Constitutional Law II Art.III Sec.

3 and 4 Page |1

G.R. No. 93833 September 28, 1995 CHUCHI — Itutuloy ko na M'am sana ang duty ko.

SOCORRO D. RAMIREZ, petitioner, ESG — Kaso ilang beses na akong binabalikan doon ng mga no (sic) ko.
vs.
HONORABLE COURT OF APPEALS, and ESTER S. GARCIA, respondents. ESG — Nakalimutan mo na ba kung paano ka pumasok sa hotel, kung on your own
merit alam ko naman kung gaano ka "ka bobo" mo. Marami ang nag-aaply alam kong
KAPUNAN, J.: hindi ka papasa.

A civil case damages was filed by petitioner Socorro D. Ramirez in the Regional Trial Court of Quezon CHUCHI — Kumuha kami ng exam noon.
City alleging that the private respondent, Ester S. Garcia, in a confrontation in the latter's office,
allegedly vexed, insulted and humiliated her in a "hostile and furious mood" and in a manner offensive ESG — Oo, pero hindi ka papasa.
to petitioner's dignity and personality," contrary to morals, good customs and public policy."1
CHUCHI — Eh, bakit ako ang nakuha ni Dr. Tamayo
In support of her claim, petitioner produced a verbatim transcript of the event and sought moral
damages, attorney's fees and other expenses of litigation in the amount of P610,000.00, in addition to
ESG — Kukunin ka kasi ako.
costs, interests and other reliefs awardable at the trial court's discretion. The transcript on which the
civil case was based was culled from a tape recording of the confrontation made by petitioner.2 The
transcript reads as follows: CHUCHI — Eh, di sana —

Plaintiff Soccoro D. Ramirez (Chuchi) — Good Afternoon M'am.
Defendant Ester S. Garcia (ESG) — Ano ba ang nangyari sa 'yo, nakalimot ka na kung
paano ka napunta rito, porke member ka na, magsumbong ka kung ano ang gagawin
ko sa 'yo.
CHUCHI — Kasi, naka duty ako noon.
ESG — Tapos iniwan no. (Sic)
CHUCHI — Hindi m'am, pero ilan beses na nila akong binalikan, sabing ganoon —
ESG — Huwag mong ipagmalaki na may utak ka kasi wala kang utak. Akala mo ba
makukuha ka dito kung hindi ako.
CHUCHI — Mag-eexplain ako.
ESG — Huwag na, hindi ako mag-papa-explain sa 'yo, makaalala ka kung paano ka
puma-rito. "Putang-ina" sasabi-sabihin mo kamag-anak ng nanay at tatay mo ang
mga magulang ko.
ESG — Wala na akong pakialam, dahil nandito ka sa loob, nasa labas ka puwede ka
ng hindi pumasok, okey yan nasaloob ka umalis ka doon.

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

ESG — Ito and (sic) masasabi ko sa 'yo, ayaw kung (sic) mag explain ka, kasi
hanggang 10:00 p.m., kinabukasan hindi ka na pumasok. Ngayon ako ang babalik sa
'yo, nag-aaply ka sa States, nag-aaply ka sa review mo, kung kakailanganin ang ESG — Nandiyan na rin ako, pero huwag mong kalimutan na hindi ka makakapasok
certification mo, kalimutan mo na kasi hindi ka sa akin makakahingi. kung hindi ako. Kung hindi mo kinikilala yan okey lang sa akin, dahil tapos ka na.

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

ESG — Bastos ka, nakalimutan mo na kung paano ka pumasok dito sa hotel. ESG — Huwag na lang, hindi mo utang na loob, kasi kung baga sa no, nilapastangan
Magsumbong ka sa Union kung gusto mo. Nakalimutan mo na kung paano ka mo ako.
nakapasok dito "Do you think that on your own makakapasok ka kung hindi ako.
Panunumbyoyan na kita (Sinusumbatan na kita). CHUCHI — Paano kita nilapastanganan?

ESG — Mabuti pa lumabas ka na. Hindi na ako makikipagusap sa 'yo. Lumabas ka na.
Magsumbong ka.3
As a result of petitioner's recording of the event and alleging that the said act of secretly taping the
confrontation was illegal, private respondent filed a criminal case before the Regional Trial Court of
Pasay City for violation of Republic Act 4200, entitled "An Act to prohibit and penalize wire tapping and
other related violations of private communication, and other purposes." An information charging
petitioner of violation of the said Act, dated October 6, 1988 is quoted herewith:
INFORMATION
The Undersigned Assistant City Fiscal Accusses Socorro D. Ramirez of Violation of
Republic Act No. 4200, committed as follows:
That on or about the 22nd day of February, 1988, in Pasay City Metro Manila,
Philippines, and within the jurisdiction of this honorable court, the above-named
accused, Socorro D. Ramirez not being authorized by Ester S. Garcia to record the
latter's conversation with said accused, did then and there willfully, unlawfully and
feloniously, with the use of a tape recorder secretly record the said conversation and
thereafter communicate in writing the contents of the said recording to other person.
Contrary to law.
Pasay City, Metro Manila, September 16, 1988.
Upon arraignment, in lieu of a plea, petitioner filed a Motion to Quash the Information on the ground
that the facts charged do not constitute an offense, particularly a violation of R.A. 4200. In an order
May 3, 1989, the trial court granted the Motion to Quash, agreeing with petitioner that 1) the facts
charged do not constitute an offense under R.A. 4200; and that 2) the violation punished by R.A. 4200
refers to a the taping of a communication by a person other than a participant to the communication.4
From the trial court's Order, the private respondent filed a Petition for Review on Certiorari with this
Court, which forthwith referred the case to the Court of Appeals in a Resolution (by the First Division)
of June 19, 1989.
On February 9, 1990, respondent Court of Appeals promulgated its assailed Decision declaring the trial
court's order of May 3, 1989 null and void, and holding that:
[T]he allegations sufficiently constitute an offense punishable under Section 1 of R.A.
4200. In thus quashing the information based on the ground that the facts alleged do
not constitute an offense, the respondent judge acted in grave abuse of discretion
correctible by certiorari.5
Constitutional Law II Art.III Sec. 3 and 4 Page |2
Consequently, on February 21, 1990, petitioner filed a Motion for Reconsideration which respondent
Court of Appeals denied in its Resolution6 dated June 19, 1990. Hence, the instant petition.
Petitioner vigorously argues, as her "main and principal issue"7 that the applicable provision of Republic
Act 4200 does not apply to the taping of a private conversation by one of the parties to the
conversation. She contends that the provision merely refers to the unauthorized taping of a private
conversation by a party other than those involved in the communication. 8 In relation to this, petitioner
avers that the substance or content of the conversation must be alleged in the Information, otherwise
the facts charged would not constitute a violation of R.A. 4200.9 Finally, petitioner agues that R.A. 4200
penalizes the taping of a "private communication," not a "private conversation" and that consequently,
her act of secretly taping her conversation with private respondent was not illegal under the said act. 10
We disagree.
First, legislative intent is determined principally from the language of a statute. Where the language of
a statute is clear and unambiguous, the law is applied according to its express terms, and interpretation
would be resorted to only where a literal interpretation would be either impossible 11 or absurb or would
lead to an injustice. 12
Section 1 of R.A. 4200 entitled, " An Act to Prohibit and Penalized Wire Tapping and Other Related
Violations of Private Communication and Other Purposes," provides:
Sec. 1. It shall be unlawfull for any person, not being authorized by all the parties to
any private communication or spoken word, to tap any wire or cable, or by using any
other device or arrangement, to secretly overhear, intercept, or record such
communication or spoken word by using a device commonly known as a dictaphone
or dictagraph or detectaphone or walkie-talkie or tape recorder, or however otherwise
described.
The aforestated provision clearly and unequivocally makes it illegal for any person, not authorized by all
the parties to any private communication to secretly record such communication by means of a tape
recorder. The law makes no distinction as to whether the party sought to be penalized by the statute
ought to be a party other than or different from those involved in the private communication. The
statute's intent to penalize all persons unauthorized to make such recording is underscored by the use
of the qualifier "any". Consequently, as respondent Court of Appeals correctly concluded, "even a
(person) privy to a communication who records his private conversation with another without the
knowledge of the latter (will) qualify as a violator" 13 under this provision of R.A. 4200.
A perusal of the Senate Congressional Records, moreover, supports the respondent court's conclusion
that in enacting R.A. 4200 our lawmakers indeed contemplated to make illegal, unauthorized tape
recording of private conversations or communications taken either by the parties themselves or by third
persons. Thus:
xxx xxx xxx

Senator Tañada: That qualified only "overhear".
Senator Padilla: So that when it is intercepted or recorded, the element of secrecy
would not appear to be material. Now, suppose, Your Honor, the recording is not
made by all the parties but by some parties and involved not criminal cases that
would be mentioned under section 3 but would cover, for example civil cases or
special proceedings whereby a recording is made not necessarily by all the parties but
perhaps by some in an effort to show the intent of the parties because the actuation
of the parties prior, simultaneous even subsequent to the contract or the act may be
indicative of their intention. Suppose there is such a recording, would you say, Your
Honor, that the intention is to cover it within the purview of this bill or outside?
Senator Tañada: That is covered by the purview of this bill, Your Honor.
Senator Padilla: Even if the record should be used not in the prosecution of offense
but as evidence to be used in Civil Cases or special proceedings?
Senator Tañada: That is right. This is a complete ban on tape recorded conversations
taken without the authorization of all the parties.
Senator Padilla: Now, would that be reasonable, your Honor?
Senator Tañada: I believe it is reasonable because it is not sporting to record the
observation of one without his knowing it and then using it against him. It is not fair,
it is not sportsmanlike. If the purpose; Your honor, is to record the intention of the
parties. I believe that all the parties should know that the observations are being
recorded.
Senator Padilla: This might reduce the utility of recorders.
Senator Tañada: Well no. For example, I was to say that in meetings of the board of
directors where a tape recording is taken, there is no objection to this if all the parties
know. It is but fair that the people whose remarks and observations are being made
should know that the observations are being recorded.
Senator Padilla: Now, I can understand.
Senator Tañada: That is why when we take statements of persons, we say: "Please
be informed that whatever you say here may be used against you." That is fairness
and that is what we demand. Now, in spite of that warning, he makes damaging
statements against his own interest, well, he cannot complain any more. But if you
are going to take a recording of the observations and remarks of a person without
Constitutional Law II Art.III Sec. 3 and 4 Page |3
him knowing that it is being taped or recorded, without him knowing that what is
being recorded may be used against him, I think it is unfair.
xxx xxx xxx
(Congression Record, Vol. III, No. 31, p. 584, March 12, 1964)
Senator Diokno: Do you understand, Mr. Senator, that under Section 1 of the bill as
now worded, if a party secretly records a public speech, he would be penalized under
Section 1? Because the speech is public, but the recording is done secretly.
Senator Tañada: Well, that particular aspect is not contemplated by the bill. It is the
communication between one person and another person — not between a speaker
and a public.
xxx xxx xxx
(Congressional Record, Vol. III, No. 33, p. 626, March 12, 1964)
xxx xxx xxx
The unambiguity of the express words of the provision, taken together with the above-quoted
deliberations from the Congressional Record, therefore plainly supports the view held by the respondent
court that the provision seeks to penalize even those privy to the private communications. Where the
law makes no distinctions, one does not distinguish.
Second, the nature of the conversations is immaterial to a violation of the statute. The substance of the
same need not be specifically alleged in the information. What R.A. 4200 penalizes are the acts of
secretly overhearing, intercepting or recording private communications by means of the devices
enumerated therein. The mere allegation that an individual made a secret recording of a private
communication by means of a tape recorder would suffice to constitute an offense under Section 1 of
R.A. 4200. As the Solicitor General pointed out in his COMMENT before the respondent court: "Nowhere
(in the said law) is it required that before one can be regarded as a violator, the nature of the
conversation, as well as its communication to a third person should be professed." 14
Finally, petitioner's contention that the phrase "private communication" in Section 1 of R.A. 4200 does
not include "private conversations" narrows the ordinary meaning of the word "communication" to a
point of absurdity. The word communicate comes from the latin word communicare, meaning "to share
or to impart." In its ordinary signification, communication connotes the act of sharing or imparting
signification, communication connotes the act of sharing or imparting, as in a conversation, 15 or
signifies the "process by which meanings or thoughts are shared between individuals through a
common system of symbols (as language signs or gestures)" 16 These definitions are broad enough to
include verbal or non-verbal, written or expressive communications of "meanings or thoughts" which
 Constitutional Law II Art.III Sec. 3 and 4 Page |4

are likely to include the emotionally-charged exchange, on February 22, 1988, between petitioner and
private respondent, in the privacy of the latter's office. Any doubts about the legislative body's meaning
of the phrase "private communication" are, furthermore, put to rest by the fact that the terms
"conversation" and "communication" were interchangeably used by Senator Tañada in his Explanatory
Note to the bill quoted below:

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

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

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

SO ORDERED.

Republic of the Philippines
SUPREME COURT
Manila
SECOND DIVISION
G.R. No. L-69809 October 16, 1986
EDGARDO A. GAANAN, petitioner,
vs.
INTERMEDIATE APPELLATE COURT and PEOPLE OF THE PHILIPPINES, respondents.
GUTIERREZ, JR., J.:
This petition for certiorari asks for an interpretation of Republic Act (RA) No. 4200, otherwise known as
the Anti-Wiretapping Act, on the issue of whether or not an extension telephone is among the
prohibited devices in Section 1 of the Act, such that its use to overhear a private conversation would
constitute unlawful interception of communications between the two parties using a telephone line.
The facts presented by the People and narrated in the respondent court's decision are not disputed by
the petitioner.
In the morning of October 22, 1975, complainant Atty. Tito Pintor and his client Manuel
Montebon were in the living room of complainant's residence discussing the terms for the
withdrawal of the complaint for direct assault which they filed with the Office of the City Fiscal
of Cebu against Leonardo Laconico. After they had decided on the proposed conditions,
complainant made a telephone call to Laconico (tsn, August 26, 1981, pp. 3-5).
That same morning, Laconico telephoned appellant, who is a lawyer, to come to his office and
advise him on the settlement of the direct assault case because his regular lawyer, Atty. Leon
Gonzaga, went on a business trip. According to the request, appellant went to the office of
Laconico where he was briefed about the problem. (Exhibit 'D', tsn, April 22, 1982, pp. 4-5).
When complainant called up, Laconico requested appellant to secretly listen to the telephone
conversation through a telephone extension so as to hear personally the proposed conditions
for the settlement. Appellant heard complainant enumerate the following conditions for
withdrawal of the complaint for direct assault.
(a) the P5,000.00 was no longer acceptable, and that the figure had been increased to
P8,000.00. A breakdown of the P8,000.00 had been made together with other demands, to
wit: (a) P5,000.00 no longer for the teacher Manuel Montebon, but for Atty. Pintor himself in
persuading his client to withdraw the case for Direct Assault against Atty. Laconico before the
Cebu City Fiscal's Office;
Constitutional Law II Art.III Sec. 3 and 4 Page |5
(b) Public apology to be made by Atty. Laconico before the students of Don Bosco Technical
High School;
(c) Pl,000.00 to be given to the Don Bosco Faculty club;
(d) transfer of son of Atty. Laconico to another school or another section of Don Bosco
Technical High School;
(e) Affidavit of desistance by Atty. Laconico on the Maltreatment case earlier filed against
Manuel Montebon at the Cebu City Fiscal's Office, whereas Montebon's affidavit of desistance
on the Direct Assault Case against Atty. Laconico to be filed later;
(f) Allow Manuel Montebon to continue teaching at the Don Bosco Technical School;
(g) Not to divulge the truth about the settlement of the Direct Assault Case to the mass media;
(h) P2,000.00 attorney s fees for Atty. Pintor. (tsn, August 26, 1981, pp. 47-48).
Twenty minutes later, complainant called up again to ask Laconico if he was agreeable to the
conditions. Laconico answered 'Yes'. Complainant then told Laconico to wait for instructions on
where to deliver the money. (tsn, March 10, 1983, pp. 2-12).
Complainant called up again and instructed Laconico to give the money to his wife at the office
of the then Department of Public Highways. Laconico who earlier alerted his friend Colonel
Zulueta of the Criminal Investigation Service of the Philippine Constabulary, insisted that
complainant himself should receive the money. (tsn, March 10, 1982, pp. 26-33). When he
received the money at the Igloo Restaurant, complainant was arrested by agents of the
Philippine Constabulary.
Appellant executed on the following day an affidavit stating that he heard
complainant demand P8,000.00 for the withdrawal of the case for direct assault.
Laconico attached the affidavit of appellant to the complainant for robbery/extortion
which he filed against complainant. Since appellant listened to the telephone
conversation without complainant's consent, complainant charged appellant and
Laconico with violation of the Anti-Wiretapping Act.
After trial on the merits, the lower court, in a decision dated November 22, 1982, found both Gaanan
and Laconico guilty of violating Section 1 of Republic Act No. 4200. The two were each sentenced to
one (1) year imprisonment with costs. Not satisfied with the decision, the petitioner appealed to the
appellate court.
On August 16, 1984, the Intermediate Appellate Court affirmed the decision of the trial court, holding
that the communication between the complainant and accused Laconico was private in nature and,

therefore, covered by Rep. Act No. 4200; that the petitioner overheard such communication without the
knowledge and consent of the complainant; and that the extension telephone which was used by the
petitioner to overhear the telephone conversation between complainant and Laconico is covered in the
term "device' as provided in Rep. Act No. 4200.
In this petition for certiorari, the petitioner assails the decision of the appellate court and raises the
following issues; (a) whether or not the telephone conversation between the complainant and accused
Laconico was private in nature; (b) whether or not an extension telephone is covered by the term
"device or arrangement" under Rep. Act No. 4200; (c) whether or not the petitioner had authority to
listen or overhear said telephone conversation and (d) whether or not Rep. Act No. 4200 is ambiguous
and, therefore, should be construed in favor of the petitioner.
Section 1 of Rep. Act No. 4200 provides:
Section 1. It shall be unlawful for any person, not being authorized by all the parties
to any private communication or spoken word, to tap any wire or cable or by using
any other device or arrangement, to secretly overhear, intercept, or record such
communication or spoken word by using a device commonly known as a dictaphone
or dictagraph or detectaphone or walkie-talkie or tape-recorder, or however
otherwise described:
It shall be unlawful for any person, be he a participant or not in the act or acts
penalized in the next preceeding sentence, to knowingly possess any tape record,
wire record, disc record, or any other such record, or copies thereof, of any
communication or spoken word secured either before or after the effective date of
this Act in the manner prohibited by this law; or to replay the same for any other
person or persons; or to communicate the contents thereof, either verbally or in
writing, or to furnish transcriptions thereof, whether complete or partial, to any other
person: Provided, that the use of such record or any copies thereof as evidence in
any civil, criminal investigation or trial of offenses mentioned in Section 3 hereof, shall
not be covered by this prohibition.
We rule for the petitioner.
We are confronted in this case with the interpretation of a penal statute and not a rule of evidence. The
issue is not the admissibility of evidence secured over an extension line of a telephone by a third party.
The issue is whether or not the person called over the telephone and his lawyer listening to the
conversation on an extension line should both face prison sentences simply because the extension was
used to enable them to both listen to an alleged attempt at extortion.
There is no question that the telephone conversation between complainant Atty. Pintor and accused
Atty. Laconico was "private" in the sense that the words uttered were made between one person and
another as distinguished from words between a speaker and a public. It is also undisputed that only
one of the parties gave the petitioner the authority to listen to and overhear the caller's message with
Constitutional Law II Art.III Sec. 3 and 4 Page |6
the use of an extension telephone line. Obviously, complainant Pintor, a member of the Philippine bar,
would not have discussed the alleged demand for an P8,000.00 consideration in order to have his client
withdraw a direct assault charge against Atty. Laconico filed with the Cebu City Fiscal's Office if he
knew that another lawyer was also listening. We have to consider, however, that affirmance of the
criminal conviction would, in effect, mean that a caller by merely using a telephone line can force the
listener to secrecy no matter how obscene, criminal, or annoying the call may be. It would be the word
of the caller against the listener's.
Because of technical problems caused by the sensitive nature of electronic equipment and the extra
heavy loads which telephone cables are made to carry in certain areas, telephone users often encounter
what are called "crossed lines". An unwary citizzen who happens to pick up his telephone and who
overhears the details of a crime might hesitate to inform police authorities if he knows that he could be
accused under Rep. Act 4200 of using his own telephone to secretly overhear the private
communications of the would be criminals. Surely the law was never intended for such mischievous
results.
The main issue in the resolution of this petition, however, revolves around the meaning of the phrase
"any other device or arrangement." Is an extension of a telephone unit such a device or arrangement
as would subject the user to imprisonment ranging from six months to six years with the accessory
penalty of perpetual absolute disqualification for a public officer or deportation for an alien? Private
secretaries with extension lines to their bosses' telephones are sometimes asked to use answering or
recording devices to record business conversations between a boss and another businessman. Would
transcribing a recorded message for the use of the boss be a proscribed offense? or for that matter,
would a "party line" be a device or arrangement under the law?
The petitioner contends that telephones or extension telephones are not included in the enumeration of
"commonly known" listening or recording devices, nor do they belong to the same class of enumerated
electronic devices contemplated by law. He maintains that in 1964, when Senate Bill No. 9 (later Rep.
Act No. 4200) was being considered in the Senate, telephones and extension telephones were already
widely used instruments, probably the most popularly known communication device.
Whether or not listening over a telephone party line would be punishable was discussed on the floor of
the Senate. Yet, when the bill was finalized into a statute, no mention was made of telephones in the
enumeration of devices "commonly known as a dictaphone or dictagraph, detectaphone or walkie talkie
or tape recorder or however otherwise described." The omission was not a mere oversight. Telephone
party lines were intentionally deleted from the provisions of the Act.
The respondent People argue that an extension telephone is embraced and covered by the term
"device" within the context of the aforementioned law because it is not a part or portion of a complete
set of a telephone apparatus. It is a separate device and distinct set of a movable apparatus consisting
of a wire and a set of telephone receiver not forming part of a main telephone set which can be
detached or removed and can be transferred away from one place to another and to be plugged or
attached to a main telephone line to get the desired communication corning from the other party or
end.

The law refers to a "tap" of a wire or cable or the use of a "device or arrangement" for the purpose of
secretly overhearing, intercepting, or recording the communication. There must be either a physical
interruption through a wiretap or the deliberate installation of a device or arrangement in order to
overhear, intercept, or record the spoken words.
An extension telephone cannot be placed in the same category as a dictaphone, dictagraph or the other
devices enumerated in Section 1 of RA No. 4200 as the use thereof cannot be considered as "tapping"
the wire or cable of a telephone line. The telephone extension in this case was not installed for that
purpose. It just happened to be there for ordinary office use. It is a rule in statutory construction that in
order to determine the true intent of the legislature, the particular clauses and phrases of the statute
should not be taken as detached and isolated expressions, but the whole and every part thereof must
be considered in fixing the meaning of any of its parts. (see Commissioner of Customs v. Esso
Estandard Eastern, Inc., 66 SCRA 113,120).
In the case of Empire Insurance Com any v. Rufino (90 SCRA 437, 443-444), we ruled:
Likewise, Article 1372 of the Civil Code stipulates that 'however general the terms of
a contract may be, they shall not be understood to comprehend things that are
distinct and cases that are different from those upon which the parties intended to
agree.' Similarly, Article 1374 of the same Code provides that 'the various stipulations
of a contract shall be interpreted together, attributing to the doubtful ones that sense
which may result from all of them taken jointly.
xxx xxx xxx
Consequently, the phrase 'all liabilities or obligations of the decedent' used in
paragraph 5(c) and 7(d) should be then restricted only to those listed in the
Inventory and should not be construed as to comprehend all other obligations of the
decedent. The rule that 'particularization followed by a general expression will
ordinarily be restricted to the former' is based on the fact in human experience that
usually the minds of parties are addressed specially to the particularization, and that
the generalities, though broad enough to comprehend other fields if they stood alone,
are used in contemplation of that upon which the minds of the parties are centered.
(Hoffman v. Eastern Wisconsin R., etc., Co., 134 Wis. 603, 607, 115 NW 383, cited in
Francisco, Revised Rules of Court (Evidence), 1973 ed, pp. 180-181).
Hence, the phrase "device or arrangement" in Section 1 of RA No. 4200, although not exclusive to that
enumerated therein, should be construed to comprehend instruments of the same or similar nature,
that is, instruments the use of which would be tantamount to tapping the main line of a telephone. It
refers to instruments whose installation or presence cannot be presumed by the party or parties being
overheard because, by their very nature, they are not of common usage and their purpose is precisely
for tapping, intercepting or recording a telephone conversation.
Constitutional Law II Art.III Sec. 3 and 4 Page |7
An extension telephone is an instrument which is very common especially now when the extended unit
does not have to be connected by wire to the main telephone but can be moved from place ' to place
within a radius of a kilometer or more. A person should safely presume that the party he is calling at
the other end of the line probably has an extension telephone and he runs the risk of a third party
listening as in the case of a party line or a telephone unit which shares its line with another. As was
held in the case of Rathbun v. United States (355, U.S. 107, 2 L Ed 2d 137-138):
Common experience tells us that a call to a particular telephone number may cause the bell to
ring in more than one ordinarily used instrument. Each party to a telephone conversation takes
the risk that the other party may have an extension telephone and may allow another to
overhear the conversation. When such takes place there has been no violation of any privacy
of which the parties may complain. Consequently, one element of 605, interception, has not
occurred.
In the same case, the Court further ruled that the conduct of the party would differ in no way if instead
of repeating the message he held out his hand-set so that another could hear out of it and that there is
no distinction between that sort of action and permitting an outsider to use an extension telephone for
the same purpose.
Furthermore, it is a general rule that penal statutes must be construed strictly in favor of the accused.
Thus, in case of doubt as in the case at bar, on whether or not an extension telephone is included in
the phrase "device or arrangement", the penal statute must be construed as not including an extension
telephone. In the case of People v. Purisima, 86 SCRA 542, 562, we explained the rationale behind the
rule:
In the same case of Purisima, we also ruled that on the construction or interpretation of a
legislative measure, the primary rule is to search for and determine the intent and spirit of the
law. A perusal of the Senate Congressional Records will show that not only did our lawmakers
not contemplate the inclusion of an extension telephone as a prohibited device or
arrangement" but American jurisprudence sets down the reason for this rule to be the
tenderness of the law of the rights of individuals; the object is to establish a certain rule by
conformity to which mankind would be safe, and the discretion of the court limited. (United
States v. Harris, 177 US 305, 44 L Ed 780, 20 S Ct 609; Braffith v. Virgin Islands (CA3) 26 F2d
646; Caudill v. State, 224 Ind 531, 69 NE2d; Jennings v. Commonwealth, 109 VA 821,63 SE
1080, all cited in 73 Am Jur 2d 452). The purpose is not to enable a guilty person to escape
punishment through a technicality but to provide a precise definition of forbidden acts." (State
v. Zazzaro, 20 A 2d 737, quoted in Martin's Handbook on Statutory Construction, Rev. Ed. pp.
183-184).
of greater importance, they were more concerned with penalizing the act of recording than the act of
merely listening to a telephone conversation.
xxx xxx xxx
 Constitutional Law II Art.III Sec. 3 and 4 Page |8

Senator Tañada. Another possible objection to that is entrapment which is certainly WHEREFORE, the petition is GRANTED. The decision of the then Intermediate Appellate Court dated
objectionable. It is made possible by special amendment which Your Honor may August 16, 1984 is ANNULLED and SET ASIDE. The petitioner is hereby ACQUITTED of the crime of
introduce. violation of Rep. Act No. 4200, otherwise known as the Anti-Wiretapping Act.

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

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

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

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

xxx xxx xxx

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

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

(Congressional Record, Vol. III, No. 33, March 12, 1964, p. 629).

It can be readily seen that our lawmakers intended to discourage, through punishment, persons such as
government authorities or representatives of organized groups from installing devices in order to gather
evidence for use in court or to intimidate, blackmail or gain some unwarranted advantage over the
telephone users. Consequently, the mere act of listening, in order to be punishable must strictly be with
the use of the enumerated devices in RA No. 4200 or others of similar nature. We are of the view that
an extension telephone is not among such devices or arrangements.

SECOND DIVISION
[G.R. No. 107383. February 20, 1996.]
CECILIA ZULUETA, petitioner, vs. COURT OF APPEALS and ALFREDO MARTIN, respondents.
DECISION
MENDOZA, J.:
This is a petition to review the decision of the Court of Appeals, affirming the decision of the
Regional Trial Court of Manila (Branch X) which ordered petitioner to return documents and papers
taken by her from private respondents clinic without the latters knowledge and consent.
The facts are as follows:
Petitioner Cecilia Zulueta is the wife of private respondent Alfredo Martin. On March 26, 1982,
petitioner entered the clinic of her husband, a doctor of medicine, and in the presence of her mother, a
driver and private respondents secretary, forcibly opened the drawers and cabinet in her husbands
clinic and took 157 documents consisting of private correspondence between Dr. Martin and his alleged
paramours, greetings cards, cancelled checks, diaries, Dr. Martins passport, and photographs. The
documents and papers were seized for use in evidence in a case for legal separation and for
disqualification from the practice of medicine which petitioner had filed against her husband.
Dr. Martin brought this action below for recovery of the documents and papers and for damages
against petitioner. The case was filed with the Regional Trial Court of Manila, Branch X, which, after
trial, rendered judgment for private respondent, Dr. Alfredo Martin, declaring him the capital/exclusive
owner of the properties described in paragraph 3 of plaintiffs Complaint or those further described in
the Motion to Return and Suppress and ordering Cecilia Zulueta and any person acting in her behalf to
immediately return the properties to Dr. Martin and to pay him P5,000.00, as nominal damages;
P5,000.00, as moral damages and attorneys fees; and to pay the costs of the suit. The writ of
preliminary injunction earlier issued was made final and petitioner Cecilia Zulueta and her attorneys and
representatives were enjoined from using or submitting/admitting as evidence the documents and
papers in question. On appeal, the Court of Appeals affirmed the decision of the Regional Trial Court.
Hence this petition.
There is no question that the documents and papers in question belong to private respondent, Dr.
Alfredo Martin, and that they were taken by his wife, the herein petitioner, without his knowledge and
consent. For that reason, the trial court declared the documents and papers to be properties of private
respondent, ordered petitioner to return them to private respondent and enjoined her from using them
in evidence. In appealing from the decision of the Court of Appeals affirming the trial courts decision,
petitioners only ground is that in Alfredo Martin v. Alfonso Felix, Jr.,1 this Court ruled that the
documents and papers (marked as Annexes A-i to J-7 of respondents comment in that case) were
admissible in evidence and, therefore, their use by petitioners attorney, Alfonso Felix, Jr., did not
constitute malpractice or gross misconduct. For this reason it is contended that the Court of Appeals
erred in affirming the decision of the trial court instead of dismissing private respondents complaint.
Constitutional Law II Art.III Sec. 3 and 4 Page |9
Petitioners contention has no merit. The case against Atty. Felix, Jr. was for disbarment. Among
other things, private respondent, Dr. Alfredo Martin, as complainant in that case, charged that in using
the documents in evidence, Atty. Felix, Jr. committed malpractice or gross misconduct because of the
injunctive order of the trial court. In dismissing the complaint against Atty. Felix, Jr., this Court took
note of the following defense of Atty. Felix, Jr. which it found to be impressed with merit:2
On the alleged malpractice or gross misconduct of respondent [Alfonso Felix, Jr.], he maintains
that:
xxx xxx xxx
4. When respondent refiled Cecilias case for legal separation before the Pasig Regional Trial Court,
there was admittedly an order of the Manila Regional Trial Court prohibiting Cecilia from using the
documents Annex A-I to J-7. On September 6, 1983, however having appealed the said order to this
Court on a petition for certiorari, this Court issued a restraining order on aforesaid date which order
temporarily set aside the order of the trial court. Hence, during the enforceability of this Courts order,
respondents request for petitioner to admit the genuineness and authenticity of the subject annexes
cannot be looked upon as malpractice. Notably, petitioner Dr. Martin finally admitted the truth and
authenticity of the questioned annexes. At that point in time, would it have been malpractice for
respondent to use petitioners admission as evidence against him in the legal separation case pending in
the Regional Trial Court of Makati? Respondent submits it is- not malpractice.
Significantly, petitioners admission was done not thru his counsel but by Dr. Martin himself under
oath. Such verified admission constitutes an affidavit, and, therefore, receivable in evidence against
him. Petitioner became bound by his admission. For Cecilia to avail herself of her husbands admission
and use the same in her action for legal separation cannot be treated as malpractice.
Thus, the acquittal of Atty. Felix, Jr. in the administrative case amounts to no more than a
declaration that his use of the documents and papers for the purpose of securing Dr. Martins admission
as to their genuiness and authenticity did not constitute a violation of the injunctive order of the trial
court. By no means does the decision in that case establish the admissibility of the documents and
papers in question.
It cannot be overemphasized that if Atty. Felix, Jr. was acquitted of the charge of violating the
writ of preliminary injunction issued by the trial court, it was only because, at the time he used the
documents and papers, enforcement of the order of the trial court was temporarily restrained by this
Court. The TRO issued by this Court was eventually lifted as the petition for certiorari filed by petitioner
against the trial courts order was dismissed and, therefore, the prohibition against the further use of
the documents and papers became effective again.
Indeed the documents and papers in question are inadmissible in evidence. The constitutional
injunction declaring the privacy of communication and correspondence [to be] inviolable 3 is no less
applicable simply because it is the wife (who thinks herself aggrieved by her husbands infidelity) who is
the party against whom the constitutional provision is to be enforced. The only exception to the
prohibition in the Constitution is if there is a lawful order [from a] court or when public safety or order
requires otherwise, as prescribed by law. 4 Any violation of this provision renders the evidence obtained
inadmissible for any purpose in any proceeding.5
 C o n s t i t u t i o n a l L a w I I A r t . I I I S e c . 3 a n d 4 P a g e | 10

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

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

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

SO ORDERED.

Regalado (Chairman), Romero, and Puno, JJ., concur.

 C o n s t i t u t i o n a l L a w I I A r t . I I I S e c . 3 a n d 4 P a g e | 11

EN BANC renounced their support for the administration and called for the resignation of President Gloria
Macapagal-Arroyo and several cabinet members.
IN THE MATTER OF THE PETITION G.R. No. 160792
FOR HABEAS CORPUS OF Around 7:00 p.m. of the same date, the soldiers voluntarily surrendered to the authorities after
CAPT. GARY ALEJANO, PN (MARINES) several negotiations with government emissaries. The soldiers later defused the explosive devices they
CAPT. NICANOR FAELDON, PN (MARINES) had earlier planted. The soldiers then returned to their barracks.
CAPT. GERARDO GAMBALA, PA
LT. SG JAMES LAYUG, PN On 31 July 2003, Gen. Abaya, as the Chief of Staff of the AFP, issued a directive to all the Major Service
CAPT. MILO MAESTRECAMPO, PA Commanders to turn over custody of ten junior officers to the ISAFP Detention Center. The transfer
LT. SG ANTONIO TRILLANES IV, PN took place while military and civilian authorities were investigating the soldiers involvement in the
HOMOBONO ADAZA, and Oakwood incident.
ROBERTO RAFAEL (ROEL) PULIDO,
On 1 August 2003, government prosecutors filed an Information for coup detat with the Regional Trial
x- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - x Court of Makati City, Branch 61, against the soldiers involved in the 27 July 2003 Oakwood incident.
The government prosecutors accused the soldiers of coup detat as defined and penalized under Article
134-A of the Revised Penal Code of the Philippines, as amended. The case was docketed as Criminal
DECISION Case No. 03-2784. The trial court later issued the Commitment Orders giving custody of junior officers
Lt. SG Antonio Trillanes IV (Trillanes) and Capt. Gerardo Gambala to the Commanding Officers of
ISAFP.
CARPIO, J.:
On 2 August 2003, Gen. Abaya issued a directive to all Major Service Commanders to take into
custody the military personnel under their command who took part in the Oakwood incident except the
The Case detained junior officers who were to remain under the custody of ISAFP.
This petition for review[1] seeks to nullify the Decision[2] of the Court of Appeals dated 17
September 2003 and Resolution dated 13 November 2003 in CA-G.R. SP No. 78545. The Court of On 11 August 2003, petitioners filed a petition for habeas corpus with the Supreme Court. On 12
Appeals Decision and Resolution dismissed the petition for habeas corpus filed by lawyers Homobono August 2003, the Court issued a Resolution, which resolved to:
Adaza and Roberto Rafael Pulido (petitioners) on behalf of their detained clients Capt. Gary Alejano
(PN-Marines), Capt. Nicanor Faeldon (PN-Marines), Capt. Gerardo Gambala (PA), Lt. SG James Layug (a) ISSUE the WRIT OF HABEAS CORPUS; (b) require respondents to make
(PN), Capt. Milo Maestrecampo (PA), and Lt. SG Antonio Trillanes IV (PN) (detainees). a RETURN of the writ on Monday, 18 August 2003, at 10:00 a.m. before the Court of
Appeals; (c) refer the case to the Court of Appeals for RAFFLE among the Justices
Petitioners named as respondent Gen. Pedro Cabuay (Gen. Cabuay), Chief of the Intelligence thereof for hearing, further proceedings and decision thereon, after which
Service of the Armed Forces of the Philippines (ISAFP), who has custody of the detainees. Petitioners a REPORT shall be made to this Court within ten (10) days from promulgation of the
impleaded Gen. Narciso Abaya (Gen. Abaya), Sec. Angelo Reyes and Roilo Golez, who are respectively decision.[3]
the Chief of Staff of the Armed Forces of the Philippines (AFP), Secretary of National Defense and Thus, the Court issued a Writ of Habeas Corpus dated 12 August 2003 directing respondents
National Security Adviser, because they have command responsibility over Gen. Cabuay. to make a return of the writ and to appear and produce the persons of the detainees before the Court
of Appeals on the scheduled date for hearing and further proceedings.

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

On 18 August 2003, pursuant to the directives of the Court, respondents submitted their
Early morning of 27 July 2003, some 321 armed soldiers, led by the now detained junior officers,
Return of the Writ and Answer to the petition and produced the detainees before the Court of Appeals
entered and took control of the Oakwood Premier Luxury Apartments (Oakwood), an upscale apartment
during the scheduled hearing. After the parties filed their memoranda on 28 August 2003, the appellate
complex, located in the business district of Makati City. The soldiers disarmed the security officers of
court considered the petition submitted for decision.
Oakwood and planted explosive devices in its immediate surroundings. The junior officers publicly

On 17 September 2003, the Court of Appeals rendered its decision dismissing the petition.
Nonetheless, the appellate court ordered Gen. Cabuay, who was in charge of implementing the
regulations in the ISAFP Detention Center, to uphold faithfully the rights of the detainees in accordance
with Standing Operations Procedure No. 0263-04. The appellate court directed Gen. Cabuay to adhere
to his commitment made in court regarding visiting hours and the detainees right to exercise for two
hours a day.
The Ruling of the Court of Appeals
The Court of Appeals found the petition bereft of merit. The appellate court pointed out that
the detainees are already charged of coup detat before the Regional Trial Court of Makati. Habeas
corpus is unavailing in this case as the detainees confinement is under a valid indictment, the legality of
which the detainees and petitioners do not even question.
The Court of Appeals recognized that habeas corpus may also be the appropriate remedy to
assail the legality of detention if there is a deprivation of a constitutional right. However, the appellate
court held that the constitutional rights alleged to have been violated in this case do not directly affect
the detainees liberty. The appellate court ruled that the regulation of the detainees right to confer with
their counsels is reasonable under the circumstances.
The appellate court declared that while the opening and reading of Trillanes letter is an
abhorrent violation of his right to privacy of communication, this does not justify the issuance of a writ
of habeas corpus. The violation does not amount to illegal restraint, which is the proper subject
of habeas corpus proceedings.
The Court of Appeals thus dismissed the petition and ordered Gen. Cabuay to fulfill the
promise he made in open court to uphold the visiting hours and the right of the detainees to exercise
for two hours a day. The dispositive portion of the appellate courts decision reads:
WHEREFORE, the foregoing considered, the instant petition is hereby
DISMISSED. Respondent Cabuay is hereby ORDERED to faithfully adhere to his
commitment to uphold the constitutional rights of the detainees in accordance with
the Standing Operations Procedure No. 0263-04 regarding visiting hours and the right
of the detainees to exercise for two (2) hours a day.
SO ORDERED.[4]
The Issues
Petitioners raise the following issues for resolution:
A. THE COURT OF APPEALS ERRED IN REVIEWING
AND REVERSING A DECISION OF THE SUPREME COURT;
C o n s t i t u t i o n a l L a w I I A r t . I I I S e c . 3 a n d 4 P a g e | 12
B. THE COURT OF APPEALS ERRED IN NOT ACKNOWLEDGING THE
APPROPRIATENESS OF THE REMEDY PETITIONERS SEEK; and
C. THE COURT OF APPEALS ERRED IN ASSERTING THE LEGALITY OF THE
CONDITIONS OF THE DETAINED JUNIOR OFFICERS DETENTION.[5]
The Ruling of the Court
The petition lacks merit.
Petitioners claim that the Courts 12 August 2003 Order granted the petition and the Court
remanded the case to the Court of Appeals only for a factual hearing. Petitioners thus argue that the
Courts Order had already foreclosed any question on the propriety and merits of their petition.
Petitioners claim is baseless. A plain reading of the 12 August 2003 Order shows that the Court
referred to the Court of Appeals the duty to inquire into the cause of the junior officers detention. Had
the Court ruled for the detainees release, the Court would not have referred the hearing of the petition
to the Court of Appeals. The Court would have forthwith released the detainees had the Court upheld
petitioners cause.
In a habeas corpus petition, the order to present an individual before the court is a preliminary
step in the hearing of the petition.[6] The respondent must produce the person and explain the cause of
his detention.[7] However, this order is not a ruling on the propriety of the remedy or on the substantive
matters covered by the remedy. Thus, the Courts order to the Court of Appeals to conduct a factual
hearing was not an affirmation of the propriety of the remedy of habeas corpus.
For obvious reasons, the duty to hear the petition for habeas corpus necessarily includes the
determination of the propriety of the remedy. If a court finds the alleged cause of the detention
unlawful, then it should issue the writ and release the detainees. In the present case, after hearing the
case, the Court of Appeals found that habeas corpus is inapplicable. After actively participating in the
hearing before the Court of Appeals, petitioners are estopped from claiming that the appellate court
had no jurisdiction to inquire into the merits of their petition.
The Court of Appeals correctly ruled that the remedy of habeas corpus is not the proper
remedy to address the detainees complaint against the regulations and conditions in the ISAFP
Detention Center. The remedy of habeas corpus has one objective: to inquire into the cause of
detention of a person.[8] The purpose of the writ is to determine whether a person is being illegally
deprived of his liberty.[9] If the inquiry reveals that the detention is illegal, the court orders the release
of the person. If, however, the detention is proven lawful, then the habeas corpus proceedings
terminate. The use of habeas corpus is thus very limited. It is not a writ of error. [10] Neither can it
substitute for an appeal.[11]

Nonetheless, case law has expanded the writs application to circumstances where there is
deprivation of a persons constitutional rights. The writ is available where a person continues to be
unlawfully denied of one or more of his constitutional freedoms, where there is denial of due process,
where the restraints are not merely involuntary but are also unnecessary, and where a deprivation of
freedom originally valid has later become arbitrary. [12]
However, a mere allegation of a violation of ones constitutional right is not sufficient. The
courts will extend the scope of the writ only if any of the following circumstances is present: (a) there is
a deprivation of a constitutional right resulting in the unlawful restraint of a person; (b) the court had
no jurisdiction to impose the sentence; or (c) an excessive penalty is imposed and such sentence is void
as to the excess.[13] Whatever situation the petitioner invokes, the threshold remains high. The violation
of constitutional right must be sufficient to void the entire proceedings. [14]
Petitioners admit that they do not question the legality of the detention of the detainees.
Neither do they dispute the lawful indictment of the detainees for criminal and military offenses. What
petitioners bewail is the regulation adopted by Gen. Cabuay in the ISAFP Detention Center preventing
petitioners as lawyers from seeing the detainees their clients any time of the day or night. The
regulation allegedly curtails the detainees right to counsel and violates Republic Act No. 7438 (RA
7438).[15] Petitioners claim that the regulated visits made it difficult for them to prepare for the
important hearings before the Senate and the Feliciano Commission.
Petitioners also point out that the officials of the ISAFP Detention Center violated the detainees
right to privacy of communication when the ISAFP officials opened and read the personal letters of
Trillanes and Capt. Milo Maestrecampo (Maestrecampo). Petitioners further claim that the ISAFP
officials violated the detainees right against cruel and unusual punishment when the ISAFP officials
prevented the detainees from having contact with their visitors. Moreover, the ISAFP officials boarded
up with iron bars and plywood slabs the iron grills of the detention cells, limiting the already poor light
and ventilation in the detainees cells.
Pre-trial detainees do not forfeit their constitutional rights upon confinement. [16] However, the
fact that the detainees are confined makes their rights more limited than those of the public. [17] RA
7438, which specifies the rights of detainees and the duties of detention officers, expressly recognizes
the power of the detention officer to adopt and implement reasonable measures to secure the safety of
the detainee and prevent his escape. Section 4(b) of RA 7438 provides:
Section 4. Penalty Clause. a) x x x
b) Any person who obstructs, prevents or prohibits any lawyer, any member of the
immediate family of a person arrested, detained or under custodial investigation, or any
medical doctor or priest or religious minister or by his counsel, from visiting and
conferring privately chosen by him or by any member of his immediate family with him,
or from examining and treating him, or from ministering to his spiritual needs, at any
hour of the day or, in urgent cases, of the night shall suffer the penalty of
imprisonment of not less than four (4) years nor more than six (6) years, and a fine of
four thousand pesos (P4,000.00).
C o n s t i t u t i o n a l L a w I I A r t . I I I S e c . 3 a n d 4 P a g e | 13
The provisions of the above Section notwithstanding, any security officer with custodial
responsibility over any detainee or prisoner may undertake such reasonable
measures as may be necessary to secure his safety and prevent his escape.
(Emphasis supplied)
True, Section 4(b) of RA 7438 makes it an offense to prohibit a lawyer from visiting a detainee
client at any hour of the day or, in urgent cases, of the night. However, the last paragraph of the same
Section 4(b) makes the express qualification that notwithstanding the provisions of Section 4(b), the
detention officer has the power to undertake such reasonable measures as may be necessary to secure
the safety of the detainee and prevent his escape.
The last paragraph of Section 4(b) of RA 7438 prescribes a clear standard. The regulations
governing a detainees confinement must be reasonable measures x x x to secure his safety and prevent
his escape. Thus, the regulations must be reasonably connected to the governments objective of
securing the safety and preventing the escape of the detainee. The law grants the detention officer the
authority to undertake such reasonable measures or regulations
Petitioners contend that there was an actual prohibition of the detainees right to effective
representation when petitioners visits were limited by the schedule of visiting hours. Petitioners assert
that the violation of the detainees rights entitle them to be released from detention.
Petitioners contention does not persuade us. The schedule of visiting hours does not render
void the detainees indictment for criminal and military offenses to warrant the detainees release from
detention. The ISAFP officials did not deny, but merely regulated, the detainees right to counsel. The
purpose of the regulation is not to render ineffective the right to counsel, but to secure the safety and
security of all detainees. American cases are instructive on the standards to determine whether
regulations on pre-trial confinement are permissible.
In Bell v. Wolfish,[18] the United States (U.S.) Supreme Court held that regulations must be
reasonably related to maintaining security and must not be excessive in achieving that purpose. Courts
will strike down a restriction that is arbitrary and purposeless.[19] However, Bell v. Wolfish expressly
discouraged courts from skeptically questioning challenged restrictions in detention and prison
facilities.[20] The U.S. Supreme Court commanded the courts to afford administrators wide-ranging
deference in implementing policies to maintain institutional security.[21]
In our jurisdiction, the last paragraph of Section 4(b) of RA 7438 provides the standard to
make regulations in detention centers allowable: such reasonable measures as may be necessary
to secure the detainees safety and prevent his escape . In the present case, the visiting hours
accorded to the lawyers of the detainees are reasonably connected to the legitimate purpose of
securing the safety and preventing the escape of all detainees.
While petitioners may not visit the detainees any time they want, the fact that the detainees
still have face-to-face meetings with their lawyers on a daily basisclearly shows that there is no
impairment of detainees right to counsel. Petitioners as counsels could visit their clients between 8:00
a.m. and 5:00 p.m. with a lunch break at 12:00 p.m. The visiting hours are regular business hours, the
same hours when lawyers normally entertain clients in their law offices. Clearly, the visiting hours pass

the standard of reasonableness. Moreover, in urgent cases, petitioners could always seek permission
from the ISAFP officials to confer with their clients beyond the visiting hours.
The scheduled visiting hours provide reasonable access to the detainees, giving petitioners
sufficient time to confer with the detainees. The detainees right to counsel is not undermined by the
scheduled visits. Even in the hearings before the Senate and the Feliciano Commission, [22] petitioners
were given time to confer with the detainees, a fact that petitioners themselves admit. [23] Thus, at no
point were the detainees denied their right to counsel.
Petitioners further argue that the bars separating the detainees from their visitors and the
boarding of the iron grills in their cells with plywood amount to unusual and excessive punishment. This
argument fails to impress us. Bell v. Wolfish pointed out that while a detainee may not be punished
prior to an adjudication of guilt in accordance with due process of law, detention inevitably interferes
with a detainees desire to live comfortably. [24] The fact that the restrictions inherent in detention
intrude into the detainees desire to live comfortably does not convert those restrictions into
punishment.[25] It is when the restrictions are arbitrary and purposeless that courts will infer intent to
punish.[26] Courts will also infer intent to punish even if the restriction seems to be related rationally to
the alternative purpose if the restriction appears excessive in relation to that purpose.[27] Jail officials
are thus not required to use the least restrictive security measure. [28] They must only refrain from
implementing a restriction that appears excessive to the purpose it serves. [29]
We quote Bell v. Wolfish:
One further point requires discussion. The petitioners assert, and
respondents concede, that the essential objective of pretrial confinement is to insure
the detainees presence at trial. While this interest undoubtedly justifies the original
decision to confine an individual in some manner, we do not accept respondents
argument that the Governments interest in ensuring a detainees presence at trial is
the only objective that may justify restraints and conditions once the decision is
lawfully made to confine a person. If the government could confine or otherwise
infringe the liberty of detainees only to the extent necessary to ensure their presence
at trial, house arrest would in the end be the only constitutionally justified form of
detention. The Government also has legitimate interests that stem from its need to
manage the facility in which the individual is detained. These legitimate operational
concerns may require administrative measures that go beyond those that are, strictly
speaking, necessary to ensure that the detainee shows up at trial. For example, the
Government must be able to take steps to maintain security and order at the
institution and make certain no weapons or illicit drugs reach detainees. Restraints
that are reasonably related to the institutions interest in maintaining jail security do
not, without more, constitute unconstitutional punishment, even if they are
discomforting and are restrictions that the detainee would not have experienced had
he been released while awaiting trial. We need not here attempt to detail the precise
extent of the legitimate governmental interests that may justify conditions or
restrictions of pretrial detention. It is enough simply to recognize that in addition to
ensuring the detainees presence at trial, the effective management of the detention
facility once the individual is confined is a valid objective that may justify imposition
C o n s t i t u t i o n a l L a w I I A r t . I I I S e c . 3 a n d 4 P a g e | 14
of conditions and restrictions of pretrial detention and dispel any inference that such
restrictions are intended as punishment.[30]
An action constitutes a punishment when (1) that action causes the inmate to suffer some
harm or disability, and (2) the purpose of the action is to punish the inmate. [31] Punishment also
requires that the harm or disability be significantly greater than, or be independent of, the inherent
discomforts of confinement.[32]
Block v. Rutherford,[33] which reiterated Bell v. Wolfish, upheld the blanket restriction on
contact visits as this practice was reasonably related to maintaining security. The safety of innocent
individuals will be jeopardized if they are exposed to detainees who while not yet convicted are awaiting
trial for serious, violent offenses and may have prior criminal conviction. [34] Contact visits make it
possible for the detainees to hold visitors and jail staff hostage to effect escapes. [35]Contact visits also
leave the jail vulnerable to visitors smuggling in weapons, drugs, and other contraband. [36] The
restriction on contact visits was imposed even on low-risk detainees as they could also potentially be
enlisted to help obtain contraband and weapons. [37] The security consideration in the imposition of
blanket restriction on contact visits was ruled to outweigh the sentiments of the detainees. [38]
Block v. Rutherford held that the prohibition of contact visits bore a rational connection to
the legitimate goal of internal security. [39] This case reaffirmed the hands-off doctrine enunciated
in Bell v. Wolfish, a form of judicial self-restraint, based on the premise that courts should decline
jurisdiction over prison matters in deference to administrative expertise. [40]
In the present case, we cannot infer punishment from the separation of the detainees from
their visitors by iron bars, which is merely a limitation on contact visits. The iron bars separating the
detainees from their visitors prevent direct physical contact but still allow the detainees to have visual,
verbal, non-verbal and limited physical contact with their visitors. The arrangement is not unduly
restrictive. In fact, it is not even a strict non-contact visitation regulation like in Block v. Rutherford.
The limitation on the detainees physical contacts with visitors is a reasonable, non-punitive response to
valid security concerns.
The boarding of the iron grills is for the furtherance of security within the ISAFP Detention
Center. This measure intends to fortify the individual cells and to prevent the detainees from passing on
contraband and weapons from one cell to another. The boarded grills ensure security and prevent
disorder and crime within the facility. The diminished illumination and ventilation are but discomforts
inherent in the fact of detention, and do not constitute punishments on the detainees.
We accord respect to the finding of the Court of Appeals that the conditions in the ISAFP
Detention Center are not inhuman, degrading and cruel. Each detainee, except for Capt. Nicanor
Faeldon and Capt. Gerardo Gambala, is confined in separate cells, unlike ordinary cramped detention
cells. The detainees are treated well and given regular meals. The Court of Appeals noted that the cells
are relatively clean and livable compared to the conditions now prevailing in the city and provincial jails,
which are congested with detainees. The Court of Appeals found the assailed measures to be
reasonable considering that the ISAFP Detention Center is a high-risk detention facility. Apart from the
soldiers, a suspected New Peoples Army (NPA) member and two suspected Abu Sayyaf members are
detained in the ISAFP Detention Center.

We now pass upon petitioners argument that the officials of the ISAFP Detention Center
violated the detainees right to privacy when the ISAFP officials opened and read the letters handed by
detainees Trillanes and Maestrecampo to one of the petitioners for mailing. Petitioners point out that
the letters were not in a sealed envelope but simply folded because there were no envelopes in the
ISAFP Detention Center. Petitioners contend that the Constitution prohibits the infringement of a
citizens privacy rights unless authorized by law. The Solicitor General does not deny that the ISAFP
officials opened the letters.
Courts in the U.S. have generally permitted prison officials to open and read all incoming and
outgoing mail of convicted prisoners to prevent the smuggling of contraband into the prison facility and
to avert coordinated escapes.[41] Even in the absence of statutes specifically allowing prison authorities
from opening and inspecting mail, such practice was upheld based on the principle of civil
deaths.[42] Inmates were deemed to have no right to correspond confidentially with anyone. The only
restriction placed upon prison authorities was that the right of inspection should not be used to delay
unreasonably the communications between the inmate and his lawyer. [43]
Eventually, the inmates outgoing mail to licensed attorneys, courts, and court officials received
respect.[44] The confidential correspondences could not be censored. [45] The infringement of such
privileged communication was held to be a violation of the inmates First Amendment
rights.[46] A prisoner has a right to consult with his attorney in absolute privacy, which right is not
abrogated by the legitimate interests of prison authorities in the administration of the
institution.[47]Moreover, the risk is small that attorneys will conspire in plots that threaten prison
security.[48]
American jurisprudence initially made a distinction between the privacy rights enjoyed by
convicted inmates and pre-trial detainees. The case of Palmigiano v. Travisono[49] recognized that
pre-trial detainees, unlike convicted prisoners, enjoy a limited right of privacy in communication.
Censorship of pre-trial detainees mail addressed to public officials, courts and counsel was held
impermissible. While incoming mail may be inspected for contraband and read in certain instances,
outgoing mail of pre-trial detainees could not be inspected or read at all.
In the subsequent case of Wolff v. McDonnell,[50] involving convicted prisoners, the U.S.
Supreme Court held that prison officials could open in the presence of the inmates incoming mail from
attorneys to inmates. However, prison officials could not read such mail from attorneys. Explained the
U.S. Supreme Court:
The issue of the extent to which prison authorities can open and inspect incoming mail
from attorneys to inmates, has been considerably narrowed in the course of this
litigation. The prison regulation under challenge provided that (a)ll incoming and
outgoing mail will be read and inspected, and no exception was made for attorney-
prisoner mail. x x x
Petitioners now concede that they cannot open and read mail from attorneys to inmates,
but contend that they may open all letters from attorneys as long as it is done in the
presence of the prisoners. The narrow issue thus presented is whether letters determined
or found to be from attorneys may be opened by prison authorities in the presence of the
C o n s t i t u t i o n a l L a w I I A r t . I I I S e c . 3 a n d 4 P a g e | 15
inmate or whether such mail must be delivered unopened if normal detection techniques
fail to indicate contraband.
xxx
x x x If prison officials had to check in each case whether a communication was from an
attorney before opening it for inspection, a near impossible task of administration would
be imposed. We think it entirely appropriate that the State require any such
communications to be specially marked as originating from an attorney, with his name
and address being given, if they are to receive special treatment. It would also certainly
be permissible that prison authorities require that a lawyer desiring to correspond with a
prisoner, first identify himself and his client to the prison officials, to assure that the
letters marked privileged are actually from members of the bar. As to the ability to open
the mail in the presence of inmates, this could in no way constitute censorship, since the
mail would not be read. Neither could it chill such communications, since the inmates
presence insures that prison officials will not read the mail. The possibility that
contraband will be enclosed in letters, even those from apparent attorneys, surely
warrants prison officials opening the letters. We disagree with the Court of Appeals that
this should only be done in appropriate circumstances. Since a flexible test, besides being
unworkable, serves no arguable purpose in protecting any of the possible constitutional
rights enumerated by respondent, we think that petitioners, by acceding to a rule
whereby the inmate is present when mail from attorneys is inspected, have done all, and
perhaps even more, than the Constitution requires. [51]
In Hudson v. Palmer,[52] the U.S. Supreme Court ruled that an inmate has no reasonable
expectation of privacy inside his cell. The U.S. Supreme Court explained that prisoners necessarily lose
many protections of the Constitution, thus:
However, while persons imprisoned for crime enjoy many protections of the Constitution,
it is also clear that imprisonment carries with it the circumscription or loss of many
significant rights. These constraints on inmates, and in some cases the complete
withdrawal of certain rights, are justified by the considerations underlying our penal
system. The curtailment of certain rights is necessary, as a practical matter, to
accommodate a myriad of institutional needs and objectives of prison facilities,
chief among which is internal security. Of course, these restrictions or retractions also
serve, incidentally, as reminders that, under our system of justice, deterrence and
retribution are factors in addition to correction.[53]
The later case of State v. Dunn,[54] citing Hudson v. Palmer, abandoned Palmigiano v.
Travisono and made no distinction as to the detainees limited right to privacy. State v.
Dunn noted the considerable jurisprudence in the United States holding that inmate mail may be
censored for the furtherance of a substantial government interest such as security or discipline. State
v. Dunn declared that if complete censorship is permissible, then the lesser act of opening the mail and
reading it is also permissible. We quote State v. Dunn:
[A] right of privacy in traditional Fourth Amendment terms is fundamentally
incompatible with the close and continual surveillance of inmates and their cells

required to ensure institutional security and internal order. We are satisfied that
society would insist that the prisoners expectation of privacy always yield to what
must be considered a paramount interest in institutional security. We believe that it is
accepted by our society that [l]oss of freedom of choice and privacy are inherent
incidents of confinement.
The distinction between the limited privacy rights of a pre-trial detainee and a convicted
inmate has been blurred as courts in the U.S. ruled that pre-trial detainees might occasionally pose an
even greater security risk than convicted inmates. Bell v. Wolfish reasoned that those who are
detained prior to trial may in many cases be individuals who are charged with serious crimes or who
have prior records and may therefore pose a greater risk of escape than convicted inmates. [55]Valencia
v. Wiggins[56] further held that it is impractical to draw a line between convicted prisoners and pre-trial
detainees for the purpose of maintaining jail security.
American cases recognize that the unmonitored use of pre-trial detainees non-privileged mail
poses a genuine threat to jail security. [57] Hence, when a detainee places his letter in an envelope for
non-privileged mail, the detainee knowingly exposes his letter to possible inspection by jail
officials. [58] A pre-trial detainee has no reasonable expectation of privacy for his incoming
mail.[59] However, incoming mail from lawyers of inmates enjoys limited protection such that prison
officials can open and inspect the mail for contraband but could not read the contents without violating
the inmates right to correspond with his lawyer.[60] The inspection of privileged mail is limited to
physical contraband and not to verbal contraband.[61]
Thus, we do not agree with the Court of Appeals that the opening and reading of the
detainees letters in the present case violated the detainees right to privacy of communication. The
letters were not in a sealed envelope. The inspection of the folded letters is a valid measure as it serves
the same purpose as the opening of sealed letters for the inspection of contraband.
The letters alleged to have been read by the ISAFP authorities were not confidential letters
between the detainees and their lawyers. The petitioner who received the letters from detainees
Trillanes and Maestrecampo was merely acting as the detainees personal courier and not as their
counsel when he received the letters for mailing. In the present case, since the letters were not
confidential communication between the detainees and their lawyers, the officials of the
ISAFP Detention Center could read the letters. If the letters are marked confidential
communication between the detainees and their lawyers, the detention officials should not read the
letters but only open the envelopes for inspection in the presence of the detainees.
That a law is required before an executive officer could intrude on a citizens privacy rights[62] is
a guarantee that is available only to the public at large but not to persons who are detained or
imprisoned. The right to privacy of those detained is subject to Section 4 of RA 7438, as well as to the
limitations inherent in lawful detention or imprisonment. By the very fact of their detention, pre-trial
detainees and convicted prisoners have a diminished expectation of privacy rights.
In assessing the regulations imposed in detention and prison facilities that are alleged to infringe on the
constitutional rights of the detainees and convicted prisoners, U.S. courts balance the guarantees of the
C o n s t i t u t i o n a l L a w I I A r t . I I I S e c . 3 a n d 4 P a g e | 16
Constitution with the legitimate concerns of prison administrators. [63] The deferential review of such
regulations stems from the principle that:
[s]ubjecting the day-to-day judgments of prison officials to an inflexible strict scrutiny
analysis would seriously hamper their ability to anticipate security problems and to
adopt innovative solutions to the intractable problems of prison administration. [64]
The detainees in the present case are junior officers accused of leading 300 soldiers in
committing coup detat, a crime punishable with reclusion perpetua.[65]The junior officers are not
ordinary detainees but visible leaders of the Oakwood incident involving an armed takeover of a civilian
building in the heart of the financial district of the country. As members of the military armed forces,
the detainees are subject to the Articles of War.[66]
Moreover, the junior officers are detained with other high-risk persons from the Abu Sayyaf
and the NPA. Thus, we must give the military custodian a wider range of deference in implementing the
regulations in the ISAFP Detention Center. The military custodian is in a better position to know the
security risks involved in detaining the junior officers, together with the suspected Abu Sayyaf and NPA
members. Since the appropriate regulations depend largely on the security risks involved, we should
defer to the regulations adopted by the military custodian in the absence of patent arbitrariness.
The ruling in this case, however, does not foreclose the right of detainees and convicted
prisoners from petitioning the courts for the redress of grievances. Regulations and conditions in
detention and prison facilities that violate the Constitutional rights of the detainees and prisoners will be
reviewed by the courts on a case-by-case basis. The courts could afford injunctive relief or damages to
the detainees and prisoners subjected to arbitrary and inhumane conditions. However, habeas corpus is
not the proper mode to question conditions of confinement. [67] The writ of habeas corpus will only lie if
what is challenged is the fact or duration of confinement.[68]
WHEREFORE, we DISMISS the petition. We AFFIRM the Decision of the Court of Appeals
in CA-G.R. SP No. 78545.
No pronouncement as to costs.
SO ORDERED.
ANTONIO T. CARPIO
Associate Justic

EN BANC
ROMEO G. ROXAS and SANTIAGO N. PASTOR,
Petitioners,
- versus -
ANTONIO DE ZUZUARREGUI, JR., ENRIQUE DE ZUZUARREGUI, PACITA JAVIER, ELIZABETH
R. GONZALES, JOSEFINA R. DAZA, ELIAS REYES,
x- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - x
RESOLUTION
PER CURIAM:
Self-approbation, pride and self-esteem should not erode and dim the luster and dignity of this
Court. Against overweening bluster and superciliousness, nay, lordly claim, this Court must stand
steadfast, unmoved and uncompromising in upholding what is right and proper. In such posture, the
mandate of affording every man the equal protection of the law cannot dwindle. Strict adherence to
ethical conduct and righteousness without veering away from responsibility will foster an impregnable
respect, deference and even reverence to this Courts decisions and pronouncements.
In a Resolution[1] dated 26 September 2006, the Court En Banc ordered Atty. Romeo
G. Roxas to explain in writing why he should not be held in contempt of court and subjected to
disciplinary action when he, in a letter [2] dated 13 September 2006 addressed to Associate
Justice Minita V. Chico-Nazario with copies thereof furnished the Chief Justice and all the other
Associate Justices, intimated that Justice Nazario decided G.R. No. 152072 and No. 152104 on
considerations other than the pure merits of the case, and called the Supreme Court a dispenser of
injustice.
The letter of Atty. Roxas reads in part:
As an officer of the court, I am shocked beyond my senses to realize that such a
wrongful and unjust decision has been rendered with you no less as the ponente.
This terrible decision will go down in the annals of jurisprudence as an egregious
example of how the Supreme Court, supposedly the last vanguard and bulwark of
justice is itself made, wittingly or unwittingly, as a party to the wrongdoing by giving
official and judicial sanction and conformity to the unjust claims of
the Zuzuarreguis. We cannot fathom how such a decision could have been
arrived at except through considerations other than the pure merits of the
case. Every law student reading through the case can see clearly how a brother
C o n s t i t u t i o n a l L a w I I A r t . I I I S e c . 3 a n d 4 P a g e | 17
lawyer in the profession had been so short-changed by, ironically, the most sacred
and highest institution in the administration and dispensation of justice.
xxxx
This is an unjust and unfair decision, to say the least. x x x We cry out in disbelief
that such an impossible decision could spring forth from the Supreme Court, the
ultimate administrator and last bulwark of justice. As it stands, instead of being
an administrator of justice, the Supreme Court is ironically a dispenser of
injustice.
Under the circumstances, we hope you will forgive us in expressing our sentiment in
this manner as we are utterly frustrated and dismayed by the elementary injustice
being foisted upon us by the Supreme Court, no less. Given the facts of the case, we
will never understand what moved the Honorable Justice to decide as she
did and what forces and influences caused her to reason out her decision in
such an unfair and unjust manner as to compromise the reputation,
integrity and dignity itself of the Supreme Court, as a venerable institution
of justice.
As lawyers, we are officers of the Court so that, while we are
being underservedly pained by the seething injustice of the decision, we will submit
to the authority of Highest Court of the Land, even as our reverence for it has been
irreversibly eroded, thanks to your Honors Judgment.
xxxx
As for Your Honor, sleep well if you still can. In the end, those we address as
Honorable Justice in this earthly life will [be] judged by the Supreme Dispenser of
Justice where only the merits of Your Honors life will be relevant and material and
where technicalities can shield no one from his or her wrongdoings.
Good day to you, Madame Justice!

The decision referred to in the letter is the Courts decision[3] in these consolidated cases where
Attys. Roxas and Santiago N. Pastor were ordered to return, among others, to Antonio de Zuzuarregui,
Jr., et al. the amount of P17,073,224.84.
Roxas and Pastor filed their Motion for Reconsideration[4] on 8 March 2006 which they followed
with an Executive Summary[5] the day after. In a resolution dated 22 March 2006, the Court noted the
Executive Summary and deferred action on the Motion for Reconsideration. [6]
On 27 March 2006, the Court denied with finality the Motion for Reconsideration as the basic
issues have already been passed upon and there being no substantial argument to warrant the
modification of the Courts decision. [7]
On 30 March 2006, Roxas and Pastor filed a Motion for Leave to File Supplemental Motion for
Reconsideration, together with the Supplemental Motion for Reconsideration.[8]
The following day, they filed a Motion for Leave to File Motion to Set the Case for Oral
Argument, together with the Motion to Set the Case for Oral Argument (on the Motion for
Reconsideration and the Supplement thereto). [9] In a Manifestation dated 3 April 2006, Roxas and
Pastor asked that a typographical error appearing in the affidavits of service attached to the motions be
corrected and that the Motion to Set Case for Oral Argument be granted. [10]
On 7 April 2006, Antonio de Zuzuarregui, Jr., et al., filed a Motion for Leave to File Comment
on/Opposition to Motion for Reconsideration.[11]
On 7 June 2006, Roxas and Pastor filed an Urgent and Compelling Motion for Reconsideration
(with Motion to Refer the Case to the En Banc).[12]
On 7 June 2006, the Office of then Chief Justice Artemio V. Panganiban received from Roxas a
letter (with enclosures)[13] dated 6 June 2006 which contained, inter alia, the following:
This is an unjust and unfair decision, to say the least. x x x We cry out in
disbelief that such an impossible decision could spring forth from the Supreme Court,
the ultimate administrator and last bulwark of justice. As it stands, instead of being
an administrative of justice, the Supreme Court will ironically be a dispenser of
injustice.
Under the circumstances, we cannot avoid to suspect the bias and partiality
of the ponente of the case who we surmise must have been moved by
considerations, other than noble.
In this regard, Mr. Chief Justice, we implore Your Honor, as steward of the
Highest Court of the land, to take appropriate steps to forthwith correct this
anomalous decision by first, referring the case to the Supreme Court En Banc, and
C o n s t i t u t i o n a l L a w I I A r t . I I I S e c . 3 a n d 4 P a g e | 18
then, after allowing us the opportunity to be heard orally En Banc and after
judiciously considering our Urgent and Compelling Motion for Reconsideration,
thereafter reversing the decision of this Honorable Courts First Division.
Finally, in order to cleanse the Supreme Court of the blot caused by this
case, we most ardently implore upon Your Honor to immediately direct the conduct of
an investigation of how such an impossible decision was rendered at all and to
sanction the perpetrators thereon.
As the Chief Justice, we have faith in you, Sir, to rectify a grievous wrong
inflicted upon a member of the Bar and to restore the good image and reputation of
the Court by causing the High Court to reverse such an inconceivable decision that is
unfair, unjust and illegal, being an [impairment] of the obligation of contracts and
against the principle of estoppel.
Said letter was indorsed to the Clerk of Court of the First Division for its inclusion in the
agenda.[14]
On 12 July 2006, the Court resolved to (a) Note Without Action (1) the motion of petitioners Roxas and
Pastor for leave to file supplemental motion for reconsideration of the decision dated January 31, 2006;
(2) the aforesaid supplemental motion for reconsideration; and (3) respondents Zuzuarreguis motion
for leave of court to file comment/opposition to motion for reconsideration, said motion for
reconsideration having been denied with finality in the resolution of 27 March 2006; (b) Deny for lack of
merit said petitioners (1) motion for leave to file motion to set case for oral argument; and (2) motion
to set the case for oral argument [on the motion for reconsideration and the supplement thereto]; (c)
Note petitioners manifestation regarding the correction of typographical error in the affidavit of service
of their motion for leave to file motion to set case for oral argument and said motion to set case for oral
arguments; (d) Deny the urgent and compelling second motion for reconsideration of petitioners
Romeo G. Roxas and Santiago N. Pastor of the decision dated 31 January 2006 [with motion to refer
the case to the Court En Banc], considering that a second motion for reconsideration is a prohibited
pleading under Sec. 2, Rule 52, in relation to Sec. 4, Rule 56 of the 1997 Rules of Civil Procedure, as
amended; (e) Deny said petitioners motion to refer the cases to the Court En Banc, the latter not being
an appellate court to which decisions or resolutions of the Divisions may be appealed, pursuant to SC
Circular 2-89 dated 7 February 1989, as amended by the resolution of 18 November 1993; and (f) Note
the First Indorsement dated 9 June 2006 of the Hon. Chief Justice Artemio V. Panganiban referring for
inclusion in the agenda the thereto attached letter [with enclosures] of Atty. Romeo G. Roxas, relative
to these cases.[15]
On 13 September 2006, on motion by the Zuzuarreguis for the issuance of entry of judgment, the Court
ordered that entry of judgment in these cases be made in due course. [16]
On 14 September 2006, Roxas and Pastor filed an Urgent Motion for Clarification of Judgment.[17] On
even date, the letter subject of this contempt proceeding dated 13 September 2006 was received by
Justice Nazario with copies thereof furnished the Chief Justice and all the other Associate Justices. [18]

On 18 September 2006, Roxas and Pastor filed a Motion to Withdraw said motion and instead
prayed that their Urgent and Compelling Motion for Clarification of Judgment dated 15 September
2006 be admitted.[19]
On 20 September 2006, the Court, treating petitioners Roxas and Pastors Urgent Motion for
Clarification of Judgment as a second motion for reconsideration, denied the same for lack of merit. We
also noted without action the motion to withdraw said motion for clarification with intention to re-file
the same with the necessary corrections, and referred to the Court En Banc the letter dated 13
September 2006.[20]
In a resolution dated 26 September 2006, this Court ordered Atty. Roxas to explain in writing
why he should not be held in contempt of court and subjected to disciplinary action on account of the
letter he sent to Justice Nazario with copies thereof furnished the Chief Justice and all the other
Associate Justices.
On 22 November 2006, the Court noted without action petitioner Roxas and Pastors Urgent
and Compelling Motion for Clarification of Judgment in light of the denial of their Urgent Motion for
Clarification of Judgment on 20 September 2006 which the Court treated as a second motion for
reconsideration.[21]
On 16 November 2006, by way of compliance with the 26 September 2006 resolution,
Atty. Roxas submitted his written explanation. His letter stated:
With all due respect to this Honorable Court, and beyond my personal grievances, I
submit that the ruling in the subject consolidated cases may not have met the
standards or adhered to the basic characteristics of fair and just decision, such as
objectivity, neutrality and conformity to the laws and the constitution. x x x
xxxx
Aside from the fact that the aforesaid ruling appears to be seriously flawed, it also
casts grave aspersions on my personal and professional integrity and honor as a
lawyer, officer of the court and advocate of justice.
xxxx
These implications, Your Honors, which I find hard to accept, have caused me severe
anxiety, distress and depredation and have impelled me to exercise my right to
express a legitimate grievance or articulate a bona fide and fair criticism of this
Honorable Courts ruling.
While certain statements, averments and/or declarations in my 13 September
2006 letter may have been strongly-worded and construed by this Honorable Court as
tending to ascribe aspersions on the person of the Honorable Associate
Justice Minita V. Chico-Nazario, may I assure Your Honors that no such ascription was
ever intended by the undersigned.
Quite notably, despite my aggrieved sentiments and exasperated state, I chose to
ventilate my criticisms of the assailed ruling in a very discreet and private
C o n s t i t u t i o n a l L a w I I A r t . I I I S e c . 3 a n d 4 P a g e | 19
manner. Accordingly, instead of resorting to public criticism through media exposure,
I chose to write a personal letter confined to the hallowed halls of the highest tribunal
of the land and within the bounds of decency and propriety. This was done in good
faith with no intention whatsoever to offend any member, much less tarnish the
image of this Honorable Court.
Nonetheless, it is with humble heart and a repentant soul that I express my sincerest
apologies not only to the individual members of this Honorable Court but also to the
Supreme Court as a revered institution and ultimate dispenser of justice.
As earlier explained, I was merely exercising my right to express a legitimate
grievance or articulate a bona fide and fair criticism of this Honorable Courts ruling. If
the nature of my criticism/comment or the manner in which it was carried out was
perceived to have transgressed the permissible parameters of free speech and
expression, I am willing to submit myself to the sound and judicious discretion of this
Honorable Court. x x x
After reviewing the records of these cases, We firmly stand by our decision which Atty. Roxas described
to be unjust, unfair and impossible, and arrived at through considerations other than the pure merits of
the case. Atty. Roxass insistence that said decision did not meet the standards or adhered to the basic
characteristics of fair and just decision, such as objectivity, neutrality and conformity to the laws and
the Constitution, is simply without basis. The fact that the decision was not in his favor does not mean
that the same was contrary to our laws and was not rendered in a fair and impartial manner
In one case,[22] we had this to say when a lawyer challenged the integrity not only of the Court of
Appeals but also of this Court by claiming that the courts knowingly rendered an unjust judgment:
We note with wonder and amazement the brazen effrontery of respondent
in assuming that his personal knowledge of the law and his concept of justice are
superior to that of both the Supreme Court and the Court of Appeals. His pretense
cannot but tend to erode the people's faith in the integrity of the courts of justice and
in the administration of justice. He repeatedly invoked his supposed quest for law and
justice as justification for his contemptuous statements without realizing that, in
seeking both abstract elusive terms, he is merely pursuing his own personal concept
of law and justice. He seems not to comprehend that what to him may be lawful or
just may not be so in the minds of others. He could not accept that what to him may
appear to be right or correct may be wrong or erroneous from the viewpoint of
another. x x x.
It is to be noted that prior to his letter dated 13 September 2006, Atty. Roxas wrote then Chief
Justice Artemio V. Panganiban asking for an immediate investigation of how such an impossible decision
was rendered at all and to sanction the perpetrators thereon. It is to be stressed that then Chief
Justice Panganibanwas a member of the Division who concurred in the ponencia written by
Justice Nazario. The former and the other three members[23] of the Division did not find anything illegal,
unjust or unfair about the decision; otherwise, they would have registered their dissents. There was
none. The decision was arrived at after a thorough deliberation of the members of the Court.

Atty. Roxas faulted the Supreme Court when (o)ur two Motions for Reconsiderations were
unceremoniously denied via Minute Resolutions without addressing at all the merits of our very solid
arguments. We cannot help but observe the High Courts resort to technicalities (that a second motion
for reconsideration is a prohibited pleading) if only for it to avoid meeting the merits and arguments
directly.
It is settled that the Court is not duty-bound to render signed Decisions all the time. It has ample
discretion to formulate Decisions and/or minute Resolutions, provided a legal basis is given, depending
on its evaluation of a case.[24] In the case before us, after going over the motion for reconsideration
filed by Roxas and Pastor, we did not find any substantial argument that would merit the modification
of our decision and that would require an extended resolution since the basic issues had already been
passed upon.
In his letter subject of this contempt proceeding, Atty. Roxas accused Justice Nazario of
deciding the case through considerations other than the pure merits of the case. He averred that we
will never understand what moved the Honorable Justice to decide as she did and what forces and
influences caused her to reason out her decision in such an unfair and unjust manner as to compromise
the reputation, integrity and dignity itself of the Supreme Court, as a venerable institution of justice.He
then ended by mocking her when he said sleep well if you still can and that her earthly life will [be]
judged by the Supreme Dispenser of Justice where only the merits of Your Honors life will be relevant
and material and where technicalities can shield no one from his or her wrongdoings.
As to the Court, supposedly the last vanguard and bulwark of justice, he likewise accuses it of
making itself, wittingly or unwittingly, a party to the wrongdoing by giving official and judicial sanction
and conformity to the unjust claims of the adverse party. He added: This is an unjust and unfair
decision, to say the least. x x xWe cry out in disbelief that such an impossible decision could spring
forth from the Supreme Court, the ultimate administrator and last bulwark of justice. As it stands,
instead of being an administrator of justice, the Supreme Court is ironically a dispenser of injustice.
In his letter of explanation, Atty. Roxas extended apologies to Justice Nazario, to the other members of
the High Court and to the High Court itself as a revered institution and ultimate dispenser of justice. He
said he was merely exercising his right to express a legitimate grievance or articulate a bona fide and
fair criticism of the Honorable Courts ruling. He explained that his criticism of the assailed ruling was
done in good faith with no intention whatsoever to offend any member, much less tarnish the image of
the Court. Instead of resorting to public criticism through media exposure, he chose to ventilate his
criticism in a very discreet and private manner by writing a personal letter confined to the hallowed
halls of the Court and within bounds of decency and propriety.
We find the explanations of Atty. Roxas unsatisfactory. The accusation against
Justice Nazario is clearly without basis. The attack on the person of Justice Nazario has caused her pain
and embarrassment. His letter is full of contemptuous remarks tending to degrade the dignity of the
Court and erode public confidence that should be accorded it.
To prevent liability from attaching on account of his letter, he invokes his rights to free speech
and privacy of communication. The invocation of these rights will not, however, free him from
liability. As already stated, his letter contained defamatory statements that impaired public confidence
in the integrity of the judiciary.The making of contemptuous statements directed against the Court is
C o n s t i t u t i o n a l L a w I I A r t . I I I S e c . 3 a n d 4 P a g e | 20
not an exercise of free speech; rather, it is an abuse of such right. Unwarranted attacks on the dignity
of the courts cannot be disguised as free speech, for the exercise of said right cannot be used to impair
the independence and efficiency of courts or public respect therefor and confidence therein.[25] Free
expression must not be used as a vehicle to satisfy ones irrational obsession to demean, ridicule,
degrade and even destroy this Court and its magistrates.[26]
This Court does not curtail the right of a lawyer, or any person for that matter, to be critical of
courts and judges as long as they are made in properly respectful terms and through legitimate
channels. This Court in In re: Almacen[27] said:
Moreover, every citizen has the right to comment upon and criticize the
actuations of public officers. This right is not diminished by the fact that the criticism
is aimed at a judicial authority, or that is it articulated by a lawyer. Such right is
especially recognized where the criticism concerns a concluded litigation, because
then the courts actuation are thrown open to public consumption. x x x
xxxx
Courts and judges are not sacrosanct. They should and expect critical evaluation of
their performance. For like the executive and the legislative branches, the judiciary is
rooted in the soil of democratic society, nourished by the periodic appraisal of the
citizen whom it is expected to serve.
Well-recognized therefore is the right of a lawyer, both as an officer of the court and
as a citizen, to criticize in properly respectful terms and through legitimate channels
the acts of courts and judges. x x x
xxxx
Hence, as a citizen and as officer of the court, a lawyer is expected not only to
exercise the right, but also to consider it his duty to avail of such right. No law may
abridge this right. Nor is he professionally answerable for a scrutiny into the official
conduct of the judges, which would not expose him to legal animadversion as a
citizen.
xxxx
But it is the cardinal condition of all such criticism that it shall be bona fide and shall
not spill over the walls of decency and propriety. A wide chasm exists between fair
criticism, on the one hand, and abuse and slander of courts and the judges thereof,
on the other. Intemperate and unfair criticism is a gross violation of the duty of
respect to courts. It is such a misconduct that subjects a lawyer to disciplinary action.

In the case at bar, we find the statements made by Atty. Roxas to have been made mala fides and
exceeded the boundaries of decency and propriety. By his unfair and unfounded accusation against
Justice Nazario, and his mocking of the Court for allegedly being part of a wrongdoing and being a
dispenser of injustice, he abused his liberty of speech.
In In re: Wenceslao Laureta,[28] cited in United BF Homeowners v. Sandoval-Gutierrez,[29] we ruled:
To allow litigants to go beyond the Courts resolution and claim that the
members acted with deliberate bad faith and rendered an unjust resolution in
disregard or violation of the duty of their high office to act upon their own
independent consideration and judgment of the matter at hand would be to destroy
the authenticity, integrity and conclusiveness of such collegiate acts and resolutions
and to disregard utterly the presumption of regular performance of official duty. To
allow such collateral attack would destroy the separation of powers and undermine
the role of the Supreme Court as the final arbiter of all justiciable disputes.
xxxx
In resume, we find that respondent Ilustre has transcended the permissible
bounds of fair comment and criticism to the detriment of the orderly administration of
justice in her letters addressed to the individual Justices quoted in the show-cause
Resolution of this court en banc, particularly the under lined portions thereof; in the
language of the charges she filed before the Tanodbayan quoted and underscored in
the same Resolution; in her statements, conduct, acts and charges against the
Supreme Court and/or the official actions of the justices concerned and her ascription
of improper motives to them; and in her unjustified outburst that she can no longer
expect justice from this Court. The fact that said letters are not technically considered
pleadings, nor the fact that they were submitted after the main petition had been
finally resolved does not detract from the gravity of the contempt committed. The
constitutional right of freedom of speech or right to privacy cannot be used as a
shield for contemptuous acts against the Court.
Atty. Roxas likewise cannot hide under the mantle of the right to privacy. It must be disclosed that prior
to his letter addressed to Justice Nazario, Atty. Roxas first wrote then Chief Justice Panganiban asking
for an investigation as to how the assailed decision was rendered and to sanction the perpetrators. The
accusations contained therein are similar to those in his letter to Justice Nazario. The fact that his
letters were merely addressed to the Justices of this Court and were not disseminated to the media is
of no moment. Letters addressed to individual Justices, in connection with the performance of their
judicial functions, become part of the judicial record and are a matter of concern for the entire
court.[30] As can be gathered from the records, the letter to then Chief Justice Panganiban was merely
noted and no show-cause order was issued in the hope that Atty. Roxas would stop his assault on the
Court. However, since Atty. Roxas persisted in attacking the Court viahis second letter, it behooved the
Court to order him to explain why he should not be held in contempt of court and subjected to
disciplinary action.
Under the circumstances, we find Atty. Romeo G. Roxas guilty of indirect contempt of court
under Section 3, Rule 71 of the 1997 Rules of Civil Procedure, as amended. Said section reads:
C o n s t i t u t i o n a l L a w I I A r t . I I I S e c . 3 a n d 4 P a g e | 21
Section 3. Indirect contempt to be punished after charge and hearing. After
a charge in writing has been filed, and an opportunity given to the respondent to
comment thereon within such period as may be fixed by the court and to be heard by
himself or counsel, a person guilty of any of the following acts may be punished for
indirect contempt:
xxxx
d. Any improper conduct tending, directly or indirectly, to impede, obstruct,
or degrade the administration of justice; x x x.
xxxx
Section 7, Rule 71 of the 1997 Rules of Civil Procedure, as amended, provides the penalty for indirect
contempt as follows:
Sec. 7. Punishment for indirect contempt. If the respondent is adjudged
guilty of indirect contempt committed against a Regional Trial Court or a court of
equivalent or higher rank, he may be punished by a fine not exceeding thirty
thousand pesos or imprisonment not exceeding six (6) months or both. x x x.
The disrespect caused to the Court by Atty. Roxas merits a fine of P30,000.00 with a warning that a
repetition of a similar act will warrant a more severe penalty.
With his contemptuous and defamatory statements, Atty. Roxas likewise violated Canon 11 of
the Code of Professional Responsibility, particularly Canons 11.03 and 11.04. These provisions read:
CANON 11 -- A LAWYER SHALL OBSERVE AND MAINTAIN THE RESPECT DUE TO THE
COURTS AND TO JUDICIAL OFFICERS AND SHOULD INSIST ON SIMILAR CONDUCT
BY OTHERS
xxxx
Rule 11.03. A lawyer shall abstain from scandalous, offensive and menacing
language or behavior before the Courts.
Rule 11.04. A lawyer shall not attribute to a Judge motives not supported by
the record or have no materiality to the case.
It is the duty of a lawyer as an officer of the court to uphold the dignity and authority of the courts and
to promote confidence in the fair administration of justice and in the Supreme Court as the last bulwark
of justice and democracy.[31] Respect for the courts guarantees the stability of the judicial
institution. Without such guarantee, the institution would be resting on a very shaky
 C o n s t i t u t i o n a l L a w I I A r t . I I I S e c . 3 a n d 4 P a g e | 22

foundation.[32] When confronted with actions and statements, from lawyers and non-lawyers alike, that
tend to promote distrust and undermine public confidence in the judiciary, this Court will not hesitate to
wield its inherent power to cite any person in contempt. In so doing, it preserves its honor and dignity
and safeguards the morals and ethics of the legal profession.[33]

WHEREFORE, premises considered, Atty. Romeo G. Roxas is found GUILTY of indirect contempt of
court. He is hereby FINED the amount of P30,000.00 to be paid within ten (10) days from receipt of
this Resolution and WARNED that a repetition of a similar act will warrant a more severe penalty.

Let a copy of this Resolution be attached to Atty. Roxas personal record in the Office of the Bar
Confidant and copies thereof be furnished the Integrated Bar of the Philippines.

SO ORDERED.
 C o n s t i t u t i o n a l L a w I I A r t . I I I S e c . 3 a n d 4 P a g e | 23
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 .
 C o n s t i t u t i o n a l L a w I I A r t . I I I S e c . 3 a n d 4 P a g e | 24

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.
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 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 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.

On 9 March 1988, Hal McElroy flied a Motion to Dismiss with Opposition to the Petition for Preliminary
I
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 The constitutional and legal issues raised by the present Petitions are sharply drawn. Petitioners' claim
action as the mini-series had not yet been completed. 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
In an Order 2 dated 16 March 1988, respondent court issued a writ of Preliminary Injunction against the
unlawful intrusion into his privacy which he is entitled to enjoy.
petitioners, the dispositive portion of which reads thus:

Considering first petitioners' claim to freedom of speech and of expression the Court would once more
WHEREFORE, let a writ of preliminary injunction be issued, ordering defendants, and
stress that this freedom includes the freedom to film and produce motion pictures and to exhibit such
all persons and entities employed or under contract with them, including actors,
motion pictures in theaters or to diffuse them through television. In our day and age, motion pictures
actresses and members of the production staff and crew as well as all persons and
are a univesally utilized vehicle of communication and medium Of expression. Along with the press,
entities acting on defendants' behalf, to cease and desist from producing and filming
radio and television, motion pictures constitute a principal medium of mass communication for
the mini-series entitled 'The Four Day Revolution" and from making any reference
information, education and entertainment. In Gonzales v. Katigbak, 3former Chief Justice Fernando,
whatsoever to plaintiff or his family and from creating any fictitious character in lieu
speaking for the Court, explained:
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

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
10
Lagunzad v. Vda. de Gonzales, 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
C o n s t i t u t i o n a l L a w I I A r t . I I I S e c . 3 a n d 4 P a g e | 25
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
C o n s t i t u t i o n a l L a w I I A r t . I I I S e c . 3 a n d 4 P a g e | 26
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
C o n s t i t u t i o n a l L a w I I A r t . I I I S e c . 3 a n d 4 P a g e | 27
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.
 C o n s t i t u t i o n a l L a w I I A r t . I I I S e c . 3 a n d 4 P a g e | 28

Republic of the Philippines Unlike a regular news reporter or news correspondent who merely reports the news, petitioner
SUPREME COURT maintains that as a columnist, his column obviously and necessarily contains and reflects his opinions,
Manila views and beliefs on any issue or subject about which he writes. Petitioner believes that said provision
of COMELEC Resolution No. 2167 constitutes a prior restraint on his constitutionally-guaranteed
EN BANC freedom of the press and further imposes subsequent punishment for those who may violate it because
it contains a penal provision, as follows:
G.R. No. 90878 January 29, 1990
Article XIII, Section 122, Election Offenses and Banned Acts or Activities. — Except to the
extent that the same may not be applicable plebiscite. the banned acts/activities and offenses
PABLITO V. SANIDAD, petitioner,
defined in and penalized by the Omnibus Election Code ('Sections 261, 262, 263 and Article'
vs.
XXII, B.P. Blg. 881) and the pertinent provisions of R.A. No. 6646 shall be aplicable to the
THE COMMISSION ON ELECTIONS, respondent
plebiscite governed by this Resolution.

MEDIALDEA, J.:
Petitioner likewise maintains that if media practitioners were to express their views, beliefs and opinions
on the issue submitted to a plebiscite, it would in fact help in the government drive and desire to
This is a petition for certiorari assailing the constitutionality of Section 19 of Comelec Resolution No. disseminate information, and hear, as well as ventilate, all sides of the issue.
2167 on the ground that it violates the constitutional guarantees of the freedom of expression and of
the press.
On November 28, 1989, We issued a temporary restraining order enjoining respondent Commission on
Elections from enforcing and implementing Section 19 of Resolution No. 2167. We also required the
On October 23, 1989, Republic Act No. 6766, entitled "AN ACT PROVIDING FOR AN ORGANIC ACT FOR respondent to comment on the petition.
THE CORDILLERA AUTONOMOUS REGION" was enacted into law. Pursuant to said law, the City of
Baguio and the Cordilleras which consist of the provinces of Benguet, Mountain Province, Ifugao, Abra
On January 9, 1990, respondent Commission on Elections, through the Office of the Solicitor General
and Kalinga-Apayao, all comprising the Cordillera Autonomous Region, shall take part in a plebiscite for
filed its Comment.
the ratification of said Organic Act originally scheduled last December 27, 1989 which was, however,
reset to January 30, 1990 by virtue of Comelec Resolution No. 2226 dated December 27, 1989.
Respondent Comelec maintains that the questioned provision of Comelec Resolution No. 2167 is not
violative of the constitutional guarantees of the freedom of expression and of the press. Rather it is a
The Commission on Elections, by virtue of the power vested by the 1987 Constitution, the Omnibus
valid implementation of the power of the Comelec to supervise and regulate media during election or
Election Code (BP 881), said R.A. 6766 and other pertinent election laws, promulgated Resolution No. plebiscite periods as enunciated in Article IX-C, Section 4 of the 1987 Constitution of the Republic of the
2167, to govern the conduct of the plebiscite on the said Organic Act for the Cordillera Autonomous
Philippines.
Region.

It is stated further by respondent that Resolution 2167 does not absolutely bar petitioner from
In a petition dated November 20, 1989, herein petitioner Pablito V. Sanidad, who claims to be a
expressing his views and/or from campaigning for or against the Organic Act. He may still express his
newspaper columnist of the "OVERVIEW" for the BAGUIO MIDLAND COURIER, a weekly newspaper
views or campaign for or against the act through the Comelec space and airtime. This is provided under
circulated in the City of Baguio and the Cordilleras, assailed the constitutionality of Section 19 of
Sections 90 and 92 of BP 881:
Comelec Resolution No. 2167, which provides:

Section 90. Comelec Space. — Commission shall procure space in at least one newspaper of
Section 19. Prohibition on columnists, commentators or announcers. — During the plebiscite
general circulation in every province or city: Provided, however, That in the absence of said
campaign period, on the day before and on the plebiscite day, no mass media columnist,
newspaper, publication shall be done in any other magazine or periodical in said province or
commentator, announcer or personality shall use his column or radio or television time to
city, which shall be known as "Comelec Space" wherein candidates can announce their
campaign for or against the plebiscite issues.
candidacy. Said space shall be allocated, free of charge equally and impartially within the area
in which the newspaper is circulated.
It is alleged by petitioner that said provision is void and unconstitutional because it violates the
constitutional guarantees of the freedom of expression and of the press enshrined in the Constitution.
Section 92. Comelec Time. — The Commission shall procure radio and television time to be
known as "Comelec Time" which shall be allocated equally and impartially among the

candidates within the area of coverage of all radio and television stations. For this purpose, the
franchise of all radio broadcasting and television stations are hereby amended so as to provide
radio or television time, free of charge, during the period of the campaign.
Respondent Comelec has relied much on Article IX-C of the 1987 Constitution and Section 11 of R.A.
6646 as the basis for the promulgation of the questioned Section 19 of Comelec Resolution 2167.
Article IX-C of the 1987 Constitution provides:
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.
Similarly, Section 11 of Republic Act No. 6646 (The Electoral Reform Law of 1987) likewise provides:
Prohibited forms of election Propaganda. — In addition to the forms of election propaganda
prohibited under Section 85 of Batas Pambansa Blg. 881, it shall be unlawful: ...
(b) for any newspaper, radio, broadcasting or television station, or other mass media, or any
person making use of the mass media to sell or to give free of charge print space or air time
for campaign or other political purposes except to the Commission as provided under Sections
90 and 92 of Batas Pambansa Blg. 881. Any mass media columnist, commentator, announcer,
or personality who is a candidate for any elective office shall take a leave of absence from his
work as such during the campaign period. (Emphasis ours)
However, it is clear from Art. IX-C of the 1987 Constitution that what was granted to the Comelec was
the power to supervise and regulate the use and enjoyment of franchises, permits or other
grants issued for the operation of transportation or other public utilities, media of communication or
information to the end that equal opportunity, time and space, and the right to reply, including
reasonable, equal rates therefor, for public information campaigns and forums among candidates are
ensured. 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. This is also the reason why a "columnist, commentator, announcer or personality, who is
a candidate for any elective office is required to take a leave of absence from his work during the
campaign period (2nd par. Section 11(b) R.A. 6646). It cannot be gainsaid that a columnist or
commentator who is also a candidate would be more exposed to the voters to the prejudice of other
candidates unless required to take a leave of absence.
C o n s t i t u t i o n a l L a w I I A r t . I I I S e c . 3 a n d 4 P a g e | 29
However, neither Article IX-C of the Constitution nor Section 11 (b), 2nd par. of R.A. 6646 can be
construed to mean that the Comelec has also been granted the right to supervise and regulate the
exercise by media practitioners themselves of their right to expression during plebiscite periods. Media
practitioners exercising their freedom of expression during plebiscite periods are neither the franchise
holders nor the candidates. In fact, there are no candidates involved in a plebiscite. Therefore, Section
19 of Comelec Resolution No. 2167 has no statutory basis.
In the case of Badoy, Jr. v. Comelec, L-32546, Oct. 16, 1970, where the constitutionality of the
prohibition of certain forms of election propaganda was assailed, We ruled therein that the prohibition is
a valid exercise of the police power of the state "to prevent the perversion and prostitution of the
electoral apparatus and of the denial of equal protection of the laws." The evil sought to be prevented
in an election which led to Our ruling in that case does not obtain in a plebiscite. In a plebiscite, votes
are taken in an area on some special political matter unlike in an election where votes are cast in favor
of specific persons for some office. In other words, the electorate is asked to vote for or against issues,
not candidates in a plebiscite.
Anent respondent Comelec's argument that Section 19 of Comelec Resolution 2167 does not absolutely
bar petitioner-columnist from expressing his views and/or from campaigning for or against the organic
act because he may do so through the Comelec space and/or Comelec radio/television time, the same
is not meritorious. While the limitation does not absolutely bar petitioner's freedom of expression, it is
still a restriction on his choice of the forum where he may express his view. No reason was advanced by
respondent to justify such abridgement. We hold that this form of regulation is tantamount to a
restriction of petitioner's freedom of expression for no justifiable reason.
Plebiscite issues are matters of public concern and importance. The people's right to be informed and to
be able to freely and intelligently make a decision would be better served by access to an unabridged
discussion of the issues, including the forum. The people affected by the issues presented in a plebiscite
should not be unduly burdened by restrictions on the forum where the right to expression may be
exercised. Comelec spaces and Comelec radio time may provide a forum for expression but they do not
guarantee full dissemination of information to the public concerned because they are limited to either
specific portions in newspapers or to specific radio or television times.
ACCORDINGLY, the instant petition is GRANTED. Section 19 of Comelec Resolution No. 2167 is declared
null and void and unconstitutional. The restraining order herein issued is hereby made permanent.
SO ORDERED.
Fernan, C.J., Narvasa, Melencio-Herrera, Gutierrez, Jr., Cruz, Paras, Feliciano, Gancayco, Padilla, Bidin,
Sarmiento, Cortes, Griño-Aquino and Regalado, JJ., concur.
 C o n s t i t u t i o n a l L a w I I A r t . I I I S e c . 3 a n d 4 P a g e | 30

Republic of the Philippines xxx xxx xxx

SUPREME COURT
Manila (f) To draw, paint, inscribe, post, display or publicly exhibit any election
propaganda in any place, whether public or private, mobile or stationary, except in
EN BANC the COMELEC common posted areas and/or billboards, at the campaign headquarters
of the candidate or political party, organization or coalition, or at the candidate's own
residential house or one of his residential houses, if he has more than one:Provided,
that such posters or election propaganda shall not exceed two (2) feet by three (3)
feet in size. (Emphasis supplied)
G.R. No. 103956 March 31, 1992

xxx xxx xxx

BLO UMPAR ADIONG, petitioner,
vs.
COMMISSION ON ELECTIONS, respondent. The statutory provisions sought to be enforced by COMELEC are Section 82 of the Omnibus Election
Code on lawful election propaganda which provides:

Lawful election propaganda. — Lawful election propaganda shall include:

GUTIERREZ, JR., J.:
The specific issue in this petition is whether or not the Commission on Elections (COMELEC) may
prohibit the posting of decals and stickers on "mobile" places, public or private, and limit their location
or publication to the authorized posting areas that it fixes.
On January 13, 1992, the COMELEC promulgated Resolution No. 2347 pursuant to its powers granted
by the Constitution, the Omnibus Election Code, Republic Acts Nos. 6646 and 7166 and other election
laws.
Section 15(a) of the resolution provides:
Sec. 15. Lawful Election Propaganda. — The following are lawful election
propaganda:
(a) Pamphlets, leaflets, cards, decals, stickers, handwritten or printed letters, or other
written or printed materials not more than eight and one-half (8-1/2) inches in width
and fourteen (14) inches in length. Provided, That decals and stickers may be posted
only in any of the authorized posting areas provided in paragraph (f) of Section 21
hereof.
(a) Pamphlets, leaflets, cards, decals, stickers or other written or printed materials of
a size not more than eight and one-half inches in width and fourteen inches in length;
(b) Handwritten or printed letters urging voters to vote for or against any particular
candidate;
(c) Cloth, paper or cardboard posters, whether framed or posted, with an area not
exceeding two feet by three feet, except that, at the site and on the occasion of a
public meeting or rally, or in announcing the holding of said meeting or rally,
streamers not exceeding three feet by eight feet in size, shall be allowed: Provided,
That said streamers may not be displayed except one week before the date of the
meeting or rally and that it shall be removed within seventy-two hours after said
meeting or rally; or
(d) All other forms of election propaganda not prohibited by this Code as the
Commission may authorize after due notice to all interested parties and hearing
where all the interested parties were given an equal opportunity to be
heard: Provided, That the Commission's authorization shall be published in two
newspapers of general circulation throughout the nation for at least twice within one
week after the authorization has been granted. (Section 37, 1978 EC)

Section 21 (f) of the same resolution provides: and Section 11(a) of Republic Act No. 6646 which provides:

Sec. 21(f). Prohibited forms of election propaganda. — Prohibited Forms of Election Propaganda. — In addition to the forms of election
propaganda prohibited under Section 85 of Batas Pambansa Blg. 881, it shall be
It is unlawful: unlawful: (a) to draw, paint, inscribe, write, post, display or publicly exhibit any

election propaganda in any place, whether private, or public, except in the common
poster areas and/or billboards provided in the immediately preceding section, at the
candidate's own residence, or at the campaign headquarters of the candidate or
political party: Provided, That such posters or election propaganda shall in no case
exceed two (2) feet by three (3) feet in area: Provided, Further, That at the site of
and on the occasion of a public meeting or rally, streamers, not more than two (2)
and not exceeding three (3) feet by eight (8) feet each may be displayed five (5)
days before the date of the meeting or rally, and shall be removed within twenty-four
(24) hours after said meeting or rally; . . . (Emphasis supplied)
Petitioner Blo Umpar Adiong, a senatorial candidate in the May 11, 1992 elections now assails the
COMELEC's Resolution insofar as it prohibits the posting of decals and stickers in "mobile" places like
cars and other moving vehicles. According to him such prohibition is violative of Section 82 of the
Omnibus Election Code and Section 11(a) of Republic Act No. 6646. In addition, the petitioner believes
that with the ban on radio, television and print political advertisements, he, being a neophyte in the
field of politics stands to suffer grave and irreparable injury with this prohibition. The posting of decals
and stickers on cars and other moving vehicles would be his last medium to inform the electorate that
he is a senatorial candidate in the May 11, 1992 elections. Finally, the petitioner states that as of
February 22, 1992 (the date of the petition) he has not received any notice from any of the Election
Registrars in the entire country as to the location of the supposed "Comelec Poster Areas."
The petition is impressed with merit. The COMELEC's prohibition on posting of decals and stickers on
"mobile" places whether public or private except in designated areas provided for by the COMELEC itself
is null and void on constitutional grounds.
First — the prohibition unduly infringes on the citizen's fundamental right of free speech enshrined in
the Constitution (Sec. 4, Article III). There is no public interest substantial enough to warrant the kind
of restriction involved in this case.
There are various concepts surrounding the freedom of speech clause which we have adopted as part
and parcel of our own Bill of Rights provision on this basic freedom.
All of the protections expressed in the Bill of Rights are important but we have accorded to free speech
the status of a preferred freedom. (Thomas v. Collins, 323 US 516, 89 L. Ed. 430 [1945]; Mutuc v.
Commission on Elections, 36 SCRA 228 [1970])
This qualitative significance of freedom of expression arises from the fact that it is the matrix, the
indispensable condition of nearly every other freedom. (Palko v. Connecticut, 302 U.S. 319 [1937];
Salonga v. Paño, 134 SCRA 438 [1985]) It is difficult to imagine how the other provisions of the Bill of
Rights and the right to free elections may be guaranteed if the freedom to speak and to convince or
persuade is denied and taken away.
We have adopted the principle that debate on public issues should be uninhibited, robust, and wide
open and that it may well include vehement, caustic and sometimes unpleasantly sharp attacks on
C o n s t i t u t i o n a l L a w I I A r t . I I I S e c . 3 a n d 4 P a g e | 31
government and public officials. (New York Times Co. v. Sullivan, 376 U.S. 254, 11 L. Ed. 686 [1964];
cited in the concurring opinion of then Chief Justice Enrique Fernando in Babst v. National Intelligence
Board, 132 SCRA 316 [1984]) Too many restrictions will deny to people the robust, uninhibited, and
wide open debate, the generating of interest essential if our elections will truly be free, clean and
honest.
We have also ruled that the preferred freedom of expression calls all the more for the utmost respect
when what may be curtailed is the dissemination of information to make more meaningful the equally
vital right of suffrage. (Mutuc v. Commission on Elections, supra)
The determination of the limits of the Government's power to regulate the exercise by a citizen of his
basic freedoms in order to promote fundamental public interests or policy objectives is always a difficult
and delicate task. The so-called balancing of interests — individual freedom on one hand and
substantial public interests on the other — is made even more difficult in election campaign cases
because the Constitution also gives specific authority to the Commission on Elections to supervise the
conduct of free, honest, and orderly elections.
We recognize the fact that under the Constitution, the COMELEC during the election period is granted
regulatory powers vis-a-vis the conduct and manner of elections, to wit:
Sec. 4. The Commission may, during the election period supervise or regulate the
enjoyment or utilization of all franchises or permits for the operation of transportation
and other public utilities, media of communication or information, all grants special
privileges, or concessions granted by the Government or any subdivision, agency, or
instrumentality thereof, including any government-owned or controlled corporation or
its subsidiary. Such supervision or regulation shall aim to ensure equal opportunity,
time, and space, and the right to reply, including reasonable equal rates therefore,
for public information campaigns and forms among candidates in connection with the
object of holding free, orderly, honest, peaceful and credible elections. (Article IX(c)
section 4)
The variety of opinions expressed by the members of this Court in the recent case of National Press
Club v. Commission on Elections (G.R. No. 102653, March 5, 1991) and its companion cases
underscores how difficult it is to draw a dividing line between permissible regulation of election
campaign activities and indefensible repression committed in the name of free and honest elections. In
the National Press Club, case, the Court had occasion to reiterate the preferred status of freedom of
expression even as it validated COMELEC regulation of campaigns through political advertisements. The
gray area is rather wide and we have to go on a case to case basis.
There is another problem involved. Considering that the period of legitimate campaign activity is fairly
limited and, in the opinion of some, too short, it becomes obvious that unduly restrictive regulations
may prove unfair to affected parties and the electorate.

For persons who have to resort to judicial action to strike down requirements which they deem
inequitable or oppressive, a court case may prove to be a hollow remedy. The judicial process, by its
very nature, requires time for rebuttal, analysis and reflection. We cannot act instantly on knee-jerk
impulse. By the time we revoke an unallowably restrictive regulation or ruling, time which is of the
essence to a candidate may have lapsed and irredeemable opportunities may have been lost.
When faced with border line situations where freedom to speak by a candidate or party and freedom to
know on the part of the electorate are invoked against actions intended for maintaining clean and free
elections, the police, local officials and COMELEC, should lean in favor of freedom. For in the ultimate
analysis, the freedom of the citizen and the State's power to regulate are not antagonistic. There can
be no free and honest elections if in the efforts to maintain them, the freedom to speak and the right to
know are unduly curtailed.
There were a variety of opinions expressed in the National Press Club v. Commission on Elections
(supra) case but all of us were unanimous that regulation of election activity has its limits. We examine
the limits of regulation and not the limits of free speech. The carefully worded opinion of the Court,
through Mr. Justice Feliciano, shows that regulation of election campaign activity may not pass the test
of validity if it is too general in its terms or not limited in time and scope in its application, if it restricts
one's expression of belief in a candidate or one's opinion of his or her qualifications, if it cuts off the
flow of media reporting, and if the regulatory measure bears no clear and reasonable nexus with the
constitutionally sanctioned objective.
Even as the Court sustained the regulation of political advertisements, with some rather strong dissents,
in National Press Club, we find the regulation in the present case of a different category. The promotion
of a substantial Government interest is not clearly shown.
A government regulation is sufficiently justified if it is within the constitutional power
of the Government, if it furthers an important or substantial governmental interest; if
the governmental interest is unrelated to the suppression of free expression; and if
the incidental restriction on alleged First Amendment freedoms is no greater than is
essential to the furtherance of that interest. (Id., at 377, 20 L Ed 2d 672, 88 S Ct
1673. (City Council v. Taxpayers For Vincent, 466 US 789, 80 L Ed 2d 772, 104 S Ct
2118 [1984])
The posting of decals and stickers in mobile places like cars and other moving vehicles does not
endanger any substantial government interest. There is no clear public interest threatened by such
activity so as to justify the curtailment of the cherished citizen's right of free speech and expression.
Under the clear and present danger rule not only must the danger be patently clear and pressingly
present but the evil sought to be avoided must be so substantive as to justify a clamp over one's mouth
or a writing instrument to be stilled:
The case confronts us again with the duty our system places on the Court to say
where the individual's freedom ends and the State's power begins. Choice on that
border, now as always delicate, is perhaps more so where the usual presumption
C o n s t i t u t i o n a l L a w I I A r t . I I I S e c . 3 a n d 4 P a g e | 32
supporting legislation is balanced by the preferred place given in our scheme to the
great, the indispensable democratic freedom secured by the first Amendment . . .
That priority gives these liberties a sanctity and a sanction not permitting dubious
intrusions and it is the character of the right, not of the limitation, which determines
what standard governs the choice . . .
For these reasons any attempt to restrict those liberties must be justified by clear
public interest, threatened not doubtfully or remotely, but by clear and present
danger. The rational connection between the remedy provided and the evil to be
curbed, which in other context might support legislation against attack on due
process grounds, will not suffice. These rights rest on firmer foundation. Accordingly,
whatever occasion would restrain orderly discussion and persuasion, at appropriate
time and place, must have clear support in public danger, actual or impending. Only
the greatest abuses, endangering permanent interests, give occasion for permissible
limitation. (Thomas V. Collins, 323 US 516 [1945]). (Emphasis supplied)
Significantly, the freedom of expression curtailed by the questioned prohibition is not so much that of
the candidate or the political party. The regulation strikes at the freedom of an individual to express his
preference and, by displaying it on his car, to convince others to agree with him. A sticker may be
furnished by a candidate but once the car owner agrees to have it placed on his private vehicle, the
expression becomes a statement by the owner, primarily his own and not of anybody else. If, in
the National Press Club case, the Court was careful to rule out restrictions on reporting by newspapers
or radio and television stations and commentators or columnists as long as these are not correctly paid-
for advertisements or purchased opinions with less reason can we sanction the prohibition against a
sincere manifestation of support and a proclamation of belief by an individual person who pastes a
sticker or decal on his private property.
Second — the questioned prohibition premised on the statute and as couched in the resolution is void
for overbreadth.
A statute is considered void for overbreadth when "it offends the constitutional principle that a
governmental purpose to control or prevent activities constitutionally subject to state regulations may
not be achieved by means which sweep unnecessarily broadly and thereby invade the area of protected
freedoms." (Zwickler v. Koota, 19 L ed 2d 444 [1967]).
In a series of decisions this Court has held that, even though the governmental
purpose be legitimate and substantial, that purpose cannot be pursued by means that
broadly stifle fundamental personal liberties when the end can be more narrowly
achieved. The breadth of legislative abridgment must be viewed in the light of less
drastic means for achieving the same basic purpose.
In Lovell v. Griffin, 303 US 444, 82 L ed 949, 58 S Ct 666, the Court invalidated an
ordinance prohibiting all distribution of literature at any time or place in Griffin,
Georgia, without a license, pointing out that so broad an interference was

unnecessary to accomplish legitimate municipal aims. In Schneider v. Irvington, 308
US 147, 84 L ed 155, 60 S Ct. 146, the Court dealt with ordinances of four different
municipalities which either banned or imposed prior restraints upon the distribution of
handbills. In holding the ordinances invalid, the court noted that where legislative
abridgment of fundamental personal rights and liberties is asserted, "the courts
should be astute to examine the effect of the challenged legislation. Mere legislative
preferences or beliefs respecting matters of public convenience may well support
regulation directed at other personal activities, but be insufficient to justify such as
diminishes the exercise of rights so vital to the maintenance of democratic
institutions," 308 US, at 161. In Cantwell v Connecticut, 310 US 296, 84 L ed 1213,
60 S Ct. 900, 128 ALR 1352, the Court said that "[c]onduct remains subject to
regulation for the protection of society," but pointed out that in each case "the power
to regulate must be so exercised as not, in attaining a permissible end, unduly to
infringe the protected freedom." (310 US at 304) (Shelton v. Tucker, 364 US 479
[1960]
The resolution prohibits the posting of decals and stickers not more than eight and one-half (8-1/2)
inches in width and fourteen (14) inches in length in any place, including mobile places whether public
or private except in areas designated by the COMELEC. Verily, the restriction as to where the decals
and stickers should be posted is so broad that it encompasses even the citizen's private property, which
in this case is a privately-owned vehicle. In consequence of this prohibition, another cardinal rule
prescribed by the Constitution would be violated. Section 1, Article III of the Bill of Rights provides that
no person shall be deprived of his property without due process of law:
Property is more than the mere thing which a person owns, it includes the right to
acquire, use, and dispose of it; and the Constitution, in the 14th Amendment,
protects these essential attributes.
Property is more than the mere thing which a person owns. It is elementary that it
includes the right to acquire, use, and dispose of it. The Constitution protects these
essential attributes of property. Holden v. Hardy, 169 U.S. 366, 391, 41 L. ed. 780,
790, 18 Sup. Ct. Rep. 383. Property consists of the free use, enjoyment, and disposal
of a person's acquisitions without control or diminution save by the law of the land. 1
Cooley's Bl. Com. 127. (Buchanan v. Warley 245 US 60 [1917])
As earlier stated, we have to consider the fact that in the posting of decals and stickers on cars and
other moving vehicles, the candidate needs the consent of the owner of the vehicle. In such a case, the
prohibition would not only deprive the owner who consents to such posting of the decals and stickers
the use of his property but more important, in the process, it would deprive the citizen of his right to
free speech and information:
Freedom to distribute information to every citizen wherever he desires to receive it is
so clearly vital to the preservation of a free society that, putting aside reasonable
police and health regulations of time and manner of distribution, it must be fully
C o n s t i t u t i o n a l L a w I I A r t . I I I S e c . 3 a n d 4 P a g e | 33
preserved. The danger of distribution can so easily be controlled by traditional legal
methods leaving to each householder the full right to decide whether he will receive
strangers as visitors, that stringent prohibition can serve no purpose but that
forbidden by the constitution, the naked restriction of the dissemination of ideas."
(Martin v. City of Struthers, Ohio, 319 U.S. 141; 87 L. ed. 1313 [1943])
The right to property may be subject to a greater degree of regulation but when this right is joined by a
"liberty" interest, the burden of justification on the part of the Government must be exceptionally
convincing and irrefutable. The burden is not met in this case.
Section 11 of Rep. Act 6646 is so encompassing and invasive that it prohibits the posting or display of
election propaganda in any place, whether public or private, except in the common poster areas
sanctioned by COMELEC. This means that a private person cannot post his own crudely prepared
personal poster on his own front door or on a post in his yard. While the COMELEC will certainly never
require the absurd, there are no limits to what overzealous and partisan police officers, armed with a
copy of the statute or regulation, may do.
The provisions allowing regulation are so loosely worded that they include the posting of decals or
stickers in the privacy of one's living room or bedroom. This is delegation running riot. As stated by
Justice Cardozo in his concurrence in Panama Refining Co. v. Ryan (293 U.S. 388; 79 L. Ed. 446 [1935),
"The delegated power is unconfined and vagrant . . . This is delegation running riot. No such plentitude
of power is susceptible of transfer."
Third — the constitutional objective to give a rich candidate and a poor candidate equal opportunity to
inform the electorate as regards their candidacies, mandated by Article II, Section 26 and Article XIII,
section 1 in relation to Article IX (c) Section 4 of the Constitution, is not impaired by posting decals and
stickers on cars and other private vehicles. Compared to the paramount interest of the State in
guaranteeing freedom of expression, any financial considerations behind the regulation are of marginal
significance.
Under section 26 Article II of the Constitution, "The State shall guarantee equal access to opportunities
for public service, . . . while under section 1, Article XIII thereof "The Congress shall give highest
priority to the enactment of measures that protect and enhance the right of all the people to human
dignity, reduce social, economic, andpolitical inequalities, and remove cultural inequities by equitably
diffusing wealth and political power for the common good." (Emphasis supplied)
It is to be reiterated that the posting of decals and stickers on cars, calesas, tricycles, pedicabs and
other moving vehicles needs the consent of the owner of the vehicle. Hence, the preference of the
citizen becomes crucial in this kind of election propaganda not the financial resources of the candidate.
Whether the candidate is rich and, therefore, can afford to doleout more decals and stickers or poor
and without the means to spread out the same number of decals and stickers is not as important as the
right of the owner to freely express his choice and exercise his right of free speech. The owner can
even prepare his own decals or stickers for posting on his personal property. To strike down this right
and enjoin it is impermissible encroachment of his liberties.
 C o n s t i t u t i o n a l L a w I I A r t . I I I S e c . 3 a n d 4 P a g e | 34

In sum, the prohibition on posting of decals and stickers on "mobile" places whether public or private Narvasa, C.J., Melencio-Herrera, Paras, Padilla, Bidin, Griño-Aquino, Medialdea, Regalado, Davide, Jr.,
except in the authorized areas designated by the COMELEC becomes censorship which cannot be Romero and Nocon, J.J., concur.
justified by the Constitution:
Feliciano and Bellosillo, JJ., are on leave.
. . . The concept of the Constitution as the fundamental law, setting forth the
criterion for the validity of any public act whether proceeding from the highest official
or the lowest functionary, is a postulate of our system of government. That is to
manifest fealty to the rule of law, with priority accorded to that which occupies the
topmost rung in the legal hierarchy. The three departments of government in the
discharge of the functions with which it is entrusted have no choice but to yield
obedience to its commands. Whatever limits it imposes must be observed. Congress
in the enactment of statutes must ever be on guard lest the restrictions on its
authority, either substantive or formal, be transcended. The Presidency in the
execution of the laws cannot ignore or disregard what it ordains. In its task of
applying the law to the facts as found in deciding cases, the judiciary is called upon
to maintain inviolate what is decreed by the fundamental law. Even its power of
judicial review to pass upon the validity of the acts of the coordinate branches in the
course of adjudication is a logical. corollary of this basic principle that the Constitution
is paramount. It overrides any governmental measure that fails to live up to its
mandates. Thereby there is a recognition of its being the supreme law. (Mutuc v.
Commission on Elections, supra)

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

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

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

SO ORDERED.

EN BANC
[G.R. No. 133486. January 28, 2000]
ABS-CBN BROADCASTING CORPORATION, petitioner, vs. COMMISSION ON
ELECTIONS, respondent.
DECISION
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. 98-1419[1] dated April 21, 1998. In the said Resolution, the
poll body
"RESOLVED to approve the issuance of a restraining order to stop ABS-CBN or any
other groups, its agents or representatives from conducting such exit survey and to
authorize the Honorable Chairman to issue the same."
The Resolution was issued by the Comelec allegedly upon "information from [a] reliable source that
ABS-CBN (Lopez Group) has prepared a project, with PR groups, to conduct radio-TV coverage of the
elections x x x and to make [an] exit survey of the x x x 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
C o n s t i t u t i o n a l L a w I I A r t . I I I S e c . 3 a n d 4 P a g e | 35
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 x x x 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 Petition[5] is meritorious.
Procedural Issues: Mootness and Prematurity
The solicitor general contends that the petition is moot and academic, because the May 11, 1998
election has already been held and done with. Allegedly, there is no longer any actual controversy
before us.
The issue is not totally moot. While the assailed Resolution referred specifically to the May 11, 1998
election, its implications on the people's fundamental freedom of expression transcend the past
election. The holding of periodic elections is a basic feature of our democratic government. By its very
nature, exit polling is tied up with elections. To set aside the resolution of the issue now will only
postpone a task that could well crop up again in future elections. [6]
In any event, in Salonga v. Cruz Pano, the Court had occasion to reiterate that it "also has the duty to
formulate guiding and controlling constitutional principles, precepts, doctrines, or rules. It has the
symbolic function of educating bench and bar on the extent of protection given by constitutional
guarantees."[7] Since the fundamental freedoms of speech and of the press are being invoked here, we
have resolved to settle, for the guidance of posterity, whether they likewise protect the holding of exit
polls and the dissemination of data derived therefrom.
The solicitor general further contends that the Petition should be dismissed for petitioner's failure to
exhaust available remedies before the issuing forum, specifically the filing of a motion for
reconsideration.
This Court, however, has ruled in the past that this procedural requirement may be glossed over to
prevent a miscarriage of justice,[8] when the issue involves the principle of social justice or the
protection of labor,[9] when the decision or resolution sought to be set aside is a nullity,[10] or when the
need for relief is extremely urgent and certiorari is the only adequate and speedy remedy available.[11]
The instant Petition assails a Resolution issued by the Comelec en banc on April 21, 1998, only twenty
(20) days before the election itself. Besides, the petitioner got hold of a copy thereof only on May 4,

1998. Under the circumstances, there was hardly enough opportunity to move for a reconsideration and
to obtain a swift resolution in time for the May 11, 1998 elections. Moreover, not only is time of the
essence; the Petition involves transcendental constitutional issues. 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 of their results are valid exercises
of the freedoms of speech and of the press. It submits that, in precipitately and unqualifiedly
restraining the holding and the reporting of exit polls, the Comelec gravely abused its discretion and
grossly violated the petitioner's constitutional rights.
Public respondent, on the other hand, vehemently denies that, in issuing the assailed Resolution, it
gravely abused its discretion. It insists that the issuance thereof was "pursuant to its constitutional and
statutory powers to promote a clean, honest, orderly and credible May 11, 1998 elections"; and "to
protect, preserve and maintain the secrecy and sanctity of the ballot." It contends that "the conduct of
exit surveys might unduly confuse and influence the voters," and that the surveys were designed "to
condition the minds of people and cause confusion as to who are the winners and the [losers] in the
election," which in turn may result in "violence and anarchy."
Public respondent further argues that "exit surveys indirectly violate the constitutional principle to
preserve the sanctity of the ballots," as the "voters are lured to reveal the contents of ballots," in
violation of Section 2, Article V of the Constitution; [12] and relevant provisions of the Omnibus Election
Code.[13] It submits that the constitutionally protected freedoms invoked by petitioner "are not immune
to regulation by the State in the legitimate exercise of its police power," such as in the present case.
The solicitor general, in support of the public respondent, adds that the exit polls pose a "clear and
present danger of destroying the credibility and integrity of the electoral process," considering that they
are not supervised by any government agency and can in general be manipulated easily. He insists that
these polls would sow confusion among the voters and would undermine the official tabulation of votes
conducted by the Commission, as well as the quick count undertaken by the Namfrel.
C o n s t i t u t i o n a l L a w I I A r t . I I I S e c . 3 a n d 4 P a g e | 36
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. x x x [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 matter of public consequence. And paraphrasing
the eminent justice Oliver Wendell Holmes,[19] we stress that the freedom encompasses the thought we
hate, no less than the thought we agree with.
Limitations
The realities of life in a complex society, however, preclude an absolute exercise of the freedoms of
speech and of the press. Such freedoms could not remain unfettered and unrestrained at all times and
under all circumstances.[20] They are not immune to regulation by the State in the exercise of its police
power.[21] While the liberty to think is absolute, the power to express such thought in words and deeds
has limitations.
In Cabansag v. Fernandez[22] this Court had occasion to discuss two theoretical tests in determining the
validity of restrictions to such freedoms, as follows:
"These are the 'clear and present danger' rule and the 'dangerous tendency' rule. The
first, as interpreted in a number of cases, means that the evil consequence of the
comment or utterance must be 'extremely serious and the degree of imminence
extremely high' before the utterance can be punished. The danger to be guarded
against is the 'substantive evil' sought to be prevented. x x x"[23]

"The 'dangerous tendency' rule, on the other hand, x x x may be epitomized as
follows: If the words uttered create a dangerous tendency which the state has a right
to prevent, then such words are punishable. It is not necessary that some definite or
immediate acts of force, violence, or unlawfulness be advocated. It is sufficient that
such acts be advocated in general terms. Nor is it necessary that the language used
be reasonably calculated to incite persons to acts of force, violence, or unlawfulness.
It is sufficient if the natural tendency and probable effect of the utterance be to bring
about the substantive evil which the legislative body seeks to prevent."[24]
Unquestionably, this Court adheres to the "clear and present danger" test. It implicitly did in its earlier
decisions in Primicias v. Fugoso[25] and American Bible Society v. City of Manila;[26] as well as in later
ones, Vera v. Arca,[27] Navarro v. Villegas,[28] Imbong v. Ferrer,[29] Blo Umpar Adiong v. Comelec[30] and,
more recently, in Iglesia ni Cristo v. MTRCB.[31] In setting the standard or test for the "clear and present
danger" doctrine, the Court echoed the words of justice Holmes: "The question in every case is whether
the words used are used in such circumstances and are of such a nature as to create a clear and
present danger that they will bring about the substantive evils that Congress has a right to prevent. It is
a question of proximity and degree."[32]
A limitation on the freedom of expression may be justified only by a danger of
such substantive character that the state has a right to prevent. Unlike in the "dangerous tendency"
doctrine, the danger must not only be clear but also present. "Present" refers to the time element; the
danger must not only be probable but very likely to be inevitable. [33] The evil sought to be avoided must
be so substantive as to justify a clamp over one's mouth or a restraint of a writing instrument. [34]
Justification for a Restriction
Doctrinally, the Court has always ruled in favor of the freedom of expression, and any restriction is
treated an exemption. The power to exercise prior restraint is not to be presumed; rather the
presumption is against its validity.[35] And it is respondent's burden to overthrow such presumption. Any
act that restrains speech should be greeted with furrowed brows, [36] so it has been said.
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]
C o n s t i t u t i o n a l L a w I I A r t . I I I S e c . 3 a n d 4 P a g e | 37
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] x x x 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 x x x 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'
answers to the survey questions will forever remain unknown and unexplored. Unless the ban is
restrained, candidates, researchers, social scientists and the electorate in general would be deprived of
studies on the impact of current events and of election-day and other factors on voters' choices.
[46]
In Daily Herald Co. v. Munro, the US Supreme Court held that a statute, one of the purposes of
which was to prevent the broadcasting of early returns, was unconstitutional because such purpose was
impermissible, and the statute was neither narrowly tailored to advance a state interest nor the least
restrictive alternative. Furthermore, the general interest of the State in insulating voters from outside
influences is insufficient to justify speech regulation. Just as curtailing election-day broadcasts and
newspaper editorials for the reason that they might indirectly affect the voters' choices is impermissible,
so is regulating speech via an exit poll restriction.[47]
The absolute ban imposed by the Comelec cannot, therefore, be justified. It does not leave open any
alternative channel of communication to gather the type of information obtained through exit polling.
On the other hand, there are other valid and reasonable ways and means to achieve the Comelec end
of avoiding or minimizing disorder and confusion that may be brought about by exit surveys.
For instance, a specific limited area for conducting exit polls may be designated. Only professional
survey groups may be allowed to conduct the same. Pollsters may be kept at a reasonable distance
from the voting center. They may be required to explain to voters that the latter may refuse to be
interviewed, and that the interview is not part of the official balloting process. The pollsters may further
be required to wear distinctive clothing that would show they are not election officials.[48] Additionally,
they may be required to undertake an information campaign on the nature of the exercise and the
results to be obtained therefrom. These measures, together with a general prohibition of disruptive
behavior, could ensure a clean, safe and orderly election.
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.
C o n s t i t u t i o n a l L a w I I A r t . I I I S e c . 3 a n d 4 P a g e | 38
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.
 C o n s t i t u t i o n a l L a w I I A r t . I I I S e c . 3 a n d 4 P a g e | 39

EN BANC was planning to destabilize the administration by releasing an audiotape of a mobile phone
conversation allegedly between the President of the Philippines, Gloria Macapagal Arroyo, and
FRANCISCO CHAVEZ, a high-ranking official of the Commission on Elections (COMELEC). The conversation was
audiotaped allegedly through wire-tapping.[5] Later, in a Malacaang press briefing, Secretary
Bunye produced two versions of the tape, one supposedly the complete version, and the
Petitioner,
other, a spliced, doctored or altered version, which would suggest that the President had
instructed the COMELEC official to manipulate the election results in the Presidents favor. [6] It
- versus - seems that Secretary Bunye admitted that the voice was that of President Arroyo, but
subsequently made a retraction. [7]
RAUL M. GONZALES,
2. On June 7, 2005, former counsel of deposed President Joseph Estrada, Atty. Alan Paguia,
subsequently released an alleged authentic tape recording of the wiretap. Included in the
in his capacity as the
tapes were purported conversations of the President, the First Gentleman Jose Miguel Arroyo,
COMELEC Commissioner Garcillano, and the late Senator Barbers.[8]
Secretary of the
3. On June 8, 2005, respondent Department of Justice (DOJ) Secretary Raul Gonzales warned
Department of Justice; reporters that those who had copies of the compact disc (CD) and those broadcasting or
publishing its contents could be held liable under the Anti-Wiretapping Act. These persons
and NATIONAL TELECOMMUNICATIONS COMMISSION (NTC), included Secretary Bunye and Atty. Paguia. He also stated that persons possessing or airing
said tapes were committing a continuing offense, subject to arrest by anybody who had
personal knowledge if the crime was committed or was being committed in their presence. [9]
Respondents. G.R. No. 168338
4. On June 9, 2005, in another press briefing, Secretary Gonzales ordered the National Bureau
of Investigation (NBI) to go after media organizations found to have caused the spread, the
playing and the printing of the contents of a tape of an alleged wiretapped conversation
involving the President about fixing votes in the 2004 national elections. Gonzales said that he
DECISION was going to start with Inq7.net, a joint venture between the Philippine Daily Inquirer
and GMA7 television network, because by the very nature of the Internet medium, it was
able to disseminate the contents of the tape more widely. He then expressed his intention of
PUNO, C.J.: inviting the editors and managers of Inq7.net and GMA7 to a probe, and supposedly declared,
I [have] asked the NBI to conduct a tactical interrogation of all concerned. [10]
A. Precis 5. On June 11, 2005, the NTC issued this press release: [11]
NTC GIVES FAIR WARNING TO RADIO AND TELEVISION
In this jurisdiction, it is established that freedom of the press is crucial and so inextricably woven into OWNERS/OPERATORS TO OBSERVE ANTI-WIRETAPPING LAW AND
the right to free speech and free expression, that any attempt to restrict it must be met with an PERTINENT CIRCULARS ON PROGRAM STANDARDS
examination so critical that only a danger that is clear and present would be allowed to curtail it.
Indeed, we have not wavered in the duty to uphold this cherished freedom. We have struck xxx xxx xxx
down laws and issuances meant to curtail this right, as in Adiong v. COMELEC,[1] Burgos v. Chief of
Staff,[2] Social Weather Stations v. COMELEC,[3] and Bayan v. Executive Secretary Ermita.[4] When on its Taking into consideration the countrys unusual situation, and in order not to
face, it is clear that a governmental act is nothing more than a naked means to prevent the free unnecessarily aggravate the same, the NTC warns all radio stations and
exercise of speech, it must be nullified. television network owners/operators that the conditions of the authorization
and permits issued to them by Government like the Provisional Authority
B. The Facts and/or Certificate of Authority explicitly provides that said companies shall
not use [their] stations for the broadcasting or telecasting of false
1. The case originates from events that occurred a year after the 2004 national and local information or willful misrepresentation. Relative thereto, it has come to the
elections. On June 5, 2005, Press Secretary Ignacio Bunye told reporters that the opposition attention of the [NTC] that certain personalities are in possession of alleged

taped conversations which they claim involve the President of the Philippines
and a Commissioner of the COMELEC regarding supposed violation of election
laws.
These personalities have admitted that the taped conversations are products
of illegal wiretapping operations.
Considering that these taped conversations have not been duly authenticated
nor could it be said at this time that the tapes contain an accurate or truthful
representation of what was recorded therein, it is the position of the [NTC]
that the continuous airing or broadcast of the said taped conversations by
radio and television stations is a continuing violation of the Anti-Wiretapping
Law and the conditions of the Provisional Authority and/or Certificate of
Authority issued to these radio and television stations. It has been
subsequently established that the said tapes are false and/or fraudulent after
a prosecution or appropriate investigation, the concerned radio and television
companies are hereby warned that their broadcast/airing of such false
information and/or willful misrepresentation shall be just cause for
the suspension, revocation and/or cancellation of the licenses or
authorizations issued to the said companies.
In addition to the above, the [NTC] reiterates the pertinent NTC circulars on
program standards to be observed by radio and television stations. NTC
Memorandum Circular 111-12-85 explicitly states, among others, that all
radio broadcasting and television stations shall, during any broadcast or
telecast, cut off from the air the speech, play, act or scene or other matters
being broadcast or telecast the tendency thereof is to disseminate false
information or such other willful misrepresentation, or to propose and/or
incite treason, rebellion or sedition. The foregoing directive had been
reiterated by NTC Memorandum Circular No. 22-89, which, in addition
thereto, prohibited radio, broadcasting and television stations from using
their stations to broadcast or telecast any speech, language or scene
disseminating false information or willful misrepresentation, or inciting,
encouraging or assisting in subversive or treasonable acts.
The [NTC] will not hesitate, after observing the requirements of due
process, to apply with full force the provisions of said Circulars and
their accompanying sanctions on erring radio and television stations
and their owners/operators.
6. On June 14, 2005, NTC held a dialogue with the Board of Directors of the Kapisanan ng mga
Brodkaster sa Pilipinas (KBP). NTC allegedly assured the KBP that the press release did not
violate the constitutional freedom of speech, of expression, and of the press, and the right to
information. Accordingly, NTC and KBP issued a Joint Press Statement which states, among
others, that: [12]
C o n s t i t u t i o n a l L a w I I A r t . I I I S e c . 3 a n d 4 P a g e | 40
NTC respects and will not hinder freedom of the press and the right to
information on matters of public concern. KBP & its members have always
been committed to the exercise of press freedom with high sense of
responsibility and discerning judgment of fairness and honesty.
NTC did not issue any MC [Memorandum Circular] or Order constituting a
restraint of press freedom or censorship. The NTC further denies and does
not intend to limit or restrict the interview of members of the opposition or
free expression of views.
What is being asked by NTC is that the exercise of press freedom [be] done
responsibly.
KBP has program standards that KBP members will observe in the treatment of
news and public affairs programs. These include verification of sources,
non-airing of materials that would constitute inciting to sedition and/or
rebellion.
The KBP Codes also require that no false statement or willful misrepresentation
is made in the treatment of news or commentaries.
The supposed wiretapped tapes should be treated with sensitivity and handled
responsibly giving due consideration to the process being undertaken to
verify and validate the authenticity and actual content of the same.
C. The Petition
Petitioner Chavez filed a petition under Rule 65 of the Rules of Court against respondents
Secretary Gonzales and the NTC, praying for the issuance of the writs of certiorari and prohibition, as
extraordinary legal remedies, to annul void proceedings, and to prevent the unlawful, unconstitutional
and oppressive exercise of authority by the respondents.[13]
Alleging that the acts of respondents are violations of the freedom on expression and of the
press, and the right of the people to information on matters of public concern, [14] petitioner specifically
asked this Court:
[F]or [the] nullification of acts, issuances, and orders of respondents committed or
made since June 6, 2005 until the present that curtail the publics rights to freedom of
expression and of the press, and to information on matters of public concern
specifically in relation to information regarding the controversial taped conversion of
President Arroyo and for prohibition of the further commission of such acts, and
making of such issuances, and orders by respondents. [15]
Respondents[16] denied that the acts transgress the Constitution, and questioned petitioners
legal standing to file the petition. Among the arguments they raised as to the validity of the fair warning

issued by respondent NTC, is that broadcast media enjoy lesser constitutional guarantees compared to
print media, and the warning was issued pursuant to the NTCs mandate to regulate the
telecommunications industry. [17] It was also stressed that most of the [television] and radio stations
continue, even to this date, to air the tapes, but of late within the parameters agreed upon between the
NTC and KBP. [18]
D. THE PROCEDURAL THRESHOLD: LEGAL STANDING
To be sure, the circumstances of this case make the constitutional challenge peculiar.
Petitioner, who is not a member of the broadcast media, prays that we strike down the acts and
statements made by respondents as violations of the right to free speech, free expression and a free
press. For another, the recipients of the press statements have not come forwardneither intervening
nor joining petitioner in this action. Indeed, as a group, they issued a joint statement with respondent
NTC that does not complain about restraints on freedom of the press.
It would seem, then, that petitioner has not met the requisite legal standing, having failed to
allege such a personal stake in the outcome of the controversy as to assure that concrete adverseness
which sharpens the presentation of issues upon which the Court so largely depends for illumination of
difficult constitutional questions.
But as early as half a century ago, we have already held that where serious constitutional questions are
involved, the transcendental importance to the public of these cases demands that they be settled
promptly and definitely, brushing aside if we must, technicalities of procedure. [20] Subsequently, this
Court has repeatedly and consistently refused to wield procedural barriers as impediments to its
addressing and resolving serious legal questions that greatly impact on public interest,[21] in keeping
with the Court's duty under the 1987 Constitution to determine whether or not other branches of
government have kept themselves within the limits of the Constitution and the laws and that they have
not abused the discretion given to them.
Thus, in line with the liberal policy of this Court on locus standi when a case involves an issue of
overarching significance to our society, [22] we therefore brush aside technicalities of procedure and take
cognizance of this petition,[23] seeing as it involves a challenge to the most exalted of all the civil rights,
the freedom of expression. The petition raises other issues like the extent of the right to
information of the public. It is fundamental, however, that we need not address all issues
but only the most decisive one which in the case at bar is whether the acts of the
respondents abridge freedom of speech and of the press.
But aside from the primordial issue of determining whether free speech and freedom
of the press have been infringed, the case at bar also gives this Court the opportunity: (1)
to distill the essence of freedom of speech and of the press now beclouded by the vagaries
of motherhood statements; (2) to clarify the types of speeches and their differing
restraints allowed by law; (3) to discuss the core concepts of prior restraint, content-
neutral and content-based regulations and their constitutional standard of review; (4) to
examine the historical difference in the treatment of restraints between print and
broadcast media and stress the standard of review governing both; and (5) to call
attention to the ongoing blurring of the lines of distinction between print and broadcast
media.
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E. RE-EXAMINING THE LAW ON FREEDOM OF SPEECH,
OF EXPRESSION AND OF THE PRESS
No law shall be passed abridging the freedom of speech, of expression, or of the
press, or the right of the people peaceably to assemble and petition the government
for redress of grievances.[24]
Freedom of expression has gained recognition as a fundamental principle of every democratic
government, and given a preferred right that stands on a higher level than substantive economic
freedom or other liberties. The cognate rights codified by Article III, Section 4 of the Constitution,
copied almost verbatim from the First Amendment of the U.S. Bill of Rights, [25] were considered the
necessary consequence of republican institutions and the complement of free speech. [26] This preferred
status of free speech has also been codified at the international level, its recognition now enshrined in
international law as a customary norm that binds all nations. [27]
In the Philippines, the primacy and high esteem accorded freedom of expression is a
fundamental postulate of our constitutional system. [28] This right was elevated to constitutional status
in the 1935, the 1973 and the 1987 Constitutions, reflecting our own lesson of history, both political
and legal, that freedom of speech is an indispensable condition for nearly every other form of
freedom.[29] Moreover, our history shows that the struggle to protect the freedom of speech, expression
and the press was, at bottom, the struggle for the indispensable preconditions for the exercise of other
freedoms.[30] For it is only when the people have unbridled access to information and the press that
they will be capable of rendering enlightened judgments. In the oft-quoted words of Thomas Jefferson,
we cannot both be free and ignorant.
E.1. ABSTRACTION OF FREE SPEECH
Surrounding the freedom of speech clause are various concepts that we have adopted as part
and parcel of our own Bill of Rights provision on this basic freedom.[31] What is embraced under this
provision was discussed exhaustively by the Court in Gonzales v. Commission on Elections, [32] in which
it was held:
At the very least, free speech and free press may be identified with the liberty to
discuss publicly and truthfully any matter of public interest without censorship and
punishment. There is to be no previous restraint on the communication of views or
subsequent liability whether in libel suits, prosecution for sedition, or action for
damages, or contempt proceedings unless there be a clear and present danger of
substantive evil that Congress has a right to prevent. [33]
Gonzales further explained that the vital need of a constitutional democracy for freedom of
expression is undeniable, whether as a means of assuring individual self-fulfillment; of attaining the
truth; of assuring participation by the people in social, including political, decision-making; and of
maintaining the balance between stability and change. [34] As early as the 1920s, the trend as reflected
in Philippine and American decisions was to recognize the broadest scope and assure the widest latitude
for this constitutional guarantee. The trend represents a profound commitment to the principle that
debate on public issue should be uninhibited, robust, and wide-open. [35]

Freedom of speech and of the press means something more than the right to approve existing
political beliefs or economic arrangements, to lend support to official measures, and to take refuge in
the existing climate of opinion on any matter of public consequence.[36] When atrophied, the right
becomes meaningless.[37]The right belongs as well -- if not more to those who question, who do not
conform, who differ.[38] The ideas that may be expressed under this freedom are confined not only to
those that are conventional or acceptable to the majority. To be truly meaningful, freedom of speech
and of the press should allow and even encourage the articulation of the unorthodox view, though it be
hostile to or derided by others; or though such view induces a condition of unrest, creates
dissatisfaction with conditions as they are, or even stirs people to anger. [39] To paraphrase Justice
Holmes, it is freedom for the thought that we hate, no less than for the thought that agrees with us. [40]
The scope of freedom of expression is so broad that it extends protection to nearly all forms of
communication. It protects speech, print and assembly regarding secular as well as political causes, and
is not confined to any particular field of human interest. The protection covers myriad matters of public
interest or concern embracing all issues, about which information is needed or appropriate, so as to
enable members of society to cope with the exigencies of their period. The constitutional protection
assures the broadest possible exercise of free speech and free press for religious, political, economic,
scientific, news, or informational ends, inasmuch as the Constitution's basic guarantee of freedom to
advocate ideas is not confined to the expression of ideas that are conventional or shared by a majority.
The constitutional protection is not limited to the exposition of ideas. The protection afforded
free speech extends to speech or publications that are entertaining as well as instructive or
informative. Specifically, in Eastern Broadcasting Corporation (DYRE) v. Dans,[41] this Court stated that
all forms of media, whether print or broadcast, are entitled to the broad protection of the clause on
freedom of speech and of expression.
While all forms of communication are entitled to the broad protection of freedom of expression
clause, the freedom of film, television and radio broadcasting is somewhat lesser in scope
than the freedom accorded to newspapers and other print media, as will be subsequently
discussed.
E.2. DIFFERENTIATION: THE LIMITS & RESTRAINTS OF FREE SPEECH
From the language of the specific constitutional provision, it would appear that the right to free speech
and a free press is not susceptible of any limitation. But the realities of life in a complex society
preclude a literal interpretation of the provision prohibiting the passage of a law that would abridge
such freedom. For freedom of expression is not an absolute, [42] nor is it an unbridled license that gives
immunity for every possible use of language and prevents the punishment of those who abuse this
freedom.
Thus, all speech are not treated the same. Some types of speech may be subjected to some
regulation by the State under its pervasive police power, in order that it may not be injurious to the
equal right of others or those of the community or society. [43] The difference in treatment is expected
because the relevant interests of one type of speech, e.g., political speech, may vary from those of
another, e.g., obscene speech. Distinctions have therefore been made in the treatment, analysis, and
evaluation of the permissible scope of restrictions on various categories of speech. [44] We have ruled,
C o n s t i t u t i o n a l L a w I I A r t . I I I S e c . 3 a n d 4 P a g e | 42
for example, that in our jurisdiction slander or libel, lewd and obscene speech, as well as fighting words
are not entitled to constitutional protection and may be penalized. [45]
Moreover, the techniques of reviewing alleged restrictions on speech (overbreadth, vagueness,
and so on) have been applied differently to each category, either consciously or unconsciously. [46] A
study of free speech jurisprudencewhether here or abroadwill reveal that courts have developed
different tests as to specific types or categories of speech in concrete situations; i.e., subversive
speech; obscene speech; the speech of the broadcast media and of the traditional print media; libelous
speech; speech affecting associational rights; speech before hostile audiences; symbolic speech; speech
that affects the right to a fair trial; and speech associated with rights of assembly and petition. [47]
Generally, restraints on freedom of speech and expression are evaluated by either or a
combination of three tests, i.e., (a) the dangerous tendency doctrinewhich permits limitations on
speech once a rational connection has been established between the speech restrained and the danger
contemplated; [48] (b) the balancing of interests tests, used as a standard when courts need to
balance conflicting social values and individual interests, and requires a conscious and detailed
consideration of the interplay of interests observable in a given situation of type of
situation; [49] and (c) the clear and present danger rule which rests on the premise that speech may
be restrained because there is substantial danger that the speech will likely lead to an evil the
government has a right to prevent. This rule requires that the evil consequences sought to be
prevented must be substantive, extremely serious and the degree of imminence extremely high. [50]
As articulated in our jurisprudence, we have applied either the dangerous tendency
doctrine or clear and present danger test to resolve free speech challenges. More recently, we
have concluded that we have generally adhered to the clear and present danger test. [51]
E.3. IN FOCUS: FREEDOM OF THE PRESS
Much has been written on the philosophical basis of press freedom as part of the larger right
of free discussion and expression. Its practical importance, though, is more easily grasped. It is the
chief source of information on current affairs. It is the most pervasive and perhaps most powerful
vehicle of opinion on public questions. It is the instrument by which citizens keep their government
informed of their needs, their aspirations and their grievances. It is the sharpest weapon in the fight to
keep government responsible and efficient. Without a vigilant press, the mistakes of every
administration would go uncorrected and its abuses unexposed. As Justice Malcolm wrote in United
States v. Bustos:[52]
The interest of society and the maintenance of good government demand a full
discussion of public affairs. Complete liberty to comment on the conduct of public
men is a scalpel in the case of free speech. The sharp incision of its probe relieves
the abscesses of officialdom. Men in public life may suffer under a hostile and
unjust accusation; the wound can be assuaged with the balm of clear conscience.
Its contribution to the public weal makes freedom of the press deserving of extra protection. Indeed,
the press benefits from certain ancillary rights. The productions of writers are classified as intellectual
and proprietary. Persons who interfere or defeat the freedom to write for the press or to maintain a
periodical publication are liable for damages, be they private individuals or public officials.
 C o n s t i t u t i o n a l L a w I I A r t . I I I S e c . 3 a n d 4 P a g e | 43

the time, place or manner, and under well defined standards;[60] or (2) a content-based restraint or
E.4. ANATOMY OF RESTRICTIONS: PRIOR RESTRAINT, CONTENT-NEUTRAL AND CONTENT- censorship, i.e., the restriction is based on the subject matter of the utterance or speech. [61] The cast
BASED REGULATIONS of the restriction determines the test by which the challenged act is assayed with.

When the speech restraints take the form of a content-neutral regulation, only a substantial
Philippine jurisprudence, even as early as the period under the 1935 Constitution, has recognized four
governmental interest is required for its validity. [62] Because regulations of this type are not designed to
aspects of freedom of the press. These are (1) freedom from prior restraint; (2) freedom from
suppress any particular message, they are not subject to the strictest form of judicial scrutiny but
punishment subsequent to publication; [53] (3) freedom of access to information; [54] and (4) freedom of
an intermediate approachsomewhere between the mere rationality that is required of any other law
circulation.[55]
and the compelling interest standard applied to content-based restrictions.[63] The test is
called intermediate because the Court will not merely rubberstamp the validity of a law but also
Considering that petitioner has argued that respondents press statement constitutes a form of
require that the restrictions be narrowly-tailored to promote an important or significant governmental
impermissible prior restraint, a closer scrutiny of this principle is in order, as well as its sub-specie of
interest that is unrelated to the suppression of expression. The intermediate approach has been
content-based (as distinguished from content-neutral) regulations.
formulated in this manner:
At this point, it should be noted that respondents in this case deny that their acts constitute
A governmental regulation is sufficiently justified if it is within the constitutional
prior restraints. This presents a unique tinge to the present challenge, considering that the cases in our
power of the Government, if it furthers an important or substantial governmental
jurisdiction involving prior restrictions on speech never had any issue of whether the governmental act
interest; if the governmental interest is unrelated to the suppression of free
or issuance actuallyconstituted prior restraint. Rather, the determinations were always about whether
expression; and if the incident restriction on alleged [freedom of speech &
the restraint was justified by the Constitution.
expression] is no greater than is essential to the furtherance of that interest. [64]
Be that as it may, the determination in every case of whether there is an impermissible restraint on the
On the other hand, a governmental action that restricts freedom of speech or of the press based on
freedom of speech has always been based on the circumstances of each case, including the nature of
content is given the strictest scrutiny in light of its inherent and invasive impact. Only when the
the restraint. And in its application in our jurisdiction, the parameters of this principle have
challenged act has overcome the clear and present danger rule will it pass constitutional
been etched on a case-to-case basis, always tested by scrutinizing the governmental
muster,[65] with the government having the burden of overcoming the presumed unconstitutionality.
issuance or act against the circumstances in which they operate, and then determining the
appropriate test with which to evaluate.
Unless the government can overthrow this presumption, the content-based restraint will be struck
down.[66]
Prior restraint refers to official governmental restrictions on the press or other forms of expression in
With respect to content-based restrictions, the government must also show the type of harm the
advance of actual publication or dissemination. [56] Freedom from prior restraint is largely freedom from
speech sought to be restrained would bring about especially the gravity and the imminence of the
government censorship of publications, whatever the form of censorship, and regardless of whether it is
threatened harm otherwise the prior restraint will be invalid. Prior restraint on speech based on its
wielded by the executive, legislative or judicial branch of the government. Thus, it precludes
content cannot be justified by hypothetical fears, but only by showing a substantive and imminent evil
governmental acts that required approval of a proposal to publish; licensing or permits as prerequisites
that has taken the life of a reality already on ground. [67] As formulated, the question in every case is
to publication including the payment of license taxes for the privilege to publish; and even injunctions
whether the words used are used in such circumstances and are of such a nature as
against publication. Even the closure of the business and printing offices of certain newspapers,
to create a clear and present danger that they will bring about the substantive evils that Congress has a
resulting in the discontinuation of their printing and publication, are deemed as previous restraint or
right to prevent. It is a question of proximity and degree. [68]
censorship.[57] Any law or official that requires some form of permission to be had before publication
can be made, commits an infringement of the constitutional right, and remedy can be had at the courts.
The regulation which restricts the speech content must also serve an important or substantial
Given that deeply ensconced in our fundamental law is the hostility against all prior restraints on
government interest, which is unrelated to the suppression of free expression. [69]
speech, and any act that restrains speech is presumed invalid, [58] and any act that restrains speech is
hobbled by the presumption of invalidity and should be greeted with furrowed brows, [59] it is important
Also, the incidental restriction on speech must be no greater than what is essential to the furtherance of
to stress not all prior restraints on speech are invalid. Certain previous restraints may be
that interest. [70] A restriction that is so broad that it encompasses more than what is required to satisfy
permitted by the Constitution, but determined only upon a careful evaluation of the challenged act
the governmental interest will be invalidated. [71] The regulation, therefore, must be reasonable and
as against the appropriate test by which it should be measured against.
narrowly drawn to fit the regulatory purpose, with the least restrictive means undertaken. [72]
Hence, it is not enough to determine whether the challenged act constitutes some form of restraint on
freedom of speech. A distinction has to be made whether the restraint is (1) a content-
Thus, when the prior restraint partakes of a content-neutral regulation, it is subjected to an
neutral regulation, i.e., merely concerned with the incidents of the speech, or one that merely controls
intermediate review. A content-based regulation,[73] however, bears a heavy presumption of

invalidity and is measured against the clear and present danger rule. The latter will pass
constitutional muster only if justified by a compelling reason, and the restrictions imposed are neither
overbroad nor vague. [74]
Applying the foregoing, it is clear that the challenged acts in the case at bar need to be subjected to
the clear and present danger rule, as they are content-basedrestrictions. The acts of
respondents focused solely on but one objecta specific content fixed as these were on the alleged taped
conversations between the President and a COMELEC official. Undoubtedly these did not merely provide
regulations as to the time, place or manner of the dissemination of speech or expression.
E.5. Dichotomy of Free Press: Print v. Broadcast Media
Finally, comes respondents argument that the challenged act is valid on the ground that
broadcast media enjoys free speech rights that are lesser in scope to that of print media. We next
explore and test the validity of this argument, insofar as it has been invoked to validate a content-based
restriction on broadcast media.
The regimes presently in place for each type of media differ from one
other. Contrasted with the regime in respect of books, newspapers, magazines and traditional printed
matter, broadcasting, film and video have been subjected to regulatory schemes.
The dichotomy between print and broadcast media traces its origins in the United States.
There, broadcast radio and television have been held to have limitedFirst Amendment
protection,[75] and U.S. Courts have excluded broadcast media from the application of the strict
scrutiny standard that they would otherwise apply to content-based restrictions.[76] According to U.S.
Courts, the three major reasons why broadcast media stands apart from print media are: (a) the
scarcity of the frequencies by which the medium operates [i.e., airwaves are physically limited while
print medium may be limitless]; [77] (b) its pervasiveness as a medium; and (c) its unique accessibility to
children.[78] Because cases involving broadcast media need not follow precisely the same approach that
[U.S. courts] have applied to other media, nor go so far as to demand that such regulations serve
compelling government interests,[79] they are decided on whether the governmental restriction
is narrowly tailored to further a substantial governmental interest, [80] or the intermediate
test.
As pointed out by respondents, Philippine jurisprudence has also echoed a differentiation in
treatment between broadcast and print media. Nevertheless, a review of Philippine case law on
broadcast media will show thatas we have deviated with the American conception of the
Bill of Rights[81] we likewise did not adopt en masse the U.S. conception of free speech as it
relates to broadcast media, particularly as to which test would govern content-based prior
restraints.
Our cases show two distinct features of this dichotomy. First, the difference in treatment, in
the main, is in the regulatory scheme applied to broadcast media that is not imposed on traditional print
media, and narrowly confined to unprotected speech (e.g., obscenity, pornography, seditious and
inciting speech), or is based on a compelling government interest that also has constitutional
protection, such as national security or the electoral process.
C o n s t i t u t i o n a l L a w I I A r t . I I I S e c . 3 a n d 4 P a g e | 44
Second, regardless of the regulatory schemes that broadcast media is subjected to, the Court
has consistently held that the clear and present danger test applies to content-based restrictions on
media, without making a distinction as to traditional print or broadcast media.
The distinction between broadcast and traditional print media was first enunciated in Eastern
Broadcasting Corporation (DYRE) v. Dans,[82] wherein it was held that [a]ll forms of media, whether
print or broadcast, are entitled to the broad protection of the freedom of speech and expression clause.
The test for limitations on freedom of expression continues to be the clear and present danger rule [83]
Dans was a case filed to compel the reopening of a radio station which had been summarily
closed on grounds of national security. Although the issue had become moot and academic because the
owners were no longer interested to reopen, the Court still proceeded to do an analysis of the case and
made formulations to serve as guidelines for all inferior courts and bodies exercising quasi-judicial
functions. Particularly, the Court made a detailed exposition as to what needs be considered in cases
involving broadcast media. Thus:[84]
xxx xxx xxx
(3) All forms of media, whether print or broadcast, are entitled to the broad
protection of the freedom of speech and expression clause. The test for
limitations on freedom of expression continues to be the clear and
present danger rule, that words are used in such circumstances and are
of such a nature as to create a clear and present danger that they will bring
about the substantive evils that the lawmaker has a right to prevent, In
his Constitution of the Philippines (2nd Edition, pp. 569-570) Chief Justice
Enrique M. Fernando cites at least nine of our decisions which apply the
test. More recently, the clear and present danger test was applied in J.B.L.
Reyes in behalf of the Anti-Bases Coalition v. Bagatsing. (4) The clear and
present danger test, however, does not lend itself to a simplistic and all
embracing interpretation applicable to all utterances in all forums.
Broadcasting has to be licensed. Airwave frequencies have to be allocated
among qualified users. A broadcast corporation cannot simply appropriate a
certain frequency without regard for government regulation or for the rights
of others.
All forms of communication are entitled to the broad protection of the
freedom of expression clause. Necessarily, however, the freedom of
television and radio broadcasting is somewhat lesser in scope than the
freedom accorded to newspaper and print media.
The American Court in Federal Communications Commission v. Pacifica
Foundation (438 U.S. 726), confronted with a patently offensive and
indecent regular radio program, explained why radio broadcasting, more
than other forms of communications, receives the most limited protection
from the free expression clause. First, broadcast media have established a

uniquely pervasive presence in the lives of all citizens, Material presented
over the airwaves confronts the citizen, not only in public, but in the privacy
of his home. Second, broadcasting is uniquely accessible to children.
Bookstores and motion picture theaters may be prohibited from making
certain material available to children, but the same selectivity cannot be
done in radio or television, where the listener or viewer is constantly tuning
in and out.
Similar considerations apply in the area of national security.
The broadcast media have also established a uniquely pervasive presence in
the lives of all Filipinos. Newspapers and current books are found only in
metropolitan areas and in the poblaciones of municipalities accessible to fast
and regular transportation. Even here, there are low income masses who
find the cost of books, newspapers, and magazines beyond their humble
means. Basic needs like food and shelter perforce enjoy high priorities.
On the other hand, the transistor radio is found everywhere. The television
set is also becoming universal. Their message may be simultaneously
received by a national or regional audience of listeners including the
indifferent or unwilling who happen to be within reach of a blaring radio or
television set. The materials broadcast over the airwaves reach every person
of every age, persons of varying susceptibilities to persuasion, persons of
different I.Q.s and mental capabilities, persons whose reactions to
inflammatory or offensive speech would be difficult to monitor or predict.
The impact of the vibrant speech is forceful and immediate. Unlike readers
of the printed work, the radio audience has lesser opportunity to cogitate
analyze, and reject the utterance.
(5) The clear and present danger test, therefore, must take the particular
circumstances of broadcast media into account. The supervision of radio
stations-whether by government or through self-regulation by the industry
itself calls for thoughtful, intelligent and sophisticated handling.
The government has a right to be protected against broadcasts which incite
the listeners to violently overthrow it. Radio and television may not be used
to organize a rebellion or to signal the start of widespread uprising. At the
same time, the people have a right to be informed. Radio and television
would have little reason for existence if broadcasts are limited to bland,
obsequious, or pleasantly entertaining utterances. Since they are the most
convenient and popular means of disseminating varying views on public
issues, they also deserve special protection.
(6) The freedom to comment on public affairs is essential to the vitality of a
representative democracy. In the 1918 case of United States v. Bustos (37
Phil. 731) this Court was already stressing that.
C o n s t i t u t i o n a l L a w I I A r t . I I I S e c . 3 a n d 4 P a g e | 45
The interest of society and the maintenance of good government demand a
full discussion of public affairs. Complete liberty to comment on the conduct
of public men is a scalpel in the case of free speech. The sharp incision of its
probe relieves the abscesses of officialdom. Men in public life may suffer
under a hostile and an unjust accusation; the wound can be assuaged with
the balm of a clear conscience. A public officer must not be too thin-skinned
with reference to comment upon his official acts. Only thus can the
intelligence and dignity of the individual be exalted.
(7) Broadcast stations deserve the special protection given to all forms of media by
the due process and freedom of expression clauses of the Constitution.
[Citations omitted]
It is interesting to note that the Court in Dans adopted the arguments found in U.S. jurisprudence to
justify differentiation of treatment (i.e., the scarcity, pervasiveness and accessibility to children), but
only after categorically declaring that the test for limitations on freedom of expression
continues to be the clear and present danger rule, for all forms of media, whether print or
broadcast. Indeed, a close reading of the above-quoted provisions would show that the differentiation
that the Court in Dans referred to was narrowly restricted to what is otherwise deemed as unprotected
speech (e.g., obscenity, national security, seditious and inciting speech), or to validate a licensing or
regulatory scheme necessary to allocate the limited broadcast frequencies, which is absent in print
media. Thus, when this Court declared in Dans that the freedom given to broadcast media was
somewhat lesser in scope than the freedom accorded to newspaper and print media, it was not as to
what test should be applied, but the context by which requirements of licensing, allocation of airwaves,
and application of norms to unprotected speech. [85]
In the same year that the Dans case was decided, it was reiterated in Gonzales v. Katigbak,[86] that the
test to determine free expression challenges was the clear and present danger, again without
distinguishing the media.[87] Katigbak, strictly speaking, does not treat of broadcast media but motion
pictures. Although the issue involved obscenity standards as applied to movies,[88] the Court concluded
its decision with the following obiter dictum that a less liberal approach would be used to resolve
obscenity issues in television as opposed to motion pictures:
All that remains to be said is that the ruling is to be limited to the concept of
obscenity applicable to motion pictures. It is the consensus of this Court that where
television is concerned, a less liberal approach calls for observance. This is so
because unlike motion pictures where the patrons have to pay their way, television
reaches every home where there is a set. Children then will likely be among the
avid viewers of the programs therein shown..It cannot be denied though that the
State as parens patriae is called upon to manifest an attitude of caring for the
welfare of the young.
More recently, in resolving a case involving the conduct of exit polls and dissemination of the results by
a broadcast company, we reiterated that the clear and present danger rule is the test we
unquestionably adhere to issues that involve freedoms of speech and of the press. [89]
This is not to suggest, however, that the clear and present danger rule has been applied to
all cases that involve the broadcast media. The rule applies to all media, including broadcast, but
only when the challenged act is a content-based regulation that infringes on free speech, expression

and the press. Indeed, in Osmena v. COMELEC,[90] which also involved broadcast media, the Court
refused to apply the clear and present danger rule to a COMELEC regulation of time and manner of
advertising of political advertisements because the challenged restriction was content-neutral.[91] And in
a case involving due process and equal protection issues, the Court in Telecommunications and
Broadcast Attorneys of the Philippines v. COMELEC[92] treated a restriction imposed on a broadcast
media as a reasonable condition for the grant of the medias franchise, without going into which test
would apply.
That broadcast media is subject to a regulatory regime absent in print media is observed also in other
jurisdictions, where the statutory regimes in place over broadcast media include elements of licensing,
regulation by administrative bodies, and censorship. As explained by a British author:
The reasons behind treating broadcast and films differently from the print media
differ in a number of respects, but have a common historical basis. The stricter
system of controls seems to have been adopted in answer to the view that owing
to their particular impact on audiences, films, videos and broadcasting require
a system of prior restraints, whereas it is now accepted that books and other
printed media do not. These media are viewed as beneficial to the public in a
number of respects, but are also seen as possible sources of harm. [93]
Parenthetically, these justifications are now the subject of debate. Historically, the scarcity of
frequencies was thought to provide a rationale. However, cable and satellite television have
enormously increased the number of actual and potential channels. Digital technology will further
increase the number of channels available. But still, the argument persists that broadcasting is the most
influential means of communication, since it comes into the home, and so much time is spent watching
television. Since it has a unique impact on people and affects children in a way that the print media
normally does not, that regulation is said to be necessary in order to preserve pluralism. It has been
argued further that a significant main threat to free expressionin terms of diversitycomes not from
government, but from private corporate bodies. These developments show a need for a reexamination
of the traditional notions of the scope and extent of broadcast media regulation. [94]
The emergence of digital technology -- which has led to the convergence of broadcasting,
telecommunications and the computer industry -- has likewise led to the question of whether the
regulatory model for broadcasting will continue to be appropriate in the converged
environment.[95] Internet, for example, remains largely unregulated, yet the Internet and the broadcast
media share similarities, [96] and the rationales used to support broadcast regulation apply equally to the
Internet.[97]Thus, it has been argued that courts, legislative bodies and the government agencies
regulating media must agree to regulate both, regulate neither or develop a new regulatory framework
and rationale to justify the differential treatment. [98]
F. The Case At Bar
Having settled the applicable standard to content-based restrictions on broadcast media, let us go to its
application to the case at bar. To recapitulate, a governmental action that restricts freedom of speech
or of the press based on content is given the strictest
scrutiny, with the government having the burden of overcoming the presumed unconstitutionality
C o n s t i t u t i o n a l L a w I I A r t . I I I S e c . 3 a n d 4 P a g e | 46
by the clear and present danger rule. This rule applies equally to all kinds of
media, including broadcast media.
This outlines the procedural map to follow in cases like the one at bar as it spells out the following:
(a) the test; (b) the presumption; (c) the burden of proof; (d) the party to discharge the burden; and
(e) the quantum of evidence necessary. On the basis of the records of the case at bar, respondents
who have the burden to show that these acts do not abridge freedom of speech and of the press failed
to hurdle the clear and present danger test. It appears that the great evil which government wants to
prevent is the airing of a tape recording in alleged violation of the anti-wiretapping law. The records of
the case at bar, however, are confused and confusing, and respondents evidence falls short of
satisfying the clear and present danger test. Firstly, the various statements of the Press Secretary
obfuscate the identity of the voices in the tape recording. Secondly, the integrity of the taped
conversation is also suspect. The Press Secretary showed to the public two versions, one supposed to
be a complete version and the other, an altered version. Thirdly, the evidence of the respondents on
the whos and the hows of the wiretapping act is ambivalent, especially considering the tapes different
versions. The identity of the wire-tappers, the manner of its commission and other related and relevant
proofs are some of the invisibles of this case. Fourthly, given all these unsettled facets of the tape, it
is even arguable whether its airing would violate the anti-wiretapping law.
We rule that not every violation of a law will justify straitjacketing the exercise of freedom
of speech and of the press. Our laws are of different kinds and doubtless, some of them provide
norms of conduct which even if violated have only an adverse effect on a persons private comfort but
does not endanger national security. There are laws of great significance but their violation, by itself
and without more, cannot support suppression of free speech and free press. In fine, violation of
law is just a factor, a vital one to be sure, which should be
weighed in adjudging whether to restrain freedom of speech and of the press. The totality of the
injurious effects of the violation to private and public interest must be calibrated in light of the
preferred status accorded by the Constitution and by related international covenants protecting freedom
of speech and of the press. In calling for a careful and calibrated measurement of the circumference of
all these factors to determine compliance with the clear and present danger test, the Court should
not be misinterpreted as devaluing violations of law. By all
means, violations of law should be vigorously prosecuted by the State for they breed their own evil
consequence. But to repeat, the need to prevent their violation cannot per se trump the
exercise of free speech and free press, a preferred right whose breach can lead to greater
evils. For this failure of the respondents alone to offer proof to satisfy the clear and present danger
test, the Court has no option but to uphold the exercise of free speech and free press. There is no
showing that the feared violation of the anti-wiretapping law clearly endangers the national security
of the State.
This is not all the faultline in the stance of the respondents. We slide to the issue of whether the mere
press statements of the Secretary of Justice and of the NTC in question constitute a form of content-
based prior restraint that has transgressed the Constitution. In resolving this issue, we hold
that it is not decisive that the press statements made by respondents were not reduced in
or followed up with formal orders or circulars. It is sufficient that the press statements
were made by respondents while in the exercise of their official functions. Undoubtedly,
respondent Gonzales made his statements as Secretary of Justice, while the NTC issued its statement
 C o n s t i t u t i o n a l L a w I I A r t . I I I S e c . 3 a n d 4 P a g e | 47

as the regulatory body of media. Any act done, such as a speech uttered, for and on behalf of
the government in an official capacity is covered by the rule on prior restraint. The concept
of an act does not limit itself to acts already converted to a formal order or official
circular. Otherwise, the non formalization of an act into an official order or circular will
result in the easy circumvention of the prohibition on prior restraint. The press statements at
bar are acts that should be struck down as they constitute impermissible forms of prior restraints on the
right to free speech and press.
There is enough evidence of chilling effect of the complained acts on
record. The warnings given to media came from no less the NTC, a regulatory agency that can
cancel the Certificate of Authority of the radio and broadcast media. They also came from the Secretary
of Justice, the alter ego of the Executive, who wields the awesome power to prosecute those perceived
to be violating the laws of the land. After the warnings, the KBP inexplicably joined the NTC in
issuing an ambivalent Joint Press Statement. After the warnings, petitioner Chavez was left alone to
fight this battle for freedom of speech and of the press. This silence on the sidelines on the part of
some media practitioners is too deafening to be the subject of misinterpretation.
The constitutional imperative for us to strike down unconstitutional acts should always be exercised
with care and in light of the distinct facts of each case. For there are no hard and fast rules when it
comes to slippery constitutional questions, and the limits and construct of relative freedoms are never
set in stone. Issues revolving on their construct must be decided on a case to case basis, always based
on the peculiar shapes and shadows of each case. But in cases where the challenged acts are patent
invasions of a constitutionally protected right, we should be swift in striking them down as nullities
per se. A blow too soon struck for freedom is preferred than a blow too late.
In VIEW WHEREOF, the petition is GRANTED. The writs of certiorari and prohibition are hereby
issued, nullifying the official statements made by respondents on June 8, and 11, 2005 warning
the media on airing the alleged wiretapped conversation between the President and other personalities,
for constituting unconstitutional prior restraint on the exercise of freedom of speech and of the press

SO ORDERED.

THIRD DIVISION
[G.R. No. 155282. January 17, 2005]
MOVIE AND TELEVISION REVIEW AND CLASSIFICATION BOARD (MTRCB), petitioner,
vs. ABS-CBN BROADCASTING CORPORATION and LOREN LEGARDA, respondents.
DECISION
SANDOVAL-GUTIERREZ, J.:
For our resolution is the petition for review on certiorari under Rule 45 of the 1997 Rules of Court,
as amended, filed by petitioner Movie and Television Review and Classification Board (MTRCB) against
ABS-CBN Broadcasting Corporation (ABS-CBN) and former Senator Loren Legarda, respondents,
assailing the (a) Decision dated November 18, 1997,[1] and (b) Order dated August 26, 2002[2] of the
Regional Trial Court, Branch 77, Quezon City, in Civil Case No. Q-93-16052.
The facts are undisputed.
On October 15, 1991, at 10:45 in the evening, respondent ABS-CBN aired Prosti-tuition, an
episode of the television (TV) program The Inside Story produced and hosted by respondent Legarda.
It depicted female students moonlighting as prostitutes to enable them to pay for their tuition fees. In
the course of the program, student prostitutes, pimps, customers, and some faculty members were
interviewed. The Philippine Womens University (PWU) was named as the school of some of the
students involved and the facade of PWU Building at Taft Avenue, Manila conspicuously served as the
background of the episode.
The showing of The Inside Story caused uproar in the PWU community. Dr. Leticia P. de Guzman,
Chancellor and Trustee of the PWU, and the PWU Parents and Teachers Association filed letter-
complaints[3] with petitioner MTRCB. Both complainants alleged that the episode besmirched the name
of the PWU and resulted in the harassment of some of its female students.
Acting on the letter-complaints, the MTRCB Legal Counsel initiated a formal complaint with the
MTRCB Investigating Committee, alleging among others, that respondents (1) did not submit The
Inside Story to petitioner for its review and (2) exhibited the same without its permission, thus,
violating Section 7[4] of Presidential Decree (P.D.) No. 1986 [5] and Section 3,[6] Chapter III and Section
7,[7] Chapter IV of the MTRCB Rules and Regulations.[8]
In their answer,[9] respondents explained that the The Inside Story is a public affairs program,
news documentary and socio-political editorial, the airing of which is protected by the constitutional
provision on freedom of expression and of the press. Accordingly, petitioner has no power,
authority and jurisdiction to impose any form of prior restraint upon respondents.
On February 5, 1993, after hearing and submission of the parties memoranda, the MTRCB
Investigating Committee rendered a Decision, the decretal portion of which reads:
C o n s t i t u t i o n a l L a w I I A r t . I I I S e c . 3 a n d 4 P a g e | 48
WHEREFORE, the aforementioned premises, the respondents are ordered to pay the sum of TWENTY
THOUSAND PESOS (P20,000.00) for non-submission of the program, subject of this case for review
and approval of the MTRCB.
Heretofore, all subsequent programs of the The Inside Story and all other programs of the ABS-CBN
Channel 2 of the same category shall be submitted to the Board of Review and Approval before
showing; otherwise the Board will act accordingly.[10]
On appeal, the Office of Atty. Henrietta S. Mendez, Chairman of the MTRCB, issued a Decision
dated March 12, 1993 affirming the above ruling of its Investigating Committee. [11] Respondents filed a
motion for reconsideration but was denied in a Resolution dated April 14, 1993. [12]
Respondents then filed a special civil action for certiorari with the Regional Trial Court (RTC),
Branch 77, Quezon City. It seeks to: (1) declare as unconstitutional Sections
3(b),[13] 3(c),[14] 3(d),[15] 4,[16] 7,[17] and 11[18] of P. D. No. 1986 and Sections 3,[19] 7,[20] and 28[21] (a)
of the MTRCB Rules and Regulations;[22] (2) (in the alternative) exclude the The Inside Story from the
coverage of the above cited provisions; and (3) annul and set aside the MTRCB Decision dated March
12, 1993 and Resolution dated April 14, 1993. Respondents averred that the above-cited provisions
constitute prior restraint on respondents exercise of freedom of expression and of the press, and,
therefore, unconstitutional. Furthermore, the above cited provisions do not apply to the The Inside
Story because it falls under the category of public affairs program, news documentary, or socio-political
editorials governed by standards similar to those governing newspapers.
On November 18, 1997, the RTC rendered a Decision[23] in favor of respondents, the dispositive
portion of which reads:
WHEREFORE, PREMISES CONSIDERED, judgment is hereby rendered:
1. ANNULLING AND SETTING ASIDE the assailed Decision and Resolution of MTRCB dated March
12, 1993;
2. DECLARING AND DECREEING that Sections 3 (b), (c), and (d), 4, 7, and 11 of P.D. No. 1986 and
Sections 3, 7, 28 (a) of its Implementing Rules do not cover the TV Program The Inside Story and other
similar programs, they being public affairs programs which can be equated to newspapers; and
3. MAKING PERMANENT the Injunction against Respondents or all persons acting in their behalf.
SO ORDERED.
Petitioner filed a motion for reconsideration but was denied.[24]
Hence, this petition for review on certiorari.
Petitioner MTRCB through the Solicitor General, contends inter alia: first, all television programs,
including public affairs programs, news documentaries, or socio-political editorials, are subject to

petitioners power of review under Section 3 (b) of P.D. No. 1986 and pursuant to this Courts ruling
in Iglesia ni Cristo vs. Court of Appeals;[25] second, television programs are more accessible to the
public than newspapers, thus, the liberal regulation of the latter cannot apply to the
former; third, petitioners power to review television programs under Section 3(b) of P. D. No. 1986
does not amount to prior restraint; and fourth, Section 3(b) of P. D. No. 1986 does not violate
respondents constitutional freedom of expression and of the press.
Respondents take the opposite stance.
The issue for our resolution is whether the MTRCB has the power or authority to review the The
Inside Story prior to its exhibition or broadcast by television.
The petition is impressed with merit.
The present controversy brings into focus the provisions of Section 3 of P. D. No. 1986, partly
reproduced as follows:
SEC. 3. Powers and Functions. The BOARD shall have the following functions, powers and duties:
xxxxxx
b) To screen, review and examine all motion pictures as herein defined, television programs,
including publicity materials such as advertisements, trailers and stills, whether such motion pictures
and publicity materials be for theatrical or non-theatrical distribution, for television broadcast or for
general viewing, imported or produced in the Philippines, and in the latter case, whether they be for
local viewing or for export.
c) To approve or disapprove, delete objectionable portions from and/or prohibit the importation,
exportation, production, copying, distribution, sale, lease exhibition and/or television broadcast of the
motion pictures, television programs and publicity materials subject of the preceding paragraph, which,
in the judgment of the BOARD applying contemporary Filipino cultural values as standard, are
objectionable for being immoral, indecent, contrary to law and/or good customs, injurious to the
prestige of the Republic of the Philippines or its people, or with a dangerous tendency to encourage the
commission of violence or of a wrong or crime, such as but not limited to:
xxx
d) To supervise, regulate, and grant, deny or cancel, permits for the importation, exportation,
production, copying, distribution, sale, lease, exhibition, and/or television broadcast of all motion
pictures, television programs and publicity materials, to the end and that no such pictures, programs
and materials as are determined by the BOARD to be objectionable in accordance with paragraph (c)
hereof shall be imported, exported, produced, copied, reproduced, distributed, sold, leased, exhibited
and/or broadcast by television;
x x x x x x.
C o n s t i t u t i o n a l L a w I I A r t . I I I S e c . 3 a n d 4 P a g e | 49
Vis-a-vis the foregoing provisions, our task is to decide whether or not petitioner has the power to
review the television program The Inside Story. The task is not Herculean because it merely resurrects
this Court En Bancs ruling in Iglesia ni Cristo vs. Court of Appeals.[26] There, the Iglesia ni Cristo sought
exception from petitioners review power contending that the term television programs under Sec. 3 (b)
does not include religious programs which are protected under Section 5, Article III of the
Constitution.[27] This Court, through Justice Reynato Puno, categorically ruled that P.D. No. 1986 gives
petitioner the power to screen, review and examine all television programs, emphasizing the phrase all
television programs, thus:
The law gives the Board the power to screen, review and examine all television
programs. By the clear terms of the law, the Board has the power to approve, delete x x x and/or
prohibit the x x x exhibition and/or television broadcast of x x x television programs x x x. The law also
directs the Board to apply contemporary Filipino cultural values as standard to determine those which
are objectionable for being immoral, indecent, contrary to law and/or good customs, injurious to the
prestige of the Republic of the Philippines and its people, or with a dangerous tendency to encourage
the commission of violence or of a wrong or crime.
Settled is the rule in statutory construction that where the law does not make any exception,
courts may not except something therefrom, unless there is compelling reason apparent in the law to
justify it.[28] Ubi lex non distinguit nec distinguere debemos. Thus, when the law says all television
programs, the word all covers all television programs, whether religious, public affairs, news
documentary, etc.[29] The principle assumes that the legislative body made no qualification in the use of
general word or expression.[30]
It then follows that since The Inside Story is a television program, it is within the jurisdiction of
the MTRCB over which it has power of review.
Here, respondents sought exemption from the coverage of the term television programs on the
ground that the The Inside Story is a public affairs program, news documentary and socio-political
editorial protected under Section 4,[31] Article III of the Constitution. Albeit, respondents basis is not
freedom of religion, as in Iglesia ni Cristo,[32] but freedom of expression and of the press, the ruling
in Iglesia ni Cristo applies squarely to the instant issue. It is significant to note that in Iglesia ni Cristo,
this Court declared that freedom of religion has been accorded a preferred status by the framers of our
fundamental laws, past and present, designed to protect the broadest possible liberty of conscience, to
allow each man to believe as his conscience directs x x x. Yet despite the fact that freedom of religion
has been accorded a preferred status, still this Court, did not exempt the Iglesia ni Cristos religious
program from petitioners review power.
Respondents claim that the showing of The Inside Story is protected by the constitutional
provision on freedom of speech and of the press. However, there has been no declaration at all by the
framers of the Constitution that freedom of expression and of the press has a preferred status.
If this Court, in Iglesia ni Cristo, did not exempt religious programs from the jurisdiction and
review power of petitioner MTRCB, with more reason, there is no justification to exempt therefrom The
Inside Story which, according to respondents, is protected by the constitutional provision on freedom of
expression and of the press, a freedom bearing no preferred status.
 C o n s t i t u t i o n a l L a w I I A r t . I I I S e c . 3 a n d 4 P a g e | 50

The only exceptions from the MTRCBs power of review are those expressly mentioned in Section 7 case or controversy; (3)that the question must be raised at the earliest possible opportunity;
of P. D. No. 1986, such as (1) television programs imprinted or exhibited by the Philippine Government and, (4) that the decision on the constitutional or legal question must be necessary to the
and/or its departments and agencies, and (2) newsreels. Thus: determination of the case itself.[38]

WHEREFORE, the instant petition is GRANTED. The assailed RTC Decision dated November 18,
SEC. 7. Unauthorized showing or exhibition. It shall be unlawful for any person or entity to exhibit 1997 and Order dated August 26, 2002 are hereby REVERSED. The Decision dated March 12, 1993 of
or cause to be exhibited in any moviehouse, theatre, or public place or by television within the petitioner MTRCB is AFFIRMED. Costs against respondents.
Philippines any motion picture, television program or publicity material, including trailers, and stills for
lobby displays in connection with motion pictures, not duly authorized by the owner or his assignee and SO ORDERED.
passed by the BOARD; or to print or cause to be printed on any motion picture to be exhibited in any
theater or public place or by television a label or notice showing the same to have been officially passed Panganiban, (Chairman), Corona, Carpio-Morales, and Garcia, JJ., concur.
by the BOARD when the same has not been previously authorized, except motion pictures,
television programs or publicity material imprinted or exhibited by the Philippine
Government and/or its departments and agencies, and newsreels.

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

Their contention is unpersuasive.

P. D. No. 1986 does not define newsreels. Websters dictionary defines newsreels as short motion
picture films portraying or dealing with current events. [33] A glance at actual samples of newsreels
shows that they are mostly reenactments of events that had already happened. Some concrete
examples are those of Dziga Vertovs Russian Kino-Pravda newsreel series (Kino-Pravda means literally
film-truth, a term that was later translated literally into the French cinema verite) and Frank
Capras Why We Fight series.[34] Apparently, newsreels are straight presentation of events.
They are depiction of actualities. Correspondingly, the MTRCB Rules and
Regulations[35] implementing P. D. No. 1986 define newsreels as straight news reporting, as
distinguished from news analyses, commentaries and opinions. Talk shows on a given issue
are not considered newsreels.[36] Clearly, the The Inside Story cannot be considered a newsreel. It
is more of a public affairs program which is described as a variety of news treatment; a cross between
pure television news and news-related commentaries, analysis and/or exchange of
opinions.[37] Certainly, such kind of program is within petitioners review power.

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

Consequently, we cannot sustain the RTCs ruling that Sections 3 (c) (d), 4, 7 and 11 of P. D. No.
1986 and Sections 3, 7 and 28 (a) of the MTRCB Rules and Regulations are unconstitutional. It is
settled that no question involving the constitutionality or validity of a law or governmental act may be
heard and decided by the court unless there is compliance with the legal requisites for judicial inquiry,
namely: (1) that the question must be raised by the proper party; (2) that there must be an actual

EN BANC
[G.R. No. 147571. May 5, 2001]
SOCIAL WEATHER STATIONS, INCORPORATED and KAMAHALAN PUBLISHING
CORPORATION, doing business as MANILA STANDARD, petitioners,
vs. COMMISSION ON ELECTIONS, respondent.
DECISION
MENDOZA, J.:
Petitioner, Social Weather Stations, Inc. (SWS), is a private non-stock, non-profit social research
institution conducting surveys in various fields, including economics, politics, demography, and social
development, and thereafter processing, analyzing, and publicly reporting the results thereof. On the
other hand, petitioner Kamahalan Publishing Corporation publishes the Manila Standard, a newspaper
of general circulation, which features newsworthy items of information including election surveys.
Petitioners brought this action for prohibition to enjoin the Commission on Elections from
enforcing 5.4 of R.A. No. 9006 (Fair Election Act), which provides:
Surveys affecting national candidates shall not be published fifteen (15) days before an election and
surveys affecting local candidates shall not be published seven (7) days before an election.
The term election surveys is defined in 5.1 of the law as follows:
Election surveys refer to the measurement of opinions and perceptions of the voters as regards a
candidates popularity, qualifications, platforms or a matter of public discussion in relation to the
election, including voters preference for candidates or publicly discussed issues during the campaign
period (hereafter referred to as Survey).
To implement 5.4, Resolution 3636, 24(h), dated March 1, 2001, of the COMELEC enjoins
Surveys affecting national candidates shall not be published fifteen (15) days before an election and
surveys affecting local candidates shall not be published seven (7) days before an election.
Petitioner SWS states that it wishes to conduct an election survey throughout the period of the
elections both at the national and local levels and release to the media the results of such survey as
well as publish them directly. Petitioner Kamahalan Publishing Corporation, on the other hand, states
that it intends to publish election survey results up to the last day of the elections on May 14, 2001.
Petitioners argue that the restriction on the publication of election survey results constitutes a
prior restraint on the exercise of freedom of speech without any clear and present danger to justify
such restraint. They claim that SWS and other pollsters conducted and published the results of surveys
prior to the 1992, 1995, and 1998 elections up to as close as two days before the election day without
C o n s t i t u t i o n a l L a w I I A r t . I I I S e c . 3 a n d 4 P a g e | 51
causing confusion among the voters and that there is neither empirical nor historical evidence to
support the conclusion that there is an immediate and inevitable danger to the voting process posed by
election surveys. They point out that no similar restriction is imposed on politicians from explaining their
opinion or on newspapers or broadcast media from writing and publishing articles concerning political
issues up to the day of the election. Consequently, they contend that there is no reason for ordinary
voters to be denied access to the results of election surveys which are relatively objective.
Respondent Commission on Elections justifies the restrictions in 5.4 of R.A. No. 9006 as necessary
to prevent the manipulation and corruption of the electoral process by unscrupulous and erroneous
surveys just before the election. It contends that (1) the prohibition on the publication of election
survey results during the period proscribed by law bears a rational connection to the objective of the
law, i.e., the prevention of the debasement of the electoral process resulting from manipulated surveys,
bandwagon effect, and absence of reply; (2) it is narrowly tailored to meet the evils sought to be
prevented; and (3) the impairment of freedom of expression is minimal, the restriction being limited
both in duration, i.e., the last 15 days before the national election and the last 7 days before a local
election, and in scope as it does not prohibit election survey results but only require timeliness.
Respondent claims that in National Press Club v. COMELEC, [1] a total ban on political advertisements,
with candidates being merely allocated broadcast time during the so-called COMELEC space or
COMELEC hour, was upheld by this Court. In contrast, according to respondent, it states that the
prohibition in 5.4 of R.A. No. 9006 is much more limited.
For reasons hereunder given, we hold that 5.4 of R.A. No. 9006 constitutes an unconstitutional
abridgment of freedom of speech, expression, and the press.
To be sure, 5.4 lays a prior restraint on freedom of speech, expression, and the press by
prohibiting the publication of election survey results affecting candidates within the prescribed periods
of fifteen (15) days immediately preceding a national election and seven (7) days before a local
election. Because of the preferred status of the constitutional rights of speech, expression, and the
press, such a measure is vitiated by a weighty presumption of invalidity. [2] Indeed, any system of prior
restraints of expression comes to this Court bearing a heavy presumption against its constitutional
validity. . . . The Government thus carries a heavy burden of showing justification for the enforcement
of such restraint.[3] There is thus a reversal of the normal presumption of validity that inheres in every
legislation.
Nor may it be argued that because of Art. IX-C, 4 of the Constitution, which gives the COMELEC
supervisory power to regulate the enjoyment or utilization of franchise for the operation of media of
communication, no presumption of invalidity attaches to a measure like 5.4. For as we have pointed out
in sustaining the ban on media political advertisements, the grant of power to the COMELEC under Art.
IX-C, 4 is limited to ensuring equal opportunity, time, space, and the right to reply as well as uniform
and reasonable rates of charges for the use of such media facilities for public information campaigns
and forums among candidates.[4] This Court stated:
The technical effect of Article IX (C) (4) of the Constitution may be seen to be that no presumption of
invalidity arises in respect of exercises of supervisory or regulatory authority on the part of the Comelec
for the purpose of securing equal opportunity among candidates for political office, although such
supervision or regulation may result in some limitation of the rights of free speech and free press.[5]

MR. JUSTICE KAPUNAN dissents. He rejects as inappropriate the test of clear and present danger
for determining the validity of 5.4. Indeed, as has been pointed out in Osmea v. COMELEC, [6] this test
was originally formulated for the criminal law and only later appropriated for free speech cases. Hence,
while it may be useful for determining the validity of laws dealing with inciting to sedition or incendiary
speech, it may not be adequate for such regulations as the one in question. For such a test is
concerned with questions of the gravity and imminence of the danger as basis for curtailing free
speech, which is not the case of 5.4 and similar regulations.
Instead, MR. JUSTICE KAPUNAN purports to engage in a form of balancing by weighing and
balancing the circumstances to determine whether public interest [in free, orderly, honest, peaceful and
credible elections] is served by the regulation of the free enjoyment of the rights (page 7). After
canvassing the reasons for the prohibition, i.e., to prevent last-minute pressure on voters, the creation
of bandwagon effect to favor candidates, misinformation, the junking of weak and losing candidates by
their parties, and the form of election cheating called dagdag-bawas and invoking the States power to
supervise media of information during the election period (pages 11-16), the dissenting opinion simply
concludes:
Viewed in the light of the legitimate and significant objectives of Section 5.4, it may be seen that its
limiting impact on the rights of free speech and of the press is not unduly repressive or unreasonable.
Indeed, it is a mere restriction, not an absolute prohibition, on the publication of election surveys. It is
limited in duration; it applies only during the period when the voters are presumably contemplating
whom they should elect and when they are most susceptible to such unwarranted persuasion. These
surveys may be published thereafter. (Pages 17-18)
The dissent does not, however, show why, on balance, these considerations should outweigh the
value of freedom of expression. Instead, reliance is placed on Art. IX-C, 4. As already stated, the
purpose of Art. IX-C, 4 is to ensure equal opportunity, time, and space and the right of reply, including
reasonable, equal rates therefor for public information campaigns and forums among candidates. Hence
the validity of the ban on media advertising. It is noteworthy that R.A. No. 9006, 14 has lifted the ban
and now allows candidates to advertise their candidacies in print and broadcast media. Indeed, to
sustain the ban on the publication of survey results would sanction the censorship of all speaking by
candidates in an election on the ground that the usual bombasts and hyperbolic claims made during the
campaigns can confuse voters and thus debase the electoral process.
In sum, the dissent has engaged only in a balancing at the margin. This form of ad hoc balancing
predictably results in sustaining the challenged legislation and leaves freedom of speech, expression,
and the press with little protection. For anyone who can bring a plausible justification forward can easily
show a rational connection between the statute and a legitimate governmental purpose. In contrast,
the balancing of interest undertaken by then Justice Castro in Gonzales v. COMELEC,[7] from which the
dissent in this case takes its cue, was a strong one resulting in his conclusion that 50-B of R.A. No.
4880, which limited the period of election campaign and partisan political activity, was an
unconstitutional abridgment of freedom of expression.
Nor can the ban on election surveys be justified on the ground that there are other countries 78,
according to the Solicitor General, while the dissent cites 28 which similarly impose restrictions on the
publication of election surveys. At best this survey is inconclusive. It is noteworthy that in the United
C o n s t i t u t i o n a l L a w I I A r t . I I I S e c . 3 a n d 4 P a g e | 52
States no restriction on the publication of election survey results exists. It cannot be argued that this is
because the United States is a mature democracy. Neither are there laws imposing an embargo on
survey results, even for a limited period, in other countries. As pointed out by petitioners, the United
Kingdom, Austria, Belgium, Denmark, Estonia, Finland, Iceland, Ireland, Latvia, Malta, Macedonia, the
Netherlands, Norway, Sweden, and Ukraine, some of which are no older nor more mature than the
Philippines in political development, do not restrict the publication of election survey results.
What test should then be employed to determine the constitutional validity of 5.4? The United
States Supreme Court, through Chief Justice Warren, held in United States v. OBrien:
[A] government regulation is sufficiently justified [1] if it is within the constitutional power of the
Government; [2] if it furthers an important or substantial governmental interest; [3] if the
governmental interest is unrelated to the suppression of free expression; and [4] if the incidental
restriction on alleged First Amendment freedoms [of speech, expression and press] is no greater
than is essential to the furtherance of that interest.[8]
This is so far the most influential test for distinguishing content-based from content-neutral
regulations and is said to have become canonical in the review of such laws. [9] It is noteworthy that
the OBrien test has been applied by this Court in at least two cases.[10]
Under this test, even if a law furthers an important or substantial governmental interest, it should
be invalidated if such governmental interest is not unrelated to the suppression of free expression.
Moreover, even if the purpose is unrelated to the suppression of free speech, the law should
nevertheless be invalidated if the restriction on freedom of expression is greater than is necessary to
achieve the governmental purpose in question.
Our inquiry should accordingly focus on these two considerations as applied to 5.4.
First. Sec. 5.4 fails to meet criterion [3] of the OBrien test because the causal connection of
expression to the asserted governmental interest makes such interest not unrelated to the suppression
of free expression. By prohibiting the publication of election survey results because of the possibility
that such publication might undermine the integrity of the election, 5.4 actually suppresses a whole
class of expression, while allowing the expression of opinion concerning the same subject matter by
newspaper columnists, radio and TV commentators, armchair theorists, and other opinion makers. In
effect, 5.4 shows a bias for a particular subject matter, if not viewpoint, by preferring personal opinion
to statistical results. The constitutional guarantee of freedom of expression means that the government
has no power to restrict expression because of its message, its ideas, its subject matter, or its
content.[11] The inhibition of speech should be upheld only if the expression falls within one of the few
unprotected categories dealt with in Chaplinsky v. New Hampshire,[12] thus:
There are certain well-defined and narrowly limited classes of speech, the prevention and punishment
of which have never been thought to raise any Constitutional problem. These include the lewd and
obscene, the profane, the libelous, and the insulting or fighting words those which by their very
utterance inflict injury or tend to incite an immediate breach of the peace. [S]uch utterances are no
essential part of any exposition of ideas, and are of such slight social value as a step to truth that any
 C o n s t i t u t i o n a l L a w I I A r t . I I I S e c . 3 a n d 4 P a g e | 53

benefit that may be derived from them is clearly outweighed by the social interest in order and tendency of some voters. Some voters want to be identified with the winners. Some are susceptible to
morality. the herd mentality. Can these be legitimately prohibited by suppressing the publication of survey results
which are a form of expression? It has been held that [mere] legislative preferences or beliefs
Nor is there justification for the prior restraint which 5.4 lays on protected speech. In Near v. respecting matters of public convenience may well support regulation directed at other personal
Minnesota,[13] it was held: activities, but be insufficient to justify such as diminishes the exercise of rights so vital to the
maintenance of democratic institutions.[18]
[The] protection even as to previous restraint is not absolutely unlimited. But the limitation has been To summarize then, we hold that 5.4 is invalid because (1) it imposes a prior restraint on the
recognized only in exceptional cases. . . . No one would question but that a government might prevent freedom of expression, (2) it is a direct and total suppression of a category of expression even though
actual obstruction to its recruiting service or the publication of the sailing dates of transports or the such suppression is only for a limited period, and (3) the governmental interest sought to be promoted
number and location of troops. On similar grounds, the primary requirements of decency may be can be achieved by means other than the suppression of freedom of expression.
enforced against obscene publications. The security of the community life may be protected against
incitements to acts of violence and the overthrow by force of orderly government . . . . On the other hand, the COMELEC contends that under Art. IX-A, 7 of the Constitution, its
decisions, orders, or resolutions may be reviewed by this Court only by certiorari. The flaws in this
argument is that it assumes that its Resolution 3636, dated March 1, 2001 is a decision, order, or
Thus, contrary to the claim of the Solicitor General, the prohibition imposed by 5.4 cannot be
resolution within the meaning of Art. IX-A, 7. Indeed, counsel for COMELEC maintains that Resolution
justified on the ground that it is only for a limited period and is only incidental. The prohibition may be
3636 was rendered by the Commission. However, the Resolution does not purport to adjudicate the
for a limited time, but the curtailment of the right of expression is direct, absolute, and substantial. It
right of any party. It is not an exercise by the COMELEC of its adjudicatory power to settle the claims of
constitutes a total suppression of a category of speech and is not made less so because it is only for a
parties. To the contrary, Resolution 3636 clearly states that it is promulgated to implement the
period of fifteen (15) days immediately before a national election and seven (7) days immediately
provisions of R.A. No. 9006. Hence, there is no basis for the COMELECs claim that this petition for
before a local election.
prohibition is inappropriate. Prohibition has been found appropriate for testing the constitutionality of
This sufficiently distinguishes 5.4 from R.A. No. 6646, 11(b), which this Court found to be valid various election laws, rules, and regulations.[19]
in National Press Club v. COMELEC[14] and Osmea v. COMELEC.[15] For the ban imposed by R.A. No.
WHEREFORE, the petition for prohibition is GRANTED and 5.4 of R.A. No. 9006 and 24(h) of
6646, 11(b) is not only authorized by a specific constitutional provision, [16] but it also provided an
COMELEC Resolution 3636, dated March 1, 2001, are declared unconstitutional.
alternative so that, as this Court pointed out in Osmea, there was actually no ban but only a
substitution of media advertisements by the COMELEC space and COMELEC hour. SO ORDERED
Second. Even if the governmental interest sought to be promoted is unrelated to the suppression
of speech and the resulting restriction of free expression is only incidental, 5.4 nonetheless fails to meet
criterion [4] of the OBrien test, namely, that the restriction be not greater than is necessary to further
the governmental interest. As already stated, 5.4 aims at the prevention of last-minute pressure on
voters, the creation of bandwagon effect, junking of weak or losing candidates, and resort to the form
of election cheating called dagdag-bawas. Praiseworthy as these aims of the regulation might be, they
cannot be attained at the sacrifice of the fundamental right of expression, when such aim can be more
narrowly pursued by punishing unlawful acts, rather than speech because of apprehension that such
speech creates the danger of such evils. Thus, under the Administrative Code of 1987, [17] the COMELEC
is given the power:

To stop any illegal activity, or confiscate, tear down, and stop any unlawful, libelous, misleading or false
election propaganda, after due notice and hearing.

This is surely a less restrictive means than the prohibition contained in 5.4. Pursuant to this power
of the COMELEC, it can confiscate bogus survey results calculated to mislead voters. Candidates can
have their own surveys conducted. No right of reply can be invoked by others. No principle of equality
is involved. It is a free market to which each candidate brings his ideas. As for the purpose of the law
to prevent bandwagon effects, it is doubtful whether the Government can deal with this natural-enough

Republic of the Philippines
SUPREME COURT
Manila
EN BANC
G.R. No. L-16027 May 30, 1962
LUMEN POLICARPIO, plaintiff-appellant,
vs.
THE MANILA TIMES PUB. CO., INC., CONSTANTE C. ROLDAN,
MANUEL V. VILLA-REAL, E. AGUILAR CRUZ and CONSORCIO BORJE, defendant-appellees.
Mario Bengzon for plaintiff-appellant.
Alfredo Gonzales and Rafael M. Delfin for defendants-appellees.
CONCEPCION, J.:
Appeal from a decision of the Court of First Instance of Manila dismissing plaintiff's complaint and
defendants' counterclaim, without special pronouncement as to costs. Originally certified to the Court of
Appeals, the record on appeal was subsequently forwarded to us in view of the amount involved in the
complaint (P300,000.00).
Plaintiff Lumen Policarpio seeks to recover P150,000.00, as actual damages, P70,000, as moral
damages, P60,000 as correctional and exemplary damages, and P20,000, as attorney's fees, aside from
the costs, by reason of the publication in the Saturday Mirror of August 11, 1956, and in the Daily
Mirror of August 13, 1956, of two (2) articles or news items which are claimed to be per se defamatory,
libelous and false, and to have exposed her to ridicule, jeopardized her integrity, good name and
business and official transactions, and caused her grave embarrassment, untold and extreme moral,
mental and physical anguish and incalculable material, moral, professional and business damages. The
defendants are The Manila Times Publishing Co., Inc., as publisher of The Saturday Mirror and The
Daily Mirror, which are newspapers of general circulation in the Philippines, and Constante C. Roldan,
Manuel V. Villa-Real, E. Aguilar Cruz and Consorcio Borje, as the reporter or author of the first article
and the managing editor, the associate editor and the news editor, respectively, of said newspapers.
After its motion to dismiss the complaint had been denied by the Court of First Instance of Manila, in
which the present action was initiated, the defendants filed a joint answer admitting the formal
allegations of the complaint, denying the other allegations thereof, alleging special defenses and setting
up a counterclaim for P10,000, as attorney's fees and expenses of litigation. In due course, later on,
said court rendered the aforementioned decision, upon the ground that plaintiff had not proven that
defendants had acted maliciously in publishing the aforementioned articles, although portions thereof
were inaccurate or false.
C o n s t i t u t i o n a l L a w I I A r t . I I I S e c . 3 a n d 4 P a g e | 54
Plaintiff is a member of the Philippine bar. On August 11 and 13, 1956, and for sometime prior thereto,
she was executive secretary of the local UNESCO National Commission. As such officer, she had
preferred charges against Herminia D. Reyes, one of her subordinates in said Commission, and caused
her to be separated from the service. Miss Reyes, in turn, preferred counter-charges which were
referred to Col. Crisanto V. Alba, a Special Investigator in the Office of the President. Pending
completion of the administrative investigation, which began in June, 1956, Miss Reyes filed with the
Office of the City Fiscal of Manila, on August 8, 1956, a complaint against the plaintiff for alleged
malversation of public funds and another complaint for alleged estafa thru falsification of public
documents, which were scheduled for investigation by said office on August 22, 1956, at 2:00 p.m.
Meanwhile, or on August 11, 1956, the following appeared, with a picture of the plaintiff, in the front
page of The Saturday Mirror:
WOMAN OFFICIAL SUED
PCAC RAPS L. POLICARPIO ON FRAUDS
Unesco Official Head Accused on
Supplies, Funds Use by Colleague
By Constante C. Roldan
Lumen Policarpio, executive secretary of the Unesco national commission here, was charged with
malversation and estafa in complaints filed with the city fiscal's office by the Presidential Complaints
and Action Commission today.
The criminal action was initiated as a result of current administrative investigation against the Unesco
official being conducted by Col. Crisanto V. Alba, Malacañan technical assistant, on charges filed by
Herminia D. Reyes, a Unesco confidential assistant. The Unesco commission functions under the Office
of the President.
Fiscal Manases G. Reyes, to whom the cases were assigned, immediately scheduled preliminary
investigation of the charges on August 22 at 2 p.m. Colonel Alba, in turn, indicated that the
administrative phase of the inquiry will continue Monday and then resume on August 21 at Malacañan
Park. The Palace Investigator said there are other charges, but would not specify these.
Alba said Miss Reyes had testified on circumstances supposedly substantiating the malversation charge.
Testimony had allegedly indicated that the accused had used Unesco stencils for private and personal
purposes. Specification reputedly said that Miss Policarpio had taken stencils from the Unesco
storeroom and used these for French lessons not at all connected with Unesco work; for the
preparation of contracts of sale of pianos in her business establishment; for preparation of invitations
sent to members of the League of Women Voters of which she is one of the officers.
Cited as witnesses on this charge are Miss Reyes, Francisco Manalo of Barrio Salabat, Taal, Batangas,
Federico Vergara and Pablo Armesto both of the Unesco.1äwphï1.ñët

Regarding the charge of estafa through falsification of public documents allegedly also committed
sometime in 1955, Miss Policarpio was accused of having collected expenses for supposed trips. The
accusation said the Unesco official had sought reimbursement of expenses for a trip to Baler, Quezon,
on Aug. 19, last year, representing expenses of her car when in fact she supposedly rode in an army
plane.
Testimony indicated that a newspaper woman who was a supposed co-passenger had even written
about the plane trip in her newspaper column. The same voucher also allegedly collected expenses for
going to a Unesco Bayambang (Pangasinan) project, although records reputedly showed that she was
absent in that conferences.
Witnesses cited on the charge include Aurelio Savalbaro, a Philippine Air Force pilot, Lt. Clemente
Antonio and others, also of the PAF.
Miss Policarpio becomes the second high-ranking woman government official to face charges involving
financial disbursements in their office. The first was Sen. Pacita M. Gonzales who is still under charge
mis-spending funds of the Social Welfare Administration and the UNAC while she had charge of these.
The complainant, Miss Reyes, was earlier ordered relieved from her Unesco post by Miss Policarpio on
charges including conduct "unbecoming a lady", and as a result had not been paid her salary. She
appealed to Malacañan which dismissed her suit and later she sued before Judge Rafael Amparo to
compel payment of her salary. The court also rejected her plea on the ground that she had not
exhausted all administrative remedies, the Palace not having made a clearcut decision on her case.
The Daily Mirror of August 13, 1956, likewise, carried on its first page — with a picture of plaintiff and
of Miss Reyes, taken during the administrative investigation being conducted by Col. Alba — another
news item, reading:
"PALACE OPENS INVESTIGATION OF RAPS AGAINST POLICARPIO
Alba Probes Administrative Phase of
Fraud Charges Against Unesco Woman
Official; Fiscal Sets Prelim Quiz
Of Criminal Suit on Aug. 22.
The administrative phase of two-pronged investigation Miss Lumen Policarpio, head of the Unesco
national commission here, opened in Malacañan before Col. Crisanto V. Alba.
The judicial inquiry of charges filed by Herminia D. Reyes, also the complainant in the Malacañan case
before the Presidential Complaints and Action Commission, will be conducted by Fiscal Manases G.
Reyes on Aug. 22 at 2 p.m.
Miss Policarpio stands accused by Reyes of having malversed public property and of having fraudulently
sought reimbursement of supposed official expenses.
C o n s t i t u t i o n a l L a w I I A r t . I I I S e c . 3 a n d 4 P a g e | 55
Colonel Alba, at the start of his investigation at the Malacañan Park, clarified that neither he nor the
PCAC had initiated the criminal action before the city fiscal's office. The complaint before the fiscal was
started by an information she naming Herminia D. Reyes as complainant and citing other persons as
witnesses. Fiscal Reyes set preliminary investigation of these charges for Aug. 22.
Miss Reyes, technical assistant of the Unesco, stated at the Palace inquiry that during 1955 Miss
Policarpio allegedly used several sheets of government stencils for her private and personal use, such
as for French lessons, contracts of sale of pianos and for invitations of the League of Women Voters of
which she (Miss Policarpio) is an officer. The Unesco commission here functions under the Office of the
President.
The charge was filed with the PCAC, and the PCAC endorsed it to Colonel Alba for investigation.
Miss Policarpio this morning was not represented by an lawyer. Federico Diaz, lawyer representing
complainant Miss Reyes, petitioned for the suspension of Miss Policarpio, executive secretary of the
Unesco.
Alba did not act immediately on the petition. He said he was holding a hearing on the petition on
August 15.
During this morning's investigation three witness appeared. The first witness was Atty. Antonio Lopez of
the PCAC who brought with him 18 sheets of stencil which were allegedly used by Miss Policarpio for
her personal use. These sheets were admitted as temporary exhibits.
The second witness was Federico Vergara of the Unesco who said that he received four of the 18
sheets, but he could not identify which of the sheets he had received.
The third witness was Francisco Manalo who certified on the charge of oppression in office against Miss
Policarpio.
The other charge of Miss Reyes corresponded to supposed reimbursements sought by Miss Policarpio
for a trip to Quezon Province and to Pangasinan. On the first, Miss Reyes' complaint alleged the Unesco
official had asked for refund of expenses for use of her car when, Miss Reyes claimed she had actually
made the trip aboard an army plane.
Miss Reyes also said Miss Policarpio was absent from the Bayambang conference for which she also
sought allegedly refund of expenses.
The complainant had previously been ordered relieved of her Unesco post by Miss Policarpio and had
later sued at the Palace and before the Court for payment of her salary.
The title of the article of August 11, 1956 — "WOMAN OFFICIAL SUED" — was given prominence with a
6-column (about 11 inches) banner headline of one-inch types. Admittedly, its sub-title — "PCAC RAPS

L. POLICARPIO PIO ON FRAUD" — printed in bold one-centimeter types, is not true. Similarly, the
statement in the first paragraph of the article, to the effect that plaintiff "was charged with malversation
and estafa in complaints filed with the city fiscal's office by the Presidential Complaint and Action
Commission" — otherwise known as PCAC — is untrue, the complaints for said offenses having been
filed by Miss Reyes. Neither is it true that said "criminal action was initiated as a result of current
administrative, investigation", as stated in the second paragraph of the same article.
Plaintiff maintains that the effect of these false statements was to give the general impression that said
investigation by Col. Alba had shown that plaintiff was guilty, or, at least, probably guilty of the crimes
aforementioned, and that, as a consequence, the PCAC had filed the corresponding complaints with the
city fiscal's office. She alleges, also, that although said article indicates that the charges for
malversation and for estafa through falsification against her referred, respectively, to the use by her of
Unesco stencils allegedly for private and personal purposes, and to the collection of transportation
expenses, it did not mention the fact that the number of stencils involved in the charge was only 18 or
20, that the sum allegedly misappropriated by her was only P54, and that the falsification imputed to
her was said to have been committed by claiming that certain expenses for which she had sought and
secured reimbursement were incurred in trips during the period from July 1, 1955 to September 30,
1955, although the trips actually were made, according to Miss Reyes, from July 8 to August 31, 1955.
By omitting these details, plaintiff avers, the article of August 11, 1956, had the effect of conveying the
idea that the offenses imputed to her were more serious than they really were. Plaintiff, likewise, claims
that there are other inaccuracies in the news item of August 13, 1956, but, we do not deem it
necessary to dwell upon the same for the determination of this case.
Upon the other hand, defendants contend that, although the complaints in the city fiscal's office were
filed, not by the PCAC, but by Miss Reyes, this inaccuracy is insignificant and immaterial to the case, for
the fact is that said complaints were filed with said office. As regards the number of sheets of stencil
allegedly misused and the amount said to have been misappropriated by plaintiff, as well as the nature
of the falsification imputed to her, defendants argue that these "details" do not affect the truthfulness
of the article as a whole, and that, in any event, the insignificant value of said sheets of stencil and the
small amount allegedly misappropriated, would have had, if set forth in said article, a greater
derogatory effect upon the plaintiff, aside from the circumstance that defendants had no means of
knowing such "details". It appears, however, that prior to August 11, 1956, Col. Alba had already taken
the testimony of Antonio P. Lopez, Francisco Manalo and Federico Vergara, as witnesses for Miss Reyes.
Hence, defendants could have ascertained the "details" aforementioned, had they wanted to. Indeed,
some of the defendants and/or their representatives had made appropriate inquiries from Col. Alba
before said date, and some "details" — though not those adverted to above — appear in the article
then published, whereas the number of sheets of stencil allegedly misused was mentioned in the news
item of August 13, 1956.
Moreover, the penalty prescribed by law for the crime either of estafa or of embezzlement depends
partly upon the amount of the damage caused to the offended party (Articles 315 to 318, Revised Penal
Code). Hence, the amount or value of the property embezzled is material to said offense.
Again, it is obvious that the filing of criminal complaints with the city fiscal's office by another agency of
the Government, like the PCAC, particularly after an investigation conducted by the same, imparts the
C o n s t i t u t i o n a l L a w I I A r t . I I I S e c . 3 a n d 4 P a g e | 56
ideal that the probability of guilty on the part of the accused is greater than when the complaints are
filed by a private individual, specially when the latter is a former subordinate of the alleged offender,
who was responsible for the dismissal of the complainant from her employment. It is only too apparent
that the article published on August 11, 1956, presented the plaintiff in a more unfavorable light than
she actually was.
It goes without saying that newspapers must enjoy a certain degree of discretion in determining the
manner in which a given event should be presented to the public, and the importance to be attached
thereto, as a news item, and that its presentation in a sensational manner is not per se illegal.
Newspaper may publish news items relative to judicial, legislative or other official proceedings, which
are not of confidential nature, because the public is entitled to know the truth with respect to such
proceedings, which, being official and non-confidential, are open to public consumption. But, to enjoy
immunity, a publication containing derogatory information must be not only true, but, also, fair, and it
must be made in good faith and without any comments or remarks.
Defendants maintain that their alleged malice in publishing the news items in question had not been
established by the plaintiff. However, Article 354 of the Revised Penal Code, provides:
Every defamatory imputation is presumed to be malicious, even if it be true, if no good
intention and justifiable motive for making it is shown, except in the following cases:
1. A private communication made by any person to another in the performance of any legal,
moral or social duty; and
2. A fair and true report, made in good faith, without any comments or remarks, of any
judicial, legislative or other official proceedings which are not of confidential nature, or of any
statement, report or speech delivered in said proceedings, or of any other act performed by
public officers in the exercise of other functions.
In the case at bar, aside from containing information derogatory to the plaintiff, the article published on
August 11, 1956, presented her in a worse predicament than that in which she, in fact, was. In other
words, said article was not a fair and true report of the proceedings there in alluded to. What is more,
its sub-title — "PCAC RAPS L. POLICARPIO ON FRAUD" — is a comment or remark, besides being false.
Accordingly, the defamatory imputations contained in said article are "presumed to be malicious".
Then too, how could defendants claim to have acted with good intentions or justifiable motive in falsely
stating that the complaints had been filed with the Office of the City Fiscal by the PCAC as a result of
the administrative investigation of Col. Alba? Either they knew the truth about it or they did not know it.
If they did, then the publication would be actually malicious. If they did not or if they acted under a
misapprehension of the facts, they were guilty of negligence in making said statement, for the
consequences of which they are liable solidarily (Articles 2176, 2194, 2208 and 2219 [I], Civil Code of
the Philippines; 17 R.C.L. sec. 95, p. 349).
 C o n s t i t u t i o n a l L a w I I A r t . I I I S e c . 3 a n d 4 P a g e | 57

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

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

Padilla, Bautista Angelo, Reyes, J.B.L., Barrera, Paredes and Dizon, JJ., concur.
Bengzon, C.J., is on leave.

SECOND DIVISION
[G.R. No. 126466. January 14, 1999]
ARTURO BORJAL a.k.a. ART BORJAL and MAXIMO SOLIVEN, petitioners, vs. COURT OF
APPEALS and FRANCISCO WENCESLAO, respondents.
DECISION
"The question is not so much as who was aimed at as who was hit." (Pound, J., in Corrigan v. Bobbs-
Merill Co., 228 N.Y. 58 [1920]).
BELLOSILLO, J.:
PERPETUALLY HAGRIDDEN as the public is about losing one of the most basic yet oft hotly
contested freedoms of man, the issue of the right of free expression bestirs and presents itself time and
again, in cyclic occurrence, to inveigle, nay, challenge the courts to re-survey its ever shifting terrain,
explore and furrow its heretofore uncharted moors and valleys and finally redefine the metes and
bounds of its controversial domain. This, prominently, is one such case.
Perhaps, never in jurisprudential history has any freedom of man undergone radical doctrinal
metamorphoses than his right to freely and openly express his views. Blackstone's pontifical comment
that "where blasphemous, immoral, treasonable, schismatical, seditious, or scandalous libels are
punished by English law . . . the liberty of the press, properly understood, is by no means infringed or
violated," found kindred expression in the landmark opinion of England's Star Chamber in the Libelis
Famosis case in 1603.[1] That case established two major propositions in the prosecution of defamatory
remarks: first, that libel against a public person is a greater offense than one directed against an
ordinary man, and second, that it is immaterial that the libel be true.
Until republicanism caught fire in early America, the view from the top on libel was no less
dismal. Even the venerable Justice Holmes appeared to waffle as he swayed from the concept of
criminal libel liability under the clear and present danger rule, to the other end of the spectrum in
defense of the constitutionally protected status of unpopular opinion in free society.
Viewed in modern times and the current revolution in information and communication technology,
libel principles formulated at one time or another have waxed and waned through the years in the
constant ebb and flow of judicial review. At the very least, these principles have lost much of their
flavor, drowned and swamped as they have been by the ceaseless cacophony and din of thought and
discourse emanating from just about every source and direction, aided no less by an increasingly
powerful and irrepressible mass media. Public discourse, laments Knight, has been devalued by its utter
commonality; and we agree, for its logical effect is to benumb thought and sensibility on what may be
considered as criminal illegitimate encroachments on the right of persons to enjoy a good, honorable
and reputable name. This may explain the imperceptible demise of criminal prosecutions for libel and
the trend to rely instead on indemnity suits to repair any damage on one's reputation.
In this petition for review, we are asked to reverse the Court of Appeals in "Francisco Wenceslao
v. Arturo Borjal and Maximo Soliven," CA-G.R. No. 40496, holding on 25 March 1996 that petitioners
C o n s t i t u t i o n a l L a w I I A r t . I I I S e c . 3 a n d 4 P a g e | 58
Arturo Borjal and Maximo Soliven are solidarily liable for damages for writing and publishing certain
articles claimed to be derogatory and offensive to private respondent Francisco Wenceslao.
Petitioners Arturo Borjal and Maximo Soliven are among the incorporators of Philippines Today,
Inc. (PTI), now PhilSTAR Daily, Inc., owner of The Philippine Star, a daily newspaper. At the time the
complaint was filed, petitioner Borjal was its President while Soliven was (and still is) Publisher and
Chairman of its Editorial Board. Among the regular writers of The Philippine Star is Borjal who runs the
column Jaywalker.
Private respondent Francisco Wenceslao, on the other hand, is a civil engineer, businessman,
business consultant and journalist by profession. In 1988 he served as a technical adviser of
Congressman Fabian Sison, then Chairman of the House of Representatives Sub-Committee on
Industrial Policy.
During the congressional hearings on the transport crisis sometime in September 1988 undertaken
by the House Sub-Committee on Industrial Policy, those who attended agreed to organize the First
National Conference on Land Transportation (FNCLT) to be participated in by the private sector in the
transport industry and government agencies concerned in order to find ways and means to solve the
transportation crisis. More importantly, the objective of the FNCLT was to draft an omnibus bill that
would embody a long-term land transportation policy for presentation to Congress. The conference
which, according to private respondent, was estimated to cost around P1,815,000.00 would be funded
through solicitations from various sponsors such as government agencies, private organizations,
transport firms, and individual delegates or participants.[2]
On 28 February 1989, at the organizational meeting of the FNCLT, private respondent Francisco
Wenceslao was elected Executive Director. As such, he wrote numerous solicitation letters to the
business community for the support of the conference.
Between May and July 1989 a series of articles written by petitioner Borjal was published on
different dates in his column Jaywalker. The articles dealt with the alleged anomalous activities of an
"organizer of a conference" without naming or identifying private respondent. Neither did it refer to the
FNCLT as the conference therein mentioned. Quoted hereunder are excerpts from the articles of
petitioner together with the dates they were published[3] -
31 May 1989
Another self-proclaimed hero of the EDSA Revolution goes around organizing seminars and
conferences for a huge fee. This is a simple ploy coated in jazzy letterheads and slick prose. The hero
has the gall to solicit fees from anybody with bucks to spare. Recently, in his usual straightforward
style, Transportation Secretary Rainerio Ray Reyes, asked that his name be stricken off from the
letterheads the hero has been using to implement one of his pet seminars. Reyes said: I would like to
reiterate my request that you delete my name. Note that Ray Reyes is an honest man who would
confront anybody eyeball to eyeball without blinking.
9 June 1989

Another questionable portion of the so-called conference is its unauthorized use of the names of
President Aquino and Secretary Ray Reyes. The conference program being circulated claims that
President Aquino and Reyes will be main speakers in the conference. Yet, the word is that Cory and
Reyes have not accepted the invitation to appear in this confab. Ray Reyes even says that the
conference should be unmasked as a moneymaking gimmick.
19 June 1989
x x x some 3,000 fund solicitation letters were sent by the organizer to every Tom, Dick and Harry and
to almost all government agencies. And the letterheads carried the names of Reyes and
Periquet. Agrarian Reform Secretary on leave Philip Juico received one, but he decided to find out from
Reyes himself what the project was all about. Ray Reyes, in effect, advised Juico to put the fund
solicitation letter in the waste basket. Now, if the 3,000 persons and agencies approached by the
organizer shelled out 1,000 each, thats easily P3 million to a project that seems so unsophisticated. But
note that one garment company gave P100,000, after which the Garments Regulatory Board headed by
Trade and Industry Undersecretary Gloria Macapagal-Arroyo was approached by the organizer to
expedite the garment license application of the P100,000 donor.
21 June 1989
A 'conference organizer' associated with shady deals seems to have a lot of trash tucked inside his
closet. The Jaywalker continues to receive information about the mans dubious deals. His notoriety,
according to reliable sources, has reached the Premier Guest House where his name is spoken like
dung.x x x
The first information says that the 'organizer' tried to mulct half a million pesos from a garment
producer and exporter who was being investigated for violation of the rules of the Garments, Textile,
Embroidery and Apparel Board. The 'organizer' told the garment exporter that the case could be fixed
for a sum of P500,000.00. The organizer got the shock of his life when the exporter told him: 'If I have
that amount, I will hire the best lawyers, not you.' The organizer left in a huff, his thick face very pale.x
xx
Friends in government and the private sector have promised the Jaywalker more 'dope' on the
'organizer.' It seems that he was not only indiscreet; he even failed to cover his tracks. You will be
hearing more of the 'organizers' exploits from this corner soon.
22 June 1989
The scheming 'organizer' we have been writing about seems to have been spreading his wings too
far. A congressional source has informed the Jaywalker that the schemer once worked for a
congressman from the North as some sort of a consultant on economic affairs. The first thing the
organizer did was to initiate hearings and round-the-table discussions with people from the business,
export and -- his favorite -- the garments sector. x x x
C o n s t i t u t i o n a l L a w I I A r t . I I I S e c . 3 a n d 4 P a g e | 59
The 'organizers' principal gamely went along, thinking that his 'consultant' had nothing but the good of
these sectors in mind. It was only later that he realized that the 'consultant' was acting with a burst of
energy 'in aid of extortion.' The 'consultant' was fired. x x x
There seems to be no end to what a man could do to pursue his dubious ways. He has tried to operate
under a guise of a well-meaning reformist. He has intellectual pretensions - and sometimes he succeeds
in getting his thoughts in the inside pages of some newspapers, with the aid of some naive newspaper
people. He has been turning out a lot of funny-looking advice on investments, export growth, and the
like. x x x
A cabinet secretary has one big wish. He is hoping for a broad power to ban crooks and influence-
peddlers from entering the premises of his department. But the Cabinet man might not get his
wish. There is one 'organizer' who, even if physically banned, can still concoct ways of doing his
thing. Without a tinge of remorse, the 'organizer' could fill up his letterheads with names of Cabinet
members, congressmen, and reputable people from the private sector to shore up his shady reputation
and cover up his notoriety.
3 July 1989
A supposed conference on transportation was a big failure. The attendance was very poor and the few
who participated in the affair were mostly leaders of jeepney drivers groups. None of the government
officials involved in regulating public transportation was there. The big names in the industry also did
not participate. With such a poor attendance, one wonders why the conference organizers went ahead
with the affair and tried so hard to convince 3,000 companies and individuals to contribute to the affair.
xxx
The conference was doomed from the start. It was bound to fail. The personalities who count in the
field of transportation refused to attend the affair or withdrew their support after finding out the
background of the organizer of the conference. How could a conference on transportation succeed
without the participation of the big names in the industry and government policy-makers?
Private respondent reacted to the articles. He sent a letter to The Philippine Star insisting that he
was the organizer alluded to in petitioner Borjals columns.[4] In a subsequent letter to The Philippine
Star, private respondent refuted the matters contained in petitioner Borjals columns and openly
challenged him in this manner -
To test if Borjal has the guts to back up his holier than thou attitude, I am prepared to
relinquish this position in case it is found that I have misappropriated even one peso of FNCLT
money. On the other hand, if I can prove that Borjal has used his column as a hammer to get clients for
his PR Firm, AA Borjal Associates, he should resign from the STAR and never again write a column. Is it
a deal?[5]
Thereafter, private respondent filed a complaint with the National Press Club (NPC) against
petitioner Borjal for unethical conduct. He accused petitioner Borjal of using his column as a form of

leverage to obtain contracts for his public relations firm, AA Borjal Associates. [6] In turn, petitioner
Borjal published a rejoinder to the challenge of private respondent not only to protect his name and
honor but also to refute the claim that he was using his column for character assassination. [7]
Apparently not satisfied with his complaint with the NPC, private respondent filed a criminal case
for libel against petitioners Borjal and Soliven, among others. However, in a Resolution dated 7 August
1990, the Assistant Prosecutor handling the case dismissed the complaint for insufficiency of
evidence. The dismissal was sustained by the Department of Justice and later by the Office of the
President.
On 31 October 1990 private respondent instituted against petitioners a civil action for damages
based on libel subject of the instant case. [8] In their answer, petitioners interposed compulsory
counterclaims for actual, moral and exemplary damages, plus attorneys fees and costs. After due
consideration, the trial court decided in favor of private respondent Wenceslao and ordered petitioners
Borjal and Soliven to indemnify private respondent P1,000,000.00 for actual and compensatory
damages, in addition to P200,000.00 for moral damages, P100,000.00 for exemplary
damages, P200,000.00 for attorneys fees, and to pay the costs of suit.
The Court of Appeals affirmed the decision of the court a quo but reduced the amount of the
monetary award to P110,000.00 actual damages, P200,000.00 moral damages and P75,000.00
attorney's fees plus costs. In a 20-page Decision promulgated 25 March 1996, the appellate court
ruled inter alia that private respondent was sufficiently identifiable, although not named, in the
questioned articles; that private respondent was in fact defamed by petitioner Borjal by describing him
variously as a "self-proclaimed hero," "a conference organizer associated with shady dealswho has a lot
of trash tucked inside his closet," "thick face," and "a person with dubious ways;" that petitioners claim
of privilege communication was unavailing since the privileged character of the articles was lost by their
publication in a newspaper of general circulation; that petitioner could have performed his office as a
newspaperman without necessarily transgressing the rights of Wenceslao by calling the attention of the
government offices concerned to examine the authority by which Wenceslao acted, warning the public
against contributing to a conference that, according to his perception, lacked the univocal indorsement
of the responsible government officials, or simply informing the public of the letters Wenceslao wrote
and the favors he requested or demanded; and, that when he imputed dishonesty, falsehood and
misrepresentation, shamelessness and intellectual pretentions to Wenceslao, petitioner Borjal crossed
the thin but clear line that separated fair comment from actionable defamation.
Private respondent manifested his desire to appeal that portion of the appellate courts decision
which reduced the amount of damages awarded him by filing with this Court a Petition for Extension of
Time to File Petition and a Motion for Suspension of Time to File Petition.[9] However, in a Resolution
dated 27 May 1996, the Second Division denied both motions: the first, for being premature, and the
second, for being a wrong remedy.
On 20 November 1996 when the First Division consolidated and transferred the present case to
the Second Division, there was no longer any case thereat with which to consolidate this case since
G.R. No. 124396 had already been disposed of by the Second Division almost six (6) months earlier.
On their part, petitioners filed a motion for reconsideration but the Court of Appeals denied the
motion in its Resolution of 12 September 1996. Hence the instant petition for review. The petitioners
contend that the Court of Appeals erred: (a) in ruling that private respondent Wenceslao was
C o n s t i t u t i o n a l L a w I I A r t . I I I S e c . 3 a n d 4 P a g e | 60
sufficiently identified by petitioner Borjal in the questioned articles; (b) in refusing to accord serious
consideration to the findings of the Department of Justice and the Office of the President that private
respondent Wenceslao was not sufficiently identified in the questioned articles, this notwithstanding
that the degree of proof required in a preliminary investigation is merely prima facie evidence which is
significantly less than the preponderance of evidence required in civil cases; (c) in ruling that the
subject articles do not constitute qualifiedly privileged communication; (d) in refusing to apply the
"public official doctrine" laid down in New York Times v. Sullivan; (e) in ruling that the questioned
articles lost their privileged character because of their publication in a newspaper of general circulation;
(f) in ruling that private respondent has a valid cause of action for libel against petitioners although he
failed to prove actual malice on their part, and that the prosecutors of the City of Manila, the
Department of Justice, and eventually, the Office of the President, had already resolved that there was
no sufficient evidence to prove the existence of libel; and, (g) assuming arguendo that Borjal should be
held liable, in adjudging petitioner Soliven solidarily liable with him. Thus, petitioners pray for the
reversal of the appellate courts ruling, the dismissal of the complaint against them for lack of merit, and
the award of damages on their counterclaim.
The petition is impressed with merit. In order to maintain a libel suit, it is essential that the victim
be identifiable although it is not necessary that he be named. It is also not sufficient that the offended
party recognized himself as the person attacked or defamed, but it must be shown that at least a third
person could identify him as the object of the libelous publication.[10] Regrettably, these requisites have
not been complied with in the case at bar.
In ruling for private respondent, the Court of Appeals found that Borjal's column writings
sufficiently identified Wenceslao as the "conference organizer." It cited the First National Conference on
Land Transportation, the letterheads used listing different telephone numbers, the donation
of P100,000.00 from Juliano Lim and the reference to the "organizer of the conference" - the very same
appellation employed in all the column items - as having sufficiently established the identity of private
respondent Wenceslao for those who knew about the FNCLT who were present at its inception, and
who had pledged their assistance to it.
We hold otherwise. These conclusions are at variance with the evidence at hand. The questioned
articles written by Borjal do not identify private respondent Wenceslao as the organizer of the
conference. The first of the Jaywalker articles which appeared in the 31 May 1989 issue of The
Philippine Star yielded nothing to indicate that private respondent was the person referred to
therein. Surely, as observed by petitioners, there were millions of "heroes" of the EDSA Revolution and
anyone of them could be "self-proclaimed" or an "organizer of seminars and conferences."As a matter
of fact, in his 9 June 1989 column petitioner Borjal wrote about the "so-called First National Conference
on Land Transportation whose principal organizers are not specified" (italics supplied).[11] Neither did
the FNCLT letterheads[12] disclose the identity of the conference organizer since these contained only an
enumeration of names where private respondent Francisco Wenceslao was described as Executive
Director and Spokesman and not as a conference organizer.[13] The printout[14] and tentative
program[15] of the conference were devoid of any indication of Wenceslao as organizer. The printout
which contained an article entitled "Who Organized the NCLT?" did not even mention private
respondent's name, while the tentative program only denominated private respondent as "Vice
Chairman and Executive Director," and not as organizer.

No less than private respondent himself admitted that the FNCLT had several organizers and that
he was only a part of the organization, thus -
I would like to clarify for the record that I was only a part of the organization. I was invited then
because I was the head of the technical panel of the House of Representatives Sub-Committee on
Industrial Policy that took care of congressional hearings.[16]
Significantly, private respondent himself entertained doubt that he was the person spoken of in
Borjal's columns. The former even called up columnist Borjal to inquire if he (Wenceslao) was the one
referred to in the subject articles.[17] His letter to the editor published in the 4 June 1989 issue of The
Philippine Star even showed private respondent Wenceslao's uncertainty -
Although he used a subterfuge, I was almost certain that Art Borjal referred to the First National
Conference on Land Transportation (June 29-30) and me in the second paragraph of his May 31 column
x x x[18]
Identification is grossly inadequate when even the alleged offended party is himself unsure that
he was the object of the verbal attack. It is well to note that the revelation of the identity of the person
alluded to came not from petitioner Borjal but from private respondent himself when he supplied the
information through his 4 June 1989 letter to the editor. Had private respondent not revealed that he
was the "organizer" of the FNCLT referred to in the Borjal articles, the public would have remained in
blissful ignorance of his identity. It is therefore clear that on the element of identifiability alone the case
falls.
The above disquisitions notwithstanding, and on the assumption arguendo that private respondent
has been sufficiently identified as the subject of Borjal's disputed comments, we now proceed to resolve
the other issues and pass upon the pertinent findings of the courts a quo.
The third, fourth, fifth and sixth assigned errors all revolve around the primary question of
whether the disputed articles constitute privileged communications as to exempt the author from
liability.
The trial court ruled that petitioner Borjal cannot hide behind the proposition that his articles are
privileged in character under the provisions of Art. 354 of The Revised Penal Code which state -
Art. 354. Requirement for publicity. - Every defamatory imputation is presumed to be malicious, even if
it be true, if no good intention and justifiable motive for making it is shown, except in the following
cases:
1) A private communication made by any person to another in the performance of any legal,
moral or social duty; and,
2) A fair and true report, made in good faith, without any comments or remarks, of any
judicial, legislative or other official proceedings which are not of confidential nature, or of
C o n s t i t u t i o n a l L a w I I A r t . I I I S e c . 3 a n d 4 P a g e | 61
any statement, report or speech delivered in said proceedings, or of any other act
performed by public officers in the exercise of their functions.
Respondent court explained that the writings in question did not fall under any of the exceptions
described in the above-quoted article since these were neither "private communications" nor"fair and
true report x x x without any comments or remarks." But this is incorrect.
A privileged communication may be either absolutely privileged or qualifiedly privileged. Absolutely
privileged communications are those which are not actionable even if the author has acted in bad
faith. An example is found in Sec. 11, Art. VI, of the 1987 Constitution which exempts a member of
Congress from liability for any speech or debate in the Congress or in any Committee thereof. Upon the
other hand, qualifiedly privileged communications containing defamatory imputations are not actionable
unless found to have been made without good intention or justifiable motive. To this genre belong
"private communications" and "fair and true report without any comments or remarks."
Indisputably, petitioner Borjals questioned writings are not within the exceptions of Art. 354
of The Revised Penal Code for, as correctly observed by the appellate court, they are neither private
communications nor fair and true report without any comments or remarks. However this does not
necessarily mean that they are not privileged. To be sure, the enumeration under Art. 354 is not an
exclusive list of qualifiedly privileged communications since fair commentaries on matters of public
interest are likewise privileged. The rule on privileged communications had its genesis not in the
nation's penal code but in the Bill of Rights of the Constitution guaranteeing freedom of speech and of
the press.[19] As early as 1918, in United States v. Caete,[20] this Court ruled that publications which are
privileged for reasons of public policy are protected by the constitutional guaranty of freedom of
speech. This constitutional right cannot be abolished by the mere failure of the legislature to give it
express recognition in the statute punishing libels.
The concept of privileged communications is implicit in the freedom of the press. As held
in Elizalde v. Gutierrez [21] and reiterated in Santos v. Court of Appeals[22] -
To be more specific, no culpability could be imputed to petitioners for the alleged offending
publication without doing violence to the concept of privileged communications implicit in the freedom
of the press. As was so well put by Justice Malcolm in Bustos: Public policy, the welfare of society, and
the orderly administration of government have demanded protection of public opinion. The inevitable
and incontestable result has been the development and adoption of the doctrine of privilege.
The doctrine formulated in these two (2) cases resonates the rule that privileged communications
must, sui generis, be protective of public opinion. This closely adheres to the democratic theory of free
speech as essential to collective self-determination and eschews the strictly libertarian view that it is
protective solely of self- expression which, in the words of Yale Sterling Professor Owen Fiss, [23] makes
its appeal to the individualistic ethos that so dominates our popular and political culture. It is therefore
clear that the restrictive interpretation vested by the Court of Appeals on the penal provision exempting
from liability only private communications and fair and true report without comments or remarks
defeats, rather than promotes, the objective of the rule on privileged communications, sadly contriving
as it does, to suppress the healthy effloresence of public debate and opinion as shining linchpins of
truly democratic societies.

To reiterate, fair commentaries on matters of public interest are privileged and constitute a valid
defense in an action for libel or slander. The doctrine of fair comment means that while in general every
discreditable imputation publicly made is deemed false, because every man is presumed innocent until
his guilt is judicially proved, and every false imputation is deemed malicious, nevertheless, when the
discreditable imputation is directed against a public person in his public capacity, it is not necessarily
actionable. In order that such discreditable imputation to a public official may be actionable, it must
either be a false allegation of fact or a comment based on a false supposition. If the comment is an
expression of opinion, based on established facts, then it is immaterial that the opinion happens to be
mistaken, as long as it might reasonably be inferred from the facts. [24]
There is no denying that the questioned articles dealt with matters of public interest. In his
testimony, private respondent spelled out the objectives of the conference thus -
x x x x The principal conference objective is to come up with a draft of an Omnibus Bill that will embody
a long term land transportation policy for presentation to Congress in its next regular session in
July. Since last January, the National Conference on Land Transportation (NCLT), the conference
secretariat, has been enlisting support from all sectors to ensure the success of the project. [25]
Private respondent likewise testified that the FNCLT was raising funds through solicitation from
the public -
Q: Now, in this first letter, you have attached a budget and it says here that in this seminar of the
First National Conference on Land Transportation, you will need around One million eight
hundred fifteen thousand pesos, is that right?
A: That was the budget estimate, sir.
Q: How do you intend as executive officer, to raise this fund of your seminar?
A: Well, from sponsors such as government agencies and private sectors or organizations as well
as individual transport firms and from individual delegates/participants.[26]
The declared objective of the conference, the composition of its members and participants, and
the manner by which it was intended to be funded no doubt lend to its activities as being genuinely
imbued with public interest. An organization such as the FNCLT aiming to reinvent and reshape the
transportation laws of the country and seeking to source its funds for the project from the public at
large cannot dissociate itself from the public character of its mission. As such, it cannot but invite close
scrutiny by the media obliged to inform the public of the legitimacy of the purpose of the activity and of
the qualifications and integrity of the personalities behind it.
This in effect is the strong message in New York Times v. Sullivan [27] which the appellate court
failed to consider or, for that matter, to heed. It insisted that private respondent was not, properly
speaking, a "public offical" nor a "public figure," which is why the defamatory imputations against him
had nothing to do with his task of organizing the FNCLT.
New York Times v. Sullivan was decided by the U. S. Supreme Court in the 1960s at the height of
the bloody rioting in the American South over racial segregation. The then City Commissioner L. B.
Sullivan of Montgomery, Alabama, sued New York Times for publishing a paid political advertisement
C o n s t i t u t i o n a l L a w I I A r t . I I I S e c . 3 a n d 4 P a g e | 62
espousing racial equality and describing police atrocities committed against students inside a college
campus. As commissioner having charge over police actions Sullivan felt that he was sufficiently
identified in the ad as the perpetrator of the outrage; consequently, he sued New York Times on the
basis of what he believed were libelous utterances against him.
The U. S. Supreme Court speaking through Mr. Justice William J. Brennan Jr. ruled against
Sullivan holding that honest criticisms on the conduct of public officials and public figures are insulated
from libel judgments. The guarantees of freedom of speech and press prohibit a public official or public
figure from recovering damages for a defamatory falsehood relating to his official conduct unless he
proves that the statement was made with actual malice, i.e., with knowledge that it was false or with
reckless disregard of whether it was false or not.
The raison d'etre for the New York Times doctrine was that to require critics of official conduct to
guarantee the truth of all their factual assertions on pain of libel judgments would lead to self-
censorship, since would-be critics would be deterred from voicing out their criticisms even if such were
believed to be true, or were in fact true, because of doubt whether it could be proved or because of
fear of the expense of having to prove it.[28]
In the present case, we deem private respondent a public figure within the purview of the New
York Times ruling. At any rate, we have also defined "public figure" in Ayers Production Pty., Ltd. v.
Capulong[29] as -
x x x x a person who, by his accomplishments, fame, mode of living, or by adopting a profession or
calling which gives the public a legitimate interest in his doings, his affairs and his character, has
become a public personage. He is, in other words, a celebrity. Obviously, to be included in this category
are those who have achieved some degree of reputation by appearing before the public, as in the case
of an actor, a professional baseball player, a pugilist, or any other entertainer. The list is, however,
broader than this. It includes public officers, famous inventors and explorers, war heroes and even
ordinary soldiers, infant prodigy, and no less a personage than the Great Exalted Ruler of the lodge. It
includes, in short, anyone who has arrived at a position where the public attention is focused upon him
as a person.
The FNCLT was an undertaking infused with public interest. It was promoted as a joint project of
the government and the private sector, and organized by top government officials and prominent
businessmen. For this reason, it attracted media mileage and drew public attention not only to the
conference itself but to the personalities behind as well. As its Executive Director and spokesman,
private respondent consequently assumed the status of a public figure.
But even assuming ex-gratia argumenti that private respondent, despite the position he occupied
in the FNCLT, would not qualify as a public figure, it does not necessarily follow that he could not
validly be the subject of a public comment even if he was not a public official or at least a public figure,
for he could be, as long as he was involved in a public issue. If a matter is a subject of public or general
interest, it cannot suddenly become less so merely because a private individual is involved or because
in some sense the individual did not voluntarily choose to become involved. The publics primary interest
is in the event; the public focus is on the conduct of the participant and the content, effect and
significance of the conduct, not the participant's prior anonymity or notoriety. [30]

There is no denying that the questioned articles dealt with matters of public interest. A reading of
the imputations of petitioner Borjal against respondent Wenceslao shows that all these necessarily bore
upon the latter's official conduct and his moral and mental fitness as Executive Director of the
FNCLT. The nature and functions of his position which included solicitation of funds, dissemination of
information about the FNCLT in order to generate interest in the conference, and the management and
coordination of the various activities of the conference demanded from him utmost honesty, integrity
and competence. These are matters about which the public has the right to be informed, taking into
account the very public character of the conference itself.
Concededly, petitioner Borjal may have gone overboard in the language employed describing the
"organizer of the conference." One is tempted to wonder if it was by some mischievous gambit that he
would also dare test the limits of the "wild blue yonder" of free speech in this jurisdiction. But no matter
how intemperate or deprecatory the utterances appear to be, the privilege is not to be defeated nor
rendered inutile for, as succinctly expressed by Mr. Justice Brennan in New York Times v. Sullivan,
"[D]ebate on public issues should be uninhibited, robust and wide open, and that it may well include
vehement, caustic and sometimes unpleasantly sharp attacks on the government and public officials. [31]
The Court of Appeals concluded that since malice is always presumed in the publication of
defamatory matters in the absence of proof to the contrary, the question of privilege is immaterial.
We reject this postulate. While, generally, malice can be presumed from defamatory words, the
privileged character of a communication destroys the presumption of malice. [32] The onus of proving
actual malice then lies on plaintiff, private respondent Wenceslao herein. He must bring home to the
defendant, petitioner Borjal herein, the existence of malice as the true motive of his conduct. [33]
Malice connotes ill will or spite and speaks not in response to duty but merely to injure the
reputation of the person defamed, and implies an intention to do ulterior and unjustifiable
harm.[34] Malice is bad faith or bad motive.[35] It is the essence of the crime of libel.[36]
In the milieu obtaining, can it be reasonably inferred that in writing and publishing the articles in
question petitioner Borjal acted with malice?
Primarily, private respondent failed to substantiate by preponderant evidence that petitioner was
animated by a desire to inflict unjustifiable harm on his reputation, or that the articles were written and
published without good motives or justifiable ends. On the other hand, we find petitioner Borjal to have
acted in good faith. Moved by a sense of civic duty and prodded by his responsibility as a
newspaperman, he proceeded to expose and denounce what he perceived to be a public
deception. Surely, we cannot begrudge him for that. Every citizen has the right to enjoy a good name
and reputation, but we do not consider that petitioner Borjal has violated that right in this case nor
abused his press freedom.
Furthermore, to be considered malicious, the libelous statements must be shown to have been
written or published with the knowledge that they are false or in reckless disregard of whether they are
false or not. [37] "Reckless disregard of what is false or not" means that the defendant entertains serious
doubt as to the truth of the publication,[38] or that he possesses a high degree of awareness of their
probable falsity.[39]
The articles subject of the instant case can hardly be said to have been written with knowledge
that these are false or in reckless disregard of what is false or not. This is not to say however that the
C o n s t i t u t i o n a l L a w I I A r t . I I I S e c . 3 a n d 4 P a g e | 63
very serious allegations of petitioner Borjal assumed by private respondent to be directed against him
are true. But we nevertheless find these at least to have been based on reasonable grounds formed
after the columnist conducted several personal interviews and after considering the varied documentary
evidence provided him by his sources. Thus, the following are supported by documentary evidence: (a)
that private respondent requested Gloria Macapagal-Arroyo, then head of the Garments and Textile
Export Board (GTEB), to expedite the processing and release of the import approval and certificate of
availability of a garment firm in exchange for the monetary contribution of Juliano Lim,
which necessitated a reply from the office of Gloria Macapagal-Arroyo explaining the procedure of the
GTEB in processing applications and clarifying that all applicants were treated equally; [40] (b) that
Antonio Periquet was designated Chairman of the Executive Committee of the FNCLT notwithstanding
that he had previously declined the offer; [41] and, (c) that despite the fact that then President Aquino
and her Secretary of Transportation Rainerio Reyes declined the invitation to be guest speakers in the
conference, their names were still included in the printout of the FNCLT. [42] Added to these are the
admissions of private respondent that: (a) he assisted Juliano Lim in his application for a quota
allocation with the GTEB in exchange for monetary contributions to the FNCLT; [43] (b) he included the
name of then Secretary of Transportation Rainerio Reyes in the promotional materials of the conference
notwithstanding the latter's refusal to lend his name to and participate in the FNCLT; [44] and, (c) he
used different letterheads and telephone numbers.[45]
Even assuming that the contents of the articles are false, mere error, inaccuracy or even falsity
alone does not prove actual malice. Errors or misstatements are inevitable in any scheme of truly free
expression and debate. Consistent with good faith and reasonable care, the press should not be held to
account, to a point of suppression, for honest mistakes or imperfections in the choice of
language. There must be some room for misstatement of fact as well as for misjudgment. Only by
giving them much leeway and tolerance can they courageously and effectively function as critical
agencies in our democracy.[46] In Bulletin Publishing Corp. v. Noel[47] we held -
A newspaper especially one national in reach and coverage, should be free to report on events and
developments in which the public has a legitimate interest with minimum fear of being hauled to court
by one group or another on criminal or civil charges for libel, so long as the newspaper respects and
keeps within the standards of morality and civility prevailing within the general community.
To avoid the self-censorship that would necessarily accompany strict liability for erroneous
statements, rules governing liability for injury to reputation are required to allow an adequate margin of
error by protecting some inaccuracies. It is for the same reason that the New York
Times doctrine requires that liability for defamation of a public official or public figure may not be
imposed in the absence of proof of "actual malice" on the part of the person making the libelous
statement.
At any rate, it may be salutary for private respondent to ponder upon the advice of Mr. Justice
Malcolm expressed in U.S. v. Bustos,[48] that "the interest of society and the maintenance of good
government demand a full discussion of public affairs. Complete liberty to comment on the conduct of
public men is a scalpel in the case of free speech. The sharp incision of its probe relieves the abscesses
of officialdom. Men in public life may suffer under a hostile and unjust accusation; the wound may be
assuaged by the balm of a clear conscience. A public official must not be too thin-skinned with
reference to comments upon his official acts.
 C o n s t i t u t i o n a l L a w I I A r t . I I I S e c . 3 a n d 4 P a g e | 64

The foregoing disposition renders the second and seventh assigned errors moot and academic, SO ORDERED.
hence, we find no necessity to pass upon them.
Puno, Martinez, and Buena, JJ., concur.
We must however take this opportunity to likewise remind media practitioners of the high ethical Mendoza, J., in the result.
standards attached to and demanded by their noble profession. The danger of an unbridled irrational
exercise of the right of free speech and press, that is, in utter contempt of the rights of others and in
willful disregard of the cumbrous responsibilities inherent in it, is the eventual self-destruction of the
right and the regression of human society into a veritable Hobbesian state of nature where life is short,
nasty and brutish. Therefore, to recognize that there can be no absolute "unrestraint" in speech is to
truly comprehend the quintessence of freedom in the marketplace of social thought and action, genuine
freedom being that which is limned by the freedom of others.If there is freedom of the press, ought
there not also be freedom from the press? It is in this sense that self-regulation as distinguished
from self-censorship becomes the ideal mean for, as Mr. Justice Frankfurter has warned, "[W]ithout x x
x a lively sense of responsibility, a free press may readily become a powerful instrument of injustice." [49]

Lest we be misconstrued, this is not to diminish nor constrict that space in which expression freely
flourishes and operates. For we have always strongly maintained, as we do now, that freedom of
expression is man's birthright - constitutionally protected and guaranteed, and that it has become the
singular role of the press to act as its "defensor fidei" in a democratic society such as ours. But it is also
worth keeping in mind that the press is the servant, not the master, of the citizenry, and its freedom
does not carry with it an unrestricted hunting license to prey on the ordinary citizen.[50]
On petitioners counterclaim for damages, we find the evidence too meager to sustain any
award. Indeed, private respondent cannot be said to have instituted the present suit in abuse of the
legal processes and with hostility to the press; or that he acted maliciously, wantonly, oppressively,
fraudulently and for the sole purpose of harassing petitioners, thereby entitling the latter to
damages. On the contrary, private respondent acted within his rights to protect his honor from what he
perceived to be malicious imputations against him. Proof and motive that the institution of the action
was prompted by a sinister design to vex and humiliate a person must be clearly and preponderantly
established to entitle the victim to damages. The law could not have meant to impose a penalty on the
right to litigate, nor should counsels fees be awarded every time a party wins a suit. [51]

For, concluding with the wisdom in Warren v. Pulitzer Publishing Co.[52] -

Every man has a right to discuss matters of public interest. A clergyman with his flock, an admiral with
his fleet, a general with his army, a judge with his jury, we are, all of us, the subject of public
discussion. The view of our court has been thus stated: It is only in despotisms that one must
speak sub rosa, or in whispers, with bated breath, around the corner, or in the dark on asubject
touching the common welfare. It is the brightest jewel in the crown of the law to speak and maintain
the golden mean between defamation, on one hand, and a healthy and robust right of free public
discussion, on the other.

WHEREFORE, the petition is GRANTED. The Decision of the Court of Appeals of 25 March 1996
and its Resolution of 12 September 1996 denying reconsideration are REVERSED and SET ASIDE, and
the complaint for damages against petitioners is DISMISSED. Petitioners counterclaim for damages is
likewise DISMISSED for lack of merit. No costs.

THIRD DIVISION
[G.R. No. 113216. September 5, 1997]
RHODORA M. LEDESMA, petitioner, vs. COURT OF APPEALS and HON. MAXIMIANO C.
ASUNCION, in his capacity as Presiding Judge of RTC, Quezon City, respondents.
DECISION
PANGANIBAN, J.:
When confronted with a motion to withdraw an information on the ground of lack of probable
cause based on a resolution of the secretary of justice, the bounden duty of the trial court is to make
an independent assessment of the merits of such motion. Having acquired jurisdiction over the case,
the trial court is not bound by such resolution but is required to evaluate it before proceeding further
with the trial. While the secretarys ruling is persuasive, it is not binding on courts. A trial court,
however, commits reversible error or even grave abuse of discretion if it refuses/neglects to evaluate
such recommendation and simply insists on proceeding with the trial on the mere pretext of having
already acquired jurisdiction over the criminal action.
This principle is explained in this Decision resolving a petition for review on certiorari of the
Decision[1] of the Court of Appeals,[2] promulgated on September 14, 1993 in CA-G.R. SP No. 30832
which in effect affirmed an order of the Regional Trial Court of Quezon City denying the prosecutions
withdrawal of a criminal information against petitioner.
The Antecedent Facts
From the pleadings submitted in this case, the undisputed facts are as follows:
Sometime in April 1992, a complaint for libel was filed by Dr. Juan F. Torres, Jr. against Dr. Rhodora M.
Ledesma, petitioner herein, before the Quezon City Prosecutors Office, docketed as I.S. No. 92-
5433A. Petitioner filed her counter-affidavit to the complaint.
Finding sufficient legal and factual basis, the Quezon City Prosecutors Office filed on July 6, 1992 an
Information for libel against petitioner with the Regional Trial Court of Quezon City, Branch 104. [3] The
Information filed by Assistant City Prosecutor Augustine A. Vestil reads: [4]
That on or about the 27th day of June 1991, in Quezon City, Metro Manila, Philippines, the said
accused, acting with malice, did, then and there, wilfully, unlawfully and feloniously send a letter
addressed to Dr. Esperanza I. Cabral, Director of Philippine Heart Center, East Avenue, this city, and
C o n s t i t u t i o n a l L a w I I A r t . I I I S e c . 3 a n d 4 P a g e | 65
furnished the same to other officers of the said hospital, said letter containing slanderous and
defamatory remarks against DR. JUAN F. TORRES, JR., which states in part, to wit:
27June 1991
Dr. Esperanza I. Cabral
Director
Subject: Return of all professional fees due Dr. Rhodora M. Ledesma, Nuclear Medicine
Specialist/Consultant, Philippine Heart Center, from January 31, 1989 to January 31, 1991.
Respondents: Dr. Juan F. Torres, Jr., Chief, Nuclear Medicine Section
Dr. Orestes P. Monzon,
Staff Consultant
Dear Dr. Cabral,
This is to demand the return of all professional fees due me as a consultant in Nuclear Medicine, this
Center, since January 31, 1989 until my resignation effective January 31, 1991, amounting to at
least P100,000.00 for the year 1990 alone. Records in the Nuclear Medicine Section will show that from
January 1989 to January 1991, a total of 2,308 patients were seen. Of these, I had officially supervised,
processed, and interpreted approximately a total of 1,551 cases as against approximately 684 and 73
cases done by Dr. Monzon and Dr. Torres respectively.
Until my resignation I had received a monthly share of professional fees averaging P1,116.90/month
supposedly representing 20% of the total monthly professional fees. The rest were divided equally
between Dr. Monzon and Dr. Torres. There was never any agreement between us three consultants
that this should be the arrangement and I am certain that this was not with your approval. The burden
of unfairness would have been lesser if there was an equal distribution of labor and the schedule of
duties were strictly followed. As it was, the schedule of duties submitted monthly to the office of the
Asst. Director for Medical Services was simply a dummy to comply with administrative requirements
rather than a guideline for strict compliance. Both consultants have complete daily time records even if
they did not come regularly. Dr. Torres came for an hour every week, Dr. Monzon came sporadically
during the week while I was left with everything from training the residents and supervising the Techs
to processing and interpreting the results on a regular basis. I had a part time appointment just like Dr.
Monzon and Dr. Torres.
In the interest of fairness and to set a precedent for the protection of future PHC Nuclear Medicine
Alumni I am calling your attention to the unfair and inhuman conditions I went through as a Consultant
in that Section. I trust that your sense of professionalism will put a stop to this corruption.

I suggest that a committee be formed to make an audit of the distribution of professional fees in this
Section. At this point, let me stress that since professional fees vary according to the type of procedure
done and since there was no equity of labor between us I am not settling for an equal percentage
share. I demand that I be indemnified of all professional fees due me on a case to case basis.
Let me make clear my intention of pursuing this matter legally should there be no favorable action in
my behalf. Let me state at this point6 that the actions of Dr. Torres and Dr. Monzon are both
unprofessional and unbecoming and are clearly violating the code of ethics of the medical profession
and the Philippine Civil Service Rules and Regulations related to graft and corruption.
Thank you.
and other words of similar import, when in truth and in fact, as the accused very well knew, the same
are entirely false and untrue but were publicly made for no other purpose than to expose said DR.
JUAN F. TORRES, JR. to public ridicule, thereby casting dishonor, discredit and contempt upon the
person of the said offended party, to his damage and prejudice.
A petition for review of the resolution of Assistant City Prosecutor Vestil was filed by petitioner
before the Department of Justice pursuant to P.D. No. 77 as amended by P.D. No. 911.
The Department of Justice gave due course to the petition and directed the Quezon City
prosecutor to move for deferment of further proceedings and to elevate the entire records of the
case.[5] Accordingly, a Motion to Defer Arraignment dated September 7, 1992 was filed by Prosecutor
Tirso M. Gavero before the court a quo.[6] On September 9, 1992, the trial court granted the motion
and deferred petitioners arraignment until the final termination of the petition for review.[7]
Without the consent or approval of the trial prosecutor, private complainant, through counsel, filed
a Motion to Lift the Order dated September 9, 1992 and to Set the Case for Arraignment/Trial. [8]
On January 8, 1993, the trial court issued an Order setting aside its earlier Order of September 9,
1992 and scheduling petitioners arraignment on January 18, 1993 at two oclock in the afternoon. [9]
In a resolution dated January 27, 1993, then Justice Secretary Franklin M. Drilon reversed the
Quezon City investigating prosecutor. Pertinent portions of Drilons ruling read:[10]
From the circumstances obtaining, the subject letter was written to bring to the attention of the
Director of the Philippine Heart Center for Asia and other responsible authorities the unjust and unfair
treatment that Dr. Ledesma was getting from complainants. Since complainants and respondent are
government employees, and the subject letter is a complaint to higher authorities of the PHCA on a
subject matter in which respondent has an interest and in reference to which she has a duty to
question the same is definitely privileged (US vs. Bustos, 37 Phil. 131). Moreover, in Ang vs. Castro, 136
SCRA 455, the Supreme Court, citing Santiago vs. Calvo, 48 Phil. 922, ruled that A communication
made in good faith upon any subject matter in which the party making the communication has an
interest or concerning which he has a duty is privileged... although it contains incriminatory or
derogatory matter which, without the privilege, would be libelous and actionable.
C o n s t i t u t i o n a l L a w I I A r t . I I I S e c . 3 a n d 4 P a g e | 66
The follow-up letter sent by respondent to the director of the PHCA, is a direct evidence of respondents
righteous disposition of following the rule of law and is a clear indication that her purpose was to seek
relief from the proper higher authority who is the Director of PHCA.
The same interpretation should be accorded the civil and administrative complaints which respondent
filed against complainants. They are mere manifestations of her earnest desire to pursue proper relief
for the alleged injustice she got from complainants. If she was motivated by malice and ill-will in
sending the subject communication to the Director of the PHCA, she would not have sent the second
letter and filed the administrative and civil cases against complainants.
Moreover, it is unbelievable that it took complainants one year to realize that the questioned letter
subjected them to public and malicious imputation of a vice or omission. It is beyond the ordinary
course of human conduct for complainants to start feeling the effects of the alleged libelous letter - that
of experiencing sleepless nights, wounded feelings, serious anxiety, moral shock and besmirched
reputation - one year after they read the communication in question.
The claim that the case of Crespo vs. Mogul, 151 SCRA 462 is applicable to the instant case is
unfounded. In the first place, the instant cases are not being reinvestigated. It is the resolutions of the
investigating prosecutor that are under review. Further, the record shows that the court has issued an
order suspending the proceedings pending the resolutions of the petitions for review by this Office. In
the issuance of its order, the court recognizes that the Secretary of Justice has the power and authority
to review the resolutions of prosecutors who are under his control and supervision.
In view of the foregoing, the appealed resolutions are hereby reversed. You are directed to withdraw
the Informations which you filed in Court. Inform this Office of the action taken within ten (10) days
from receipt hereof.
In obedience to the above directive, Quezon City Trial Prosecutor Tirso M. Gavero filed a Motion to
Withdraw Information dated February 17,1993,[11] attaching thereto the resolution of Secretary
Drilon. The trial judge denied this motion in his Order dated February 22, 1993, as follows:[12]
The motion of the trial prosecutor to withdraw the information in the above-entitled case is
denied. Instead, the trial prosecutor of this court is hereby directed to prosecute the case following the
guidelines and doctrine laid down by the Supreme Court in the case of Crespo vs. Mogul, 151 SCRA
462.
Petitioners motion for reconsideration [13] was denied by the trial judge in the Order dated March 5,
1993, as follows:[14]
Finding no cogent reason to justify the reconsideration of the ruling of this Court dated February 22,
1993, the Motion for Reconsideration dated March 1, 1993 filed by the accused through counsel is
hereby denied.

Aggrieved, petitioner filed a petition for certiorari and prohibition with the Supreme Court. In a
Resolution dated March 31, 1993, this Court referred the case to the Court of Appeals for proper
determination and disposition pursuant to Section 9, paragraph 1 of B.P. 129. [15]
Respondent Court dismissed the petition for lack of merit, holding that it had no jurisdiction to
overturn the doctrine laid down in Crespo vs. Mogul -- once a complaint or information has been filed in
court, any disposition of the case, i.e., dismissal, conviction or acquittal of the accused, rests on the
sound discretion of the trial court.[16]
Hence, this recourse to this Court.
The Issues
For unexplained reasons, petitioner failed to make an assignment of errors against the appellate
court. Her counsel merely repeated the alleged errors of the trial court: [17]
I. The Orders, dated February 22, 1993 and March 5, 1993, of respondent Judge Asuncion relied solely
on the Crespo vs. Mogul (151 SCRA 462) decision. It is respectfully submitted that said case is not
applicable because:
1. It infringes on the constitutional separation of powers between the executive and judicial branches of
the government;
2. It constitutes or it may lead to misuse or misapplication of judicial power as defined in the
Constitution;
3. It goes against the constitutional proscription that rules of procedure should not diminish substantive
rights;
4. It goes against the principle of non-delegation of powers;
5. It sets aside or disregards substantive and procedural rules;
6. It deprives a person of his constitutional right to procedural due process;
7. Its application may constitute or lead to denial of equal protection of laws;
8. It deprives the secretary of justice or the president of the power to control or review the acts of a
subordinate official;
C o n s t i t u t i o n a l L a w I I A r t . I I I S e c . 3 a n d 4 P a g e | 67
9. It will lead to, encourage, abet or promote abuse or even corruption among the ranks of
investigating fiscals;
10. It does not subserve the purposes of a preliminary investigation because -
(10.a) It subjects a person to the burdens of an unnecessary trial, specially in cases where the
investigating fiscal recommends no bail for the accused;
(10.b) It subjects the government, both the executive and the judiciary, to unnecessary time and
expenses attendant to an unnecessary trial;
(10.c) It contributes to the clogging of judicial dockets; and
11. It has no statutory or procedural basis or precedent.
II. On the assumption that Crespo vs. Mogul is applicable, it is submitted that -
1. Respondent Judge Asuncion committed grave abuse of discretion, amounting to lack of jurisdiction,
when he denied the Motion to Withdraw Information since he had already deferred to, if not
recognized, the authority of the Secretary of Justice; and
2. The facts in Crespo vs. Mogul are different from the instant case. Hence, respondent Judge Asuncion
committed grave abuse of discretion, amounting to lack of jurisdiction, when he relied solely on said
case in denying the Motion to Withdraw Information.
In sum, the main issue in this petition is: Did Respondent Court commit any reversible error in
affirming the trial courts denial of the prosecutions Motion to Withdraw Information?
The Courts Ruling
The petition is impressed with merit. We answer the above question in the affirmative.
Preliminary Matter
Before discussing the substance of this case, the Court will preliminarily address a procedural
matter. Prior to the effectivity of the 1997 Rules of Civil Procedure on July 1, 1997, Section 2 of Rule
45, which governed appeals from the Court of Appeals to the Supreme Court, provided:
SEC. 2. Contents of petition.The petition shall contain a concise statement of x x x the assignment of
errors made in the court below x x x.

A petition for review on certiorari under Rule 45 requires a concise statement of the errors
committed by the Court of Appeals, not of the trial court. For failure to follow this Rule, the petition
could have been dismissed by this Court motu proprio, considering that under Section 4 of the same
Rule, review is not a matter of right but of sound discretion.
We take this occasion to stress the need for precision and clarity in the assignment of
errors. Review under this rule is unlike an appeal in a criminal case where the death penalty, reclusin
perpetua or life imprisonment is imposed and where the whole case is opened for review. Under Rule
45, only the issues raised therein by the petitioner will be passed upon by the Court, such that an
erroneous specification of the issues may cause the dismissal of the petition. We stressed this in
Circular No. 2-90, entitled Guidelines to be Observed in Appeals to the Court of Appeals and to the
Supreme Court, as follows:
4. Erroneous Appeals. x x x x
e) Duty of counsel.It is therefore incumbent upon every attorney who would seek review of a judgment
or order promulgated against his client to make sure of the nature of the errors he proposes to assign,
whether these be of fact or of law; then upon such basis to ascertain carefully which Court has
appellate jurisdiction; and finally, to follow scrupulously the requisites for appeal prescribed by law,
ever aware that any error or imprecision in compliance may well be fatal to his clients cause.
FOR STRICT COMPLIANCE.
Be that as it may, the Court noting the importance of the substantial matters raised decided to
overlook petitioners lapse and granted due course to the petition per Resolution dated July 15, 1996,
with a warning that henceforth petitions which fail to specify an assignment of errors of the proper
lower court may be denied due course motu proprio by this Court.
Determination of Probable Cause Is an Executive Function
The determination of probable cause during a preliminary investigation is judicially recognized as
an executive function and is made by the prosecutor. The primary objective of a preliminary
investigation is to free a respondent from the inconvenience, expense, ignominy and stress of
defending himself/herself in the course of a formal trial, until the reasonable probability of his or her
guilt has been passed upon in a more or less summary proceeding by a competent officer designated
by law for that purpose.Secondarily, such summary proceeding also protects the state from the burden
of unnecessary expense and effort in prosecuting alleged offenses and in holding trials arising from
false, frivolous or groundless charges.[18]
Such investigation is not a part of the trial. A full and exhaustive presentation of the parties
evidence is not required, but only such as may engender a well-grounded belief that an offense has
been committed and that the accused is probably guilty thereof. [19] By reason of the abbreviated nature
C o n s t i t u t i o n a l L a w I I A r t . I I I S e c . 3 a n d 4 P a g e | 68
of preliminary investigations, a dismissal of the charges as a result thereof is not equivalent to a judicial
pronouncement of acquittal. Hence, no double jeopardy attaches.
In declaring this function to be lodged in the prosecutor, the Court distinguished the
determination of probable cause for the issuance of a warrant of arrest or a search warrant from a
preliminary investigation proper in this wise:[20]
xxx Judges and prosecutors alike should distinguish the preliminary inquiry which determines probable
cause for the issuance of a warrant of arrest from a preliminary investigation proper which ascertains
whether the offender should be held for trial or released. xxx The determination of probable cause for
the warrant of arrest is made by the Judge. The preliminary investigation proper--whether xxx there is
reasonable ground to believe that the accused is guilty of the offense charged and, therefore, whether
xxx he should be subjected to the expense, rigors and embarrassment of trial--is the function of the
prosecutor.
We reiterate that preliminary investigation should be distinguished as to whether it is an investigation
for the determination of a sufficient ground for the filing of the information or it is an investigation for
the determination of a probable cause for the issuance of a warrant of arrest. The first kind of
preliminary investigation is executive in nature. It is part of the prosecutors job.The second kind of
preliminary investigation which is more properly called preliminary examination is judicial in nature and
is lodged with the judge.
Sound policy supports this distinction. Otherwise, judges would be unduly laden with the
preliminary examination and investigation of criminal complaints instead of concentrating on hearing
and deciding cases filed before their courts. The Separate Opinion of Mr. Chief Justice Andres R.
Narvasa in Roberts, Jr. vs. Court of Appeals stressed that the determination of the existence of
probable cause properly pertains to the public prosecutor in the established scheme of things, and that
the proceedings therein are essentially preliminary, prefatory and cannot lead to a final, definite and
authoritative judgment of the guilt or innocence of the persons charged with a felony or a crime. [21]
In Crespo vs. Mogul,[22] the Court emphasized the cardinal principle that the public prosecutor
controls and directs the prosecution of criminal offenses thus:
It is a cardinal principle that all criminal actions either commenced by complaint or by information shall
be prosecuted under the direction and control of the fiscal. The institution of a criminal action depends
upon the sound discretion of the fiscal. He may or may not file the complaint or information, follow or
not follow that presented by the offended party, according to whether the evidence in his opinion, is
sufficient or not to establish the guilt of the accused beyond reasonable doubt. The reason for placing
the criminal prosecution under the direction and control of the fiscal is to prevent malicious or
unfounded prosecution by private persons. It cannot be controlled by the complainant. Prosecuting
officers under the power vested in them by law, not only have the authority but also the duty of
prosecuting persons who, according to the evidence received from the complainant, are shown to be
guilty of a crime committed within the jurisdiction of their office. They have equally the legal duty not to
prosecute when after an investigation they become convinced that the evidence adduced is not
sufficient to establish a prima facie case.

In the same case, the Court added that where there is a clash of views between a judge who did
not investigate and a fiscal who conducted a reinvestigation, those of the prosecutor should normally
prevail:[23]
x x x x The Courts cannot interfere with the fiscals discretion and control of the criminal prosecution. It
is not prudent or even permissible for a Court to compel the fiscal to prosecute a proceeding originally
initiated by him on an information, if he finds that the evidence relied upon by him is insufficient for
conviction. Neither has the Court any power to order the fiscal to prosecute or file an information within
a certain period of time, since this would interfere with the fiscals discretion and control of criminal
prosecutions. Thus, a fiscal who asks for the dismissal of the case for insufficiency of evidence has
authority to do so, and Courts that grant the same commit no error. The fiscal may re-investigate a
case and subsequently move for the dismissal should the re-investigation show either that the
defendant is innocent or that his guilt may not be established beyond reasonable doubt. In a clash of
views between the judge who did not investigate and the fiscal who did, or between the fiscal and the
offended party or the defendant, those of the fiscals should normally prevail. x x x x.
Appeal as an Exercise of the Justice Secretarys Power of Control Over Prosecutors
Decisions or resolutions of prosecutors are subject to appeal to the secretary of justice who, under
the Revised Administrative Code, exercises the power of direct control and supervision over said
prosecutors; and who may thus affirm, nullify, reverse or modify their rulings.
Section 39, Chapter 8, Book IV in relation to Section 5, 8, and 9, Chapter 2, Title III of the Code
gives the secretary of justice supervision and control over the Office of the Chief Prosecutor and the
Provincial and City Prosecution Offices. The scope of his power of supervision and control is delineated
in Section 38, paragraph 1, Chapter 7, Book IV of the Code:
(1) Supervision and Control. Supervision and control shall include authority to act directly whenever a
specific function is entrusted by law or regulation to a subordinate; direct the performance of duty;
restrain the commission of acts; review, approve, reverse or modify acts and decisions of subordinate
officials or units; xxxx.
Supplementing the aforequoted provisions are Section 3 of R.A. 3783 and Section 37 of Act 4007,
which read:
Section 3. x x x x
The Chief State Prosecutor, the Assistant Chief State Prosecutors, the Senior State Prosecutors, and the
State Prosecutors shall x x x perform such other duties as may be assigned to them by the Secretary of
Justice in the interest of public service.
xxx xxx xxx
C o n s t i t u t i o n a l L a w I I A r t . I I I S e c . 3 a n d 4 P a g e | 69
Section 37. The provisions of the existing law to the contrary notwithstanding, whenever a specific
power, authority, duty, function, or activity is entrusted to a chief of bureau, office, division or service,
the same shall be understood as also conferred upon the proper Department Head who shall have
authority to act directly in pursuance thereof, or to review, modify, or revoke any decision or action of
said chief of bureau, office, division or service.
Supervision and control of a department head over his subordinates have been defined in
administrative law as follows:[24]
In administrative law supervision means overseeing or the power or authority of an officer to see that
subordinate officers perform their duties. If the latter fail or neglect to fulfill them, the former may take
such action or step as prescribed by law to make them perform such duties. Control, on the other hand,
means the power of an officer to alter or modify or nullify or set aside what a subordinate officer had
done in the performance of his duties and to substitute the judgment of the former for that of the
latter.
Review as an act of supervision and control by the justice secretary over the fiscals and
prosecutors finds basis in the doctrine of exhaustion of administrative remedies which holds that
mistakes, abuses or negligence committed in the initial steps of an administrative activity or by an
administrative agency should be corrected by higher administrative authorities, and not directly by
courts. As a rule, only after administrative remedies are exhausted may judicial recourse be allowed.
Appeal to the Secretary of Justice Is Not Foreclosed by the Ruling in Crespo
In Marcelo vs. Court of Appeals,[25] the Court clarified that Crespo[26] did not foreclose the power
or authority of the secretary of justice to review resolutions of his subordinates in criminal cases. The
Court recognized in Crespo that the action of the investigating fiscal or prosecutor in the preliminary
investigation is subject to the approval of the provincial or city fiscal or chief state
prosecutor. Thereafter, it may be appealed to the secretary of justice.
The justice secretarys power of review may still be availed of despite the filing of an information in
court. In his discretion, the secretary may affirm, modify or reverse resolutions of his subordinates
pursuant to Republic Act No. 5180, as amended,[27] specifically in Section 1 (d):
(d) x x x Provided, finally, That where the resolution of the Provincial or City Fiscal or the Chief State
Prosecutor is, upon review, reversed by the Secretary of Justice, the latter may, where he finds that
no prima facie case exists, authorize and direct the investigating fiscal concerned or any other fiscal or
state prosecutor to cause or move for the dismissal of the case, or, where he finds a prima facie case,
to cause the filing of an information in court against the respondent, based on the same sworn
statements or evidence submitted without the necessity of conducting another preliminary investigation.

Pursuant thereto, the Department of Justice promulgated Circular No. 7 dated January 25, 1990
governing appeals in preliminary investigation. Appeals under Section 2 are limited to resolutions
dismissing a criminal complaint. However, Section 4 provides an exception: appeals from resolutions
finding probable cause upon a showing of manifest error or grave abuse of discretion are allowed,
provided the accused has not been arraigned. In the present case, petitioners appeal to the secretary
of justice was given due course on August 26, 1992 pursuant to this Circular.
On June 30, 1993, Circular No. 7 was superseded by Department Order No. 223; however, the
scope of appealable cases remained unchanged:
SECTION 1. What May Be Appealed. -- Only resolutions of the Chief State Prosecutor/Regional State
Prosecutor/Provincial or City Prosecutor dismissing a criminal complaint may be the subject of an appeal
to the Secretary of Justice except as otherwise provided in Section 4 hereof.
Appeals from the resolutions of provincial/city prosecutors where the penalty prescribed for the offense
charged does not exceed prisin correccional, regardless of the imposable fine, shall be made to the
Regional State Prosecutors who shall resolve the appeals with finality, pursuant to Department Order
No. 318 dated August 28, 1991 as amended by D.O. No. 34 dated February 4, 1992, D.O. No. 223
dated August 11, 1992 and D.O. No. 45 dated February 2, 1993. Such appeals shall also be governed
by these rules.
SEC. 4. Non-Appealable Cases; Exceptions.--No appeal may be taken from a resolution of the Chief
State Prosecutor/Regional State Prosecutor/Provincial or City Prosecutor finding probable cause except
upon showing of manifest error or grave abuse of discretion. Notwithstanding the showing of manifest
error or grave abuse of discretion, no appeal shall be entertained where the appellant had already been
arraigned. If the appellant (is) arraigned during the pendency of the appeal, x x x appeal shall be
dismissed motu proprio by the Secretary of Justice.
An appeal/motion for reinvestigation from a resolution finding probable cause, however, shall not hold
the filing of the information in court.
Apart from the foregoing statutory and administrative issuances, the power of review of the
secretary of justice is recognized also by Section 4 of Rule 112 of the Rules of Court:
SEC. 4. Duty of investigating fiscal.--x x x x
xxx xxx xxx
If upon petition by a proper party, the Secretary of Justice reverses the resolution of the provincial or
city fiscal or chief state prosecutor, he shall direct the fiscal concerned to file the corresponding
information without conducting another preliminary investigation or to dismiss or move for dismissal of
the complaint or information.
C o n s t i t u t i o n a l L a w I I A r t . I I I S e c . 3 a n d 4 P a g e | 70
This appeal rests upon the sound discretion of the secretary of justice arising from his power of
supervision and control over the prosecuting arm of the government, not on a substantial right on the
part of the accused as claimed by petitioner.
Appeal Did Not Divest the Trial Court of Jurisdiction
Where the secretary of justice exercises his power of review only after an information has been
filed, trial courts should defer or suspend arraignment and further proceedings until the appeal is
resolved. Such deferment or suspension, however, does not signify that the trial court is ipso
facto bound by the resolution of the secretary of justice. Jurisdiction, once acquired by the trial court, is
not lost despite a resolution by the secretary of justice to withdraw the information or to dismiss the
case.
Judicial Review of the Resolution of the Secretary of Justice
Judicial power is defined under the 1987 Constitution as the duty of courts to settle actual
controversies involving rights which are legally demandable and enforceable.Such power includes the
determination of whether there has been a grave abuse of discretion amounting to lack or excess of
jurisdiction on the part of any branch or instrumentality of the government. [28] Under this definition, a
court is without power to directly decide matters over which full discretionary authority has been
delegated to the legislative or executive branch of the government. It is not empowered to substitute
its judgment for that of Congress or of the President. It may, however, look into the question of
whether such exercise has been made in grave abuse of discretion.
Judicial review of the acts of other departments is not an assertion of superiority over them or a
derogation of their functions. In the words of Justice Laurel in Angara vs. Electoral Commission: [29]
x x x [W]hen the judiciary mediates to allocate constitutional boundaries, it does not in reality nullify or
invalidate an act of the legislature, but only asserts the solemn and sacred obligation assigned to it by
the Constitution to determine conflicting claims of authority under the Constitution and to establish for
the parties in an actual controversy the rights which that instrument sources and guarantees to them.
This is in truth all that is involved in what is termed judicial supremacy which properly is the power of
the judicial review under the Constitution. x x x.
It is not the purpose of this Court to decrease or limit the discretion of the secretary of justice to
review the decisions of the government prosecutors under him. In Crespo, the secretary was merely
advised to restrict such review to exceptionally meritorious cases. Rule 112, Section 4 of the Rules of
Court, which recognizes such power, does not, however, allow the trial court to automatically dismiss
the case or grant the withdrawal of the information upon the resolution of the secretary of justice. This
is precisely the import of Crespo, Marcelo, Martinez vs. Court of Appeals[30] and the recent case

of Roberts, Jr. vs. Court of Appeals, which all required the trial court to make its own evaluation of the
merits of the case, because granting the motion to dismiss or to withdraw the information is equivalent
to effecting a disposition of the case itself.
The Marcelo and Martinez Cases Are Consistent
In Marcelo vs. Court of Appeals,[31] this Court ruled that, although it is more prudent to wait for a
final resolution of a motion for review or reinvestigation from the secretary of justice before acting on a
motion to dismiss or a motion to withdraw an information, a trial court nonetheless should make its
own study and evaluation of said motion and not rely merely on the awaited action of the
secretary. The trial court has the option to grant or deny the motion to dismiss the case filed by the
fiscal, whether before or after the arraignment of the accused, and whether after a reinvestigation or
upon instructions of the secretary who reviewed the records of the investigation; provided that such
grant or denial is made from its own assessment and evaluation of the merits of the motion.
In Martinez vs. Court of Appeals,[32] this Court overruled the grant of the motion to dismiss filed by
the prosecuting fiscal upon the recommendation of the secretary of justice because such grant was
based upon considerations other than the judges own assessment of the matter. Relying solely on the
conclusion of the prosecution to the effect that there was no sufficient evidence against the accused to
sustain the allegation in the information, the trial judge did not perform his function of making an
independent evaluation or assessment of the merits of the case.
Despite the pronouncement in Marcelo that a final resolution of the appeal to the Department of
Justice is necessary, both decisions followed the rule in Crespo vs. Mogul:Once a complaint or
information is filed in court, any disposition of the case such as its dismissal or its continuation rests on
the sound discretion of the court. Trial judges are thus required to make their own assessment of
whether the secretary of justice committed grave abuse of discretion in granting or denying the appeal,
separately and independently of the prosecutions or the secretarys evaluation that such evidence is
insufficient or that no probable cause to hold the accused for trial exists. They should embody such
assessment in their written order disposing of the motion.
The above-mentioned cases depict two extreme cases in complying with this rule. In Marcelo, the
dismissal of the criminal action upon the favorable recommendation of the Review Committee, Office of
the City Prosecutor, was precipitate in view of the pendency of private complainants appeal to the
secretary of justice. In effect, the secretarys opinion was totally disregarded by the trial court. In
contrast, in Martinez the dismissal of the criminal action was an erroneous exercise of judicial discretion
as the trial court relied hook, line and sinker on the resolution of the secretary, without making its own
independent determination of the merits of the said resolution.
No Grave Abuse of Discretion in theResolution of the Secretary of Justice
C o n s t i t u t i o n a l L a w I I A r t . I I I S e c . 3 a n d 4 P a g e | 71
In the light of recent holdings in Marcelo and Martinez; and considering that the issue of the
correctness of the justice secretarys resolution has been amply threshed out in petitioners letter, the
information, the resolution of the secretary of justice, the motion to dismiss, and even the exhaustive
discussion in the motion for reconsideration all of which were submitted to the court -- the trial judge
committed grave abuse of discretion when it denied the motion to withdraw the information, based
solely on his bare and ambiguous reliance on Crespo. The trial courts order is inconsistent with our
repetitive calls for an independent and competent assessment of the issue(s) presented in the motion
to dismiss. The trial judge was tasked to evaluate the secretarys recommendation finding the absence
of probable cause to hold petitioner criminally liable for libel. He failed to do so. He merely ruled to
proceed with the trial without stating his reasons for disregarding the secretarys recommendation.
Had he complied with his judicial obligation, he would have discovered that there was, in fact,
sufficient ground to grant the motion to withdraw the information. The documents before the trial court
judge clearly showed that there was no probable cause to warrant a criminal prosecution for libel.
Under the established scheme of things in criminal prosecutions, this Court would normally
remand the case to the trial judge for his or her independent assessment of the motion to withdraw the
information. However, in order not to delay the disposition of this case and to afford the parties
complete relief, we have decided to make directly the independent assessment the trial court should
have done. The petitioner has attached as annexes to the present petition for review the information,
which contains a complete and faithful reproduction of the subject letter, the resolution of the secretary
of justice, the prosecutions motion for reconsideration of the trial courts Order of February 22, 1993,
and even the private complainants opposition to said motion. The records below have been reproduced
and submitted to this Court for its appreciation. Thus, a remand to the trial court serves no purpose
and will only clog the dockets.
We thus proceed to examine the substance of the resolution of the secretary of justice. The
secretary reversed the finding of probable cause on the grounds that (1) the subject letter was
privileged in nature and (2) the complaint was merely a countercharge.
In every case for libel, the following requisites must concur:
(a) it must be defamatory;
(b) it must be malicious;
(c) it must be given publicity; and
(d) the victim must be identifiable.
At the preliminary investigation stage, these requisites must show prima facie a well-founded
belief that a crime has been committed and that the accused probably committed it. A cursory reading
of the information immediately demonstrates a failure on the part of the complainant to establish the
foregoing elements of libel.

Every defamatory imputation, even if true, is presumed malicious, if no good intention or
justifiable motive for making it is shown. There is malice when the author of the imputation is prompted
by personal ill will or spite and speaks not in response to duty but merely to injure the reputation of the
person who claims to have been defamed. [33] In this case however, petitioners letter was written to
seek redress of proper grievance against the inaccurate distribution and payment of professional fees
and against unfair treatment in the Nuclear Medicine Department of the Philippine Heart Center. It is a
qualified privileged communication under Article 354(1) of the Revised Penal Code which provides:
ART. 354. Requirement of publicity. -- Every defamatory imputation is presumed to be malicious, even
if it be true, if no good intention and justifiable motive for making it is shown, except in the following
cases:
1. A private communication made by any person to another in the performance of any legal, moral or
social duty; and
xxx xxx xxx
The rule on privileged communication is that a communication made in good faith on any subject
matter in which the communicator has an interest, or concerning which he has a duty, is privileged if
made to a person having a corresponding interest or duty, although it contains incriminatory matter
which, without the privilege, would be libelous and actionable. Petitioners letter was a private
communication made in the performance of a moral duty on her part. Her intention was not to inflict an
unjustifiable harm on the private complainant, but to present her grievance to her superior. The
privileged nature of her letter overcomes the presumption of malice. There is no malice when justifiable
motive exists; and in the absence of malice, there is no libel. We note that the information itself failed
to allege the existence of malice.
Thus, we agree with the ruling of the secretary of justice:[34]
x x x (T)he subject letter was written to bring to the attention of the Director of the Philippine Heart
Center for Asia and other responsible authorities the unjust and unfair treatment that Dr. Ledesma was
getting from government employees, and the subject letter is a complaint x x x on a subject matter in
which respondent has an interest and in reference to which she has a duty to question the same is
definitely privileged (US vs. Bustos, 37 Phil. 131). Moreover, in Ang vs. Castro, 136 SCRA 455, the
Supreme Court, citing Santiago vs. Calvo, 48 Phil. 922, ruled that a communication made in good faith
upon any subject matter in which the party making the communication has an interest or concerning
which he has a duty is privileged although it contains incriminatory or derogatory matter which, without
the privilege, would be libelous and actionable.
The follow-up letter sent by respondent to the director of the PHCA, is a direct evidence of respondents
righteous disposition of following the rule of law and is a clear indication that her purpose was to seek
relief from the proper higher authority xxx.
The same interpretation should be accorded the civil and administrative complaints which respondent
filed against complainants. They are mere manifestations of her earnest desire to pursue proper relief
C o n s t i t u t i o n a l L a w I I A r t . I I I S e c . 3 a n d 4 P a g e | 72
for the alleged injustice she got from complainants. If she was motivated by malice and ill-will in
sending the subject communication to the Director of the PHCA, she would not have sent the second
letter and filed the administrative and civil cases against complainants.
In Alonzo, the settled rule is that, when a public officer, in the discharge of his or her official
duties, sends a communication to another officer or to a body of officers, who have a duty to perform
with respect to the subject matter of the communication, such communication does not amount to
publication within the meaning of the law on defamation. [35] Publication in libel means making the
defamatory matter, after it has been written, known to someone other than the person to whom it has
been written.[36] The reason for such rule is that a communication of the defamatory matter to the
person defamed cannot injure his reputation though it may wound his self-esteem. A mans reputation is
not the good opinion he has of himself, but the estimation in which others hold him.[37] In this case,
petitioner submitted the letter to the director of said hospital; she did not disseminate the letter and its
contents to third persons. Hence, there was no publicity and the matter is clearly covered by paragraph
1 of Article 354 of the Penal Code.
Further, we note that the information against petitioner was filed only on July 27, 1992 or one
year after June 27, 1991, the date the letter was sent. It is obviously nothing more than a
countercharge to give Complainant Torres a leverage against petitioners administrative action against
him.
Ineluctably, Judge Asuncions denial of the motion to withdraw the information and the
reconsideration thereof was not only precipitate but manifestly erroneous. This is further compounded
by the fact that he did not explain his grounds for his denial inasmuch as he did not make an
independent assessment of the motion or the arguments in the resolution of the secretary of justice. All
in all, such rash action did not do justice to the sound ruling in Crespo vs. Mogul upon which, ironically,
he supposedly rested his action, or to the directive in Marcelo and Martinez where this Court required
trial courts to make an independent assessment of the merits of the motion.
WHEREFORE, the assailed Decision is hereby REVERSED and SET ASIDE. The Motion to
Withdraw the Information dated February 17, 1993 filed before the trial court is GRANTED. No costs.
SO ORDERED.
Davide, Jr., Melo, and Francisco, JJ., concur.
Narvasa C.J., no part: Close relation to a party:

SECOND DIVISION
[G.R. No. 139987. March 31, 2005]
SALVADOR D. FLOR, petitioner, vs. PEOPLE OF THE PHILIPPINES, respondent.
DECISION
CHICO-NAZARIO, J.:
Before Us is a petition for review on certiorari seeking to reverse the Decision of the Court of
Appeals in CA-G.R. CR Nos. 11577 and 33204[1] which affirmed the joint decision of the Regional Trial
Court (RTC), Branch 33 of Pili, Camarines Sur, in Criminal Case No. P-1855 convicting the petitioner and
Nick Ramos[2] for libel and Civil Case No. P-1672 awarding damages in favor of the private complainant,
former Governor of Camarines Sur and Minister of the Presidential Commission on Government
Reorganization Luis R. Villafuerte.
The facts are not disputed.
An information for libel was filed before the RTC, Branch 20, Naga City, against the petitioner and
Ramos who were then the managing editor and correspondent, respectively, of the Bicol Forum, a local
weekly newspaper circulated in the Bicol Region. The information reads as follows:
That on or about the 18th day up to the 24th day of August, 1986, in the Bicol Region comprised by the
Provinces of Albay, Catanduanes, Sorsogon, Masbate, Camarines Sur, and Camarines Norte, and the
Cities of Iriga and Naga, Philippines, and within the jurisdiction of this Honorable Court under R.A. No.
4363, and B.P. Blg. 129, the above-named accused who are the news correspondent and the managing
editor, respectively, of the local weekly newspaper Bicol Forum, did then and there willfully, unlawfully
and feloniously, without justifiable motive and with malicious intent of impeaching, discrediting and
destroying the honor, integrity, good name and reputation of the complainant as Minister of the
Presidential Commission on Government Reorganization and concurrently Governor of the Province of
Camarines Sur, and to expose him to public hatred, ridicule and contempt, write, edit, publish and
circulate an issue of the local weekly newspaper BICOL FORUM throughout the Bicol Region, with
banner headline and front page news item read by the public throughout the Bicol Region, pertinent
portions of which are quoted verbatim as follows:
VILLAFUERTES DENIAL CONVINCES NO ONE
NAGA CITY-Gov. Luis Villafuertes denial that he did not spend government money for his
trips to Japan and Israel two weeks ago has failed to convince people in Camarines Sur,
reliable sources said.
What the people know, the sources said, is that the two trips of the governor who is also the minister
of the Government Reorganization Commission was purely junket.
C o n s t i t u t i o n a l L a w I I A r t . I I I S e c . 3 a n d 4 P a g e | 73
This was confirmed when capitol sources disclosed that about P700,000.00 collected by way of cash
advances by ranking provincial officials were allegedly used for the two trips.
The cash advances, the sources said, were made at the instance of Villafuerte.
It was learned that the amount was withdrawn without resolution approving its release.
Villarfuerte however said that he spent his own money for the two trips.
The governor was accompanied abroad by political supporters mostly municipal mayors in Camarines
Sur, the report said.
This was contested by several individuals who told Bicol Forum that the members of Villafuertes
entourage did not have official functions in the province.
Villafuerte and his companions reportedly attended the 1986 baseball games in Japan.
When in truth and in fact said allegations are false and utterly untrue as the complainant has not done
such acts, thus embarrassing, discrediting and ridiculing him before his friends, followers and other
people.[3]
The information was later amended to include Jose Burgos, Jr., who was at that time the
publisher-editor of the Bicol Forum.[4] The trial court, however, never acquired jurisdiction over his
person as he did not surrender nor was he ever arrested by the authorities.
It appears from the records that prior to the filing of the criminal complaint, the private
complainant had already instituted a separate civil action for damages arising out of the questioned
news article before the RTC, Branch 23, Naga City. Due to this, the criminal suit for libel was ordered
consolidated with the civil case pursuant to Article 360 of the Revised Penal Code, as
amended.[5] Subsequently, the consolidated actions were transferred to RTC, Branch 33, Pili, Camarines
Sur, in accordance with Republic Act No. 4363 which outlines the venue of libel cases in the event that
the offended party is a public official such as in this case. [6] Thereafter, a joint trial of the cases ensued
with accused Burgos, Jr., being declared as in default in the civil case due to his failure to attend its
pre-trial conference.
Upon being arraigned, the petitioner and Ramos both pleaded not guilty.[7]
During the trial, the private complainant himself took the witness stand to refute the statements
contained in the subject news article. According to him, there were previous news reports and
broadcasts regarding the cash advances allegedly made by some provincial government officials of
Camarines Sur and that it was also reported that he made a trip to Japan which was branded as a mere
junket.[8] The private complainant, however, explained that after he clarified over the radio that he
never went to Japan, the issue was never discussed again until the matter was included in the
questioned news item.[9] As for the cash advances, the private complainant stated that the Provincial
Auditor and the Budget Officer had already made a statement to the effect that he had no pending cash
 C o n s t i t u t i o n a l L a w I I A r t . I I I S e c . 3 a n d 4 P a g e | 74

advances.[10] Further, the private complainant clarified that he made his trip to Israel in his capacity as After the trial, the court a quo rendered a joint decision the dispositive portion of which reads:
a cabinet member of former President Corazon C. Aquino and that he spent his own money for the said
official trip thereby debunking Bicol Forums report that his travel to Israel was purely a junket. [11] The IN VIEW OF ALL THE FOREGOING CONSIDERATIONS, judgment is hereby rendered:
private complainant also complained that no one from the Bicol Forum made any attempt to get his side
of the story nor was he aware of any effort exerted by the representatives of said publication to confirm
In Criminal Case No. P-1855
the veracity of the contents of the subject news article from any source at the provincial
capitol.[12] Finally, the private complainant took exception to the banner headline which states
Villafuertes Denial Convinces No One. According to him, the Bicol Forum seemed to be making a Finding the accused Nick Ramos and Salvador D. Flor guilty beyond reasonable doubt of the crime of
mockery of his previous explanations regarding the cash advances and his trips abroad and such a Libel defined and punished under Article 353 in connection with Article 355 of the Revised Penal Code
sweeping statement subjected him to public ridicule and humiliation.[13] and they are each sentenced to pay a fine of Two Thousand Pesos (P2,000.00) with subsidiary
imprisonment in case of insolvency; and to pay the costs of suit.
On the other hand, Ramos testified that he wrote the questioned news item on the basis of a note
given to him by a source whom he refused to identify.[14] Said source was allegedly connected with the
In Civil Case No. P-1672
Provincial Treasurers Office.[15] The note reads:

Ordering the defendants Nick Ramos, Salvador D. Flor and Jose Burgos, Jr. to pay jointly and severally
Media consultants of Villafuerte specially DWLV announcers had been announcing the travels of
to the plaintiff the following:
Villafuerte to Israel and Japan without spending a single centavo. This is unbelievable as lately the Gov.
said he [spent] his own money for the trips.
1. The amount of Three Hundred Thousand Pesos (P300,000.00) as moral damages;
No one will believe this. The governor and party went to Israel and Japan as there were some
P700,000.00 cash advances collected in form of advances by top provincial officials for the trips. No 2. The amount of Five Thousand Pesos (P5,000.00) as exemplary damages;
[doubt] Villafuerte had a hand on this because he is the governor approving cash advances. Among
them were Panes and Maceda. 3. The amount of Five Thousand Pesos (P5,000.00) as attorneys fees; and to pay the costs
of suit.[22]
There were no resolution, please publish this that people concern will react and they be forced to
account for the money. Authenticated papers will follow. Bulls eye ito. Unsatisfied with the findings of the trial court, the petitioner and Ramos filed an appeal with the
Court of Appeals which affirmed the judgment of the trial court through its decision dated 10 December
capr[16] 1996.[23] They thereafter filed a motion for reconsideration[24] which was denied for lack of merit by the
appellate court in its resolution of 19 August 1999.[25]
Ramos likewise alleged that prior to writing the subject news article, he went to his source to ask In upholding the conclusion reached by the trial court, the Court of Appeals ratiocinated, thus:
some clarificatory questions and was told that he would be given authenticated records of the cash
advances. Later, he was given a copy of the Schedule of Cash Advances of Disbursing Officers and
The informant of Nick Ramos made a sweeping conclusion that it was Gov. Villafuerte who made the
Other Officers (as of June 30 1987).[17]Among the provincial government officials listed therein were the
trips abroad using government money as there were cash advances of P700,000.00 made by top
private respondent who had a 1986 balance of P25,000.00 incurred for cultural activities; Atty. Jose
provincial officials, without first having verified the truth about the matters contained in his report. The
Maceda who also had a 1986 balance of P130,084.00 for sports development, Operation Smile,
imputation became malicious when they are based on mere conjectures. The alleged libelous article
NAMCYA Festival, and prisoners subsistence; and Eulogio Panes, Jr., who had beside his name a 1986
must be construed as a whole. The effect of the news item upon the minds of the readers must be
balance of P250,000 for the purpose of sports development. Ramos also claimed that when he went to
considered in the prosecution of libel cases. The words used in the news report tends to impute a
the Provincial Treasurers Office to conduct his investigation, he was shown some vouchers and was told
criminal act on the governor which may cause the readers to hold him up to public ridicule and induce
that many of the members of the baseball delegation to Japan were not elected provincial officials and,
them to believe that the governor was indeed guilty. The accused editor admitted that he did not make
in fact, some mayors and private individuals were sent as part of the Philippine group. [18]
any personal investigation as to the truth of the statements made in the report. When such
During his turn at the witness stand, the petitioner admitted that the headline was written by him communication was sent for publication, the so-called privilege was destroyed when malice in fact was
in his capacity as the managing editor[19] in accordance with the policy of their paper to print as present.[26]
headlines matters dealing with public concerns and public officials. [20] According to him, the banner
headline and the sub-headline truthfully reflect the substance of the story prepared by Ramos. [21]

In fine, the sole issue brought for the consideration of this Court is whether the questioned news
item is libelous. We reverse.
Libel is defined as a public and malicious imputation of a crime, or of a vice or defect, real or
imaginary, or any act, omission, condition, status, or circumstance tending to cause the dishonor,
discredit, or contempt of a natural person or juridical person, or to blacken the memory of one who is
dead.[27] Any of these imputations is defamatory and under the general rule stated in Article 354 of the
Revised Penal Code, every defamatory imputation is presumed to be malicious.[28] The presumption of
malice, however, does not exist in the following instances:
1. A private communication made by any person to another in the performance of any legal, moral, or
social duty; and
2. A fair and true report, made in good faith, without any comments or remarks, of any judicial,
legislative, or other official proceedings which are not of confidential nature, or of any statement,
report, or speech delivered in said proceedings, or of any other act performed by public officers in the
exercise of their functions.[29]
The law recognizes two kinds of privileged matters. First are those which are classified
as absolutely privileged which enjoy immunity from libel suits regardless of the existence of malice in
fact. Included herein are statements made in official proceedings of the legislature by the members
thereof.[30] Likewise, statements made in the course of judicial proceedings are absolutely privileged but
only if pertinent or relevant to the case involved.[31]
The other kind of privileged matters are the qualifiedly or conditionally privileged communications
which, unlike the first classification, may be susceptible to a finding of libel provided the prosecution
establishes the presence of malice in fact. The exceptions provided for in Article 354 of the Revised
Penal Code fall into this category.
In the case, however, of Borjal v. Court of Appeals,[32] this Court recognized that the enumeration
stated in Article 354 of the Revised Penal Code is not exclusive but is rendered more expansive by the
constitutional guarantee of freedom of the press, thus:
. . . To be sure, the enumeration under Art. 354 is not an exclusive list of qualifiedly privileged
communications since fair commentaries on matters of public interest are likewise privileged. The rule
on privileged communications had its genesis not in the nations penal code but in the Bill of Rights of
the Constitution guaranteeing freedom of speech and of the press. As early as 1918, in United States v.
Caete [38 Phil. 253], this Court ruled that publications which are privileged for reasons of public policy
are protected by the constitutional guaranty of freedom of speech. This constitutional right cannot be
abolished by the mere failure of the legislature to give it express recognition in the statute punishing
libels.[33]
Clearly, when confronted with libel cases involving publications which deal with public officials and
the discharge of their official functions, this Court is not confined within the wordings of the libel
C o n s t i t u t i o n a l L a w I I A r t . I I I S e c . 3 a n d 4 P a g e | 75
statute; rather, the case should likewise be examined under the constitutional precept of freedom of
the press. As enunciated in the seminal case of United States v. Bustos[34] -
The interest of society and the maintenance of good government demand a full discussion of public
affairs. Complete liberty to comment on the conduct of public men is a scalpel in the case of free
speech. The sharp incision of its probe relieves the abscesses of officialdom. Men in public life may
suffer under a hostile and an unjust accusation; the wound can be assuaged with the balm of a clear
conscience. A public officer must not be too thin-skinned with reference to comment upon his official
acts. Only thus can the intelligence and dignity of the individual be exalted. Of course, criticism does
not authorize defamation. Nevertheless, as the individual is less than the State, so must expected
criticism be born for the common good. Rising superior to any official, or set of officials, to the Chief
Executive, to the Legislature, to the Judiciary to any or all the agencies of Government public opinion
should be the constant source of liberty and democracy.[35]
Of course, this does not mean that a public official is barred from recovering damages in cases
involving defamations. His entitlement, however, is limited to instances when the defamatory statement
was made with actual malice that is, with knowledge that it was false or with reckless disregard of
whether it was false or not. [36] This is the test laid down in the leading case of New York Times Co. v.
Sullivan.[37]
In the case at bar, the Office of the Solicitor General (OSG) argues that the purported libelous
news item was designed to malign the integrity and reputation of the [private complainant] for it
ascribed to the latter corruption and dishonesty in government service. [38] Moreover, the OSG maintains
that the questioned news article does not enjoy the mantle of protection afforded a privileged matter as
the petitioner and Ramos published the news item based on mere speculation and conjecture. [39] Their
decision to publish the unverified information furnished them by the unnamed source, who was never
presented before the trial court, and their failure to verify the truth of statements which appeared
under the banner headline of the 18-24 August 1986 issue of the Bicol Forum indicates that the news
item was published intemperately and maliciously. [40] The OSG is therefore of the opinion that the
subject news item satisfied the test pronounced in the New York Times case. We do not agree.
As the US Supreme Court itself declared, reckless disregard cannot be fully encompassed in one
infallible definition. Inevitably its outer limits will be marked out through case-by-case
adjudication.[41] The case of Garrison v. State of Louisiana[42] stressed that only those false statements
made with the high degree of awareness of their probable falsity demanded by New York Times may be
the subject of either civil or criminal sanctions[43] and concluded by restating the reckless disregard
standard in the following manner:
. . . The test which we laid down in New York Times is not keyed to ordinary care; defeasance of the
privilege is conditioned, not on mere negligence, but on reckless disregard for the truth.[44]
Subsequently, in St. Amant v. Thompson[45] it was stated that
. . . These cases are clear that reckless conduct is not measured by whether a reasonably prudent man
would have published, or would have investigated before publishing. There must be sufficient evidence

to permit the conclusion that the defendant in fact entertained serious doubts as to the truth of his
publication. Publishing with such doubts shows reckless disregard for truth or falsity and demonstrates
actual malice. [46]
Applied to the case at bar, we hold that the prosecution failed to meet the criterion of reckless
disregard. As the records reveal, the issue of cash advances against the coffers of the provincial
government of Camarines Sur was a major political topic in said locality at that time. Even the private
respondent himself admitted during his direct testimony that he went on radio in order to address the
matter. It was clearly a legitimate topic to be discussed not only by the members of the media but by
the public as what was involved was the dispensation of taxpayers money.
Further, it bears emphasis that in this case, the petitioner and Ramos had in their possession
information relating to the cash advances and the private respondents travels abroad. The information
was provided by one who worked in the provincial treasurers office and had access to the pertinent
financial records of the provincial government. Their informant was familiar with the procedure with
regard to the approval of cash advances. The inference they drew from the note given by their source
that the private respondent prodded some of the provincial government officials to take out cash
advances may have been false but the same does not warrant a conviction for libel nor support a claim
for damages. As discussed by Newell
Slight unintentional errors, however, will be excused. If a writer in the course of temperate and
legitimate criticism falls into error as to some detail, or draws an incorrect inference from the facts
before him, and thus goes beyond the limits of strict truth, such inaccuracies will not cause judgment to
go against him, if the jury are satisfied, after reading the whole publication, that it was written
honestly, fairly and with regard to what truth and justice require. It is not to be expected that a public
journalist will always be infallible.[47]
During the hearing of these cases, the private complainant also refuted the material points
contained in the subject news article in an effort to prove the falsity of the allegations contained
therein. This Court finds such effort inadequate to adjudge the petitioner guilty of the crime of libel or
to entitle the private respondent to damages. Under the New York Times test, false statements alone
are not actionable; maliciousness may be shown only through knowledge of falsity or reckless disregard
of truth or falsity.[48]
Further, both the prosecution and the OSG make capital of Ramos and the petitioners failure to
confirm the information supplied by the unidentified source which ultimately became the basis for the
news article under consideration in an obvious attempt to establish the element of reckless disregard
for truth. The prosecution also painstakingly tried to establish malice in fact on the part of the petitioner
by harping on the fact that neither he nor Ramos took the time to give the private respondent the
chance to air his side before putting the alleged libelous news story to print.
The contention fails to persuade.
While substantiation of the facts supplied is an important reporting standard, still, a reporter may
rely on information given by a lone source although it reflects only one side of the story provided the
C o n s t i t u t i o n a l L a w I I A r t . I I I S e c . 3 a n d 4 P a g e | 76
reporter does not entertain a high degree of awareness of [its] probable falsity. [49] The prosecution, in
this case, utterly failed to prove that the petitioner and Ramos entertained such awareness.
We also hold that the petitioners and Ramoss failure to present their informant before the court as
well as other evidence that would prove Ramos claim that he had conducted an investigation to verify
the information passed on to him should not be taken against them. On this point, we turn to our
pronouncement in the case of Rodolfo R. Vasquez v. Court of Appeals, et al.,[50] to wit:
A rule placing on the accused the burden of showing the truth of allegations of official misconduct
and/or good motives and justifiable ends for making such allegations would not only be contrary to Art.
361 of the Revised Penal Code. It would, above all, infringe on the constitutionally guaranteed freedom
of expression. Such a rule would deter citizens from performing their duties as members of a self-
governing community. Without free speech and assembly, discussions of our most abiding concerns as
a nation would be stifled. As Justice Brandeis has said, public discussion is a political duty and the
greatest menace to freedom is an inert people.[51]
Indeed, the difficulty of producing evidence, both documentary and testimonial, on behalf of the
petitioner was readily apparent when, during his cross-examination, Ramos testified that he was not
allowed by the custodians of the material provincial financial records to photocopy the latter particularly
because said documents dealt with the matter of cash advances. [52]
Further, as their informant was employed in the provincial treasurers office, it is understandable
why he opted not to expose himself and openly charge his superior, the private complainant herein, lest
he incur the latters wrath.
Finally, the private respondent claims that the banner headline ridiculed him before the public
does not merit consideration as the rule in this jurisdiction is that [t]he headline of a newspaper story
or publication claimed to be libelous must be read and construed in connection with the language that
follows.[53] A perusal of the entire news story accompanying the headline in this case readily establishes
the fact that the questioned article dealt with refutations by the private respondents critics of his
explanation over the radio with regard to the issues mentioned therein. The wording of the headline
may have contained an exaggeration but the same nevertheless represents a fair index of the contents
of the news story accompanying it.[54]
WHEREFORE, the petition is GRANTED. The Decision of the Court of Appeals of 10 December
1996 which affirmed the Joint Decision dated 18 March 1991 of the Regional Trial Court, Branch 33, Pili,
Camarines Sur, and its Resolution of 19 August 1999 denying reconsideration are REVERSED and SET
ASIDE. No costs.
SO ORDERED.
Puno, (Chairman), Austria-Martinez, Callejo, Sr., and Tinga, JJ., concur.
 C o n s t i t u t i o n a l L a w I I A r t . I I I S e c . 3 a n d 4 P a g e | 77

SECOND DIVISION
Angara explained that house owners could not control their dogs and cats when they
PHILIPPINE JOURNALISTS, INC. (PEOPLES JOURNAL), ZACARIAS NUGUID, JR. and slip out of their dwellings unnoticed.
CRISTINA LEE, P e t i t i o n e r s,

An alleged confrontation between Thoenen and the owner of a pet he shot recently
- versus - threatens to exacerbate the problem, Angara said.

FRANCIS THOENEN,
Cristina Le
R e s p o n d e n t.
The subject of this article, Francis Thoenen, is a retired engineer permanently residing in this country
x- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -x with his Filipina wife and their children. Claiming that the report was false and defamatory, and that the
petitioners acted irresponsibly in failing to verify the truth of the same prior to publication, he filed a
civil case for damages against herein petitioners Philippine Journalists, Inc., Zacarias Nuguid, Jr., its
publisher, and reporter Cristina Lee.

DECISION
Thoenen claimed that the article destroyed the respect and admiration he enjoyed in the community,
and that since it had been published, he and his wife received several queries and angry calls from
friends, neighbors and relatives. For the impairment of his reputation and standing in the community,
CHICO-NAZARIO, J.: and his mental anguish, Thoenen sought P200,000.00 in moral damages, P100,000.00 in exemplary
damages, and P50,000.00 in attorneys fees.

For almost a century, this Court has sought that elusive equilibrium between the law on defamation on
one hand, and the constitutionally guaranteed freedoms of speech and press on the other. This case
revisits that search.
On 30 September 1990, the following news item appeared in the Peoples Journal, a tabloid of general
circulation:
Swiss Shoots Neighbors Pets
The petitioners admitted publication of the news item, ostensibly out of a social and moral duty to
inform the public on matters of general interest, promote the public good and protect the moral public
(sic) of the people, and that the story was published in good faith and without malice.[2]
The principal source of the article was a letter[3] by a certain Atty. Efren Angara addressed to
Commissioner Andrea Domingo of the Commission on Immigration and Deportation (CID, now Bureau
of Immigration), which states:

Dear Madame:
RESIDENTS of a subdivision in Paraaque have asked the Bureau of Immigration to
deport a Swiss who allegedly shoots wayward neighbors pets that he finds in his
domain.
We would like to request your office to verify the true status/authenticity of
the residency in the Philippines of a foreign national (a Swiss) by the name of
Francis Thoenen who is presently residing at No. 10 Calcuta cor. Beirut Street, BF
The BF Homes residents through lawyer Atty. Efren Angara complained that the Homes (PH. III), Paraaque, Metro Manila. I received (sic) complaint from my
deportation of Francis Thoenen, of 10 Calcutta BF Homes Phase III, could help clients residing around his vicinity that this foreigner had (sic) been causing
prevent the recurrence of such incident in the future.

troubles ever since he showed up. He is too meticulous and had (sic) been
shooting dogs and cats passing his house wall everytime.
Such act which (sic) is unacceptable to the owners especially if inspite (sic)
of control their pets slips (sic) out unnoticed. A confrontation between him and
the owner of the dog he shoot, (sic) already occurred last time. In some
instances this guy had been always driving his car barbarously inside the
subdivision with children playing around (sic) the street. Before my clients
petitioned themselves with the endorsement of the Homeowners Association and
filed to your office for deportation were respectfully seeking your assistance to
investigate this alien to prevent further incident occurrence (sic) in the future. He
should not be allowed to dominate the citizens of this country.
Very truly yours,
Atty. Efren B. Angara
The petitioners claim that Lee, as the reporter assigned to cover news events in the CID, acquired a
copy of the above letter from a trusted source in the CIDs Intelligence Division. They claimed to have
reasonable grounds to believe in the truth and veracity of the information derived (from their)
sources.[4]
It was proven at trial that the news article contained several inaccuracies. The headline, which
categorically stated that the subject of the article engaged in the practice of shooting pets, was
untrue.[5] Moreover, it is immediately apparent from a comparison between the above letter and the
news item in question that while the letter is a mere request for verification of Thoenens status, Lee
wrote that residents of BF Homes had asked the Bureau of Immigration to deport a Swiss who allegedly
shoots neighbors pets. No complaints had in fact been lodged against him by any of the BF
Homeowners,[6] nor had any pending deportation proceedings been initiated against him in the Bureau
of Immigration.[7]
Thoenen also submitted a Certification [8] from the Office of the Bar Confidant that there was no lawyer
in its rolls by the name of Efren Angara, earlier cited by petitioner Lee as the author of the letter on
which she based her article. Finally, the trial also showed that despite the fact that respondents address
was indicated in the letter, Cristina Lee made no efforts to contact either him or the purported letter-
writer, Atty. Angara.[9]
The petitioners claim that Lee sought confirmation of the story from the newspapers correspondent in
Paraaque, who told her that a woman who refused to identify herself confirmed that there had indeed
been an incident of pet-shooting in the neighborhood involving the respondent.[10] However, the
correspondent in question was never presented in court to verify the truth of this allegation. Neither
was the alleged CID source presented to verify that the above letter had indeed come from the
Department, nor even that the same was a certified true copy of a letter on file in their office.
C o n s t i t u t i o n a l L a w I I A r t . I I I S e c . 3 a n d 4 P a g e | 78
On 31 August 1994, the Regional Trial Court, Branch 62, Makati City, rendered a Decision [11] in favor of
the petitioners, which reads in part:
There is no malice on the part of the defendants in publishing the news item
done in the exercise of their profession as journalists reporting to the people on
matters of public interest. The news report was based on an official communication
filed with the Bureau of Immigration and Deportation.
As noted by the Court of Appeals in Marti(r)ez vs. Alanao, CA-G.R No.
27086, September 30, 1991, which is similar to the present case:
While indeed, the news item subject of the present case
might have ruffled the sensitivities of plaintiff, this Court however
believes that the alleged defamatory articles falls within the
purview of a qualifiedly privileged matter, and that therefore, it
cannot be presumed to be malicious. The onus of proving malice is
accordingly shifted to the plaintiff, that is, that he must prove that
the defendants were actuated by ill-will in what they caused to be
printed and published, with a design to carelessly or wantonly
injure the plaintiff. (US vs. Bustos, et al., 37 Phil. 731)
This, plaintiff failed to do, consequently, his case must fall.
The publication in question is a privileged communication protected by the
freedom of the press.
WHEREFORE, the Complaint is hereby ordered DISMISSED WITHOUT
PRONOUNCEMENT AS TO COSTS.[12]
On appeal, the court a quo reversed[13] the trial court. It held that although
freedom of expression and the right of speech and of the press are among the most
zealously guarded in the Constitution, still, in the exercise of these rights, Article 19
of the Civil Code requires everyone to act with justice, give everyone his due, and
observe honesty and good faith. The appellate court emphasized that Thoenen was
neither a public official nor a public figure, and thus,
. . . [E]ven without malice on the part of defendants-appellees, the news item
published in the 30 September 1990 edition of Peoples Journal had been done in
violation of the principle of abuse of right under Article 19 of the Civil Code, in the

absence of a bona fide effort to ascertain the truth thereof, i.e., to observe honesty
and good faith, which makes their act a wrongful omission. Neither did they act with
justice and give everyone his due, because without ascertaining the veracity of the
information given them by the Intelligence Bureau of the Bureau of Immigration, they
published a news article which they were aware would bring the person specifically
named therein, viz, Francis Thoenen, the plaintiff-appellant in this case, into
disrepute.
. assembly, first laid down by President McKinley in the Instruction to the Second Philippine Commission
WHEREFORE, the foregoing considered, the Decision appealed from is
hereby REVERSED and SET ASIDE. In its stead, We find for the appellant and award
him moral damages of P200,000.00; exemplary damages of P50,000.00, and legal
fees to P30,000.00; all of which shall be borne jointly and severally by appellees. [14]
Petitioners motion for reconsideration having been denied, [15] this
petition for certiorari under Rule 45 of the 1997 Rules of Civil Procedure was filed on
the following grounds:
1. The Court of Appeals erred in finding the petitioners Cristina Lee, Nuguid and
PJI liable under Article 19 of the Civil Code.
2. The Court of Appeals erred in finding the petitioners liable for libel even if the
article was based on a letter released by the Bureau of Immigration, hence a
qualified privilege communication.
3. The Court of Appeals erred in concluding that petitioners did not ascertain the
truth of the subject news item.
4. The Court of Appeals erred in awarding damages notwithstanding that the
same was excessive unconscionable and devoid of any basis.
The petitioners argue that this case is one for damages arising from libel, and not one for
abuse of rights under the New Civil Code. They further claim the constitutional protections extended by
the freedom of speech and of the press clause of the 1987 Constitution against liability for libel,
claiming that the article was published in fulfillment of its social and moral duty to inform the public on
matters of general interest, promote the public good and protect the moral [fabric] of the
people.[16] They insist that the news article was based on a letter released by the Bureau of
Immigration, and is thus a qualifiedly privileged communication. To recover damages, the respondent
C o n s t i t u t i o n a l L a w I I A r t . I I I S e c . 3 a n d 4 P a g e | 79
must prove its publication was attended by actual malice - that is, with knowledge that it was false or
with reckless disregard of whether it was false or not.[17]
For the reasons stated below, we hold that the constitutional privilege granted under the
freedom of speech and the press against liability for damages does not extend to the petitioners in this
case.
The freedom of speech and of the press is not absolute. The freedom of speech and press and
of 07 April 1900, is an almost verbatim restatement of the first amendment of the Constitution of the
United States.[18]Enshrined in Section 4, Article III of the Bill of Rights of the 1987 Constitution, it
states, No law shall be passed abridging the freedom of speech, of expression, or of the press, or the
right of the people peaceably to assemble and petition the government for redress of grievances.
But not all speech is protected. The right of free speech is not absolute at all times and under
all circumstances. There are certain well-defined and narrowly limited classes of speech, the prevention
and punishment of which has never been thought to raise any Constitutional problem. These include
the lewd and obscene, the profane, the libelous, and the insulting or fighting words - those which by
their very utterance inflict injury or tend to incite an immediate breach of the peace. It has been well
observed that such utterances are no essential part of any exposition of ideas, and are of such slight
social value as a step to truth that any benefit that may be derived from them is clearly outweighed by
the social interest in order and morality. [19]
Libel is not proteced speech. Article 353 of the Revised Penal Code defines libel as a public and
malicious imputation of a crime, or of a vice or defect, real or imaginary, or any act, omission,
condition, status, or circumstance tending to cause the dishonor, discredit, or contempt of a natural or
juridical person, or to blacken the memory of one who is dead.
For an imputation to be libelous, the following requisites must be met: (a) the allegation of a
discreditable act or condition concerning another; (b) publication of the charge; (c) identity of the
person defamed; and (d) existence of malice. [20] In Vasquez v. Court of Appeals,[21] we had occasion to
further explain. Thus:
An allegation is considered defamatory if it ascribes to a person the commission
of a crime, the possession of a vice or defect, real or imaginary, or any act, omission,
condition, status or circumstance which tends to dishonor or discredit or put him in
contempt, or which tends to blacken the memory of one who is dead.
There is publication if the material is communicated to a third person. It is not
required that the person defamed has read or heard about the libelous remark. What
is material is that a third person has read or heard the libelous statement, for a mans
reputation is the estimate in which others hold him, not the good opinion which he
has of himself.
On the other hand, to satisfy the element of identifiability, it must be shown
that at least a third person or a stranger was able to identify him as the object of the
defamatory statement.

Finally, malice or ill will must be present. Art. 354 of the Revised Penal Code
provides:
Every defamatory imputation is presumed to be malicious, even if it
be true, if no good intention and justifiable motive for making it is
shown, except in the following cases:
1. A private communication made by any person to another
in the performance of any legal, moral or security duty;
and
2. A fair and true report, made in good faith, without any
comments or remarks, of any judicial, legislative or
other official proceedings which are not of confidential
nature, or of any statement, report or speech delivered
in said proceedings, or of any other act performed by
public officers in the exercise of their functions.
(citations omitted, emphasis supplied)
In this case, there is no controversy as to the existence of the three elements. The
respondents name and address were clearly indicated in the article ascribing to him the questionable
practice of shooting the wayward pets of his neighbors. The backlash caused by the publication of the
article was in fact such that stones had been thrown at their house, breaking several flower pots, and
daily and nightly calls compelled him to request a change of their telephone number. [22] These facts are
not contested by the petitioners. What the petitioners claim is the absence of proof of the fourth
element - malice.
As a general rule, malice is presumed. Article 354 of the Revised Penal Code states:
ART. 354. Requirement of Publicity. - Every defamatory imputation is presumed to
be malicious, even if it be true, if no good intention and justifiable motive for making
it is shown, except in the following cases:
1. A private communication made by any person to another in the
performance of any legal, moral or social duty; and
2. A fair and true report, made in good faith, without any comments or
remarks, of any judicial, legislative or other official proceedings which are not
of confidential nature, or of any statement, report or speech delivered in said
proceedings, or of any other act performed by public officers in the exercise
of their functions.
The article is not a privileged communication. We first discussed the freedom of speech and
press and assembly vis-a-vis the laws on libel and slander in the groundbreaking case of US v.
Bustos,[23] where we applied the prevailing English and American jurisprudence to the effect that:
C o n s t i t u t i o n a l L a w I I A r t . I I I S e c . 3 a n d 4 P a g e | 80
The interest of society and the maintenance of good government demand a full
discussion of public affairs. Complete liberty to comment on the conduct of public
men is a scalpel in the case of free speech. The sharp incision of its probe relieves
the abscesses of officialdom. Men in public life may suffer under a hostile and an
unjust accusation; the wound can be assuaged with the balm of a clear conscience. A
public officer must not be too thin-skinned with reference to comment upon his
official acts. Only thus can the intelligence and dignity of the individual be exalted. Of
course, criticism does not authorize defamation. Nevertheless, as the individual is less
than the State, so must expected criticism be born for the common good? Rising
superior to any official, or set of officials, to the Chief Executive, to the Legislature, to
the Judiciary - to any or all the agencies of Government - public opinion should be the
constant source of liberty and democracy. (citations omitted)
The demand to protect public opinion for the welfare of society and the orderly administration
of government inevitably lead to the adoption of the doctrine of privileged communication. A
privileged communication may be either absolutely privileged or qualifiedly privileged. Absolutely
privileged communications are those which are not actionable even if the author has acted in bad faith.
An example is found in Sec. 11, Art. VI of the 1987 Constitution which exempts a member of Congress
from liability for any speech or debate in the Congress or in any Committee thereof. Upon the other
hand, qualifiedly privileged communications containing defamatory imputations are not actionable
unless found to have been made without good intention or justifiable motive. To this genre belong
private communications and fair and true report without any comments or remarks. [24]
The appellate court correctly ruled that the petitioners story is not privileged in character, for it
is neither private communication nor a fair and true report without any comments or remarks.
US v. Bustos defined the concept of private communication thus: A communication made bona
fide upon any subject-matter in which the party communicating has an interest, or in reference to
which he has a duty, is privileged, if made to a person having a corresponding interest or duty,
although it contained criminatory matter which without this privilege would be slanderous and
actionable. A pertinent illustration of the application of qualified privilege is a complaint made in good
faith and without malice in regard to the character or conduct of a public official when addressed to an
officer or a board having some interest or duty in the matter.[25]
This defense is unavailing to petitioners. In Daez v. Court of Appeals[26] we held that:
As a rule, it is the right and duty of a citizen to make a complaint of any
misconduct on the part of public officials, which comes to his notice, to those charged
with supervision over them. Such a communication is qualifiedly privileged and the
author is not guilty of libel. The rule on privilege, however, imposes an additional
requirement. Such complaints should be addressed solely to some official having
jurisdiction to inquire into the charges, or power to redress the grievance or has some
duty to perform or interest in connection therewith . (emphasis supplied)
In the instant case, even if we assume that the letter written by the spurious Atty. Angara is
privileged communication, it lost its character as such when the matter was published in the newspaper
and circulated among the general population. A written letter containing libelous matter cannot be
 C o n s t i t u t i o n a l L a w I I A r t . I I I S e c . 3 a n d 4 P a g e | 81

classified as privileged when it is published and circulated in public, [27] which was what the petitioners
did in this case.
Neither is the news item a fair and true report without any comments or remarks of any
judicial, legislative or other official proceedings; there is in fact no proceeding to speak of. Nor is the
article related to any act performed by public officers in the exercise of their functions, for it concerns
only false imputations against Thoenen, a private individual seeking a quiet life.
The petitioners also claim to have made the report out of a social and moral duty to inform the
public on matters of general interest.
In Borjal v. Court of Appeals, we stated that the enumeration under Art. 354 is not an
exclusive list of qualifiedly privileged communications since fair commentaries on matters of public
interest are likewise privileged. We stated that the doctrine of fair commentaries means that while in
general every discreditable imputation publicly made is deemed false, because every man is presumed
innocent until his guilt is judicially proved, and every false imputation is deemed malicious,
nevertheless, when the discreditable imputation is directed against a public person in his public
capacity, it is not necessarily actionable. In order that such discreditable imputation to a public official
may be actionable, it must either be a false allegation of fact or a comment based on a false
supposition.[28]
Again, this argument is unavailing to the petitioners. As we said, the respondent is a private
individual, and not a public official or public figure. We are persuaded by the reasoning of the United
States Supreme Court in Gertz v. Robert Welch, Inc.,[29] that a newspaper or broadcaster publishing
defamatory falsehoods about an individual who is neither a public official nor a public
figure may not claim a constitutional privilege against liability, for injury inflicted, even if the
falsehood arose in a discussion of public interest.[30]
Having established that the article cannot be considered as privileged communication, malice
is therefore presumed, and the fourth requisite for the imputation of libel to attach to the petitioners in
this case is met. The news article is therefore defamatory and is not within the realm of protected
speech. There is no longer a need to discuss the other assignment of errors, save for the amount of
damages to which respondent is entitled.
Although it has been stressed that a newspaper should not be held to account to a point of
suppression for honest mistakes, or imperfection in the choice of words, [32] even the most liberal view
of free speech has never countenanced the publication of falsehoods, especially the persistent and
unmitigated dissemination of patent lies.[33] There is no constitutional value in false statements of fact.
Neither the intentional lie nor the careless error materially advances societys interest in uninhibited,
robust, and wide-open debate.[34] The use of the known lie as a tool is at once at odds with the
premises of democratic government and with the orderly manner in which economic, social, or political
change is to be effected. Calculated falsehood falls into that class of utterances which are no essential
part of any exposition of ideas, and are of such slight social value as a step to truth that any benefit
that may be derived from them is clearly outweighed by the social interest in order and morality The
knowingly false statement and the false statement made with reckless disregard of the truth, do not
enjoy constitutional protection (citations omitted).[35]
The legitimate state interest underlying the law of libel is the compensation of the individuals
for the harm inflicted upon them by defamatory falsehood. After all, the individuals right to protection
of his own good name reflects no more than our basic concept of the essential dignity and worth of
every human being a concept at the root of any decent system of ordered liberty. [36]
The appellate court awarded Thoenen moral damages of P200,000.00, exemplary damages
of P50,000.00 and legal fees of P30,000.00, to be borne jointly and severally by the herein petitioners.
In Guevarra v. Almario,[37] we noted that the damages in a libel case must depend upon the facts of the
particular case and the sound discretion of the court, although appellate courts were more likely to
reduce damages for libel than to increase them.[38] So it is in this case.
WHEREFORE, the Decision of the Court of Appeals of 17 January 2000 reversing the Decision
of the Regional Trial Court, Branch 62, Makati City, of 31 August 1994 is hereby AFFIRMED, subject to
the modification that petitioners are ordered to pay, jointly and severally, moral damages in the sum
of P100,000.00, exemplary damages of P30,000.00, and legal fees of P20,000.00. No costs.
SO ORDERED.

In Policarpio v. Manila Times Publishing Co., Inc.,[31] we awarded damages where the
defendants deliberately presented a private individual in a worse light that what she actually was, and
where other factual errors were not prevented although defendants had the means to ascertain the
veracity of their report. Such are the facts obtaining here.

We must point out that Lees brief news item contained falsehoods on two levels. On its face,
her statement that residents of BF Homes had asked the Bureau of Immigration to deport a Swiss who
allegedly shoots neighbors pets is patently untrue since the letter of the spurious Atty. Angara was a
mere request for verification of Thoenens status as a foreign resident. Lees article, moreover, is also
untrue, in that the events she reported never happened. The respondent had never shot any of his
neighbors pets, no complaints had been lodged against him by his neighbors, and no deportation
proceedings had been initiated against him. Worse, the author of Lees main source of information, Atty.
Efren Angara, apparently either does not exist, or is not a lawyer. Petitioner Lee would have been
enlightened on substantially all these matters had she but tried to contact either Angara or Thoenen.

THIRD DIVISION
G.R. No. 159751 December 6, 2006
GAUDENCIO E. FERNANDO and RUDY ESTORNINOS, petitioners,
vs.
COURT OF APPEALS, respondent.
DECISION
QUISUMBING, J.:
This petition for review on certiorari assails the Decision 1 dated March 21, 2003 and the
Resolution dated September 2, 2003, of the Court of Appeals in CA-G.R. CR No. 25796, which affirmed
the Decision of the Regional Trial Court of Manila (RTC), Branch 21, in Criminal Case No. 99-176582.
The RTC convicted Gaudencio E. Fernando and Rudy Estorninos for violation of Article 201 2 of the
Revised Penal Code, as amended by Presidential Decree Nos. 960 and 969, and sentenced each to
imprisonment of four (4) years and one (1) day to six (6) years of prision correccional, and to pay the
fine of P6,000 and cost of suit.
The facts as culled from the records are as follows.
Acting on reports of sale and distribution of pornographic materials, officers of the Philippine National
Police Criminal Investigation and Detection Group in the National Capital Region (PNP-CIDG NCR)
conducted police surveillance on the store bearing the name of Gaudencio E. Fernando Music Fair
(Music Fair). On May 5, 1999, Judge Perfecto Laguio of the Regional Trial Court of Manila, Branch 19,
issued Search Warrant No. 99-1216 for violation of Article 201 of the Revised Penal Code against
petitioner Gaudencio E. Fernando and a certain Warren Tingchuy. The warrant ordered the search of
Gaudencio E. Fernando Music Fair at 564 Quezon Blvd., corner Zigay Street, Quiapo, Manila, and the
seizure of the following items:
a. Copies of New Rave Magazines with nude obscene pictures;
b. Copies of IOU Penthouse Magazine with nude obscene pictures;
c. Copies of Hustler International Magazine with nude obscene pictures; and
d. Copies of VHS tapes containing pornographic shows.3
C o n s t i t u t i o n a l L a w I I A r t . I I I S e c . 3 a n d 4 P a g e | 82
On the same day, police officers of the PNP-CIDG NCR served the warrant on Rudy Estorninos, who,
according to the prosecution, introduced himself as the store attendant of Music Fair. The police
searched the premises and confiscated twenty-five (25) VHS tapes and ten (10) different magazines,
which they deemed pornographic.
On September 13, 1999, petitioners with Warren Tingchuy, were charged in an Information which reads
as follows:
That on or about May 5, 1999, in the City of Manila, Philippines, the said accused, did then
and there willfully, unlawfully, feloniously, publicly and jointly exhibit indecent or immoral acts,
scenes or shows at Music Fair, located at 564 Quezon Blvd., corner Zigay [S]t., Quiapo[,] this
City[,] by then and there selling and exhibiting obscene copies of x-rated VHS Tapes, lewd
films depicting men and women having sexual intercourse[,] lewd photographs of nude men
and women in explicating (sic) positions which acts serve no other purpose but to satisfy the
market for lust or pornography to public view.
Contrary to law.4
When arraigned, petitioners and Tingchuy pleaded not guilty to the offense charged. Thereafter, trial
ensued.
The prosecution offered the confiscated materials in evidence and presented the following witnesses:
Police Inspector Rodolfo L. Tababan, SPO4 Rolando Buenaventura and Barangay Chairperson Socorro
Lipana, who were all present during the raid. After the prosecution presented its evidence, the counsel
for the accused moved for leave of court to file a demurrer to evidence, which the court granted. On
October 5, 2000, the RTC however denied the demurrer to evidence and scheduled the reception of
evidence for the accused. A motion for reconsideration was likewise denied.
Thereafter, the accused waived their right to present evidence and instead submitted the case for
decision.5
The RTC acquitted Tingchuy for lack of evidence to prove his guilt, but convicted herein petitioners as
follows:
WHEREFORE, premises considered, the Court finds accused GAUDENCIO FERNANDO and
RUDY ESTORNINOS GUILTY beyond reasonable doubt of the crime charged and are hereby
sentenced to suffer the indeterminate penalty of FOUR (4) YEARS and ONE (1) DAY as
minimum to SIX (6) YEARS of prision correccional as maximum, to pay fine of P6,000.00 each
and to pay the cost.
For failure of the prosecution to prove the guilt of accused WARREN TINGCHUY beyond
reasonable doubt, he is hereby ACQUITTED of the crime charged.

The VHS tapes and the nine (9) magazines utilized as evidence in this case are hereby
confiscated in favor of the government.
SO ORDERED.6
Petitioners appealed to the Court of Appeals. But the appellate courtlatter affirmed in toto the decision
of the trial court, as follows,
WHEREFORE, finding no reversible error on the part of the trial court, the decision appealed
from is AFFIRMED IN TOTO.
Costs against accused-appellants.
7 Kottinger.14 There the Court defined obscenity as something which is offensive to chastity, decency or
SO ORDERED.
Hence the instant petition assigning the following errors:
I. Respondent court erred in convicting petitioner Fernando even if he was not present at the
time of the raid
II. Respondent erred in convicting petitioner Estorninos who was not doing anything illegal at
the time of the raid.8
Simply, the issue in this case is whether the appellate court erred in affirming the petitioners’
conviction.
Petitioners contend that the prosecution failed to prove that at the time of the search, they were selling
pornographic materials. Fernando contends that since he was not charged as the owner of an
establishment selling obscene materials, the prosecution must prove that he was present during the
raid and that he was selling the said materials. Moreover, he contends that the appellate court’s reason
for convicting him, on a presumption of continuing ownership shown by an expired mayor’s permit, has
no sufficient basis since the prosecution failed to prove his ownership of the establishment. Estorninos,
on the other hand, insists that he was not an attendant in Music Fair, nor did he introduce himself so. 9
The Solicitor General counters that owners of establishments selling obscene publications are expressly
held liable under Article 201, and petitioner Fernando’s ownership was sufficiently proven. As the
owner, according to the Solicitor General, Fernando was naturally a seller of the prohibited materials
and liable under the Information. The Solicitor General also maintains that Estorninos was identified by
Barangay Chairperson Socorro Lipana as the store attendant, thus he was likewise liable. 10
At the outset, we note that the trial court gave petitionersthem the opportunity to adduce present their
evidence to disprove refute the prosecution’s evidence. 11 . Instead, they waived their right to present
C o n s t i t u t i o n a l L a w I I A r t . I I I S e c . 3 a n d 4 P a g e | 83
evidence and opted to submitted the case for decision.a1 12 The trial court therefore resolved the case
on the basis of prosecution’s evidence against the petitioners.
As obscenity is an unprotected speech which the State has the right to regulate, the State in pursuing
its mandate to protect, as parens patriae, the public from obscene, immoral and indecent materials
must justify the regulation or limitation.
One such regulation is Article 201 of the Revised Penal Code. To be held liable, the prosecution must
prove that (a) the materials, publication, picture or literature are obscene; and (b) the offender sold,
exhibited, published or gave away such materials.13 Necessarily, that the confiscated materials are
obscene must be proved.
Almost a century has passed since the Court first attempted to define obscenity in People v.
delicacy. The test to determine the existence of obscenity is, whether the tendency of the matter
charged as obscene, is to deprave or corrupt those whose minds are open to such immoral influences
and into whose hands a publication or other article charged as being obscene may fall. 15 Another test
according to Kottinger is "that which shocks the ordinary and common sense of men as an
indecency."16 But, Kottinger hastened to say that whether a picture is obscene or indecent must depend
upon the circumstances of the case, and that ultimately, the question is to be decided by the judgment
of the aggregate sense of the community reached by it. 17
Thereafter, the Court in People v. Go Pin18 and People v. Padan y Alova, et al.,19 involving a prosecution
under Article 201 of the Revised Penal Code, laid the tests which did little to clearly draw the fine lines
of obscenity.
In People v. Go Pin, the Court said:
If such pictures, sculptures and paintings are shown in art exhibits and art galleries for the
cause of art, to be viewed and appreciated by people interested in art, there would be no
offense committed. However, the pictures here in question were used not exactly for art’s sake
but rather for commercial purposes. In other words, the supposed artistic qualities of said
pictures were being commercialized so that the cause of art was of secondary or minor
importance. Gain and profit would appear to have been the main, if not the exclusive
consideration in their exhibition; and it would not be surprising if the persons who went to see
those pictures and paid entrance fees for the privilege of doing so, were not exactly artists and
persons interested in art and who generally go to art exhibitions and galleries to satisfy and
improve their artistic tastes, but rather people desirous of satisfying their morbid curiosity and
taste, and lust, and for love [of] excitement, including the youth who because of their
immaturity are not in a position to resist and shield themselves from the ill and perverting
effects of these pictures.20
People v. Padan y Alova, et al. in a way reaffirmed the standards set in Go Pin but with its own test of
"redeeming feature." The Court therein said that:

[A]n actual exhibition of the sexual act, preceded by acts of lasciviousness, can have no
redeeming feature. In it, there is no room for art. One can see nothing in it but clear and
unmitigated obscenity, indecency, and an offense to public morals, inspiring and causing as it
does, nothing but lust and lewdness, and exerting a corrupting influence specially on the youth
of the land.21
Notably, the Court in the later case of Gonzales v. Kalaw Katigbak,22 involving motion pictures, still
applied the "contemporary community standards" of Kottinger but departed from the rulings
of Kottinger, Go Pin and Padan y Alova in that the Court measures obscenity in terms of the "dominant
theme" of the material taken as a "whole" rather than in isolated passages.
Later, in Pita v. Court of Appeals, concerning alleged pornographic publications, the Court recognized
that Kottinger failed to afford a conclusive definition of obscenity, and that both Go Pin and Padan y
Alova raised more questions than answers such as, whether the absence or presence of artists and
persons interested in art and who generally go to art exhibitions and galleries to satisfy and improve
their artistic tastes, determine what art is; or that if they find inspiration in the exhibitions, whether
such exhibitions cease to be obscene.23 Go Pin and Padan y Alova gave too much latitude for judicial
arbitrament, which has permitted ad lib of ideas and "two-cents worths" among judges as to what is
obscene or what is art.24
The Court in Pita also emphasized the difficulty of the question and pointed out how hazy jurisprudence
is on obscenity and how jurisprudence actually failed to settle questions on the matter. Significantly, the
dynamism of human civilization does not help at all. It is evident that individual tastes develop, adapt to
wide-ranging influences, and keep in step with the rapid advance of civilization. 25 It seems futile at this
point to formulate a perfect definition of obscenity that shall apply in all cases.
There is no perfect definition of "obscenity" but the latest word is that of Miller v. California which
established basic guidelines, to wit: (a) whether to the average person, applying contemporary
standards would find the work, taken as a whole, appeals to the prurient interest; (b) whether the work
depicts or describes, in a patently offensive way, sexual conduct specifically defined by the applicable
state law; and (c) whether the work, taken as a whole, lacks serious literary, artistic, political, or
scientific value.26 But, it would be a serious misreading of Miller to conclude that the trier of facts has
the unbridled discretion in determining what is "patently offensive."27 No one will be subject to
prosecution for the sale or exposure of obscene materials unless these materials depict or describe
patently offensive "hard core" sexual conduct.28 Examples included (a) patently offensive
representations or descriptions of ultimate sexual acts, normal or perverted, actual or simulated; and
(b) patently offensive representations or descriptions of masturbation, excretory functions, and lewd
exhibition of the genitals.29 What remains clear is that obscenity is an issue proper for judicial
determination and should be treated on a case to case basis and on the judge’s sound discretion.
In this case, the trial court found the confiscated materials obscene and the Court of Appeals affirmed
such findings. The trial court in ruling that the confiscated materials are obscene, reasoned as follows:
C o n s t i t u t i o n a l L a w I I A r t . I I I S e c . 3 a n d 4 P a g e | 84
Are the magazines and VHS tapes confiscated by the raiding team obscene or offensive to
morals? . . .
Pictures of men and women in the nude doing the sexual act appearing in the nine (9)
confiscated magazines namely Dalaga, Penthouse, Swank, Erotic, Rave, Playhouse, Gallery and
two (2) issues of QUI are offensive to morals and are made and shown not for the sake of art
but rather for commercial purposes, that is gain and profit as the exclusive consideration in
their exhibition. The pictures in the magazine exhibited indecent and immoral scenes and
acts…The exhibition of the sexual act in their magazines is but a clear and unmitigated
obscenity, indecency and an offense to public morals, inspiring…lust and lewdness, exerting a
corrupting influence especially on the youth. (Citations omitted)
The VHS tapes also [exhibit] nude men and women doing the sexual intercourse. The tape
entitled "Kahit sa Pangarap Lang" with Myra Manibog as the actress shows the naked body of
the actress. The tape exhibited indecent and immoral scenes and acts. Her dancing
movements excited the sexual instinct of her male audience. The motive may be innocent, but
the performance was revolting and shocking to good minds...
In one (1) case the Supreme Court ruled:
Since the persons who went to see those pictures and paid entrance fees were
usually not artists or persons interested in art to satisfy and inspire their artistic tastes
but persons who are desirous of satisfying their morbid curiosity, taste and lust and
for [love] of excitement, including the youth who because of their immaturity are not
in a position to resist and shield themselves from the ill and perverting effects of the
pictures, the display of such pictures for commercial purposes is a violation of Art.
201. If those pictures were shown in art exhibits and art galleries for the cause of art,
to be viewed and appreciated by people interested in art, there would be no offense
committed (People vs. Go Pin, 97 Phil 418).
[B]ut this is not so in this case.30
Findings of fact of the Court of Appeals affirming that of the trial court are accorded great respect, even
by this Court, unless such findings are patently unsupported by the evidence on record or the judgment
itself is based on misapprehension of facts.31 In this case, petitioners neither presented contrary
evidence nor questioned the trial court’s findings. There is also no showing that the trial court, in
finding the materials obscene, was arbitrary.
Did petitioners participate in the distribution and exhibition of obscene materials?
We emphasize that mere possession of obscene materials, without intention to sell, exhibit, or give
them away, is not punishable under Article 201, considering the purpose of the law is to prohibit the
dissemination of obscene materials to the public. The offense in any of the forms under Article 201 is
committed only when there is publicity.32The law does not require that a person be caught in the act of
 C o n s t i t u t i o n a l L a w I I A r t . I I I S e c . 3 a n d 4 P a g e | 85

selling, giving away or exhibiting obscene materials to be liable, for as long as the said materials are
offered for sale, displayed or exhibited to the public. In the present case, we find that petitioners are
engaged in selling and exhibiting obscene materials.

Notably, the subject premises of the search warrant was the Gaudencio E. Fernando Music Fair, named
after petitioner Fernando.33 The mayor’s permit was under his name. Even his bail bond shows that Hhe
lives in the same place.34 Moreover, the mayor’s permit dated August 8, 1996, shows that he is the
owner/operator of the store.35 While the mayor’s permit had already expired, it does not negate the
fact that Fernando owned and operated the establishment. It would be absurd to make his failure to
renew his business permit and illegal operation a shield from prosecution of an unlawful act.
Furthermore, when he preferred not to present contrary evidence, the things which he possessed were
presumptively his.36

Petitioner Estorninos is likewise liable as the store attendant actively engaged in selling and exhibiting
the obscene materials. Prosecution witness Police Inspector Tababan, who led the PNP-CIDG NCR that
conducted the search, identified him as the store attendant upon whom the search warrant was
served.37 Tababan had no motive for testifying falsely against Estorninos and we uphold the
presumption of regularity in the performance of his duties. Lastly, this Court accords great respect to
and treats with finality the findings of the trial court on the matter of credibility of witnesses, absent
any palpable error or arbitrariness in their findings. 38 In our view, no reversible error was committed by
the appellate court as well as the trial court in finding the herein petitioners guilty as charged.

WHEREFORE, the Decision dated March 21, 2003 and the Resolution dated September 2, 2003, of the
Court of Appeals affirming the Decision of the Regional Trial Court of Manila, Branch 21, in Criminal
Case No. 99-176582 are hereby AFFIRMED.

SO ORDERED.

Carpio, Carpio Morales, Tinga, and Velasco, Jr., JJ., concur.

 C o n s t i t u t i o n a l L a w I I A r t . I I I S e c . 3 a n d 4 P a g e | 86

Republic of the Philippines however, in accordance with the recommendation of the police authorities, that "a permit may be
SUPREME COURT issued for the rally if it is to be held at the Rizal Coliseum or any other enclosed area where the safety
Manila of the participants themselves and the general public may be ensured." 8

EN BANC The oral argument was heard on October 25, 1983, the very same day the answer was filed. The Court
then deliberated on the matter. That same afternoon, a minute resolution was issued by the Court
G.R. No. L-65366 November 9, 1983 granting the mandatory injunction prayed for on the ground that there was no showing of the existence
of a clear and present danger of a substantive evil that could justify the denial of a permit. On this
point, the Court was unanimous, but there was a dissent by Justice Aquino on the ground that the
JOSE B.L. REYES, in behalf of the ANTI-BASES COALITION (ABC), petitioner,
holding of a rally in front of the US Embassy would be violative of Ordinance No. 7295 of the City of
vs.
Manila. The last sentence of such minute resolution reads: "This resolution is without prejudice to a
RAMON BAGATSING, as Mayor of the City of Manila, respondent.
more extended opinion." 9 Hence this detailed exposition of the Court's stand on the matter.

Lorenzo M. Tañada Jose W. Diokno and Haydee B. Yorac for petitioner. 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:
The Solicitor General for respondent. "No law shall be passed abridging the freedom of speech, or of the press, or the right of the people
peaceably to assemble and petition the Government for redress of grievances." 10 Free speech, like free
FERNANDO, C.J.:ñé+.£ªwph!1 press, may be Identified with the liberty to discuss publicly and truthfully any matter of public concern
without censorship or punishment. 11 There is to be then no previous restraint on the communication of
views or subsequent liability whether in libel suits, 12 prosecution for sedition, 13 or action for
This Court, in this case of first impression, at least as to some aspects, is called upon to delineate the
damages, 14 or contempt proceedings 15 unless there be a clear and present danger of a substantive
boundaries of the protected area of the cognate rights to free speech and peaceable
evil that [the State] has a right to prevent." 16 Freedom of assembly connotes the right people to meet
assembly, 1 against an alleged intrusion by respondent Mayor Ramon Bagatsing. Petitioner, retired
peaceably for consultation and discussion of matters Of public concern.17 It is entitled to be accorded
Justice JB L. Reyes, on behalf of the Anti-Bases Coalition sought a permit from the City of Manila to
the utmost deference and respect. It is hot to be limited, much less denied, except on a showing, as 's
hold a peaceful march and rally on October 26, 1983 from 2:00 to 5:00 in the afternoon, starting from
the case with freedom of expression, of a clear and present danger of a substantive evil that the state
the Luneta, a public park, to the gates of the United States Embassy, hardly two blocks away. Once
has a right to prevent. 18 Even prior to the 1935 Constitution, Justice Maicolm had occasion to stress
there, and in an open space of public property, a short program would be held. 2 During the course of
that it is a necessary consequence of our republican institutions and complements the right of free
the oral argument, 3 it was stated that after the delivery of two brief speeches, a petition based on the
speech. 19 To paraphrase opinion of Justice Rutledge speaking for the majority of the American
resolution adopted on the last day by the International Conference for General Disbarmament, World
Supreme Court Thomas v. Collins, 20 it was not by accident or coincidence that the right to freedom of
Peace and the Removal of All Foreign Military Bases held in Manila, would be presented to a
speech and of the press were toupled in a single guarantee with the and to petition the rights of the
representative of the Embassy or any of its personnel who may be there so that it may be delivered to
people peaceably to assemble and to petition the government for redress of grievances. All these rights,
the United States Ambassador. The march would be attended by the local and foreign participants of
while not Identical, are inseparable. the every case, therefo re there is a limitation placed on the
such conference. There was likewise an assurance in the petition that in the exercise of the
exercise of this right, the judiciary is called upon to examine the effects of the challenged governmental
constitutional rights to free speech and assembly, all the necessary steps would be taken by it "to
actuation. The sole justification for a limitation on the exercise of this right, so fundamental to the
ensure a peaceful march and rally." 4
maintenance of democratic institutions, is the danger, of a character both grave and imminent, of a
serious evil to public safety, public morals, public health, or any other legitimate public interest. 21
The filing of this suit for mandamus with alternative prayer for writ of preliminary mandatory injunction
on October 20, 1983 was due to the fact that as of that date, petitioner had not been informed of any
2. Nowhere is the rationale that underlies the freedom of expression and peaceable assembly better
action taken on his request on behalf of the organization to hold a rally. On October 25, 1983, the
expressed than in this excerpt from an opinion of Justice Frankfurter: "It must never be forgotten,
answer of respondent Mayor was filed on his behalf by Assistant Solicitor General Eduardo G.
however, that the Bill of Rights was the child of the Enlightenment. Back of the guaranty of free speech
Montenegro. 5 It turned out that on October 19, such permit was denied. Petitioner was unaware of
lay faith in the power of an appeal to reason by all the peaceful means for gaining access to the mind.
such a fact as the denial was sent by ordinary mail. The reason for refusing a permit was due to police
It was in order to avert force and explosions due to restrictions upon rational modes of communication
intelligence reports which strongly militate against the advisability of issuing such permit at this time
that the guaranty of free speech was given a generous scope. But utterance in a context of violence
and at the place applied for." 6 To be more specific, reference was made to persistent intelligence
can lose its significance as an appeal to reason and become part of an instrument of force. Such
reports affirm[ing] the plans of subversive/criminal elements to infiltrate and/or disrupt any assembly or
utterance was not meant to be sheltered by the Constitution." 22 What was rightfully stressed is the
congregations where a large number of people is expected to attend." 7 Respondent Mayor suggested,

abandonment of reason, the utterance, whether verbal or printed, being in a context of violence. It
must always be remembered that this right likewise provides for a safety valve, allowing parties the
opportunity to give vent to their-views, even if contrary to the prevailing climate of opinion. For if the
peaceful means of communication cannot be availed of, resort to non-peaceful means may be the only
alternative. Nor is this the sole reason for the expression of dissent. It means more than just the right
to be heard of the person who feels aggrieved or who is dissatisfied with things as they are. Its value
may lie in the fact that there may be something worth hearing from the dissenter. That is to ensure a
true ferment of Ideas. There are, of course, well-defined limits. What is guaranteed is peaceable
assembly. One may not advocate disorder in the name of protest, much less preach rebellion under the
cloak of dissent. The Constitution frowns on disorder or tumult attending a rally or assembly. resort to
force is ruled out and outbreaks of violence to be avoided. The utmost calm though is not required. As
pointed out in an early Philippine case, penned in 1907 to be precise, United States v. Apurado: 23 "It is
rather to be expected that more or less disorder will mark the public assembly of the people to protest
against grievances whether real or imaginary, because on such occasions feeling is always wrought to a
high pitch of excitement, and the greater the grievance and the more intense the feeling, the less
perfect, as a rule, will be the disciplinary control of the leaders over their irresponsible followers." 24 It
bears repeating that for the constitutional right to be invoked, riotous conduct, injury to property, and
acts of vandalism must be avoided, To give free rein to one's destructive urges is to call for
condemnation. It is to make a mockery of the high estate occupied by intellectual liberty in our scheme
of values.
3. There can be no legal objection, absent the existence of a clear and present danger of a substantive
evil, on the choice of Luneta as the place where the peace rally would start. The Philippines is
committed to the view expressed in the plurality opinion, of 1939 vintage, of Justice Roberts in Hague
v. CIO: 25 Whenever the title of streets and parks may rest, they have immemorially been held in trust
for the use of the public and, time out of mind, have been used for purposes of assembly,
communicating thoughts between citizens, and discussing public questions. Such use of the streets and
public places has, from ancient times, been a part of the privileges, immunities, rights, and liberties of
citizens. The privilege of a citizen of the United States to use the streets and parks for communication
of views on national questions may be regulated in the interest of all; it is not absolute, but relative,
and must be exercised in subordination to the general comfort and convenience, and in consonance
with peace and good order; but it must not, in the guise of regulation, be abridged or denied. 26 The
above excerpt was quoted with approval in Primicias v. Fugoso. 27 Primicias made explicit what was
implicit in Municipality of Cavite v. Rojas," 28 a 1915 decision, where this Court categorically affirmed
that plazas or parks and streets are outside the commerce of man and thus nullified a contract that
leased Plaza Soledad of plaintiff-municipality. Reference was made to such plaza "being a promenade
for public use," 29 which certainly is not the only purpose that it could serve. To repeat, there can be no
valid reason why a permit should not be granted for the or oposed march and rally starting from a
public dark 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 block-away at the Roxas Boulevard. Primicias v. Fugoso has resolved any lurking doubt on
the matter. In holding that the then Mayor Fugoso of the City of Manila should grant a permit for a
public meeting at Plaza Miranda in Quiapo, this Court categorically declared: "Our conclusion finds
support in the decision in the case of Willis Cox vs. State of New Hampshire, 312 U.S., 569. In that
C o n s t i t u t i o n a l L a w I I A r t . I I I S e c . 3 a n d 4 P a g e | 87
case, the statute of New Hampshire P. L. chap. 145, section 2, providing that 'no parade or procession
upon any ground abutting thereon, shall 'De permitted unless a special license therefor shall first be
explained from the selectmen of the town or from licensing committee,' was construed by the Supreme
Court of New Hampshire as not conferring upon the licensing board unfettered discretion to refuse to
grant the license, and held valid. And the Supreme Court of the United States, in its decision (1941)
penned by Chief Justice Hughes affirming the judgment of the State Supreme Court, held that 'a statute
requiring persons using the public streets for a parade or procession to procure a special license
therefor from the local authorities is not an unconstitutional abridgment of the rights of assembly or of
freedom of speech and press, where, as the statute is construed by the state courts, the licensing
authorities are strictly limited, in the issuance of licenses, to a consideration of the time, place, and
manner of the parade or procession, with a view to conserving the public convenience and of affording
an opportunity to provide proper policing, and are not invested with arbitrary discretion to issue or
refuse license, ... " 30 Nor should the point made by Chief Justice Hughes in a subsequent portion of the
opinion be ignored, "Civil liberties, as guaranteed by the Constitution, imply the existence of an
organized society maintaining public order without which liberty itself would be lost in the excesses of
unrestricted abuses. The authority of a municipality to impose regulations in order to assure the safety
and convenience of the people in the use of public highways has never been regarded as inconsistent
with civil liberties but rather as one of the means of safeguarding the good order upon which they
ultimately depend. The control of travel on the streets of cities is the most familiar illustration of this
recognition of social need. Where a restriction of the use of highways in that relation is 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." 31
5. There is a novel aspect to this case, If the rally were confined to Luneta, no question, as noted,
would have arisen. So, too, if the march would end at another park. As previously mentioned though,
there would be a short program upon reaching the public space between the two gates of the United
States Embassy at Roxas Boulevard. That would be followed by the handing over of a petition based on
the resolution adopted at the closing session of the Anti-Bases Coalition. The Philippines is a signatory
of the Vienna Convention on Diplomatic Relations adopted in 1961. It was concurred in by the then
Philippine Senate on May 3, 1965 and the instrument of ratification was signed by the President on
October 11, 1965, and was thereafter deposited with the Secretary General of the United Nations on
November 15. As of that date then, it was binding on the Philippines. The second paragraph of the
Article 22 reads: "2. The receiving State is under a special duty to take appropriate steps to protect the
premises of the mission against any intrusion or damage and to prevent any disturbance of the peace
of the mission or impairment of its dignity. " 32 The Constitution "adopts the generally accepted
principles of international law as part of the law of the land. ..." 33 To the extent that the Vienna
Convention is a restatement of the generally accepted principles of international law, it should be a part
of the law of the land. 34 That being the case, if there were a clear and present danger of any intrusion
or damage, or disturbance of the peace of the mission, or impairment of its dignity, there would be a
justification for the denial of the permit insofar as the terminal point would be the Embassy. Moreover,
respondent Mayor relied on Ordinance No. 7295 of the City of Manila prohibiting the holding or staging
of rallies or demonstrations within a radius of five hundred (500) feet from any foreign mission or
chancery and for other purposes. Unless the ordinance is nullified, or declared ultra vires, its invocation
as a defense is understandable but not decisive, in view of the primacy accorded the constitutional
rights of free speech and peaceable assembly. Even if shown then to be applicable, that question the
confronts this Court.

6. There is merit to the observation that except as to the novel aspects of a litigation, the judgment
must be confined within the limits of previous decisions. The law declared on past occasions is, on the
whole, a safe guide, So it has been here. Hence, as noted, on the afternoon of the hearing, October 25,
1983, this Court issued the minute resolution granting the mandatory injunction allowing the proposed
march and rally scheduled for the next day. That conclusion was inevitable ill the absence of a clear and
present danger of a substantive, evil to a legitimate public interest. There was no justification then to
deny the exercise of the constitutional rights of tree speech and peaceable assembly. These rights are
assured by our Constitution and the Universal Declaration of Human Rights. 35 The participants to such
assembly, composed primarily of those in attendance at the International Conference for General
Disbarmament, World Peace and the Removal of All Foreign Military Bases would start from the Luneta.
proceeding through Roxas Boulevard to the gates of the United States Embassy located at the same
street. To repeat, it is settled law that as to public places, especially so as to parks and streets, there is
freedom of access. Nor is their use dependent on who is the applicant for the permit, whether an
individual or a group. If it were, then the freedom of access becomes discriminatory access, giving rise
to an equal protection question. The principle under American doctrines was given utterance by Chief
Justice Hughes in these words: "The question, if the rights of free speech and peaceable assembly are
to be preserved, is not as to the auspices under which the meeting is held but as to its purpose; not as
to The relations of the speakers, but whether their utterances transcend the bounds of the freedom of
speech which the Constitution protects." 36 There could be danger to public peace and safety if such a
gathering were marked by turbulence. That would deprive it of its peaceful character. Even then, only
the guilty parties should be held accountable. It is true that the licensing official, here respondent
Mayor, is not devoid of discretion in determining whether or not a permit would be granted. It is not,
however, unfettered discretion. While prudence requires that there be a realistic appraisal not of what
may possibly occur but of what may probably occur, given all the relevant circumstances, still the
assumption — especially so where the assembly is scheduled for a specific public — place is that the
permit must be for the assembly being held there. The exercise of such a right, in the language of
Justice Roberts, speaking for the American Supreme Court, is not to be "abridged on the plea that it
may be exercised in some other place." 37
7. In fairness to respondent Mayor, he acted on the belief that Navarro v. Villegas 38 and Pagkakaisa ng
Manggagawang Pilipino (PMP.) v. Bagatsing, 39 called for application. While the General rule is that a
permit should recognize the right of the applicants to hold their assembly at a public place of their
choice, another place may be designated by the licensing authority if it be shown that there is a clear
and present danger of a substantive evil if no such change were made. In the Navarro and the
Pagkakaisa decisions, this Court was persuaded that the clear and present danger test was satisfied.
The present situation is quite different. Hence the decision reached by the Court. The mere assertion
that subversives may infiltrate the ranks of the demonstrators does not suffice. Not that it should be
overlooked. There was in this case, however, the assurance of General Narciso Cabrera,
Superintendent, Western Police District, Metropolitan Police Force, that the police force is in a position
to cope with such emergency should it arise That is to comply with its duty to extend protection to the
participants of such peaceable assembly. Also from him came the commendable admission that there
were the least five previous demonstrations at the Bayview hotel Area and Plaza Ferguson in front of
the United States Embassy where no untoward event occurred. It was made clear by petitioner,
through counsel, that no act offensive to the dignity of the United States Mission in the Philippines
would take place and that, as mentioned at the outset of this opinion, "all the necessary steps would be
taken by it 'to ensure a peaceful march and rally.' " 40 Assistant Solicitor General Montenegro expressed
C o n s t i t u t i o n a l L a w I I A r t . I I I S e c . 3 a n d 4 P a g e | 88
the view that the presence of policemen may in itself be a provocation. It is a sufficient answer that
they should stay at a discreet distance, but ever ready and alert to cope with any contingency. There is
no need to repeat what was pointed out by Chief Justice Hughes in Cox that precisely, it is the duty of
the city authorities to provide the proper police protection to those exercising their right to peaceable
assembly and freedom of expression.
8. By way of a summary The applicants for a permit to hold an assembly should inform the licensing
authority of the date, the public place where and the time when it will take place. If it were a private
place, only the consent of the owner or the one entitled to its legal possession is required. Such
application should be filed well ahead in time to enable the public official concerned to appraise
whether there may be valid objections to the grant of the permit or to its grant but at another public
place. It is an indispensable condition to such refusal or modification that the clear and present danger
test be the standard for the decision reached. If he is of the view that there is such an imminent and
grave danger of a substantive evil, the applicants must be heard on the matter. Thereafter, his
decision, whether favorable or adverse, must be transmitted to them at the earliest opportunity. Thus if
so minded, then, 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. Clearly then, to the extent that there may be inconsistencies between
this resolution and that of Navarro v. Villegas, that case is pro tanto modified. So it was made clear in
the original resolution of October 25, 1983.
9. Respondent Mayor posed the issue of the applicability of Ordinance No. 7295 of the City of Manila
prohibiting the holding or staging of rallies or demonstrations within a radius of five hundred (500) feet
from any foreign mission or chancery and for other purposes. It is to be admitted that it finds support
In the previously quoted Article 22 of the Vienna Convention on Diplomatic Relations. There was no
showing, however, that the distance between the chancery and the embassy gate is less than 500 feet.
Even if it could be shown that such a condition is satisfied. it does not follow that respondent Mayor
could legally act the way he did. The validity of his denial of the permit sought could still be challenged.
It could be argued that a case of unconstitutional application of such ordinance to the exercise of the
right of peaceable assembly presents itself. As in this case there was no proof that the distance is less
than 500 feet, the need to pass on that issue was obviated, Should it come, then the qualification and
observation of Justices Makasiar and Plana certainly cannot be summarily brushed aside. The high
estate accorded the rights to free speech and peaceable assembly demands nothing less.
10. Ordinarily, the remedy in cases of this character is to set aside the denial or the modification of the
permit sought and order the respondent official, to grant it. Nonetheless, as there was urgency in this
case, the proposed march and rally being scheduled for the next day after the hearing, this Court. in
the exercise of its conceded authority, granted the mandatory injunction in the resolution of October
25, 1983. It may be noted that the peaceful character of the peace march and rally on October 26 was
not marred by any untoward incident. So it has been in other assemblies held elsewhere. It is quite
 C o n s t i t u t i o n a l L a w I I A r t . I I I S e c . 3 a n d 4 P a g e | 89

reassuring such that both on the part of the national government and the citizens, reason and Republic of the Philippines
moderation have prevailed. That is as it should be. SUPREME COURT
Manila
WHEREFORE, the mandatory injunction prayed for is granted. No costs.
EN BANC
Concepcion, Jr., Guerrero, Melencio-Herrera, Escolin, Relova and Gutierrez, , Jr.,JJ., concur.
G.R. No. L-62270 May 21, 1984
De Castro, J, is on leave.
CRISPIN MALABANAN, EVELIO JALOS, BEN LUTHER LUCAS, SOTERO LEONERO, and JUNE
LEE, petitioners,
vs.
THE HONORABLE ANASTACIO D. RAMENTO, in his capacity as the Director of the National
Capital Region of the Ministry of Education, Culture and Sports, THE GREGORIO ARANETA
UNIVERSITY FOUNDATION; CESAR MIJARES, in his capacity as the President of the
Gregorio Araneta University Foundation, GONZALO DEL ROSARIO, in his capacity as the
Director for Academic Affairs of the Gregorio Araneta University Foundation; TOMAS B.
MESINA, in his capacity as the Dean of Student Affairs of the Gregorio Araneta University
Foundation; ATTY. LEONARDO PADILLA, in his capacity as Chief Legal Counsel & Security
Supervisor of the Gregorio Araneta University Foundation; ATTY. FABLITA AMMAY,
ROSENDO GALVANTE and EUGENIA TAYAO, in their capacities as members of the Ad Hoc
Committee of the Gregorio Araneta University Foundation, respondents.

Honesto N. Salcedo for petitioners.

The Solicitor General and Leonardo G. Padilla & Pablita G. Ammay for respondents.

FERNANDO, CJ.:

The failure to accord respect to the constitutional rights of freedom of peaceable assembly and free
speech is the grievance alleged by petitioners, students of the Gregorio Araneta University Foundation,
in this certiorari, prohibition and mandamus proceeding. The principal respondents are Anastacio D.
Ramento, Director of the National Capital Region of the Ministry of Education, Culture and Sports and
the Gregorio Araneta University Foundation. 1 The nullification of the decision of respondent Ramento
affirming the action taken by respondent Gregorio Araneta University Foundation finding petitioners
guilty of illegal assembly and suspending them is sought in this petition.

The facts are not open to dispute. Petitioners were officers of the Supreme Student Council of
respondent University. They sought and were granted by tile school authorities a permit to hold a
meeting from 8:00 A.M. to 12:00 P.M, on August 27, 1982. Pursuant to such permit, along with other
students, they held a general assembly at the Veterinary Medicine and Animal Science basketball court
(VMAS), the place indicated in such permit, not in the basketball court as therein stated but at the

second floor lobby. At such gathering they manifested in vehement and vigorous language their
opposition to the proposed merger of the Institute of Animal Science with the Institute of Agriculture.
At 10:30 A.M., the same day, they marched toward the Life Science Building and continued their rally.
It was outside the area covered by their permit. They continued their demonstration, giving utterance
to language severely critical of the University authorities and using megaphones in the process. There
was, as a result, disturbance of the classes being held. Also, the non-academic employees, within
hearing distance, stopped their work because of the noise created. They were asked to explain on the
same day why they should not be held liable for holding an illegal assembly. Then on September 9,
1982, they were formed through a memorandum that they were under preventive suspension for their
failure to explain the holding of an illegal assembly in front of the Life Science Building. The validity
thereof was challenged by petitioners both before the Court of First Instance of Rizal in a petition for
mandamus with damages against private respondents 2 and before the Ministry of Education, Culture,
and Sports. On October 20, 1982, respondent Ramento, as Director of the National Capital Region,
found petitioners guilty of the charge of having violated par. 146(c) of the Manual for Private Schools
more specifically their holding of an illegal assembly which was characterized by the violation of the
permit granted resulting in the disturbance of classes and oral defamation. The penalty was suspension
for one academic year. Hence this petition.
On November 16, 1982, this Court issued the following resolution: "Acting on the urgent ex-
parte motion for the immediate issuance of a temporary mandatory order filed by counsel for
petitioners, dated November 12, 1982, the Court Resolved to ISSUE A TEMPORARY RESTRAINING
ORDER enjoining all respondents or any person or persons acting in their place or stead from enforcing
the order of the Ministry of' Education and Culture dated October 20, 1982 finding the petitioners guilty
of the charges against them and suspending them for one (1) academic year with a stern warning that
a commission of the same or another offense will be dealt with utmost severity, effective as of this date
and continuing until otherwise ordered by this Court, thus allowing them to enroll, if so minded. 3
Both public and private respondents submitted their comments. Private respondents prayed for the
dismissal of the petition "for lack of factual and legal basis and likewise [prayed] for the lifting of the
temporary restraining order dated November 16, 1982." 4 Public respondent Ramento, on the other
hand, through the Office of the Solicitor General, prayed for the dismissal of the petition based on the
following conclusion: "Consequently, it is respectfully submitted that respondent Director of the MECS
did not commit any error, much less abused his discretion, when he affirmed the decision of respondent
University finding petitioners guilty of violations of the provisions of the Manual of Regulations for
Private Schools and the Revised Student's Code of Discipline .and ordering their suspension for one (1)
academic school year. However, since said suspension has not been enforced except only briefly,
thereby enabling petitioners Leonero, Jr., Lucas and Malabanan to finish their courses, and allowing
petitioners Lee and Jalos to continue their schooling, if they so desire, this proceeding is now moot and
academic. 5
With the submission of such comments considered as the answers of public and private respondents,
the case was ready for decision.
This petition may be considered moot and academic if viewed solely from the fact that by virtue of the
temporary restraining order issued by this Court petitioners were allowed to enroll in the ensuing
C o n s t i t u t i o n a l L a w I I A r t . I I I S e c . 3 a n d 4 P a g e | 90
semester, with three of them doing so and with the other two equally entitled to do so. Moreover, there
is the added circumstance of more than a year having passed since October 20, 1982 when respondent
Ramento issued the challenged decision suspending them for one year. Nonetheless, with its validity
having been put in issue, for being violative of the constitutional rights of freedom of peaceable
assembly and free speech, there is need to pass squarely on the question raised.
This Court accordingly rules that respect for the constitutional rights of peaceable assembly and free
speech calls for the setting aside of the decision of respondent Ramento, the penalty imposed being
unduly severe. It is true that petitioners held the rally at a place other than that specified in the permit
and continued it longer than the time allowed. Undeniably too, they did disturb the classes and caused
the work of the non-academic personnel to be left undone. Such undesirable consequence could have
been avoided by their holding the assembly in the basketball court as indicated in the permit.
Nonetheless, suspending them for one year is out of proportion to their misdeed. The petition must be
granted and the decision of respondent Ramento nullified, a much lesser penalty being appropriate.
1. As is quite clear from the opinion in Reyes v. Bagatsing, 6 the invocation of the right to freedom of
peaceable assembly carries with it the implication that the right to free speech has likewise been
disregarded. Both are embraced in the concept of freedom of expression which is Identified with the
liberty to discuss publicly and truthfully, any matter of public interest without censorship or punishment
and which "is not to be limited, much less denied, except on a showing ... of a clear and present danger
of a substantive evil that the state has a right to prevent." 7
2. In the above case, a permit was sought to hold a peaceful march and rally from the Luneta public
park to the gates of the united States Embassy, hardly two blocks away, where in an open space of
public property, a short program would be held. Necessarily then, the question of the use of a public
park and of the streets leading to the United States Embassy was before this Court. We held that
streets and parks have immemorially been held in trust for the use of the public and have been used for
purposes of assembly to communicate thoughts between citizens and to discuss public issues. 8
3. The situation here is different. The assembly was to be held not in a public place but in private
premises, property of respondent University. There is in the Reyes opinion as part of the summary this
relevant excerpt: "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." 9 Petitioners did seek
such consent. It was granted. According to the petition: "On August 27, 1982, by virtue of a permit
granted to them by the school administration, the Supreme Student Council where your petitioners are
among the officers, held a General Assembly at the VMAS basketball court of the respondent
university." 10 There was an express admission in the Comment of private respondent University as to
a permit having been granted for petitioners to hold a student assembly. 11 The specific question to be
resolved then is whether on the facts as disclosed resulting in the disciplinary action and the penalty
imposed, there was an infringement of the right to peaceable assembly and its cognate right of free
speech.

4. Petitioners invoke their rights to peaceable assembly and free speech. They are entitled to do so.
They enjoy like the rest of the citizens the freedom to express their views and communicate their
thoughts to those disposed to listen in gatherings such as was held in this case. They do not, to borrow
from the opinion of Justice Fortas in Tinker v. Des Moines Community School District, 12 "shed their
constitutional rights to freedom of speech or expression at the schoolhouse gate." 13While, therefore,
the authority of educational institutions over the conduct of students must be recognized, it cannot go
so far as to be violative of constitutional safeguards. On a more specific level there is persuasive force
to this formulation in the Fortas opinion: "The principal use to which the schools are dedicated is to
accommodate students during prescribed hours for the purpose of certain types of activities. Among
those activities is personal intercommunication among the students. This is not only an inevitable part
of the process of attending school; it is also an important part of the educational process. A student's
rights, therefore, do not embrace merely the classroom hours. When he is in the cafeteria, or on the
playing field, or on the campus during the authorized hours, he may express his opinions, even on
controversial subjects like the conflict in Vietnam, if he does so without 'materially and substantially
interfer[ing] with the requirements of appropriate discipline in the operation of the school' and without
colliding with the rights of others. ... But conduct by the student, in class or out of it, which for any
reason — whether it stems from time, place, or type of behavior — materially disrupts classwork or
involves substantial disorder or invasion of the rights of others is, of course, not immunized by the
constitutional guarantee of freedom of speech." 14
5. As tested by such a standard, what is the verdict on the complaint of petitioners that there was a
disregard of their constitutional rights to peaceable assembly and free speech. It must be in their favor,
but subject to qualification in view of their continuing their demonstration in a place other than that
specified in the permit for a longer period and their making use of megaphones therein, resulting in the
disruption of classes and the stoppage of work by the non-academic personnel in the vicinity of such
assembly.
6. Objection is made by private respondents to the tenor of the speeches by the student leaders. That
there would be a vigorous presentation of views opposed to the proposed merger of the Institute of
Animal Science with the Institute of Agriculture was to be expected. There was no concealment of the
fact that they were against such a move as it confronted them with a serious problem (iisang malaking
suliranin.") 15 They believed that such a merger would result in the increase in tuition fees, an
additional headache for their parents ("isa na naman sakit sa ulo ng ating mga magulang."). 16 If in
the course of such demonstration, with an enthusiastic audience goading them on, utterances,
extremely critical, at times even vitriolic, were let loose, that is quite understandable. Student leaders
are hardly the timid, diffident types. They are likely to be assertive and dogmatic. They would be
ineffective if during a rally they speak in the guarded and judicious language of the academe. At any
rate, even a sympathetic audience is not disposed to accord full credence to their fiery exhortations.
They take into account the excitement of the occasion, the propensity of speakers to exaggerate, the
exuberance of youth, They may give the speakers the benefit of their applause, but with the activity
taking place in the school premises and during the daytime, no clear and present danger of public
disorder is discernible. This is without prejudice to the taking of disciplinary action for conduct, which,
to borrow from Tinker, "materially disrupts classwork or involves substantial disorder or invasion of the
rights of others."
C o n s t i t u t i o n a l L a w I I A r t . I I I S e c . 3 a n d 4 P a g e | 91
7. Nor is this a novel approach to the issue raised by petitioners that they were denied the right to
peaceable assembly. In a 1907 decision, United States v. Apurado, 17 the facts disclosed that shortly
before the municipal council of San Carlos, Occidental Negros, started its session, some five hundred
residents of the municipality assembled near the municipal building, and, upon the opening of the
session, a substantial number of such persons barged into the council chamber, demanding that the
municipal treasurer, the municipal secretary, and the chief of police be dismissed, submitting at the
same time the proposed substitutes. The municipal council gave its conformity. Such individuals were
wholly unarmed except that a few carried canes; the crowd was fairly orderly and well-behaved except
in so far as their pressing into the council chamber during a session of that body could be called
disorder and misbehavior. It turned out that the movement had its origin in religious differences. The
defendant Filomeno Apurado and many other participants were indicted and convicted of sedition in
that they allegedly prevented the municipal government from freely exercising its duties. On appeal, the
Supreme Court reversed. Justice Carson, who penned the opinion, correctly pointed out that "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 form of
punishment, if the purposes which they sought to attain did not happen to be pleasing to the
prosecuting authorities." 18 The principle to be followed is enunciated thus: "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." 19 A careful reading of
this decision is in order before private respondents attach, as they did in their comments, a subversive
character to the rally held by the students under the leadership of petitioners.
8. It does not follow, however, that petitioners can be totally absolved for the events that transpired.
Admittedly, there was a violation of the terms of the permit. The rally was held at a place other than
that specified, in the second floor lobby, rather than the basketball court, of the VMAS building of the
University. Moreover, it was continued longer than the period allowed. According to the decision of
respondent Ramento, the "concerted activity [referring to such assembly] went on until 5:30 p.
m. 20 Private respondents could thus, take disciplinary action. On those facts, however, an admonition,
even a censure-certainly not a suspension-could be the appropriate penalty. Private respondents could
and did take umbrage at the fact that in view of such infraction considering the places where and the
time when the demonstration took place-there was a disruption of the classes and stoppage of work of
the non-academic personnel. They would not be unjustified then if they did take a much more serious
view of the matter. Even then a one-year period of suspension is much too severe. While the discretion
of both respondent University and respondent Ramento is recognized, the rule of reason, the dictate of
fairness calls for a much lesser penalty. If the concept of proportionality between the offense connoted
and the sanction imposed is not followed, an element of arbitrariness intrudes. That would give rise to a
due process question. To avoid this constitutional objection, it is the holding of this Court that a one-
week suspension would be punishment enough.
9. One last matter. The objection was raised that petitioners failed to exhaust administrative remedies.
That is true, but hardly decisive. Here, a purely legal question is presented. Such being the case,
 C o n s t i t u t i o n a l L a w I I A r t . I I I S e c . 3 a n d 4 P a g e | 92

especially so where a decision on a question of law is imperatively called for, and time being of the
essence, this Court has invariably viewed the issue as ripe for adjudication. What cannot be too
sufficiently stressed is that the constitutional rights to peaceable assembly and free speech are invoked
by petitioners. Moreover, there was, and very likely there will continue to be in the future, militancy and
assertiveness of students on issues that they consider of great importance, whether concerning their
welfare or the general public. That they have a right to do as citizens entitled to all the protection in the
Bill of Rights.

10. It would be most appropriate then, as was done in the case of Reyes v. Bagatsing, 21 for this Court
to lay down the principles for the guidance of school authorities and students alike. The rights to
peaceable assembly and free speech are guaranteed students of educational institutions. Necessarily,
their exercise to discuss matters affecting their welfare or involving public interest is not to be subjected
to previous restraint or subsequent punishment unless there be a showing of a clear and present
danger to a substantive evil that the state, has a right to present. As a corollary, the utmost leeway and
scope is accorded the content of the placards displayed or utterances made. The peaceable character of
an assembly could be lost, however, by an advocacy of disorder under the name of dissent, whatever
grievances that may be aired being susceptible to correction through the ways of the law. If the
assembly is to be held in school premises, permit must be sought from its school authorities, who are
devoid of the power to deny such request arbitrarily or unreasonably. In granting such permit, there
may be conditions as to the time and place of the assembly to avoid disruption of classes or stoppage
of work of the non-academic personnel. Even if, however, there be violations of its terms, the penalty
incurred should not be disproportionate to the offense.

WHEREFORE, the petition is granted. The decision dated October 20, 1982 of respondent Ramento
imposing a one-year suspension is nullified and set aside. The temporary restraining order issued by
this Court in the resolution of November 18, 1982 is made permanent. As of that date, petitioners had
been suspended for more than a week. In that sense, the one-week penalty had been served. No costs.

Teehankee, Makasiar, Guerrero, Abad Santos, Melencio-Herrera, Plana, Escolin, Relova, Gutierrez, Jr.,
and De la Fuente, JJ., concur.

Aquino, Concepcion, Jr., and De Castro, JJ., took no part.


.R. No. 138570. October 10, 2000]
BAYAN (Bagong Alyansang Makabayan), a JUNK VFA MOVEMENT, BISHOP TOMAS
MILLAMENA (Iglesia Filipina Independiente), BISHOP ELMER BOLOCAN (United Church of
Christ of the Phil.), DR. REYNALDO LEGASCA, MD, KILUSANG MAMBUBUKID NG PILIPINAS,
KILUSANG MAYO UNO, GABRIELA, PROLABOR, and the PUBLIC INTEREST LAW
CENTER, petitioners, vs. EXECUTIVE SECRETARY RONALDO ZAMORA, FOREIGN AFFAIRS
SECRETARY DOMINGO SIAZON, DEFENSE SECRETARY ORLANDO MERCADO, BRIG. GEN.
ALEXANDER AGUIRRE, SENATE PRESIDENT MARCELO FERNAN, SENATOR FRANKLIN
DRILON, SENATOR BLAS OPLE, SENATOR RODOLFO BIAZON, and SENATOR FRANCISCO
TATAD, respondents.
[G.R. No. 138572. October 10, 2000]
PHILIPPINE CONSTITUTION ASSOCIATION, INC.(PHILCONSA), EXEQUIEL B. GARCIA,
AMADOGAT INCIONG, CAMILO L. SABIO, AND RAMON A. GONZALES, petitioners,
vs. HON. RONALDO B. ZAMORA, as Executive Secretary, HON. ORLANDO MERCADO,
as Secretary of National Defense, and HON. DOMINGO L. SIAZON, JR., as Secretary
of Foreign Affairs, respondents.
[G.R. No. 138587. October 10, 2000]
TEOFISTO T. GUINGONA, JR., RAUL S. ROCO, and SERGIO R. OSMEA III, petitioners,
vs. JOSEPH E. ESTRADA, RONALDO B. ZAMORA, DOMINGO L. SIAZON, JR.,
ORLANDO B. MERCADO, MARCELO B. FERNAN, FRANKLIN M. DRILON, BLAS F.
OPLE and RODOLFO G. BIAZON, respondents.
[G.R. No. 138680. October 10, 2000]
INTEGRATED BAR OF THE PHILIPPINES, Represented by its National President, Jose Aguila
Grapilon, petitioners, vs. JOSEPH EJERCITO ESTRADA, in his capacity as President,
Republic of the Philippines, and HON. DOMINGO SIAZON, in his capacity as
Secretary of Foreign Affairs, respondents.
[G.R. No. 138698. October 10, 2000]
JOVITO R. SALONGA, WIGBERTO TAADA, ZENAIDA QUEZON-AVENCEA, ROLANDO
SIMBULAN, PABLITO V. SANIDAD, MA. SOCORRO I. DIOKNO, AGAPITO A. AQUINO,
JOKER P. ARROYO, FRANCISCO C. RIVERA JR., RENE A.V. SAGUISAG, KILOSBAYAN,
MOVEMENT OF ATTORNEYS FOR BROTHERHOOD, INTEGRITY AND NATIONALISM,
INC. (MABINI), petitioners, vs. THE EXECUTIVE SECRETARY, THE SECRETARY OF
FOREIGN AFFAIRS, THE SECRETARY OF NATIONAL DEFENSE, SENATE PRESIDENT
MARCELO B. FERNAN, SENATOR BLAS F. OPLE, SENATOR RODOLFO G. BIAZON,
AND ALL OTHER PERSONS ACTING THEIR CONTROL, SUPERVISION, DIRECTION,
C o n s t i t u t i o n a l L a w I I A r t . I I I S e c . 3 a n d 4 P a g e | 93
AND INSTRUCTION IN RELATION TO THE VISITING FORCES AGREEMENT
(VFA), respondents.
DECISION
BUENA, J.:
Confronting the Court for resolution in the instant consolidated petitions for certiorari and
prohibition are issues relating to, and borne by, an agreement forged in the turn of the last century
between the Republic of the Philippines and the United States of America -the Visiting Forces
Agreement.
The antecedents unfold.
On March 14, 1947, the Philippines and the United States of America forged a Military Bases
Agreement which formalized, among others, the use of installations in the Philippine territory by United
States military personnel. To further strengthen their defense and security relationship, the Philippines
and the United States entered into a Mutual Defense Treaty on August 30, 1951. Under the treaty, the
parties agreed to respond to any external armed attack on their territory, armed forces, public vessels,
and aircraft.[1]
In view of the impending expiration of the RP-US Military Bases Agreement in 1991, the
Philippines and the United States negotiated for a possible extension of the military bases agreement.
On September 16, 1991, the Philippine Senate rejected the proposed RP-US Treaty of Friendship,
Cooperation and Security which, in effect, would have extended the presence of US military bases in
the Philippines.[2] With the expiration of the RP-US Military Bases Agreement, the periodic military
exercises conducted between the two countries were held in abeyance. Notwithstanding, the defense
and security relationship between the Philippines and the United States of America continued pursuant
to the Mutual Defense Treaty.
On July 18, 1997, the United States panel, headed by US Defense Deputy Assistant Secretary for
Asia Pacific Kurt Campbell, met with the Philippine panel, headed by Foreign Affairs Undersecretary
Rodolfo Severino Jr., to exchange notes on the complementing strategic interests of the United States
and the Philippines in the Asia-Pacific region. Both sides discussed, among other things, the possible
elements of the Visiting Forces Agreement (VFA for brevity). Negotiations by both panels on the VFA
led to a consolidated draft text, which in turn resulted to a final series of conferences and
negotiations[3] that culminated in Manila on January 12 and 13, 1998. Thereafter, then President Fidel
V. Ramos approved the VFA, which was respectively signed by public respondent Secretary Siazon and
Unites States Ambassador Thomas Hubbard on February 10, 1998.
On October 5, 1998, President Joseph E. Estrada, through respondent Secretary of Foreign Affairs,
ratified the VFA.[4]
On October 6, 1998, the President, acting through respondent Executive Secretary Ronaldo
Zamora, officially transmitted to the Senate of the Philippines, [5] the Instrument of Ratification, the
letter of the President[6] and the VFA, for concurrence pursuant to Section 21, Article VII of the 1987
Constitution. The Senate, in turn, referred the VFA to its Committee on Foreign Relations, chaired by
Senator Blas F. Ople, and its Committee on National Defense and Security, chaired by Senator Rodolfo

G. Biazon, for their joint consideration and recommendation. Thereafter, joint public hearings were held
by the two Committees.[7]
On May 3, 1999, the Committees submitted Proposed Senate Resolution No. 443 [8] recommending
the concurrence of the Senate to the VFA and the creation of a Legislative Oversight Committee to
oversee its implementation. Debates then ensued.
On May 27, 1999, Proposed Senate Resolution No. 443 was approved by the Senate, by a two-
thirds (2/3) vote[9] of its members. Senate Resolution No. 443 was then re-numbered as Senate
Resolution No. 18.[10]
On June 1, 1999, the VFA officially entered into force after an Exchange of Notes between
respondent Secretary Siazon and United States Ambassador Hubbard.
The VFA, which consists of a Preamble and nine (9) Articles, provides for the mechanism for
regulating the circumstances and conditions under which US Armed Forces and defense personnel may
be present in the Philippines, and is quoted in its full text, hereunder:
Article I
Definitions
As used in this Agreement, United States personnel means United States military and civilian
personnel temporarily in the Philippines in connection with activities approved by the Philippine
Government.
Within this definition:
1. The term military personnel refers to military members of the United States Army, Navy,
Marine Corps, Air Force, and Coast Guard.
2. The term civilian personnel refers to individuals who are neither nationals of, nor ordinary
residents in the Philippines and who are employed by the United States armed forces or
who are accompanying the United States armed forces, such as employees of the
American Red Cross and the United Services Organization.
Article II
Respect for Law
It is the duty of the United States personnel to respect the laws of the Republic of the Philippines
and to abstain from any activity inconsistent with the spirit of this agreement, and, in particular,
from any political activity in the Philippines. The Government of the United States shall take all
measures within its authority to ensure that this is done.
Article III
Entry and Departure
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1. The Government of the Philippines shall facilitate the admission of United States personnel and
their departure from the Philippines in connection with activities covered by this agreement.
2. United States military personnel shall be exempt from passport and visa regulations upon
entering and departing the Philippines.
3. The following documents only, which shall be presented on demand, shall be required in
respect of United States military personnel who enter the Philippines:
(a) personal identity card issued by the appropriate United States authority showing full
name, date of birth, rank or grade and service number (if any), branch of service and
photograph;
(b) individual or collective document issued by the appropriate United States authority,
authorizing the travel or visit and identifying the individual or group as United States
military personnel; and
(c) the commanding officer of a military aircraft or vessel shall present a declaration of
health, and when required by the cognizant representative of the Government of the
Philippines, shall conduct a quarantine inspection and will certify that the aircraft or
vessel is free from quarantinable diseases. Any quarantine inspection of United States
aircraft or United States vessels or cargoes thereon shall be conducted by the United
States commanding officer in accordance with the international health regulations as
promulgated by the World Health Organization, and mutually agreed procedures.
4. United States civilian personnel shall be exempt from visa requirements but shall present, upon
demand, valid passports upon entry and departure of the Philippines.
5. If the Government of the Philippines has requested the removal of any United States personnel
from its territory, the United States authorities shall be responsible for receiving the person
concerned within its own territory or otherwise disposing of said person outside of the
Philippines.
Article IV
Driving and Vehicle Registration
1. Philippine authorities shall accept as valid, without test or fee, a driving permit or license issued
by the appropriate United States authority to United States personnel for the operation of
military or official vehicles.
2. Vehicles owned by the Government of the United States need not be registered, but shall have
appropriate markings.

Article V
Criminal Jurisdiction
1. Subject to the provisions of this article:
(a) Philippine authorities shall have jurisdiction over United States personnel with respect
to offenses committed within the Philippines and punishable under the law of the
Philippines.
(b) United States military authorities shall have the right to exercise within the Philippines
all criminal and disciplinary jurisdiction conferred on them by the military law of the
United States over United States personnel in the Philippines.
2. (a) Philippine authorities exercise exclusive jurisdiction over United States personnel
with respect to offenses, including offenses relating to the security of the
Philippines, punishable under the laws of the Philippines, but not under the laws
of the United States.
(b) United States authorities exercise exclusive jurisdiction over United States
personnel with respect to offenses, including offenses relating to the security of
the United States, punishable under the laws of the United States, but not under
the laws of the Philippines.
(c) For the purposes of this paragraph and paragraph 3 of this article, an offense
relating to security means:
(1) treason;
(2) sabotage, espionage or violation of any law relating to national defense.
3. In cases where the right to exercise jurisdiction is concurrent, the following rules shall
apply:
(a) Philippine authorities shall have the primary right to exercise jurisdiction over all
offenses committed by United States personnel, except in cases provided for in
paragraphs 1(b), 2 (b), and 3 (b) of this Article.
(b) United States military authorities shall have the primary right to exercise jurisdiction
over United States personnel subject to the military law of the United States in
relation to.
(1) offenses solely against the property or security of the United States or offenses
solely against the property or person of United States personnel; and
(2) offenses arising out of any act or omission done in performance of official duty.
C o n s t i t u t i o n a l L a w I I A r t . I I I S e c . 3 a n d 4 P a g e | 95
(c) The authorities of either government may request the authorities of the other
government to waive their primary right to exercise jurisdiction in a particular case.
(d) Recognizing the responsibility of the United States military authorities to maintain
good order and discipline among their forces, Philippine authorities will, upon request
by the United States, waive their primary right to exercise jurisdiction except in cases
of particular importance to the Philippines. If the Government of the Philippines
determines that the case is of particular importance, it shall communicate such
determination to the United States authorities within twenty (20) days after the
Philippine authorities receive the United States request.
(e) When the United States military commander determines that an offense charged by
authorities of the Philippines against United states personnel arises out of an act or
omission done in the performance of official duty, the commander will issue a
certificate setting forth such determination. This certificate will be transmitted to the
appropriate authorities of the Philippines and will constitute sufficient proof of
performance of official duty for the purposes of paragraph 3(b)(2) of this Article. In
those cases where the Government of the Philippines believes the circumstances of
the case require a review of the duty certificate, United States military authorities and
Philippine authorities shall consult immediately. Philippine authorities at the highest
levels may also present any information bearing on its validity. United States military
authorities shall take full account of the Philippine position. Where appropriate, United
States military authorities will take disciplinary or other action against offenders in
official duty cases, and notify the Government of the Philippines of the actions taken.
(f) If the government having the primary right does not exercise jurisdiction, it shall
notify the authorities of the other government as soon as possible.
(g) The authorities of the Philippines and the United States shall notify each other of the
disposition of all cases in which both the authorities of the Philippines and the United
States have the right to exercise jurisdiction.
4. Within the scope of their legal competence, the authorities of the Philippines and United
States shall assist each other in the arrest of United States personnel in the Philippines
and in handling them over to authorities who are to exercise jurisdiction in accordance
with the provisions of this article.
5. United States military authorities shall promptly notify Philippine authorities of the arrest
or detention of United States personnel who are subject of Philippine primary or exclusive
jurisdiction. Philippine authorities shall promptly notify United States military authorities
of the arrest or detention of any United States personnel.
6. The custody of any United States personnel over whom the Philippines is to exercise
jurisdiction shall immediately reside with United States military authorities, if they so
request, from the commission of the offense until completion of all judicial proceedings.
United States military authorities shall, upon formal notification by the Philippine
authorities and without delay, make such personnel available to those authorities in time
for any investigative or judicial proceedings relating to the offense with which the person

has been charged in extraordinary cases, the Philippine Government shall present its
position to the United States Government regarding custody, which the United States
Government shall take into full account. In the event Philippine judicial proceedings are
not completed within one year, the United States shall be relieved of any obligations
under this paragraph. The one-year period will not include the time necessary to appeal.
Also, the one-year period will not include any time during which scheduled trial
procedures are delayed because United States authorities, after timely notification by
Philippine authorities to arrange for the presence of the accused, fail to do so.
7. Within the scope of their legal authority, United States and Philippine authorities shall
assist each other in the carrying out of all necessary investigation into offenses and shall
cooperate in providing for the attendance of witnesses and in the collection and
production of evidence, including seizure and, in proper cases, the delivery of objects
connected with an offense.
8. When United States personnel have been tried in accordance with the provisions of this
Article and have been acquitted or have been convicted and are serving, or have served
their sentence, or have had their sentence remitted or suspended, or have been
pardoned, they may not be tried again for the same offense in the Philippines. Nothing in
this paragraph, however, shall prevent United States military authorities from trying
United States personnel for any violation of rules of discipline arising from the act or
omission which constituted an offense for which they were tried by Philippine authorities.
9. When United States personnel are detained, taken into custody, or prosecuted by
Philippine authorities, they shall be accorded all procedural safeguards established by the
law of the Philippines. At the minimum, United States personnel shall be entitled:
(a) To a prompt and speedy trial;
(b) To be informed in advance of trial of the specific charge or charges made against
them and to have reasonable time to prepare a defense;
(c) To be confronted with witnesses against them and to cross examine such witnesses;
(d) To present evidence in their defense and to have compulsory process for obtaining
witnesses;
(e) To have free and assisted legal representation of their own choice on the same basis
as nationals of the Philippines;
(f) To have the service of a competent interpreter; and
(g) To communicate promptly with and to be visited regularly by United States
authorities, and to have such authorities present at all judicial proceedings. These
proceedings shall be public unless the court, in accordance with Philippine laws,
excludes persons who have no role in the proceedings.
10. The confinement or detention by Philippine authorities of United States personnel shall
be carried out in facilities agreed on by appropriate Philippine and United States
C o n s t i t u t i o n a l L a w I I A r t . I I I S e c . 3 a n d 4 P a g e | 96
authorities. United States Personnel serving sentences in the Philippines shall have the
right to visits and material assistance.
11. United States personnel shall be subject to trial only in Philippine courts of ordinary
jurisdiction, and shall not be subject to the jurisdiction of Philippine military or religious
courts.
Article VI
Claims
1. Except for contractual arrangements, including United States foreign military sales letters
of offer and acceptance and leases of military equipment, both governments waive any
and all claims against each other for damage, loss or destruction to property of each
others armed forces or for death or injury to their military and civilian personnel arising
from activities to which this agreement applies.
2. For claims against the United States, other than contractual claims and those to which
paragraph 1 applies, the United States Government, in accordance with United States law
regarding foreign claims, will pay just and reasonable compensation in settlement of
meritorious claims for damage, loss, personal injury or death, caused by acts or
omissions of United States personnel, or otherwise incident to the non-combat activities
of the United States forces.
Article VII
Importation and Exportation
1. United States Government equipment, materials, supplies, and other property imported
into or acquired in the Philippines by or on behalf of the United States armed forces in
connection with activities to which this agreement applies, shall be free of all Philippine
duties, taxes and other similar charges. Title to such property shall remain with the
United States, which may remove such property from the Philippines at any time, free
from export duties, taxes, and other similar charges. The exemptions provided in this
paragraph shall also extend to any duty, tax, or other similar charges which would
otherwise be assessed upon such property after importation into, or acquisition within,
the Philippines. Such property may be removed from the Philippines, or disposed of
therein, provided that disposition of such property in the Philippines to persons or entities
not entitled to exemption from applicable taxes and duties shall be subject to payment of
such taxes, and duties and prior approval of the Philippine Government.
2. Reasonable quantities of personal baggage, personal effects, and other property for the
personal use of United States personnel may be imported into and used in the Philippines
free of all duties, taxes and other similar charges during the period of their temporary
stay in the Philippines. Transfers to persons or entities in the Philippines not entitled to
import privileges may only be made upon prior approval of the appropriate Philippine
authorities including payment by the recipient of applicable duties and taxes imposed in
accordance with the laws of the Philippines. The exportation of such property and of

property acquired in the Philippines by United States personnel shall be free of all
Philippine duties, taxes, and other similar charges.
Article VIII
Movement of Vessels and Aircraft
1. Aircraft operated by or for the United States armed forces may enter the Philippines upon
approval of the Government of the Philippines in accordance with procedures stipulated
in implementing arrangements.
2. Vessels operated by or for the United States armed forces may enter the Philippines upon
approval of the Government of the Philippines. The movement of vessels shall be in
accordance with international custom and practice governing such vessels, and such
agreed implementing arrangements as necessary.
3. Vehicles, vessels, and aircraft operated by or for the United States armed forces shall not
be subject to the payment of landing or port fees, navigation or over flight charges, or
tolls or other use charges, including light and harbor dues, while in the Philippines.
Aircraft operated by or for the United States armed forces shall observe local air traffic
control regulations while in the Philippines. Vessels owned or operated by the United
States solely on United States Government non-commercial service shall not be subject
to compulsory pilotage at Philippine ports.
Article IX
Duration and Termination
This agreement shall enter into force on the date on which the parties have notified each other in
writing through the diplomatic channel that they have completed their constitutional requirements
for entry into force. This agreement shall remain in force until the expiration of 180 days from the
date on which either party gives the other party notice in writing that it desires to terminate the
agreement.
Via these consolidated[11] petitions for certiorari and prohibition, petitioners - as legislators, non-
governmental organizations, citizens and taxpayers - assail the constitutionality of the VFA and impute
to herein respondents grave abuse of discretion in ratifying the agreement.
We have simplified the issues raised by the petitioners into the following:
I some indefinite way. He must show that he has been, or is about to be, denied some right or privilege
Do petitioners have legal standing as concerned citizens, taxpayers, or legislators to question the
constitutionality of the VFA?
II
C o n s t i t u t i o n a l L a w I I A r t . I I I S e c . 3 a n d 4 P a g e | 97
Is the VFA governed by the provisions of Section 21, Article VII or of Section 25, Article XVIII of
the Constitution?
III
Does the VFA constitute an abdication of Philippine sovereignty?
a. Are Philippine courts deprived of their jurisdiction to hear and try offenses committed by
US military personnel?
b. Is the Supreme Court deprived of its jurisdiction over offenses punishable by reclusion
perpetua or higher?
IV
Does the VFA violate:
a. the equal protection clause under Section 1, Article III of the Constitution?
b. the Prohibition against nuclear weapons under Article II, Section 8?
c. Section 28 (4), Article VI of the Constitution granting the exemption from taxes and duties
for the equipment, materials supplies and other properties imported into or acquired in
the Philippines by, or on behalf, of the US Armed Forces?
LOCUS STANDI
At the outset, respondents challenge petitioners standing to sue, on the ground that the latter
have not shown any interest in the case, and that petitioners failed to substantiate that they have
sustained, or will sustain direct injury as a result of the operation of the VFA. [12] Petitioners, on the
other hand, counter that the validity or invalidity of the VFA is a matter of transcendental importance
which justifies their standing.[13]
A party bringing a suit challenging the constitutionality of a law, act, or statute must show not
only that the law is invalid, but also that he has sustained or in is in immediate, or imminent danger of
sustaining some direct injury as a result of its enforcement, and not merely that he suffers thereby in
to which he is lawfully entitled, or that he is about to be subjected to some burdens or penalties by
reason of the statute complained of.[14]
In the case before us, petitioners failed to show, to the satisfaction of this Court, that they have
sustained, or are in danger of sustaining any direct injury as a result of the enforcement of the VFA. As
taxpayers, petitioners have not established that the VFA involves the exercise by Congress of its taxing
or spending powers.[15] On this point, it bears stressing that a taxpayers suit refers to a case where the

act complained of directly involves the illegal disbursement of public funds derived from
taxation.[16] Thus, in Bugnay Const. & Development Corp. vs. Laron[17], we held:
x x x it is exigent that the taxpayer-plaintiff sufficiently show that he would be benefited or injured by
the judgment or entitled to the avails of the suit as a real party in interest. Before he can invoke the
power of judicial review, he must specifically prove that he has sufficient interest in preventing the
illegal expenditure of money raised by taxation and that he will sustain a direct injury as a result of the
enforcement of the questioned statute or contract. It is not sufficient that he has merely a general
interest common to all members of the public.
Clearly, inasmuch as no public funds raised by taxation are involved in this case, and in the
absence of any allegation by petitioners that public funds are being misspent or illegally expended,
petitioners, as taxpayers, have no legal standing to assail the legality of the VFA.
Similarly, Representatives Wigberto Taada, Agapito Aquino and Joker Arroyo, as petitioners-
legislators, do not possess the requisite locus standi to maintain the present suit. While this Court,
in Phil. Constitution Association vs. Hon. Salvador Enriquez, [18] sustained the legal standing of a
member of the Senate and the House of Representatives to question the validity of a presidential veto
or a condition imposed on an item in an appropriation bull, we cannot, at this instance, similarly uphold
petitioners standing as members of Congress, in the absence of a clear showing of any direct injury to
their person or to the institution to which they belong.
Beyond this, the allegations of impairment of legislative power, such as the delegation of the
power of Congress to grant tax exemptions, are more apparent than real. While it may be true that
petitioners pointed to provisions of the VFA which allegedly impair their legislative powers, petitioners
failed however to sufficiently show that they have in fact suffered direct injury.
In the same vein, petitioner Integrated Bar of the Philippines (IBP) is stripped of standing in these
cases. As aptly observed by the Solicitor General, the IBP lacks the legal capacity to bring this suit in
the absence of a board resolution from its Board of Governors authorizing its National President to
commence the present action.[19]
Notwithstanding, in view of the paramount importance and the constitutional significance of the
issues raised in the petitions, this Court, in the exercise of its sound discretion, brushes aside the
procedural barrier and takes cognizance of the petitions, as we have done in the early Emergency
Powers Cases,[20] where we had occasion to rule:
x x x ordinary citizens and taxpayers were allowed to question the constitutionality of several executive
orders issued by President Quirino although they were involving only an indirect and general interest
shared in common with the public. The Court dismissed the objection that they were not proper parties
and ruled that transcendental importance to the public of these cases demands that they be
settled promptly and definitely, brushing aside, if we must, technicalities of procedure. We
have since then applied the exception in many other cases. (Association of Small Landowners in the
Philippines, Inc. v. Sec. of Agrarian Reform, 175 SCRA 343). (Underscoring Supplied)
C o n s t i t u t i o n a l L a w I I A r t . I I I S e c . 3 a n d 4 P a g e | 98
This principle was reiterated in the subsequent cases of Gonzales vs. COMELEC,[21] Daza vs.
Singson,[22] and Basco vs. Phil. Amusement and Gaming Corporation, [23] where we emphatically
held:
Considering however the importance to the public of the case at bar, and in keeping with the Courts
duty, under the 1987 Constitution, to determine whether or not the other branches of the government
have kept themselves within the limits of the Constitution and the laws and that they have not abused
the discretion given to them, the Court has brushed aside technicalities of procedure and has taken
cognizance of this petition. x x x
Again, in the more recent case of Kilosbayan vs. Guingona, Jr.,[24] thisCourt ruled that in cases
of transcendental importance, the Court may relax the standing requirements and allow a suit
to prosper even where there is no direct injury to the party claiming the right of judicial
review.
Although courts generally avoid having to decide a constitutional question based on the doctrine
of separation of powers, which enjoins upon the departments of the government a becoming respect
for each others acts,[25] this Court nevertheless resolves to take cognizance of the instant petitions.
APPLICABLE CONSTITUTIONAL PROVISION
One focal point of inquiry in this controversy is the determination of which provision of the
Constitution applies, with regard to the exercise by the senate of its constitutional power to concur with
the VFA. Petitioners argue that Section 25, Article XVIII is applicable considering that the VFA has for its
subject the presence of foreign military troops in the Philippines. Respondents, on the contrary,
maintain that Section 21, Article VII should apply inasmuch as the VFA is not a basing arrangement but
an agreement which involves merely the temporary visits of United States personnel engaged in joint
military exercises.
The 1987 Philippine Constitution contains two provisions requiring the concurrence of the Senate
on treaties or international agreements. Section 21, Article VII, which herein respondents invoke, reads:
No treaty or international agreement shall be valid and effective unless concurred in by at least two-
thirds of all the Members of the Senate.
Section 25, Article XVIII, provides:
After the expiration in 1991 of the Agreement between the Republic of the Philippines and the United
States of America concerning Military Bases, foreign military bases, troops, or facilities shall not be
allowed in the Philippines except under a treaty duly concurred in by the senate and, when the
Congress so requires, ratified by a majority of the votes cast by the people in a national referendum
held for that purpose, and recognized as a treaty by the other contracting State.

Section 21, Article VII deals with treatise or international agreements in general, in which case,
the concurrence of at least two-thirds (2/3) of all the Members of the Senate is required to make the
subject treaty, or international agreement, valid and binding on the part of the Philippines. This
provision lays down the general rule on treatise or international agreements and applies to any form of
treaty with a wide variety of subject matter, such as, but not limited to, extradition or tax treatise or
those economic in nature.All treaties or international agreements entered into by the Philippines,
regardless of subject matter, coverage, or particular designation or appellation, requires the
concurrence of the Senate to be valid and effective.
In contrast, Section 25, Article XVIII is a special provision that applies to treaties which involve the
presence of foreign military bases, troops or facilities in the Philippines.Under this provision, the
concurrence of the Senate is only one of the requisites to render compliance with the constitutional
requirements and to consider the agreement binding on the Philippines. Section 25, Article XVIII further
requires that foreign military bases, troops, or facilities may be allowed in the Philippines only by virtue
of a treaty duly concurred in by the Senate, ratified by a majority of the votes cast in a national
referendum held for that purpose if so required by Congress, and recognized as such by the other
contracting state.
It is our considered view that both constitutional provisions, far from contradicting each other,
actually share some common ground. These constitutional provisions both embody phrases in the
negative and thus, are deemed prohibitory in mandate and character. In particular, Section 21 opens
with the clause No treaty x x x, and Section 25 contains the phrase shall not be allowed. Additionally, in
both instances, the concurrence of the Senate is indispensable to render the treaty or international
agreement valid and effective.
To our mind, the fact that the President referred the VFA to the Senate under Section 21, Article
VII, and that the Senate extended its concurrence under the same provision, is immaterial. For in either
case, whether under Section 21, Article VII or Section 25, Article XVIII, the fundamental law is
crystalline that the concurrence of the Senate is mandatory to comply with the strict constitutional
requirements.
On the whole, the VFA is an agreement which defines the treatment of United States troops and
personnel visiting the Philippines. It provides for the guidelines to govern such visits of military
personnel, and further defines the rights of the United States and the Philippine government in the
matter of criminal jurisdiction, movement of vessel and aircraft, importation and exportation of
equipment, materials and supplies.
Undoubtedly, Section 25, Article XVIII, which specifically deals with treaties involving foreign
military bases, troops, or facilities, should apply in the instant case. To a certain extent and in a limited
sense, however, the provisions of section 21, Article VII will find applicability with regard to the issue
and for the sole purpose of determining the number of votes required to obtain the valid concurrence of
the Senate, as will be further discussed hereunder.
It is a finely-imbedded principle in statutory construction that a special provision or law prevails
over a general one. Lex specialis derogat generali. Thus, where there is in the same statute a
particular enactment and also a general one which, in its most comprehensive sense, would include
what is embraced in the former, the particular enactment must be operative, and the general
C o n s t i t u t i o n a l L a w I I A r t . I I I S e c . 3 a n d 4 P a g e | 99
enactment must be taken to affect only such cases within its general language which are not within the
provision of the particular enactment.[26]
In Leveriza vs. Intermediate Appellate Court,[27] we enunciated:
x x x that another basic principle of statutory construction mandates that general legislation must give
way to a special legislation on the same subject, and generally be so interpreted as to embrace only
cases in which the special provisions are not applicable (Sto. Domingo vs. de los Angeles, 96 SCRA
139), that a specific statute prevails over a general statute (De Jesus vs. People, 120 SCRA 760) and
that where two statutes are of equal theoretical application to a particular case, the one designed
therefor specially should prevail (Wil Wilhensen Inc. vs. Baluyot, 83 SCRA 38).
Moreover, it is specious to argue that Section 25, Article XVIII is inapplicable to mere transient
agreements for the reason that there is no permanent placing of structure for the establishment of a
military base. On this score, the Constitution makes no distinction between transient and
permanent. Certainly, we find nothing in Section 25, Article XVIII that requires foreign troops or
facilities to be stationed or placed permanently in the Philippines.
It is a rudiment in legal hermenuetics that when no distinction is made by law, the Court should
not distinguish- Ubi lex non distinguit nec nos distinguire debemos.
In like manner, we do not subscribe to the argument that Section 25, Article XVIII is not
controlling since no foreign military bases, but merely foreign troops and facilities, are involved in the
VFA. Notably, a perusal of said constitutional provision reveals that the proscription covers foreign
military bases, troops, or facilities. Stated differently, this prohibition is not limited to the entry of
troops and facilities without any foreign bases being established. The clause does not refer to foreign
military bases, troops, or facilitiescollectively but treats them as separate and independent
subjects. The use of comma and the disjunctive word or clearly signifies disassociation and
independence of one thing from the others included in the enumeration, [28] such that, the provision
contemplates three different situations - a military treaty the subject of which could be either (a)
foreign bases, (b) foreign troops, or (c) foreign facilities - any of the three standing alone places it
under the coverage of Section 25, Article XVIII.
To this end, the intention of the framers of the Charter, as manifested during the deliberations of
the 1986 Constitutional Commission, is consistent with this interpretation:
MR. MAAMBONG. I just want to address a question or two to Commissioner Bernas.
This formulation speaks of three things: foreign military bases, troops or facilities. My first question
is: If the country does enter into such kind of a treaty, must it cover the three-
bases, troops or facilities-or could the treaty entered into cover only one or two?
FR. BERNAS. Definitely, it can cover only one. Whether it covers only one or it covers
three, the requirement will be the same.
MR. MAAMBONG. In other words, the Philippine government can enter into a treaty
covering not bases but merely troops?

FR. BERNAS. Yes.
MR. MAAMBONG. I cannot find any reason why the government can enter into a treaty covering
only troops.
FR. BERNAS. Why not? Probably if we stretch our imagination a little bit more, we will find
some. We just want to cover everything.[29] (Underscoring Supplied)
Moreover, military bases established within the territory of another state is no longer viable
because of the alternatives offered by new means and weapons of warfare such as nuclear weapons,
guided missiles as well as huge sea vessels that can stay afloat in the sea even for months and years
without returning to their home country. These military warships are actually used as substitutes for a
land-home base not only of military aircraft but also of military personnel and facilities. Besides, vessels
are mobile as compared to a land-based military headquarters.
At this juncture, we shall then resolve the issue of whether or not the requirements of Section 25
were complied with when the Senate gave its concurrence to the VFA.
Section 25, Article XVIII disallows foreign military bases, troops, or facilities in the country, unless
the following conditions are sufficiently met, viz: (a) it must be under a treaty; (b) the treaty must
be duly concurred in by the Senate and, when so required by congress, ratified by a majority of the
votes cast by the people in a national referendum; and (c) recognized as a treaty by the other
contracting state.
There is no dispute as to the presence of the first two requisites in the case of the VFA. The
concurrence handed by the Senate through Resolution No. 18 is in accordance with the provisions of
the Constitution, whether under the general requirement in Section 21, Article VII, or the specific
mandate mentioned in Section 25, Article XVIII, the provision in the latter article requiring ratification
by a majority of the votes cast in a national referendum being unnecessary since Congress has not
required it.
As to the matter of voting, Section 21, Article VII particularly requires that a treaty or
international agreement, to be valid and effective, must be concurred in by at least two-thirds of
all the members of the Senate. On the other hand, Section 25, Article XVIII simply provides that the
treaty be duly concurred in by the Senate.
Applying the foregoing constitutional provisions, a two-thirds vote of all the members of the
Senate is clearly required so that the concurrence contemplated by law may be validly obtained and
deemed present. While it is true that Section 25, Article XVIII requires, among other things, that the
treaty-the VFA, in the instant case-be duly concurred in by the Senate, it is very true however that said
provision must be related and viewed in light of the clear mandate embodied in Section 21, Article VII,
which in more specific terms, requires that the concurrence of a treaty, or international agreement, be
made by a two -thirds vote of all the members of the Senate. Indeed, Section 25, Article XVIII must not
be treated in isolation to section 21, Article, VII.
As noted, the concurrence requirement under Section 25, Article XVIII must be construed in
relation to the provisions of Section 21, Article VII. In a more particular language, the concurrence of
the Senate contemplated under Section 25, Article XVIII means that at least two-thirds of all the
members of the Senate favorably vote to concur with the treaty-the VFA in the instant case.
C o n s t i t u t i o n a l L a w I I A r t . I I I S e c . 3 a n d 4 P a g e | 100
Under these circumstances, the charter provides that the Senate shall be composed of twenty-four
(24) Senators.[30] Without a tinge of doubt, two-thirds (2/3) of this figure, or not less than sixteen (16)
members, favorably acting on the proposal is an unquestionable compliance with the requisite number
of votes mentioned in Section 21 of Article VII. The fact that there were actually twenty-three (23)
incumbent Senators at the time the voting was made,[31] will not alter in any significant way the
circumstance that more than two-thirds of the members of the Senate concurred with the proposed
VFA, even if the two-thirds vote requirement is based on this figure of actual members (23). In this
regard, the fundamental law is clear that two-thirds of the 24 Senators, or at least 16 favorable votes,
suffice so as to render compliance with the strict constitutional mandate of giving concurrence to the
subject treaty.
Having resolved that the first two requisites prescribed in Section 25, Article XVIII are present, we
shall now pass upon and delve on the requirement that the VFA should be recognized as a treaty by the
United States of America.
Petitioners content that the phrase recognized as a treaty, embodied in section 25, Article XVIII,
means that the VFA should have the advice and consent of the United States Senate pursuant to its
own constitutional process, and that it should not be considered merely an executive agreement by the
United States.
In opposition, respondents argue that the letter of United States Ambassador Hubbard stating that
the VFA is binding on the United States Government is conclusive, on the point that the VFA is
recognized as a treaty by the United States of America. According to respondents, the VFA, to be
binding, must only be accepted as a treaty by the United States.
This Court is of the firm view that the phrase recognized as a treaty means that the other
contracting party accepts or acknowledges the agreement as a treaty.[32] To require the other
contracting state, the United States of America in this case, to submit the VFA to the United States
Senate for concurrence pursuant to its Constitution,[33] is to accord strict meaning to the phrase.
Well-entrenched is the principle that the words used in the Constitution are to be given their
ordinary meaning except where technical terms are employed, in which case the significance thus
attached to them prevails. Its language should be understood in the sense they have in common
use.[34]
Moreover, it is inconsequential whether the United States treats the VFA only as an executive
agreement because, under international law, an executive agreement is as binding as a treaty. [35] To be
sure, as long as the VFA possesses the elements of an agreement under international law, the said
agreement is to be taken equally as a treaty.
A treaty, as defined by the Vienna Convention on the Law of Treaties, is an international
instrument concluded between States in written form and governed by international law, whether
embodied in a single instrument or in two or more related instruments, and whatever its particular
designation.[36] There are many other terms used for a treaty or international agreement, some of
which are: act, protocol, agreement, compromis d arbitrage, concordat, convention, declaration,
exchange of notes, pact, statute, charter and modus vivendi. All writers, from Hugo Grotius onward,
have pointed out that the names or titles of international agreements included under the general

term treaty have little or no legal significance. Certain terms are useful, but they furnish little more
than mere description.[37]
Article 2(2) of the Vienna Convention provides that the provisions of paragraph 1 regarding the
use of terms in the present Convention are without prejudice to the use of those terms, or to the
meanings which may be given to them in the internal law of the State.
Thus, in international law, there is no difference between treaties and executive agreements in
their binding effect upon states concerned, as long as the negotiating functionaries have remained
within their powers.[38] International law continues to make no distinction between treaties and
executive agreements: they are equally binding obligations upon nations.[39]
In our jurisdiction, we have recognized the binding effect of executive agreements even without
the concurrence of the Senate or Congress. In Commissioner of Customs vs. Eastern Sea
Trading,[40] we had occasion to pronounce:
x x x the right of the Executive to enter into binding agreements without the necessity of subsequent
congressional approval has been confirmed by long usage. From the earliest days of our history we
have entered into executive agreements covering such subjects as commercial and consular relations,
most-favored-nation rights, patent rights, trademark and copyright protection, postal and navigation
arrangements and the settlement of claims. The validity of these has never been seriously questioned
by our courts.
xxxxxxxxx
Furthermore, the United States Supreme Court has expressly recognized the validity and
constitutionality of executive agreements entered into without Senate approval. (39 Columbia Law
Review, pp. 753-754) (See, also, U.S. vs. Curtis Wright Export Corporation, 299 U.S. 304,
81 L. ed. 255; U.S. vs. Belmont, 301 U.S. 324, 81 L. ed. 1134; U.S. vs. Pink, 315 U.S. 203, 86
L. ed. 796; Ozanic vs. U.S. 188 F. 2d. 288; Yale Law Journal, Vol. 15 pp. 1905-1906;
California Law Review, Vol. 25, pp. 670-675; Hyde on International Law [revised Edition],
Vol. 2, pp. 1405, 1416-1418; willoughby on the U.S. Constitution Law, Vol. I [2d ed.], pp.
537-540; Moore, International Law Digest, Vol. V, pp. 210-218; Hackworth, International
Law Digest, Vol. V, pp. 390-407). (Italics Supplied) (Emphasis Ours)
The deliberations of the Constitutional Commission which drafted the 1987 Constitution is
enlightening and highly-instructive:
MR. MAAMBONG. Of course it goes without saying that as far as ratification of the other state is
concerned, that is entirely their concern under their own laws.
FR. BERNAS. Yes, but we will accept whatever they say. If they say that we have done everything
to make it a treaty, then as far as we are concerned, we will accept it as a treaty. [41]
The records reveal that the United States Government, through Ambassador Thomas C. Hubbard,
has stated that the United States government has fully committed to living up to the terms of the
VFA.[42] For as long as the united States of America accepts or acknowledges the VFA as a treaty, and
C o n s t i t u t i o n a l L a w I I A r t . I I I S e c . 3 a n d 4 P a g e | 101
binds itself further to comply with its obligations under the treaty, there is indeed marked compliance
with the mandate of the Constitution.
Worth stressing too, is that the ratification, by the President, of the VFA and the concurrence of
the Senate should be taken as a clear an unequivocal expression of our nations consent to be bound by
said treaty, with the concomitant duty to uphold the obligations and responsibilities embodied
thereunder.
Ratification is generally held to be an executive act, undertaken by the head of the state or of the
government, as the case may be, through which the formal acceptance of the treaty is proclaimed. [43] A
State may provide in its domestic legislation the process of ratification of a treaty. The consent of the
State to be bound by a treaty is expressed by ratification when: (a) the treaty provides for such
ratification, (b) it is otherwise established that the negotiating States agreed that ratification should be
required, (c) the representative of the State has signed the treaty subject to ratification, or (d) the
intention of the State to sign the treaty subject to ratification appears from the full powers of its
representative, or was expressed during the negotiation.[44]
In our jurisdiction, the power to ratify is vested in the President and not, as commonly believed, in
the legislature. The role of the Senate is limited only to giving or withholding its consent, or
concurrence, to the ratification.[45]
With the ratification of the VFA, which is equivalent to final acceptance, and with the exchange of
notes between the Philippines and the United States of America, it now becomes obligatory and
incumbent on our part, under the principles of international law, to be bound by the terms of the
agreement. Thus, no less than Section 2, Article II of the Constitution,[46] declares that the Philippines
adopts the generally accepted principles of international law as part of the law of the land and adheres
to the policy of peace, equality, justice, freedom, cooperation and amity with all nations.
As a member of the family of nations, the Philippines agrees to be bound by generally accepted
rules for the conduct of its international relations. While the international obligation devolves upon the
state and not upon any particular branch, institution, or individual member of its government, the
Philippines is nonetheless responsible for violations committed by any branch or subdivision of its
government or any official thereof. As an integral part of the community of nations, we are responsible
to assure that our government, Constitution and laws will carry out our international
obligation.[47] Hence, we cannot readily plead the Constitution as a convenient excuse for non-
compliance with our obligations, duties and responsibilities under international law.
Beyond this, Article 13 of the Declaration of Rights and Duties of States adopted by the
International Law Commission in 1949 provides: Every State has the duty to carry out in good faith its
obligations arising from treaties and other sources of international law, and it may not invoke provisions
in its constitution or its laws as an excuse for failure to perform this duty.[48]
Equally important is Article 26 of the convention which provides that Every treaty in force is
binding upon the parties to it and must be performed by them in good faith. This is known as the
principle of pacta sunt servanda which preserves the sanctity of treaties and have been one of the most
fundamental principles of positive international law, supported by the jurisprudence of international
tribunals.[49]

NO GRAVE ABUSE OF DISCRETION
In the instant controversy, the President, in effect, is heavily faulted for exercising a power and
performing a task conferred upon him by the Constitution-the power to enter into and ratify
treaties. Through the expediency of Rule 65 of the Rules of Court, petitioners in these consolidated
cases impute grave abuse of discretion on the part of the chief Executive in ratifying the VFA, and
referring the same to the Senate pursuant to the provisions of Section 21, Article VII of the
Constitution.
On this particular matter, grave abuse of discretion implies such capricious and whimsical exercise
of judgment as is equivalent to lack of jurisdiction, or, when the power is exercised in an arbitrary or
despotic manner by reason of passion or personal hostility, and it must be so patent and gross as to
amount to an evasion of positive duty enjoined or to act at all in contemplation of law.[50]
By constitutional fiat and by the intrinsic nature of his office, the President, as head of State, is the
sole organ and authority in the external affairs of the country. In many ways, the President is the chief
architect of the nations foreign policy; his dominance in the field of foreign relations is (then)
conceded.[51] Wielding vast powers an influence, his conduct in the external affairs of the nation, as
Jefferson describes, is executive altogether."[52]
As regards the power to enter into treaties or international agreements, the Constitution vests the
same in the President, subject only to the concurrence of at least two-thirds vote of all the members of
the Senate. In this light, the negotiation of the VFA and the subsequent ratification of the agreement
are exclusive acts which pertain solely to the President, in the lawful exercise of his vast executive and
diplomatic powers granted him no less than by the fundamental law itself. Into the field of negotiation
the Senate cannot intrude, and Congress itself is powerless to invade it .[53] Consequently, the acts or
judgment calls of the President involving the VFA-specifically the acts of ratification and entering into a
treaty and those necessary or incidental to the exercise of such principal acts - squarely fall within the
sphere of his constitutional powers and thus, may not be validly struck down, much less calibrated by
this Court, in the absence of clear showing of grave abuse of power or discretion.
It is the Courts considered view that the President, in ratifying the VFA and in submitting the same
to the Senate for concurrence, acted within the confines and limits of the powers vested in him by the
Constitution. It is of no moment that the President, in the exercise of his wide latitude of discretion and
in the honest belief that the VFA falls within the ambit of Section 21, Article VII of the Constitution,
referred the VFA to the Senate for concurrence under the aforementioned provision. Certainly, no abuse
of discretion, much less a grave, patent and whimsical abuse of judgment, may be imputed to the
President in his act of ratifying the VFA and referring the same to the Senate for the purpose of
complying with the concurrence requirement embodied in the fundamental law. In doing so, the
President merely performed a constitutional task and exercised a prerogative that chiefly pertains to the
functions of his office. Even if he erred in submitting the VFA to the Senate for concurrence under the
provisions of Section 21 of Article VII, instead of Section 25 of Article XVIII of the Constitution, still, the
President may not be faulted or scarred, much less be adjudged guilty of committing an abuse of
discretion in some patent, gross, and capricious manner.
For while it is conceded that Article VIII, Section 1, of the Constitution has broadened the scope of
judicial inquiry into areas normally left to the political departments to decide, such as those relating to
C o n s t i t u t i o n a l L a w I I A r t . I I I S e c . 3 a n d 4 P a g e | 102
national security, it has not altogether done away with political questions such as those which arise in
the field of foreign relations.[54] The High Tribunals function, as sanctioned by Article VIII, Section 1, is
merely (to) check whether or not the governmental branch or agency has gone beyond the
constitutional limits of its jurisdiction, not that it erred or has a different view. In the absence of a
showing (of) grave abuse of discretion amounting to lack of jurisdiction, there is no occasion for the
Court to exercise its corrective powerIt has no power to look into what it thinks is apparent error.[55]
As to the power to concur with treaties, the constitution lodges the same with the Senate
alone. Thus, once the Senate[56] performs that power, or exercises its prerogative within the boundaries
prescribed by the Constitution, the concurrence cannot, in like manner, be viewed to constitute an
abuse of power, much less grave abuse thereof.Corollarily, the Senate, in the exercise of its discretion
and acting within the limits of such power, may not be similarly faulted for having simply performed a
task conferred and sanctioned by no less than the fundamental law.
For the role of the Senate in relation to treaties is essentially legislative in character; [57] the
Senate, as an independent body possessed of its own erudite mind, has the prerogative to either accept
or reject the proposed agreement, and whatever action it takes in the exercise of its wide latitude of
discretion, pertains to the wisdom rather than the legality of the act. In this sense, the Senate partakes
a principal, yet delicate, role in keeping the principles of separation of powers and of checks and
balances alive and vigilantly ensures that these cherished rudiments remain true to their form in a
democratic government such as ours. The Constitution thus animates, through this treaty-concurring
power of the Senate, a healthy system of checks and balances indispensable toward our nations pursuit
of political maturity and growth. True enough, rudimentary is the principle that matters pertaining to
the wisdom of a legislative act are beyond the ambit and province of the courts to inquire.
In fine, absent any clear showing of grave abuse of discretion on the part of respondents, this
Court- as the final arbiter of legal controversies and staunch sentinel of the rights of the people - is
then without power to conduct an incursion and meddle with such affairs purely executive and
legislative in character and nature. For the Constitution no less, maps out the distinct boundaries and
limits the metes and bounds within which each of the three political branches of government may
exercise the powers exclusively and essentially conferred to it by law.
WHEREFORE, in light of the foregoing disquisitions, the instant petitions are hereby DISMISSED.
SO ORDERED.
Davide, Jr., C.J., Bellosillo, Kapunan, Quisumbing, Purisima, Pardo, Gonzaga-Reyes, Ynares-
Santiago, and De Leon, Jr., JJ., concur.
Melo, and Vitug, JJ., join the dissent of J. Puno.
Puno, J., see dissenting opinion.
Mendoza, J., in the result.
Panganiban, J., no part due to close personal and former professional relations with a petitioner,
Sen. J.R. Salonga.