9 of the Milk Code[54] to ensure that the information that would reach pregnant women, mothers of infants, and health professionals and
workers in the health care system is restricted to scientific and factual matters and shall not imply or create a belief that bottlefeeding is equivalent or
superior to breastfeeding.

It bears emphasis, however, that the DOH's power under the Milk Code to control information regarding breastmilk vis-a-
vis breastmilk substitutes is not absolute as the power to control does not encompass the power to absolutely prohibit the advertising, marketing, and
promotion of breastmilk substitutes.

The following are the provisions of the Milk Code that unequivocally indicate that the control over information given to the DOH is not
absolute and that absolute prohibition is not contemplated by the Code:

a) Section 2 which requires adequate information and appropriate marketing and distribution of breastmilk substitutes, to wit:

SECTION 2. Aim of the Code The aim of the Code is to contribute to the provision of safe and adequate nutrition for
infants by the protection and promotion of breastfeeding and by ensuring the proper use of breastmilk substitutes
and breastmilk supplements when these are necessary, on the basis of adequate information and through appropriate marketing
and distribution.

b) Section 3 which specifically states that the Code applies to the marketing of and practices related to breastmilk substitutes, including
infant formula, and to information concerning their use;

c) Section 5(a) which provides that the government shall ensure that objective and consistent information is provided on infant feeding;

d) Section 5(b) which provides that written, audio or visual informational and educational materials shall not use any picture or text which
may idealize the use of breastmilk substitutes and should include information on the health hazards of unnecessary or improper use of said product;
e) Section 6(a) in relation to Section 12(a) which creates and empowers the IAC to review and examine advertising, promotion, and other
marketing materials;

f) Section 8(b) which states that milk companies may provide information to health professionals but such information should be restricted
to factual and scientific matters and shall not imply or create a belief that bottlefeeding is equivalent or superior to breastfeeding; and

g) Section 10 which provides that containers or labels should not contain information that would discourage breastfeeding and idealize the
use of infant formula.

It is in this context that the Court now examines the assailed provisions of the RIRR regarding labeling and advertising.

Sections 13[55] on total effect and 26[56] of Rule VII of the RIRR contain some labeling requirements, specifically: a) that there be a
statement that there is no substitute to breastmilk; and b) that there be a statement that powdered infant formula may contain pathogenic
microorganisms and must be prepared and used appropriately. Section 16[57] of the RIRR prohibits all health and nutrition claims for products within
the scope of the Milk Code, such as claims of increased emotional and intellectual abilities of the infant and young child.

These requirements and limitations are consistent with the provisions of Section 8 of the Milk Code, to wit:

SECTION 8. Health workers -


xxxx
(b) Information provided by manufacturers and distributors to health professionals regarding products within the scope of
this Code shall be restricted to scientific and factual matters, and such information shall not imply or create a belief
that bottlefeeding is equivalent or superior to breastfeeding. It shall also include the information specified in Section
5.[58] (Emphasis supplied)

and Section 10(d)[59] which bars the use on containers and labels of the terms humanized, maternalized, or similar terms.

These provisions of the Milk Code expressly forbid information that would imply or create a belief that there is any milk product equivalent to
breastmilk or which is humanized or maternalized, as such information would be inconsistent with the superiority of breastfeeding.
It may be argued that Section 8 of the Milk Code refers only to information given to health workers regarding breastmilk substitutes, not to containers
and labels thereof. However, such restrictive application of Section 8(b) will result in the absurd situation in which milk companies and distributors
are forbidden to claim to health workers that their products are substitutes or equivalents of breastmilk, and yet be allowed to display on the
containers and labels of their products the exact opposite message. That askewed interpretation of the Milk Code is precisely what Section 5(a)
thereof seeks to avoid by mandating that all information regarding breastmilk vis-a-vis breastmilk substitutes be consistent, at the same time giving
the government control over planning, provision, design, and dissemination of information on infant feeding.

Thus, Section 26(c) of the RIRR which requires containers and labels to state that the product offered is not a substitute for breastmilk, is a reasonable
means of enforcing Section 8(b) of the Milk Code and deterring circumvention of the protection and promotion of breastfeeding as embodied in
Section 2[60] of the Milk Code.

Section 26(f)[61] of the RIRR is an equally reasonable labeling requirement. It implements Section 5(b) of the Milk Code which reads:
SECTION 5. x x x

xxxx

(b) Informational and educational materials, whether written, audio, or visual, dealing with the feeding of infants and intended to
reach pregnant women and mothers of infants, shall include clear information on all the following points: x x x (5)
where needed, the proper use of infant formula, whether manufactured industrially or home-prepared. When such
materials contain information about the use of infant formula, they shall include the social and financial implications of
its use; the health hazards of inappropriate foods or feeding methods; and, in particular, the health hazards of
unnecessary or improper use of infant formula and other breastmilk substitutes. Such materials shall not use any
picture or text which may idealize the use of breastmilk substitutes. (Emphasis supplied)

The label of a product contains information about said product intended for the buyers thereof. The buyers of breastmilk substitutes are mothers of
infants, andSection 26 of the RIRR merely adds a fair warning about the likelihood of pathogenic microorganisms being present in infant formula and
other related products when these are prepared and used inappropriately.

Petitioners counsel has admitted during the hearing on June 19, 2007 that formula milk is prone to contaminations and there is as yet no technology
that allows production of powdered infant formula that eliminates all forms of contamination. [62]
Ineluctably, the requirement under Section 26(f) of the RIRR for the label to contain the message regarding health hazards including the possibility of
contamination with pathogenic microorganisms is in accordance with Section 5(b) of the Milk Code.

The authority of DOH to control information regarding breastmilk vis-a-vis breastmilk substitutes and supplements and related products cannot be
questioned. It is its intervention into the area of advertising, promotion, and marketing that is being assailed by petitioner.

In furtherance of Section 6(a) of the Milk Code, to wit:

SECTION 6. The General Public and Mothers.

(a) No advertising, promotion or other marketing materials, whether written, audio or visual, for products within the scope of this
Code shall be printed, published, distributed, exhibited and broadcast unless such materials are duly authorized and approved by
an inter-agency committee created herein pursuant to the applicable standards provided for in this Code.

the Milk Code invested regulatory authority over advertising, promotional and marketing materials to an IAC, thus:

SECTION 12. Implementation and Monitoring -

(a) For purposes of Section 6(a) of this Code, an inter-agency committee composed of the following members is hereby created:

Minister of Health -------------------------------------------- Chairman


Minister of Trade and Industry ---------------------------- Member
Minister of Justice -------------------------------------------- Member
Minister of Social Services and Development ----------- Member

The members may designate their duly authorized representative to every meeting of the Committee.

The Committee shall have the following powers and functions:

(1) To review and examine all advertising. promotion or other marketing materials, whether written, audio or visual, on
products within the scope of this Code;

(2) To approve or disapprove, delete objectionable portions from and prohibit the printing, publication, distribution,
exhibition and broadcast of, all advertising promotion or other marketing materials, whether written, audio or visual, on
products within the scope of this Code;
(3) To prescribe the internal and operational procedure for the exercise of its powers and functions as well as the
performance of its duties and responsibilities; and

(4) To promulgate such rules and regulations as are necessary or proper for the implementation of Section 6(a)
of this Code. x x x (Emphasis supplied)

However, Section 11 of the RIRR, to wit:


SECTION 11. Prohibition No advertising, promotions, sponsorships, or marketing materials and activities
for breastmilk substitutes intended for infants and young children up to twenty-four (24) months, shall be allowed, because they
tend to convey or give subliminal messages or impressions that undermine breastmilk and breastfeeding or otherwise
exaggerate breastmilk substitutes and/or replacements, as well as related products covered within the scope of this Code.

prohibits advertising, promotions, sponsorships or marketing materials and activities for breastmilk substitutes in line with the RIRRs declaration of
principle under Section 4(f), to wit:

SECTION 4. Declaration of Principles

xxxx

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

The DOH, through its co-respondents, evidently arrogated to itself not only the regulatory authority given to the IAC but also imposed absolute
prohibition on advertising, promotion, and marketing.

Yet, oddly enough, Section 12 of the RIRR reiterated the requirement of the Milk Code in Section 6 thereof for prior approval by IAC of all
advertising, marketing and promotional materials prior to dissemination.
Even respondents, through the OSG, acknowledged the authority of IAC, and repeatedly insisted, during the oral arguments on June 19, 2007, that
the prohibition under Section 11 is not actually operational, viz:

SOLICITOR GENERAL DEVANADERA:

xxxx

x x x Now, the crux of the matter that is being questioned by Petitioner is whether or not there is an absolute prohibition on
advertising making AO 2006-12 unconstitutional. We maintained that what AO 2006-12 provides is not an absolute prohibition
because Section 11 while it states and it is entitled prohibition it states that no advertising, promotion, sponsorship or marketing
materials and activities for breast milk substitutes intended for infants and young children up to 24 months shall be allowed
because this is the standard they tend to convey or give subliminal messages or impression undermine that breastmilk or
breastfeeding x x x.

We have to read Section 11 together with the other Sections because the other Section, Section 12, provides for the inter agency
committee that is empowered to process and evaluate all the advertising and promotion materials.

xxxx

What AO 2006-12, what it does, it does not prohibit the sale and manufacture, it simply regulates the advertisement and the
promotions of breastfeeding milk substitutes.
xxxx

Now, the prohibition on advertising, Your Honor, must be taken together with the provision on the Inter-Agency Committee that
processes and evaluates because there may be some information dissemination that are straight forward information
dissemination. What the AO 2006 is trying to prevent is any material that will undermine the practice of breastfeeding, Your
Honor.

xxxx

ASSOCIATE JUSTICE SANTIAGO:

Madam Solicitor General, under the Milk Code, which body has authority or power to promulgate Rules and Regulations
regarding the Advertising, Promotion and Marketing ofBreastmilk Substitutes?

SOLICITOR GENERAL DEVANADERA:

Your Honor, please, it is provided that the Inter-Agency Committee, Your Honor.

xxxx

ASSOCIATE JUSTICE SANTIAGO:

x x x Don't you think that the Department of Health overstepped its rule making authority when it totally banned advertising and
promotion under Section 11 prescribed the total effect rule as well as the content of materials under Section 13 and 15 of the rules
and regulations?

SOLICITOR GENERAL DEVANADERA:

Your Honor, please, first we would like to stress that there is no total absolute ban. Second, the Inter-Agency Committee is under
the Department of Health, Your Honor.

xxxx

ASSOCIATE JUSTICE NAZARIO:

x x x Did I hear you correctly, Madam Solicitor, that there is no absolute ban on advertising of breastmilk substitutes in the
Revised Rules?

SOLICITOR GENERAL DEVANADERA:

Yes, your Honor.

ASSOCIATE JUSTICE NAZARIO:

But, would you nevertheless agree that there is an absolute ban on advertising of breastmilk substitutes intended for children two
(2) years old and younger?

SOLICITOR GENERAL DEVANADERA:

It's not an absolute ban, Your Honor, because we have the Inter-Agency Committee that can evaluate some advertising and
promotional materials, subject to the standards that we have stated earlier, which are- they should not undermine breastfeeding,
Your Honor.

xxxx

x x x Section 11, while it is titled Prohibition, it must be taken in relation with the other Sections, particularly 12 and 13 and 15,
Your Honor, because it is recognized that the Inter-Agency Committee has that power to evaluate promotional materials, Your
Honor.

ASSOCIATE JUSTICE NAZARIO:


So in short, will you please clarify there's no absolute ban on advertisement regarding milk substitute regarding infants two (2)
years below?

SOLICITOR GENERAL DEVANADERA:

We can proudly say that the general rule is that there is a prohibition, however, we take exceptions and standards have been
set. One of which is that, the Inter-Agency Committee can allow if the advertising and promotions will not
undermine breastmilk and breastfeeding, Your Honor.[63]

Sections 11 and 4(f) of the RIRR are clearly violative of the Milk Code.

However, although it is the IAC which is authorized to promulgate rules and regulations for the approval or rejection of advertising, promotional, or
other marketing materials under Section 12(a) of the Milk Code, said provision must be related to Section 6 thereof which in turn provides that the
rules and regulations must be pursuant to the applicable standards provided for in this Code. Said standards are set forth in Sections 5(b), 8(b), and 10
of the Code, which, at the risk of being repetitious, and for easy reference, are quoted hereunder:

SECTION 5. Information and Education

xxxx

(b) Informational and educational materials, whether written, audio, or visual, dealing with the feeding of infants and
intended to reach pregnant women and mothers of infants, shall include clear information on all the following
points: (1) the benefits and superiority of breastfeeding; (2) maternal nutrition, and the preparation for and maintenance
of breastfeeding; (3) the negative effect on breastfeeding of introducing partial bottlefeeding; (4) the difficulty of
reversing the decision not to breastfeed; and (5) where needed, the proper use of infant formula, whether manufactured
industrially or home-prepared. When such materials contain information about the use of infant formula, they shall
include the social and financial implications of its use; the health hazards of inappropriate foods of feeding
methods; and, in particular, the health hazards of unnecessary or improper use of infant formula and
other breastmilk substitutes. Such materials shall not use any picture or text which may idealize the use
ofbreastmilk substitutes.
xxxx

SECTION 8. Health Workers.

xxxx
(b) Information provided by manufacturers and distributors to health professionals regarding products within the scope
of this Code shall be restricted to scientific and factual matters and such information shall not imply or create a belief
that bottle feeding is equivalent or superior to breastfeeding. It shall also include the information specified in Section
5(b).

xxxx

SECTION 10. Containers/Label

(a) Containers and/or labels shall be designed to provide the necessary information about the appropriate use of the products, and
in such a way as not to discourage breastfeeding.

(b) Each container shall have a clear, conspicuous and easily readable and understandable message in Pilipino or English
printed on it, or on a label, which message can not readily become separated from it, and which shall include the following
points:

(i) the words Important Notice or their equivalent;


(ii) a statement of the superiority of breastfeeding;
(iii) a statement that the product shall be used only on the advice of a health worker as to the need for its
use and the proper methods of use; and
(iv) instructions for appropriate preparation, and a warning against the health hazards of
inappropriate preparation.
Section 12(b) of the Milk Code designates the DOH as the principal implementing agency for the enforcement of the provisions of the Code. In
relation to such responsibility of the DOH, Section 5(a) of the Milk Code states that:

SECTION 5. Information and Education

(a) The government shall ensure that objective and consistent information is provided on infant feeding, for use by
families and those involved in the field of infant nutrition. This responsibility shall cover the planning, provision,
design and dissemination of information, and the control thereof, on infant nutrition. (Emphasis supplied)

Thus, the DOH has the significant responsibility to translate into operational terms the standards set forth in Sections 5, 8, and 10 of the
Milk Code, by which the IAC shall screen advertising, promotional, or other marketing materials.

It is pursuant to such responsibility that the DOH correctly provided for Section 13 in the RIRR which reads as follows:

SECTION 13. Total Effect - Promotion of products within the scope of this Code must be objective and should not equate or
make the product appear to be as good or equal tobreastmilk or breastfeeding in the advertising concept. It must not in any case
undermine breastmilk or breastfeeding. The total effect should not directly or indirectly suggest that buying their product would
produce better individuals, or resulting in greater love, intelligence, ability, harmony or in any manner bring better health to the
baby or other such exaggerated and unsubstantiated claim.

Such standards bind the IAC in formulating its rules and regulations on advertising, promotion, and marketing. Through that single provision, the
DOH exercises control over the information content of advertising, promotional and marketing materials on breastmilk vis-a-
vis breastmilk substitutes, supplements and other related products. It also sets a viable standard against which the IAC may screen such materials
before they are made public.
In Equi-Asia Placement, Inc. vs. Department of Foreign Affairs,[64] the Court held:

x x x [T]his Court had, in the past, accepted as sufficient standards the following: public interest, justice and equity, public
convenience and welfare, and simplicity, economy and welfare. [65]

In this case, correct information as to infant feeding and nutrition is infused with public interest and welfare.

4. With regard to activities for dissemination of information to health professionals, the Court also finds that there is no inconsistency
between the provisions of the Milk Code and the RIRR. Section 7(b)[66] of the Milk Code, in relation to Section 8(b)[67] of the same Code, allows
dissemination of information to health professionals but such information is restricted to scientific and factual matters.

Contrary to petitioner's claim, Section 22 of the RIRR does not prohibit the giving of information to health professionals on scientific
and factual matters.What it prohibits is the involvement of the manufacturer and distributor of the products covered by the Code in activities for the
promotion, education and production of Information, Education and Communication (IEC) materials regarding breastfeeding that are intended
for women and children. Said provision cannot be construed to encompass even the dissemination of information to health professionals, as
restricted by the Milk Code.

5. Next, petitioner alleges that Section 8(e)[68] of the Milk Code permits milk manufacturers and distributors to extend assistance in research
and in the continuing education of health professionals, while Sections 22 and 32 of the RIRR absolutely forbid the same. Petitioner also assails
Section 4(i)[69] of the RIRR prohibiting milk manufacturers' and distributors' participation in any policymaking body in relation to the advancement
of breastfeeding.

Section 4(i) of the RIRR provides that milk companies and their representatives should not form part of any policymaking body or entity in relation
to the advancement of breastfeeding. The Court finds nothing in said provisions which contravenes the Milk Code. Note that under Section 12(b) of
the Milk Code, it is the DOH which shall be principally responsible for the implementation and enforcement of the provisions of said Code. It is
entirely up to the DOH to decide which entities to call upon or allow to be part of policymaking bodies on breastfeeding. Therefore,
the RIRR's prohibition on milk companies participation in any policymaking body in relation to the advancement of breastfeeding is in accord with
the Milk Code.

Petitioner is also mistaken in arguing that Section 22 of the RIRR prohibits milk companies from giving reasearch assistance and
continuing education to health professionals. Section 22[70] of the RIRR does not pertain to research assistance to or the continuing education
of health professionals; rather, it deals with breastfeeding promotion and education for women and children. Nothing in Section 22 of the RIRR
prohibits milk companies from giving assistance for research or continuing education to health professionals; hence, petitioner's argument against this
particular provision must be struck down.

It is Sections 9[71] and 10[72] of the RIRR which govern research assistance. Said sections of the RIRR provide that research assistance for
health workers and researchers may be allowed upon approval of an ethics committee, and with certain disclosure requirements imposed on
the milk company and on the recipient of the research award.

The Milk Code endows the DOH with the power to determine how such research or educational assistance may be given by milk
companies or under what conditions health workers may accept the assistance. Thus, Sections 9 and 10 of the RIRR imposing limitations on the kind
of research done or extent of assistance given by milk companies are completely in accord with the Milk Code.

Petitioner complains that Section 32[73] of the RIRR prohibits milk companies from giving assistance, support, logistics or training to health
workers. This provision is within the prerogative given to the DOH under Section 8(e) [74] of the Milk Code, which provides that manufacturers and
distributors of breastmilksubstitutes may assist in researches, scholarships and the continuing education, of health professionals in accordance with
the rules and regulations promulgated by the Ministry of Health, now DOH.

6. As to the RIRR's prohibition on donations, said provisions are also consistent with the Milk Code. Section 6(f) of the Milk Code
provides that donationsmay be made by manufacturers and distributors of breastmilk substitutes upon the request or with the approval of the
DOH. The law does not proscribe the refusal of donations. The Milk Code leaves it purely to the discretion of the DOH whether to request or accept
such donations. The DOH then appropriately exercised its discretion through Section 51 [75] of the RIRR which sets forth its policy not to request
or approve donations from manufacturers and distributors of breastmilksubstitutes.
It was within the discretion of the DOH when it provided in Section 52 of the RIRR that any donation from milk companies not covered by
the Code should be coursed through the IAC which shall determine whether such donation should be accepted or refused. As reasoned out by
respondents, the DOH is not mandated by the Milk Code to accept donations. For that matter, no person or entity can be forced to accept a donation.
There is, therefore, no real inconsistency between the RIRR and the law because the Milk Code does not prohibit the DOH from refusing donations.

7. With regard to Section 46 of the RIRR providing for administrative sanctions that are not found in the Milk Code, the Court upholds
petitioner's objection thereto.

Respondent's reliance on Civil Aeronautics Board v. Philippine Air Lines, Inc.[76] is misplaced. The glaring difference in said case and the
present case before the Court is that, in the Civil Aeronautics Board, the Civil Aeronautics Administration (CAA) was expressly granted by the law
(R.A. No. 776) the power to impose fines and civil penalties, while the Civil Aeronautics Board (CAB) was granted by the same law the power to
review on appeal the order or decision of the CAA and to determine whether to impose, remit, mitigate, increase or compromise such fine and civil
penalties. Thus, the Court upheld the CAB's Resolution imposing administrative fines.

In a more recent case, Perez v. LPG Refillers Association of the Philippines, Inc.,[77] the Court upheld the Department of Energy (DOE)
Circular No. 2000-06-10 implementing Batas Pambansa (B.P.) Blg. 33. The circular provided for fines for the commission of prohibited acts. The
Court found that nothing in the circular contravened the law because the DOE was expressly authorized by B.P. Blg. 33 and R.A. No. 7638 to impose
fines or penalties.

In the present case, neither the Milk Code nor the Revised Administrative Code grants the DOH the authority to fix or impose
administrative fines. Thus, without any express grant of power to fix or impose such fines, the DOH cannot provide for those fines in the RIRR. In
this regard, the DOH again exceeded its authority by providing for such fines or sanctions in Section 46 of the RIRR. Said provision is, therefore,
null and void.

The DOH is not left without any means to enforce its rules and regulations. Section 12(b) (3) of the Milk Code authorizes the DOH to
cause the prosecution of the violators of this Code and other pertinent laws on products covered by this Code. Section 13 of the Milk Code provides
for the penalties to be imposed on violators of the provision of the Milk Code or the rules and regulations issued pursuant to it, to wit:

SECTION 13. Sanctions


(a) Any person who violates the provisions of this Code or the rules and regulations issued pursuant to this
Code shall, upon conviction, be punished by a penalty of two (2) months to one (1) year imprisonment or a fine of not less than
One Thousand Pesos (P1,000.00) nor more than Thirty Thousand Pesos (P30,000.00) or both. Should the offense be committed
by a juridical person, the chairman of the Board of Directors, the president, general manager, or the partners and/or the persons
directly responsibletherefor, shall be penalized.

(b) Any license, permit or authority issued by any government agency to any health worker, distributor, manufacturer,
or marketing firm or personnel for the practice of their profession or occupation, or for the pursuit of their business, may, upon
recommendation of the Ministry of Health, be suspended or revoked in the event of repeated violations of this Code, or of the
rules and regulations issued pursuant to this Code. (Emphasis supplied)

8. Petitioners claim that Section 57 of the RIRR repeals existing laws that are contrary to the RIRR is frivolous.
Section 57 reads:

SECTION 57. Repealing Clause - All orders, issuances, and rules and regulations or parts thereof inconsistent with these revised
rules and implementing regulations are hereby repealed or modified accordingly.

Section 57 of the RIRR does not provide for the repeal of laws but only orders, issuances and rules and regulations. Thus, said provision is valid as it
is within theDOH's rule-making power.

An administrative agency like respondent possesses quasi-legislative or rule-making power or the power to make rules and regulations which results
in delegated legislation that is within the confines of the granting statute and the Constitution, and subject to the doctrine of non-
delegability and separability of powers.[78] Such express grant of rule-making power necessarily includes the power to amend, revise, alter, or repeal
the same.[79] This is to allow administrative agencies flexibility in formulating and adjusting the details and manner by which they are to implement
the provisions of a law,[80] in order to make it more responsive to the times.Hence, it is a standard provision in administrative rules that prior
issuances of administrative agencies that are inconsistent therewith are declared repealed or modified.

In fine, only Sections 4(f), 11 and 46 are ultra vires, beyond the authority of the DOH to promulgate and in contravention of the Milk Code and,
therefore, null and void. The rest of the provisions of the RIRR are in consonance with the Milk Code.

Lastly, petitioner makes a catch-all allegation that:

x x x [T]he questioned RIRR sought to be implemented by the Respondents is unnecessary and oppressive, and is offensive to
the due process clause of the Constitution, insofar as the same is in restraint of trade and because a provision therein is
inadequate to provide the public with a comprehensible basis to determine whether or not they have committed a
violation.[81] (Emphasis supplied)

Petitioner refers to Sections 4(f),[82] 4(i),[83] 5(w),[84] 11,[85] 22,[86] 32,[87] 46,[88] and 52[89] as the provisions that suppress the trade of milk and, thus,
violate the due process clause of the Constitution.

The framers of the constitution were well aware that trade must be subjected to some form of regulation for the public good. Public interest must be
upheld over business interests.[90] In Pest Management Association of the Philippines v. Fertilizer and Pesticide Authority,[91] it was held thus:
x x x Furthermore, as held in Association of Philippine Coconut Desiccators v. Philippine Coconut Authority, despite the fact
that our present Constitution enshrines free enterprise as a policy, it nonetheless reserves to the government the power to
intervene whenever necessary to promote the general welfare. There can be no question that the unregulated use or
proliferation of pesticides would be hazardous to our environment. Thus, in the aforecited case, the Court declared that free
enterprise does not call for removal of protective regulations. x x x It must be clearly explained and proven by competent
evidence just exactly how such protective regulation would result in the restraint of trade. [Emphasis and underscoring
supplied]

In this case, petitioner failed to show that the proscription of milk manufacturers participation in any policymaking body (Section 4(i)), classes and
seminars for women and children (Section 22); the giving of assistance, support and logistics or training (Section 32); and the giving of donations
(Section 52) would unreasonably hamper the trade of breastmilk substitutes. Petitioner has not established that the proscribed activities are
indispensable to the trade of breastmilksubstitutes. Petitioner failed to demonstrate that the aforementioned provisions of the RIRR are unreasonable
and oppressive for being in restraint of trade.

Petitioner also failed to convince the Court that Section 5(w) of the RIRR is unreasonable and oppressive. Said section provides for the definition of
the term milk company, to wit:

SECTION 5 x x x. (w) Milk Company shall refer to the owner, manufacturer, distributor of infant formula, follow-up milk, milk
formula, milk supplement, breastmilk substitute or replacement, or by any other description of such nature, including their
representatives who promote or otherwise advance their commercial interests in marketing those products;

On the other hand, Section 4 of the Milk Code provides:


(d) Distributor means a person, corporation or any other entity in the public or private sector engaged in the business
(whether directly or indirectly) of marketing at the wholesale or retail level a product within the scope of this
Code. A primary distributor is a manufacturer's sales agent, representative, national distributor or broker.

xxxx

(j) Manufacturer means a corporation or other entity in the public or private sector engaged in the business or
function (whether directly or indirectly or through an agent or and entity controlled by or under contract with it)
of manufacturing a products within the scope of this Code.

Notably, the definition in the RIRR merely merged together under the term milk company the entities defined separately under the Milk Code as
distributor and manufacturer. The RIRR also enumerated in Section 5(w) the products manufactured or distributed by an entity that would qualify it
as a milk company, whereas in the Milk Code, what is used is the phrase products within the scope of this Code. Those are the only differences
between the definitions given in the Milk Code and the definition as re-stated in the RIRR.
Since all the regulatory provisions under the Milk Code apply equally to both manufacturers and distributors, the Court sees no harm in the RIRR
providing for just one term to encompass both entities. The definition of milk company in the RIRR and the definitions of distributor and
manufacturer provided for under the Milk Code are practically the same.

The Court is not convinced that the definition of milk company provided in the RIRR would bring about any change in the treatment or regulation
of distributors and manufacturers of breastmilk substitutes, as defined under the Milk Code.
Except Sections 4(f), 11 and 46, the rest of the provisions of the RIRR are in consonance with the objective, purpose and intent of the Milk Code,
constituting reasonable regulation of an industry which affects public health and welfare and, as such, the rest of the RIRR do not constitute illegal
restraint of trade nor are theyviolative of the due process clause of the Constitution.

WHEREFORE, the petition is PARTIALLY GRANTED. Sections 4(f), 11 and 46 of Administrative Order No. 2006-0012 dated May 12, 2006 are
declared NULLand VOID for being ultra vires. The Department of Health and respondents are PROHIBITED from implementing said provisions.

The Temporary Restraining Order issued on August 15, 2006 is LIFTED insofar as the rest of the provisions of Administrative Order No. 2006-
0012 is concerned.
SO ORDERED.
G.R. No. L-69500 July 22, 1985

JOSE ANTONIO U. GONZALEZ in behalf of MALAYA FILMS, LINO BROCKA, JOSE F. LACABA, and DULCE Q.
SAGUISAG, petitioners,
vs.
CHAIRMAN MARIA KALAW KATIGBAK, GENERAL WILFREDO C. ESTRADA (Ret.), and THE BOARD OF REVIEW FOR
MOTION PICTURES AND TELEVISION (BRMPT), respondents.

Irene R. Cortes, Perfecto V. Fernandez, Haydee Yorac and Joker P. Arroyo for petitioners.

The Solicitor General for respondents.

FERNANDO, C.J.:

In this case of first impression, a certiorari proceeding filed on January 10, 1985, there is a persuasive ring to the invocation of the constitutional right
to freedom of expression 1 of an artistand for that matter a man of letters tooas the basis for a ruling on the scope of the power of respondent
Board of Review for Motion Pictures and Television and how it should be exercised. The dispute between the parties has been narrowed down. The
motion picture in question, Kapit sa Patalim was classified "For Adults Only." There is the further issue then, also one of first impression, as to the
proper test of what constitutes obscenity in view of the objections raised. Thus the relevance of this constitutional command: "Arts and letters shall
be under the patronage of the State. 2

The principal petitioner is Jose Antonio U. Gonzalez, 3 President of the Malaya Films, a movie production outfit duly registered as a single
proprietorship with the Bureau of Domestic Trade. The respondent is the Board of Review for Motion Pictures and Television, with Maria Kalaw
Katigbak as its Chairman and Brig. Gen. Wilfredo C. Estrada as its Vice-Chairman, also named respondents.

In a resolution of a sub-committee of respondent Board of October 23, 1984, a permit to exhibit the film Kapit sa Patalim under the classification
"For Adults Only," with certain changes and deletions enumerated was granted. A motion for reconsideration was filed by petitioners stating that the
classification of the film "For Adults Only" was without basis. 4 Then on November 12, 1984, respondent Board released its decision: "Acting on the
applicant's Motion for Reconsideration dated 29 October 1984, the Board, after a review of the resolution of the sub-committee and an examination
of the film, Resolves to affirm in toto the ruling of the sub-committee. Considering, however, certain vital deficiencies in the application, the Board
further Resolves to direct the Chairman of the Board to Withheld the issuance of the Permit to exhibit until these deficiencies are supplied. 5 Hence
this petition.

This Court, in a resolution of January 12, 1985, required respondent to answer. In such pleading submitted on January 21, 1985, as one of its special
and affirmative defenses, it was alleged that the petition is moot as "respondent Board has revoked its questioned resolution, replacing it with one
immediately granting petitioner company a permit to exhibit the film Kapit without any deletion or cut [thus an] adjudication of the questions
presented above would be academic on the case." 6 Further: "The modified resolution of the Board, of course, classifies Kapit as for-adults-only, but
the petition does not raise any issue as to the validity of this classification. All that petitioners assail as arbitrary on the part of the Board's action are
the deletions ordered in the film. 7 The prayer was for the dismissal of the petition.

An amended petition was then filed on January 25, 1985. The main objection was the classification of the film as "For Adults Only." For petitioners,
such classification "is without legal and factual basis and is exercised as impermissible restraint of artistic expression. The film is an integral whole
and all its portions, including those to which the Board now offers belated objection, are essential for the integrity of the film. Viewed as a whole,
there is no basis even for the vague speculations advanced by the Board as basis for its classification. 8 There was an answer to the amended petition
filed on February 18, 1985. It was therein asserted that the issue presented as to the previous deletions ordered by the Board as well as the statutory
provisions for review of films and as to the requirement to submit the master negative have been all rendered moot. It was also submitted that the
standard of the law for classifying films afford a practical and determinative yardstick for the exercise of judgment. For respondents, the question of
the sufficiency of the standards remains the only question at issue.

It would be unduly restrictive under the circumstances to limit the issue to one of the sufficiency of standards to guide respondent Board in the
exercise of its power. Even if such were the case, there is justification for an inquiry into the controlling standard to warrant the classification of "For
Adults Only." This is especially so, when obscenity is the basis for any alleged invasion of the right to the freedom of artistic and literary expression
embraced in the free speech and free press guarantees of the Constitution.

1. Motion pictures are important both as a medium for the communication of Ideas and the expression of the artistic impulse. Their effects on the
perception by our people of issues and public officials or public figures as well as the prevailing cultural traits is considerable. Nor as pointed out
in Burstyn v. Wilson 9 is the "importance of motion pictures as an organ of public opinion lessened by the fact that they are designed to entertain as
well as to inform. 10 There is no clear dividing line between what involves knowledge and what affords pleasure. If such a distinction were sustained,
there is a diminution of the basic right to free expression. Our recent decision in Reyes v. Bagatsing 11 cautions against such a move. Press freedom,
as stated in the opinion of the Court, "may be Identified with the liberty to discuss publicly and truthfully any matter of public concern without
censorship or punishment. 12 This is not to say that such freedom, as is the freedom of speech, absolute. It can be limited if "there be a 'clear and
present danger of a substantive evil that [the State] has a right to prevent. 13

2. Censorship or previous restraint certainly is not all there is to free speech or free press. If it were so, then such basic rights are emasculated. It is
however, except in exceptional circumstances a sine qua non for the meaningful exercise of such right. This is not to deny that equally basic is the
other important aspect of freedom from liability. Nonetheless, for the purposes of this litigation, the emphasis should rightly be on freedom from
censorship. It is, beyond question, a well-settled principle in our jurisdiction. As early as 1909, in the case of United States v. Sedano,14 a prosecution
for libel, the Supreme Court of the Philippines already made clear that freedom of the press consists in the right to print what one chooses without
any previous license. There is reaffirmation of such a view in Mutuc v. Commission on Elections, 15 where an order of respondent Commission on
Elections giving due course to the certificate of candidacy of petitioner but prohibiting him from using jingles in his mobile units equipped with
sound systems and loud speakers was considered an abridgment of the right of the freedom of expression amounting as it does to censorship. It is the
opinion of this Court, therefore, that to avoid an unconstitutional taint on its creation, the power of respondent Board is limited to the classification of
films. It can, to safeguard other constitutional objections, determine what motion pictures are for general patronage and what may require either
parental guidance or be limited to adults only. That is to abide by the principle that freedom of expression is the rule and restrictions the exemption.
The power to exercise prior restraint is not to be presumed, rather the presumption is against its validity. 16
3. The test, to repeat, to determine whether freedom of excession may be limited is the clear and present danger of an evil of a substantive character
that the State has a right to prevent. Such danger must not only be clear but also present. There sho