Republic of the Philippines

SUPREME COURT
Manila

EN BANC

G.R. No. 164785 March 15, 2010

ELISEO F. SORIANO, Petitioner,

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

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

G.R. No. 165636

ELISEO F. SORIANO, Petitioner,

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

RESOLUTION

VELASCO, JR., J.:

Before us is this motion of petitioner Eliseo F. Soriano for reconsideration of the Decision of the
Court dated April 29, 2009, modifying that of the Movie and Television Review and Classification
Board (MTRCB) by imposing the penalty of three-month suspension on the television show Ang
Dating Daan, instead of on petitioner Soriano, as host of that program.

Petitioner seeks reconsideration on the following grounds or issues: (1) the suspension thus meted
out to the program constitutes prior restraint; (2) the Court erred in ruling that his utterances1 did not
constitute exercise of religion; (3) the Court erred in finding the language used as offensive and
obscene; (4) the Court should have applied its policy of non-interference in cases of conflict between
religious groups; and (5) the Court erred in penalizing the television program for the acts of
petitioner.

The motion has no merit.

Petitioner’s threshold posture that the suspension thus imposed constitutes prior restraint and an
abridgement of his exercise of religion and freedom of expression is a mere rehash of the position
he articulated in the underlying petitions for certiorari and expounded in his memorandum.2 So are
the supportive arguments and some of the citations of decisional law, Philippine and American,
holding it together. They have been considered, sufficiently discussed in some detail, and found to
be without merit in our Decision. It would, thus, make little sense to embark on another lengthy
discussion of the same issues and arguments.

Suffice it to reiterate that the sanction imposed on the TV program in question does not, under the
factual milieu of the case, constitute prior restraint, but partakes of the nature of subsequent
punishment for past violation committed by petitioner in the course of the broadcast of the program
on August 10, 2004. To be sure, petitioner has not contested the fact of his having made statements
on the air that were contextually violative of the program’s "G" rating. To merit a "G" rating, the
program must be "suitable for all ages," which, in turn, means that the "material for television [does
not], in the judgment of the [MTRCB], x x x contain anything unsuitable for children and minors, and
may be viewed without adult guidance or supervision."3 As previously discussed by the Court, the
vulgar language petitioner used on prime-time television can in no way be characterized as suitable
for all ages, and is wholly inappropriate for children.

Petitioner next harps on the primacy of his freedoms, referring particularly to the exercise of his
religious beliefs and profession, as presiding minister of his flock, over the right and duty of the state
as parens patriae. Petitioner’s position may be accorded some cogency, but for the fact that it fails to
consider that the medium he used to make his statements was a television broadcast, which is
accessible to children of virtually all ages. As already laid down in the Decision subject of this
recourse, the interest of the government in protecting children who may be subjected to petitioner’s
invectives must take precedence over his desire to air publicly his dirty laundry. The public soapbox
that is television must be guarded by the state, which purpose the MTRCB serves, and has served,
in suspending Ang Dating Daan for petitioner’s statements. As emphasized in Gonzalez v. Kalaw
Katigbak,4 the freedom of broadcast media is, in terms of degree of protection it deserves, lesser in
scope, especially as regards television, which reaches every home where there is a set, and where
children will likely be among the avid viewers of the programs shown. The same case also laid the
basis for the classification system of the MTRCB when it stated, "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."5

The penalty of suspension imposed on petitioner has driven him to liken the Court to "a blind man
who was asked to describe an elephant, and by his description he stubbornly believed that an
elephant is just the same as a Meralco post after touching one if its legs."6 Petitioner makes this
comparison with the view that the factual backdrop against which his statements were made was
purportedly not considered by the Court. As he presently argues:

The Honorable Court should have rendered its decision in light of the surrounding circumstances
why and what prompted herein petitioner to utter those words. Clearly, he was provoked because of
the malicious and blatant splicing by the INC ministers of his recorded voice. Verily, Petitioner
submits that the choice of words he used has been harsh but strongly maintains that the same was
consistent with his constitutional right of freedom of speech and religion.

Contrary to petitioner’s impression, the Court has, in fact, considered the factual antecedents of and
his motive in making his utterances, and has found those circumstances wanting as defense for
violating the program’s "G" rating. Consider the following excerpts from the Court’s Decision:

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

And just to set things straight, the penalty imposed is on the program, not on petitioner.

Petitioner would next have the Court adopt a hands-off approach to the conflict between him and the
Iglesia Ni Cristo. In support of his urging, he cites Iglesia ni Cristo v. Court of Appeals.7

Petitioner’s invocation of Iglesia ni Cristo to support his hands-off thesis is erroneous. Obviously, he
fails to appreciate what the Court stated in that particular case when it rejected the argument that a
religious program is beyond MTRCB’s review and regulatory authority. We reproduce what the Court
pertinently wrote in Iglesia ni Cristo:

We thus reject petitioner’s postulate that its religious program is per se beyond review by the
respondent [MTRCB]. 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. x x x For when religion divides and its
exercise destroys, the State should not stand still.8 (Emphasis added.)

Lastly, petitioner claims that there was violation of due process of law, alleging that the registered
producer of the program is not a party to the proceedings. Hence, the program cannot, so petitioner
asserts, be penalized.
We will let the records speak for themselves to refute that argument.

As per petitioner’s admission in his petition for certiorari filed with the Court, he is "the Executive
Producer of Ang Dating Daan, a televised bible exposition program produced by the Philippine-
based religious organization, Church of God International."9 It is unclear, then, which producer the
movant is referring to in claiming that there was no representation before the MTRCB. He was and is
the representative of Ang Dating Daan, and the claim that there was no due process of law is simply
bereft of merit.

Even as the foregoing disquisitions would suffice to write finis to the instant motion, certain relevant
issues have been raised by some members of the Court that ought to be addressed if only to put
things in their proper perspective. We refer to the matter of obscenity.

As stressed at every possible turn in the challenged Court’s Decision, the defining standards to be
employed in judging the harmful effects of the statements petitioner used would be those for the
average child, not those for the average adult. We note that the ratings and regulation of television
broadcasts take into account the protection of the child, and it is from the child’s narrow viewpoint
that the utterances must be considered, if not measured. The ratings "G," "PG" (parental guidance),
"PG-13," and "R" (restricted or for adults only) suggest as much. The concern was then, as now, that
the program petitioner hosted and produced would reach an unintended audience, the average child,
and so it is how this audience would view his words that matters. The average child would not be
concerned with colorful speech, but, instead, focus on the literal, everyday meaning of words used. It
was this literal approach that rendered petitioner’s utterances obscene. 1avv phi 1

The Court has taken stock of Action for Children’s Television v. FCC,10 but finds this U.S. case not to
be of governing application to this jurisdiction under the present state of things. The so-called "safe
harbor" of 10:00 p.m. to 6:00 a.m., adverted to in Action for Children’s Television as the time wherein
broadcast of indecent material may be permitted, is believed inapplicable here. As it were, there is
no legislative enactment or executive issuance setting a similar period in the Philippines wherein
indecent material may be broadcast. Rather than fix a period for allowing indecent programming,
what is used in this jurisdiction is the system of classification of television programs, which the
petitioner violated. His program was rated "G," purported to be suitable for all ages. We cannot lose
sight of the violation of his program’s classification that carried with it the producer’s implied
assurance that the program did not contain anything unsuitable for children and minors. The hour at
which it was broadcasted was of little moment in light of the guarantee that the program was safe for
children’s viewing.

The suspension of the program has not been arrived at lightly. Taking into account all the factors
involved and the arguments pressed on the Court, the suspension of the program is a sufficiently
limited disciplinary action, both to address the violation and to serve as an object lesson for the
future. The likelihood is great that any disciplinary action imposed on petitioner would be met with an
equally energetic defense as has been put up here. The simple but stubborn fact is that there has
been a violation of government regulations that have been put in place with a laudable purpose, and
this violation must accordingly be dealt with. We are not unmindful of the concerns on the restriction
of freedoms that may occur in imposing sanctions upon erring individuals and institutions, but it
cannot be over-emphasized that the freedoms encased in the Bill of Rights are far from absolute.
Each has its own limits, responsibilities, and obligations. Everyone is expected to bear the burden
implicit in the exercise of these freedoms. So it must be here.

WHEREFORE, petitioner’s motion for reconsideration is hereby DENIED.

No further pleadings shall be entertained in this case. Let entry of judgment be made in due course.

SO ORDERED.

PRESBITERO J. VELASCO, JR.

Associate Justice

WE CONCUR:

REYNATO S. PUNO
Chief Justice

ANTONIO T. CARPIO RENATO C. CORONA

Associate Justice Associate Justice
 CONCHITA CARPIO MORALES ANTONIO EDUARDO B. NACHURA
Associate Justice Associate Justice

TERESITA J. LEONARDO-DE CASTRO ARTURO D. BRION

Associate Justice Associate Justice

DIOSDADO M. PERALTA LUCAS P. BERSAMIN

Associate Justice Associate Justice

MARIANO C. DEL CASTILLO ROBERTO A. ABAD

Associate Justice Associate Justice

MARTIN S. VILLARAMA, JR. JOSE PORTUGAL PEREZ

Associate Justice Associate Justice

JOSE CATRAL MENDOZA

Associate Justice

CERTIFICATION

Pursuant to Section 13, Article VIII of the Constitution, it is hereby certified that the conclusions in
the above Resolution had been reached in consultation before the case was assigned to the writer of
the opinion of the Court.

REYNATO S. PUNO
Chief Justice
 Republic of the Philippines
SUPREME COURT
Manila

EN BANC

G.R. No. 168338 February 15, 2008

FRANCISCO CHAVEZ, petitioner,

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

SEPARATE CONCURRING OPINION

CARPIO, J.:

The Case

This is a petition for the writs of certiorari and prohibition to set aside "acts, issuances, and orders" of
respondents Secretary of Justice Raul M. Gonzalez (respondent Gonzales) and the National
Telecommunications Commission (NTC), particularly an NTC "press release" dated 11 June 2005,
warning radio and television stations against airing taped conversations allegedly between President
Gloria Macapagal-Arroyo and Commission on Elections (COMELEC) Commissioner Virgilio
Garcillano (Garcillano)1 under pain of suspension or revocation of their airwave licenses.

The Facts

On 24 June 2004, Congress, acting as national board of canvassers, proclaimed President Arroyo
winner in the 2004 presidential elections.2 President Arroyo received a total of 12,905,808 votes,
1,123,576 more than the votes of her nearest rival, Fernando Poe, Jr. Sometime before 6 June
2005, the radio station dzMM aired the Garci Tapes where the parties to the conversation discussed
"rigging" the results of the 2004 elections to favor President Arroyo. On 6 June 2005, Presidential
spokesperson Ignacio Bunye (Bunye) held a press conference in Malacañang Palace, where he
played before the presidential press corps two compact disc recordings of conversations between a
woman and a man. Bunye identified the woman in both recordings as President Arroyo but claimed
that the contents of the second compact disc had been "spliced" to make it appear that President
Arroyo was talking to Garcillano.

However, on 9 June 2005, Bunye backtracked and stated that the woman's voice in the compact
discs was not President Arroyo’s after all.3 Meanwhile, other individuals went public, claiming
possession of the genuine copy of the Garci Tapes.4 Respondent Gonzalez ordered the National
Bureau of Investigation to investigate media organizations which aired the Garci Tapes for possible
violation of Republic Act No. 4200 or the Anti-Wiretapping Law.

On 11 June 2005, the NTC issued a press release warning radio and television stations that airing
the Garci Tapes is a "cause for the suspension, revocation and/or cancellation of the licenses or
authorizations" issued to them.5 On 14 June 2005, NTC officers met with officers of the broadcasters
group, Kapisanan ng mga Broadcasters sa Pilipinas (KBP), to dispel fears of censorship. The NTC
and KBP issued a joint press statement expressing commitment to press freedom.6

On 21 June 2005, petitioner Francisco I. Chavez (petitioner), as citizen, filed this petition to nullify
the "acts, issuances, and orders" of the NTC and respondent Gonzalez (respondents) on the
following grounds: (1) respondents’ conduct violated freedom of expression and the right of the
people to information on matters of public concern under Section 7, Article III of the Constitution, and
(2) the NTC acted ultra vires when it warned radio and television stations against airing the Garci
Tapes.

In their Comment to the petition, respondents raised threshold objections that (1) petitioner has no
standing to litigate and (2) the petition fails to meet the case or controversy requirement in
constitutional adjudication. On the merits, respondents claim that (1) the NTC's press release of 11
June 2005 is a mere "fair warning," not censorship, cautioning radio and television networks on the
lack of authentication of the Garci Tapes and of the consequences of airing false or fraudulent
material, and (2) the NTC did not act ultra vires in issuing the warning to radio and television
stations.

In his Reply, petitioner belied respondents' claim on his lack of standing to litigate, contending that
his status as a citizen asserting the enforcement of a public right vested him with sufficient interest to
maintain this suit. Petitioner also contests respondents' claim that the NTC press release of 11 June
2005 is a mere warning as it already prejudged the Garci Tapes as inauthentic and violative of the
Anti-Wiretapping Law, making it a "cleverly disguised x x x gag order."

ISSUE

The principal issue for resolution is whether the NTC warning embodied in the press release of 11
June 2005 constitutes an impermissible prior restraint on freedom of expression.

I vote to (1) grant the petition, (2) declare the NTC warning, embodied in its press release dated 11
June 2005, an unconstitutional prior restraint on protected expression, and (3) enjoin the NTC from
enforcing the same.

1. Standing to File Petition

Petitioner has standing to file this petition. When the issue involves freedom of expression, as in the
present case, any citizen has the right to bring suit to question the constitutionality of a government
action in violation of freedom of expression, whether or not the government action is directed at such
citizen. The government action may chill into silence those to whom the action is directed. Any
citizen must be allowed to take up the cudgels for those who have been cowed into inaction because
freedom of expression is a vital public right that must be defended by everyone and anyone.

Freedom of expression, being fundamental to the preservation of a free, open and democratic
society, is of transcendental importance that must be defended by every patriotic citizen at the
earliest opportunity. We have held that any concerned citizen has standing to raise an issue
of transcendental importance to the nation,7 and petitioner in this present petition raises such issue.

2. Overview of Freedom of Expression, Prior Restraint and Subsequent Punishment

Freedom of expression is the foundation of a free, open and democratic society. Freedom of
expression is an indispensable condition8 to the exercise of almost all other civil and political rights.
No society can remain free, open and democratic without freedom of expression. Freedom of
expression guarantees full, spirited, and even contentious discussion of all social, economic and
political issues. To survive, a free and democratic society must zealously safeguard freedom of
expression.

Freedom of expression allows citizens to expose and check abuses of public officials. Freedom of
expression allows citizens to make informed choices of candidates for public office. Freedom of
expression crystallizes important public policy issues, and allows citizens to participate in the
discussion and resolution of such issues. Freedom of expression allows the competition of ideas, the
clash of claims and counterclaims, from which the truth will likely emerge. Freedom of expression
allows the airing of social grievances, mitigating sudden eruptions of violence from marginalized
groups who otherwise would not be heard by government. Freedom of expression provides a
civilized way of engagement among political, ideological, religious or ethnic opponents for if one
cannot use his tongue to argue, he might use his fist instead.

Freedom of expression is the freedom to disseminate ideas and beliefs, whether competing,
conforming or otherwise. It is the freedom to express to others what one likes or dislikes, as it is the
freedom of others to express to one and all what they favor or disfavor. It is the free expression for
the ideas we love, as well as the free expression for the ideas we hate.9 Indeed, the function of
freedom of expression is to stir disputes:

[I]t may indeed best serve its high purpose when it induces a condition of unrest, creates
dissatisfaction with conditions as they are, or even stirs people to anger. Speech is often
provocative and challenging. It may strike at prejudices and preconceptions and have
profound unsettling effects as it presses for acceptance of an idea.10

Section 4, Article III of the Constitution prohibits the enactment of any law curtailing freedom of
expression:

No law shall be passed abridging the freedom of speech, of expression, or the press, or the
right of the people peaceably to assemble and petition the government for redress of
grievances.

Thus, the rule is that expression is not subject to any prior restraint or censorship because the
Constitution commands that freedom of expression shall not be abridged. Over time, however,
courts have carved out narrow and well defined exceptions to this rule out of necessity.

The exceptions, when expression may be subject to prior restraint, apply in this jurisdiction to
only four categories of expression, namely: pornography,11 false or misleading
advertisement,12 advocacy of imminent lawless action,13 and danger to national security.14 All other
expression is not subject to prior restraint. As stated in Turner Broadcasting System v. Federal
Communication Commission, "[T]he First Amendment (Free Speech Clause), subject only to narrow
and well understood exceptions, does not countenance governmental control over the content of
messages expressed by private individuals."15

Expression not subject to prior restraint is protected expression or high-value expression. Any
content-based prior restraint on protected expression is unconstitutional without
exception. A protected expression means what it says – it is absolutely protected from censorship.
Thus, there can be no prior restraint on public debates on the amendment or repeal of existing laws,
on the ratification of treaties, on the imposition of new tax measures, or on proposed amendments to
the Constitution.

Prior restraint on expression is content-based if the restraint is aimed at the message or idea of the
expression. Courts will subject to strict scrutiny content-based restraint. If the content-based prior
restraint is directed at protected expression, courts will strike down the restraint as unconstitutional
because there can be no content-based prior restraint on protected expression. The analysis thus
turns on whether the prior restraint is content-based, and if so, whether such restraint is directed at
protected expression, that is, those not falling under any of the recognized categories of unprotected
expression.

If the prior restraint is not aimed at the message or idea of the expression, it is content-neutral even
if it burdens expression. A content-neutral restraint is a restraint which regulates the time, place or
manner of the expression in public places16 without any restraint on the content of the expression.
Courts will subject content-neutral restraints to intermediate scrutiny.17

An example of a content-neutral restraint is a permit specifying the date, time and route of a rally
passing through busy public streets. A content-neutral prior restraint on protected expression which
does not touch on the content of the expression enjoys the presumption of validity and is thus
enforceable subject to appeal to the courts.18 Courts will uphold time, place or manner restraints if
they are content-neutral, narrowly tailored to serve a significant government interest, and leave open
ample alternative channels of expression.19

In content-neutral prior restraint on protected speech, there should be no prior restraint on the
content of the expression itself. Thus, submission of movies or pre-taped television programs to a
government review board is constitutional only if the review is for classification and not for censoring
any part of the content of the submitted materials.20 However, failure to submit such materials to the
review board may be penalized without regard to the content of the materials.21 The review board
has no power to reject the airing of the submitted materials. The review board’s power is only to
classify the materials, whether for general patronage, for adults only, or for some other classification.
The power to classify expressions applies only to movies and pre-taped television programs22 but not
to live television programs. Any classification of live television programs necessarily entails prior
restraint on expression.

Expression that may be subject to prior restraint is unprotected expression or low-value

expression. By definition, prior restraint on unprotected expression is content-based23 since the
restraint is imposed because of the content itself. In this jurisdiction, there are currently only four
categories of unprotected expression that may be subject to prior restraint. This Court recognized
false or misleading advertisement as unprotected expression only in October 2007.24

Only unprotected expression may be subject to prior restraint. However, any such prior
restraint on unprotected expression must hurdle a high barrier. First, such prior restraint is
presumed unconstitutional. Second,the government bears a heavy burden of proving the
constitutionality of the prior restraint.25

Courts will subject to strict scrutiny any government action imposing prior restraint on unprotected
expression.26 The government action will be sustained if there is a compelling State interest, and
prior restraint is necessary to protect such State interest. In such a case, the prior restraint shall
be narrowly drawn - only to the extent necessary to protect or attain the compelling State interest.

Prior restraint is a more severe restriction on freedom of expression than subsequent punishment.
Although subsequent punishment also deters expression, still the ideas are disseminated to the
public. Prior restraint prevents even the dissemination of ideas to the public.

While there can be no prior restraint on protected expression, such expression may be subject to
subsequent punishment,27 either civilly or criminally. Thus, the publication of election surveys cannot
be subject to prior restraint,28 but an aggrieved person can sue for redress of injury if the survey
turns out to be fabricated. Also, while Article 201 (2)(b)(3) of the Revised Penal Code punishing
"shows which offend any race or religion" cannot be used to justify prior restraint on religious
expression, this provision can be invoked to justify subsequent punishment of the perpetrator of such
offensive shows.29

Similarly, if the unprotected expression does not warrant prior restraint, the same expression may
still be subject to subsequent punishment, civilly or criminally. Libel falls under this class of
unprotected expression. However, if the expression cannot be subject to the lesser restriction of
subsequent punishment, logically it cannot also be subject to the more severe restriction of prior
restraint. Thus, since profane language or "hate speech" against a religious minority is not subject to
subsequent punishment in this jurisdiction,30 such expression cannot be subject to prior restraint.

If the unprotected expression warrants prior restraint, necessarily the same expression is subject to
subsequent punishment. There must be a law punishing criminally the unprotected expression
before prior restraint on such expression can be justified. The legislature must punish the
unprotected expression because it creates a substantive evil that the State must prevent. Otherwise,
there will be no legal basis for imposing a prior restraint on such expression.

The prevailing test in this jurisdiction to determine the constitutionality of government action
imposing prior restraint on three categories of unprotected expression – pornography,31 advocacy of
imminent lawless action, and danger to national security - is the clear and present danger test.32 The
expression restrained must present a clear and present danger of bringing about a substantive evil
that the State has a right and duty to prevent, and such danger must be grave and imminent.33

Prior restraint on unprotected expression takes many forms - it may be a law, administrative
regulation, or impermissible pressures like threats of revoking licenses or withholding of
benefits.34 The impermissible pressures need not be embodied in a government agency regulation,
but may emanate from policies, advisories or conduct of officials of government agencies.

3. Government Action in the Present Case

The government action in the present case is a warning by the NTC that the airing or
broadcasting of the Garci Tapes by radio and television stations is a "cause for the
suspension, revocation and/or cancellation of the licenses or authorizations" issued to radio
and television stations. The NTC warning, embodied in a press release, relies on two grounds. First,
the airing of the Garci Tapes "is a continuing violation of the Anti-Wiretapping Law and the conditions
of the Provisional Authority and/or Certificate of Authority issued to radio and TV stations." Second,
the Garci Tapes have not been authenticated, and subsequent investigation may establish that the
tapes contain false information or willful misrepresentation.

Specifically, the NTC press release contains the following categorical warning:

Taking into consideration the country’s unusual situation, and in order not to unnecessarily
aggravate the same, the NTC warns all radio stations and television networks
owners/operators that the conditions of the authorizations and permits issued to them by
Government like the Provisional Authority and/or Certificate of Authority explicitly provides
that said companies shall not use its stations for the broadcasting or telecasting of false
information or willful misrepresentation. Relative thereto, it has come to the attention of the
Commission that certain personalities are in possession of alleged taped conversation which
they claim, (sic) involve the President of the Philippines and a Commissioner of the
COMELEC regarding their supposed violation of election laws. These personalities have
admitted that the taped conversations are product 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, (sic) it is the position of the Commission 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.
If it has been (sic) 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. (Boldfacing and underscoring supplied)

The NTC does not claim that the public airing of the Garci Tapes constitutes unprotected expression
that may be subject to prior restraint. The NTC does not specify what substantive evil the State
seeks to prevent in imposing prior restraint on the airing of the Garci Tapes. The NTC does not claim
that the public airing of the Garci Tapes constitutes a clear and present danger of a substantive evil,
of grave and imminent character, that the State has a right and duty to prevent.
The NTC did not conduct any hearing in reaching its conclusion that the airing of the Garci Tapes
constitutes a continuing violation of the Anti-Wiretapping Law. At the time of issuance of the NTC
press release, and even up to now, the parties to the conversations in the Garci Tapes have not
complained that the wire-tapping was without their consent, an essential element for violation of the
Anti-Wiretapping Law.35 It was even the Office of the President, through the Press Secretary, that
played and released to media the Garci Tapes containing the alleged "spliced" conversation
between President Arroyo and Commissioner Garcillano. There is also the issue of whether
a wirelesscellular phone conversation is covered by the Anti-Wiretapping Law.

Clearly, the NTC has no factual or legal basis in claiming that the airing of the Garci Tapes
constitutes a violation of the Anti-Wiretapping Law. The radio and television stations were not even
given an opportunity to be heard by the NTC. The NTC did not observe basic due process as
mandated in Ang Tibay v. Court of Industrial Relations.36

The NTC claims that the Garci Tapes, "after a prosecution or the appropriate investigation," may
constitute "false information and/or willful misrepresentation." However, the NTC does not claim that
such possible false information or willful misrepresentation constitutes misleading commercial
advertisement. In the United States, false or deceptive commercial speech is categorized as
unprotected expression that may be subject to prior restraint. Recently, this Court upheld the
constitutionality of Section 6 of the Milk Code requiring the submission to a government screening
committee of advertising materials for infant formula milk to prevent false or deceptive claims to the
public.37 There is, however, no claim here by respondents that the Garci Tapes constitute false or
misleading commercial advertisement.

The NTC concedes that the Garci Tapes have not been authenticated as accurate or truthful. The
NTC also concedes that only "after a prosecution or appropriate investigation" can it be established
that the Garci Tapes constitute "false information and/or willful misrepresentation." Clearly, the NTC
admits that it does not even know if the Garci Tapes contain false information or willful
misrepresentation.

4. Nature of Prior Restraint in the Present Case

The NTC action restraining the airing of the Garci Tapes is a content-based prior restraint because it
is directed at the message of the Garci Tapes. The NTC’s claim that the Garci Tapes might contain
"false information and/or willful misrepresentation," and thus should not be publicly aired, is
an admission that the restraint is content-based.

5. Nature of Expression in the Present Case

The public airing of the Garci Tapes is a protected expression because it does not fall under any of
the four existing categories of unprotected expression recognized in this jurisdiction. The airing of
the Garci Tapes is essentially a political expression because it exposes that a presidential candidate
had allegedly improper conversations with a COMELEC Commissioner right after the close of voting
in the last presidential elections.

Obviously, the content of the Garci Tapes affects gravely the sanctity of the ballot. Public
discussion on the sanctity of the ballot is indisputably a protected expression that cannot be subject
to prior restraint. Public discussion on the credibility of the electoral process is one of the highest
political expressions of any electorate, and thus deserves the utmost protection. If ever there is a
hierarchy of protected expressions, political expression would occupy the highest rank,38 and among
different kinds of political expression, the subject of fair and honest elections would be at the top. In
any event, public discussion on all political issues should always remain uninhibited, robust and wide
open.

The rule, which recognizes no exception, is that there can be no content-based prior restraint
on protected expression. On this ground alone, the NTC press release is unconstitutional. Of
course, if the courts determine that the subject matter of a wiretapping, illegal or not, endangers the
security of the State, the public airing of the tape becomes unprotected expression that may be
subject to prior restraint. However, there is no claim here by respondents that the subject matter of
the Garci Tapes involves national security and publicly airing the tapes would endanger the security
of the State.39

The alleged violation of the Anti-Wiretapping Law is not in itself a ground to impose a prior restraint
on the airing of the Garci Tapes because the Constitution expressly prohibits the enactment of any
law, and that includes anti-wiretapping laws, curtailing freedom of expression.40 The only exceptions
to this rule are the four recognized categories of unprotected expression. However, the content of
the Garci Tapes does not fall under any of these categories of unprotected expression.
The airing of the Garci Tapes does not violate the right to privacy because the content of the Garci
Tapes is a matter of important public concern. The Constitution guarantees the people’s right to
information on matters of public concern.41 The remedy of any person aggrieved by the public airing
of the Garci Tapes is to file a complaint for violation of the Anti-Wiretapping Law after the
commission of the crime. Subsequent punishment, absent a lawful defense, is the remedy available
in case of violation of the Anti-Wiretapping Law.

The present case involves a prior restraint on protected expression. Prior restraint on protected
expression differs significantly from subsequent punishment of protected expression. While there
can be no prior restraint on protected expression, there can be subsequent punishment for protected
expression under libel, tort or other laws. In the present case, the NTC action seeks prior restraint on
the airing of the Garci Tapes, not punishment of personnel of radio and television stations for actual
violation of the Anti-Wiretapping Law.

6. Only the Courts May Impose Content-Based Prior Restraint

The NTC has no power to impose content-based prior restraint on expression. The charter of the
NTC does not vest NTC with any content-based censorship power over radio and television stations.

In the present case, the airing of the Garci Tapes is a protected expression that can never be subject
to prior restraint. However, even assuming for the sake of argument that the airing of the Garci
Tapes constitutes unprotected expression, only the courts have the power to adjudicate on the
factual and legal issue of whether the airing of the Garci Tapes presents a clear and present danger
of bringing about a substantive evil that the State has a right and duty to prevent, so as to justify the
prior restraint.

Any order imposing prior restraint on unprotected expression requires prior adjudication by the
courts on whether the prior restraint is constitutional. This is a necessary consequence from the
presumption of invalidity of any prior restraint on unprotected expression. Unless ruled by the courts
as a valid prior restraint, government agencies cannot implement outright such prior restraint
because such restraint is presumed unconstitutional at inception.

As an agency that allocates frequencies or airwaves, the NTC may regulate the bandwidth position,
transmitter wattage, and location of radio and television stations, but not the content of the
broadcasts. Such content-neutral prior restraint may make operating radio and television stations
more costly. However, such content-neutral restraint does not restrict the content of the broadcast.

7. Government Failed to Overcome Presumption of Invalidity

Assuming that the airing of the Garci Tapes constitutes unprotected expression, the NTC action
imposing prior restraint on the airing is presumed unconstitutional. The Government bears a heavy
burden to prove that the NTC action is constitutional. The Government has failed to meet this
burden.

In their Comment, respondents did not invoke any compelling State interest to impose prior restraint
on the public airing of the Garci Tapes. The respondents claim that they merely "fairly warned" radio
and television stations to observe the Anti-Wiretapping Law and pertinent NTC circulars on program
standards. Respondents have not explained how and why the observance by radio and television
stations of the Anti-Wiretapping Law and pertinent NTC circulars constitutes a compelling State
interest justifying prior restraint on the public airing of the Garci Tapes.

Violation of the Anti-Wiretapping Law, like the violation of any criminal statute, can always be subject
to criminal prosecution after the violation is committed. Respondents have not explained why there is
a need in the present case to impose prior restraint just to prevent a possible future violation of the
Anti-Wiretapping Law. Respondents have not explained how the violation of the Anti-Wiretapping
Law, or of the pertinent NTC circulars, can incite imminent lawless behavior or endanger the security
of the State. To allow such restraint is to allow prior restraint on all future broadcasts that may
possibly violate any of the existing criminal statutes. That would be the dawn of sweeping and
endless censorship on broadcast media.

8. The NTC Warning is a Classic Form of Prior Restraint

The NTC press release threatening to suspend or cancel the airwave permits of radio and television
stations constitutes impermissible pressure amounting to prior restraint on protected expression.
Whether the threat is made in an order, regulation, advisory or press release, the chilling effect is the
same: the threat freezes radio and television stations into deafening silence. Radio and television
stations that have invested substantial sums in capital equipment and market development suddenly
face suspension or cancellation of their permits. The NTC threat is thus real and potent.
In Burgos v. Chief of Staff,42 this Court ruled that the closure of the We Forum newspapers under a
general warrant "is in the nature of a previous restraint or censorship abhorrent to the freedom of the
press guaranteed under the fundamental law." The NTC warning to radio and television stations not
to air the Garci Tapes or else their permits will be suspended or cancelled has the same effect – a
prior restraint on constitutionally protected expression.

In the recent case of David v. Macapagal-Arroyo,43 this Court declared unconstitutional government
threats to close down mass media establishments that refused to comply with government
prescribed "standards" on news reporting following the declaration of a State of National Emergency
by President Arroyo on 24 February 2006. The Court described these threats in this manner:

Thereafter, a wave of warning[s] came from government officials. Presidential Chief of

Staff Michael Defensor was quoted as saying that such raid was "meant to show a 'strong
presence,' to tell media outlets not to connive or do anything that would help the rebels in
bringing down this government." Director General Lomibao further stated that "if they do not
follow the standards — and the standards are if they would contribute to instability in the
government, or if they do not subscribe to what is in General Order No. 5 and Proc. No. 1017
— we will recommend a 'takeover.'" National Telecommunications Commissioner Ronald
Solis urged television and radio networks to "cooperate" with the government for the
duration of the state of national emergency. He warned that his agency will not
hesitate to recommend the closure of any broadcast outfit that violates rules set out
for media coverage during times when the national security is threatened.44 (Emphasis
supplied)

The Court struck down this "wave of warning[s]" as impermissible restraint on freedom of
expression. The Court ruled that "the imposition of standards on media or any form of prior restraint
on the press, as well as the warrantless search of the Tribune offices and whimsical seizure of its
articles for publication and other materials, are declared UNCONSTITUTIONAL."45

The history of press freedom has been a constant struggle against the censor whose weapon is the
suspension or cancellation of licenses to publish or broadcast. The NTC warning resurrects the
weapon of the censor. The NTC warning is a classic form of prior restraint on protected
expression, which in the words of Near v. Minnesota is "the essence of censorship."46 Long before
the American Declaration of Independence in 1776, William Blackstone had already written in
his Commentaries on the Law of England, "The liberty of the press x x x consists in laying no
previous restraints upon publication x x x."47

Although couched in a press release and not in an administrative regulation, the NTC threat to
suspend or cancel permits remains real and effective, for without airwaves or frequencies, radio and
television stations will fall silent and die. The NTC press release does not seek to advance a
legitimate regulatory objective, but to suppress through coercion information on a matter of vital
public concern.

9. Conclusion

In sum, the NTC press release constitutes an unconstitutional prior restraint on protected
expression. There can be no content-based prior restraint on protected expression. This rule has no
exception.

I therefore vote to (1) grant the petition, (2) declare the NTC warning, embodied in its press release
dated 11 June 2005, an unconstitutional prior restraint on protected expression, and (3) enjoin the
NTC from enforcing the same.

ANTONIO T. CARPIO
Associate Justice
 Republic of the Philippines
SUPREME COURT
Manila

EN BANC

G.R. No. 194192 June 16, 2015

DAVAO CITY WATER DISTRICT REPRESENTED BY ITS GENERAL MANAGER, RODORA N.

GAMBOA,Petitioner,
vs.
RODRIGO L. ARANJUEZ, GREGORIO S. CAGULA, CELESTINO A. BONDOC, DANILO L.
BUHAY, PEDRO E. ALCALA, JOSEPH A. VALDEZ, TITO V. SABANGAN, MARCELINO B.
ANINO, JUANITO C. PANSACALA, JOEMARIE B. ALBA, ANTERO M. YMAS, ROLANDO L.
LARGO, RENEBOY U. ESTEBAN, MANUEL B. LIBANG, ROMEORICO A. LLANOS, ARTHUR C.
BACHILLER, SOCRATES V. CORCUERA, ALEJANDRO C. PICHON, GRACIANO A. MONCADA,
ROLANDO K. ESCORIAL, NOEL A. DAGALE, EMILIO S. MOLINA, SHERWIN S. SOLAMO,
FULGENCIO I. DYGUAZO, GUALBERTO S. PAGATPAT, JOSEPH B. ARTAJO, FELIXBERTO Q.
OBENZA, FLORANTE A. FERRAREN, ELSA A. ELORDE, CARLOS P. MORRE, JAMES
AQUILINO M. COLOMA, JOAQUIN 0. CADORNA, JR., LORNA M. MAXINO, ROMULO A.
REYES, NOEL G. LEGASPI, ELEANOR R. LAMOSTE, WELMER E. CRASCO, DELIO T. OLAER,
VICENTE R. MASUCOL, IRENEO A. CUBAL, EDWIN A. DELA PENA, JIMMY A. TROCIO,
WILFREDO L. TORREON, ALEJANDRITO M. ALO, RAUL S. SAGA, JOSELITO P. RICONALLA,
TRISEBAL Q. AGUILAR, ARMAN N. LORENZO, SR. and PEDRO C. GUNTING, Respondents.

RESOLUTION

PEREZ, J.:

This is a Petition for Review on Certiorari1 of the Decision2 of the Twenty Third Division of the Court
of Appeals in CA-G.R. SP No. 02793- MIN dated 7 October 2010, affirming the 14 January 2009
Resolution No. 09-0047 rendered by the Civil Service Commission (CSC).

The Facts

Petitioner Davao City Water District(DCWD) is a government-owned and controlled corporation in

Davao City represented by its General Manager Engr. Rodora N. Gamboa (GM Gamboa). The
private respondents, namely, Rodrigo L. Aranjuez, Gregorio S. Cagula, Celestino A. Bondoc, Danilo
L.Buhay, Pedro E. Alcala, Joseph A. Valdez, Tito V. Sabangan,Marcelino B. Anino, Juanito C.
Pansacala, Joemarie B. Alba, Antero M. Ymas, Rolando L. Largo, Reneboy U. Esteban, Manuel B.
Libang, Romeorico A. Llanos, Arthur C. Bachiller, Socrates V. Corcuera, Alejandro C. Pichon,
Graciano A . Moncada, Rolando K. Escorial, Noel A. Dagale, Emilio S. Molina, Sherwin S. Solamo,
Fulgencio I. Dyguazo, Gualberto S. Pagatpat, Joseph B. Artajo, Felixberto Q. Obenza, Florante A.
Ferraren, Elsa A. Elorde, Carlos P. Morre, James Aquilino M. Coloma, Joaquin O. Cadorna, Jr.,
Lorna M. Maxino, Romulo A. Reyes, Noel G. Legaspi, Eleanor R. Lamoste, WelmerE. Crasco, Delio
T. Olaer, Vicente R. Masucol, Ireneo A. Cubal, Edwin A. dela Peña, Jimmy A. Trocio, Wilfredo L.
Torreon, Alejandrito M.Alo, Raul S. Saga, Joselito P. Riconalla, Trisebal Q. Aguilar, Arman N.
Lorenzo, Sr. and Pedro C. Gunting (Aranjuez, et al.) are officers and members of Nagkahiusang
Mamumuo sa Davao City Water District (NAMADACWAD). They were charged with several
administrative cases due to acts committed during the anniversary celebration of DCWD such as
wearing of t-shirts with inscriptions and posting of bond papers outside the designated places. The
inscriptions and postings bore employees’ grievances.

The records show that as early as 16 May 2007, the members and officers of NAMADACWAD have
been staging pickets in front of the DCWD Office during their lunch breaks to air their grievances
about the non-payment of their Collective Negotiation Agreement (CNA) incentives and their
opposition to DCWD’s privatization and proposed One Hundred Million Peso Loan.

On 31 October 2007, GM Gamboa issued an Office Memorandum addressed to all department

managers concerning the different activities that would take place during DCWD’s then upcoming
anniversary celebration. The Memorandum reads:

Please be informed that the opening activities of our 34th anniversary this coming 09 November
2007 are the motorcade and the fun run. The assembly area will be at the Victoria Plaza Mall
parking, in front of Cynthia’s Lechon Hauz, 6:00 o’clock in the morning.

In view of this, everybody is expected to be there except only those who are assigned as a skeletal
force. All carpool vehicles are also enjoined to proceed at the said area. The participants are free to
wear any sports attire. Further, you are advised to sign in the attendance sheet provided by the
HRD.3

On 8 November 2007, the officers and members of NAMADACWAD held an Emergency General
Assembly and they agreed to wear NAMADACWAD t-shirts with inscriptions stating, "CNA Incentive
Ihatag Na, Dir. Braganza Pahawa Na!" on the day of the anniversary.4

Came the anniversary, officers and members sported t-shirts with inscriptions "CNA Incentive Ihatag
Na, Dir. Braganza Pahawa Na!" at the beginning of the Fun Run at VictoriaPlaza at around 6:30 in
the morning and continued to wear the same inside the premises of the DCWD office during the
office hours. Also, one of the members of the Board of Directors of NAMADACWAD Gregorio S.
Cagula (Cagula), with the help of some of its members, attached similar inscriptions and posters of
employees’ grievances to a post in the motor pool area, an area not among the officially designated
places5 for posting of grievances as prescribed by DCWD’s Office Memorandum6 dated 8 February
1996 and pursuant to CSC Memorandum Circular No. 33,7 Series of 1994 (MC No. 33).8

As a consequence of their actions, GM Gamboa sent a Memorandum dated 14 November 2007

addressed to the officers and members of NAMADACWAD, requiring them to explain the reasons for
the attire they wore during the anniversary celebration. Through a collective letter dated 19
November 2007, the officers and members explained that the Memorandum only required the
employees to wear any sports attire, though theirs were with additional inscriptions containing
grievances. They countered that the inscriptions were but manifestations of their constitutional rights
of free speech and freedom of expression.9

On 23 November 2007, another Memorandum was sent to the officers of NAMADACWAD requiring
them to explain within 72-hours why they should not be held liable for the actions committed by
Cagula.10

Finding prima facie case against them, GM Gamboa filed formal charges against the officers and
members of NAMADACWAD as follow:

1. For DCWD Administrative Case No. 34-2007 against the officials of NAMADACWAD for
violation of Existing Civil Service Law and Rules of Serious Nature defined under Section 46
[12], Book V of Executive Order No. 292,11 in relation to Rule IV, Section 52 B [4] of the Civil
Service Resolution No. 99193612 dated August 31, 1999 and Civil Service Resolution No.
02131613 dated October 11, 2002 and MC No. 33 dated October 21, 1994.14

2. For DCWD Administrative Case Nos. 11-2007 to 33-2007 and 35-2007 to 44-2007
involving the individual members of NAMADACWAD for violation of Existing Civil Service
Law and Rules of Serious Nature defined under Section 46 [12], Book V of Executive Order
No. 292,15 in relation to Rule IV, Section 52 B [4] of the Civil Service Resolution No. 991936
dated August 31, 1999 and Civil Service Resolution No. 021316 dated October 11, 2002.

After giving those concerned the opportunity to explain through several hearings and
submission of additional evidence, the Hearing Committee, through the authority given by
DCWD to hear the administrative charges, filed on 14 March 2008 its Consolidated
Resolution and Recommendation finding the officers and members of the NAMADACWAD
guilty as charged with penalties ranging from suspension to dismissal from service with all
accessory penalties under the CSC Law and Rules.16

On 19 March 2008, GM Gamboa issued several Orders17 adopting the recommendation submitted by
the Hearing Committee but modifying some of the corresponding penalties in view of mitigating
circumstances such as first infractionand substantial justice. However, three officials namely Rodrigo
L. Aranjuez, Cagula and Celestino A. Bondoc were penalized with dismissal from the service for the
reason that the infraction was the second administrative offense of serious nature.18

Aggrieved, Aranjuez, et al., filed an Urgent Motion for Reconsideration19 with Prayer to Suspend the
Immediate Execution of the Orders dated 19 March 2008. The Motion for Reconsideration was
thereafter submitted for resolution after the Hearing Committee waived the filing of a Comment. On
17 April 2008, the Motion was denied by DCWD.

On 2 May 2008, Aranjuez, et al., filed an appeal before the CSC bringing up, among other issues,
the violation of their constitutional rights to assemble and petition for redress of grievances.20

In its Comment, DCWD defended the Orders on the basis of Section 6 of CSC Resolution No.
02131621 which provides that the concerted activity like the participation of the officers and
employees during the fun run wearing t-shirts with inscriptions was prohibited because it was done
during office hours. Moreover, the act of Cagula in posting papers with grievances outside the
designated areas was a clear violation of MC No. 33 in relation to 8 February 1996 Office
Memorandum. It was submitted that due to Cagula’s membership in the Board of Directors of
NAMADACWAD, the other officers were solidarily responsible for his actions.22

CSC Resolution

On 14 January 2009, CSC issued a Resolution23 partly granting the consolidated appeal and held
that the collective act of respondents in wearing t-shirts with grievance inscriptions during office
hours was not within the ambit of the definition of prohibited mass action punishable under CSC
Resolution 021316 since there was no intent to cause work stoppage. However, though not
prohibited under the Resolution, the act was considered as an offense punishable under "Violation of
Reasonable Office Rules and Regulations." CSC further ruled that Cagula’s act of posting of
grievances outside the designated areas was a clear violation of MC No. 33. By reason of Cagula’s
position, the other officers of NAMADACWAD were considered as having agreed and conspired to
commit the said act and as such are as liable as Cagula.

On the other hand, and contrary to the assertions of DCWD, the violations committed by the private
respondents are not serious in nature due to the lack of any abusive, vulgar, defamatory or libelous
language. The dispositive portion reads:

WHEREFORE, the Consolidated Appeal filed by Rodrigo L. Aranjuez, et al. is PARTLY GRANTED.
The Orders dated March 19, 2008 issued by the General Manager Rodora N. Gamboa finding
appellants guilty of Violation of Existing Civil Service Law and Rules of Serious Nature (Section 46
[12] Book V of Executive Order No. 292, in relation to Rule IV, Section 52 B [4] of the CSC
Resolution No. 991936 dated August 31, 1999 and CSC Resolution No. 021316 dated October 11,
2002 and CSC MC No. 33 dated October 21, 1994), are hereby MODIFIED. Accordingly, appellants
are hereby found liable for Violation of Reasonable Office Rules and Regulations and are meted the
following penalties, to wit:

1. As to members Danilo Buhay, Pedro E. Alcala, Joseph A. Valdez, Tito V. Sabangan,

Marcelino B. Anino, Juanito C. Pansacala, Joemarie B. Alba, Antero M. Ymas, Rolando L.
Largo, Reneboy U. Esteban, Manuel B. Libang, Romeorico A. Llanos, Arthur C. Bachiller,
Socrates V. Corcuera, Alejandro C. Pichon, Graciano A. Moncada, Rolando Escorial, Noel A.
Dagale, Emilio S. Molina, Sherwin S. Solano, Danilo L. Buhay and Fulgencio I. Dyguazo, the
penalty of reprimand;

2. As to officers Gualberta S. Pagatpat, Joseph A. Artalo, Felixberto Q. Obenza, Florante A.

Ferraren, Elsa A. Ilorde, Carlos P. Morre, James Aquilino M. Coloma, Joacquin O. Cadorna,
Jr., Lorna M. Maximo, Romulo A. Reyes, Noel G.Legazpi, Eleanor R. Lamoste, Welmer E.
Crasco, Delio T. Olaer, Vicente R. Masucol, Ireneo Cubal, Rodrigo L. Aranjuez, Gregorio S.
Cagula and Celestino A. Bondoc, the penalty of reprimand and strong warning that a
repetition of the same shall be dealt with severely.

3. As to members Edwin A. dela Peña, Jummy A. Trocio, Wilfredo A. Torreon, Alejandrito M.

Alo, Raul S. Saga, Joselito P. Riconalla, Trisebal Q. Aguilar,Arman L. Lorenzo, Sr. and
Pedro C. Gunting, they are likewise found guilty of the offense of Violation of Reasonable
Office Rules and Regulations but are not meted a penalty considering that they are casual
employees whose renewal of appointments were held in abeyance.24

Aggrieved, DCWD filed a Petition for Review under Rules 43 before the Court of Appeals alleging
procedural and substantive infirmities of the CSC Resolution.

The Court of Appeals’ Decision

In its decision, the Court of Appeals affirmed in toto25 the resolution of CSC.

The appellate court disagreed with the contention of DCWD that there was a violation of any
provision of Resolution No. 021316 in this wise:

As correctly observed by the Civil Service Commission, the act of respondents in sporting a t-shirt
with the inscription "CNA INCENTIVE IHATAG NA, DIRECTOR BRAGANZA,PAHAWA NA!" during
the fun run and even inside the office premises hardly qualifies as a prohibited concerted mass
action under CSC Resolution No. 021316.

xxxx

To say the least, Section 5 of Resolution No. 01316 provides a specific guideline as to what
constitutes a prohibited concerted activity. A prohibited concerted activity must be one undertaken
by government employees, by themselves or through their association, with the intent of effecting
work stoppage or service disruption, in order to realize their demands or force concessions. In the
case at hand, we can readily observe that respondent’s participation in the fun run, as well as their
behavior inside the premises of DCWD office during the regular working hours of that day indicate a
complete absence of any intention on their part to effect a work stoppage or disturbance. In fact, as
attested by both parties, all the respondents participated with the planned activities and festivities on
that day.26

The appellate court was likewise in agreement with the CSC which considered as simple violation of
office rules the posting of banners outside the designated posting areas by Cagula. Also like the
CSC, it ruled that such offense is not punishable with the penalty of dismissal.

The DCWD is now before us still with its basic arguments, though rephrased:

I.

The court a quo failed to rule on the issue whether or not the respondents’ Consolidated Appeal filed
before the CSC was sufficient in form and substance.

II.

The court a quo erred in ruling that the concerted mass action on November 9, 2007 was not
prohibited under Resolution No. 021316.

III.

The court a quo erred in ruling that Resolution No. 021316 and MC No. 33 are considered
"reasonable office rules and regulations" within the purview of Section 52 C [3] of the Uniform Rules
on Administrative Cases.

IV.

The court a quo erred in ruling that respondents’ act of posting white bond papers with union-related
inscriptions on their t-shirts while inside the office premises does not constitute serious violation of
Civil Service Rules but only a violation of Reasonable Office Rules and Regulations, despite the fact
that the said Memorandum Circular No. 33 is a CSC-issued Memorandum and not DCWD-issued
Rules.

V.

The court a quo erred in ruling that MC No. 33 was not violated by respondent Gregorio S. Cagula
and the rest of the officials of NAMADACWAD who were charged in DCWD Administrative case No.
34-2007.

VI.

The court a quo erred in not taking into consideration that respondents Aranjuez, Cagula and
Bondoc were second-time offenders who were previously charged and penalized for violation of MC
No. 33, thereby justifying their dismissal from the service.

VII.

The court a quo erred when it failed to rule on the issue of whether the decisions of a government
agency, acting as Disciplining Authority, in disciplinary cases are immediately executory upon receipt
thereof.

The Court's Ruling

The Court finds no merit in the petition.

Prefatorily, DCWD contends that the appeal of Aranjuez, et al., should have been dismissed by the
CSC for non-compliance with Section 46 of CSC Resolution No. 991936, particularly their failure to
file a notice of appeal, their failure to show proof of payment of the appeal fee and the petition’s
invalid verification and certification of non-forum shopping.

We are not persuaded.

Though the appeal before the CSC lacked a notice of appeal as required by CSC Resolution No.
991936 or the Uniform Rules on Administrative Cases in the Civil Service (URACCS),27 the
Consolidated Memorandum filed by the private respondents was enough to be considered as a
sufficient compliance with the rules. The Memorandum delineates the errors asserted against
DCWD and the discussions supporting their arguments. We find merit in the sufficiency of the
Memorandum rather than strict compliance in view of the constitutional right of every employee to
security of tenure. A more relevant consideration of public interest is accorded whenever the merits
of a case collide with rigid application of the rules.28

Further, we find that the Civil Service Commission, the agency directly concerned, the ruling of
which was upheld by the Court of Appeals on review, correctly exercised jurisdiction over
respondent’s appeal from the decision of petitioner DCWD, thereby ruling against, if sub silentio, the
argument of petitioner that the appeal should be dismissed for lack of proof of payment of appeal.
The Civil Service Commission and the Court of Appeals considered the procedural issue raised by
petitioner as a surmountable bar to the resolution of the main issue of respondents’ constitutional
right to free expression29 as amplified with specificity by their guaranteed right as workers to peaceful
concerted activity and their entitlement to security of tenure.30 The decisions of the Civil Service
Commission and the Court of Appeals are squarely supported by Adalim v. Taniñas31 stating that:

In a number of cases, we upheld the CSC’s decision relaxing its procedural rules to render
substantial justice. The Revised Rules on Administrative Cases in the Civil Service themselves
provide that administrative investigations shall be conducted without strict recourse to the technical
rules of procedure and evidence applicable to judicial proceedings. The case before the CSC
involves the security of tenure of public employees protected by the Constitution. Public interest
requires a resolution of the merits of the appeal instead of dismissing the same based on a rigid
application of the CSC Rules of Procedure. Accordingly, both the CSC and the CA properly allowed
respondent employees’ appeal despite procedural lapses to resolve the issue on the merits.

In Republic of the Philippines v. Court of Appeals,32 this Court pronounced that technical rules of
procedure are not ends in themselves but primarily devised and designed to help in the proper and
expedient dispensation of justice. In appropriate cases, therefore, the rules may have to be so
construed liberally as to meet and advance the cause of substantial justice. While it is desirable that
the rules of procedure are faithfully and even meticulously observed, courts should not be so strict
about procedural lapses that do not really impair the proper administration of justice. If the rules are
intended to ensure the orderly conduct of litigation, it is because of the higher objective they seek
which is the protection of substantive rights of the parties.33 Substantial justice, in other words must
prevail. In Paler,34 We said:

When substantial justice dictates it, procedural rules may be relaxed in order to arrive at a just
disposition of a case. The purpose behind limiting the period of appeal is to avoid unreasonable
delay in the administration of justice and to put an end to controversies. A one-day delay as in this
case, does not justify denial of the appeal where there is absolutely no indication of intent to delay as
in this case, does not justify denial of the appeal where there is absolutely no indication of intent to
delay justice on the part of Paler and the pleading is meritorious on its face.

We rule in favor of the allowance of respondents’ appeal because:

Law and jurisprudence grant to courts the prerogative to relax compliance with procedural rules of
even the most mandatory character, mindful of the duty to reconcile both the need to put an end to
litigation speedily and the parties’ right to an opportunity to be heard.35 (Emphasis supplied)

Quoting again the case of Republic v. Court of Appeals,36 we pointed out that this Court can temper
rigid rules in favor of substantial justice. We find that pronouncement apt and fit to this case. Thereby
we are not detained by the omissions of the respondents in their resort to the CSC, and we thus
proceed to the merits of the petitioners’ submissions.

Lastly, on the form, we find no merit in the contention that Aranjuez was not authorized to sign on
behalf of the other petitioners. Pursuant to Union Resolution No. 015-200837 attached as Annex A to
the Appellants’ 015-2008 Consolidated Memorandum dated 26 March 2008, the officers and
members of NAMDACWAD gave Aranjuez a general authority to represent the organization in all
legal matters to be filed for whatever purpose it may serve. From the general and broad grant of
authority, Aranjuez possessed the specific authority to sign in behalf of his principal the verification
and certification against non-forum shopping required of the petition.

To the kernel, then.

DCWD primarily contends that CSC and the Court of Appeals erred in ruling that the concerted mass
action on 9 November 2007 is not prohibited under Resolution No. 021316. We disagree. DCWD
relies on Resolution No. 021316, which states:

Section 6. Permissible Concerted Mass Action.– A concerted activity or mass action done outside of
government office hours shall not be deemed a prohibited concerted activity or mass action within
the contemplation of this omnibus rules provided the same shall not occasion or result in the
disruption of work or service.38

DCWD argues that since the concerted or mass action was done within government office hours,
such act was not permissible, therefore prohibited. Otherwise stated, a concerted activity done within
the regular government office hours is automatically a violation of Section 6 of the Resolution.

Notably, however, a prohibited concerted mass action is defined not in Sec. 6 of Resolution No.
021316 but in Sec. 5 thereof. Thus:

Section 5. Definition of Prohibited Concerted Mass Action. - As used in this Omnibus Rules, the
phrase ‘‘prohibited concerted activity or mass action’’ shall be understood to refer to any collective
activity undertaken by government employees, by themselves or through their employees
organizations, with the intent of effecting work stoppage or service disruption in order to realize their
demands of force concession, economic or otherwise, from their respective agencies or the
government. It shall include mass leaves, walkouts, pickets and acts of similar nature.39(Emphasis
ours).

The operative phrases are "any collective activity" and "work stoppage or service disruption."
Without the intent at work stoppage or service disruption, the concerted activity is not prohibited. The
time and place of the activity are not determinative of the prohibition. Whether done within
government hours, a concerted activity is allowed if it is without any intent at work stoppage.

We cannot isolate the provision of Section 6 of the Resolution from definition of prohibited activity in
Section 5 thereof. It is erroneous to interpret the provisions in such a way that an act not within the
circumstances as defined under Section 5 can still be regarded as prohibited if done within
government hours. To subscribe to the argument of DCWD would in effect expand the definition
provided by Resolution No. 021316 on what constitutes a prohibited mass action.

It is clear that the collective activity of joining the fun run in t-shirts with inscriptions on CNA
incentives was not to effect work stoppage or disrupt the service. As pointed out by the respondents,
they followed the advice of GM Gamboa "to be there" at the fun run. Respondents joined, and did
not disrupt the fun run. They were in sports attire that they were allowed, nay required, to wear. Else,
government employees would be deprived of their constitutional right to freedom of
expression.40 This, then, being the fact, we have to rule against the findings of both the CSC and
Court of Appeals that the wearing of t-shirts with grievance inscriptions constitutes as a violation of
Reasonable Office Rules and Regulations.

First off and as correctly pointed out by the charged officials and members in their 19 November
2007 Reply Letter to DCWD, they did not violate the 31 October 2007 Office Memorandum issued by
GM Gamboa relating to the proper attire to be worn during the fun run. The Office Memorandum was
clear in its order that the participants are free to wear any sports attire during the event. To reiterate,
the t-shirts they wore fall within the description of "any sports attire" that the Memorandum allowed to
be worn.

More importantly we need to refer to GSIS v. Villaviza (GSIS case).41 It was there ruled that the acts
of GSIS employees wearing similarly colored shirts while attending a public hearing inside the GSIS
Office, with clenching of fists and orating against the then President Winston Garcia, were not
constitutive of a prohibited activity but were only an exercise of their constitutional freedom of
expression.42 We repeat:

In this case, CSC found that the acts of respondents in going to the GSIS-IU office wearing red shirts
to witness a public hearing do not amount to a concerted activity or mass action proscribed above.
CSC even added that their actuations can be deemed an exercise of their constitutional right to
freedom of expression. The CA found no cogent reason to deviate therefrom.

As defined in Section 5 of CSC Resolution No. 02-1316 which serves to regulate the political rights
of those in the government service, the concerted activity or mass action proscribed must be
coupled with the "intent of effecting work stoppage or service disruption in order to realize their
demands of force concession. "Wearing similarly colored shirts, attending a public hearing at the
GSIS-IU office, bringing with them recording gadgets, clenching their fists, some even badmouthing
the guards and PGM Garcia, are acts not constitutive of an (i) intent to effect work stoppage or
service disruption and (ii) for the purpose of realizing their demands or force concession.

Precisely, the limitations or qualifications found in Section 5 of CSC Resolution No. 02-1316 are
there to temper and focus the application of such prohibition. Not all collective activity or mass
undertaking of government employees is prohibited. Otherwise, we would be totally depriving our
brothers and sisters in the government service of their constitutional right to freedom of expression.43
DCWD also found that Cagula and the rest of the officials violated MC No. 33 in relation to 8
February 1996 Office Memorandum. DCWD also argues that a violation of this circular constitutes as
a serious violation of CSC Rules as the circular is a CSC-issued Memorandum and not just a mere
issuance of DCWD.

CSC issued MC No. 33 in recognition of the rights of the government employees to air their
grievances balanced by the delivery of services to the public which should not be prejudiced. MC
No. 33 sets down rules governing the posting of posters and other similar materials within the
premises of government agencies as follows:

1. All head of agencies are hereby directed to provide specific spaces within their respective
premises, preferably near the bundy clock, at the canteen or places normally frequented by
employees, where employees’ unions/associations could post their posters.

2. x x x.

3. The hanging of posters and streamers shall only be allowed in the designated areas.

4. No poster, placard, streamer or other similar materials containing abusive, vulgar,

defamatory or libelous language shall be allowed.

Pursuant to this mandate, the former General Manager of DCWD issued an office memorandum
designating the bulletin board at the motor pool area below the Office of the Purchasing Division and
the side of the office building beside the guard house where the bundy clock is located as the
designated areas for posting of grievances.44Clearly, the DCWD Office Memorandum hews close and
faithfully to MC No. 33. It is a reasonable rule issued by the heads of the agencies in order to
regulate posting of grievances of the employees.

It is correct to conclude that those who enter government service are subjected to a different degree
of limitation on their freedom to speak their mind; however, it is not tantamount to the relinquishment
of their constitutional right of expression otherwise enjoyed by citizens just by reason of their
employment.45 Unarguably, a citizen who accepts public employment "must accept certain limitations
on his or her freedom." But there are some rights and freedoms so fundamental to liberty that they
cannot be bargained away in a contract for public employment. It is the Court’s responsibility to
ensure that citizens are not deprived of these fundamental rights by virtue of working for the
government.46

The GSIS case pronounced:

Government workers, whatever their ranks, have as much right as any person in the land to voice
out their protests against what they believe to be a violation of their rights and interests. Civil Service
does not deprive them of their freedom of expression. It would be unfair to hold that by joining the
government service, the members thereof have renounced or waived this basic liberty. This freedom
can be reasonably regulated only but can never be taken away.47

In simple paraphrase we say, regulation of the freedom of expression is not removal of the
constitutional right.

Apparently, DCWD, not satisfied by the CSC ruling that a violation of the memorandum is punishable
with reprimand, argues that what occurred was a serious violation implying that a higher penalty is
warranted.

Under Section 52 (C) (3), Rule IV of Resolution No. 991936,48 violation of reasonable office rules and
regulations is punishable with reprimand on the first offense and suspension ranging from one to
thirty days for the second offense.

In Re: Failure of Various Employees to Register their Time of Arrival and/or Departure from Office in
the Chronolog Machine, the charged court employees were penalized for violation of reasonable
office rules and regulations due to their violation of Supreme Court Administrative Circular No. 36-
2001 requiring all employees to register their daily attendance, in the Chronolog Time Recorder
Machine (CTRM) and in the logbook of their respective offices. Following Resolution No. 991936
that violation of reasonable rules and regulations is a light offense, the Court penalized its erring
employees with the penalty of reprimand.49

Thus, in line with the civil service rules and jurisprudence, we conclude that a violation of an office
memorandum, which was issued as an internal rule to regulate the area for posting of grievances
inside the office premise, is only a light offense punishable by reprimand.
Rules and regulations are issued to attain harmony, smooth operation, maximize efficiency and
productivity, with the ultimate objective of realizing the functions of particular offices and agencies of
the government.50

On the submissions that the decisions of a government agency, acting as Disciplining Authority, are
immediately executory upon receipt thereof, we need merely cite Section 37 of the Resolution No.
991936 which clearly provides that:

Section 37. Finality of Decisions. — A decision rendered by heads of agencies whereby a penalty of
suspension for not more than thirty (30) days or a fine in an amount not exceeding thirty (30) days'
salary is imposed, shall be final and executory. However, if the penalty imposed is suspension
exceeding thirty (30) days, or fine in an amount exceeding thirty (30) days salary, the same shall be
final and executory after the lapse of the reglementary period for filing a motion for reconsideration
or an appeal and no such pleading has been filed.51

As distinguished by the law, if the imposed suspension exceeds thirty days or the fine imposed is in
an amount over thirty-day salary, the decision will only attain finality after the lapse of the
reglementary period in the absence of any motion for reconsideration or appeal. Penalties within the
30-day threshold are immediately executory penalties.

In this case, the members and officials, except the casual employees who were not meted with
penalty as the renewal of their employment was held in abeyance, were sanctioned with penalties
ranging from suspension of work from one (1) month and one (1) day to dismissal from
service.52 Evidently, the finality and execution of the judgment did not take place after the lapse of the
reglementary period because as previously discussed, the members and officials were able to file
their consolidated appeal in lieu of notice of appeal.

As clear as the provision on the finality of decisions is Section 42 of Resolution No. 991936 on the
effect of motions for reconsideration. Thus:
1âw phi 1

Section 42. Effect of Filing. — The filing of a motion for reconsideration within the reglementary
period of fifteen (15) days shall stay the execution of the decision sought to be
reconsidered.53 (Emphasis ours)

The first and fundamental duty of the Court is to apply the law. If the law is clear and free from any
doubt or ambiguity as the quoted provision, there is no room for construction or interpretation. The
letter must be taken to mean exactly what it says and the court has no choice but to see to it that its
mandate is obeyed.54

The ponente appreciates the concurrence of Justice Marvic M.V.F. Leonen. No need was seen,
though, to add to the ruling that the present facts limited.

WHEREFORE, We DENY the petition for review on certiorari. Nonetheless, the decision of the CSC
which was affirmed in toto by the CA is MODIFIED. The finding of administrative liability of and the
penalty of reprimand against the NAMADACWAD members namely Danilo L. Buhay, Pedro E.
Alcala, Joseph A. Valdez, Tito V. Sabangan, Marcelino B. Anino, Juanito C. Pansacala, Joemarie B.
Alba, Antero M. Ymas, Rolando L. Largo, Reneboy U. Esteban, Manuel B. Libang, Romeorico A.
Llanos, Arthur C. Bachiller, Socrates V. Corcuera, Alejandro C. Pichon, Graciano A. Moncada,
Rolando K. Escorial, Noel A. Dagale, Emilio S. Molina, Sherwin S. Solamo, and Fulgencio I.
Dyguazo are hereby REVERSED and SET ASIDE.

The finding of liability against the casual employees namely Edwin A. dela Peña, Jummy A. Trocio,
Wilfredo L. Torreon, Alejandrito M. Alo, Raul S. Saga, Joselito P. Riconalla, Trisebal Q. Aguilar,
Arman N. Lorenzo, Sr. and Pedro C. Gunting is REVERSED and SET ASIDE.

As to officers Gualberto S. Pagatpat, Joseph B. Artajo, Felixberto Q. Obenza, Florante A. Ferraren,

Elsa A. Elorde, Carlos P. Morre, James Aquilino M. Coloma, Joaquin O. Cadorna, Jr., Lorna M.
Maxino, Romulo A. Reyes, Noel G. Legaspi, Eleanor R.Lamoste, Welmer E. Crasco, Delio T. Olaer,
Vicente R. Masucol, Ireneo Cubal, Rodrigo L. Aranjuez, Gregorio S. Cagula and Celestino A.
Bondoc, the penalty of reprimand and strong warning that a repetition of the same shall be dealt with
severely is hereby AFFIRMED.

SO ORDERED.

JOSE PORTUGAL PEREZ

Associate Justice

WE CONCUR:
 MARIA LOURDES P. A. SERENO
Chief Justice

ANTONIO T. CARPIO PRESBITERO J. VELASCO, JR.

Associate Justice Associate Justice

TERESITA J. LEONARDO-DE CASTRO ARTURO D. BRION

Associate Justice Associate Justice

(On Official Leave)

LUCAS P. BERSAMIN
DIOSDADO M. PERALTA*
Associate Justice
Associate Justice

MARIANO C. DEL CASTILLO MARTIN S. VILLARAMA, JR.

Associate Justice Associate Justice

JOSE CATRAL MENDOZA BIENVENIDO L. REYES

Associate Justice Associate Justice

(On Official leave)

ESTELA M. PERLAS-BERNABE
MARVIC M.V.F. LEONEN**Associate
Associate Justice
Justice

FRANCIS H. JARDELEZA
Associate Justice

CERTIFICATION

Pursuant to Section 13, Article VIII of the Constitution, it is hereby certified that the conclusions in
the above Resolution had been reached in consultation before the case was assigned to the writer of
the opinion of the Court's Division.

MARIA LOURDES P.A. SERENO

Chief Justice
 Republic of the Philippines
SUPREME COURT
Manila

EN BANC

G.R. No. 181881 October 18, 2011

BRICCIO "Ricky" A. POLLO, Petitioner,

vs.
CHAIRPERSON KARINA CONSTANTINO-DAVID, DIRECTOR IV RACQUEL DE GUZMAN
BUENSALIDA, DIRECTOR IV LYDIA A. CASTILLO, DIRECTOR III ENGELBERT ANTHONY D.
UNITE AND THE CIVIL SERVICE COMMISSION, Respondents.

DECISION

VILLARAMA, JR., J.:

This case involves a search of office computer assigned to a government employee who was
charged administratively and eventually dismissed from the service. The employee’s personal files
stored in the computer were used by the government employer as evidence of misconduct.

Before us is a petition for review on certiorari under Rule 45 which seeks to reverse and set aside
the Decision1dated October 11, 2007 and Resolution2 dated February 29, 2008 of the Court of
Appeals (CA). The CA dismissed the petition for certiorari (CA-G.R. SP No. 98224) filed by petitioner
Briccio "Ricky" A. Pollo to nullify the proceedings conducted by the Civil Service Commission (CSC)
which found him guilty of dishonesty, grave misconduct, conduct prejudicial to the best interest of the
service, and violation of Republic Act (R.A.) No. 6713 and penalized him with dismissal.

The factual antecedents:

Petitioner is a former Supervising Personnel Specialist of the CSC Regional Office No. IV and also
the Officer-in-Charge of the Public Assistance and Liaison Division (PALD) under the "Mamamayan
Muna Hindi Mamaya Na" program of the CSC.

On January 3, 2007 at around 2:30 p.m., an unsigned letter-complaint addressed to respondent

CSC Chairperson Karina Constantino-David which was marked "Confidential" and sent through a
courier service (LBC) from a certain "Alan San Pascual" of Bagong Silang, Caloocan City, was
received by the Integrated Records Management Office (IRMO) at the CSC Central Office. Following
office practice in which documents marked "Confidential" are left unopened and instead sent to the
addressee, the aforesaid letter was given directly to Chairperson David.

The letter-complaint reads:

The Chairwoman
Civil Service Commission
Batasan Hills, Quezon City

Dear Madam Chairwoman,

Belated Merry Christmas and Advance Happy New Year!

As a concerned citizen of my beloved country, I would like to ask from you personally if it is just
alright for an employee of your agency to be a lawyer of an accused gov’t employee having a
pending case in the csc. I honestly think this is a violation of law and unfair to others and your office.

I have known that a person have been lawyered by one of your attorny in the region 4 office. He is
the chief of the Mamamayan muna hindi mamaya na division. He have been helping many who have
pending cases in the Csc. The justice in our govt system will not be served if this will continue.
Please investigate this anomaly because our perception of your clean and good office is being
tainted.

Concerned Govt employee3

Chairperson David immediately formed a team of four personnel with background in information
technology (IT), and issued a memo directing them to conduct an investigation and specifically "to
back up all the files in the computers found in the Mamamayan Muna (PALD) and Legal
divisions."4 After some briefing, the team proceeded at once to the CSC-ROIV office at Panay
Avenue, Quezon City. Upon their arrival thereat around 5:30 p.m., the team informed the officials of
the CSC-ROIV, respondents Director IV Lydia Castillo (Director Castillo) and Director III Engelbert
Unite (Director Unite) of Chairperson David’s directive.

The backing-up of all files in the hard disk of computers at the PALD and Legal Services Division
(LSD) was witnessed by several employees, together with Directors Castillo and Unite who closely
monitored said activity. At around 6:00 p.m., Director Unite sent text messages to petitioner and the
head of LSD, who were both out of the office at the time, informing them of the ongoing copying of
computer files in their divisions upon orders of the CSC Chair. The text messages received by
petitioner read:

"Gud p.m. This is Atty. Unite FYI: Co people are going over the PCs of PALD and LSD per
instruction of the Chairman. If you can make it here now it would be better."

"All PCs Of PALD and LSD are being backed up per memo of the chair."

"CO IT people arrived just now for this purpose. We were not also informed about this.

"We can’t do anything about … it … it’s a directive from chair."

"Memo of the chair was referring to an anonymous complaint"; "ill send a copy of the memo
via mms"5

Petitioner replied also thru text message that he was leaving the matter to Director Unite and that he
will just get a lawyer. Another text message received by petitioner from PALD staff also reported the
presence of the team from CSC main office: "Sir may mga taga C.O. daw sa kuarto natin."6 At
around 10:00 p.m. of the same day, the investigating team finished their task. The next day, all the
computers in the PALD were sealed and secured for the purpose of preserving all the files stored
therein. Several diskettes containing the back-up files sourced from the hard disk of PALD and LSD
computers were turned over to Chairperson David. The contents of the diskettes were examined by
the CSC’s Office for Legal Affairs (OLA). It was found that most of the files in the 17 diskettes
containing files copied from the computer assigned to and being used by the petitioner, numbering
about 40 to 42 documents, were draft pleadings or letters7 in connection with administrative cases in
the CSC and other tribunals. On the basis of this finding, Chairperson David issued the Show-Cause
Order8 dated January 11, 2007, requiring the petitioner, who had gone on extended leave, to submit
his explanation or counter-affidavit within five days from notice.

Evaluating the subject documents obtained from petitioner’s personal files, Chairperson David made
the following observations:

Most of the foregoing files are drafts of legal pleadings or documents that are related to or connected
with administrative cases that may broadly be lumped as pending either in the CSCRO No. IV, the
CSC-NCR, the CSC-Central Office or other tribunals. It is also of note that most of these draft
pleadings are for and on behalves of parties, who are facing charges as respondents in
administrative cases. This gives rise to the inference that the one who prepared them was
knowingly, deliberately and willfully aiding and advancing interests adverse and inimical to the
interest of the CSC as the central personnel agency of the government tasked to discipline
misfeasance and malfeasance in the government service. The number of pleadings so prepared
further demonstrates that such person is not merely engaged in an isolated practice but pursues it
with seeming regularity. It would also be the height of naivete or credulity, and certainly against
common human experience, to believe that the person concerned had engaged in this customary
practice without any consideration, and in fact, one of the retrieved files (item 13 above) appears to
insinuate the collection of fees. That these draft pleadings were obtained from the computer
assigned to Pollo invariably raises the presumption that he was the one responsible or had a hand in
their drafting or preparation since the computer of origin was within his direct control and
disposition.9

Petitioner filed his Comment, denying that he is the person referred to in the anonymous letter-
complaint which had no attachments to it, because he is not a lawyer and neither is he "lawyering"
for people with cases in the CSC. He accused CSC officials of conducting a "fishing expedition"
when they unlawfully copied and printed personal files in his computer, and subsequently asking him
to submit his comment which violated his right against self-incrimination. He asserted that he had
protested the unlawful taking of his computer done while he was on leave, citing the letter dated
January 8, 2007 in which he informed Director Castillo that the files in his computer were his
personal files and those of his sister, relatives, friends and some associates and that he is not
authorizing their sealing, copying, duplicating and printing as these would violate his constitutional
right to privacy and protection against self-incrimination and warrantless search and seizure. He
pointed out that though government property, the temporary use and ownership of the computer
issued under a Memorandum of Receipt (MR) is ceded to the employee who may exercise all
attributes of ownership, including its use for personal purposes. As to the anonymous letter,
petitioner argued that it is not actionable as it failed to comply with the requirements of a formal
complaint under the Uniform Rules on Administrative Cases in the Civil Service (URACC). In view of
the illegal search, the files/documents copied from his computer without his consent is thus
inadmissible as evidence, being "fruits of a poisonous tree."10

On February 26, 2007, the CSC issued Resolution No. 07038211 finding prima facie case against the
petitioner and charging him with Dishonesty, Grave Misconduct, Conduct Prejudicial to the Best
Interest of the Service and Violation of R.A. No. 6713 (Code of Conduct and Ethical Standards for
Public Officials and Employees). Petitioner was directed to submit his answer under oath within five
days from notice and indicate whether he elects a formal investigation. Since the charges fall under
Section 19 of the URACC, petitioner was likewise placed under 90 days preventive suspension
effective immediately upon receipt of the resolution. Petitioner received a copy of Resolution No.
070382 on March 1, 2007.

Petitioner filed an Omnibus Motion (For Reconsideration, to Dismiss and/or to Defer) assailing the
formal charge as without basis having proceeded from an illegal search which is beyond the
authority of the CSC Chairman, such power pertaining solely to the court. Petitioner reiterated that
he never aided any people with pending cases at the CSC and alleged that those files found in his
computer were prepared not by him but by certain persons whom he permitted, at one time or
another, to make use of his computer out of close association or friendship. Attached to the motion
were the affidavit of Atty. Ponciano R. Solosa who entrusted his own files to be kept at petitioner’s
CPU and Atty. Eric N. Estrellado, the latter being Atty. Solosa’s client who attested that petitioner
had nothing to do with the pleadings or bill for legal fees because in truth he owed legal fees to Atty.
Solosa and not to petitioner. Petitioner contended that the case should be deferred in view of the
prejudicial question raised in the criminal complaint he filed before the Ombudsman against Director
Buensalida, whom petitioner believes had instigated this administrative case. He also prayed for the
lifting of the preventive suspension imposed on him. In its Resolution No. 07051912 dated March 19,
2007, the CSC denied the omnibus motion. The CSC resolved to treat the said motion as petitioner’s
answer.

On March 14, 2007, petitioner filed an Urgent Petition13 under Rule 65 of the Rules of Court,
docketed as CA-G.R. SP No. 98224, assailing both the January 11, 2007 Show-Cause Order and
Resolution No. 070382 dated February 26, 2007 as having been issued with grave abuse of
discretion amounting to excess or total absence of jurisdiction. Prior to this, however, petitioner
lodged an administrative/criminal complaint against respondents Directors Racquel D.G. Buensalida
(Chief of Staff, Office of the CSC Chairman) and Lydia A. Castillo (CSC-RO IV) before the Office of
the Ombudsman, and a separate complaint for disbarment against Director Buensalida.14

On April 17, 2007, petitioner received a notice of hearing from the CSC setting the formal
investigation of the case on April 30, 2007. On April 25, 2007, he filed in the CA an Urgent Motion for
the issuance of TRO and preliminary injunction.15 Since he failed to attend the pre-hearing
conference scheduled on April 30, 2007, the CSC reset the same to May 17, 2007 with warning that
the failure of petitioner and/or his counsel to appear in the said pre-hearing conference shall entitle
the prosecution to proceed with the formal investigation ex-parte.16 Petitioner moved to defer or to
reset the pre-hearing conference, claiming that the investigation proceedings should be held in
abeyance pending the resolution of his petition by the CA. The CSC denied his request and again
scheduled the pre-hearing conference on May 18, 2007 with similar warning on the consequences of
petitioner and/or his counsel’s non-appearance.17 This prompted petitioner to file another motion in
the CA, to cite the respondents, including the hearing officer, in indirect contempt.18

On June 12, 2007, the CSC issued Resolution No. 07113419 denying petitioner’s motion to set aside
the denial of his motion to defer the proceedings and to inhibit the designated hearing officer, Atty.
Bernard G. Jimenez. The hearing officer was directed to proceed with the investigation proper with
dispatch.

In view of the absence of petitioner and his counsel, and upon the motion of the prosecution,
petitioner was deemed to have waived his right to the formal investigation which then proceeded ex
parte.

On July 24, 2007, the CSC issued Resolution No. 071420,20 the dispositive part of which reads:

WHEREFORE, foregoing premises considered, the Commission hereby finds Briccio A. Pollo, a.k.a.
Ricky A. Pollo GUILTY of Dishonesty, Grave Misconduct, Conduct Prejudicial to the Best Interest of
the Service and Violation of Republic Act 6713. He is meted the penalty of DISMISSAL FROM THE
SERVICE with all its accessory penalties, namely, disqualification to hold public office, forfeiture of
retirement benefits, cancellation of civil service eligibilities and bar from taking future civil service
examinations.21

On the paramount issue of the legality of the search conducted on petitioner’s computer, the CSC
noted the dearth of jurisprudence relevant to the factual milieu of this case where the government as
employer invades the private files of an employee stored in the computer assigned to him for his
official use, in the course of initial investigation of possible misconduct committed by said employee
and without the latter’s consent or participation. The CSC thus turned to relevant rulings of the
United States Supreme Court, and cited the leading case of O’Connor v. Ortega22as authority for the
view that government agencies, in their capacity as employers, rather than law enforcers, could
validly conduct search and seizure in the governmental workplace without meeting the "probable
cause" or warrant requirement for search and seizure. Another ruling cited by the CSC is the more
recent case of United States v. Mark L. Simons23 which declared that the federal agency’s computer
use policy foreclosed any inference of reasonable expectation of privacy on the part of its
employees. Though the Court therein recognized that such policy did not, at the same time, erode
the respondent’s legitimate expectation of privacy in the office in which the computer was installed,
still, the warrantless search of the employee’s office was upheld as valid because a government
employer is entitled to conduct a warrantless search pursuant to an investigation of work-related
misconduct provided the search is reasonable in its inception and scope.

With the foregoing American jurisprudence as benchmark, the CSC held that petitioner has no
reasonable expectation of privacy with regard to the computer he was using in the regional office in
view of the CSC computer use policy which unequivocally declared that a CSC employee cannot
assert any privacy right to a computer assigned to him. Even assuming that there was no such
administrative policy, the CSC was of the view that the search of petitioner’s computer successfully
passed the test of reasonableness for warrantless searches in the workplace as enunciated in the
aforecited authorities. The CSC stressed that it pursued the search in its capacity as government
employer and that it was undertaken in connection with an investigation involving work-related
misconduct, which exempts it from the warrant requirement under the Constitution. With the matter
of admissibility of the evidence having been resolved, the CSC then ruled that the totality of
evidence adequately supports the charges of grave misconduct, dishonesty, conduct prejudicial to
the best interest of the service and violation of R.A. No. 6713 against the petitioner. These grave
infractions justified petitioner’s dismissal from the service with all its accessory penalties.

In his Memorandum24 filed in the CA, petitioner moved to incorporate the above resolution dismissing
him from the service in his main petition, in lieu of the filing of an appeal via a Rule 43 petition. In a
subsequent motion, he likewise prayed for the inclusion of Resolution No. 07180025 which denied his
motion for reconsideration.

By Decision dated October 11, 2007, the CA dismissed the petition for certiorari after finding no
grave abuse of discretion committed by respondents CSC officials. The CA held that: (1) petitioner
was not charged on the basis of the anonymous letter but from the initiative of the CSC after a fact-
finding investigation was conducted and the results thereof yielded a prima facie case against him;
(2) it could not be said that in ordering the back-up of files in petitioner’s computer and later
confiscating the same, Chairperson David had encroached on the authority of a judge in view of the
CSC computer policy declaring the computers as government property and that employee-users
thereof have no reasonable expectation of privacy in anything they create, store, send, or receive on
the computer system; and (3) there is nothing contemptuous in CSC’s act of proceeding with the
formal investigation as there was no restraining order or injunction issued by the CA.

His motion for reconsideration having been denied by the CA, petitioner brought this appeal arguing
that –

THE HONORABLE COURT OF APPEALS GRIEVOUSLY ERRED AND COMMITTED

SERIOUS IRREGULARITY AND BLATANT ERRORS IN LAW AMOUNTING TO GRAVE
ABUSE OF DISCRETION WHEN IT RULED THAT ANONYMOUS COMPLAINT IS
ACTIONABLE UNDER E.O. 292 WHEN IN TRUTH AND IN FACT THE CONTRARY IS
EXPLICITLY PROVIDED UNDER 2nd PARAGRAPH OF SECTION 8 OF CSC
RESOLUTION NO. 99-1936, WHICH IS AN [AMENDMENT] TO THE ORIGINAL RULES
PER CSC RESOLUTION NO. 94-0521;

II

THE HONORABLE COURT GRIEVOUSLY ERRED AND COMMITTED PALPABLE

ERRORS IN LAW AMOUNTING TO GRAVE ABUSE OF DISCRETION WHEN IT RULED
THAT PETITIONER CANNOT INVOKE HIS RIGHT TO PRIVACY, TO UNREASONABLE
SEARCH AND SEIZURE, AGAINST SELF-INCRIMINATION, BY VIRTUE OF OFFICE
MEMORANDUM NO. 10 S. 2002, A MERE INTERNAL MEMORANDUM SIGNED SOLELY
AND EXCLUSIVELY BY RESPONDENT DAVID AND NOT BY THE COLLEGIAL
COMMISSION CONSIDERING THAT POLICY MATTERS INVOLVING SUB[S]TANTIAL
RIGHTS CANNOT BE COVERED BY AN OFFICE MEMORANDUM WHICH IS LIMITED TO
PROCEDURAL AND ROUTINARY INSTRUCTION;
 III

THE HONORABLE COURT GRAVELY ERRED AND COMMITTED GRAVE ABUSE OF

DISCRETION WHEN IT RULED THAT MEMO SEARCH DATED JANUARY 3, 2007 AND
THE TAKING OF DOCUMENTS IN THE EVENING THEREOF FROM 7:00 TO 10:00 P.M.
IS NOT GRAVE ABUSE OF DISCRETION LIMITING THE DEFINITION [OF] GRAVE
ABUSE OF DISCRETION TO ONE INVOLVING AND TAINTED WITH PERSONAL
HOSTILITY. IT LIKEWISE ERRED IN HOLDING THAT DATA STORED IN THE
GOVERNMENT COMPUTERS ARE GOVERNMENT PROPERTIES INCLUDING THE
PERSONAL FILES WHEN THE CONTRARY IS PROVIDED UNDER SECTION 14 OF OM.
10 s. 2002. AND GRIEVOUSLY ERRED STILL WHEN IT RULED THAT RESPONDENT
DAVID BY VIRTUE OF O.M. 10 DID NOT ENCROACH ON THE DUTIES AND FUNCTIONS
OF A JUDGE PURSUANT TO ARTICLE III, SECTION 2 OF THE 1987 PHILIPPINE
CONSTITUTION;

IV

THE HONORABLE COURT ERRED WHEN IT FAILED TO CONSIDER ALL OTHER NEW
ARGUMENTS, ADDITIONAL EVIDENCE HEREUNTO SUBMITTED AS WELL AS ITS
FAILURE TO EVALUATE AND TAKE ACTION ON THE 2 MOTIONS TO ADMIT AND
INCORPORATE CSC RESOLUTION NOS. 07-1420 DATED JULY 24, 2007 AND CSC
RESOLUTION 07-1800 DATED SEPTEMBER 10, 2007. IT DID NOT RULE LIKEWISE ON
THE FOUR URGENT MOTION TO RESOLVE ANCILLARY PRAYER FOR TRO.26

Squarely raised by the petitioner is the legality of the search conducted on his office computer and
the copying of his personal files without his knowledge and consent, alleged as a transgression on
his constitutional right to privacy.

The right to privacy has been accorded recognition in this jurisdiction as a facet of the right protected
by the guarantee against unreasonable search and seizure under Section 2, Article III of the 1987
Constitution,27 which provides:

Sec. 2. The right of the people to be secure in their persons, houses, papers, and effects against
unreasonable searches and seizures of whatever nature and for any purpose shall be inviolable, and
no search warrant or warrant of arrest shall issue except upon probable cause to be determined
personally by the judge after examination under oath or affirmation of the complainant and the
witnesses he may produce, and particularly describing the place to be searched and the persons or
things to be seized.

The constitutional guarantee is not a prohibition of all searches and seizures but only of
"unreasonable" searches and seizures.28 But to fully understand this concept and application for the
purpose of resolving the issue at hand, it is essential that we examine the doctrine in the light of
pronouncements in another jurisdiction. As the Court declared in People v. Marti29 :

Our present constitutional provision on the guarantee against unreasonable search and seizure had
its origin in the 1935 Charter which, worded as follows:

"The right of the people to be secure in their persons, houses, papers and effects against
unreasonable searches and seizures shall not be violated, and no warrants shall issue but upon
probable cause, to be determined by the judge after examination under oath or affirmation of the
complainant and the witnesses he may produce, and particularly describing the place to be
searched, and the persons or things to be seized." (Sec. 1[3], Article III)

was in turn derived almost verbatim from the Fourth Amendment to the United States Constitution.
As such, the Court may turn to the pronouncements of the United States Federal Supreme Court
and State Appellate Courts which are considered doctrinal in this jurisdiction.30

In the 1967 case of Katz v. United States,31 the US Supreme Court held that the act of FBI agents in
electronically recording a conversation made by petitioner in an enclosed public telephone booth
violated his right to privacy and constituted a "search and seizure". Because the petitioner had a
reasonable expectation of privacy in using the enclosed booth to make a personal telephone call, the
protection of the Fourth Amendment extends to such area. In the concurring opinion of Mr. Justice
Harlan, it was further noted that the existence of privacy right under prior decisions involved a two-
fold requirement: first, that a person has exhibited an actual (subjective) expectation of privacy; and
second, that the expectation be one that society is prepared to recognize as reasonable (objective).32

In Mancusi v. DeForte33 which addressed the reasonable expectations of private employees in the
workplace, the US Supreme Court held that a union employee had Fourth Amendment rights with
regard to an office at union headquarters that he shared with other union officials, even as the latter
or their guests could enter the office. The Court thus "recognized that employees may have a
reasonable expectation of privacy against intrusions by police."

That the Fourth Amendment equally applies to a government workplace was addressed in the 1987
case of O’Connor v. Ortega34 where a physician, Dr. Magno Ortega, who was employed by a state
hospital, claimed a violation of his Fourth Amendment rights when hospital officials investigating
charges of mismanagement of the psychiatric residency program, sexual harassment of female
hospital employees and other irregularities involving his private patients under the state medical aid
program, searched his office and seized personal items from his desk and filing cabinets. In that
case, the Court categorically declared that "[i]ndividuals do not lose Fourth Amendment rights merely
because they work for the government instead of a private employer."35 A plurality of four Justices
concurred that the correct analysis has two steps: first, because "some government offices may be
so open to fellow employees or the public that no expectation of privacy is reasonable", a court must
consider "[t]he operational realities of the workplace" in order to determine whether an employee’s
Fourth Amendment rights are implicated; and next, where an employee has a legitimate privacy
expectation, an employer’s intrusion on that expectation "for noninvestigatory, work-related
purposes, as well as for investigations of work-related misconduct, should be judged by the standard
of reasonableness under all the circumstances."36

On the matter of government employees’ reasonable expectations of privacy in their workplace,

O’Connor teaches:

x x x Public employees’ expectations of privacy in their offices, desks, and file cabinets, like similar
expectations of employees in the private sector, may be reduced by virtue of actual office practices
and procedures, or by legitimate regulation. x x x The employee’s expectation of privacy must be
assessed in the context of the employment relation. An office is seldom a private enclave free from
entry by supervisors, other employees, and business and personal invitees. Instead, in many cases
offices are continually entered by fellow employees and other visitors during the workday for
conferences, consultations, and other work-related visits. Simply put, it is the nature of government
offices that others – such as fellow employees, supervisors, consensual visitors, and the general
public – may have frequent access to an individual’s office. We agree with JUSTICE SCALIA that
"[c]onstitutional protection against unreasonable searches by the government does not disappear
merely because the government has the right to make reasonable intrusions in its capacity as
employer," x x x but some government offices may be so open to fellow employees or the
public that no expectation of privacy is reasonable. x x x Given the great variety of work
environments in the public sector, the question of whether an employee has a reasonable
expectation of privacy must be addressed on a case-by-case basis.37 (Citations omitted;
emphasis supplied.)

On the basis of the established rule in previous cases, the US Supreme Court declared that Dr.
Ortega’s Fourth Amendment rights are implicated only if the conduct of the hospital officials infringed
"an expectation of privacy that society is prepared to consider as reasonable." Given the undisputed
evidence that respondent Dr. Ortega did not share his desk or file cabinets with any other
employees, kept personal correspondence and other private items in his own office while those
work-related files (on physicians in residency training) were stored outside his office, and there being
no evidence that the hospital had established any reasonable regulation or policy discouraging
employees from storing personal papers and effects in their desks or file cabinets (although the
absence of such a policy does not create any expectation of privacy where it would not otherwise
exist), the Court concluded that Dr. Ortega has a reasonable expectation of privacy at least in his
desk and file cabinets.38

Proceeding to the next inquiry as to whether the search conducted by hospital officials was
reasonable, the O’Connor plurality decision discussed the following principles:

Having determined that Dr. Ortega had a reasonable expectation of privacy in his office, the Court of
Appeals simply concluded without discussion that the "search…was not a reasonable search under
the fourth amendment." x x x "[t]o hold that the Fourth Amendment applies to searches conducted by
[public employers] is only to begin the inquiry into the standards governing such searches…[W]hat is
reasonable depends on the context within which a search takes place. x x x Thus, we must
determine the appropriate standard of reasonableness applicable to the search. A determination of
the standard of reasonableness applicable to a particular class of searches requires "balanc[ing] the
nature and quality of the intrusion on the individual’s Fourth Amendment interests against the
importance of the governmental interests alleged to justify the intrusion." x x x In the case of
searches conducted by a public employer, we must balance the invasion of the employees’
legitimate expectations of privacy against the government’s need for supervision, control,
and the efficient operation of the workplace.

xxxx
In our view, requiring an employer to obtain a warrant whenever the employer wished to enter an
employee’s office, desk, or file cabinets for a work-related purpose would seriously disrupt the
routine conduct of business and would be unduly burdensome. Imposing unwieldy warrant
procedures in such cases upon supervisors, who would otherwise have no reason to be familiar with
such procedures, is simply unreasonable. In contrast to other circumstances in which we have
required warrants, supervisors in offices such as at the Hospital are hardly in the business of
investigating the violation of criminal laws. Rather, work-related searches are merely incident to the
primary business of the agency. Under these circumstances, the imposition of a warrant requirement
would conflict with the "common-sense realization that government offices could not function if every
employment decision became a constitutional matter." x x x

xxxx

The governmental interest justifying work-related intrusions by public employers is the efficient and
proper operation of the workplace. Government agencies provide myriad services to the public, and
the work of these agencies would suffer if employers were required to have probable cause before
they entered an employee’s desk for the purpose of finding a file or piece of office correspondence.
Indeed, it is difficult to give the concept of probable cause, rooted as it is in the criminal investigatory
context, much meaning when the purpose of a search is to retrieve a file for work-related reasons.
Similarly, the concept of probable cause has little meaning for a routine inventory conducted by
public employers for the purpose of securing state property. x x x To ensure the efficient and proper
operation of the agency, therefore, public employers must be given wide latitude to enter employee
offices for work-related, noninvestigatory reasons.

We come to a similar conclusion for searches conducted pursuant to an investigation of work-related

employee misconduct. Even when employers conduct an investigation, they have an interest
substantially different from "the normal need for law enforcement." x x x Public employers have an
interest in ensuring that their agencies operate in an effective and efficient manner, and the work of
these agencies inevitably suffers from the inefficiency, incompetence, mismanagement, or other
work-related misfeasance of its employees. Indeed, in many cases, public employees are entrusted
with tremendous responsibility, and the consequences of their misconduct or incompetence to both
the agency and the public interest can be severe. In contrast to law enforcement officials, therefore,
public employers are not enforcers of the criminal law; instead, public employers have a direct and
overriding interest in ensuring that the work of the agency is conducted in a proper and efficient
manner. In our view, therefore, a probable cause requirement for searches of the type at issue
here would impose intolerable burdens on public employers. The delay in correcting the
employee misconduct caused by the need for probable cause rather than reasonable
suspicion will be translated into tangible and often irreparable damage to the agency’s work,
and ultimately to the public interest. x x x

xxxx

In sum, we conclude that the "special needs, beyond the normal need for law enforcement
make the…probable-cause requirement impracticable," x x x for legitimate, work-related
noninvestigatory intrusions as well as investigations of work-related misconduct. A standard
of reasonableness will neither unduly burden the efforts of government employers to ensure the
efficient and proper operation of the workplace, nor authorize arbitrary intrusions upon the privacy of
public employees. We hold, therefore, that public employer intrusions on the constitutionally
protected privacy interests of government employees for noninvestigatory, work-related
purposes, as well as for investigations of work-related misconduct, should be judged by
the standard of reasonableness under all the circumstances. Under this reasonableness
standard, both the inception and the scope of the intrusion must be reasonable:

"Determining the reasonableness of any search involves a twofold inquiry: first, one must consider
‘whether the…action was justified at its inception,’ x x x ; second, one must determine whether the
search as actually conducted ‘was reasonably related in scope to the circumstances which justified
the interference in the first place,’" x x x

Ordinarily, a search of an employee’s office by a supervisor will be "justified at its inception"

when there are reasonable grounds for suspecting that the search will turn up evidence that
the employee is guilty of work-related misconduct, or that the search is necessary for a
noninvestigatory work-related purpose such as to retrieve a needed file. x x x The search will be
permissible in its scope when "the measures adopted are reasonably related to the
objectives of the search and not excessively intrusive in light of …the nature of the
[misconduct]." x x x39 (Citations omitted; emphasis supplied.)

Since the District Court granted summary judgment without a hearing on the factual dispute as to the
character of the search and neither was there any finding made as to the scope of the search that
was undertaken, the case was remanded to said court for the determination of the justification for the
search and seizure, and evaluation of the reasonableness of both the inception of the search and its
scope.

In O’Connor the Court recognized that "special needs" authorize warrantless searches involving
public employees for work-related reasons. The Court thus laid down a balancing test under which
government interests are weighed against the employee’s reasonable expectation of privacy. This
reasonableness test implicates neither probable cause nor the warrant requirement, which are
related to law enforcement.40

O’Connor was applied in subsequent cases raising issues on employees’ privacy rights in the
workplace. One of these cases involved a government employer’s search of an office computer,
United States v. Mark L. Simons41where the defendant Simons, an employee of a division of the
Central Intelligence Agency (CIA), was convicted of receiving and possessing materials containing
child pornography. Simons was provided with an office which he did not share with anyone, and a
computer with Internet access. The agency had instituted a policy on computer use stating that
employees were to use the Internet for official government business only and that accessing
unlawful material was specifically prohibited. The policy also stated that users shall understand that
the agency will periodically audit, inspect, and/or monitor the user’s Internet access as deemed
appropriate. CIA agents instructed its contractor for the management of the agency’s computer
network, upon initial discovery of prohibited internet activity originating from Simons’ computer, to
conduct a remote monitoring and examination of Simons’ computer. After confirming that Simons
had indeed downloaded pictures that were pornographic in nature, all the files on the hard drive of
Simon’s computer were copied from a remote work station. Days later, the contractor’s
representative finally entered Simon’s office, removed the original hard drive on Simon’s computer,
replaced it with a copy, and gave the original to the agency security officer. Thereafter, the agency
secured warrants and searched Simons’ office in the evening when Simons was not around. The
search team copied the contents of Simons’ computer; computer diskettes found in Simons’ desk
drawer; computer files stored on the zip drive or on zip drive diskettes; videotapes; and various
documents, including personal correspondence. At his trial, Simons moved to suppress these
evidence, arguing that the searches of his office and computer violated his Fourth Amendment
rights. After a hearing, the district court denied the motion and Simons was found guilty as charged.

Simons appealed his convictions. The US Supreme Court ruled that the searches of Simons’
computer and office did not violate his Fourth Amendment rights and the first search warrant was
valid. It held that the search remains valid under the O’Connor exception to the warrant requirement
because evidence of the crime was discovered in the course of an otherwise proper administrative
inspection. Simons’ violation of the agency’s Internet policy happened also to be a violation of
criminal law; this does not mean that said employer lost the capacity and interests of an employer.
The warrantless entry into Simons’ office was reasonable under the Fourth Amendment standard
announced in O’Connor because at the inception of the search, the employer had "reasonable
grounds for suspecting" that the hard drive would yield evidence of misconduct, as the employer was
already aware that Simons had misused his Internet access to download over a thousand
pornographic images. The retrieval of the hard drive was reasonably related to the objective of the
search, and the search was not excessively intrusive. Thus, while Simons had a reasonable
expectation of privacy in his office, he did not have such legitimate expectation of privacy with regard
to the files in his computer.

x x x To establish a violation of his rights under the Fourth Amendment, Simons must first prove that
he had a legitimate expectation of privacy in the place searched or the item seized. x x x And, in
order to prove a legitimate expectation of privacy, Simons must show that his subjective expectation
of privacy is one that society is prepared to accept as objectively reasonable. x x x

xxxx

x x x We conclude that the remote searches of Simons’ computer did not violate his Fourth
Amendment rights because, in light of the Internet policy, Simons lacked a legitimate expectation of
privacy in the files downloaded from the Internet. Additionally, we conclude that Simons’ Fourth
Amendment rights were not violated by FBIS’ retrieval of Simons’ hard drive from his office.

Simons did not have a legitimate expectation of privacy with regard to the record or fruits of
his Internet use in light of the FBIS Internet policy. The policy clearly stated that FBIS would
"audit, inspect, and/or monitor" employees’ use of the Internet, including all file transfers, all
websites visited, and all e-mail messages, "as deemed appropriate." x x x This policy placed
employees on notice that they could not reasonably expect that their Internet activity would be
private. Therefore, regardless of whether Simons subjectively believed that the files he transferred
from the Internet were private, such a belief was not objectively reasonable after FBIS notified him
that it would be overseeing his Internet use. x x x Accordingly, FBIS’ actions in remotely searching
and seizing the computer files Simons downloaded from the Internet did not violate the Fourth
Amendment.
xxxx

The burden is on Simons to prove that he had a legitimate expectation of privacy in his office.
x x x Here, Simons has shown that he had an office that he did not share. As noted above, the
operational realities of Simons’ workplace may have diminished his legitimate privacy expectations.
However, there is no evidence in the record of any workplace practices, procedures, or regulations
that had such an effect. We therefore conclude that, on this record, Simons possessed a
legitimate expectation of privacy in his office.

xxxx

In the final analysis, this case involves an employee’s supervisor entering the employee’s
government office and retrieving a piece of government equipment in which the employee had
absolutely no expectation of privacy – equipment that the employer knew contained evidence of
crimes committed by the employee in the employee’s office. This situation may be contrasted with
one in which the criminal acts of a government employee were unrelated to his employment. Here,
there was a conjunction of the conduct that violated the employer’s policy and the conduct that
violated the criminal law. We consider that FBIS’ intrusion into Simons’ office to retrieve the hard
drive is one in which a reasonable employer might engage. x x x42 (Citations omitted; emphasis
supplied.)

This Court, in Social Justice Society (SJS) v. Dangerous Drugs Board43 which involved the
constitutionality of a provision in R.A. No. 9165 requiring mandatory drug testing of candidates for
public office, students of secondary and tertiary schools, officers and employees of public and
private offices, and persons charged before the prosecutor’s office with certain offenses, have also
recognized the fact that there may be such legitimate intrusion of privacy in the workplace.

The first factor to consider in the matter of reasonableness is the nature of the privacy interest upon
which the drug testing, which effects a search within the meaning of Sec. 2, Art. III of the
Constitution, intrudes. In this case, the office or workplace serves as the backdrop for the analysis of
the privacy expectation of the employees and the reasonableness of drug testing requirement. The
employees’ privacy interest in an office is to a large extent circumscribed by the company’s work
policies, the collective bargaining agreement, if any, entered into by management and the bargaining
unit, and the inherent right of the employer to maintain discipline and efficiency in the workplace.
Their privacy expectation in a regulated office environment is, in fine, reduced; and a degree of
impingement upon such privacy has been upheld. (Emphasis supplied.)

Applying the analysis and principles announced in O’Connor and Simons to the case at bar, we now
address the following questions: (1) Did petitioner have a reasonable expectation of privacy in his
office and computer files?; and (2) Was the search authorized by the CSC Chair, the copying of the
contents of the hard drive on petitioner’s computer reasonable in its inception and scope?

In this inquiry, the relevant surrounding circumstances to consider include "(1) the employee’s
relationship to the item seized; (2) whether the item was in the immediate control of the employee
when it was seized; and (3) whether the employee took actions to maintain his privacy in the item."
These factors are relevant to both the subjective and objective prongs of the reasonableness inquiry,
and we consider the two questions together.44 Thus, where the employee used a password on his
computer, did not share his office with co-workers and kept the same locked, he had a legitimate
expectation of privacy and any search of that space and items located therein must comply with the
Fourth Amendment.45

We answer the first in the negative. Petitioner failed to prove that he had an actual (subjective)
expectation of privacy either in his office or government-issued computer which contained his
personal files. Petitioner did not allege that he had a separate enclosed office which he did not share
with anyone, or that his office was always locked and not open to other employees or visitors.
Neither did he allege that he used passwords or adopted any means to prevent other employees
from accessing his computer files. On the contrary, he submits that being in the public assistance
office of the CSC-ROIV, he normally would have visitors in his office like friends, associates and
even unknown people, whom he even allowed to use his computer which to him seemed a trivial
request. He described his office as "full of people, his friends, unknown people" and that in the past
22 years he had been discharging his functions at the PALD, he is "personally assisting incoming
clients, receiving documents, drafting cases on appeals, in charge of accomplishment report,
Mamamayan Muna Program, Public Sector Unionism, Correction of name, accreditation of service,
and hardly had anytime for himself alone, that in fact he stays in the office as a paying
customer."46 Under this scenario, it can hardly be deduced that petitioner had such expectation of
privacy that society would recognize as reasonable.

Moreover, even assuming arguendo, in the absence of allegation or proof of the aforementioned
factual circumstances, that petitioner had at least a subjective expectation of privacy in his computer
as he claims, such is negated by the presence of policy regulating the use of office computers, as in
Simons.

Office Memorandum No. 10, S. 2002 "Computer Use Policy (CUP)" explicitly provides:

POLICY

1. The Computer Resources are the property of the Civil Service Commission and may be
used only for legitimate business purposes.

2. Users shall be permitted access to Computer Resources to assist them in the

performance of their respective jobs.

3. Use of the Computer Resources is a privilege that may be revoked at any given time.

xxxx

No Expectation of Privacy

4. No expectation of privacy. Users except the Members of the Commission shall not have
an expectation of privacy in anything they create, store, send, or receive on the computer
system.

The Head of the Office for Recruitment, Examination and Placement shall select and assign
Users to handle the confidential examination data and processes.

5. Waiver of privacy rights. Users expressly waive any right to privacy in anything they
create, store, send, or receive on the computer through the Internet or any other computer
network. Users understand that the CSC may use human or automated means to monitor
the use of its Computer Resources.

6. Non-exclusivity of Computer Resources. A computer resource is not a personal property

or for the exclusive use of a User to whom a memorandum of receipt (MR) has been
issued. It can be shared or operated by other users. However, he is accountable therefor and
must insure its care and maintenance.

xxxx

Passwords

12. Responsibility for passwords. Users shall be responsible for safeguarding their
passwords for access to the computer system. Individual passwords shall not be printed,
stored online, or given to others. Users shall be responsible for all transactions made using
their passwords. No User may access the computer system with another User’s password or
account.

13. Passwords do not imply privacy. Use of passwords to gain access to the computer
system or to encode particular files or messages does not imply that Users have an
expectation of privacy in the material they create or receive on the computer system. The
Civil Service Commission has global passwords that permit access to all materials stored on
its networked computer system regardless of whether those materials have been encoded
with a particular User’s password. Only members of the Commission shall authorize the
application of the said global passwords.

x x x x47 (Emphasis supplied.)

The CSC in this case had implemented a policy that put its employees on notice that they have no
expectation of privacy in anything they create, store, send or receive on the office computers, and
that the CSC may monitor the use of the computer resources using both automated or human
means. This implies that on-the-spot inspections may be done to ensure that the computer
resources were used only for such legitimate business purposes.

One of the factors stated in O’Connor which are relevant in determining whether an employee’s
expectation of privacy in the workplace is reasonable is the existence of a workplace privacy
policy.48 In one case, the US Court of Appeals Eighth Circuit held that a state university employee
has not shown that he had a reasonable expectation of privacy in his computer files where the
university’s computer policy, the computer user is informed not to expect privacy if the university has
a legitimate reason to conduct a search. The user is specifically told that computer files, including e-
mail, can be searched when the university is responding to a discovery request in the course of
litigation. Petitioner employee thus cannot claim a violation of Fourth Amendment rights when
university officials conducted a warrantless search of his computer for work-related materials.49

As to the second point of inquiry on the reasonableness of the search conducted on petitioner’s
computer, we answer in the affirmative.

The search of petitioner’s computer files was conducted in connection with investigation of work-
related misconduct prompted by an anonymous letter-complaint addressed to Chairperson David
regarding anomalies in the CSC-ROIV where the head of the Mamamayan Muna Hindi Mamaya Na
division is supposedly "lawyering" for individuals with pending cases in the CSC. Chairperson David
stated in her sworn affidavit:

8. That prior to this, as early as 2006, the undersigned has received several text messages from
unknown sources adverting to certain anomalies in Civil Service Commission Regional Office IV
(CSCRO IV) such as, staff working in another government agency, "selling" cases and aiding parties
with pending cases, all done during office hours and involved the use of government properties;

9. That said text messages were not investigated for lack of any verifiable leads and details sufficient
to warrant an investigation;

10. That the anonymous letter provided the lead and details as it pinpointed the persons and
divisions involved in the alleged irregularities happening in CSCRO IV;

11. That in view of the seriousness of the allegations of irregularities happening in CSCRO IV and its
effect on the integrity of the Commission, I decided to form a team of Central Office staff to back up
the files in the computers of the Public Assistance and Liaison Division (PALD) and Legal Division;

x x x x50

A search by a government employer of an employee’s office is justified at inception when there are
reasonable grounds for suspecting that it will turn up evidence that the employee is guilty of work-
related misconduct.51 Thus, in the 2004 case decided by the US Court of Appeals Eighth Circuit, it
was held that where a government agency’s computer use policy prohibited electronic messages
with pornographic content and in addition expressly provided that employees do not have any
personal privacy rights regarding their use of the agency information systems and technology, the
government employee had no legitimate expectation of privacy as to the use and contents of his
office computer, and therefore evidence found during warrantless search of the computer was
admissible in prosecution for child pornography. In that case, the defendant employee’s computer
hard drive was first remotely examined by a computer information technician after his supervisor
received complaints that he was inaccessible and had copied and distributed non-work-related e-
mail messages throughout the office. When the supervisor confirmed that defendant had used his
computer to access the prohibited websites, in contravention of the express policy of the agency, his
computer tower and floppy disks were taken and examined. A formal administrative investigation
ensued and later search warrants were secured by the police department. The initial remote search
of the hard drive of petitioner’s computer, as well as the subsequent warrantless searches was held
as valid under the O’Connor ruling that a public employer can investigate work-related misconduct
so long as any search is justified at inception and is reasonably related in scope to the
circumstances that justified it in the first place.52

Under the facts obtaining, the search conducted on petitioner’s computer was justified at its
inception and scope. We quote with approval the CSC’s discussion on the reasonableness of its
actions, consistent as it were with the guidelines established by O’Connor:

Even conceding for a moment that there is no such administrative policy, there is no doubt in the
mind of the Commission that the search of Pollo’s computer has successfully passed the test of
reasonableness for warrantless searches in the workplace as enunciated in the above-discussed
American authorities. It bears emphasis that the Commission pursued the search in its capacity
as a government employer and that it was undertaken in connection with an investigation
involving a work-related misconduct, one of the circumstances exempted from the warrant
requirement. At the inception of the search, a complaint was received recounting that a certain
division chief in the CSCRO No. IV was "lawyering" for parties having pending cases with the said
regional office or in the Commission. The nature of the imputation was serious, as it was
grievously disturbing. If, indeed, a CSC employee was found to be furtively engaged in the
practice of "lawyering" for parties with pending cases before the Commission would be a highly
repugnant scenario, then such a case would have shattering repercussions. It would undeniably cast
clouds of doubt upon the institutional integrity of the Commission as a quasi-judicial agency, and in
the process, render it less effective in fulfilling its mandate as an impartial and objective dispenser of
administrative justice. It is settled that a court or an administrative tribunal must not only be actually
impartial but must be seen to be so, otherwise the general public would not have any trust and
confidence in it.

Considering the damaging nature of the accusation, the Commission had to act fast, if only to
arrest or limit any possible adverse consequence or fall-out. Thus, on the same date that the
complaint was received, a search was forthwith conducted involving the computer resources in the
concerned regional office. That it was the computers that were subjected to the search was
justified since these furnished the easiest means for an employee to encode and store
documents. Indeed, the computers would be a likely starting point in ferreting out
incriminating evidence. Concomitantly, the ephemeral nature of computer files, that is, they
could easily be destroyed at a click of a button, necessitated drastic and immediate
action. Pointedly, to impose the need to comply with the probable cause requirement would
invariably defeat the purpose of the wok-related investigation.

Worthy to mention, too, is the fact that the Commission effected the warrantless search in an open
and transparent manner. Officials and some employees of the regional office, who happened to be in
the vicinity, were on hand to observe the process until its completion. In addition, the respondent
himself was duly notified, through text messaging, of the search and the concomitant retrieval of files
from his computer.

All in all, the Commission is convinced that the warrantless search done on computer assigned to
Pollo was not, in any way, vitiated with unconstitutionality. It was a reasonable exercise of the
managerial prerogative of the Commission as an employer aimed at ensuring its operational
effectiveness and efficiency by going after the work-related misfeasance of its employees.
Consequently, the evidence derived from the questioned search are deemed admissible.53

Petitioner’s claim of violation of his constitutional right to privacy must necessarily fail. His other
argument invoking the privacy of communication and correspondence under Section 3(1), Article III
of the 1987 Constitution is also untenable considering the recognition accorded to certain legitimate
intrusions into the privacy of employees in the government workplace under the aforecited
authorities. We likewise find no merit in his contention that O’Connor and Simons are not relevant
because the present case does not involve a criminal offense like child pornography. As already
mentioned, the search of petitioner’s computer was justified there being reasonable ground for
suspecting that the files stored therein would yield incriminating evidence relevant to the
investigation being conducted by CSC as government employer of such misconduct subject of the
anonymous complaint. This situation clearly falls under the exception to the warrantless requirement
in administrative searches defined in O’Connor.

The Court is not unaware of our decision in Anonymous Letter-Complaint against Atty. Miguel
Morales, Clerk of Court, Metropolitan Trial Court of Manila54 involving a branch clerk (Atty. Morales)
who was investigated on the basis of an anonymous letter alleging that he was consuming his
working hours filing and attending to personal cases, using office supplies, equipment and utilities.
The OCA conducted a spot investigation aided by NBI agents. The team was able to access Atty.
Morales’ personal computer and print two documents stored in its hard drive, which turned out to be
two pleadings, one filed in the CA and another in the RTC of Manila, both in the name of another
lawyer. Atty. Morales’ computer was seized and taken in custody of the OCA but was later ordered
released on his motion, but with order to the MISO to first retrieve the files stored therein. The OCA
disagreed with the report of the Investigating Judge that there was no evidence to support the
charge against Atty. Morales as no one from the OCC personnel who were interviewed would give a
categorical and positive statement affirming the charges against Atty. Morales, along with other court
personnel also charged in the same case. The OCA recommended that Atty. Morales should be
found guilty of gross misconduct. The Court En Banc held that while Atty. Morales may have fallen
short of the exacting standards required of every court employee, the Court cannot use the evidence
obtained from his personal computer against him for it violated his constitutional right against
unreasonable searches and seizures. The Court found no evidence to support the claim of OCA that
they were able to obtain the subject pleadings with the consent of Atty. Morales, as in fact the latter
immediately filed an administrative case against the persons who conducted the spot investigation,
questioning the validity of the investigation and specifically invoking his constitutional right against
unreasonable search and seizure. And as there is no other evidence, apart from the pleadings,
retrieved from the unduly confiscated personal computer of Atty. Morales, to hold him
administratively liable, the Court had no choice but to dismiss the charges against him for
insufficiency of evidence.

The above case is to be distinguished from the case at bar because, unlike the former which
involved a personal computer of a court employee, the computer from which the personal files of
herein petitioner were retrieved is a government-issued computer, hence government property the
use of which the CSC has absolute right to regulate and monitor. Such relationship of the petitioner
with the item seized (office computer) and other relevant factors and circumstances under American
Fourth Amendment jurisprudence, notably the existence of CSC MO 10, S. 2007 on Computer Use
Policy, failed to establish that petitioner had a reasonable expectation of privacy in the office
computer assigned to him.

Having determined that the personal files copied from the office computer of petitioner are
admissible in the administrative case against him, we now proceed to the issue of whether the CSC
was correct in finding the petitioner guilty of the charges and dismissing him from the service.

Well-settled is the rule that the findings of fact of quasi-judicial agencies, like the CSC, are accorded
not only respect but even finality if such findings are supported by substantial evidence. Substantial
evidence is such amount of relevant evidence which a reasonable mind might accept as adequate to
support a conclusion, even if other equally reasonable minds might conceivably opine otherwise.55

The CSC based its findings on evidence consisting of a substantial number of drafts of legal
pleadings and documents stored in his office computer, as well as the sworn affidavits and
testimonies of the witnesses it presented during the formal investigation. According to the CSC,
these documents were confirmed to be similar or exactly the same content-wise with those on the
case records of some cases pending either with CSCRO No. IV, CSC-NCR or the Commission
Proper. There were also substantially similar copies of those pleadings filed with the CA and duly
furnished the Commission. Further, the CSC found the explanation given by petitioner, to the effect
that those files retrieved from his computer hard drive actually belonged to his lawyer friends
Estrellado and Solosa whom he allowed the use of his computer for drafting their pleadings in the
cases they handle, as implausible and doubtful under the circumstances. We hold that the CSC’s
factual finding regarding the authorship of the subject pleadings and misuse of the office computer is
well-supported by the evidence on record, thus:

It is also striking to note that some of these documents were in the nature of pleadings responding to
the orders, decisions or resolutions of these offices or directly in opposition to them such as a
petition for certiorari or a motion for reconsideration of CSC Resolution. This indicates that the
author thereof knowingly and willingly participated in the promotion or advancement of the interests
of parties contrary or antagonistic to the Commission. Worse, the appearance in one of the retrieved
documents the phrase, "Eric N. Estr[e]llado, Epal kulang ang bayad mo," lends plausibility to an
inference that the preparation or drafting of the legal pleadings was pursued with less than a
laudable motivation. Whoever was responsible for these documents was simply doing the same for
the money – a "legal mercenary" selling or purveying his expertise to the highest bidder, so to speak.

Inevitably, the fact that these documents were retrieved from the computer of Pollo raises the
presumption that he was the author thereof. This is because he had a control of the said computer.
More significantly, one of the witnesses, Margarita Reyes, categorically testified seeing a written
copy of one of the pleadings found in the case records lying on the table of the respondent. This was
the Petition for Review in the case of Estrellado addressed to the Court of Appeals. The said
circumstances indubitably demonstrate that Pollo was secretly undermining the interest of the
Commission, his very own employer.

To deflect any culpability, Pollo would, however, want the Commission to believe that the documents
were the personal files of some of his friends, including one Attorney Ponciano Solosa, who
incidentally served as his counsel of record during the formal investigation of this case. In fact, Atty.
Solosa himself executed a sworn affidavit to this effect. Unfortunately, this contention of the
respondent was directly rebutted by the prosecution witness, Reyes, who testified that during her
entire stay in the PALD, she never saw Atty. Solosa using the computer assigned to the respondent.
Reyes more particularly stated that she worked in close proximity with Pollo and would have known
if Atty. Solosa, whom she personally knows, was using the computer in question. Further, Atty.
Solosa himself was never presented during the formal investigation to confirm his sworn statement
such that the same constitutes self-serving evidence unworthy of weight and credence. The same is
true with the other supporting affidavits, which Pollo submitted.

At any rate, even admitting for a moment the said contention of the respondent, it evinces the fact
that he was unlawfully authorizing private persons to use the computer assigned to him for official
purpose, not only once but several times gauging by the number of pleadings, for ends not in
conformity with the interests of the Commission. He was, in effect, acting as a principal by
indispensable cooperation…Or at the very least, he should be responsible for serious misconduct for
repeatedly allowing CSC resources, that is, the computer and the electricity, to be utilized for
purposes other than what they were officially intended.

Further, the Commission cannot lend credence to the posturing of the appellant that the line
appearing in one of the documents, "Eric N. Estrellado, Epal kulang ang bayad mo," was a private
joke between the person alluded to therein, Eric N. Estrellado, and his counsel, Atty. Solosa, and not
indicative of anything more sinister. The same is too preposterous to be believed. Why would such a
statement appear in a legal pleading stored in the computer assigned to the respondent, unless he
had something to do with it?56
Petitioner assails the CA in not ruling that the CSC should not have entertained an anonymous
complaint since Section 8 of CSC Resolution No. 99-1936 (URACC) requires a verified complaint:

Rule II – Disciplinary Cases

SEC. 8. Complaint. - A complaint against a civil service official or employee shall not be given due
course unless it is in writing and subscribed and sworn to by the complainant. However, in cases
initiated by the proper disciplining authority, the complaint need not be under oath.

No anonymous complaint shall be entertained unless there is obvious truth or merit to the
allegation therein or supported by documentary or direct evidence, in which case the person
complained of may be required to comment.

xxxx

We need not belabor this point raised by petitioner. The administrative complaint is deemed to have
been initiated by the CSC itself when Chairperson David, after a spot inspection and search of the
files stored in the hard drive of computers in the two divisions adverted to in the anonymous letter --
as part of the disciplining authority’s own fact-finding investigation and information-gathering -- found
a prima facie case against the petitioner who was then directed to file his comment. As this Court
held in Civil Service Commission v. Court of Appeals57 --

Under Sections 46 and 48 (1), Chapter 6, Subtitle A, Book V of E.O. No. 292 and Section 8, Rule II
of Uniform Rules on Administrative Cases in the Civil Service, a complaint may be initiated against a
civil service officer or employee by the appropriate disciplining authority, even without being
subscribed and sworn to. Considering that the CSC, as the disciplining authority for Dumlao, filed the
complaint, jurisdiction over Dumlao was validly acquired. (Emphasis supplied.)

As to petitioner’s challenge on the validity of CSC OM 10, S. 2002 (CUP), the same deserves scant
consideration. The alleged infirmity due to the said memorandum order having been issued solely by
the CSC Chair and not the Commission as a collegial body, upon which the dissent of Commissioner
Buenaflor is partly anchored, was already explained by Chairperson David in her Reply to the
Addendum to Commissioner Buenaflor’s previous memo expressing his dissent to the actions and
disposition of the Commission in this case. According to Chairperson David, said memorandum
order was in fact exhaustively discussed, provision by provision in the January 23, 2002 Commission
Meeting, attended by her and former Commissioners Erestain, Jr. and Valmores. Hence, the
Commission En Banc at the time saw no need to issue a Resolution for the purpose and further
because the CUP being for internal use of the Commission, the practice had been to issue a
memorandum order.58 Moreover, being an administrative rule that is merely internal in nature, or
which regulates only the personnel of the CSC and not the public, the CUP need not be published
prior to its effectivity.59

In fine, no error or grave abuse of discretion was committed by the CA in affirming the CSC’s ruling
that petitioner is guilty of grave misconduct, dishonesty, conduct prejudicial to the best interest of the
service, and violation of R.A. No. 6713. The gravity of these offenses justified the imposition on
petitioner of the ultimate penalty of dismissal with all its accessory penalties, pursuant to existing
rules and regulations.

WHEREFORE, the petition for review on certiorari is DENIED. The Decision dated October 11, 2007
and Resolutiondated February 29, 2008 of the Court of Appeals in CA-G.R. SP No. 98224
are AFFIRMED.

With costs against the petitioner.

SO ORDERED.

MARTIN S. VILLARAMA, JR.

Associate Justice

WE CONCUR:

RENATO C. CORONA
Chief Justice

See Separate Concurring Opinion I join opinion of J. Bersamin

ANTONIO T. CARPIO PRESBITERO J. VELASCO, JR.
Associate Justice Associate Justice
 I join the concurring and dissenting
opinion of Justice Bersamin ARTURO D. BRION
TERESITA J. LEONARDO-DE CASTRO Associate Justice
Associate Justice

DIOSDADO M. PERALTA LUCAS P. BERSAMIN

Associate Justice Associate Justice

I join Justice L. Bersamin's concurring

(No Part)
and dissenting opinion
MARIANO C. DEL CASTILLO*
ROBERTO A. ABAD
Associate Justice
Associate Justice

JOSE PORTUGAL PEREZ JOSE CATRAL MENDOZA

Associate Justice Associate Justice

I concur but share J. Carpio's concerns

BIENVENIDO L. REYES
MARIA LOURDES P. A. SERENO
Associate Justice
Associate Justice

ESTELA M. PERLAS-BERNABE
Associate Justice

CERTIFICATION

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

RENATO C. CORONA
Chief Justice
 EN BANC

G.R. No. 169838 April 25, 2006

BAYAN, KARAPATAN, KILUSANG MAGBUBUKID NG PILIPINAS (KMP), GABRIELA, Fr. Jose

Dizon, Renato Constantino, Jr., Froyel Yaneza, and Fahima Tajar, Petitioners,
vs.
EDUARDO ERMITA, in his capacity as Executive Secretary, Manila City Mayor LITO ATIENZA,
Chief of the Philippine National Police, Gen. ARTURO M. LOMIBAO, NCRPO Chief Maj. Gen.
VIDAL QUEROL, and Western Police District Chief Gen. PEDRO BULAONG, Respondents.

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

G.R. No. 169848 April 25, 2006

Jess Del Prado, Wilson Fortaleza, Leody de Guzman, Pedro Pinlac, Carmelita Morante, Rasti
Delizo, Paul Bangay, Marie Jo Ocampo, Lilia dela Cruz, Cristeta Ramos, Adelaida Ramos,
Mary Grace Gonzales, Michael Torres, Rendo Sabusap, Precious Balute, Roxanne Magboo,
Ernie Bautista, Joseph de Jesus, Margarita Escober, Djoannalyn Janier, Magdalena Sellote,
Manny Quiazon, Ericson Dizon, Nenita Cruzat, Leonardo De los Reyes, Pedrito
Fadrigon, Petitioners,
vs.
EDUARDO ERMITA, in his official capacity as The Executive Secretary and in his personal
capacity, ANGELO REYES, in his official capacity as Secretary of the Interior and Local
Governments, ARTURO LOMIBAO, in his official capacity as the Chief, Philippine National
Police, VIDAL QUEROL, in his official capacity as the Chief, National Capital Regional Police
Office (NCRPO), PEDRO BULAONG, in his official capacity as the Chief, Manila Police District
(MPD) AND ALL OTHER PUBLIC OFFICERS GARCIA, and AND PRIVATE INDIVIDUALS
ACTING UNDER THEIR CONTROL, SUPERVISION AND INSTRUCTIONS, Respondents.

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

G.R. No. 169881 April 25, 2006

KILUSANG MAYO UNO, represented by its Chairperson ELMER C. LABOG and Secretary
General JOEL MAGLUNSOD, NATIONAL FEDERATION OF LABOR UNIONS-KILUSANG MAYO
UNO (NAFLU-KMU), represented by its National President, JOSELITO V. USTAREZ, ANTONIO
C. PASCUAL, SALVADOR T. CARRANZA, GILDA SUMILANG, FRANCISCO LASTRELLA, and
ROQUE M. TAN, Petitioners,
vs.
THE HONORABLE EXECUTIVE SECRETARY, PNP DIRECTOR GENRAL ARTURO LOMIBAO,
HONORABLE MAYOR LITO ATIENZA, and PNP MPD CHIEF SUPT. PEDRO
BULAONG, Respondents.

DECISION

AZCUNA, J.:

Petitioners come in three groups.

The first petitioners, Bayan, et al., in G.R. No. 169838,1 allege that they are citizens and taxpayers
of the Philippines and that their rights as organizations and individuals were violated when the rally
they participated in on October 6, 2005 was violently dispersed by policemen implementing Batas
Pambansa (B.P.) No. 880.

The second group consists of 26 individual petitioners, Jess del Prado, et al., in G.R. No.
169848,2 who allege that they were injured, arrested and detained when a peaceful mass action they
held on September 26, 2005 was preempted and violently dispersed by the police. They further
assert that on October 5, 2005, a group they participated in marched to Malacañang to protest
issuances of the Palace which, they claim, put the country under an "undeclared" martial rule, and
the protest was likewise dispersed violently and many among them were arrested and suffered
injuries.

The third group, Kilusang Mayo Uno (KMU), et al., petitioners in G.R. No. 169881,3 allege that they
conduct peaceful mass actions and that their rights as organizations and those of their individual
members as citizens, specifically the right to peaceful assembly, are affected by Batas Pambansa
No. 880 and the policy of "Calibrated Preemptive Response" (CPR) being followed to implement it.

KMU, et al., claim that on October 4, 2005, a rally KMU co-sponsored was to be conducted at the
Mendiola bridge but police blocked them along C.M. Recto and Lepanto Streets and forcibly
dispersed them, causing injuries to several of their members. They further allege that on October 6,
2005, a multi-sectoral rally which KMU also co-sponsored was scheduled to proceed along España
Avenue in front of the University of Santo Tomas and going towards Mendiola bridge. Police officers
blocked them along Morayta Street and prevented them from proceeding further. They were then
forcibly dispersed, causing injuries on one of them.4 Three other rallyists were arrested.

All petitioners assail Batas Pambansa No. 880, some of them in toto and others only Sections 4, 5,
6, 12, 13(a), and 14(a), as well as the policy of CPR. They seek to stop violent dispersals of rallies
under the "no permit, no rally" policy and the CPR policy recently announced.

B.P. No. 880, "The Public Assembly Act of 1985," provides:

Batas Pambansa Blg. 880

An Act Ensuring The Free Exercise By The People Of Their Right Peaceably To Assemble And
Petition The Government [And] For Other Purposes

Be it enacted by the Batasang Pambansa in session assembled:

Section 1. Title. – This Act shall be known as "The Public Assembly Act of 1985."

Sec. 2. Declaration of policy. – The constitutional right of the people peaceably to assemble and
petition the government for redress of grievances is essential and vital to the strength and stability of
the State. To this end, the State shall ensure the free exercise of such right without prejudice to the
rights of others to life, liberty and equal protection of the law.

Sec. 3. Definition of terms. – For purposes of this Act:

(a) "Public assembly" means any rally, demonstration, march, parade, procession or any
other form of mass or concerted action held in a public place for the purpose of presenting a
lawful cause; or expressing an opinion to the general public on any particular issue; or
protesting or influencing any state of affairs whether political, economic or social; or
petitioning the government for redress of grievances.

The processions, rallies, parades, demonstrations, public meetings and assemblages for
religious purposes shall be governed by local ordinances; Provided, however, That the
declaration of policy as provided in Section 2 of this Act shall be faithfully observed.

The definition herein contained shall not include picketing and other concerted action in
strike areas by workers and employees resulting from a labor dispute as defined by the
Labor Code, its implementing rules and regulations, and by the Batas Pambansa Bilang 227.

(b) "Public place" shall include any highway, boulevard, avenue, road, street, bridge or other
thoroughfare, park, plaza, square, and/or any open space of public ownership where the
people are allowed access.

(c) "Maximum tolerance" means the highest degree of restraint that the military, police and
other peace keeping authorities shall observe during a public assembly or in the dispersal of
the same.

(d) "Modification of a permit" shall include the change of the place and time of the public
assembly, rerouting of the parade or street march, the volume of loud-speakers or sound
system and similar changes.

Sec. 4. Permit when required and when not required. – A written permit shall be required for any
person or persons to organize and hold a public assembly in a public place. However, no permit
shall be required if the public assembly shall be done or made in a freedom park duly established by
law or ordinance or in private property, in which case only the consent of the owner or the one
entitled to its legal possession is required, or in the campus of a government-owned and operated
educational institution which shall be subject to the rules and regulations of said educational
institution. Political meetings or rallies held during any election campaign period as provided for by
law are not covered by this Act.

Sec. 5. Application requirements. – All applications for a permit shall comply with the following
guidelines:

(a) The applications shall be in writing and shall include the names of the leaders or
organizers; the purpose of such public assembly; the date, time and duration thereof, and
place or streets to be used for the intended activity; and the probable number of persons
participating, the transport and the public address systems to be used.

(b) The application shall incorporate the duty and responsibility of the applicant under
Section 8 hereof.

(c) The application shall be filed with the office of the mayor of the city or municipality in
whose jurisdiction the intended activity is to be held, at least five (5) working days before the
scheduled public assembly.

(d) Upon receipt of the application, which must be duly acknowledged in writing, the office of
the city or municipal mayor shall cause the same to immediately be posted at a conspicuous
place in the city or municipal building.

Sec. 6. Action to be taken on the application. –

(a) It shall be the duty of the mayor or any official acting in his behalf to issue or grant a
permit unless there is clear and convincing evidence that the public assembly will create a
clear and present danger to public order, public safety, public convenience, public morals or
public health.

(b) The mayor or any official acting in his behalf shall act on the application within two (2)
working days from the date the application was filed, failing which, the permit shall be
deemed granted. Should for any reason the mayor or any official acting in his behalf refuse
to accept the application for a permit, said application shall be posted by the applicant on the
premises of the office of the mayor and shall be deemed to have been filed.

(c) If the mayor is of the view that there is imminent and grave danger of a substantive evil
warranting the denial or modification of the permit, he shall immediately inform the applicant
who must be heard on the matter.

(d) The action on the permit shall be in writing and served on the applica[nt] within twenty-
four hours.

(e) If the mayor or any official acting in his behalf denies the application or modifies the terms
thereof in his permit, the applicant may contest the decision in an appropriate court of law.

(f) In case suit is brought before the Metropolitan Trial Court, the Municipal Trial Court, the
Municipal Circuit Trial Court, the Regional Trial Court, or the Intermediate Appellate court, its
decisions may be appealed to the appropriate court within forty-eight (48) hours after receipt
of the same. No appeal bond and record on appeal shall be required. A decision granting
such permit or modifying it in terms satisfactory to the applicant shall be immediately
executory.

(g) All cases filed in court under this section shall be decided within twenty-four (24) hours
from date of filing. Cases filed hereunder shall be immediately endorsed to the executive
judge for disposition or, in his absence, to the next in rank.

(h) In all cases, any decision may be appealed to the Supreme Court.

(i) Telegraphic appeals to be followed by formal appeals are hereby allowed.

Sec. 7. Use of Public throroughfare. – Should the proposed public assembly involve the use, for an
appreciable length of time, of any public highway, boulevard, avenue, road or street, the mayor or
any official acting in his behalf may, to prevent grave public inconvenience, designate the route
thereof which is convenient to the participants or reroute the vehicular traffic to another direction so
that there will be no serious or undue interference with the free flow of commerce and trade.
Sec. 8. Responsibility of applicant. – It shall be the duty and responsibility of the leaders and
organizers of a public assembly to take all reasonable measures and steps to the end that the
intended public assembly shall be conducted peacefully in accordance with the terms of the permit.
These shall include but not be limited to the following:

(a) To inform the participants of their responsibility under the permit; |avv phi| .net

(b) To police the ranks of the demonstrators in order to prevent non-demonstrators from
disrupting the lawful activities of the public assembly;

(c) To confer with local government officials concerned and law enforcers to the end that the
public assembly may be held peacefully;

(d) To see to it that the public assembly undertaken shall not go beyond the time stated in
the permit; and

(e) To take positive steps that demonstrators do not molest any person or do any act unduly
interfering with the rights of other persons not participating in the public assembly.

Sec. 9. Non-interference by law enforcement authorities. – Law enforcement agencies shall not
interfere with the holding of a public assembly. However, to adequately ensure public safety, a law
enforcement contingent under the command of a responsible police officer may be detailed and
stationed in a place at least one hundred (100) meters away from the area of activity ready to
maintain peace and order at all times.

Sec. 10. Police assistance when requested. – It shall be imperative for law enforcement agencies,
when their assistance is requested by the leaders or organizers, to perform their duties always
mindful that their responsibility to provide proper protection to those exercising their right peaceably
to assemble and the freedom of expression is primordial. Towards this end, law enforcement
agencies shall observe the following guidelines:

(a) Members of the law enforcement contingent who deal with the demonstrators shall be in
complete uniform with their nameplates and units to which they belong displayed prominently
on the front and dorsal parts of their uniform and must observe the policy of "maximum
tolerance" as herein defined;

(b) The members of the law enforcement contingent shall not carry any kind of firearms but
may be equipped with baton or riot sticks, shields, crash helmets with visor, gas masks,
boots or ankle high shoes with shin guards;

(c) Tear gas, smoke grenades, water cannons, or any similar anti-riot device shall not be
used unless the public assembly is attended by actual violence or serious threats of violence,
or deliberate destruction of property.

Sec. 11. Dispersal of public assembly with permit. – No public assembly with a permit shall be
dispersed. However, when an assembly becomes violent, the police may disperse such public
assembly as follows:

(a) At the first sign of impending violence, the ranking officer of the law enforcement
contingent shall call the attention of the leaders of the public assembly and ask the latter to
prevent any possible disturbance;

(b) If actual violence starts to a point where rocks or other harmful objects from the
participants are thrown at the police or at the non-participants, or at any property causing
damage to such property, the ranking officer of the law enforcement contingent shall audibly
warn the participants that if the disturbance persists, the public assembly will be dispersed;

(c) If the violence or disturbance prevailing as stated in the preceding subparagraph should
not stop or abate, the ranking officer of the law enforcement contingent shall audibly issue a
warning to the participants of the public assembly, and after allowing a reasonable period of
time to lapse, shall immediately order it to forthwith disperse;

(d) No arrest of any leader, organizer or participant shall also be made during the public
assembly unless he violates during the assembly a law, statute, ordinance or any provision
of this Act. Such arrest shall be governed by Article 125 of the Revised Penal Code, as
amended;

(e) Isolated acts or incidents of disorder or breach of the peace during the public assembly
shall not constitute a ground for dispersal.
Sec. 12. Dispersal of public assembly without permit. – When the public assembly is held without a
permit where a permit is required, the said public assembly may be peacefully dispersed.

Sec. 13. Prohibited acts. – The following shall constitute violations of the Act:

(a) The holding of any public assembly as defined in this Act by any leader or organizer
without having first secured that written permit where a permit is required from the office
concerned, or the use of such permit for such purposes in any place other than those set out
in said permit: Provided, however, That no person can be punished or held criminally liable
for participating in or attending an otherwise peaceful assembly;

(b) Arbitrary and unjustified denial or modification of a permit in violation of the provisions of
this Act by the mayor or any other official acting in his behalf;

(c) The unjustified and arbitrary refusal to accept or acknowledge receipt of the application
for a permit by the mayor or any official acting in his behalf;

(d) Obstructing, impeding, disrupting or otherwise denying the exercise of the right to
peaceful assembly;

(e) The unnecessary firing of firearms by a member of any law enforcement agency or any
person to disperse the public assembly;

(f) Acts in violation of Section 10 hereof;

(g) Acts described hereunder if committed within one hundred (100) meters from the area of
activity of the public assembly or on the occasion thereof:

1. the carrying of a deadly or offensive weapon or device such as firearm, pillbox,

bomb, and the like;

2. the carrying of a bladed weapon and the like;

3. the malicious burning of any object in the streets or thoroughfares;

4. the carrying of firearms by members of the law enforcement unit;

5. the interfering with or intentionally disturbing the holding of a public assembly by

the use of a motor vehicle, its horns and loud sound systems.

Sec. 14. Penalties. – Any person found guilty and convicted of any of the prohibited acts defined in
the immediately preceding section shall be punished as follows:

(a) violation of subparagraph (a) shall be punished by imprisonment of one month and one
day to six months;

(b) violations of subparagraphs (b), (c), (d), (e), (f), and item 4, subparagraph (g) shall be
punished by imprisonment of six months and one day to six years;

(c) violation of item 1, subparagraph (g) shall be punished by imprisonment of six months
and one day to six years without prejudice to prosecution under Presidential Decree No.
1866;

(d) violations of item 2, item 3, or item 5 of subparagraph (g) shall be punished by

imprisonment of one day to thirty days.

Sec. 15. Freedom parks. – Every city and municipality in the country shall within six months after the
effectivity of this Act establish or designate at least one suitable "freedom park" or mall in their
respective jurisdictions which, as far as practicable, shall be centrally located within the poblacion
where demonstrations and meetings may be held at any time without the need of any prior permit.

In the cities and municipalities of Metropolitan Manila, the respective mayors shall establish the
freedom parks within the period of six months from the effectivity this Act.

Sec. 16. Constitutionality. – Should any provision of this Act be declared invalid or unconstitutional,
the validity or constitutionality of the other provisions shall not be affected thereby.
Sec. 17. Repealing clause. – All laws, decrees, letters of instructions, resolutions, orders, ordinances
or parts thereof which are inconsistent with the provisions of this Act are hereby repealed, amended,
or modified accordingly.

Sec. 18. Effectivity. – This Act shall take effect upon its approval.

Approved, October 22, 1985.

CPR, on the other hand, is a policy set forth in a press release by Malacañang dated September 21,
2005, shown in Annex "A" to the Petition in G.R. No. 169848, thus:

Malacañang Official

Manila, Philippines NEWS

Release No. 2 September 21, 2005

STATEMENT OF EXECUTIVE SECRETARY EDUARDO ERMITA

On Unlawful Mass Actions

In view of intelligence reports pointing to credible plans of anti-government groups to inflame the
political situation, sow disorder and incite people against the duly constituted authorities, we have
instructed the PNP as well as the local government units to strictly enforce a "no permit, no rally"
policy, disperse groups that run afoul of this standard and arrest all persons violating the laws of the
land as well as ordinances on the proper conduct of mass actions and demonstrations.

The rule of calibrated preemptive response is now in force, in lieu of maximum tolerance. The
authorities will not stand aside while those with ill intent are herding a witting or unwitting mass of
people and inciting them into actions that are inimical to public order, and the peace of mind of the
national community.

Unlawful mass actions will be dispersed. The majority of law-abiding citizens have the right to be
protected by a vigilant and proactive government.

We appeal to the detractors of the government to engage in lawful and peaceful conduct befitting of
a democratic society.

The President’s call for unity and reconciliation stands, based on the rule of law.

Petitioners Bayan, et al., contend that Batas Pambansa No. 880 is clearly a violation of the
Constitution and the International Covenant on Civil and Political Rights and other human rights
treaties of which the Philippines is a signatory.5

They argue that B.P. No. 880 requires a permit before one can stage a public assembly regardless
of the presence or absence of a clear and present danger. It also curtails the choice of venue and is
thus repugnant to the freedom of expression clause as the time and place of a public assembly form
part of the message for which the expression is sought. Furthermore, it is not content-neutral as it
does not apply to mass actions in support of the government. The words "lawful cause," "opinion,"
"protesting or influencing" suggest the exposition of some cause not espoused by the government.
Also, the phrase "maximum tolerance" shows that the law applies to assemblies against the
government because they are being tolerated. As a content-based legislation, it cannot pass the
strict scrutiny test.

Petitioners Jess del Prado, et al., in turn, argue that B.P. No. 880 is unconstitutional as it is a
curtailment of the right to peacefully assemble and petition for redress of grievances because it puts
a condition for the valid exercise of that right. It also characterizes public assemblies without a permit
as illegal and penalizes them and allows their dispersal. Thus, its provisions are not mere
regulations but are actually prohibitions.

Furthermore, the law delegates powers to the Mayor without providing clear standards. The two
standards stated in the laws (clear and present danger and imminent and grave danger) are
inconsistent.

Regarding the CPR policy, it is void for being an ultra vires act that alters the standard of maximum
tolerance set forth in B.P. No. 880, aside from being void for being vague and for lack of publication.
Finally, petitioners KMU, et al., argue that the Constitution sets no limits on the right to assembly
and therefore B.P. No. 880 cannot put the prior requirement of securing a permit. And even
assuming that the legislature can set limits to this right, the limits provided are unreasonable: First,
allowing the Mayor to deny the permit on clear and convincing evidence of a clear and present
danger is too comprehensive. Second, the five-day requirement to apply for a permit is too long as
certain events require instant public assembly, otherwise interest on the issue would possibly wane.

As to the CPR policy, they argue that it is preemptive, that the government takes action even before
the rallyists can perform their act, and that no law, ordinance or executive order supports the policy.
Furthermore, it contravenes the maximum tolerance policy of B.P. No. 880 and violates the
Constitution as it causes a chilling effect on the exercise by the people of the right to peaceably
assemble.

Respondents in G.R. No. 169838 are Eduardo Ermita, as Executive Secretary, Manila
City Mayor Lito Atienza, Chief, of the Philippine National Police (PNP) Gen. Arturo Lomibao,
National Capital Region Police Office (NCRPO) Chief, PNP Maj. Gen. Vidal Querol, and Manila
Police District (MPD) Chief Gen. Pedro Bulaong.

Respondents in G.R. No. 169848 are Eduardo Ermita as Executive Secretary and in his personal
capacity; Angelo Reyes, as Secretary of the Interior and Local Governments; Arturo Lomibao, as
Chief Vidal Querol, as Chief, NCRPO; Pedro Bulaong, as Chief, MPD, and all other public officers
and private individuals acting under their control, supervision and instruction.

Respondents in G.R. No. 169881 are the Honorable Executive Secretary, PNP Director General
Arturo Lomibao, the Honorable Mayor Joselito Atienza, and PNP MPD Chief Pedro Bulaong.

Respondents argue that:

1. Petitioners have no standing because they have not presented evidence that they had
been "injured, arrested or detained because of the CPR," and that "those arrested stand to
be charged with violating Batas Pambansa [No.] 880 and other offenses."

2. Neither B.P. No. 880 nor CPR is void on its face. Petitioners cannot honestly claim that the
time, place and manner regulation embodied in B.P. No. 880 violates the three-pronged test
for such a measure, to wit: (a) B.P. No. 880 is content-neutral, i.e., it has no reference to
content of regulated speech; (b) B.P. No. 880 is narrowly tailored to serve a significant
governmental interest, i.e., the interest cannot be equally well served by a means that is less
intrusive of free speech interests; and (c) B.P. No. 880 leaves open alternative channels for
communication of the information.6

3. B.P. No. 880 is content-neutral as seen from the text of the law. Section 5 requires the
statement of the public assembly’s time, place and manner of conduct. It entails traffic re-
routing to prevent grave public inconvenience and serious or undue interference in the free
flow of commerce and trade. Furthermore, nothing in B.P. No. 880 authorizes the denial of a
permit on the basis of a rally’s program content or the statements of the speakers therein,
except under the constitutional precept of the "clear and present danger test." The status of
B.P. No. 880 as a content-neutral regulation has been recognized in Osmeña v. Comelec.7

4. Adiong v. Comelec8 held that B.P. No. 880 is a content-neutral regulation of the time,
place and manner of holding public assemblies and the law passes the test for such
regulation, namely, these regulations need only a substantial governmental interest to
support them.

5. Sangalang v. Intermediate Appellate Court9 held that a local chief executive has the
authority to exercise police power to meet "the demands of the common good in terms of
traffic decongestion and public convenience." Furthermore, the discretion given to the mayor
is narrowly circumscribed by Sections 5 (d), and 6 (a), (b), (c), (d), (e), 13 and 15 of the law.

6. The standards set forth in the law are not inconsistent. "Clear and convincing evidence
that the public assembly will create a clear and present danger to public order, public safety,
public convenience, public morals or public health" and "imminent and grave danger of a
substantive evil" both express the meaning of the "clear and present danger test."10

7. CPR is simply the responsible and judicious use of means allowed by existing laws and
ordinances to protect public interest and restore public order. Thus, it is not accurate to call it
a new rule but rather it is a more pro-active and dynamic enforcement of existing laws,
regulations and ordinances to prevent chaos in the streets. It does not replace the rule of
maximum tolerance in B.P. No. 880.
Respondent Mayor Joselito Atienza, for his part, submitted in his Comment that the petition in G.R.
No. 169838 should be dismissed on the ground that Republic Act No. 7160 gives the Mayor power
to deny a permit independently of B.P. No. 880; that his denials of permits were under the "clear and
present danger" rule as there was a clamor to stop rallies that disrupt the economy and to protect the
lives of other people; that J. B. L. Reyes v. Bagatsing,11 Primicias v. Fugoso,12 and Jacinto v.
CA,13 have affirmed the constitutionality of requiring a permit; that the permit is for the use of a public
place and not for the exercise of rights; and that B.P. No. 880 is not a content-based regulation
because it covers all rallies.

The petitions were ordered consolidated on February 14, 2006. After the submission of all the
Comments, the Court set the cases for oral arguments on April 4, 2006,14 stating the principal issues,
as follows:

1. On the constitutionality of Batas Pambansa No. 880, specifically Sections 4, 5, 6, 12 13(a)

and 14(a) thereof, and Republic Act No. 7160:

(a) Are these content-neutral or content-based regulations?

(b) Are they void on grounds of overbreadth or vagueness?

(c) Do they constitute prior restraint?

(d) Are they undue delegations of powers to Mayors?

(e) Do they violate international human rights treaties and the Universal Declaration
of Human Rights?

2. On the constitutionality and legality of the policy of Calibrated Preemptive Response

(CPR):

(a) Is the policy void on its face or due to vagueness?

(b) Is it void for lack of publication?

(c) Is the policy of CPR void as applied to the rallies of September 26 and October 4,
5 and 6, 2005?

During the course of the oral arguments, the following developments took place and were approved
and/or noted by the Court:

1. Petitioners, in the interest of a speedy resolution of the petitions, withdrew the portions of
their petitions raising factual issues, particularly those raising the issue of whether B.P. No.
880 and/or CPR is void as applied to the rallies of September 20, October 4, 5 and 6, 2005.

2. The Solicitor General agreed with the observation of the Chief Justice that CPR should no
longer be used as a legal term inasmuch as, according to respondents, it was merely a
"catchword" intended to clarify what was thought to be a misunderstanding of the maximum
tolerance policy set forth in B.P. No. 880 and that, as stated in the affidavit executed by
Executive Secretary Eduardo Ermita and submitted to the Ombudsman, it does not replace
B.P. No. 880 and the maximum tolerance policy embodied in that law.

The Court will now proceed to address the principal issues, taking into account the foregoing
developments.

Petitioners’ standing cannot be seriously challenged. Their right as citizens to engage in peaceful
assembly and exercise the right of petition, as guaranteed by the Constitution, is directly affected by
B.P. No. 880 which requires a permit for all who would publicly assemble in the nation’s streets and
parks. They have, in fact, purposely engaged in public assemblies without the required permits to
press their claim that no such permit can be validly required without violating the Constitutional
guarantee. Respondents, on the other hand, have challenged such action as contrary to law and
dispersed the public assemblies held without the permit.

Section 4 of Article III of the Constitution provides:

Sec. 4. No law shall be passed abridging the freedom of speech, of expression, or of the press, or
the right of the people peaceably to assemble and petition the government for redress of grievances.
The first point to mark is that the right to peaceably assemble and petition for redress of grievances
is, together with freedom of speech, of expression, and of the press, a right that enjoys primacy in
the realm of constitutional protection. For these rights constitute the very basis of a functional
democratic polity, without which all the other rights would be meaningless and unprotected. As
stated in Jacinto v. CA,15 the Court, as early as the onset of this century, in U.S. v.
Apurado,16 already upheld the right to assembly and petition, as follows:

There is no question as to the petitioners’ rights to peaceful assembly to petition the government for
a redress of grievances and, for that matter, to organize or form associations for purposes not
contrary to law, as well as to engage in peaceful concerted activities. These rights are guaranteed by
no less than the Constitution, particularly Sections 4 and 8 of the Bill of Rights, Section 2(5) of Article
IX, and Section 3 of Article XIII. Jurisprudence abounds with hallowed pronouncements defending
and promoting the people’s exercise of these rights. As early as the onset of this century, this Court
in U.S. vs. Apurado, already upheld the right to assembly and petition and even went as far as to
acknowledge:

"It is rather to be expected that more or less disorder will mark the public assembly of the people to
protest against grievances whether real or imaginary, because on such occasions feeling is always
wrought to a high pitch of excitement, and the greater, the grievance and the more intense the
feeling, the less perfect, as a rule will be the disciplinary control of the leaders over their
irresponsible followers. But if the prosecution be permitted to seize upon every instance of such
disorderly conduct by individual members of a crowd as an excuse to characterize the assembly as
a seditious and tumultuous rising against the authorities, then the right to assemble and to petition
for redress of grievances would become a delusion and a snare and the attempt to exercise it on the
most righteous occasion and in the most peaceable manner would expose all those who took part
therein to the severest and most unmerited punishment, if the purposes which they sought to attain
did not happen to be pleasing to the prosecuting authorities. If instances of disorderly conduct occur
on such occasions, the guilty individuals should be sought out and punished therefor, but the utmost
discretion must be exercised in drawing the line between disorderly and seditious conduct and
between an essentially peaceable assembly and a tumultuous uprising."

Again, in Primicias v. Fugoso,17 the Court likewise sustained the primacy of freedom of speech and
to assembly and petition over comfort and convenience in the use of streets and parks.

Next, however, it must be remembered that the right, while sacrosanct, is not absolute. In Primicias,
this Court said:

The right to freedom of speech, and to peacefully assemble and petition the government for redress
of grievances, are fundamental personal rights of the people recognized and guaranteed by the
constitutions of democratic countries. But it is a settled principle growing out of the nature of well-
ordered civil societies that the exercise of those rights is not absolute for it may be so regulated that
it shall not be injurious to the equal enjoyment of others having equal rights, nor injurious to the
rights of the community or society. The power to regulate the exercise of such and other
constitutional rights is termed the sovereign "police power," which is the power to prescribe
regulations, to promote the health, morals, peace, education, good order or safety, and general
welfare of the people. This sovereign police power is exercised by the government through its
legislative branch by the enactment of laws regulating those and other constitutional and civil rights,
and it may be delegated to political subdivisions, such as towns, municipalities and cities by
authorizing their legislative bodies called municipal and city councils to enact ordinances for the
purpose.18

Reyes v. Bagatsing19 further expounded on the right and its limits, as follows:

1. It is thus clear that the Court is called upon to protect the exercise of the cognate rights to
free speech and peaceful assembly, arising from the denial of a permit. The Constitution is
quite explicit: "No law shall be passed abridging the freedom of speech, or of the press, or
the right of the people peaceably to assemble and petition the Government for redress of
grievances." Free speech, like free press, may be identified with the liberty to discuss
publicly and truthfully any matter of public concern without censorship or punishment. There
is to be then no previous restraint on the communication of views or subsequent liability
whether in libel suits, prosecution for sedition, or action for damages, or contempt
proceedings unless there be a "clear and present danger of a substantive evil that [the State]
has a right to prevent." Freedom of assembly connotes the right of the people to meet
peaceably for consultation and discussion of matters of public concern. It is entitled to be
accorded the utmost deference and respect. It is not to be limited, much less denied, except
on a showing, as is the case with freedom of expression, of a clear and present danger of a
substantive evil that the state has a right to prevent. Even prior to the 1935 Constitution,
Justice Malcolm had occasion to stress that it is a necessary consequence of our republican
institutions and complements the right of free speech. To paraphrase the opinion of Justice
Rutledge, speaking for the majority of the American Supreme Court in Thomas v. Collins, it
was not by accident or coincidence that the rights to freedom of speech and of the press
were coupled in a single guarantee with the rights of the people peaceably to assemble and
to petition the government for redress of grievances. All these rights, while not identical, are
inseparable. In every case, therefore, where there is a limitation placed on the exercise of
this right, the judiciary is called upon to examine the effects of the challenged governmental
actuation. The sole justification for a limitation on the exercise of this right, so fundamental to
the maintenance of democratic institutions, is the danger, of a character both grave and
imminent, of a serious evil to public safety, public morals, public health, or any other
legitimate public interest.

2. Nowhere is the rationale that underlies the freedom of expression and peaceable
assembly better expressed than in this excerpt from an opinion of Justice Frankfurter: "It
must never be forgotten, however, that the Bill of Rights was the child of the Enlightenment.
Back of the guaranty of free speech lay faith in the power of an appeal to reason by all the
peaceful means for gaining access to the mind. It was in order to avert force and explosions
due to restrictions upon rational modes of communication that the guaranty of free speech
was given a generous scope. But utterance in a context of violence can lose its significance
as an appeal to reason and become part of an instrument of force. Such utterance was not
meant to be sheltered by the Constitution." What was rightfully stressed is the abandonment
of reason, the utterance, whether verbal or printed, being in a context of violence. It must
always be remembered that this right likewise provides for a safety valve, allowing parties
the opportunity to give vent to their views, even if contrary to the prevailing climate of
opinion. For if the peaceful means of communication cannot be availed of, resort to non-
peaceful means may be the only alternative. Nor is this the sole reason for the expression of
dissent. It means more than just the right to be heard of the person who feels aggrieved or
who is dissatisfied with things as they are. Its value may lie in the fact that there may be
something worth hearing from the dissenter. That is to ensure a true ferment of ideas. There
are, of course, well-defined limits. What is guaranteed is peaceable assembly. One may not
advocate disorder in the name of protest, much less preach rebellion under the cloak of
dissent. The Constitution frowns on disorder or tumult attending a rally or assembly. Resort
to force is ruled out and outbreaks of violence to be avoided. The utmost calm though is not
required. As pointed out in an early Philippine case, penned in 1907 to be precise, United
States v. Apurado: "It is rather to be expected that more or less disorder will mark the public
assembly of the people to protest against grievances whether real or imaginary, because on
such occasions feeling is always wrought to a high pitch of excitement, and the greater the
grievance and the more intense the feeling, the less perfect, as a rule, will be the disciplinary
control of the leaders over their irresponsible followers." It bears repeating that for the
constitutional right to be invoked, riotous conduct, injury to property, and acts of vandalism
must be avoided. To give free rein to one’s destructive urges is to call for condemnation. It is
to make a mockery of the high estate occupied by intellectual liberty in our scheme of values.

There can be no legal objection, absent the existence of a clear and present danger of a
substantive evil, on the choice of Luneta as the place where the peace rally would start. The
Philippines is committed to the view expressed in the plurality opinion, of 1939 vintage, of
Justice Roberts in Hague v. CIO: "Whenever the title of streets and parks may rest, they
have immemorially been held in trust for the use of the public and, time out of mind, have
been used for purposes of assembly, communicating thoughts between citizens, and
discussing public questions. Such use of the streets and public places has, from ancient
times, been a part of the privileges, immunities, rights and liberties of citizens. The privilege
of a citizen of the United States to use the streets and parks for communication of views on
national questions may be regulated in the interest of all; it is not absolute, but relative, and
must be exercised in subordination to the general comfort and convenience, and in
consonance with peace and good order; but must not, in the guise of regulation, be abridged
or denied." The above excerpt was quoted with approval in Primicias v. Fugoso. Primicias
made explicit what was implicit in Municipality of Cavite v. Rojas, a 1915 decision, where this
Court categorically affirmed that plazas or parks and streets are outside the commerce of
man and thus nullified a contract that leased Plaza Soledad of plaintiff-municipality.
Reference was made to such plaza "being a promenade for public use," which certainly is
not the only purpose that it could serve. To repeat, there can be no valid reason why a permit
should not be granted for the proposed march and rally starting from a public park that is the
Luneta.

4. Neither can there be any valid objection to the use of the streets to the gates of the US
embassy, hardly two blocks away at the Roxas Boulevard. Primicias v. Fugoso has resolved
any lurking doubt on the matter. In holding that the then Mayor Fugoso of the City of Manila
should grant a permit for a public meeting at Plaza Miranda in Quiapo, this Court
categorically declared: "Our conclusion finds support in the decision in the case of Willis Cox
v. State of New Hampshire, 312 U.S., 569. In that case, the statute of New Hampshire P.L.
chap. 145, section 2, providing that no parade or procession upon any ground abutting
thereon, shall be permitted unless a special license therefor shall first be obtained from the
selectmen of the town or from licensing committee,’ was construed by the Supreme Court of
 New Hampshire as not conferring upon the licensing board unfettered discretion to refuse to
grant the license, and held valid. And the Supreme Court of the United States, in its decision
(1941) penned by Chief Justice Hughes affirming the judgment of the State Supreme Court,
held that ‘a statute requiring persons using the public streets for a parade or procession to
procure a special license therefor from the local authorities is not an unconstitutional
abridgment of the rights of assembly or of freedom of speech and press, where, as the
statute is construed by the state courts, the licensing authorities are strictly limited, in the
issuance of licenses, to a consideration of the time, place, and manner of the parade or
procession, with a view to conserving the public convenience and of affording an opportunity
to provide proper policing, and are not invested with arbitrary discretion to issue or refuse
license, * * *. "Nor should the point made by Chief Justice Hughes in a subsequent portion of
the opinion be ignored: "Civil liberties, as guaranteed by the Constitution, imply the existence
of an organized society maintaining public order without which liberty itself would be lost in
the excesses of unrestricted abuses. The authority of a municipality to impose regulations in
order to assure the safety and convenience of the people in the use of public highways has
never been regarded as inconsistent with civil liberties but rather as one of the means of
safeguarding the good order upon which they ultimately depend. The control of travel on the
streets of cities is the most familiar illustration of this recognition of social need. Where a
restriction of the use of highways in that relation is designed to promote the public
convenience in the interest of all, it cannot be disregarded by the attempted exercise of some
civil right which in other circumstances would be entitled to protection."

xxx

6. x x x The principle under American doctrines was given utterance by Chief Justice Hughes
in these words: "The question, if the rights of free speech and peaceable assembly are to be
preserved, is not as to the auspices under which the meeting is held but as to its purpose;
not as to the relations of the speakers, but whether their utterances transcend the bounds of
the freedom of speech which the Constitution protects." There could be danger to public
peace and safety if such a gathering were marked by turbulence. That would deprive it of its
peaceful character. Even then, only the guilty parties should be held accountable. It is true
that the licensing official, here respondent Mayor, is not devoid of discretion in determining
whether or not a permit would be granted. It is not, however, unfettered discretion. While
prudence requires that there be a realistic appraisal not of what may possibly occur but of
what may probably occur, given all the relevant circumstances, still the assumption –
especially so where the assembly is scheduled for a specific public place – is that the permit
must be for the assembly being held there. The exercise of such a right, in the language of
Justice Roberts, speaking for the American Supreme Court, is not to be "abridged on the
plea that it may be exercised in some other place."

xxx

8. By way of a summary. The applicants for a permit to hold an assembly should inform the
licensing authority of the date, the public place where and the time when it will take place. If it
were a private place, only the consent of the owner or the one entitled to its legal possession
is required. Such application should be filed well ahead in time to enable the public official
concerned to appraise whether there may be valid objections to the grant of the permit or to
its grant but at another public place. It is an indispensable condition to such refusal or
modification that the clear and present danger test be the standard for the decision reached.
If he is of the view that there is such an imminent and grave danger of a substantive evil, the
applicants must be heard on the matter. Thereafter, his decision, whether favorable or
adverse, must be transmitted to them at the earliest opportunity. Thus if so minded, they can
have recourse to the proper judicial authority. Free speech and peaceable assembly, along
with the other intellectual freedoms, are highly ranked in our scheme of constitutional values.
It cannot be too strongly stressed that on the judiciary, -- even more so than on the other
departments – rests the grave and delicate responsibility of assuring respect for and
deference to such preferred rights. No verbal formula, no sanctifying phrase can, of course,
dispense with what has been so felicitiously termed by Justice Holmes "as the sovereign
prerogative of judgment." Nonetheless, the presumption must be to incline the weight of the
scales of justice on the side of such rights, enjoying as they do precedence and primacy. x x
x.

B.P. No. 880 was enacted after this Court rendered its decision in Reyes.

The provisions of B.P. No. 880 practically codify the ruling in Reyes:
Reyes v. Bagatsing
(G.R. No. L-65366, November 9, 1983,
125 SCRA 553, 569)
8. By way of a summary. The applicants for
a permit to hold an assembly should inform
the licensing authority of the date, the
public place where and the time when it will
take place. If it were a private place, only
the consent of the owner or the one entitled
to its legal possession is required. Such
application should be filed well ahead in
time to enable the public official concerned
to appraise whether there may be valid
objections to the grant of the permit or to its
grant but at another public place. It is an
indispensable condition to such refusal or
modification that the clear and present
danger test be the standard for the decision
reached. If he is of the view that there is
such an imminent and grave danger of a
substantive evil, the applicants must be
heard on the matter. Thereafter, his
decision, whether favorable or adverse,
must be transmitted to them at the earliest
opportunity. Thus if so minded, they can
have recourse to the proper judicial
authority.
B.P. No. 880
Sec. 4. Permit when required and when not
required.-- A written permit shall be
required for any person or persons to
organize and hold a public assembly in a
public place. However, no permit shall be
required if the public assembly shall be
done or made in a freedom park duly
established by law or ordinance or in
private property, in which case only the
consent of the owner or the one entitled to
its legal possession is required, or in the
campus of a government-owned and
operated educational institution which shall
be subject to the rules and regulations of
said educational institution. Political
meetings or rallies held during any election
campaign period as provided for by law are
not covered by this Act.
Sec. 5. Application requirements.-- All
applications for a permit shall comply with
the following guidelines:
(a) The applications shall be in
writing and shall include the names
of the leaders or organizers; the
purpose of such public assembly;
the date, time and duration thereof,
and place or streets to be used for
the intended activity; and the
probable number of persons
participating, the transport and the
public address systems to be used.
(b) The application shall incorporate
the duty and responsibility of
applicant under Section 8 hereof.
(c) The application shall be filed
with the office of the mayor of the
city or municipality in whose
jurisdiction the intended activity is to
be held, at least five (5) working
days before the scheduled public
assembly.
(d) Upon receipt of the application,
which must be duly acknowledged
in writing, the office of the city or
municipal mayor shall cause the
same to immediately be posted at a
conspicuous place in the city or
municipal building.
Sec. 6. Action to be taken on the
application. –
(a) It shall be the duty of the mayor
or any official acting in his behalf to
issue or grant a permit unless there
is clear and convincing evidence
that the public assembly will create
a clear and present danger to public
order, public safety, public
convenience, public morals or
public health.

(b) The mayor or any official acting

in his behalf shall act on the
application within two (2) working
days from the date the application
was filed, failing which, the permit
shall be deemed granted. Should
for any reason the mayor or any
official acting in his behalf refuse to
accept the application for a permit,
said application shall be posted by
the applicant on the premises of the
office of the mayor and shall be
deemed to have been filed.

(c) If the mayor is of the view that

there is imminent and grave danger
of a substantive evil warranting the
denial or modification of the permit,
he shall immediately inform the
applicant who must be heard on the
matter.

(d) The action on the permit shall

be in writing and served on the
applica[nt] within twenty-four hours.

(e) If the mayor or any official acting

in his behalf denies the application
or modifies the terms thereof in his
permit, the applicant may contest
the decision in an appropriate court
of law.

(f) In case suit is brought before the

Metropolitan Trial Court, the
Municipal Trial Court, the Municipal
Circuit Trial Court, the Regional
Trial Court, or the Intermediate
Appellate Court, its decisions may
be appealed to the appropriate
court within forty-eight (48) hours
after receipt of the same. No appeal
bond and record on appeal shall be
required. A decision granting such
permit or modifying it in terms
satisfactory to the applicant shall be
immediately executory.

(g) All cases filed in court under this

section shall be decided within
twenty-four (24) hours from date of
filing. Cases filed hereunder shall
be immediately endorsed to the
executive judge for disposition or, in
his absence, to the next in rank.

(h) In all cases, any decision may

be appealed to the Supreme Court.

(i) Telegraphic appeals to be

followed by formal appeals are
hereby allowed.
It is very clear, therefore, that B.P. No. 880 is not an absolute ban of public assemblies but a
restriction that simply regulates the time, place and manner of the assemblies. This was adverted to
in Osmeña v. Comelec,20 where the Court referred to it as a "content-neutral" regulation of the time,
place, and manner of holding public assemblies.21

A fair and impartial reading of B.P. No. 880 thus readily shows that it refers to all kinds of public
assemblies22 that would use public places. The reference to "lawful cause" does not make it content-
based because assemblies really have to be for lawful causes, otherwise they would not be
"peaceable" and entitled to protection. Neither are the words "opinion," "protesting" and "influencing"
in the definition of public assembly content based, since they can refer to any subject. The words
"petitioning the government for redress of grievances" come from the wording of the Constitution, so
its use cannot be avoided. Finally, maximum tolerance is for the protection and benefit of all rallyists
and is independent of the content of the expressions in the rally.

Furthermore, the permit can only be denied on the ground of clear and present danger to public
order, public safety, public convenience, public morals or public health. This is a recognized
exception to the exercise of the right even under the Universal Declaration of Human Rights and the
International Covenant on Civil and Political Rights, thus:

Universal Declaration of Human Rights

Article 20

1. Everyone has the right to freedom of peaceful assembly and association.

xxx

Article 29

1. Everyone has duties to the community in which alone the free and full development of his
personality is possible.

2. In the exercise of his rights and freedoms, everyone shall be subject only to such
limitations as are determined by law solely for the purpose of securing due recognition and
respect for the rights and freedoms of others and of meeting the just requirements of
morality, public order and the general welfare in a democratic society.

3. These rights and freedoms may in no case be exercised contrary to the purposes and
principles of the United Nations.

The International Covenant on Civil and Political Rights

Article 19.

1. Everyone shall have the right to hold opinions without interference.

2. Everyone shall have the right to freedom of expression; this right shall include freedom to
seek, receive and impart information and ideas of all kinds, regardless of frontiers, either
orally, in writing or in print, in the form of art, or through any other media of his choice.

3. The exercise of the rights provided for in paragraph 2 of this article carries with it special
duties and responsibilities. It may therefore be subject to certain restrictions, but these shall
only be such as are provided by law and are necessary:

(a) For respect of the rights or reputations of others;

(b) For the protection of national security or of public order (ordre public), or of public
health or morals.

Contrary to petitioner’s claim, the law is very clear and is nowhere vague in its provisions. "Public"
does not have to be defined. Its ordinary meaning is well-known. Webster’s Dictionary defines it,
thus:23

public, n, x x x 2a: an organized body of people x x x 3: a group of people distinguished by common

interests or characteristics x x x.
Not every expression of opinion is a public assembly. The law refers to "rally, demonstration, march,
parade, procession or any other form of mass or concerted action held in a public place." So it does
not cover any and all kinds of gatherings.

Neither is the law overbroad. It regulates the exercise of the right to peaceful assembly and petition
only to the extent needed to avoid a clear and present danger of the substantive evils Congress has
the right to prevent.

There is, likewise, no prior restraint, since the content of the speech is not relevant to the regulation.

As to the delegation of powers to the mayor, the law provides a precise and sufficient standard – the
clear and present danger test stated in Sec. 6(a). The reference to "imminent and grave danger of a
substantive evil" in Sec. 6(c) substantially means the same thing and is not an inconsistent standard.
As to whether respondent Mayor has the same power independently under Republic Act No.
716024 is thus not necessary to resolve in these proceedings, and was not pursued by the parties in
their arguments.

Finally, for those who cannot wait, Section 15 of the law provides for an alternative forum through
the creation of freedom parks where no prior permit is needed for peaceful assembly and petition at
any time:

Sec. 15. Freedom parks. – Every city and municipality in the country shall within six months after the
effectivity of this Act establish or designate at least one suitable "freedom park" or mall in their
respective jurisdictions which, as far as practicable, shall be centrally located within the poblacion
where demonstrations and meetings may be held at any time without the need of any prior permit.

In the cities and municipalities of Metropolitan Manila, the respective mayors shall establish the
freedom parks within the period of six months from the effectivity this Act.

This brings up the point, however, of compliance with this provision.

The Solicitor General stated during the oral arguments that, to his knowledge, only Cebu City has
declared a freedom park – Fuente Osmeña.

That of Manila, the Sunken Gardens, has since been converted into a golf course, he added.

If this is so, the degree of observance of B.P. No. 880’s mandate that every city and municipality set
aside a freedom park within six months from its effectivity in 1985, or 20 years ago, would be
pathetic and regrettable. The matter appears to have been taken for granted amidst the swell of
freedom that rose from the peaceful revolution of 1986.

Considering that the existence of such freedom parks is an essential part of the law’s system of
regulation of the people’s exercise of their right to peacefully assemble and petition, the Court is
constrained to rule that after thirty (30) days from the finality of this Decision, no prior permit may be
required for the exercise of such right in any public park or plaza of a city or municipality until that
city or municipality shall have complied with Section 15 of the law. For without such alternative
forum, to deny the permit would in effect be to deny the right. Advance notices should, however, be
given to the authorities to ensure proper coordination and orderly proceedings.

The Court now comes to the matter of the CPR. As stated earlier, the Solicitor General has
conceded that the use of the term should now be discontinued, since it does not mean anything
other than the maximum tolerance policy set forth in B.P. No. 880. This is stated in the Affidavit of
respondent Executive Secretary Eduardo Ermita, submitted by the Solicitor General, thus:

14. The truth of the matter is the policy of "calibrated preemptive response" is in consonance with the
legal definition of "maximum tolerance" under Section 3 (c) of B.P. Blg. 880, which is the "highest
degree of restraint that the military, police and other peacekeeping authorities shall observe during a
public assembly or in the dispersal of the same." Unfortunately, however, the phrase "maximum
tolerance" has acquired a different meaning over the years. Many have taken it to mean inaction on
the part of law enforcers even in the face of mayhem and serious threats to public order. More so,
other felt that they need not bother secure a permit when holding rallies thinking this would be
"tolerated." Clearly, the popular connotation of "maximum tolerance" has departed from its real
essence under B.P. Blg. 880.

15. It should be emphasized that the policy of maximum tolerance is provided under the same law
which requires all pubic assemblies to have a permit, which allows the dispersal of rallies without a
permit, and which recognizes certain instances when water cannons may be used. This could only
mean that "maximum tolerance" is not in conflict with a "no permit, no rally policy" or with the
dispersal and use of water cannons under certain circumstances for indeed, the maximum amount of
tolerance required is dependent on how peaceful or unruly a mass action is. Our law enforcers
should calibrate their response based on the circumstances on the ground with the view to
preempting the outbreak of violence.

16. Thus, when I stated that calibrated preemptive response is being enforced in lieu of maximum
tolerance I clearly was not referring to its legal definition but to the distorted and much abused
definition that it has now acquired. I only wanted to disabuse the minds of the public from the notion
that law enforcers would shirk their responsibility of keeping the peace even when confronted with
dangerously threatening behavior. I wanted to send a message that we would no longer be lax in
enforcing the law but would henceforth follow it to the letter. Thus I said, "we have instructed the
PNP as well as the local government units to strictly enforce a no permit, no rally policy . . . arrest all
persons violating the laws of the land . . . unlawful mass actions will be dispersed." None of these is
at loggerheads with the letter and spirit of Batas Pambansa Blg. 880. It is thus absurd for
complainants to even claim that I ordered my co-respondents to violate any law.25

At any rate, the Court rules that in view of the maximum tolerance mandated by B.P. No. 880, CPR
serves no valid purpose if it means the same thing as maximum tolerance and is illegal if it means
something else. Accordingly, what is to be followed is and should be that mandated by the law itself,
namely, maximum tolerance, which specifically means the following:

Sec. 3. Definition of terms. – For purposes of this Act:

xxx

(c) "Maximum tolerance" means the highest degree of restraint that the military, police and other
peace keeping authorities shall observe during a public assembly or in the dispersal of the same.

xxx

Sec. 9. Non-interference by law enforcement authorities. – Law enforcement agencies shall not
interfere with the holding of a public assembly. However, to adequately ensure public safety, a law
enforcement contingent under the command of a responsible police officer may be detailed and
stationed in a place at least one hundred (100) meters away from the area of activity ready to
maintain peace and order at all times.

Sec. 10. Police assistance when requested. – It shall be imperative for law enforcement agencies,
when their assistance is requested by the leaders or organizers, to perform their duties always
mindful that their responsibility to provide proper protection to those exercising their right peaceably
to assemble and the freedom of expression is primordial. Towards this end, law enforcement
1avv phil.net

agencies shall observe the following guidelines:

(a) Members of the law enforcement contingent who deal with the demonstrators shall be in
complete uniform with their nameplates and units to which they belong displayed prominently
on the front and dorsal parts of their uniform and must observe the policy of "maximum
tolerance" as herein defined;

(b) The members of the law enforcement contingent shall not carry any kind of firearms but
may be equipped with baton or riot sticks, shields, crash helmets with visor, gas masks,
boots or ankle high shoes with shin guards;

(c) Tear gas, smoke grenades, water cannons, or any similar anti-riot device shall not be
used unless the public assembly is attended by actual violence or serious threats of violence,
or deliberate destruction of property.

Sec. 11. Dispersal of public assembly with permit. – No public assembly with a permit shall be
dispersed. However, when an assembly becomes violent, the police may disperse such public
assembly as follows:

(a) At the first sign of impending violence, the ranking officer of the law enforcement
contingent shall call the attention of the leaders of the public assembly and ask the latter to
prevent any possible disturbance;

(b) If actual violence starts to a point where rocks or other harmful objects from the
participants are thrown at the police or at the non-participants, or at any property causing
damage to such property, the ranking officer of the law enforcement contingent shall audibly
warn the participants that if the disturbance persists, the public assembly will be dispersed;

(c) If the violence or disturbance prevailing as stated in the preceding subparagraph should
not stop or abate, the ranking officer of the law enforcement contingent shall audibly issue a
 warning to the participants of the public assembly, and after allowing a reasonable period of
time to lapse, shall immediately order it to forthwith disperse;

(d) No arrest of any leader, organizer or participant shall also be made during the public
assembly unless he violates during the assembly a law, statute, ordinance or any provision
of this Act. Such arrest shall be governed by Article 125 of the Revised Penal Code, as
amended;

(d) Isolated acts or incidents of disorder or breach of the peace during the public assembly
shall not constitute a ground for dispersal.

xxx

Sec. 12. Dispersal of public assembly without permit. – When the public assembly is held without a
permit where a permit is required, the said public assembly may be peacefully dispersed.

Sec. 13. Prohibited acts. – The following shall constitute violations of the Act:

(e) Obstructing, impeding, disrupting or otherwise denying the exercise of the right to peaceful
assembly;

(f) The unnecessary firing of firearms by a member of any law enforcement agency or any person to
disperse the public assembly;

(g) Acts described hereunder if committed within one hundred (100) meters from the area of activity
of the public assembly or on the occasion thereof:

xxx

4. the carrying of firearms by members of the law enforcement unit;

5. the interfering with or intentionally disturbing the holding of a public assembly by the use of a
motor vehicle, its horns and loud sound systems.

Furthermore, there is need to address the situation adverted to by petitioners where mayors do not
act on applications for a permit and when the police demand a permit and the rallyists could not
produce one, the rally is immediately dispersed. In such a situation, as a necessary consequence
and part of maximum tolerance, rallyists who can show the police an application duly filed on a given
date can, after two days from said date, rally in accordance with their application without the need to
show a permit, the grant of the permit being then presumed under the law, and it will be the burden
of the authorities to show that there has been a denial of the application, in which case the rally may
be peacefully dispersed following the procedure of maximum tolerance prescribed by the law.

In sum, this Court reiterates its basic policy of upholding the fundamental rights of our people,
especially freedom of expression and freedom of assembly. In several policy addresses, Chief
Justice Artemio V. Panganiban has repeatedly vowed to uphold the liberty of our people and to
nurture their prosperity. He said that "in cases involving liberty, the scales of justice should weigh
heavily against the government and in favor of the poor, the oppressed, the marginalized, the
dispossessed and the weak. Indeed, laws and actions that restrict fundamental rights come to the
courts with a heavy presumption against their validity. These laws and actions are subjected
to heightenedscrutiny."26

For this reason, the so-called calibrated preemptive response policy has no place in our legal
firmament and must be struck down as a darkness that shrouds freedom. It merely confuses our
people and is used by some police agents to justify abuses. On the other hand, B.P. No. 880 cannot
be condemned as unconstitutional; it does not curtail or unduly restrict freedoms; it merely regulates
the use of public places as to the time, place and manner of assemblies. Far from being insidious,
"maximum tolerance" is for the benefit of rallyists, not the government. The delegation to the mayors
of the power to issue rally "permits" is valid because it is subject to the constitutionally-sound "clear
and present danger" standard.

In this Decision, the Court goes even one step further in safeguarding liberty by giving local
governments a deadline of 30 days within which to designate specific freedom parks as provided
under B.P. No. 880. If, after that period, no such parks are so identified in accordance with Section
15 of the law, all public parks and plazas of the municipality or city concerned shall in effect be
deemed freedom parks; no prior permit of whatever kind shall be required to hold an assembly
therein. The only requirement will be written notices to the police and the mayor’s office to allow
proper coordination and orderly activities.
WHEREFORE, the petitions are GRANTED in part, and respondents, more particularly the
Secretary of the Interior and Local Governments, are DIRECTED to take all necessary steps for the
immediate compliance with Section 15 of Batas Pambansa No. 880 through the establishment or
designation of at least one suitable freedom park or plaza in every city and municipality of the
country. After thirty (30) days from the finality of this Decision, subject to the giving of advance
notices, no prior permit shall be required to exercise the right to peaceably assemble and petition in
the public parks or plazas of a city or municipality that has not yet complied with Section 15 of the
law. Furthermore, Calibrated Preemptive Response (CPR), insofar as it would purport to differ
from or be in lieu of maximum tolerance, is NULL and VOID and respondents
are ENJOINED to REFRAIN from using it and to STRICTLY OBSERVE the requirements of
maximum tolerance. The petitions are DISMISSED in all other respects, and the constitutionality of
Batas Pambansa No. 880 is SUSTAINED.

No costs.

SO ORDERED.

ADOLFO S. AZCUNA
Associate Justice

WE CONCUR:

ARTEMIO V. PANGANIBAN
Chief Justice

(On Leave)
REYNATO S. PUNO LEONARDO A. QUISUMBING
Associate Justice Asscociate Justice

CONSUELO YNARES-SANTIAGO ANGELINA SANDOVAL-GUTIERREZ

Associate Justice Asscociate Justice

ANTONIO T. CARPIO MA. ALICIA AUSTRIA-MARTINEZ

Associate Justice Asscociate Justice

RENATO C. CORONA CONCHITA CARPIO MORALES

Associate Justice Asscociate Justice

ROMEO J. CALLEJO, SR. DANTE O. TINGA

Associate Justice Asscociate Justice

MINITA V. CHICO-NAZARIO CANCIO C. GARCIA

Associate Justice Asscociate Justice

PRESBITERO J. VELASCO, JR.

Associate Justice

CERTIFICATION

Pursuant to Section 13, Article VIII of the Constitution, it is hereby certified that the conclusions in
the above Decision were reached in consultation before the cases were assigned to the writer of the
opinion of the Court.

ARTEMIO V. PANGANIBAN
Chief Justice
 EN BANC

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 Paño, the Court had occasion to reiterate that it "also has the duty
to formulate guiding and controlling constitutional principles, precepts, doctrines, or rules. It has the
symbolic function of educating bench and bar on the extent of protection given by constitutional
guarantees."7 Since the fundamental freedoms of speech and of the press are being invoked here,
we have resolved to settle, for the guidance of posterity, whether they likewise protect the holding of
exit polls and the dissemination of data derived therefrom.

The solicitor general further contends that the Petition should be dismissed for petitioner's failure to
exhaust available remedies before the issuing forum, specifically the filing of a motion for
reconsideration.

This Court, however, has ruled in the past that this procedural requirement may be glossed over to
prevent a miscarriage of justice,8 when the issue involves the principle of social justice or the
protection of labor,9 when the decision or resolution sought to be set aside is a nullity,10 or when the
need for relief is extremely urgent and certiorari is the only adequate and speedy remedy available.11

The instant Petition assails a Resolution issued by the Comelec en banc on April 21, 1998, only
twenty (20) days before the election itself. Besides, the petitioner got hold of a copy thereof only on
May 4, 1998. Under the circumstances, there was hardly enough opportunity to move for a
reconsideration and to obtain a swift resolution in time 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,27 Navarro v. Villegas,28 Imbong v. Ferrer,29 Blo Umpar Adiong v. Comelec30 and,
more recently, in Iglesia ni Cristo v. MTRCB.31In 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. 1âwphi1.nêt

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.
 Republic of the Philippines
SUPREME COURT
Manila

EN BANC

G.R. No. 205728 January 21, 2015

THE DIOCESE OF BACOLOD, REPRESENTED BY THE MOST REV. BISHOP VICENTE M.

NAVARRA and THE BISHOP HIMSELF IN HIS PERSONAL CAPACITY, Petitioners,
vs.
COMMISSION ON ELECTIONS AND THE ELECTION OFFICER OF BACOLOD CITY, ATTY.
MAVIL V. MAJARUCON, Respondents.

DECISION

LEONEN, J.:

"The Philippines is a democratic and republican State. Sovereignty resides in the people and all
government authority emanates from them." – Article II, Section 1, Constitution

All governmental authority emanates from our people. No unreasonable restrictions of the
fundamental and preferred right to expression of the electorate during political contests no matter
how seemingly benign will be tolerated.

This case defines the extent that our people may shape the debates during elections. It is significant
and of first impression. We are asked to decide whether the Commission on Elections (COMELEC)
has the competence to limit expressions made by the citizens — who are not candidates — during
elections.

Before us is a special civil action for certiorari and prohibition with application for preliminary
injunction and temporary restraining order1 under Rule 65 of the Rules of Court seeking to nullify
COMELEC’s Notice to Remove Campaign Materials2 dated February 22, 2013 and letter3 issued on
February 27, 2013.

The facts are not disputed.

On February 21, 2013, petitioners posted two (2) tarpaulins within a private compound housing the
San Sebastian Cathedral of Bacolod. Each tarpaulin was approximately six feet (6') by ten feet (10')
in size. They were posted on the front walls of the cathedral within public view. The first tarpaulin
contains the message "IBASURA RH Law" referring to the Reproductive Health Law of 2012 or
Republic Act No. 10354. The second tarpaulin is the subject of the present case.4 This tarpaulin
contains the heading "Conscience Vote" and lists candidates as either "(Anti-RH) Team Buhay" with
a check mark, or "(Pro-RH) Team Patay" with an "X" mark.5 The electoral candidates were classified
according to their vote on the adoption of Republic Act No. 10354, otherwise known as the RH
Law.6Those who voted for the passing of the law were classified by petitioners as comprising "Team
Patay," while those who voted against it form "Team Buhay":7

TEAM BUHAY TEAM PATAY

Estrada, JV Angara, Juan Edgardo
Honasan, Gregorio Casiño, Teddy
Magsaysay, Mitos Cayetano, Alan Peter
Pimentel, Koko Enrile, Jackie
Trillanes, Antonio Escudero, Francis
Villar, Cynthia Hontiveros, Risa
Party List Buhay Legarda, Loren
Party List Ang Pamilya Party List Gabriela
Party List Akbayan
Party List Bayan Muna
Party List Anak Pawis
During oral arguments, respondents conceded that the tarpaulin was neither sponsored nor paid for
by any candidate. Petitioners also conceded that the tarpaulin contains names ofcandidates for the
2013 elections, but not of politicians who helped in the passage of the RH Law but were not
candidates for that election.

On February 22, 2013, respondent Atty. Mavil V. Majarucon, in her capacity as Election Officer of
Bacolod City, issued a Notice to Remove Campaign Materials8 addressed to petitioner Most Rev.
Bishop Vicente M. Navarra. The election officer ordered the tarpaulin’s removal within three (3) days
from receipt for being oversized. COMELEC Resolution No. 9615 provides for the size requirement
of two feet (2’) by three feet (3’).9

On February 25, 2013, petitioners replied10 requesting, among others, that (1) petitioner Bishop be
given a definite ruling by COMELEC Law Department regarding the tarpaulin; and (2) pending this
opinion and the availment of legal remedies, the tarpaulin be allowed to remain.11

On February 27, 2013, COMELEC Law Department issued a letter12 ordering the immediate removal
of the tarpaulin; otherwise, it will be constrained to file an election offense against petitioners. The
letter of COMELEC Law Department was silenton the remedies available to petitioners. The letter
provides as follows:

Dear Bishop Navarra:

It has reached this Office that our Election Officer for this City, Atty. Mavil Majarucon, had already
given you notice on February 22, 2013 as regards the election propaganda material posted on the
church vicinity promoting for or against the candidates and party-list groups with the following names
and messages, particularly described as follows:

Material size : six feet (6’) by ten feet (10’)

Description : FULL COLOR TARPAULIN

Image of : SEE ATTACHED PICTURES

Message : CONSCIENCE VOTE (ANTI RH) TEAM

BUHAY; (PRO RH) TEAM PATAY

Location : POSTED ON THE CHURCH VICINITY

OF THE DIOCESE OF BACOLOD CITY

The three (3) – day notice expired on February 25, 2013.

Considering that the above-mentioned material is found to be in violation of Comelec Resolution No.
9615 promulgated on January 15, 2013 particularly on the size (even with the subsequent division of
the said tarpaulin into two), as the lawful size for election propaganda material is only two feet (2’) by
three feet (3’), please order/cause the immediate removal of said election propaganda material,
otherwise, we shall be constrained to file an election offense case against you.

We pray that the Catholic Church will be the first institution to help the Commission on Elections
inensuring the conduct of peaceful, orderly, honest and credible elections.

Thank you and God Bless!

[signed]
ATTY. ESMERALDA AMORA-LADRA
Director IV13

Concerned about the imminent threatof prosecution for their exercise of free speech, petitioners
initiated this case through this petition for certiorari and prohibition with application for preliminary
injunction and temporary restraining order.14 They question respondents’ notice dated February 22,
2013 and letter issued on February 27, 2013. They pray that: (1) the petition be given due course;
(2) a temporary restraining order (TRO) and/or a writ of preliminary injunction be issued restraining
respondents from further proceeding in enforcing their orders for the removal of the Team Patay
tarpaulin; and (3) after notice and hearing, a decision be rendered declaring the questioned orders of
respondents as unconstitutional and void, and permanently restraining respondents from enforcing
them or any other similar order.15
After due deliberation, this court, on March 5, 2013, issued a temporary restraining order enjoining
respondents from enforcing the assailed notice and letter, and set oral arguments on March 19,
2013.16

On March 13, 2013, respondents filed their comment17 arguing that (1) a petition for certiorari and
prohibition under Rule 65 of the Rules of Court filed before this court is not the proper remedy to
question the notice and letter of respondents; and (2) the tarpaulin is an election propaganda subject
to regulation by COMELEC pursuant to its mandate under Article IX-C, Section 4 of the Constitution.
Hence, respondents claim that the issuances ordering its removal for being oversized are valid and
constitutional.18

During the hearing held on March 19, 2013, the parties were directed to file their respective
memoranda within 10 days or by April 1, 2013, taking into consideration the intervening holidays.19

The issues, which also served as guide for the oral arguments, are:20

I.

WHETHER THE 22 FEBRUARY 2013 NOTICE/ORDER BY ELECTION OFFICER MAJARUCON

AND THE 27 FEBRUARY 2013 ORDER BY THE COMELEC LAW DEPARTMENT ARE
CONSIDERED JUDGMENTS/FINAL ORDERS/RESOLUTIONS OF THE COMELEC WHICH
WOULD WARRANT A REVIEW OF THIS COURT VIA RULE 65 PETITION[;]

A. WHETHER PETITIONERS VIOLATED THE HIERARCHY OF COURTS

DOCTRINE AND JURISPRUDENTIAL RULES GOVERNING APPEALS FROM
COMELEC DECISIONS;

B. ASSUMING ARGUENDO THAT THE AFOREMENTIONED ORDERS ARE NOT

CONSIDERED JUDGMENTS/FINAL ORDERS/RESOLUTIONS OF THE
COMELEC, WHETHER THERE ARE EXCEPTIONAL CIRCUMSTANCES WHICH
WOULD ALLOW THIS COURT TO TAKE COGNIZANCE OF THE CASE[;]

II.

WHETHER IT IS RELEVANT TODETERMINE WHETHER THE TARPAULINS ARE "POLITICAL

ADVERTISEMENT" OR "ELECTION PROPAGANDA" CONSIDERING THAT PETITIONER IS NOT
A POLITICAL CANDIDATE[;]

III.

WHETHER THE TARPAULINS ARE A FORM OR EXPRESSION (PROTECTED SPEECH), OR

ELECTION PROPAGANDA/POLITICAL ADVERTISEMENT[;]

A. ASSUMING ARGUENDO THAT THE TARPAULINS ARE A FORM OF

EXPRESSION, WHETHER THE COMELEC POSSESSES THE AUTHORITY TO
REGULATE THE SAME[;]

B. WHETHER THIS FORM OF EXPRESSION MAY BE REGULATED[;]

IV.

WHETHER THE 22 FEBRUARY 2013 NOTICE/ ORDER BY ELECTION OFFICER MAJARUCON

AND THE 27 FEBRUARY 2013 ORDER BY THE COMELEC LAW DEPARTMENT VIOLATES THE
PRINCIPLE OF SEPARATION OF CHURCH AND STATE[;] [AND]

V.

WHETHER THE ACTION OF THE PETITIONERS IN POSTING ITS TARPAULIN VIOLATES THE
CONSTITUTIONAL PRINCIPLE OF SEPARATION OF CHURCH AND STATE.

I
PROCEDURAL ISSUES

I.A

This court’s jurisdiction over COMELEC cases

Respondents ask that this petition be dismissed on the ground that the notice and letter are not final
orders, decisions, rulings, or judgments of the COMELEC En Banc issued in the exercise of its
adjudicatory powers, reviewable via Rule 64 of the Rules of Court.21

Rule 64 is not the exclusive remedy for all acts of the COMELEC. Rule 65 is applicable especially to
raise objections relating to a grave abuse of discretion resulting in the ouster of jurisdiction.22 As a
special civil action, there must also be a showing that there be no plain, speedy, and adequate
remedy in the ordinary course of the law.

Respondents contend that the assailed notice and letter are not subject to review by this court,
whose power to review is "limited only to final decisions, rulings and orders of the COMELEC En
Banc rendered in the exercise of its adjudicatory or quasi-judicial power."23 Instead, respondents
claim that the assailed notice and letter are reviewable only by COMELEC itself pursuant to Article
IX-C, Section 2(3) of the Constitution24 on COMELEC’s power to decide all questions affecting
elections.25 Respondents invoke the cases of Ambil, Jr. v. COMELEC,26 Repol v.
COMELEC,27 Soriano, Jr. v. COMELEC,28 Blanco v. COMELEC,29 and Cayetano v. COMELEC,30 to
illustrate how judicialintervention is limited to final decisions, orders, rulings and judgments of the
COMELEC En Banc.31

These cases are not applicable.

In Ambil, Jr. v. COMELEC, the losing party in the gubernatorial race of Eastern Samar filed the
election protest.32 At issue was the validity of the promulgation of a COMELEC Division
resolution.33 No motion for reconsideration was filed to raise this issue before the COMELEC En
Banc. This court declared that it did not have jurisdiction and clarified:

We have interpreted [Section 7, Article IX-A of the Constitution]34 to mean final orders, rulings and
decisionsof the COMELEC rendered in the exercise of its adjudicatory or quasi-judicial powers." This
decision must be a final decision or resolution of the Comelec en banc, not of a division, certainly not
an interlocutory order of a division.The Supreme Court has no power to review viacertiorari, an
interlocutory order or even a final resolution of a Division of the Commission on
Elections.35 (Emphasis in the original, citations omitted)

However, in the next case cited by respondents, Repol v. COMELEC, this court provided exceptions
to this general rule. Repolwas another election protest case, involving the mayoralty elections in
Pagsanghan, Samar.36 This time, the case was brought to this court because the COMELEC First
Division issued a status quo ante order against the Regional Trial Court executing its decision
pending appeal.37 This court’s ponencia discussed the general rule enunciated in Ambil, Jr. that it
cannot take jurisdiction to review interlocutory orders of a COMELEC Division.38However, consistent
with ABS-CBN Broadcasting Corporation v. COMELEC,39 it clarified the exception:

This Court, however, has ruled in the past that this procedural requirement [of filing a motion for
reconsideration] may be glossed over to prevent miscarriage of justice, when the issue involves the
principle of social justice or the protection of labor, when the decision or resolution sought to be set
aside is a nullity, or when the need for relief is extremely urgent and certiorari is the only adequate
and speedy remedy available.40

Based on ABS-CBN, this court could review orders and decisions of COMELEC — in electoral
contests — despite not being reviewed by the COMELEC En Banc, if:

1) It will prevent the miscarriage of justice;

2) The issue involves a principle of social justice;

3) The issue involves the protection of labor;

4) The decision or resolution sought tobe set aside is a nullity; or

5) The need for relief is extremely urgent and certiorari is the only adequate and speedy
remedy available.

Ultimately, this court took jurisdiction in Repoland decided that the status quo anteorder issued by
the COMELEC Division was unconstitutional.

Respondents also cite Soriano, Jr. v. COMELEC.This case was also an election protest case
involving candidates for the city council of Muntinlupa City.41 Petitioners in Soriano, Jr.filed before this
court a petition for certiorari against an interlocutory order of the COMELEC First
Division.42 While the petition was pending in this court, the COMELEC First Division dismissed the
main election protest case.43 Sorianoapplied the general rule that only final orders should be
questioned with this court. The ponencia for this court, however, acknowledged the exceptions to the
general rule in ABS-CBN.44

Blanco v. COMELEC, another case cited by respondents, was a disqualification case of one of the
mayoralty candidates of Meycauayan, Bulacan.45 The COMELEC Second Division ruled that
petitioner could not qualify for the 2007 elections due to the findings in an administrative case that he
engaged in vote buying in the 1995 elections.46No motion for reconsideration was filed before the
COMELEC En Banc. This court, however, took cognizance of this case applying one of the
exceptions in ABS-CBN: The assailed resolution was a nullity.47

Finally, respondents cited Cayetano v. COMELEC, a recent election protest case involving the
mayoralty candidates of Taguig City.48 Petitioner assailed a resolution of the COMELEC denying her
motion for reconsideration to dismiss the election protest petition for lack of form and
substance.49 This court clarified the general rule and refused to take cognizance of the review of the
COMELEC order. While recognizing the exceptions in ABS-CBN, this court ruled that these
exceptions did not apply.50

Ambil, Jr., Repol, Soriano, Jr., Blanco, and Cayetano cited by respondents do not operate as
precedents to oust this court from taking jurisdiction over this case. All these cases cited involve
election protests or disqualification cases filed by the losing candidate against the winning candidate.

In the present case, petitioners are not candidates seeking for public office. Their petition is filed to
assert their fundamental right to expression.

Furthermore, all these cases cited by respondents pertained to COMELEC’s exercise of its
adjudicatory or quasi-judicial power. This case pertains to acts of COMELEC in the implementation
of its regulatory powers. When it issued the notice and letter, the COMELEC was allegedly
enforcingelection laws.

I.B

Rule 65, grave abuse of discretion,

and limitations on political speech

The main subject of thiscase is an alleged constitutional violation: the infringement on speech and
the "chilling effect" caused by respondent COMELEC’s notice and letter.

Petitioners allege that respondents committed grave abuse of discretion amounting to lack or excess
of jurisdiction in issuing the notice51 dated February 22,2013 and letter52 dated February 27, 2013
ordering the removal of the tarpaulin.53 It is their position that these infringe on their fundamental right
to freedom of expression and violate the principle of separation of church and state and, thus, are
unconstitutional.54

The jurisdiction of this court over the subject matter is determined from the allegations in the petition.
Subject matter jurisdiction is defined as the authority "to hear and determine cases of the general
class to which the proceedings in question belong and is conferred by the sovereign authority which
organizes the court and defines its powers."55Definitely, the subject matter in this case is different
from the cases cited by respondents.

Nothing less than the electorate’s political speech will be affected by the restrictions imposed by
COMELEC. Political speech is motivated by the desire to be heard and understood, to move people
to action. It is concerned with the sovereign right to change the contours of power whether through
the election of representatives in a republican government or the revision of the basic text of the
Constitution. The zeal with which we protect this kind of speech does not depend on our evaluation
of the cogency of the message. Neither do we assess whether we should protect speech based on
the motives of COMELEC. We evaluate restrictions on freedom of expression from their effects. We
protect both speech and medium because the quality of this freedom in practice will define the
quality of deliberation in our democratic society.

COMELEC’s notice and letter affect preferred speech. Respondents’ acts are capable of repetition.
Under the conditions in which it was issued and in view of the novelty of this case,it could result in a
"chilling effect" that would affect other citizens who want their voices heard on issues during the
elections. Other citizens who wish to express their views regarding the election and other related
issues may choose not to, for fear of reprisal or sanction by the COMELEC. Direct resort to this court
is allowed to avoid such proscribed conditions. Rule 65 is also the procedural platform for raising
grave abuse of discretion.
Both parties point to constitutional provisions on jurisdiction. For petitioners, it referred to this court’s
expanded exercise of certiorari as provided by the Constitution as follows:

Judicial power includes the duty of the courts of justice to settle actual controversies involving rights
which are legally demandable and enforceable, and to determine whether ornot 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.56(Emphasis supplied)

On the other hand, respondents relied on its constitutional mandate to decide all questions
affectingelections. Article IX-C, Section 2(3) of the Constitution, provides:

Sec. 2. The Commission on Elections shall exercise the following powers and functions:

....

(3) Decide, except those involving the right to vote, all questions affecting elections, including
determination of the number and location of polling places, appointment of election officials and
inspectors, and registration of voters.

Respondents’ reliance on this provision is misplaced.

We are not confronted here with the question of whether the COMELEC, in its exercise of
jurisdiction, gravely abused it. We are confronted with the question as to whether the COMELEC had
any jurisdiction at all with its acts threatening imminent criminal action effectively abridging
meaningful political speech.

It is clear that the subject matter of the controversy is the effect of COMELEC’s notice and letter on
free speech. This does not fall under Article IX-C, Section 2(3) of the Constitution. The use of the
word "affecting" in this provision cannot be interpreted to mean that COMELEC has the exclusive
power to decide any and allquestions that arise during elections. COMELEC’s constitutional
competencies during elections should not operate to divest this court of its own jurisdiction.

The more relevant provision for jurisdiction in this case is Article VIII, Section 5(1) of the
Constitution.This provision provides for this court’s original jurisdiction over petitions for certiorari
and prohibition. This should be read alongside the expanded jurisdiction of the court in Article VIII,
Section 1 of the Constitution.

Certainly, a breach of the fundamental right of expression by COMELEC is grave abuse of

discretion. Thus, the constitutionality of the notice and letter coming from COMELEC is within this
court’s power to review.

During elections, we have the power and the duty to correct any grave abuse of discretion or any act
tainted with unconstitutionality on the part of any government branch or instrumentality. This includes
actions by the COMELEC. Furthermore, it is this court’s constitutional mandate to protect the people
against government’s infringement of their fundamental rights. This constitutional mandate out
weighs the jurisdiction vested with the COMELEC.

It will, thus, be manifest injustice if the court does not take jurisdiction over this case.

I.C

Hierarchy of courts

This brings us to the issue of whether petitioners violated the doctrine of hierarchy of courts in
directly filing their petition before this court.

Respondents contend that petitioners’ failure to file the proper suit with a lower court of concurrent
jurisdiction is sufficient ground for the dismissal of their petition.57 They add that observation of the
hierarchy of courts is compulsory, citing Heirs of Bertuldo Hinog v. Melicor.58 While respondents
claim that while there are exceptions to the general rule on hierarchy of courts, none of these are
present in this case.59

On the other hand, petitioners cite Fortich v. Corona60 on this court’s discretionary power to take
cognizance of a petition filed directly to it if warranted by "compelling reasons, or [by] the nature and
importance of the issues raised. . . ."61 Petitioners submit that there are "exceptional and compelling
reasons to justify a direct resort [with] this Court."62
In Bañez, Jr. v. Concepcion,63 we explained the necessity of the application of the hierarchy of
courts:

The Court must enjoin the observance of the policy on the hierarchy of courts, and now affirms that
the policy is not to be ignored without serious consequences. The strictness of the policy is designed
to shield the Court from having to deal with causes that are also well within the competence of the
lower courts, and thus leave time to the Court to deal with the more fundamental and more essential
tasks that the Constitution has assigned to it. The Court may act on petitions for the extraordinary
writs of certiorari, prohibition and mandamus only when absolutely necessary or when serious and
important reasons exist to justify an exception to the policy.64

In Bañez, we also elaborated on the reasons why lower courts are allowed to issue writs of certiorari,
prohibition, and mandamus, citing Vergara v. Suelto:65

The Supreme Court is a court of lastresort, and must so remain if it is to satisfactorily perform the
functions assigned to it by the fundamental charter and immemorial tradition. It cannot and should
not be burdened with the task of dealing with causes in the first instance. Its original jurisdiction to
issue the so-called extraordinary writs should be exercised only where absolutely necessary or
where serious and important reasons exist therefore. Hence, that jurisdiction should generally be
exercised relative to actions or proceedings before the Court of Appeals, or before constitutional or
other tribunals, bodies or agencies whose acts for some reason or another are not controllable by
the Court of Appeals. Where the issuance of an extraordinary writ is also within the competence of
the Court of Appeals or a Regional Trial Court, it is in either of these courts that the specific action
for the writ’s procurement must be presented. This is and should continue to be the policy in this
regard, a policy that courts and lawyers must strictly observe.66 (Emphasis omitted)

The doctrine that requires respect for the hierarchy of courts was created by this court to ensure that
every level of the judiciary performs its designated roles in an effective and efficient manner. Trial
courts do not only determine the facts from the evaluation of the evidence presented before them.
They are likewise competent to determine issues of law which may include the validity of an
ordinance, statute, or even an executive issuance in relation to the Constitution.67 To effectively
perform these functions, they are territorially organized into regions and then into branches. Their
writs generally reach within those territorial boundaries. Necessarily, they mostly perform the all-
important task of inferring the facts from the evidence as these are physically presented before
them. In many instances, the facts occur within their territorial jurisdiction, which properly present the
‘actual case’ that makes ripe a determination of the constitutionality of such action. The
consequences, of course, would be national in scope. There are, however, some cases where resort
to courts at their level would not be practical considering their decisions could still be appealed
before the higher courts, such as the Court of Appeals.

The Court of Appeals is primarily designed as an appellate court that reviews the determination of
facts and law made by the trial courts. It is collegiate in nature. This nature ensures more
standpoints in the review of the actions of the trial court. But the Court of Appeals also has original
jurisdiction over most special civil actions. Unlike the trial courts, its writs can have a nationwide
scope. It is competent to determine facts and, ideally, should act on constitutional issues thatmay not
necessarily be novel unless there are factual questions to determine.

This court, on the other hand, leads the judiciary by breaking new ground or further reiterating — in
the light of new circumstances or in the light of some confusions of bench or bar — existing
precedents. Rather than a court of first instance or as a repetition of the actions of the Court of
Appeals, this court promulgates these doctrinal devices in order that it truly performs that role.

In other words, the Supreme Court’s role to interpret the Constitution and act in order to protect
constitutional rights when these become exigent should not be emasculated by the doctrine in
respect of the hierarchy of courts. That has never been the purpose of such doctrine.

Thus, the doctrine of hierarchy of courts is not an iron-clad rule.68 This court has "full discretionary
power to take cognizance and assume jurisdiction [over] special civil actions for certiorari . . .filed
directly with it for exceptionally compelling reasons69 or if warranted by the nature of the issues
clearly and specifically raised in the petition."70 As correctly pointed out by petitioners,71 we have
provided exceptions to this doctrine:

First, a direct resort to this court is allowed when there are genuine issues of constitutionality that
must be addressed at the most immediate time. A direct resort to this court includes availing of the
remedies of certiorari and prohibition toassail the constitutionality of actions of both legislative and
executive branches of the government.72

In this case, the assailed issuances of respondents prejudice not only petitioners’ right to freedom of
expression in the present case, but also of others in future similar cases. The case before this court
involves an active effort on the part of the electorate to reform the political landscape. This has
become a rare occasion when private citizens actively engage the public in political discourse. To
quote an eminent political theorist:

[T]he theory of freedom of expression involves more than a technique for arriving at better social
judgments through democratic procedures. It comprehends a vision of society, a faith and a whole
way of life. The theory grew out of an age that was awakened and invigorated by the idea of new
society in which man's mind was free, his fate determined by his own powers of reason, and his
prospects of creating a rational and enlightened civilization virtually unlimited. It is put forward as a
prescription for attaining a creative, progressive, exciting and intellectually robust community. It
contemplates a mode of life that, through encouraging toleration, skepticism, reason and initiative,
will allow man to realize his full potentialities.It spurns the alternative of a society that is tyrannical,
conformist, irrational and stagnant.73

In a democracy, the citizen’s right tofreely participate in the exchange of ideas in furtherance of
political decision-making is recognized. It deserves the highest protection the courts may provide, as
public participation in nation-building isa fundamental principle in our Constitution. As such, their
right to engage in free expression of ideas must be given immediate protection by this court.

A second exception is when the issuesinvolved are of transcendental importance.74 In these cases,
the imminence and clarity of the threat to fundamental constitutional rights outweigh the necessity for
prudence. The doctrine relating to constitutional issues of transcendental importance prevents courts
from the paralysis of procedural niceties when clearly faced with the need for substantial protection.

In the case before this court, there is a clear threat to the paramount right of freedom of speech and
freedom of expression which warrants invocation of relief from this court. The principles laid down in
this decision will likely influence the discourse of freedom of speech in the future, especially in the
context of elections. The right to suffrage not only includes the right to vote for one’s chosen
candidate, but also the right to vocalize that choice to the public in general, in the hope of influencing
their votes. It may be said that in an election year, the right to vote necessarily includes the right to
free speech and expression. The protection of these fundamental constitutional rights, therefore,
allows for the immediate resort to this court.

Third, cases of first impression75 warrant a direct resort to this court. In cases of first impression, no
jurisprudence yet exists that will guide the lower courts on this matter. In Government of the United
States v. Purganan,76 this court took cognizance of the case as a matter of first impression that may
guide the lower courts:

In the interest of justice and to settle once and for all the important issue of bail in extradition
proceedings, we deem it best to take cognizance of the present case. Such proceedings constitute a
matter of first impression over which there is, as yet, no local jurisprudence to guide lower courts.77

This court finds that this is indeed a case of first impression involving as it does the issue of whether
the right of suffrage includes the right of freedom of expression. This is a question which this court
has yet to provide substantial answers to, through jurisprudence. Thus, direct resort to this court is
allowed.

Fourth, the constitutional issues raisedare better decided by this court. In Drilon v. Lim,78 this court
held that:

. . . it will be prudent for such courts, if only out of a becoming modesty, to defer to the higher
judgmentof this Court in the consideration of its validity, which is better determined after a thorough
deliberation by a collegiate body and with the concurrence of the majority of those who participated
in its discussion.79 (Citation omitted)

In this case, it is this court, with its constitutionally enshrined judicial power, that can rule with finality
on whether COMELEC committed grave abuse of discretion or performed acts contrary to the
Constitution through the assailed issuances.

Fifth, the time element presented in this case cannot be ignored. This case was filed during the 2013
election period. Although the elections have already been concluded, future cases may be filed that
necessitate urgency in its resolution. Exigency in certain situations would qualify as an exception for
direct resort to this court.

Sixth, the filed petition reviews the act of a constitutional organ. COMELEC is a constitutional body.
In Albano v. Arranz,80 cited by petitioners, this court held that "[i]t is easy to realize the chaos that
would ensue if the Court of First Instance ofeach and every province were [to] arrogate itself the
power to disregard, suspend, or contradict any order of the Commission on Elections: that
constitutional body would be speedily reduced to impotence."81
In this case, if petitioners sought to annul the actions of COMELEC through pursuing remedies with
the lower courts, any ruling on their part would not have been binding for other citizens whom
respondents may place in the same situation. Besides, thiscourt affords great respect to the
Constitution and the powers and duties imposed upon COMELEC. Hence, a ruling by this court
would be in the best interest of respondents, in order that their actions may be guided accordingly in
the future.

Seventh, petitioners rightly claim that they had no other plain, speedy, and adequate remedy in the
ordinary course of law that could free them from the injurious effects of respondents’ acts in violation
of their right to freedom of expression.

In this case, the repercussions of the assailed issuances on this basic right constitute an
exceptionally compelling reason to justify the direct resort to this court. The lack of other sufficient
remedies in the course of law alone is sufficient ground to allow direct resort to this court.

Eighth, the petition includes questionsthat are "dictated by public welfare and the advancement of
public policy, or demanded by the broader interest of justice, or the orders complained of were found
to be patent nullities, or the appeal was consideredas clearly an inappropriate remedy."82 In the past,
questions similar to these which this court ruled on immediately despite the doctrine of hierarchy of
courts included citizens’ right to bear arms,83 government contracts involving modernization of voters’
registration lists,84 and the status and existence of a public office.85

This case also poses a question of similar, if not greater import. Hence, a direct action to this court is
permitted.

It is not, however, necessary that all of these exceptions must occur at the same time to justify a
direct resort to this court. While generally, the hierarchy of courts is respected, the present case falls
under the recognized exceptions and, as such, may be resolved by this court directly.

I.D

The concept of a political question

Respondents argue further that the size limitation and its reasonableness is a political question,
hence not within the ambit of this court’s power of review. They cite Justice Vitug’s separate opinion
in Osmeña v. COMELEC86 to support their position:

It might be worth mentioning that Section 26, Article II, of the Constitution also states that the "State
shall guarantee equal access to opportunities for public service, and prohibit political dynasties as
may be defined by law." I see neither Article IX (C)(4) nor Section 26, Article II, of the Constitution to
be all that adversarial or irreconcilably inconsistent with the right of free expression. In any event, the
latter, being one of general application, must yield to the specific demands of the Constitution. The
freedom of expression concededly holds, it is true, a vantage point in hierarchy of constitutionally-
enshrined rights but, like all fundamental rights, it is not without limitations.

The case is not about a fight between the "rich" and the "poor" or between the "powerful" and the
"weak" in our society but it is to me a genuine attempt on the part of Congress and the Commission
on Elections to ensure that all candidates are given an equal chance to media coverage and thereby
be equally perceived as giving real life to the candidates’ right of free expression rather than being
viewed as an undue restriction of that freedom. The wisdom in the enactment of the law, i.e., that
which the legislature deems to be best in giving life to the Constitutional mandate, is not for the
Court to question; it is a matter that lies beyond the normal prerogatives of the Court to pass upon.87

This separate opinion is cogent for the purpose it was said. But it is not in point in this case.

The present petition does not involve a dispute between the rich and poor, or the powerful and weak,
on their equal opportunities for media coverage of candidates and their right to freedom of
expression. This case concerns the right of petitioners, who are non-candidates, to post the tarpaulin
in their private property, asan exercise of their right of free expression. Despite the invocation of the
political question doctrine by respondents, this court is not proscribed from deciding on the merits of
this case.

In Tañada v. Cuenco,88 this court previously elaborated on the concept of what constitutes a political
question:

What is generally meant, when it is said that a question is political, and not judicial, is that it is a
matter which is to be exercised by the people in their primary political capacity, or that it has been
specifically delegated to some other department or particular officer of the government,
withdiscretionary power to act.89 (Emphasis omitted)
It is not for this court to rehearse and re-enact political debates on what the text of the law should be.
In political forums, particularly the legislature, the creation of the textof the law is based on a general
discussion of factual circumstances, broadly construed in order to allow for general application by
the executive branch. Thus, the creation of the law is not limited by particular and specific facts that
affect the rights of certain individuals, per se.

Courts, on the other hand, rule on adversarial positions based on existing facts established on a
specific case-to-case basis, where parties affected by the legal provision seek the courts’
understanding of the law.

The complementary nature of the political and judicial branches of government is essential in order
to ensure that the rights of the general public are upheld at all times. In order to preserve this
balance, branches of government must afford due respectand deference for the duties and functions
constitutionally delegated to the other. Courts cannot rush to invalidate a law or rule. Prudence
dictates that we are careful not to veto political acts unless we can craft doctrine narrowly tailored to
the circumstances of the case.

The case before this court does not call for the exercise of prudence or modesty. There is no political
question. It can be acted upon by this court through the expanded jurisdiction granted to this court
through Article VIII, Section 1 of the Constitution.

A political question arises in constitutional issues relating to the powers or competence of different
agencies and departments of the executive or those of the legislature. The political question doctrine
is used as a defense when the petition asks this court to nullify certain acts that are exclusively
within the domain of their respective competencies, as provided by the Constitution or the law. In
such situation, presumptively, this court should act with deference. It will decline to void an act
unless the exercise of that power was so capricious and arbitrary so as to amount to grave abuse of
discretion.

The concept of a political question, however, never precludes judicial review when the act of a
constitutional organ infringes upon a fundamental individual or collective right. Even assuming
arguendo that the COMELEC did have the discretion to choose the manner of regulation of the
tarpaulin in question, it cannot do so by abridging the fundamental right to expression.

Marcos v. Manglapus90 limited the use of the political question doctrine:

When political questions are involved, the Constitution limits the determination to whether or not
there has been a grave abuse of discretion amounting to lack or excess of jurisdiction on the part of
the official whose action is being questioned. If grave abuse is not established, the Court will not
substitute its judgment for that of the official concerned and decide a matter which by its nature or by
law is for the latter alone to decide.91

How this court has chosen to address the political question doctrine has undergone an evolution
since the timethat it had been first invoked in Marcos v. Manglapus. Increasingly, this court has
taken the historical and social context of the case and the relevance of pronouncements of carefully
and narrowly tailored constitutional doctrines. This trend was followed in cases such as Daza v.
Singson92 and Coseteng v. Mitra Jr.93

Daza and Coseteng involved a question as to the application of Article VI, Section 18 of the 1987
Constitution involving the removal of petitioners from the Commission on Appointments. In times
past, this would have involved a quint essentially political question as it related to the dominance of
political parties in Congress. However, in these cases, this court exercised its power of judicial
review noting that the requirement of interpreting the constitutional provision involved the legality and
not the wisdom of a manner by which a constitutional duty or power was exercised. This approach
was again reiterated in Defensor Santiago v. Guingona, Jr.94

In Integrated Bar of the Philippines v. Zamora,95 this court declared again that the possible existence
ofa political question did not bar an examination of whether the exercise of discretion was done with
grave abuse of discretion. In that case, this court ruled on the question of whether there was grave
abuse of discretion in the President’s use of his power to call out the armed forces to prevent and
suppress lawless violence.

In Estrada v. Desierto,96 this court ruled that the legal question as to whether a former President
resigned was not a political question even if the consequences would be to ascertain the political
legitimacy of a successor President.

Many constitutional cases arise from political crises. The actors in such crises may use the
resolution of constitutional issues as leverage. But the expanded jurisdiction of this court now
mandates a duty for it to exercise its power of judicial review expanding on principles that may avert
catastrophe or resolve social conflict.

This court’s understanding of the political question has not been static or unbending. In Llamas v.
Executive Secretary Oscar Orbos,97 this court held:

While it is true that courts cannot inquire into the manner in which the President's discretionary
powers are exercised or into the wisdom for its exercise, it is also a settled rule that when the issue
involved concerns the validity of such discretionary powers or whether said powers are within the
limits prescribed by the Constitution, We will not decline to exercise our power of judicial review. And
such review does not constitute a modification or correction of the act of the President, nor does it
constitute interference with the functions of the President.98

The concept of judicial power in relation to the concept of the political question was discussed most
extensively in Francisco v. HRET.99 In this case, the House of Representatives arguedthat the
question of the validity of the second impeachment complaint that was filed against former Chief
Justice Hilario Davide was a political question beyond the ambit of this court. Former Chief Justice
Reynato Puno elaborated on this concept in his concurring and dissenting opinion:

To be sure, the force to impugn the jurisdiction of this Court becomes more feeble in light of the new
Constitution which expanded the definition of judicial power as including "the duty of the courts of
justice to settle actual controversies involving rights which are legally demandable and enforceable,
and to determine whether or not there has been a grave abuse of discretion amounting to lack or
excess of jurisdiction on the part of any branch or instrumentality of the Government." As well
observed by retired Justice Isagani Cruz, this expanded definition of judicial power considerably
constricted the scope of political question. He opined that the language luminously suggests that this
duty (and power) is available even against the executive and legislative departments including the
President and the Congress, in the exercise of their discretionary powers.100 (Emphasis in the
original, citations omitted)

Francisco also provides the cases which show the evolution of the political question, as applied in
the following cases:

In Marcos v. Manglapus, this Court, speaking through Madame Justice Irene Cortes, held: The
present Constitution limits resort to the political question doctrine and broadens the scope of judicial
inquiry into areas which the Court,under previous constitutions, would have normally left to the
political departments to decide. x x x

In Bengzon v. Senate Blue Ribbon Committee, through Justice Teodoro Padilla, this Court declared:

The "allocation of constitutional boundaries" is a task that this Court must perform under the
Constitution. Moreover, as held in a recent case, "(t)he political question doctrine neither interposes
an obstacle to judicial determination of the rival claims. The jurisdiction to delimit constitutional
boundaries has been given to this Court. It cannot abdicate that obligation mandated by the 1987
Constitution, although said provision by no means does away with the applicability of the principle in
appropriate cases." (Emphasis and italics supplied)

And in Daza v. Singson, speaking through Justice Isagani Cruz, this Court ruled:

In the case now before us, the jurisdictional objection becomes even less tenable and decisive. The
reason is that, even if we were to assume that the issue presented before us was political in nature,
we would still not be precluded from resolving it under the expanded jurisdiction conferred upon us
that now covers, in proper cases, even the political question.x x x (Emphasis and italics supplied.)

....

In our jurisdiction, the determination of whether an issue involves a truly political and non-justiciable
question lies in the answer to the question of whether there are constitutionally imposed limits on
powers or functions conferred upon political bodies. If there are, then our courts are duty-bound to
examine whether the branch or instrumentality of the government properly acted within such
limits.101 (Citations omitted)

As stated in Francisco, a political question will not be considered justiciable if there are no
constitutionally imposed limits on powers or functions conferred upon political bodies. Hence, the
existence of constitutionally imposed limits justifies subjecting the official actions of the body to the
scrutiny and review of this court.
In this case, the Bill of Rights gives the utmost deference to the right to free speech. Any instance
that this right may be abridged demands judicial scrutiny. It does not fall squarely into any doubt that
a political question brings.

I.E

Exhaustion of administrative remedies

Respondents allege that petitioners violated the principle of exhaustion of administrative remedies.
Respondents insist that petitioners should have first brought the matter to the COMELEC En Banc or
any of its divisions.102

Respondents point out that petitioners failed to comply with the requirement in Rule 65 that "there is
no appeal, or any plain, speedy, and adequate remedy in the ordinary course of law."103 They add
that the proper venue to assail the validity of the assailed issuances was in the course of an
administrative hearing to be conducted by COMELEC.104 In the event that an election offense is filed
against petitioners for posting the tarpaulin, they claim that petitioners should resort to the remedies
prescribed in Rule 34 of the COMELEC Rules of Procedure.105

The argument on exhaustion of administrative remedies is not proper in this case.

Despite the alleged non-exhaustion of administrative remedies, it is clear that the controversy is
already ripe for adjudication. Ripeness is the "prerequisite that something had by then been
accomplished or performed by either branch [or in this case, organ of government] before a court
may come into the picture."106

Petitioners’ exercise of their rightto speech, given the message and their medium, had
understandable relevance especially during the elections. COMELEC’s letter threatening the filing of
the election offense against petitioners is already an actionable infringement of this right. The
impending threat of criminal litigation is enough to curtail petitioners’ speech.

In the context of this case, exhaustion of their administrative remedies as COMELEC suggested in
their pleadings prolongs the violation of their freedom of speech.

Political speech enjoys preferred protection within our constitutional order. In Chavez v.
Gonzales,107 Justice Carpio in a separate opinion emphasized: "[i]f everthere is a hierarchy of
protected expressions, political expression would occupy the highest rank, and among different
kinds of political expression, the subject of fair and honest elections would be at the
top."108 Sovereignty resides in the people.109 Political speech is a direct exercise of the sovereignty.
The principle of exhaustion of administrative remedies yields in order to protect this fundamental
right.

Even assuming that the principle of exhaustion of administrative remedies is applicable, the current
controversy is within the exceptions to the principle. In Chua v. Ang,110 this court held:

On the other hand, prior exhaustion of administrative remedies may be dispensed with and judicial
action may be validly resorted to immediately: (a) when there is a violation of due process; (b) when
the issue involved is purely a legal question; (c) when the administrative action is patently illegal
amounting to lack or excess of jurisdiction; (d) when there is estoppel on the part ofthe
administrative agency concerned; (e) when there is irreparable injury; (f) when the respondent is a
department secretary whose acts as analter ego of the President bear the implied and assumed
approval of the latter; (g) when to require exhaustion of administrative remedies would be
unreasonable; (h) when it would amount to a nullification of a claim; (i) when the subject matter is a
private land in land case proceedings; (j) whenthe rule does not provide a plain, speedy and
adequate remedy; or (k) when there are circumstances indicating the urgency of judicial
intervention."111 (Emphasis supplied, citation omitted)

The circumstances emphasized are squarely applicable with the present case. First, petitioners
allegethat the assailed issuances violated their right to freedom of expression and the principle of
separation of church and state. This is a purely legal question. Second, the circumstances of the
present case indicate the urgency of judicial intervention considering the issue then on the RH Law
as well as the upcoming elections. Thus, to require the exhaustion of administrative remedies in this
case would be unreasonable.

Time and again, we have held that this court "has the power to relax or suspend the rules or to
except a case from their operation when compelling reasons so warrant, or whenthe purpose of
justice requires it, [and when] [w]hat constitutes [as] good and sufficient cause that will merit
suspension of the rules is discretionary upon the court".112Certainly, this case of first impression
where COMELEC has threatenedto prosecute private parties who seek to participate in the elections
by calling attention to issues they want debated by the publicin the manner they feel would be
effective is one of those cases.

II
SUBSTANTIVE ISSUES

II.A

COMELEC had no legal basis to regulate expressions made by private citizens

Respondents cite the Constitution, laws, and jurisprudence to support their position that they had the
power to regulate the tarpaulin.113 However, all of these provisions pertain to candidates and political
parties. Petitioners are not candidates. Neither do theybelong to any political party. COMELEC does
not have the authority to regulate the enjoyment of the preferred right to freedom of expression
exercised by a non-candidate in this case.

II.A.1

First, respondents cite Article IX-C, Section 4 of the Constitution, which provides:

Section 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 therefor, for
public information campaigns and forums among candidates in connection with the objective of
holding free, orderly, honest, peaceful, and credible elections.114 (Emphasis supplied)

Sanidad v. COMELEC115 involved the rules promulgated by COMELEC during the plebiscite for the
creation of the Cordillera Autonomous Region.116 Columnist Pablito V. Sanidad questioned the
provision prohibiting journalists from covering plebiscite issues on the day before and on plebiscite
day.117 Sanidad argued that the prohibition was a violation of the "constitutional guarantees of the
freedom of expression and of the press. . . ."118 We held that the "evil sought to be prevented by this
provision is the possibility that a franchise holder may favor or give any undue advantage to a
candidate in terms of advertising space or radio or television time."119 This court found that "[m]edia
practitioners exercising their freedom of expression during plebiscite periods are neither the
franchise holders nor the candidates[,]"120 thus, their right to expression during this period may not be
regulated by COMELEC.121

Similar to the media, petitioners in the case at bar are neither franchise holders nor candidates.
II.A.2

Respondents likewise cite Article IX-C, Section 2(7) of the Constitution as follows:122

Sec. 2. The Commission on Elections shall exercise the following powers and functions:

....

(7) Recommend to the Congress effective measures to minimize election spending, including
limitation of places where propaganda materials shall be posted, and to prevent and penalize all
forms of election frauds, offenses, malpractices, and nuisance candidates. (Emphasis supplied)
Based on the enumeration made on actsthat may be penalized, it will be inferred that this provision
only affects candidates.

Petitioners assail the "Notice to Remove Campaign Materials" issued by COMELEC. This was
followed bythe assailed letter regarding the "election propaganda material posted on the church
vicinity promoting for or against the candidates and party-list groups. . . ."123

Section 9 of the Fair Election Act124 on the posting of campaign materials only mentions "parties" and
"candidates":

Sec. 9. Posting of Campaign Materials. - The COMELEC may authorize political parties and party-
list groups to erect common poster areas for their candidates in not more than ten (10) public places
such as plazas, markets, barangay centers and the like, wherein candidates can post, display or
exhibit election propaganda: Provided, That the size ofthe poster areas shall not exceed twelve (12)
by sixteen (16) feet or its equivalent. Independent candidates with no political parties may likewise
be authorized to erect common poster areas in not more than ten (10) public places, the size of
which shall not exceed four (4) by six (6) feet or its equivalent. Candidates may post any lawful
propaganda material in private places with the consent of the owner thereof, and in public places or
property which shall be allocated equitably and impartially among the candidates. (Emphasis
supplied)

Similarly, Section 17 of COMELEC Resolution No. 9615, the rules and regulations implementing the
Fair Election Act, provides as follows:

SECTION 17. Posting of Campaign Materials. - Parties and candidates may post any lawful
campaign material in:

a. Authorized common poster areasin public places subject to the requirements and/or
limitations set forth in the next following section; and

b. Private places provided it has the consent of the owner thereof.

The posting of campaign materials in public places outside of the designated common poster areas
and those enumerated under Section 7 (g) of these Rules and the like is prohibited. Persons posting
the same shall be liable together with the candidates and other persons who caused the posting. It
will be presumed that the candidates and parties caused the posting of campaign materials outside
the common poster areas if they do not remove the same within three (3) days from notice which
shall be issued by the Election Officer of the city or municipality where the unlawful election
propaganda are posted or displayed.

Members of the PNP and other law enforcement agencies called upon by the Election Officeror
other officials of the COMELEC shall apprehend the violators caught in the act, and file the
appropriate charges against them. (Emphasis supplied)

Respondents considered the tarpaulin as a campaign material in their issuances. The above
provisions regulating the posting of campaign materials only apply to candidates and political parties,
and petitioners are neither of the two.

Section 3 of Republic Act No. 9006on "Lawful Election Propaganda" also states that these are
"allowed for all registered political parties, national, regional, sectoral parties or organizations
participating under the party-list elections and for all bona fide candidates seeking national and local
elective positions subject to the limitation on authorized expenses of candidates and political parties.
. . ." Section 6 of COMELEC Resolution No. 9615 provides for a similar wording. These provisions
show that election propaganda refers to matter done by or on behalf of and in coordination with
candidates and political parties. Some level of coordination with the candidates and political parties
for whom the election propaganda are released would ensure that these candidates and political
parties maintain within the authorized expenses limitation.

The tarpaulin was not paid for byany candidate or political party.125 There was no allegation that
petitioners coordinated with any of the persons named in the tarpaulin regarding its posting. On the
other hand, petitioners posted the tarpaulin as part of their advocacy against the RH Law.
Respondents also cite National Press Club v. COMELEC126 in arguing that its regulatory power under
the Constitution, to some extent, set a limit on the right to free speech during election period.127

National Press Club involved the prohibition on the sale and donation of space and time for political
advertisements, limiting political advertisements to COMELEC-designated space and time. This
case was brought by representatives of mass media and two candidates for office in the 1992
elections. They argued that the prohibition on the sale and donation of space and time for political
advertisements is tantamount to censorship, which necessarily infringes on the freedom of speech of
the candidates.128

This court upheld the constitutionality of the COMELEC prohibition in National Press Club. However,
this case does not apply as most of the petitioners were electoral candidates, unlike petitioners in
the instant case. Moreover, the subject matter of National Press Club, Section 11(b) of Republic Act
No. 6646,129 only refers to a particular kind of media such as newspapers, radio broadcasting, or
television.130 Justice Feliciano emphasized that the provision did not infringe upon the right of
reporters or broadcasters to air their commentaries and opinions regarding the candidates, their
qualifications, and program for government. Compared to Sanidadwherein the columnists lost their
ability to give their commentary on the issues involving the plebiscite, National Press Clubdoes not
involve the same infringement.

In the case at bar, petitioners lost their ability to give a commentary on the candidates for the 2013
national elections because of the COMELEC notice and letter. It was not merelya regulation on the
campaigns of candidates vying for public office. Thus, National Press Clubdoes not apply to this
case.
Finally, Section 79 of Batas Pambansa Blg. 881, otherwise known as the Omnibus Election Code,
defines an"election campaign" as follows:

....

(b) The term "election campaign" or "partisan political activity" refers to an act designed to promote
the election or defeat of a particular candidate or candidates to a public office which shall include:

(1) Forming organizations, associations, clubs, committees or other groups of persons for the
purpose of soliciting votes and/or undertaking any campaign for or against a candidate;

(2) Holding political caucuses, conferences, meetings, rallies, parades, or other similar
assemblies, for the purpose of soliciting votes and/or undertaking any campaign or
propaganda for or against a candidate;

(3) Making speeches, announcements or commentaries, or holding interviews for or against

the election of any candidate for public office;

(4) Publishing or distributing campaign literature or materials designed to support or oppose

the election of any candidate; or

(5) Directly or indirectly soliciting votes, pledges or support for or against a candidate.

The foregoing enumerated acts ifperformed for the purpose of enhancing the chances of aspirants
for nomination for candidacy to a public office by a political party, aggroupment, or coalition of
parties shall not be considered as election campaign or partisan election activity. Public expressions
or opinions or discussions of probable issues in a forthcoming electionor on attributes of or criticisms
against probable candidates proposed to be nominated in a forthcoming political party convention
shall not be construed as part of any election campaign or partisan political activity contemplated
under this Article. (Emphasis supplied)

True, there is no mention whether election campaign is limited only to the candidates and political
parties themselves. The focus of the definition is that the act must be "designed to promote the
election or defeat of a particular candidate or candidates to a public office."

In this case, the tarpaulin contains speech on a matter of public concern, that is, a statement of
either appreciation or criticism on votes made in the passing of the RH law. Thus, petitioners invoke
their right to freedom of expression.

II.B

The violation of the constitutional right

to freedom of speech and expression

Petitioners contend that the assailed notice and letter for the removal of the tarpaulin violate their
fundamental right to freedom of expression.

On the other hand, respondents contend that the tarpaulin is an election propaganda subject to their
regulation pursuant to their mandate under Article IX-C, Section 4 of the Constitution. Thus, the
assailed notice and letter ordering itsremoval for being oversized are valid and constitutional.131

II.B.1

Fundamental to the consideration of this issue is Article III, Section 4 of the Constitution:

Section 4. No law shall be passed abridging the freedom of speech, of expression, or of the press, or
the right of the people peaceably to assemble and petition the government for redress of
grievances.132

No law. . .

While it is true that the present petition assails not a law but an opinion by the COMELEC Law
Department, this court has applied Article III, Section 4 of the Constitution even to governmental
acts.

In Primicias v. Fugoso,133 respondent Mayor applied by analogy Section 1119 of the Revised
Ordinances of 1927 of Manila for the public meeting and assembly organized by petitioner
Primicias.134 Section 1119 requires a Mayor’s permit for the use of streets and public places for
purposes such as athletic games, sports, or celebration of national holidays.135 What was questioned
was not a law but the Mayor’s refusal to issue a permit for the holding of petitioner’s public
meeting.136 Nevertheless, this court recognized the constitutional right to freedom of speech, to
peaceful assembly and to petition for redress of grievances, albeit not absolute,137 and the petition for
mandamus to compel respondent Mayor to issue the permit was granted.138

In ABS-CBN v. COMELEC, what was assailed was not a law but COMELEC En Banc Resolution
No. 98-1419 where the COMELEC resolved to approve the issuance of a restraining order to stop
ABS-CBN from conducting exit surveys.139 The right to freedom of expression was similarly upheld in
this case and, consequently, the assailed resolution was nullified and set aside.140

. . . shall be passed abridging. . .

All regulations will have an impact directly or indirectly on expression. The prohibition against the
abridgment of speech should not mean an absolute prohibition against regulation. The primary and
incidental burden on speech must be weighed against a compelling state interest clearly allowed in
the Constitution. The test depends on the relevant theory of speech implicit in the kind of society
framed by our Constitution.

. . . of expression. . .

Our Constitution has also explicitly included the freedom of expression, separate and in addition to
the freedom of speech and of the press provided in the US Constitution. The word "expression" was
added in the 1987 Constitution by Commissioner Brocka for having a wider scope:

MR. BROCKA: This is a very minor amendment, Mr. Presiding Officer. On Section 9, page 2, line 29,
it says: "No law shall be passed abridging the freedom of speech." I would like to recommend to the
Committee the change of the word "speech" to EXPRESSION; or if not, add the words AND
EXPRESSION after the word "speech," because it is more expansive, it has a wider scope, and it
would refer to means of expression other than speech.

THE PRESIDING OFFICER (Mr.Bengzon): What does the Committee say?

FR. BERNAS: "Expression" is more broad than speech. We accept it.

MR. BROCKA: Thank you.

THE PRESIDING OFFICER (Mr.Bengzon): Is it accepted?

FR. BERNAS: Yes.

THE PRESIDING OFFICER (Mr.Bengzon): Is there any objection? (Silence) The Chair hears none;
the amendment is approved.

FR. BERNAS: So, that provision will now read: "No law shall be passed abridging the freedom of
speech, expression or of the press . . . ."141 Speech may be said to be inextricably linked to freedom
itself as "[t]he right to think is the beginning of freedom, and speech must be protected from the
government because speech is the beginning of thought."142

II.B.2

Communication is an essential outcome of protected speech.143 Communication exists when "(1) a

speaker, seeking to signal others, uses conventional actions because he orshe reasonably believes
that such actions will be taken by the audience in the manner intended; and (2) the audience so
takes the actions."144 "[I]n communicative action[,] the hearer may respond to the claims by . . . either
accepting the speech act’s claims or opposing them with criticism or requests for justification."145

Speech is not limited to vocal communication. "[C]onduct is treated as a form of speech sometimes
referred to as ‘symbolic speech[,]’"146 such that "‘when ‘speech’ and ‘nonspeech’ elements are
combined in the same course of conduct,’ the ‘communicative element’ of the conduct may be
‘sufficient to bring into play the [right to freedom of expression].’"147

The right to freedom of expression, thus, applies to the entire continuum of speech from utterances
made to conduct enacted, and even to inaction itself as a symbolic manner of communication.

In Ebralinag v. The Division Superintendent of Schools of Cebu,148 students who were members of
the religious sect Jehovah’s Witnesses were to be expelled from school for refusing to salute the
flag, sing the national anthem, and recite the patriotic pledge.149 In his concurring opinion, Justice
Cruz discussed how the salute is a symbolic manner of communication and a valid form of
expression.150 He adds that freedom of speech includes even the right to be silent:

Freedom of speech includes the right to be silent. Aptly has it been said that the Bill of Rights that
guarantees to the individual the liberty to utter what is in his mind also guarantees to him the liberty
not to utter what is not in his mind. The salute is a symbolic manner of communication that conveys
its messageas clearly as the written or spoken word. As a valid form of expression, it cannot be
compelled any more than it can be prohibited in the face of valid religious objections like those
raised in this petition. To impose it on the petitioners is to deny them the right not to speak when
their religion bids them to be silent. This coercion of conscience has no place in the free society.

The democratic system provides for the accommodation of diverse ideas, including the
unconventional and even the bizarre or eccentric. The will of the majority prevails, but it cannot
regiment thought by prescribing the recitation by rote of its opinions or proscribing the assertion of
unorthodox or unpopular views as inthis case. The conscientious objections of the petitioners, no
less than the impatience of those who disagree with them, are protected by the Constitution. The
State cannot make the individual speak when the soul within rebels.151

Even before freedom "of expression" was included in Article III, Section 4 of the present
Constitution,this court has applied its precedent version to expressions other than verbal utterances.

In the 1985 case of Gonzalez v. Chairman Katigbak,152 petitioners objected to the classification of the
motion picture "Kapit sa Patalim" as "For Adults Only." They contend that the classification "is
without legal and factual basis and is exercised as impermissible restraint of artistic
expression."153 This court recognized that "[m]otion pictures are important both as a medium for the
communication of ideas and the expression of the artistic impulse."154 It adds that "every writer,actor,
or producer, no matter what medium of expression he may use, should be freed from the
censor."155 This court found that "[the Board’s] perception of what constitutes obscenity appears to be
unduly restrictive."156 However, the petition was dismissed solely on the ground that there were not
enough votes for a ruling of grave abuse of discretion in the classification made by the Board.157

II.B.3

Size does matter

The form of expression is just as important as the information conveyed that it forms part of the
expression. The present case is in point.

It is easy to discern why size matters.

First, it enhances efficiency in communication. A larger tarpaulin allows larger fonts which make it
easier to view its messages from greater distances. Furthermore, a larger tarpaulin makes it easier
for passengers inside moving vehicles to read its content. Compared with the pedestrians, the
passengers inside moving vehicles have lesser time to view the content of a tarpaulin. The larger the
fonts and images, the greater the probability that it will catch their attention and, thus, the greater the
possibility that they will understand its message.

Second, the size of the tarpaulin may underscore the importance of the message to the reader.
From an ordinary person’s perspective, those who post their messages in larger fonts care more
about their message than those who carry their messages in smaller media. The perceived
importance given by the speakers, in this case petitioners, to their cause is also part of the message.
The effectivity of communication sometimes relies on the emphasis put by the speakers and onthe
credibility of the speakers themselves. Certainly, larger segments of the public may tend to be more
convinced of the point made by authoritative figures when they make the effort to emphasize their
messages.

Third, larger spaces allow for more messages. Larger spaces, therefore, may translate to more
opportunities to amplify, explain, and argue points which the speakers might want to communicate.
Rather than simply placing the names and images of political candidates and an expression of
support, larger spaces can allow for brief but memorable presentations of the candidates’ platforms
for governance. Larger spaces allow for more precise inceptions of ideas, catalyze reactions to
advocacies, and contribute more to a more educated and reasoned electorate. A more educated
electorate will increase the possibilities of both good governance and accountability in our
government.

These points become more salient when it is the electorate, not the candidates or the political
parties, that speaks. Too often, the terms of public discussion during elections are framed and kept
hostage by brief and catchy but meaningless sound bites extolling the character of the candidate.
Worse, elections sideline political arguments and privilege the endorsement by celebrities. Rather
than provide obstacles to their speech, government should in fact encourage it. Between the
candidates and the electorate, the latter have the better incentive to demand discussion of the more
important issues. Between the candidates and the electorate, the former have better incentives to
avoid difficult political standpoints and instead focus on appearances and empty promises.

Large tarpaulins, therefore, are not analogous to time and place.158 They are fundamentally part of
expression protected under Article III, Section 4 of the Constitution.

II.B.4

There are several theories and schools of thought that strengthen the need to protect the basic right
to freedom of expression.

First, this relates to the right ofthe people to participate in public affairs, including the right to criticize
government actions.

Proponents of the political theory on "deliberative democracy" submit that "substantial, open, [and]
ethical dialogue isa critical, and indeed defining, feature of a good polity."159 This theory may be
considered broad, but it definitely "includes [a] collective decision making with the participation of all
who will beaffected by the decision."160 It anchors on the principle that the cornerstone of every
democracy is that sovereignty resides in the people.161 To ensure order in running the state’s affairs,
sovereign powers were delegated and individuals would be elected or nominated in key government
positions to represent the people. On this note, the theory on deliberative democracy may evolve to
the right of the people to make government accountable. Necessarily, this includes the right of the
people to criticize acts made pursuant to governmental functions.

Speech that promotes dialogue on publicaffairs, or airs out grievances and political discontent,
should thus be protected and encouraged.

Borrowing the words of Justice Brandeis, "it is hazardous to discourage thought, hope and
imagination; that fear breeds repression; that repression breeds hate; that hate menaces stable
government; that the path of safety lies in the opportunity to discuss freely supposed grievances and
proposed remedies."162

In this jurisdiction, this court held that "[t]he interest of society and the maintenance of good
government demand a full discussion of public affairs."163 This court has, thus, adopted the principle
that "debate on public issues should be uninhibited, robust,and wide open . . . [including even]
unpleasantly sharp attacks on government and public officials."164

Second, free speech should be encouraged under the concept of a market place of ideas. This
theory was articulated by Justice Holmes in that "the ultimate good desired is better reached by [the]
free trade in ideas:"165

When men have realized that time has upset many fighting faiths, they may come to believe even
more than they believe the very foundations of their own conduct that the ultimate good desired is
better reached by free trade in ideas - that the best test of truth is the power of the thought to get
itself accepted in the competition of the market, and that truth is the only ground upon which their
wishes safely can be carried out.166

The way it works, the exposure to the ideas of others allows one to "consider, test, and develop their
own conclusions."167 A free, open, and dynamic market place of ideas is constantly shaping new
ones. This promotes both stability and change where recurring points may crystallize and weak ones
may develop. Of course, free speech is more than the right to approve existing political beliefs and
economic arrangements as it includes, "[t]o paraphrase Justice Holmes, [the] freedom for the
thought that we hate, no less than for the thought that agrees with us."168 In fact, free speech may
"best serve its high purpose when it induces a condition of unrest, creates dissatisfaction with
conditions as they are, or even stirs people to anger."169 It is in this context that we should guard
against any curtailment of the people’s right to participate in the free trade of ideas.

Third, free speech involves self-expression that enhances human dignity. This right is "a means of
assuring individual self-fulfillment,"170 among others. In Philippine Blooming Mills Employees
Organization v. Philippine Blooming Mills Co., Inc,171 this court discussed as follows:

The rights of free expression, free assembly and petition, are not only civil rights but also political
rights essential to man's enjoyment of his life, to his happiness and to his full and complete
fulfillment.Thru these freedoms the citizens can participate not merely in the periodic establishment
of the government through their suffrage but also in the administration of public affairs as well as in
the discipline of abusive public officers. The citizen is accorded these rights so that he can appeal to
the appropriate governmental officers or agencies for redress and protection as well as for the
imposition of the lawful sanctions on erring public officers and employees.172 (Emphasis supplied)

Fourth, expression is a marker for group identity. For one, "[v]oluntary associations perform [an]
important democratic role [in providing] forums for the development of civil skills, for deliberation,
and for the formation of identity and community spirit[,] [and] are largely immune from [any]
governmental interference."173 They also "provide a buffer between individuals and the state - a free
space for the development of individual personality, distinct group identity, and dissident ideas - and
a potential source of opposition to the state."174 Free speech must be protected as the vehicle to find
those who have similar and shared values and ideals, to join together and forward common goals.

Fifth, the Bill of Rights, free speech included, is supposed to "protect individuals and minorities
against majoritarian abuses perpetrated through [the] framework [of democratic
governance]."175 Federalist framers led by James Madison were concerned about two potentially
vulnerable groups: "the citizenry at large - majorities - who might be tyrannized or plundered by
despotic federal officials"176 and the minorities who may be oppressed by "dominant factions of the
electorate [that] capture [the] government for their own selfish ends[.]"177 According to Madison, "[i]t is
of great importance in a republic not only to guard the society against the oppression of its rulers, but
to guard one part of the society against the injustice of the other part."178 We should strive to ensure
that free speech is protected especially in light of any potential oppression against those who find
themselves in the fringes on public issues.

Lastly, free speech must be protected under the safety valve theory.179 This provides that "nonviolent
manifestations of dissent reduce the likelihood of violence[.]"180 "[A] dam about to burst . . . resulting
in the ‘banking up of a menacing flood of sullen anger behind the walls of restriction’"181 has been
used to describe the effect of repressing nonviolent outlets.182 In order to avoid this situation and
prevent people from resorting to violence, there is a need for peaceful methods in making
passionate dissent. This includes "free expression and political participation"183 in that they can "vote
for candidates who share their views, petition their legislatures to [make or] change laws, . . .
distribute literature alerting other citizens of their concerns[,]"184 and conduct peaceful rallies and
other similar acts.185 Free speech must, thus, be protected as a peaceful means of achieving one’s
goal, considering the possibility that repression of nonviolent dissent may spill over to violent means
just to drive a point.

II.B.5

Every citizen’s expression with political consequences enjoys a high degree of protection.
Respondents argue that the tarpaulinis election propaganda, being petitioners’ way of endorsing
candidates who voted against the RH Law and rejecting those who voted for it.186 As such, it is
subject to regulation by COMELEC under its constitutional mandate.187 Election propaganda is
defined under Section 1(4) of COMELEC Resolution No. 9615 as follows: SECTION 1. Definitions . .
.

....

4. The term "political advertisement" or "election propaganda" refers to any matter broadcasted,
published, printed, displayed or exhibited, in any medium, which contain the name, image, logo,
brand, insignia, color motif, initials, and other symbol or graphic representation that is capable of
being associated with a candidate or party, and is intended to draw the attention of the public or a
segment thereof to promote or oppose, directly or indirectly, the election of the said candidate or
candidates to a public office. In broadcast media, political advertisements may take the form of
spots, appearances on TV shows and radio programs, live or taped announcements, teasers, and
other forms of advertising messages or announcements used by commercial advertisers. Political
advertising includes matters, not falling within the scope of personal opinion, that appear on any
Internet website, including, but not limited to, social networks, blogging sites, and micro-blogging
sites, in return for consideration, or otherwise capable of pecuniary estimation.

On the other hand, petitioners invoke their "constitutional right to communicate their opinions, views
and beliefs about issues and candidates."188 They argue that the tarpaulin was their statement of
approval and appreciation of the named public officials’ act of voting against the RH Law, and their
criticism toward those who voted in its favor.189It was "part of their advocacy campaign against the
RH Law,"190 which was not paid for by any candidate or political party.191 Thus, "the questioned orders
which . . . effectively restrain[ed] and curtail[ed] [their] freedom of expression should be declared
unconstitutional and void."192

This court has held free speech and other intellectual freedoms as "highly ranked in our scheme of
constitutional values."193 These rights enjoy precedence and primacy.194 In Philippine Blooming Mills,
this court discussed the preferred position occupied by freedom of expression:
Property and property rights can belost thru prescription; but human rights are imprescriptible. If
human rights are extinguished by the passage of time, then the Bill of Rights is a useless attempt to
limit the power of government and ceases to be an efficacious shield against the tyranny of officials,
of majorities, ofthe influential and powerful, and of oligarchs - political, economic or otherwise.

In the hierarchy of civil liberties, the rights of free expression and of assembly occupy a preferred
position as they are essential to the preservation and vitality of our civil and political institutions; and
such priority "gives these liberties the sanctity and the sanction not permitting dubious
intrusions."195 (Citations omitted)

This primordial right calls for utmost respect, more so "when what may be curtailed is the
dissemination of information to make more meaningful the equally vital right of suffrage."196 A similar
idea appeared in our jurisprudence as early as 1969, which was Justice Barredo’s concurring and
dissenting opinion in Gonzales v. COMELEC:197

I like to reiterate over and over, for it seems this is the fundamental point others miss, that genuine
democracy thrives only where the power and right of the people toelect the men to whom they would
entrust the privilege to run the affairs of the state exist. In the language of the declaration of
principles of our Constitution, "The Philippines is a republican state. Sovereignty resides in the
people and all government authority emanates from them" (Section 1, Article II). Translating this
declaration into actuality, the Philippines is a republic because and solely because the people in it
can be governed only by officials whom they themselves have placed in office by their votes. And in
it is on this cornerstone that I hold it tobe self-evident that when the freedoms of speech, press and
peaceful assembly and redress of grievances are being exercised in relation to suffrage or asa
means to enjoy the inalienable right of the qualified citizen to vote, they are absolute and timeless. If
our democracy and republicanism are to be worthwhile, the conduct of public affairs by our officials
must be allowed to suffer incessant and unabating scrutiny, favorable or unfavorable, everyday and
at all times. Every holder of power in our government must be ready to undergo exposure any
moment of the day or night, from January to December every year, as it is only in this way that he
can rightfully gain the confidence of the people. I have no patience for those who would regard
public dissection of the establishment as an attribute to be indulged by the people only at certain
periods of time. I consider the freedoms of speech, press and peaceful assembly and redress of
grievances, when exercised in the name of suffrage, as the very means by which the right itself to
vote can only be properly enjoyed.It stands to reason therefore, that suffrage itself would be next to
useless if these liberties cannot be untrammelled [sic] whether as to degree or time.198 (Emphasis
supplied)

Not all speech are treated the same. In Chavez v. Gonzales, this court discussed that some types of
speech may be subject to regulation:

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. 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.
Distinctionshave therefore been made in the treatment, analysis, and evaluation ofthe permissible
scope of restrictions on various categories of speech. 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.199 (Citations omitted)

We distinguish between politicaland commercial speech. Political speech refers to speech "both
intended and received as a contribution to public deliberation about some issue,"200 "foster[ing]
informed and civicminded deliberation."201 On the other hand, commercial speech has been defined
as speech that does "no more than propose a commercial transaction."202 The expression resulting
from the content of the tarpaulin is, however, definitely political speech. In Justice Brion’s dissenting
opinion, he discussed that "[t]he content of the tarpaulin, as well as the timing of its posting, makes it
subject of the regulations in RA 9006 and Comelec Resolution No. 9615."203 He adds that "[w]hile
indeed the RH issue, by itself,is not an electoralmatter, the slant that the petitioners gave the issue
converted the non-election issue into a live election one hence, Team Buhay and Team Patay and
the plea to support one and oppose the other."204

While the tarpaulin may influence the success or failure of the named candidates and political
parties, this does not necessarily mean it is election propaganda. The tarpaulin was not paid for or
posted "in return for consideration" by any candidate, political party, or party-list group.

The second paragraph of Section 1(4) of COMELEC Resolution No. 9615, or the rules and
regulations implementing Republic Act No. 9006 as an aid to interpret the law insofar as the facts of
this case requires, states:

4. The term "political advertisement" or "election propaganda" refers to any matter broadcasted,
published, printed, displayed or exhibited, in any medium, which contain the name, image, logo,
brand, insignia, color motif, initials, and other symbol or graphic representation that is capable of
being associated with a candidate or party, and is intended to draw the attention of the public or a
segment thereof to promote or oppose, directly or indirectly, the election of the said candidate or
candidates to a public office. In broadcast media, political advertisements may take the form of
spots, appearances on TV shows and radio programs, live or taped announcements, teasers, and
other forms of advertising messages or announcements used by commercial advertisers. Political
advertising includes matters, not falling within the scope of personal opinion, that appear on any
Internet website, including, but not limited to, social networks, blogging sites, and micro-blogging
sites, in return for consideration, or otherwise capable of pecuniary estimation. (Emphasis supplied)

It is clear that this paragraph suggests that personal opinions are not included, while sponsored
messages are covered.

Thus, the last paragraph of Section 1(1) of COMELEC Resolution No. 9615 states:

SECTION 1. Definitions - As used in this Resolution:

1. The term "election campaign" or "partisan political activity" refers to an act designed to promote
the election or defeat of a particular candidate or candidates to a public office, and shall include any
of the following:

....

Personal opinions, views, and preferences for candidates, contained in blogs shall not be considered
acts of election campaigning or partisan politicalactivity unless expressed by government officials in
the Executive Department, the Legislative Department, the Judiciary, the Constitutional
Commissions, and members of the Civil Service.

In any event, this case does not refer to speech in cyberspace, and its effects and parameters
should be deemed narrowly tailored only in relation to the facts and issues in this case. It also
appears that such wording in COMELEC Resolution No. 9615 does not similarly appear in Republic
Act No. 9006, the law it implements.

We should interpret in this manner because of the value of political speech.

As early as 1918, in United States v. Bustos,205 this court recognized the need for full discussion of
public affairs. We acknowledged that free speech includes the right to criticize the conduct of public
men:

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 official dom. 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.206

Subsequent jurisprudence developed the right to petition the government for redress of grievances,
allowing for criticism, save for some exceptions.207 In the 1951 case of Espuelas v. People,208 this
court noted every citizen’s privilege to criticize his or her government, provided it is "specific and
therefore constructive, reasoned or tempered, and not a contemptuous condemnation of the entire
government set-up."209

The 1927 case of People v. Titular210 involved an alleged violation of the Election Law provision
"penaliz[ing] the anonymous criticism of a candidate by means of posters or circulars."211 This court
explained that it is the poster’s anonymous character that is being penalized.212 The ponente adds
that he would "dislike very muchto see this decision made the vehicle for the suppression of public
opinion."213

In 1983, Reyes v. Bagatsing214 discussed the importance of allowing individuals to vent their views.
According to this court, "[i]ts value may lie in the fact that there may be something worth hearing
from the dissenter [and] [t]hat is to ensurea true ferment of ideas."215

Allowing citizens to air grievances and speak constructive criticisms against their government
contributes to every society’s goal for development. It puts forward matters that may be changed for
the better and ideas that may be deliberated on to attain that purpose. Necessarily, it also makes the
government accountable for acts that violate constitutionally protected rights.

In 1998, Osmeña v. COMELEC found Section 11(b) of Republic Act No. 6646, which prohibits mass
media from selling print space and air time for campaign except to the COMELEC, to be a
democracy-enhancing measure.216This court mentioned how "discussion of public issues and debate
on the qualifications of candidates in an election are essential to the proper functioning of the
government established by our Constitution."217

As pointed out by petitioners, "speech serves one of its greatest public purposes in the context of
elections when the free exercise thereof informs the people what the issues are, and who are
supporting what issues."218 At the heart of democracy is every advocate’s right to make known what
the people need to know,219 while the meaningful exercise of one’s right of suffrage includes the right
of every voter to know what they need to know in order to make their choice.

Thus, in Adiong v. COMELEC,220 this court discussed the importance of debate on public issues, and
the freedom of expression especially in relation to information that ensures the meaningful exercise
of the right of suffrage:

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. 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.221(Emphasis supplied, citations omitted)

Speech with political consequences isat the core of the freedom of expression and must be
protected by this court.

Justice Brion pointed out that freedomof expression "is not the god of rights to which all other rights
and even government protection of state interest must bow."222

The right to freedom of expression isindeed not absolute. Even some forms of protected speech are
still subjectto some restrictions. The degree of restriction may depend on whether the regulation is
content-based or content-neutral.223 Content-based regulations can either be based on the viewpoint
of the speaker or the subject of the expression.

II.B.6

Content-based regulation

COMELEC contends that the order for removal of the tarpaulin is a content-neutral regulation. The
order was made simply because petitioners failed to comply with the maximum size limitation for
lawful election propaganda.224

On the other hand, petitioners argue that the present size regulation is content-based as it applies
only to political speech and not to other forms of speech such as commercial speech.225 "[A]ssuming
arguendo that the size restriction sought to be applied . . . is a mere time, place, and manner
regulation, it’s still unconstitutional for lack of a clear and reasonable nexus with a constitutionally
sanctioned objective."226

The regulation may reasonably be considered as either content-neutral or content-

based.227 Regardless, the disposition of this case will be the same. Generally, compared with other
forms of speech, the proposed speech is content-based.

As pointed out by petitioners, the interpretation of COMELEC contained in the questioned order
applies only to posters and tarpaulins that may affect the elections because they deliver opinions
that shape both their choices. It does not cover, for instance, commercial speech.

Worse, COMELEC does not point to a definite view of what kind of expression of non-candidates will
be adjudged as "election paraphernalia." There are no existing bright lines to categorize speech as
election-related and those that are not. This is especially true when citizens will want to use their
resources to be able to raise public issues that should be tackled by the candidates as what has
happened in this case. COMELEC’s discretion to limit speech in this case is fundamentally
unbridled.

Size limitations during elections hit ata core part of expression. The content of the tarpaulin is not
easily divorced from the size of its medium.

Content-based regulation bears a heavy presumption of invalidity, and this court has used the clear
and present danger rule as measure.228 Thus, in Chavez v. Gonzales:
A content-based regulation, 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 imposedare neither overbroad nor vague.229 (Citations
omitted)

Under this rule, "the evil consequences sought to be prevented must be substantive, ‘extremely
serious and the degree of imminence extremely high.’"230 "Only when the challenged act has
overcome the clear and present danger rule will it pass constitutional muster, with the government
having the burden of overcoming the presumed unconstitutionality."231

Even with the clear and present danger test, respondents failed to justify the regulation. There is no
compelling and substantial state interest endangered by the posting of the tarpaulinas to justify
curtailment of the right of freedom of expression. There is no reason for the state to minimize the
right of non-candidate petitioners to post the tarpaulin in their private property. The size of the
tarpaulin does not affect anyone else’s constitutional rights.

Content-based restraint or censorship refers to restrictions "based on the subject matter of the
utterance or speech."232 In contrast, content-neutral regulation includes controls merely on the
incidents of the speech such as time, place, or manner of the speech.233

This court has attempted to define "content-neutral" restraints starting with the 1948 case of
Primicias v. Fugoso.234The ordinance in this case was construed to grant the Mayor discretion only to
determine the public places that may be used for the procession ormeeting, but not the power to
refuse the issuance of a permit for such procession or meeting.235 This court explained that free
speech and peaceful assembly are "not absolute for it may be so regulated that it shall not
beinjurious to the equal enjoyment of others having equal rights, nor injurious to the rights of the
community or society."236

The earlier case of Calalang v. Williams237 involved the National Traffic Commission resolution that
prohibited the passing of animal-drawn vehicles along certain roads at specific hours.238 This court
similarly discussed police power in that the assailed rules carry outthe legislative policy that "aims to
promote safe transit upon and avoid obstructions on national roads, in the interest and convenience
of the public."239

As early as 1907, United States v. Apurado240 recognized that "more or less disorder will mark the
public assembly of the people to protest against grievances whether real or imaginary, because on
such occasions feeling is always wrought to a high pitch of excitement. . . ."241 It is with this backdrop
that the state is justified in imposing restrictions on incidental matters as time, place, and manner of
the speech.

In the landmark case of Reyes v. Bagatsing, this court summarized the steps that permit applicants
must follow which include informing the licensing authority ahead of time as regards the date, public
place, and time of the assembly.242 This would afford the public official time to inform applicants if
there would be valid objections, provided that the clear and present danger test is the standard used
for his decision and the applicants are given the opportunity to be heard.243 This ruling was practically
codified in Batas Pambansa No. 880, otherwise known as the Public Assembly Act of 1985.

Subsequent jurisprudence have upheld Batas Pambansa No. 880 as a valid content-neutral
regulation. In the 2006 case of Bayan v. Ermita,244 this court discussed how Batas Pambansa No.
880 does not prohibit assemblies but simply regulates their time, place, and manner.245 In 2010, this
court found in Integrated Bar of the Philippines v. Atienza246 that respondent Mayor Atienza
committed grave abuse of discretion when he modified the rally permit by changing the venue from
Mendiola Bridge to Plaza Miranda without first affording petitioners the opportunity to be heard.247

We reiterate that the regulation involved at bar is content-based. The tarpaulin content is not easily
divorced from the size of its medium.

II.B.7

Justice Carpio and Justice Perlas-Bernabe suggest that the provisions imposing a size limit for
tarpaulins are content-neutral regulations as these "restrict the mannerby which speech is relayed
but not the content of what is conveyed."248

If we apply the test for content-neutral regulation, the questioned acts of COMELEC will not pass the
three requirements for evaluating such restraints on freedom of speech.249 "When the speech
restraints take the form of a content-neutral regulation, only a substantial governmental interest is
required for its validity,"250 and it is subject only to the intermediate approach.251
This intermediate approach is based on the test that we have prescribed in several cases.252 A
content-neutral 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 incident restriction on alleged [freedom of speech & expression] is no
greater than is essential to the furtherance of that interest.253

On the first requisite, it is not within the constitutional powers of the COMELEC to regulate the
tarpaulin. As discussed earlier, this is protected speech by petitioners who are non-candidates. On
the second requirement, not only must the governmental interest be important or substantial, it must
also be compelling as to justify the restrictions made.

Compelling governmental interest would include constitutionally declared principles. We have held,
for example, that "the welfare of children and the State’s mandate to protect and care for them, as
parens patriae,254 constitute a substantial and compelling government interest in regulating . . .
utterances in TV broadcast."255

Respondent invokes its constitutional mandate to ensure equal opportunity for public information
campaigns among candidates in connection with the holding of a free, orderly, honest, peaceful, and
credible election.256

Justice Brion in his dissenting opinion discussed that "[s]ize limits to posters are necessary to ensure
equality of public information campaigns among candidates, as allowing posters with different sizes
gives candidates and their supporters the incentive to post larger posters[,] [and] [t]his places
candidates with more money and/or with deep-pocket supporters at an undue advantage against
candidates with more humble financial capabilities."257

First, Adiong v. COMELEC has held that this interest is "not as important as the right of [a private
citizen] to freely express his choice and exercise his right of free speech."258 In any case, faced with
both rights to freedom of speech and equality, a prudent course would be to "try to resolve the
tension in a way that protects the right of participation."259

Second, the pertinent election lawsrelated to private property only require that the private property
owner’s consent be obtained when posting election propaganda in the property.260 This is consistent
with the fundamental right against deprivation of property without due process of law.261 The present
facts do not involve such posting of election propaganda absent consent from the property owner.
Thus, this regulation does not apply in this case.

Respondents likewise cite the Constitution262 on their authority to recommend effective measures to
minimize election spending. Specifically, Article IX-C, Section 2(7) provides:

Sec. 2. The Commission on Elections shall exercise the following powers and functions:

....

(7) Recommend to the Congress effective measures to minimize election spending, including
limitation of places where propaganda materials shall be posted, and to prevent and penalize all
forms of election frauds, offenses, malpractices, and nuisance candidates. (Emphasis supplied) This
does not qualify as a compelling and substantial government interest to justify regulation of the
preferred right to freedom of expression.

The assailed issuances for the removal of the tarpaulin are based on the two feet (2’) by three feet
(3’) size limitation under Section 6(c) of COMELEC Resolution No. 9615. This resolution implements
the Fair Election Act that provides for the same size limitation.263

This court held in Adiong v. COMELEC that "[c]ompared to the paramount interest of the State in
guaranteeing freedom of expression, any financial considerations behind the regulation are of
marginal significance."264 In fact, speech with political consequences, as in this case, should be
encouraged and not curtailed. As petitioners pointed out, the size limitation will not serve the
objective of minimizing election spending considering there is no limit on the number of tarpaulins
that may be posted.265

The third requisite is likewise lacking. We look not only at the legislative intent or motive in imposing
the restriction, but more so at the effects of such restriction, if implemented. The restriction must not
be narrowly tailored to achieve the purpose. It must be demonstrable. It must allow alternative
avenues for the actor to make speech.
In this case, the size regulation is not unrelated to the suppression of speech. Limiting the maximum
sizeof the tarpaulin would render ineffective petitioners’ message and violate their right to exercise
freedom of expression.

The COMELEC’s act of requiring the removal of the tarpaulin has the effect of dissuading
expressions with political consequences. These should be encouraged, more so when exercised to
make more meaningful the equally important right to suffrage.

The restriction in the present case does not pass even the lower test of intermediate scrutiny for
content-neutral regulations.

The action of the COMELEC in thiscase is a strong deterrent to further speech by the electorate.
Given the stature of petitioners and their message, there are indicators that this will cause a "chilling
effect" on robust discussion during elections.

The form of expression is just as important as the message itself. In the words of Marshall McLuhan,
"the medium is the message."266 McLuhan’s colleague and mentor Harold Innis has earlier asserted
that "the materials on which words were written down have often counted for more than the words
themselves."267

III
Freedom of expression and equality

III.A

The possibility of abuse

Of course, candidates and political parties do solicit the help of private individuals for the
endorsement of their electoral campaigns.

On the one extreme, this can take illicit forms such as when endorsement materials in the form of
tarpaulins, posters, or media advertisements are made ostensibly by "friends" but in reality are really
paid for by the candidate or political party. This skirts the constitutional value that provides for equal
opportunities for all candidates.

However, as agreed by the parties during the oral arguments in this case, this is not the situation
that confronts us. In such cases, it will simply be a matter for investigation and proof of fraud on the
part of the COMELEC.

The guarantee of freedom of expression to individuals without any relationship to any political
candidate should not be held hostage by the possibility of abuse by those seeking to be elected. It is
true that there can be underhanded, covert, or illicit dealings so as to hide the candidate’s real levels
of expenditures. However, labelling all expressions of private parties that tend to have an effect on
the debate in the elections as election paraphernalia would be too broad a remedy that can stifle
genuine speech like in this case. Instead, to address this evil, better and more effective enforcement
will be the least restrictive means to the fundamental freedom.

On the other extreme, moved by the credentials and the message of a candidate, others will spend
their own resources in order to lend support for the campaigns. This may be without agreement
between the speaker and the candidate or his or her political party. In lieu of donating funds to the
campaign, they will instead use their resources directly in a way that the candidate or political party
would have doneso. This may effectively skirt the constitutional and statutory limits of campaign
spending.

Again, this is not the situation in this case.

The message of petitioners in thiscase will certainly not be what candidates and political parties will
carry in their election posters or media ads. The message of petitioner, taken as a whole, is an
advocacy of a social issue that it deeply believes. Through rhetorical devices, it communicates the
desire of Diocese that the positions of those who run for a political position on this social issue be
determinative of how the public will vote. It primarily advocates a stand on a social issue; only
secondarily — even almost incidentally — will cause the election or non-election of a candidate.

The twin tarpaulins consist of satire of political parties. Satire is a "literary form that employs such
devices as sarcasm, irony and ridicule to deride prevailing vices or follies,"268 and this may target any
individual or group in society, private and government alike. It seeks to effectively communicate a
greater purpose, often used for "political and social criticism"269 "because it tears down facades,
deflates stuffed shirts, and unmasks hypocrisy. . . . Nothing is more thoroughly democratic than to
have the high-and-mighty lampooned and spoofed."270 Northrop Frye, wellknown in this literary field,
claimed that satire had two defining features: "one is wit or humor founded on fantasy or a sense of
the grotesque and absurd, the other is an object of attack."271 Thus, satire frequently uses
exaggeration, analogy, and other rhetorical devices.

The tarpaulins exaggerate. Surely, "Team Patay" does not refer to a list of dead individuals nor could
the Archbishop of the Diocese of Bacolod have intended it to mean that the entire plan of the
candidates in his list was to cause death intentionally. The tarpaulin caricatures political parties and
parodies the intention of those in the list. Furthermore, the list of "Team Patay" is juxtaposed with the
list of "Team Buhay" that further emphasizes the theme of its author: Reproductive health is an
important marker for the church of petitioners to endorse.

The messages in the tarpaulins are different from the usual messages of candidates. Election
paraphernalia from candidates and political parties are more declarative and descriptive and contain
no sophisticated literary allusion to any social objective. Thus, they usually simply exhort the public
to vote for a person with a brief description of the attributes of the candidate. For example "Vote for
[x], Sipag at Tiyaga," "Vote for [y], Mr. Palengke," or "Vote for [z], Iba kami sa Makati."

This court’s construction of the guarantee of freedom of expression has always been wary of
censorship or subsequent punishment that entails evaluation of the speaker’s viewpoint or the
content of one’s speech. This is especially true when the expression involved has political
consequences. In this case, it hopes to affect the type of deliberation that happens during elections.
A becoming humility on the part of any human institution no matter how endowed with the secular
ability to decide legal controversies with finality entails that we are not the keepers of all wisdom.

Humanity’s lack of omniscience, even acting collectively, provides space for the weakest dissent.
Tolerance has always been a libertarian virtue whose version is embedded in our Billof Rights.
There are occasional heretics of yesterday that have become our visionaries. Heterodoxies have
always given us pause. The unforgiving but insistent nuance that the majority surely and comfortably
disregards provides us with the checks upon reality that may soon evolve into creative solutions to
grave social problems. This is the utilitarian version. It could also be that it is just part of human
necessity to evolve through being able to express or communicate.

However, the Constitution we interpret is not a theoretical document. It contains other provisions
which, taken together with the guarantee of free expression, enhances each other’s value. Among
these are the provisions that acknowledge the idea of equality. In shaping doctrine construing these
constitutional values, this court needs to exercise extraordinary prudence and produce narrowly
tailored guidance fit to the facts as given so as not to unwittingly cause the undesired effect of
diluting freedoms as exercised in reality and, thus, render them meaningless.

III.B.

Speech and equality:

Some considerations We first establish that there are two paradigms of free speech that separate at
the point of giving priority to equality vis-à-vis liberty.272

In an equality-based approach, "politically disadvantaged speech prevails over regulation[,] but

regulation promoting political equality prevails over speech."273 This view allows the government
leeway to redistribute or equalize ‘speaking power,’ such as protecting, even implicitly subsidizing,
unpopular or dissenting voices often systematically subdued within society’s ideological
ladder.274 This view acknowledges that there are dominant political actors who, through authority,
power, resources, identity, or status, have capabilities that may drown out the messages of others.
This is especially true in a developing or emerging economy that is part of the majoritarian world like
ours.

The question of libertarian tolerance

This balance between equality and the ability to express so as to find one’s authentic self or to
participate in the self determination of one’s communities is not new only to law. It has always been
a philosophical problematique.

In his seminal work, Repressive Tolerance, philosopher and social theorist Herbert Marcuse
recognized how institutionalized inequality exists as a background limitation, rendering freedoms
exercised within such limitation as merely "protect[ing] the already established machinery of
discrimination."275 In his view, any improvement "in the normal course of events" within an unequal
society, without subversion, only strengthens existing interests of those in power and control.276
In other words, abstract guarantees of fundamental rights like freedom of expression may become
meaningless if not taken in a real context. This tendency to tackle rights in the abstract compromises
liberties. In his words:

Liberty is self-determination, autonomy—this is almost a tautology, but a tautology which results

from a whole series of synthetic judgments. It stipulates the ability to determine one’s own life: to be
able to determine what to do and what not to do, what to suffer and what not. But the subject of this
autonomy is never the contingent, private individual as that which he actually is or happens to be; it
is rather the individual as a human being who is capable of being free with the others. And the
problem of making possible such a harmony between every individual liberty and the other is not that
of finding a compromise between competitors, or between freedom and law, between general and
individual interest, common and private welfare in an established society, but of creating the society
in which man is no longer enslaved by institutions which vitiate self-determination from the
beginning. In other words, freedom is still to be created even for the freest of the existing
societies.277 (Emphasis in the original)

Marcuse suggests that the democratic argument — with all opinions presented to and deliberated by
the people — "implies a necessary condition, namely, that the people must be capable of
deliberating and choosing on the basis of knowledge, that they must have access to authentic
information, and that, on this basis, their evaluation must be the result of autonomous thought."278 He
submits that "[d]ifferent opinions and ‘philosophies’ can no longer compete peacefully for adherence
and persuasion on rational grounds: the ‘marketplace of ideas’ is organized and delimited by those
who determine the national and the individual interest."279 A slant toward left manifests from his belief
that "there is a ‘natural right’ of resistance for oppressed and overpowered minorities to use
extralegal means if the legal ones have proved to be inadequate."280 Marcuse, thus, stands for an
equality that breaks away and transcends from established hierarchies, power structures, and
indoctrinations. The tolerance of libertarian society he refers to as "repressive tolerance."

Legal scholars

The 20th century also bears witness to strong support from legal scholars for "stringent protections
of expressive liberty,"281 especially by political egalitarians. Considerations such as "expressive,
deliberative, and informational interests,"282 costs or the price of expression, and background facts,
when taken together, produce bases for a system of stringent protections for expressive liberties.283

Many legal scholars discuss the interest and value of expressive liberties. Justice Brandeis proposed
that "public discussion is a political duty."284 Cass Sustein placed political speech on the upper tier of
his twotier model for freedom of expression, thus, warranting stringent protection.285 He defined
political speech as "both intended and received as a contribution to public deliberation about some
issue."286

But this is usually related also tofair access to opportunities for such liberties.287 Fair access to
opportunity is suggested to mean substantive equality and not mere formal equalitysince "favorable
conditions for realizing the expressive interest will include some assurance of the resources required
for expression and some guarantee that efforts to express views on matters of common concern will
not be drowned out by the speech of betterendowed citizens."288 Justice Brandeis’ solution is to
"remedy the harms of speech with more speech."289 This view moves away from playing down the
danger as merely exaggerated, toward "tak[ing] the costs seriously and embrac[ing] expression as
the preferred strategy for addressing them."290 However, in some cases, the idea of more speech
may not be enough. Professor Laurence Tribe observed the need for context and "the specification
of substantive values before [equality] has full meaning."291 Professor Catherine A. MacKinnon adds
that "equality continues to be viewed in a formal rather than a substantive sense."292 Thus, more
speech can only mean more speech from the few who are dominant rather than those who are not.

Our jurisprudence

This court has tackled these issues.

Osmeña v. COMELEC affirmed National Press Club v. COMELEC on the validity of Section 11(b)
ofthe Electoral Reforms Law of 1987.293 This section "prohibits mass media from selling or giving free
of charge print space or air time for campaign or other political purposes, except to the Commission
on Elections."294 This court explained that this provision only regulates the time and manner of
advertising in order to ensure media equality among candidates.295 This court grounded this measure
on constitutional provisions mandating political equality:296 Article IX-C, Section 4

Section 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 therefor, for
public information campaigns and forums among candidates in connection with the objective of
holding free, orderly, honest, peaceful, and credible elections. (Emphasis supplied)

Article XIII, Section 1

Section 1. The Congress shall give highest priorityto the enactment of measures that protect and
enhance the right of all the people to human dignity, reducesocial, economic, and political
inequalities, and remove cultural inequities by equitably diffusing wealth and political power for the
common good.

To this end, the State shall regulate the acquisition, ownership, use, and disposition of property and
its increments. (Emphasis supplied)

Article II, Section 26

Section 26. The State shall guarantee equal access to opportunities for public service, and prohibit
political dynasties as may be defined by law. (Emphasis supplied)

Thus, in these cases, we have acknowledged the Constitution’s guarantee for more substantive
expressive freedoms that take equality of opportunities into consideration during elections.

The other view

However, there is also the other view. This is that considerations of equality of opportunity or
equality inthe ability of citizens as speakers should not have a bearing in free speech doctrine.
Under this view, "members of the public are trusted to make their own individual evaluations of
speech, and government is forbidden to intervene for paternalistic or redistributive reasons . . .
[thus,] ideas are best left to a freely competitive ideological market."297 This is consistent with the
libertarian suspicion on the use of viewpoint as well as content to evaluate the constitutional validity
or invalidity of speech.

The textual basis of this view is that the constitutional provision uses negative rather than affirmative
language. It uses ‘speech’ as its subject and not ‘speakers’.298 Consequently, the Constitution
protects free speech per se, indifferent to the types, status, or associations of its
speakers.299 Pursuant to this, "government must leave speakers and listeners in the private order to
their own devices in sorting out the relative influence of speech."300

Justice Romero’s dissenting opinion in Osmeña v. COMELEC formulates this view that freedom of
speech includes "not only the right to express one’s views, but also other cognate rights relevant to
the free communication [of] ideas, not excluding the right to be informed on matters of public
concern."301 She adds:

And since so many imponderables may affect the outcome of elections — qualifications of voters
and candidates, education, means of transportation, health, public discussion, private animosities,
the weather, the threshold of a voter’s resistance to pressure — the utmost ventilation of opinion of
men and issues, through assembly, association and organizations, both by the candidate and the
voter, becomes a sine qua non for elections to truly reflect the will of the electorate.302 (Emphasis
supplied)

Justice Romero’s dissenting opinion cited an American case, if only to emphasize free speech
primacy such that"courts, as a rule are wary to impose greater restrictions as to any attempt to
curtail speeches with political content,"303 thus:

the concept that the government may restrict the speech of some elements in our society in order to
enhance the relative voice of the others is wholly foreign to the First Amendment which was
designed to "secure the widest possible dissemination of information from diverse and antagonistic
sources" and "to assure unfettered interchange of ideas for the bringing about of political and social
changes desired by the people."304

This echoes Justice Oliver Wendell Holmes’ submission "that the market place of ideas is still the
best alternative to censorship."305

Parenthetically and just to provide the whole detail of the argument, the majority of the US Supreme
Court in the campaign expenditures case of Buckley v. Valeo "condemned restrictions (even if
content-neutral) on expressive liberty imposed in the name of ‘enhanc[ing] the relative voice of
others’ and thereby ‘equaliz[ing] access to the political arena."306 The majority did not use the
equality-based paradigm.
One flaw of campaign expenditurelimits is that "any limit placed on the amount which a person can
speak, which takes out of his exclusive judgment the decision of when enough is enough, deprives
him of his free speech."307

Another flaw is how "[a]ny quantitative limitation on political campaigning inherently constricts the
sum of public information and runs counter to our ‘profound national commitment that debate on
public issues should be uninhibited, robust, and wide-open.’"308

In fact, "[c]onstraining those who have funds or have been able to raise funds does not ease the
plight of those without funds in the first place . . . [and] even if one’s main concern isslowing the
increase in political costs, it may be more effective torely on market forces toachieve that result than
on active legal intervention."309 According to Herbert Alexander, "[t]o oppose limitations is not
necessarily to argue that the sky’s the limit [because in] any campaign there are saturation levels
and a point where spending no longer pays off in votes per dollar."310

III. C.

When private speech amounts

to election paraphernalia

The scope of the guarantee of free expression takes into consideration the constitutional respect for
human potentiality and the effect of speech. It valorizes the ability of human beings to express and
their necessity to relate. On the other hand, a complete guarantee must also take into consideration
the effects it will have in a deliberative democracy. Skewed distribution of resources as well as the
cultural hegemony of the majority may have the effect of drowning out the speech and the messages
of those in the minority. In a sense, social inequality does have its effect on the exercise and effect
of the guarantee of free speech. Those who have more will have better access to media that
reaches a wider audience than those who have less. Those who espouse the more popular ideas
will have better reception than the subversive and the dissenters of society.To be really heard and
understood, the marginalized view normally undergoes its own degree of struggle.

The traditional view has been to tolerate the viewpoint of the speaker and the content of his or her
expression. This view, thus, restricts laws or regulation that allows public officials to make judgments
of the value of such viewpoint or message content. This should still be the principal approach.

However, the requirements of the Constitution regarding equality in opportunity must provide limits to
some expression during electoral campaigns.

Thus clearly, regulation of speech in the context of electoral campaigns made by candidates or the
members of their political parties or their political parties may be regulated as to time, place, and
manner. This is the effect of our rulings in Osmeña v. COMELEC and National Press Club v.
COMELEC.

Regulation of speech in the context of electoral campaigns made by persons who are not candidates
or who do not speak as members of a political party which are, taken as a whole, principally
advocacies of a social issue that the public must consider during elections is unconstitutional. Such
regulation is inconsistent with the guarantee of according the fullest possible range of opinions
coming from the electorate including those that can catalyze candid, uninhibited, and robust debate
in the criteria for the choice of a candidate.

This does not mean that there cannot be a specie of speech by a private citizen which will not
amount toan election paraphernalia to be validly regulated by law.

Regulation of election paraphernalia will still be constitutionally valid if it reaches into speech of
persons who are not candidates or who do not speak as members of a political party if they are not
candidates, only if what is regulated is declarative speech that, taken as a whole, has for its principal
object the endorsement of a candidate only. The regulation (a) should be provided by law, (b)
reasonable, (c) narrowly tailored to meet the objective of enhancing the opportunity of all candidates
to be heard and considering the primacy of the guarantee of free expression, and (d) demonstrably
the least restrictive means to achieve that object. The regulation must only be with respect to the
time, place, and manner of the rendition of the message. In no situation may the speech be
prohibited or censored onthe basis of its content. For this purpose, it will notmatter whether the
speech is made with or on private property.

This is not the situation, however, in this case for two reasons. First, as discussed, the principal
message in the twin tarpaulins of petitioners consists of a social advocacy.
Second, as pointed out in the concurring opinion of Justice Antonio Carpio, the present law —
Section 3.3 of Republic Act No. 9006 and Section 6(c) of COMELEC Resolution No. 9615 — if
applied to this case, will not pass the test of reasonability. A fixed size for election posters or
tarpaulins without any relation to the distance from the intended average audience will be arbitrary.
At certain distances, posters measuring 2 by 3 feet could no longer be read by the general public
and, hence, would render speech meaningless. It will amount to the abridgement of speech with
political consequences.

IV
Right to property

Other than the right to freedom of expression311 and the meaningful exercise of the right to
suffrage,312 the present case also involves one’s right to property.313

Respondents argue that it is the right of the state to prevent the circumvention of regulations relating
to election propaganda by applying such regulations to private individuals.314 Certainly, any provision
or regulation can be circumvented. But we are not confronted with this possibility. Respondents
agree that the tarpaulin in question belongs to petitioners. Respondents have also agreed, during
the oral arguments, that petitioners were neither commissioned nor paid by any candidate or political
party to post the material on their walls.

Even though the tarpaulin is readily seen by the public, the tarpaulin remains the private property of
petitioners. Their right to use their property is likewise protected by the Constitution.

In Philippine Communications Satellite Corporation v. Alcuaz:315

Any regulation, therefore, which operates as an effective confiscation of private property or

constitutes an arbitrary or unreasonable infringement of property rights is void, because it is
repugnant to the constitutional guaranties of due process and equal protection of the
laws.316 (Citation omitted)

This court in Adiong held that a restriction that regulates where decals and stickers should be posted
is "so broad that it encompasses even the citizen’s private property."317 Consequently, it violates
Article III, Section 1 of the Constitution which provides thatno person shall be deprived of his
property without due process of law. This court explained:

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])318

This court ruled that the regulation in Adiong violates private property rights:

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 inthe common poster areas
sanctioned by COMELEC. This means that a private person cannot post his own crudely prepared
personal poster on his own front dooror 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.319 Respondents ordered petitioners, who are private
citizens, to remove the tarpaulin from their own property. The absurdity of the situation is in itself an
indication of the unconstitutionality of COMELEC’s interpretation of its powers.

Freedom of expression can be intimately related with the right to property. There may be no
expression when there is no place where the expression may be made. COMELEC’s infringement
upon petitioners’ property rights as in the present case also reaches out to infringement on their
fundamental right to speech.

Respondents have not demonstrated thatthe present state interest they seek to promote justifies the
intrusion into petitioners’ property rights. Election laws and regulations must be reasonable. It must
also acknowledge a private individual’s right to exercise property rights. Otherwise, the due process
clause will be violated.
COMELEC Resolution No. 9615 and the Fair Election Act intend to prevent the posting of election
propaganda in private property without the consent of the owners of such private property.
COMELEC has incorrectly implemented these regulations. Consistent with our ruling in Adiong, we
find that the act of respondents in seeking to restrain petitioners from posting the tarpaulin in their
own private property is an impermissible encroachments on the right to property.

V
Tarpaulin and its message are not religious speech

We proceed to the last issues pertaining to whether the COMELEC in issuing the questioned notice
and letter violated the right of petitioners to the free exercise of their religion.

At the outset, the Constitution mandates the separation of church and state.320 This takes many
forms. Article III, Section 5 of the Constitution, for instance provides:

Section 5. 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. Noreligious test shall be required for the
exercise of civil or political rights.

There are two aspects of this provision.321 The first is the none stablishment clause.322 Second is the
free exercise and enjoyment of religious profession and worship.323

The second aspect is atissue in this case.

Clearly, not all acts done by those who are priests, bishops, ustadz, imams, or any other religious
make such act immune from any secular regulation.324 The religious also have a secular existence.
They exist within a society that is regulated by law.

The Bishop of Bacolod caused the posting of the tarpaulin. But not all acts of a bishop amounts to
religious expression. This notwithstanding petitioners’ claim that "the views and position of the
petitioners, the Bishop and the Diocese of Bacolod, on the RH Bill is inextricably connected to its
Catholic dogma, faith, and moral teachings. . . ."325

The difficulty that often presents itself in these cases stems from the reality that every act can be
motivated by moral, ethical, and religious considerations. In terms of their effect on the corporeal
world, these acts range from belief, to expressions of these faiths, to religious ceremonies, and then
to acts of a secular character that may, from the point of view of others who do not share the same
faith or may not subscribe to any religion, may not have any religious bearing.

Definitely, the characterizations ofthe religious of their acts are not conclusive on this court.
Certainly, our powers of adjudication cannot be blinded by bare claims that acts are religious in
nature.

Petitioners erroneously relied on the case of Ebralinag v. The Division Superintendent of Schools of
Cebu326 in claiming that the court "emphatically" held that the adherents ofa particular religion shall be
the ones to determine whether a particular matter shall be considered ecclesiastical in nature.327 This
court in Ebralinagexempted Jehovah’s Witnesses from participating in the flag ceremony "out of
respect for their religious beliefs, [no matter how] "bizarre" those beliefsmay seem to others."328 This
court found a balance between the assertion of a religious practice and the compelling necessities of
a secular command. It was an early attempt at accommodation of religious beliefs.

In Estrada v. Escritor,329 this court adopted a policy of benevolent neutrality:

With religion looked upon with benevolence and not hostility, benevolent neutrality allows
accommodation of religion under certain circumstances. Accommodations are government policies
that take religion specifically intoaccount not to promote the government’s favored form of religion,
but to allow individuals and groups to exercise their religion without hindrance. Their purpose or
effect therefore is to remove a burden on, or facilitate the exercise of, a person’s or institution’s
religion. As Justice Brennan explained, the "government [may] take religion into account . . . to
exempt, when possible, from generally applicable governmental regulation individuals whose
religious beliefs and practices would otherwise thereby be infringed, or to create without state
involvement an atmosphere in which voluntary religious exercise may flourish."330

This court also discussed the Lemon test in that case, such that a regulation is constitutional when:
(1) it has a secular legislative purpose; (2) it neither advances nor inhibits religion; and (3) it does not
foster an excessive entanglement with religion.331
As aptly argued by COMELEC, however, the tarpaulin, on its face, "does not convey any religious
doctrine of the Catholic church."332 That the position of the Catholic church appears to coincide with
the message of the tarpaulin regarding the RH Law does not, by itself, bring the expression within
the ambit of religious speech. On the contrary, the tarpaulin clearly refers to candidates classified
under "Team Patay" and "Team Buhay" according to their respective votes on the RH Law.

The same may be said of petitioners’ reliance on papal encyclicals to support their claim that the
expression onthe tarpaulin is an ecclesiastical matter. With all due respect to the Catholic faithful,
the church doctrines relied upon by petitioners are not binding upon this court. The position of the
Catholic religion in the Philippines as regards the RH Law does not suffice to qualify the posting by
one of its members of a tarpaulin as religious speech solely on such basis. The enumeration of
candidates on the face of the tarpaulin precludes any doubtas to its nature as speech with political
consequences and not religious speech.

Furthermore, the definition of an "ecclesiastical affair" in Austria v. National Labor Relations

Commission333 cited by petitioners finds no application in the present case. The posting of the
tarpaulin does not fall within the category of matters that are beyond the jurisdiction of civil courts as
enumerated in the Austriacase such as "proceedings for excommunication, ordinations of religious
ministers, administration of sacraments and other activities withattached religious significance."334

A FINAL NOTE

We maintain sympathies for the COMELEC in attempting to do what it thought was its duty in this
case. However, it was misdirected.

COMELEC’s general role includes a mandate to ensure equal opportunities and reduce spending
among candidates and their registered political parties. It is not to regulate or limit the speech of the
electorate as it strives to participate inthe electoral exercise.

The tarpaulin in question may be viewed as producing a caricature of those who are running for
public office.Their message may be construed generalizations of very complex individuals and party-
list organizations.

They are classified into black and white: as belonging to "Team Patay" or "Team Buhay."

But this caricature, though not agreeable to some, is still protected speech.

That petitioners chose to categorize them as purveyors of death or of life on the basis of a single
issue — and a complex piece of legislation at that — can easily be interpreted as anattempt to
stereo type the candidates and party-list organizations. Not all may agree to the way their thoughts
were expressed, as in fact there are other Catholic dioceses that chose not to follow the example of
petitioners.

Some may have thought that there should be more room to consider being more broad-minded and
non-judgmental. Some may have expected that the authors would give more space to practice
forgiveness and humility.

But, the Bill of Rights enumerated in our Constitution is an enumeration of our fundamental liberties.
It is not a detailed code that prescribes good conduct. It provides space for all to be guided by their
conscience, not only in the act that they do to others but also in judgment of the acts of others.

Freedom for the thought we can disagree with can be wielded not only by those in the minority. This
can often be expressed by dominant institutions, even religious ones. That they made their point
dramatically and in a large way does not necessarily mean that their statements are true, or that they
have basis, or that they have been expressed in good taste.

Embedded in the tarpaulin, however, are opinions expressed by petitioners. It is a specie of

expression protected by our fundamental law. It is an expression designed to invite attention, cause
debate, and hopefully, persuade. It may be motivated by the interpretation of petitioners of their
ecclesiastical duty, but their parishioner’s actions will have very real secular consequences.
Certainly, provocative messages do matter for the elections.

What is involved in this case is the most sacred of speech forms: expression by the electorate that
tends to rouse the public to debate contemporary issues. This is not speechby candidates or political
parties to entice votes. It is a portion of the electorate telling candidates the conditions for their
election. It is the substantive content of the right to suffrage.
This. is a form of speech hopeful of a quality of democracy that we should all deserve. It is protected
as a fundamental and primordial right by our Constitution. The expression in the medium chosen by
petitioners deserves our protection.

WHEREFORE, the instant petition is GRANTED. The temporary restraining order previously issued
is hereby made permanent. The act of the COMELEC in issuing the assailed notice dated February
22, 2013 and letter dated February 27, 2013 is declared unconstitutional.

SO ORDERED.

MARVIC M.V.F. LEONEN

Associate Justice

WE CONCUR:

MARIA LOURDES P.A. SERENO

Chief Justice

ANTONIO T. CARPIO PRESBITERO J. VELASCO, JR.

Associate Justice Associate Justice

TERESITA J. LEONARDO-DE CASTRO ARTURO D. BRION*

Associate Justice Associate Justice

DIOSDADO M. PERALTA LUCAS P. BERSAMIN

Associate Justice Associate Justice

MARIANO C. DEL CASTILLO MARTN S. VILLARAMA, JR.

Associate Justice Associate Justice

JOSE PORTUGAL PEREZ JOSE CATRAL MENDOZA

Associate Justice Associate Justice

BIENVENIDO L. REYES ESTELA M. PERLAS-BERNABE

Associate Justice Associate Justice

No Part
FRANCIS H. JARDELEZA**
Associate Justice

CERTIFICATION

I certify that the conclusions in the above Decision had been reached in consultation before the case
was assigned to the writer of the opinion of the Court.

MARIA LOURDES P.A. SERENO

Chief Justice
 Republic of the Philippines
SUPREME COURT
Manila

EN BANC

G.R. No. 124540 November 14, 1997

MERLINDA JACINTO, ADELINA AGUSTIN, SUSAN AGUSTIN, EVELYN ATIENZA, NIDA

BALANE, ANICIA CARLOS, CELEDONIA CARLOS, LIWANAG CASTILLO, JOSEFINA DE
GUZMAN, MINERVA GARCIA, MARIA GATDULA, ALICIA GUNDA, AURORA LOPEZ,
CARMENCITA MANANSALA, ERLINDA MARTINEZ, LOLITA NAVARRETE, GUADALUPE
PANERGO, MARIA PULGA, PAZ SERRA and VIRGINIA ZAMORA, petitioners,
vs.
HON. COURT OF APPEALS; THE CIVIL SERVICE COMMISSION; and THE SECRETARY OF
EDUCATION, CULTURE AND SPORTS, respondents.

PANGANIBAN, J.:

While we recognize and appreciate the toil and hardship of our public schoolteachers in fulfilling the
state's responsibility of educating our children, and realize their inadequately addressed plight as
compared to other professionals, we have the equal task of promoting the larger public interest
which withholds from them and other similarly situated government workers the right to engage in
mass actions resulting in work stoppages for any purpose. Although the Constitution vests in them
the right to organize, to assemble peaceably and to petition the government for a redress of
grievances, there is no like express provision granting them the right to strike. Rather, the
constitutional grant of the right to strike is restrained by the proviso that its exercise shall be done in
accordance with law.

The Case

Before us is a petition for review under Rule 45 of the Rules of Court seeking to set aside the
November 27, 1995 Decision 1 of the Court of Appeals 2 in CA-G.R. SP No. 37596, which found no
grave abuse of discretion on the part of the Civil Service Commission (CSC) in issuing its
resolutions 3 disposing of the separate appeals and motions for reconsideration of herein petitioners.
The dispositive portions of most of the CSC resolutions, with the exception of the name of the
appellant concerned, uniformly read:

WHEREFORE, foregoing premises considered, the Commission hereby resolves to

find Susan Agustin guilty of Conduct Prejudicial to the Best Interest of the Service.
She is meted out the penalty of six (6) months suspension without pay. Agustin is
now automatically reinstated in the service without payment of back salaries. 4

As regards Petitioner Merlinda Jacinto, the decretal portion of the resolution pertaining to her case
reads:

WHEREFORE, foregoing premises considered, the Commission hereby resolves to

find Merlinda Jacinto guilty of Violation of Reasonable Office Rules and Regulations.
She is hereby meted out the penalty of reprimand. She is automatically reinstated in
the service without payment of back salaries. 5

In a Resolution 6 dated March 29, 1996, Respondent Court of Appeals denied the petitioners' motion
for reconsideration.

The Facts

The following are the antecedents of the case as narrated by the Court of Appeals, which we find
substantiated by the records:

Petitioners are public school teachers from various schools in Metropolitan Manila.
Between the period September 17 to 21, 1990, they incurred unauthorized absences
in connection with the mass actions then staged; and on September 17, 1990, DECS
Secretary Isidro Cariño immediately issued a return-to-work order worded as follows:

TO: ALL PUBLIC SCHOOL TEACHERS AND

 OTHER DECS PERSONNEL

SUBJECT: RETURN TO WORK ORDER

Under Civil service law and rules, strikes, unauthorized mass leaves
and other forms of mass actions by civil servants which disrupt public
services are strictly prohibited.

Those of you who are engaged in the above-mentioned prohibited

acts are therefore ordered, in the interest of public service, to return
to work within 24 hours from your walkout otherwise dismissal
proceedings shall be instituted against you. (Emphasis supplied).

The directive was ignored by petitioners. Consequently, on separate dates, Secretary

Cariño issued formal charges and preventive suspension orders against them. They
were administratively charged with gross misconduct; gross neglect of duty, etc. for
joining unauthorized mass actions; ignoring report-to-work directives; unjustified
abandonment of teaching posts; non-observance of Civil Service law, rules and
regulations; non-compliance with reasonable office rules and regulations; and
incurring unauthorized absences without leave, etc. An investigation committee was
then created by Sec. Cariño to look into the matter. However, during the
investigation, petitioners did not file their answers or controvert the charges against
them. As a consequence, Sec. Cariño, in his decisions found them guilty as charged
and imposed the penalty of dismissal, except with respect to petitioners Merlinda
Jacinto and Adelina Agustin who were meted only six (6) months suspension.

The decisions were appealed to the Merit Systems Protection Board (MSPB) which
dismissed the appeals for lack of merit and then to the Civil Service Commission
which set aside the Orders of the MSPB in the contested resolutions. The Civil
Service Commission, in separate resolutions, found the petitioners (except Merlinda
Jacinto) guilty of Conduct Prejudicial to the Best Interest of the Service; imposed
upon them the penalty of six (6) months suspension without pay; and automatically
reinstated them to the service without payment of back salaries . . . In the case of
Petitioner Merlinda Jacinto, the CSC found her guilty of Violation of Reasonable
Office Rules and Regulations; imposed upon her the penalty of reprimand; and
automatically reinstated her in the service without payment of back salaries . . .

Acting on the motions for reconsideration, the CSC rendered the assailed resolutions
denying the motions for lack of merit. 7

Petitioners initially questioned the CSC resolutions directly before this Court in petitions docketed as
G.R. Nos. 118252 to 118271. In accordance with Revised Administrative Circular 1-95, we referred
them to the Court of Appeals.

Respondent Court found that the "petitioners absented themselves from their classes in furtherance
of or in connection with the 'mass action' for the purpose of pressuring the government to grant their
demands." Citing the resolution of this Court in MPSTA vs. Laguio 8 that the mass actions staged by
the public school teachers from September 17 to September 19, 1990, were "to all intents and
purposes a strike," it denied the petition, since the right to strike did not extend to civil service
employees. In the case of Merlinda Jacinto, Respondent Court found no error on the part of the CSC
in finding her guilty of violation of reasonable office rules and regulations. Neither did it find the
petitioners entitled to backwages for the period of their preventive suspension, as they were "not
exonerated of the charges against them."

Hence, this petition. 9

Issues

Petitioners raise the following grounds for their appeal:

I. The Respondent Court of Appeals committed grave abuse of discretion when it

upheld the resolutions of the Civil Service Commission that penalized all the
petitioners whose only "offense" (except Jacinto) was to exercise their constitutional
right peaceably to assemble and petition the government for redress of grievances.

II. The Respondent Court of Appeals committed grave abuse of discretion when it
upheld the resolutions of the Civil Service Commission that penalized Petitioner
Jacinto for an alleged offense which has no basis whatsoever thereby violating her
right to security of tenure.
 III. The Respondent Court of Appeals committed grave abuse of discretion when it
upheld the resolutions of the Civil Service Commission that denied petitioners their
right to backwages covering the period when they were illegally not allowed to
teach. 10

Preliminarily, we note that the remedy resorted to by petitioners is a petition for review under Rule 45
of the Rules of Court which, however, allows "only questions of law." 11 Jurisprudence has extended
this remedy to questions of fact in exceptional cases. 12 Where the issues raised involve lack of
jurisdiction or grave abuse of discretion as in this case, the Rules provide for a different remedy —
Rule 65. In the interest of substantial justice, however, we hereby decide to deal with this petition as
one filed under Rule 45, as denominated in its prefatory paragraph, and treat the "grave abuse of
discretion" on the part of Respondent Court of Appeals as allegations of "reversible errors."

The Court's Ruling

The petition, which fails to convince us, merits only dismissal.

First Issue: Improper Exercise of the Right to

Peaceful Assembly and to Petition for a Redress of Grievances

There is no question as to the petitioners' rights to peaceful assembly to petition the government for
a redress of grievances and, for that matter, to organize or form associations for purposes not
contrary to law, as well as to engage in peaceful concerted activities. These rights are guaranteed by
no less than the Constitution, particularly Sections 4 13 and 8 14 of the Bill of Rights, Section 2(5) 15 of
Article IX, and Section 3 16 of Article XIII. Jurisprudence abounds with hallowed pronouncements
defending and promoting the people's exercise of these rights. As early as the onset of this century,
this Court, in U.S. vs. Apurado, 17 already upheld the right to assembly and petition and even went as
far as to acknowledge:

It is rather to be expected that more or less disorder will mark the public assembly of
the people to protest against grievances whether real or imaginary, because on such
occasions feeling is always wrought to a high pitch of excitement, and the greater the
grievance and the more intense the feeling, the less perfect, as a rule, will be the
disciplinary control of the leaders over their irresponsible followers. But if the
prosecution be permitted to seize upon every instance of such disorderly conduct by
individual members of a crowd as an excuse to characterize the assembly as a
seditious and tumultuous rising against the authorities, then the right to assemble
and to petition for redress of grievances would become a delusion and a snare and
the attempt to exercise it on the most righteous occasion and in the most peaceable
manner would expose all those who took part therein to the severest and most
unmerited punishment, if the purposes which they sought to attain did not happen to
be pleasing to the prosecuting authorities. If instances of disorderly conduct occur on
such occasions, the guilty individuals should be sought out and punished therefor,
but the utmost discretion must be exercised in drawing the line
between disorderly and seditious conduct and between an essentially peaceable
assembly and a tumultuous uprising. 18

Primicias vs. Fugoso 19 further sustained the supremacy of the freedoms of speech and of assembly
over comfort and convenience in the use of streets or parks. Although the Court opined that the
exercise of the rights of free speech and of peaceful assembly to petition the government for redress
of grievances "is not absolute for it may be so regulated that it shall not be injurious to the equal
enjoyment of others having equal rights, nor injurious to the rights of the community or society,"
regulation was limited to the mayor's reasonable discretion in issuing a permit to determine or
specify only the streets or public places to be used for the purpose and to provide adequate and
proper policing to minimize the risk of disorder. Quoting Justice Brandeis in his concurring opinion
in Whitney vs. California, the Court said: 20

Fear of serious injury cannot alone justify suppression of free speech and assembly.
. . . To justify suppression of free speech there must be reasonable ground to fear
that serious evil will result if free speech is practiced. There must be reasonable
ground to believe that the danger apprehended is imminent. There must be
reasonable ground to believe that the evil to be prevented is a serious one . . .

xxx xxx xxx

. . . The fact that speech is likely to result in some violence or in destruction of

property is not enough to justify its suppression. There must be the probability of
serious injury to the state. . . .
This limitation was strictly applied in Reyes vs. Bagatsing, 21 in which "the Court [was] called upon to
protect the exercise of the cognate rights to free speech and peaceful assembly, arising from the
denial of a permit." In that case, retired Justice J.B.L. Reyes, on behalf of the Anti-Bases Coalition,
sought a permit from the mayor of Manila to hold a march and a rally starting from Luneta,
proceeding through Roxas Boulevard to the gates of the U.S. Embassy, to be attended by local and
foreign participants to the International Conference for General Disarmament, World Peace and the
Removal of All Foreign Military Bases. The Manila mayor denied them the permit "due to police
intelligence reports which strongly militate against the advisability of issuing such permit at this time
and at the place applied for." In reversing the mayor, this Court stated that to justify limitations on
freedom of assembly, there must be proof of sufficient weight to satisfy the "clear and present
danger" 22 test. Thereafter, the Court proceeded to summarize the rules on assembly and
petition, 23 making the clear-and-present danger rule the standard for refusing or modifying the grant
of a permit. But it stressed that "the presumption must be to incline the weight of the scales of justice
on the side of such rights [of free speech and peaceable assembly], enjoying as they do precedence
and primacy."

Philippine Blooming Mills Employees Organization vs. Philippine Blooming Mills Co., Inc., 24 which
was promulgated after the proclamation of martial law, further underscored the supremacy of these
basic constitutional rights, this time over property rights. Speaking through Mr. Justice Makasiar, the
Court explained:

. . . the primacy of human rights — freedom of expression, of peaceful assembly and

of petition for redress of grievances — over property rights has been sustained.
Emphatic reiteration of this basic tenet as a coveted boon — at once the shield and
armor of the dignity and worth of the human personality, the all-consuming ideal of
our enlightened civilization — becomes [o]ur duty, if freedom and social justice have
any meaning at all for him who toils so that capital can produce economic goods that
can generate happiness for all. To regard the demonstration against police officers,
not against the employer, as evidence of bad faith in collective bargaining and hence
a violation of the collective bargaining agreement and a cause for the dismissal from
employment of the demonstrating employees, stretches unduly the compass of the
collective bargaining agreement, is "a potent means of inhibiting speech" and
therefore inflicts a moral as well as mortal wound on the constitutional guarantees of
free expression, of peaceful assembly and of petition. 25

Specifically, the right of civil servants to organize themselves was positively recognized
in Association of Court of Appeals Employees (ACAE) vs. Ferrer-Calleja. 26 But, as in the exercise of
the rights of free expression and of assembly, there are standards for allowable limitations such as
the legitimacy of the purposes of the association, 27the overriding considerations of national security
and the preservation of democratic institutions. 28

As regards the right to strike, the Constitution itself qualifies its exercise with the proviso "in
accordance with law." This is a clear manifestation that the state may, by law, regulate the use of
this right, or even deny certain sectors such right. Executive Order 180 29 which provides guidelines
for the exercise of the right of government workers to organize, for instance, implicitly endorsed an
earlier CSC circular which "enjoins under pain of administrative sanctions, all government officers
and employees from staging strikes, demonstrations, mass leaves, walkouts and other forms of
mass action which will result in temporary stoppage or disruption of public service," 30 by stating that
the Civil Service law and rules governing concerted activities and strikes in the government service
shall be observed. 31

It is also settled in jurisprudence that, in general, workers in the public sector do not enjoy the right to
strike. Alliance of Government Workers vs. Minister of Labor and Employment 32 rationalized the
proscription thus:

The general rule in the past and up to the present is that the "terms and conditions of
employment in the Government, including any political subdivision or instrumentality
thereof are governed by law." . . . Since the terms and conditions of government
employment are fixed by law, government workers cannot use the same weapons
employed by the workers in the private sector to secure concessions from their
employers. The principle behind labor unionism in private industry is that industrial
peace cannot be secured through compulsion by law. Relations between private
employers and their employees rest on an essentially voluntary basis. Subject to the
minimum requirements of wage laws and other labor and welfare legislation, the
terms and conditions of employment in the unionized private sector are settled
through the process of collective bargaining. In government employment, however, it
is the legislature and, where properly given delegated power, the administrative
heads of government which fix the terms and conditions of employment. And this is
effected through statutes or administrative circulars, rules, and regulations, not
through collective bargaining agreements. 33
After delving into the intent of the framers of the Constitution, the Court affirmed the above rule
in Social Security System Employees Association (SSSEA) vs. Court of Appeals 34 and explained:

Government employees may, therefore, through their unions or associations, either

petition the Congress for the betterment of the terms and conditions of employment
which are within the ambit of legislation or negotiate with the appropriate government
agencies for the improvement of those which are not fixed by law. If there be any
unresolved grievances, the dispute may be referred to the Public Sector Labor-
Management Council for appropriate action. But employees in the civil service may
not resort to strikes, walkouts and other temporary work stoppages, like workers in
the private sector, to pressure the Government to accede to their demands. As now
provided under Sec. 4, Rule III of the Rules and Regulations to Govern the Exercise
of the Right of Government Employees to Self-Organization, which took effect after
the instant dispute arose, "[t]he terms and conditions of employment in the
government, including any political subdivision or instrumentality thereof and
government-owned and controlled corporations with original charters are governed
by law and employees therein shall not strike for the purpose of securing changes
[thereto]. 35

We now come to the case before us. Petitioners, who are public schoolteachers and thus
government employees, do not seek to establish that they have a right to strike. Rather, they
tenaciously insist that their absences during certain dates in September 1990 were a valid exercise
of their constitutional right to engage in peaceful assembly to petition the government for a redress
of grievances. They claim that their gathering was not a strike; therefore, their participation therein
did not constitute any offense. MPSTA vs. Laguio 36 and ACT vs. Cariño, 37 in which this Court
declared that "these 'mass actions' were to all intents and purposes a strike; they constituted a
concerted and unauthorized stoppage of, or absence from, work which it was the teachers' duty to
perform, undertaken for essentially economic reasons," should not principally resolve the present
case, as the underlying facts are allegedly not identical.

Strike, as defined by law, means any temporary stoppage of work by the concerted action of
employees as a result of an industrial or labor dispute. 38 A labor dispute includes any controversy or
matter concerning terms and conditions of employment; or the association or representation of
persons in negotiating, fixing, maintaining, changing or arranging the terms and conditions of
employment, regardless of whether the disputants stand in the proximate relation of employers and
employees. 39 With these premises, we now evaluate the circumstances of the instant petition.

It cannot be denied that the mass action or assembly staged by the petitioners resulted in the non-
holding of classes in several public schools during the corresponding period. Petitioners do not
dispute that the grievances for which they sought redress concerned the alleged failure of public
authorities — essentially, their "employers" — to fully and justly implement certain laws and
measures intended to benefit them materially, such as:

1. Immediate release of P680 million Secondary

Education Fund (SEF) fringe benefits of teachers
under Section 17 of Republic Act 6758.

2. Clothing allowance at P500 to P1,000 per teachers

[sic] under the General Appropriations Act of 1990

3. DMB Circular 904

4. Increase in minimum wage to P5,000 for

teachers. 40

And probably to clothe their action with permissible character, 41 they also raised national
issues such as the removal of the U.S. bases and the repudiation of foreign debt.
In Balingasan vs. Court of Appeals, 42 however, this Court said that the fact that the
conventional term "strike" was not used by the participants to describe their common course
of action was insignificant, since the substance of the situation, and not its appearance, was
deemed controlling. 43

Moreover, the petitioners here, except Merlinda Jacinto, were not penalized for the exercise of their
right to assemble peacefully and to petition the government for a redress of grievances. Rather, the
Civil Service Commission found them guilty of conduct prejudicial to the best interest of the service
for having absented themselves without proper authority, from their schools during regular school
days, in order to participate in the mass protest, their absence ineluctably resulting in the non-
holding of classes and in the deprivation of students of education, for which they were responsible.
Had petitioners availed themselves of their free time — recess, after classes, weekends or holidays
— to dramatize their grievances and to dialogue with the proper authorities within the bounds of law,
no one — not the DECS, the CSC or even this Court — could have held them liable for the valid
exercise of their constitutionally guaranteed rights. As it was, the temporary stoppage of classes
resulting from their activity necessarily disrupted public services, the very evil sought to be
forestalled by the prohibition against strikes by government workers. Their act by its nature was
enjoined by the Civil Service law, rules and regulations, for which they must, therefore, be made
answerable.

Second Issue: Violation by Petitioner Jacinto

of Reasonable Office Rules and Regulations

Petitioner Jacinto, for her part, pleads for exoneration. She asks the Court to reexamine and give
due weight to the certification 44 issued by her school principal that she met her class on September
20, 1990 but failed to sign in the attendance logbook. Stated elsewise, Jacinto wants us to scrutinize
firsthand a document already ruled upon by the Civil Service Commission and the Court of Appeals
to be of doubtful credibility. Time and again, we have held that findings of administrative agencies,
which have acquired expertise because their jurisdiction is confined to specific matters, are accorded
not only respect but even finality 45 particularly when affirmed by the appellate tribunal. It is not a
function of this Court to examine and evaluate the probative value of the evidence proffered in the
concerned forum, which formed the basis of the latter's impugned decision, resolution or
order, 46 absent a dear showing of arbitrariness and want of any rational basis therefor. 47 In the
instant case, we find no sufficient reason to reverse the findings of the CSC.

In any event, as observed by the Commission, said certification, dated December 19, 1990, was
belatedly submitted by Petitioner Jacinto only with her motion for reconsideration of the CSC
resolution promulgated September 21, 1993; thus, it was correctly rejected as a newly discovered
evidence. Additionally, the Commission explained:

. . . such certification contradicts the allegation that she filed an application for leave.
If she was really present on September 20, 1990, there would have been no need for
her to file an application for leave. Apparently, this is a vain effort to present
documents of doubtful credibility just to have Jacinto exonerated of the charges
against her. 48

The futility of the tactics of Petitioner Jacinto to evade culpability is further exemplified by her
contradictory assertions. In a sworn explanation submitted to Secretary Cariño, she claimed that she
left the school premises on the day in question, because she "was emotionally and mentally
depressed," and went to see a physician. 49 In her motion for reconsideration before the CSC, she
submitted the above certification to the effect that she was not absent. Now, in assailing the
Commission's decision to reprimand her for violation of reasonable office rules and regulations in not
filing an application for leave of absence, she invokes Sec. 15, Rule XVI of the Civil Service rules,
which provides:

Sec. 15. Applications for vacation leave of absence for one full day or more shall be
submitted on the prescribed form for action by the proper chief of agency in advance,
whenever possible, of the effective date of such leave.

She contends that the filing of an application for vacation leave need not always be in
advance of the effective date thereof. 50 Clearly, her present stance is diametric to her
"illness" justification before the DECS. In the latter case, it is Section 16 of said rules that is
pertinent:

Sec. 16. All applications for sick leaves of absence for one full day or more shall be
on the prescribed form and shall be filed immediately upon the employee's return
from such leave. Notice of absence, however, should be sent to the immediate
supervisor and/or to the office head. . . .

The regulation requires (1) the filing of the application for sick leave on the prescribed form
immediately upon the employee's return from sick leave and (2) a notice of absence to be sent to the
immediate supervisor and/or office head. But the Commission found that "the records are bereft of
any showing that Jacinto asked permission from school authorities to go out of school premises and
seek medical attention outside nor did she file an application for sick leave . . ." 51 Hence, its
conclusion that petitioner violated reasonable office rules and regulations.

The totality of the evidence on record sustains the findings and conclusions of the Commission, as
affirmed by the Court of Appeals. We have no reason to reverse them. The Civil Service rules clearly
provide that violation of reasonable office rules and regulations, on first offense, carries the penalty
of reprimand. 52
 Third Issue: No Right to Backwages

Petitioners anchor their claim for backwages on the supposed illegality of (1) their preventive
suspension upon the filing of the charges against them and (2) the immediate execution of the
DECS Secretary's decisions ordering their dismissal.

The charges against petitioners consisted of the following: (1) grave misconduct; (2) gross neglect of
duty; (3) gross violation of Civil Service law, rules and regulations and reasonable office regulations;
(4) refusal to perform official duty; (5) gross insubordination; (6) conduct prejudicial to the best
interest of the service; and (7) absence without approved leave. These were based on their alleged
unauthorized participation in the mass actions in September 1990, disregard of report-to-work
directives, unjustified abandonment of teaching posts, unauthorized absences without leave, and
other similar violations reported to the DECS Secretary by their respective school supervisors. 53

We find that the charges filed against petitioners warranted their preventive suspension from the
service, as provided under Section 51, Chapter 7 (on Discipline) of the Administrative Code, which
reads:

Sec. 51. Preventive Suspension. — The proper disciplining authority may

preventively suspend any subordinate officer or employee under his authority
pending an investigation, if the charge against such officer or employee involves
dishonesty, oppression or grave misconduct, or neglect in the performance of duty,
or if there are reasons to believe that the respondent is guilty of charges which would
warrant his removal from the service.

The petitioners' alleged lapses, initially found substantiated by the DECS, qualify as grave
misconduct or neglect in the performance of duty under the above rule. Thus, former
Education Secretary Cariño had the legal authority to suspend them pending further
investigation.

The Secretary's immediate execution of his decisions imposing the penalty of dismissal finds legal
basis in Sec. 47 (2) of the Civil Service law 54 which provides:

Sec. 47. Disciplinary Jurisdiction. — . . .

(2) The Secretaries and heads of agencies and instrumentalities, provinces, cities
and municipalities shall have jurisdiction to investigate and decide matters involving
disciplinary action against officers and employees under their jurisdiction. Their
decisions shall be final in case the penalty imposed is suspension for not more than
thirty days or fine in an amount not exceeding thirty days' salary. In case the decision
rendered by a bureau or office head is appealable to the Commission, the same may
be initially appealed to the department and finally to the Commission and pending
appeal, the same shall be executory except when the penalty is removal, in which
case the same shall be executory only after confirmation by the Secretary
concerned.

As can be gleaned from the above, the department secretary's decision confirming the removal of an
officer or employee under his jurisdiction is executory in character, i.e. such decision may be
immediately executed even pending further remedy, such as an appeal, 55 by the dismissed officer or
employee. In the case at bar, it was already the final judgments of Secretary Cariño which were
forthwith carried out. The aforequoted statutory provision rules out the alleged illegality of the actions
of the DECS Secretary.

In any event, the rule is settled that backwages may be granted only to those who have been
illegally dismissed and thenceforth ordered reinstated, or to those acquitted of the charge against
them. 56 Even a pardoned convicted employee is not automatically entitled to backpay. Monsanto
vs. Factoran Jr. 57 established the general rule that — while pardon has been commonly regarded as
eliminating the existence of guilt so that in the eyes of the law the offender is as innocent as though
he never committed the offense — such exoneration does not operate for all purposes. It does not
erase the fact of the commission of the offense and the conviction therefor. It frees the convict from
all penalties and legal disabilities and restores to him all his civil rights; but unless expressly
grounded on the person's innocence, it does not ipso facto restore him to public office necessarily
relinquished or forfeited by reason of the conviction. Pardon does not generally result in automatic
reinstatement because the offender has to apply for reappointment; neither is he entitled to
backpay. 58

Thus, in Sabello vs. DECS, 59 although we reinstated the petitioner-pardonee to his previous position
in the interest of "justice and equity," we did not grant him backwages since he "was lawfully
separated from the government service upon his conviction for an offense." We reiterated that the
right to backwages was afforded only to those who were illegally dismissed but thereafter ordered
reinstated, or to those otherwise acquitted of the charge against them.

Again, in City Mayor of Zamboanga vs. Court of Appeals, 60 we said that "back salaries may be
ordered paid to an officer or employee only if he is exonerated of the charge against him and his
suspension or dismissal is found and declared to be illegal." Hence, in Garcia vs. Chairman,
Commission on Audit, 61 we said that "if the pardon is based on the innocence of the individual, it
affirms this innocence and makes him a new man and as innocent as if he had not been found guilty
of the offense charged." 62 In that case, Garcia was found administratively liable for dishonesty. He
was, however, acquitted by the trial court of the complaint for qualified theft based on the very same
acts. The acquittal was founded not on lack of proof beyond reasonable doubt but on the fact that he
did not commit the offense imputed to him. This Court said that after having been declared innocent
of the criminal complaint, which had the same basis as the administrative charge, for all legal
purposes the petitioner should not be considered to have left his office, so that he was entitled to all
the rights and privileges that accrued to him by virtue of the office held, including backwages. He
was restored to his office ipso facto upon the issuance of the clemency. The grant of backwages
was justified "to afford relief to [the] petitioner who [was] innocent from the start and to make
reparation for what he [had] suffered as a result of his unjust dismissal from the service." 63

However, in Balingasan, finding that petitioners therein indeed participated in the unlawful mass
actions for which they were similarly meted suspension, the Court opined that they were not
completely exonerated of the charges against them. They were denied back salaries because they
had given ground for their suspension. This means that being found liable for a lesser offense is not
equivalent to exoneration from the original complaint against the concerned public officer or
employee. Balingasan referred to the earlier case of Yacia vs. City of Baguio, 64 in which this Court
denied the claim of an employee for backwages for the period during which he was not allowed to
work because of the execution of the CSC decision dismissing him for dishonesty, even though, on
appeal, his penalty was reduced to a fine equivalent to six months' pay.

Based on the above premises, petitioners' demand for backwages cannot be granted, for they had
given cause for their suspension — their unjustified abandonment of classes to the prejudice of their
students. Although they were eventually found guilty only of conduct prejudicial to the best interest of
the service, and not grave misconduct or other offense warranting their dismissal from the service,
they were not fully innocent of the charges against them.

We find the case of Petitioner Jacinto different, however. The Civil Service Commission found her
culpable only of violation of reasonable office rules and regulations, for not having asked permission
from school authorities to leave the school premises and seek medical attention and for not filing an
application for sick leave for approval by the school authorities. There was no proof that she joined
the mass actions which caused prejudice to the school system. In Balingasan, this Court, after
finding that Rodolfo Mariano was not involved in the mass actions but was absent because he
attended the wake and burial of his grandmother in Ilocos Sur without however the benefit of an
approved leave of absence, held that "[t]o deny petitioner Mariano his back wages during his
suspension would be tantamount to punishing him after his exoneration from the charges which
caused his dismissal from the service," i.e. participation in the unlawful mass actions. Therefore, in
line with Balingasan, we likewise grant back salaries to Petitioner Jacinto who did not join the illegal
activity.

WHEREFORE, in view of the foregoing, the petition is hereby DENIED and the assailed Decision of
the Court of Appeals is hereby AFFIRMED with the modification that Petitioner Merlinda Jacinto is
granted backwages, without deduction or qualification, from the time she was suspended until her
actual reinstatement, the total of which, consistent with prevailing jurisprudence, 65 should not exceed
five years.

Regalado, Davide, Jr., Romero, Bellosillo, Melo, Puno, Vitug, Kapunan, Mendoza and Francisco,
JJ., concur.

Narvasa, C.J., is on leave

 Republic of the Philippines
SUPREME COURT
Manila

EN BANC

G.R. No. 82380 April 29, 1988

AYER PRODUCTIONS PTY. LTD. and McELROY & McELROY FILM

PRODUCTIONS, petitioners,
vs.
HON.IGNACIO M. CAPULONG and JUAN PONCE ENRILE, respondents.

G.R. No. 82398 April 29, 1988

HAL MCELROY petitioner,

vs.
HON. IGNACIO M. CAPULONG, in his capacity as Presiding Judge of the Regional Trial Court
of Makati, Branch 134 and JUAN PONCE ENRILE, respondents.

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 Power—a unique
event in modern history that-made possible the Peaceful revolution in the Philippines
in 1986.

Faced with the task of dramatising these 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.

Yap, C.J., Fernan, Narvasa, Melencio-Herrera, Gutierrez, Jr., Cruz, Paras, Gancayco, Padilla, Bidin,
Sarmiento, Cortes and Griño-Aquino, JJ., concur.
 Republic of the Philippines
SUPREME COURT
Manila

FIRST DIVISION

G.R. No. 172203 February 14, 2011

DIONISIO LOPEZ y ABERASTURI, Petitioner,

vs.
PEOPLE OF THE PHILIPPINES and SALVADOR G. ESCALANTE, JR., Respondents.

DECISION

DEL CASTILLO, J.:

Freedom of expression enjoys an exalted place in the hierarchy of constitutional rights. Free
expression however, "is not absolute for it may be so regulated that [its exercise shall neither] be
injurious to the equal enjoyment of others having equal rights, nor injurious to the rights of the
community or society."1 Libel stands as an exception to the enjoyment of that most guarded
constitutional right.

Before the Court is a petition for review on certiorari under Rule 45 of the Rules of Court filed by
Dionisio Lopez (petitioner) assailing the Decision2 dated August 31, 2005 of the Court of Appeals
(CA) in CA-G.R. CR No. 28175. The CA affirmed with modification the Decision3 rendered by the
Regional Trial Court (RTC) of Cadiz City, Branch 60 finding petitioner guilty beyond reasonable
doubt of the crime of libel.

Procedural and Factual Antecedents

On April 3, 2003, petitioner was indicted for libel in an Information dated March 31, 2003, the
accusatory portion of which reads in full as follows:

That on or about the early part of November 2002 in the City of Cadiz, Philippines and within the
jurisdiction of this Honorable Court, the herein accused did then and there, willfully, unlawfully and
feloniously with intent to impeach the integrity, reputation and putting to public ridicule and dishonor
the offended party MAYOR SALVADOR G. ESCALANTE, JR., City Mayor of Cadiz City and with
malice and intent to injure and expose the said offended party to public hatred, contempt and ridicule
put up billboards/signboards at the fence of Cadiz Hotel, Villena Street, Cadiz City and at Gustilo
Boulevard, Cadiz City, which billboards/signboards read as follows:

"CADIZ FOREVER"

"______________ NEVER"

thereby deliberately titillating the curiosity of and drawing extraordinary attention from the residents
of Cadiz City and passers-by over what would be placed before the word "NEVER". Later on
November 15, 2002, accused affixed the nickname of the herein private complainant "BADING" and
the name of the City of "SAGAY" before the word "NEVER" thus making the billboard appear as
follows

"CADIZ FOREVER"

"BADING AND SAGAY NEVER"

For which the words in the signboards/billboards were obviously calculated to induce the
readers/passers-by to suppose and understand that something fishy was going on, therefore
maliciously impeaching the honesty, virtue and reputation of Mayor Salvador G. Escalante, Jr., and
hence were highly libelous, offensive and defamatory to the good name, character and reputation of
the offended party and his office and that the said billboards/signboards were read by thousands if
not hundred[s] of thousands of persons, which caused damage and prejudice to the offended party
by way of moral damages in the amount [of]:

₱5,000,000.00 – as moral damages.

ACT CONTRARY TO LAW.4

Upon arraignment on May 8, 2003, petitioner, as accused, entered a plea of "not guilty." During the
pre-trial, the parties stipulated, among others, on the identity of the accused, that the private
complainant is the incumbent City Mayor of Cadiz City and is popularly known by the nickname
"Bading" and that the petitioner calls the private complainant "Bading." Thenceforth, trial on the
merits commenced in due course.

Evidence introduced for the prosecution reveals that in the early part of November 2002, while
exercising his official duties as Mayor of Cadiz City, private respondent saw billboards with the
printed phrase "CADIZ FOREVER" with a blank space before the word "NEVER" directly under said
phrase. Those billboards were posted on the corner of Gustilo and Villena streets, in front of Cadiz
Hotel and beside the old Coca-Cola warehouse in Cadiz City. He became intrigued and wondered
on what the message conveyed since it was incomplete.

Some days later, on November 15, 2002, private respondent received a phone call relating that the
blank space preceding the word "NEVER" was filled up with the added words "BADING AND
SAGAY." The next day, he saw the billboards with the phrase "CADIZ FOREVER BADING AND
SAGAY NEVER" printed in full. Reacting and feeling that he was being maligned and dishonored
with the printed phrase and of being a "tuta" of Sagay, private respondent, after consultation with the
City Legal Officer, caused the filing of a complaint for libel against petitioner. He claimed that the
incident resulted in mental anguish and sleepless nights for him and his family. He thus prayed for
damages.

Jude Martin Jaropillo (Jude) is a licensing officer of the Permit and License Division of Cadiz City.
While on a licensing campaign, he was able to read the message on the billboards. He wondered
what fault the person alluded therein has done as the message is so negative. He felt that the
message is an insult to the mayor since it creates a negative impression, as if he was being rejected
by the people of Cadiz City. He claimed that he was giving his testimony voluntarily and he was not
being rewarded, coerced or forced by anybody.

Nenita Bermeo (Nenita), a retired government employee of Cadiz City, was at Delilah’s Coffee
[Shop] in the morning of November 19, 2002 when she heard the petitioner shouting "Bading,
Bading, Never, Never." She and the tricycle drivers drinking coffee were told by petitioner "You
watch out I will add larger billboards." When she went around Cadiz City, she saw larger billboards
with the phrase "CADIZ FOREVER BADING AND SAGAY NEVER," thus confirming what petitioner
had said. With the message, she felt as if the people were trying to disown the private respondent.
According to her, petitioner has an ax to grind against the mayor. Like Jude, she was not also forced
or rewarded in giving her testimony.

Bernardita Villaceran (Bernardita) also found the message unpleasant because Mayor Escalante is
an honorable and dignified resident of Cadiz City. According to her, the message is an insult not only
to the person of the mayor but also to the people of Cadiz City.

Petitioner admitted having placed all the billboards because he is aware of all the things happening
around Cadiz City. He mentioned "BADING" because he was not in conformity with the many things
the mayor had done in Cadiz City. He insisted that he has no intention whatsoever of referring to
"Bading" as the "Tuta" of Sagay. He contended that it was private respondent who referred to Bading
as "Tuta" of Sagay. He further maintained that his personal belief and expression was that he will
never love Bading and Sagay. He concluded that the message in the billboards is just a wake-up call
for Cadiz City.

Ruling of the Regional Trial Court

On December 17, 2003, the RTC rendered judgment convicting petitioner

of libel. The trial court ruled that from the totality of the evidence presented by the prosecution vìs-a-
vìs that of the defense, all the elements of libel are present. The fallo of the Decision reads:

WHEREFORE, in view of all the foregoing, this Court finds accused DIONISIO LOPEZ y
ABERASTURI (bonded) GUILTY beyond reasonable doubt of the crime of Libel defined and
penalized under Article 353 in relation to Article 355 of the Revised Penal Code and there being no
mitigating or aggravating circumstances attendant thereto hereby sentences him to suffer an
indeterminate penalty of imprisonment of FOUR MONTHS AND TWENTY DAYS of Arresto Mayor
maximum as the minimum to TWO YEARS, ELEVEN MONTHS AND TEN DAYS of Prision
Correccional Medium as the maximum and a FINE of ₱5,000.00 with subsidiary imprisonment in
case of insolvency.

The accused is further ordered to pay the private complainant the sum of ₱5,000,000.00 by way of
moral damages.
The cash bond posted by the accused is hereby ordered cancelled and returned to the accused,
however the penalty of Fine adjudged against the accused is hereby ordered deducted from the
cash bond posted by the accused pursuant to Section 22 of Rule 114 of the Rules of Court and the
remaining balance ordered returned to the accused. The accused is hereby ordered immediately
committed to the BJMP, Cadiz City for the service of his sentence.

Cost against the accused.

SO ORDERED.5

Ruling of the Court of Appeals

Petitioner appealed the Decision of the RTC to the CA which, as stated earlier, rendered judgment
on August 31, 2005, affirming with modification the Decision of the RTC. Like the trial court, the
appellate court found the presence of all the elements of the crime of libel. It reduced however, the
amount of moral damages to ₱500,000.00. Petitioner then filed his Motion for Reconsideration,
which the appellate court denied in its Resolution6 dated April 7, 2006.

Disgruntled, petitioner is now before us via the instant petition. Per our directive, private respondent
filed his Comment7 on August 29, 2006 while the Office of the Solicitor General (OSG) representing
public respondent People of the Philippines, submitted a Manifestation and Motion in Lieu of
Comment8 on even date. After the filing of petitioner’s Reply to private respondent’s Comment, we
further requested the parties to submit their respective memoranda. The OSG filed a Manifestation
in Lieu of Memorandum, adopting as its memorandum, the Manifestation and Motion in Lieu of
Comment it earlier filed. Petitioner and private respondent submitted their respective memoranda as
required.

Issues

Petitioner raised the following arguments in support of his petition:

WHETHER X X X THE COURT OF APPEALS ERRED IN HOLDING THAT THE WORDS "CADIZ
FOREVER[,] BADING AND SAGAY NEVER" CONTAINED IN THE BILLBOARDS/SIGNBOARDS
SHOW THE INJURIOUS NATURE OF THE IMPUTATIONS MADE AGAINST THE PRIVATE
RESPONDENT AND TENDS TO INDUCE SUSPICION ON HIS CHARACTER, INTEGRITY AND
REPUTATION AS MAYOR OF CADIZ CITY.

II

ASSUMING WITHOUT CONCEDING THAT THE WORDS "CADIZ FOREVER, BADING AND
SAGAY NEVER" CONTAINED IN THE BILLBOARDS ERECTED BY PETITIONER ARE
DEFAMATORY, DID THE COURT OF APPEALS ERR IN NOT HOLDING THAT THEY COMPRISE
FAIR COMMENTARY ON MATTERS OF PUBLIC INTEREST WHICH ARE THEREFORE
PRIVILEGED?

III

WHETHER X X X THE COURT OF APPEALS ERRED IN HOLDING THAT THE PRESUMPTION

OF MALICE IN THE CASE AT BAR HAS NOT BEEN OVERTHROWN.

IV

WHETHER X X X THE COURT OF APPEALS ERRED IN NOT ACQUITTING PETITIONER OF

THE CHARGE OF LIBEL AND IN HOLDING HIM LIABLE FOR MORAL DAMAGES IN THE
AMOUNT OF ₱500,000.9

Summed up, the focal issues tendered in the present petition boil down to the following: 1) whether
the printed phrase "CADIZ FOREVER, BADING AND SAGAY NEVER" is libelous; and 2) whether
the controversial words used constituted privileged communication.

Our Ruling

We ought to reverse the CA ruling.

At the outset, only questions of law may be raised in a petition for review on certiorari under Rule 45
of the Rules of Court. The factual findings of the lower courts are final and conclusive and are not
reviewable by this Court, unless the case falls under any of the following recognized exceptions:

1. When the conclusion is a finding grounded entirely on speculation, surmises and

conjectures;

2. When the inference made is manifestly mistaken, absurd or impossible;

3. Where there is a grave abuse of discretion;

4. When the judgment is based on a misapprehension of facts;

5. When the findings of fact are conflicting;

6. When the Court of Appeals, in making its findings, went beyond the issues of the case and
the same is contrary to the admissions of both appellant and appellee;

7. When the findings are contrary to those of the trial court;

8. When the findings of fact are conclusions without citation of specific evidence on which
they are based;

9. When the facts set forth in the petition as well as in the petitioners’ main and reply briefs
are not disputed by the respondents; and,

10. When the findings of fact of the Court of Appeals are premised on the supposed absence
of evidence and contradicted by the evidence on record.10

Indeed, the CA affirmed the factual findings of the RTC that all the elements of the crime of libel are
present in this case. Thus, following the general rule, we are precluded from making further
evaluation of the factual antecedents of the case. However, we cannot lose sight of the fact that both
lower courts have greatly misapprehended the facts in arriving at their unanimous conclusion.
Hence, we are constrained to apply one of the exceptions specifically paragraph 4 above, instead of
the general rule.

Petitioner takes exception to the CA’s ruling that the controversial phrase "CADIZ FOREVER,
BADING AND SAGAY NEVER" tends to induce suspicion on private respondent’s character,
integrity and reputation as mayor of Cadiz City. He avers that there is nothing in said printed matter
tending to defame and induce suspicion on the character, integrity and reputation of private
respondent.

The OSG, in its Manifestation and Motion in Lieu of Comment, asserts that "there is nothing in the
phrase "CADIZ FOREVER" and "BADING AND SAGAY NEVER" which ascribe to private
respondent any crime, vice or defect, or any act, omission, condition, status or circumstance which
will either dishonor, discredit, or put him into contempt."11

The prosecution maintains that the appellate court correctly sustained the trial court’s finding of guilt
on petitioner. Citing well-established jurisprudence12 holding that "[w]ords calculated to induce
suspicion are sometimes more effective

to destroy reputation than false charges directly made" and that "[i]ronical and metaphorical
language is a favored vehicle for slander," it argued that the words printed on the billboards
somehow bordered on the incomprehensible and the ludicrous yet they were so deliberately crafted
solely to induce suspicion and cast aspersion against private respondent’s honor and reputation.

A libel is defined as "a public and malicious imputation of a crime or of a vice or defect, real or
imaginary or any act, omission, condition, status or circumstance tending to cause the dishonor,
discredit or contempt of a natural or juridicial person or to blacken the memory of one who is
dead."13 "For an imputation to be libelous, 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."14 Absent one of these elements precludes the commission of the crime of libel.

Although all the elements must concur, the defamatory nature of the subject printed phrase must be
proved first because this is so vital in a prosecution for libel. Were the words imputed not defamatory
in character, a libel charge will not prosper. Malice is necessarily rendered immaterial.
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. To determine "whether a statement is defamatory, the words used
are to be construed in their entirety and should be taken in their plain, natural and ordinary meaning
as they would naturally be understood by persons reading them, unless it appears that they were
used and understood in another sense."15 Moreover, "[a] charge is sufficient if the words are
calculated to induce the hearers to suppose and understand that the person or persons against
whom they were uttered were guilty of certain offenses or are sufficient to impeach the honesty,
virtue or reputation or to hold the person or persons up to public ridicule."16

Tested under these established standards, we cannot subscribe to the appellate court’s finding that
the phrase "CADIZ FOREVER, BADING AND SAGAY NEVER" tends to induce suspicion on private
respondent’s character, integrity and reputation as mayor of Cadiz City. There are no derogatory
imputations of a crime, vice or defect or any act, omission, condition, status or circumstance tending,
directly or indirectly, to cause his dishonor. Neither does the phrase in its entirety, employ any
unpleasant language or somewhat harsh and uncalled for that would reflect on private respondent’s
integrity. Obviously, the controversial word "NEVER" used by petitioner was plain and simple. In its
ordinary sense, the word did not cast aspersion upon private respondent’s integrity and reputation
much less convey the idea that he was guilty of any offense. Simply worded as it was with nary a
notion of corruption and dishonesty in government service, it is our considered view to appropriately
consider it as mere epithet or personal reaction on private respondent’s performance of official duty
and not purposely designed to malign and besmirch his reputation and dignity more so to deprive
him of public confidence.

Indeed, the prosecution witnesses were able to read the message printed in the billboards and gave
a negative impression on what it says. They imply that the message conveys something as if the
private respondent was being rejected as city mayor of Cadiz. But the trustworthiness of these
witnesses is doubtful considering the moral ascendancy exercised over them by the private
respondent such that it is quite easy for them to draw such negative impression. As observed by the
OSG, at the time the billboards were erected and during the incumbency of private respondent as
mayor of Cadiz City, these witnesses were either employed in the Cadiz City Hall or active in the
project of the city government. Bernardita was a member of the Clean and Green Program of Cadiz
City; Jude was employed as a licensing officer under the Permit and License Division of the Cadiz
City Hall and Nenita held the position of Utility Worker II of the General Services Office of Cadiz City.
These witnesses, according to the OSG, would naturally testify in his favor. They could have
verbicide the meaning of the word "NEVER." Prudently, at the least, the prosecution could have
presented witnesses within the community with more independent disposition than these witnesses
who are beholden to private respondent.

According to the private respondent, the message in the billboards would like to convey to the
people of Cadiz that he is a tuta of Sagay City.

We disagree. Strangely, the OSG adopted a position contrary to the interest of the People. In its
Manifestation and Motion in Lieu of Comment, instead of contesting the arguments of the petitioner,
the OSG surprisingly joined stance with him, vehemently praying for his acquittal. We quote with
approval the OSG’s analysis of the issue which was the basis for its observation, thus:

During the proceedings in the trial court, private respondent testified that the subject billboards
maligned his character and portrayed him as a puppet of Sagay City, Thus:

Q: You do not know of course the intention of putting those billboards "BADING AND SAGAY
NEVER"?

A: Definitely, I know the intention because to answer your question, it will not only require those
"BADING AND SAGAY NEVER" billboard[s], it was after which additional billboards were put up.
That strengthen, that I am being a "Tuta of Sagay. I am being maligned because of those billboards
that states and I repeat: "Ang Tubig san Cadiz, ginkuha sang Sagay", "Welcome to Brgy. Cadiz" and
there is a small word under it, Zone 2, very small, very very small, you cannot see it in [sic] a glance.

xxxx

A: That is the meaning of the signboard[s]. The message that the signboards would like to convey to
the people of Cadiz, that the Mayor of Cadiz City is a "Tuta" or Puppet of Sagay City.

x x x x17

Contrary to private respondent’s assertion, there is nothing in the subject billboards which state,
either directly or indirectly, that he is, in his words, a "tuta" or "puppet" of Sagay City. Except for
private respondent, not a single prosecution witness testified that the billboards portray Mayor
Bading Escalante, Jr. as a "tuta or "puppet" of Sagay City. The billboards erected by petitioner
simply say "CADIZ FOREVER", "BADING AND SAGAY NEVER"18

Apparently, private respondent refers to the circumstances mentioned in another billboard that is not
the subject matter in the present charge. The aforesaid facts dismally failed to support the
allegations in the instant information. Be that as it may, private respondent nevertheless did not
specify any actionable wrong or particular act or omission on petitioner’s part that could have
defamed him or caused his alleged injury. While it may be that the Court is not bound by the analysis
and observation of the OSG, still, the Court finds that it deserves meritorious consideration. The
prosecution never indulged to give any reason persuasive enough for the court not to adopt it.

Truth be told that somehow the private respondent was not pleased with the controversial printed
matter. But that is grossly insufficient to make it actionable by itself. "[P]ersonal hurt or
embarrassment or offense, even if real, is not automatically equivalent to defamation,"19 "words
which are merely insulting are not actionable as libel or slander per se, and mere words of general
abuse however opprobrious, ill-natured, or vexatious, whether written or spoken, do not constitute
bases for an action for defamation in the absence of an allegation for special damages. The fact that
the language is offensive to the plaintiff does not make it actionable by itself," as the Court ruled in
MVRS Publications, Inc. v. Islamic Da’ Wah Council of the Phils., Inc.20 1avv phil

In arriving at an analogous finding of guilt on petitioner, both lower courts heavily relied on the
testimony of the petitioner pertaining to the reasons behind the printing of the phrase "CADIZ
FOREVER BADING AND SAGAY NEVER."21 Our in-depth scrutiny of his testimony, however,
reveals that the reasons elicited by the prosecution mainly relate to the discharge of private
respondent’s official duties as City Mayor of Cadiz City. For that matter, granting that the
controversial phrase is considered defamatory, still, no liability attaches on petitioner. Pursuant to
Article 361 of the Revised Penal Code, if the defamatory statement is made against a public official
with respect to the discharge of his official duties and functions and the truth of the allegations is
shown, the accused will be entitled to an acquittal even though he does not prove that the imputation
was published with good motives and for justifiable ends. As the Court held in United States v.
Bustos,22 the policy of a public official may be attacked, rightly or wrongly with every argument which
ability can find or ingenuity invent. The public officer "may suffer under a hostile and an unjust
accusation; the wound can 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."

"In criminal prosecutions, fundamental is the requirement that the elemental acts constituting the
offense be established with moral certainty as this is the critical and only requisite to a finding of
guilt."23 In this case, contrary to the conclusion of the trial court as affirmed by the appellate court, the
prosecution failed to prove that the controversial phrase "CADIZ FOREVER, BADING AND SAGAY
NEVER" imputes derogatory remarks on private respondent’s character, reputation and integrity. In
this light, any discussion on the issue of malice is rendered moot.

WHEREFORE, the petition is GRANTED. The assailed Decision of the Court of Appeals dated
August 31, 2005 in CA-G.R. CR No. 28175 is REVERSED and SET ASIDE and the petitioner is
ACQUITTED of the crime charged.

SO ORDERED

MARIANO C. DEL CASTILLO

Associate Justice

WE CONCUR:

RENATO C. CORONA
Chief Justice
Chairperson

PRESBITERO J. VELASCO, JR. TERESITA J. LEONARDO-DE CASTRO

Associate Justice Associate Justice

JOSE PORTUGAL PEREZ

Associate Justice

CERTIFICATION

Pursuant to Section 13, Article VIII of the Constitution, it is hereby certified that the conclusions in
the above Decision had been reached in consultation before the case was assigned to the writer of
the opinion of the Court’s Division.
RENATO C. CORONA
Chief Justice