Consti-2-sec-34-cases.docx

Republic of the Philippines SUPREME COURT Manila FIRST DIVISION

G.R. No. 93833 September 28, 1995 SOCORRO D. RAMIREZ, petitioner, vs. HONORABLE COURT OF APPEALS, and ESTER S. GARCIA, respondents.

ESG — Ito and (sic) masasabi ko sa 'yo, ayaw kung (sic) mag explain ka, kasi hanggang 10:00 p.m., kinabukasan hindi ka na pumasok. Ngayon ako ang babalik sa 'yo, nag-aaply ka sa States, nag-aaply ka sa review mo, kung kakailanganin ang certification mo, kalimutan mo na kasi hindi ka sa akin makakahingi. CHUCHI — Hindi M'am. Kasi ang ano ko talaga noon icocontinue ko up to 10:00 p.m. ESG — Bastos ka, nakalimutan mo na kung paano ka pumasok dito sa hotel. Magsumbong ka sa Union kung gusto mo. Nakalimutan mo na kung paano ka nakapasok dito "Do you think that on your own makakapasok ka kung hindi ako. Panunumbyoyan na kita (Sinusumbatan na kita). CHUCHI — Itutuloy ko na M'am sana ang duty ko.

KAPUNAN, J.: A civil case damages was filed by petitioner Socorro D. Ramirez in the Regional Trial Court of Quezon City alleging that the private respondent, Ester S. Garcia, in a confrontation in the latter's office, allegedly vexed, insulted and humiliated her in a "hostile and furious mood" and in a manner offensive to petitioner's dignity and personality," contrary to morals, good customs and public policy."1 In support of her claim, petitioner produced a verbatim transcript of the event and sought moral damages, attorney's fees and other expenses of litigation in the amount of P610,000.00, in addition to costs, interests and other reliefs awardable at the trial court's discretion. The transcript on which the civil case was based was culled from a tape recording of the confrontation made by petitioner.2 The transcript reads as follows:

ESG — Kaso ilang beses na akong binabalikan doon ng mga no (sic) ko. ESG — Nakalimutan mo na ba kung paano ka pumasok sa hotel, kung on your own merit alam ko naman kung gaano ka "ka bobo" mo. Marami ang nag-aaply alam kong hindi ka papasa. CHUCHI — Kumuha kami ng exam noon. ESG — Oo, pero hindi ka papasa.

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

CHUCHI — Eh, bakit ako ang nakuha ni Dr. Tamayo

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.

ESG — Kukunin ka kasi ako.

CHUCHI — Kasi, naka duty ako noon.

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

CHUCHI — Eh, di sana —

ESG — Tapos iniwan no. (Sic) CHUCHI — Mag-eexplain ako. CHUCHI — Hindi m'am, pero ilan beses na nila akong binalikan, sabing ganoon —

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

Contrary to law. Pasay City, Metro Manila, September 16, 1988. MARIANO M. CUNETA Asst. City Fiscal

ESG — Wala na akong pakialam, dahil nandito ka sa loob, nasa labas ka puwede ka ng hindi pumasok, okey yan nasaloob ka umalis ka doon. CHUCHI — Kasi M'am, binbalikan ako ng mga taga Union. ESG — Nandiyan na rin ako, pero huwag mong kalimutan na hindi ka makakapasok kung hindi ako. Kung hindi mo kinikilala yan okey lang sa akin, dahil tapos ka na.

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

CHUCHI — Ina-ano ko m'am na utang na loob. ESG — Huwag na lang, hindi mo utang na loob, kasi kung baga sa no, nilapastangan mo ako. CHUCHI — Paano kita nilapastanganan?

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:

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.

[T]he allegations sufficiently constitute an offense punishable under Section 1 of R.A. 4200. In thus quashing the information based on the ground that the facts alleged do not constitute an offense, the respondent judge acted in grave abuse of discretion correctible by certiorari.5 Consequently, on February 21, 1990, petitioner filed a Motion for Reconsideration which respondent Court of Appeals denied in its Resolution 6 dated June 19, 1990. Hence, the instant petition. Petitioner vigorously argues, as her "main and principal issue" 7 that the applicable provision of Republic Act 4200 does not apply to the taping of a private conversation by one of the parties to the conversation. She contends that the provision merely refers to the unauthorized taping of a private conversation by a party other than those involved in the communication. 8 In relation to this, petitioner avers that the substance or content of the conversation must be alleged in the Information, otherwise the facts charged would not constitute a violation of R.A. 4200. 9 Finally, petitioner agues that R.A. 4200 penalizes the taping of a "private communication," not a "private conversation" and that consequently, her act of secretly taping her conversation with private respondent was not illegal under the said act. 10 We disagree. First, legislative intent is determined principally from the language of a statute. Where the language of a statute is clear and unambiguous, the law is applied according to its express terms,

and interpretation would be resorted to only where a literal interpretation would be either impossible 11 or absurb or would lead to an injustice. 12

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?

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:

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

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: 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 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

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 taperecorders 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. Padilla, Davide, Jr. and Bellosillo JJ., concur. Hermosisima, Jr., J., is on leave.

Finally, petitioner's contention that the phrase "private communication" in Section 1 of R.A. 4200 does not include "private conversations" narrows the ordinary meaning of the word "communication" to a point of absurdity. The word communicate comes from the latin word communicare, meaning "to share or to impart." In its ordinary signification, communication connotes the act of sharing or imparting signification, communication connotes the act of sharing or imparting, as in a conversation, 15 or signifies the "process by which meanings or thoughts are shared between individuals through a common system of symbols (as language signs or gestures)" 16 These definitions are broad enough to include verbal or non-verbal, written or expressive communications of "meanings or thoughts" which are likely to include the emotionallycharged 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

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.

(a) the P5,000.00 was no longer acceptable, and that the figure had been increased to P8,000.00. A breakdown of the P8,000.00 had been made together with other demands, to wit: (a) P5,000.00 no longer for the teacher Manuel Montebon, but for Atty. Pintor himself in persuading his client to withdraw the case for Direct Assault against Atty. Laconico before the Cebu City Fiscal's Office; (b) Public apology to be made by Atty. Laconico before the students of Don Bosco Technical High School; (c) Pl,000.00 to be given to the Don Bosco Faculty club; (d) transfer of son of Atty. Laconico to another school or another section of Don Bosco Technical High School;

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.

(e) Affidavit of desistance by Atty. Laconico on the Maltreatment case earlier filed against Manuel Montebon at the Cebu City Fiscal's Office, whereas Montebon's affidavit of desistance on the Direct Assault Case against Atty. Laconico to be filed later; (f) Allow Manuel Montebon to continue teaching at the Don Bosco Technical School; (g) Not to divulge the truth about the settlement of the Direct Assault Case to the mass media; (h) P2,000.00 attorney s fees for Atty. Pintor. (tsn, August 26, 1981, pp. 47-48). Twenty minutes later, complainant called up again to ask Laconico if he was agreeable to the conditions. Laconico answered 'Yes'. Complainant then told Laconico to wait for instructions on where to deliver the money. (tsn, March 10, 1983, pp. 2-12). Complainant called up again and instructed Laconico to give the money to his wife at the office of the then Department of Public Highways. Laconico who earlier alerted his friend Colonel Zulueta of the Criminal Investigation Service of the Philippine Constabulary, insisted that complainant himself should receive the money. (tsn, March 10, 1982, pp. 26-33). When he received the money at the Igloo Restaurant, complainant was arrested by agents of the Philippine Constabulary. Appellant executed on the following day an affidavit stating that he heard complainant demand P8,000.00 for the withdrawal of the case for direct assault. Laconico attached the affidavit of appellant to the complainant for robbery/extortion which he filed against complainant. Since appellant listened to

the telephone conversation without complainant's consent, complainant charged appellant and Laconico with violation of the Anti-Wiretapping Act. After trial on the merits, the lower court, in a decision dated November 22, 1982, found both Gaanan and Laconico guilty of violating Section 1 of Republic Act No. 4200. The two were each sentenced to one (1) year imprisonment with costs. Not satisfied with the decision, the petitioner appealed to the appellate court. On August 16, 1984, the Intermediate Appellate Court affirmed the decision of the trial court, holding that the communication between the complainant and accused Laconico was private in nature and, therefore, covered by Rep. Act No. 4200; that the petitioner overheard such communication without the knowledge and consent of the complainant; and that the extension telephone which was used by the petitioner to overhear the telephone conversation between complainant and Laconico is covered in the term "device' as provided in Rep. Act No. 4200. In this petition for certiorari, the petitioner assails the decision of the appellate court and raises the following issues; (a) whether or not the telephone conversation between the complainant and accused Laconico was private in nature; (b) whether or not an extension telephone is covered by the term "device or arrangement" under Rep. Act No. 4200; (c) whether or not the petitioner had authority to listen or overhear said telephone conversation and (d) whether or not Rep. Act No. 4200 is ambiguous and, therefore, should be construed in favor of the petitioner. Section 1 of Rep. Act No. 4200 provides: Section 1. It shall be unlawful for any person, not being authorized by all the parties to any private communication or spoken word, to tap any wire or cable or by using any other device or arrangement, to secretly overhear, intercept, or record such communication or spoken word by using a device commonly known as a dictaphone or dictagraph or detectaphone or walkie-talkie or tape-recorder, or however otherwise described: It shall be unlawful for any person, be he a participant or not in the act or acts penalized in the next preceeding sentence, to knowingly possess any tape record, wire record, disc record, or any other such record, or copies thereof, of any communication or spoken word secured either before or after the effective date of this Act in the manner prohibited by this law; or to replay the same for any other person or persons; or to communicate the contents thereof, either verbally or in writing, or to furnish transcriptions thereof, whether complete or partial, to any other person: Provided, that the use of such record or any copies thereof as evidence in any civil, criminal investigation or trial of offenses mentioned in Section 3 hereof, shall not be covered by this prohibition. We rule for the petitioner. We are confronted in this case with the interpretation of a penal statute and not a rule of evidence. The issue is not the admissibility of evidence secured over an extension line of a telephone by a third party. The issue is whether or not the person called over the telephone and his lawyer

listening to the conversation on an extension line should both face prison sentences simply because the extension was used to enable them to both listen to an alleged attempt at extortion. There is no question that the telephone conversation between complainant Atty. Pintor and accused Atty. Laconico was "private" in the sense that the words uttered were made between one person and another as distinguished from words between a speaker and a public. It is also undisputed that only one of the parties gave the petitioner the authority to listen to and overhear the caller's message with the use of an extension telephone line. Obviously, complainant Pintor, a member of the Philippine bar, would not have discussed the alleged demand for an P8,000.00 consideration in order to have his client withdraw a direct assault charge against Atty. Laconico filed with the Cebu City Fiscal's Office if he knew that another lawyer was also listening. We have to consider, however, that affirmance of the criminal conviction would, in effect, mean that a caller by merely using a telephone line can force the listener to secrecy no matter how obscene, criminal, or annoying the call may be. It would be the word of the caller against the listener's. Because of technical problems caused by the sensitive nature of electronic equipment and the extra heavy loads which telephone cables are made to carry in certain areas, telephone users often encounter what are called "crossed lines". An unwary citizzen who happens to pick up his telephone and who overhears the details of a crime might hesitate to inform police authorities if he knows that he could be accused under Rep. Act 4200 of using his own telephone to secretly overhear the private communications of the would be criminals. Surely the law was never intended for such mischievous results. The main issue in the resolution of this petition, however, revolves around the meaning of the phrase "any other device or arrangement." Is an extension of a telephone unit such a device or arrangement as would subject the user to imprisonment ranging from six months to six years with the accessory penalty of perpetual absolute disqualification for a public officer or deportation for an alien? Private secretaries with extension lines to their bosses' telephones are sometimes asked to use answering or recording devices to record business conversations between a boss and another businessman. Would transcribing a recorded message for the use of the boss be a proscribed offense? or for that matter, would a "party line" be a device or arrangement under the law? The petitioner contends that telephones or extension telephones are not included in the enumeration of "commonly known" listening or recording devices, nor do they belong to the same class of enumerated electronic devices contemplated by law. He maintains that in 1964, when Senate Bill No. 9 (later Rep. Act No. 4200) was being considered in the Senate, telephones and extension telephones were already widely used instruments, probably the most popularly known communication device. Whether or not listening over a telephone party line would be punishable was discussed on the floor of the Senate. Yet, when the bill was finalized into a statute, no mention was made of telephones in the enumeration of devices "commonly known as a dictaphone or dictagraph, detectaphone or walkie talkie or tape recorder or however otherwise described." The omission was not a mere oversight. Telephone party lines were intentionally deleted from the provisions of the Act.

The respondent People argue that an extension telephone is embraced and covered by the term "device" within the context of the aforementioned law because it is not a part or portion of a complete set of a telephone apparatus. It is a separate device and distinct set of a movable apparatus consisting of a wire and a set of telephone receiver not forming part of a main telephone set which can be detached or removed and can be transferred away from one place to another and to be plugged or attached to a main telephone line to get the desired communication corning from the other party or end. The law refers to a "tap" of a wire or cable or the use of a "device or arrangement" for the purpose of secretly overhearing, intercepting, or recording the communication. There must be either a physical interruption through a wiretap or the deliberate installation of a device or arrangement in order to overhear, intercept, or record the spoken words. An extension telephone cannot be placed in the same category as a dictaphone, dictagraph or the other devices enumerated in Section 1 of RA No. 4200 as the use thereof cannot be considered as "tapping" the wire or cable of a telephone line. The telephone extension in this case was not installed for that purpose. It just happened to be there for ordinary office use. It is a rule in statutory construction that in order to determine the true intent of the legislature, the particular clauses and phrases of the statute should not be taken as detached and isolated expressions, but the whole and every part thereof must be considered in fixing the meaning of any of its parts. (see Commissioner of Customs v. Esso Estandard Eastern, Inc., 66 SCRA 113,120). In the case of Empire Insurance Com any v. Rufino (90 SCRA 437, 443-444), we ruled: Likewise, Article 1372 of the Civil Code stipulates that 'however general the terms of a contract may be, they shall not be understood to comprehend things that are distinct and cases that are different from those upon which the parties intended to agree.' Similarly, Article 1374 of the same Code provides that 'the various stipulations of a contract shall be interpreted together, attributing to the doubtful ones that sense which may result from all of them taken jointly. xxx xxx xxx Consequently, the phrase 'all liabilities or obligations of the decedent' used in paragraph 5(c) and 7(d) should be then restricted only to those listed in the Inventory and should not be construed as to comprehend all other obligations of the decedent. The rule that 'particularization followed by a general expression will ordinarily be restricted to the former' is based on the fact in human experience that usually the minds of parties are addressed specially to the particularization, and that the generalities, though broad enough to comprehend other fields if they stood alone, are used in contemplation of that upon which the minds of the parties are centered. (Hoffman v. Eastern Wisconsin R., etc., Co., 134 Wis. 603, 607, 115 NW 383, cited in Francisco, Revised Rules of Court (Evidence), 1973 ed, pp. 180-181). Hence, the phrase "device or arrangement" in Section 1 of RA No. 4200, although not exclusive to that enumerated therein, should be construed to comprehend instruments of the same or similar

nature, that is, instruments the use of which would be tantamount to tapping the main line of a telephone. It refers to instruments whose installation or presence cannot be presumed by the party or parties being overheard because, by their very nature, they are not of common usage and their purpose is precisely for tapping, intercepting or recording a telephone conversation. An extension telephone is an instrument which is very common especially now when the extended unit does not have to be connected by wire to the main telephone but can be moved from place ' to place within a radius of a kilometer or more. A person should safely presume that the party he is calling at the other end of the line probably has an extension telephone and he runs the risk of a third party listening as in the case of a party line or a telephone unit which shares its line with another. As was held in the case of Rathbun v. United States (355, U.S. 107, 2 L Ed 2d 137-138): Common experience tells us that a call to a particular telephone number may cause the bell to ring in more than one ordinarily used instrument. Each party to a telephone conversation takes the risk that the other party may have an extension telephone and may allow another to overhear the conversation. When such takes place there has been no violation of any privacy of which the parties may complain. Consequently, one element of 605, interception, has not occurred. In the same case, the Court further ruled that the conduct of the party would differ in no way if instead of repeating the message he held out his hand-set so that another could hear out of it and that there is no distinction between that sort of action and permitting an outsider to use an extension telephone for the same purpose. Furthermore, it is a general rule that penal statutes must be construed strictly in favor of the accused. Thus, in case of doubt as in the case at bar, on whether or not an extension telephone is included in the phrase "device or arrangement", the penal statute must be construed as not including an extension telephone. In the case of People v. Purisima, 86 SCRA 542, 562, we explained the rationale behind the rule: American jurisprudence sets down the reason for this rule to be the tenderness of the law of the rights of individuals; the object is to establish a certain rule by conformity to which mankind would be safe, and the discretion of the court limited. (United States v. Harris, 177 US 305, 44 L Ed 780, 20 S Ct 609; Braffith v. Virgin Islands (CA3) 26 F2d 646; Caudill v. State, 224 Ind 531, 69 NE2d; Jennings v. Commonwealth, 109 VA 821,63 SE 1080, all cited in 73 Am Jur 2d 452). The purpose is not to enable a guilty person to escape punishment through a technicality but to provide a precise definition of forbidden acts." (State v. Zazzaro, 20 A 2d 737, quoted in Martin's Handbook on Statutory Construction, Rev. Ed. pp. 183-184). In the same case of Purisima, we also ruled that on the construction or interpretation of a legislative measure, the primary rule is to search for and determine the intent and spirit of the law. A perusal of the Senate Congressional Records will show that not only did our lawmakers not contemplate the inclusion of an extension telephone as a prohibited device or arrangement" but of greater importance, they were more concerned with penalizing the act of recording than the act of merely listening to a telephone conversation.

xxx xxx xxx Senator Tañada. Another possible objection to that is entrapment which is certainly objectionable. It is made possible by special amendment which Your Honor may introduce. Senator Diokno.Your Honor, I would feel that entrapment would be less possible with the amendment than without it, because with the amendment the evidence of entrapment would only consist of government testimony as against the testimony of the defendant. With this amendment, they would have the right, and the government officials and the person in fact would have the right to tape record their conversation. Senator 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. WHEREFORE, the petition is GRANTED. The decision of the then Intermediate Appellate Court dated August 16, 1984 is ANNULLED and SET ASIDE. The petitioner is hereby ACQUITTED of the crime of violation of Rep. Act No. 4200, otherwise known as the Anti-Wiretapping Act. SO ORDERED. Feria (Chairman), Fernan, Alampay and Paras, JJ., concur.

SECOND DIVISION

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.

[G.R. No. 107383. February 20, 1996.]

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

CECILIA ZULUETA, petitioner, MARTIN, respondents.

vs. COURT

OF

APPEALS

and

ALFREDO

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

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]

inviolable3 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 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.

Republic of the Philippines SUPREME COURT

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

EN BANC G.R. No. 160792 August 25, 2005 IN THE MATTER OF THE PETITION FOR HABEAS CORPUS OF CAPT. GARY ALEJANO, PN (MARINES) CAPT. NICANOR FAELDON, PN (MARINES) CAPT. GERARDO GAMBALA, PA LT. SG JAMES LAYUG, PN CAPT. MILO MAESTRECAMPO, PA LT. SG ANTONIO TRILLANES IV, PN HOMOBONO ADAZA, and ROBERTO RAFAEL (ROEL) PULIDO, Petitioners, vs. GEN. PEDRO CABUAY, GEN. NARCISO ABAYA, SEC. ANGELO REYES, and SEC. ROILO GOLEZ,Respondents. DECISION

On 31 July 2003, Gen. Abaya, as the Chief of Staff of the AFP, issued a directive to all the Major Service Commanders to turn over custody of ten junior officers to the ISAFP Detention Center. The transfer took place while military and civilian authorities were investigating the soldiers’ involvement in the Oakwood incident. On 1 August 2003, government prosecutors filed an Information for coup d’etat with the Regional Trial Court of Makati City, Branch 61, against the soldiers involved in the 27 July 2003 Oakwood incident. The government prosecutors accused the soldiers of coup d’etat as defined and penalized under Article 134-A of the Revised Penal Code of the Philippines, as amended. The case was docketed as Criminal Case No. 03-2784. The trial court later issued the Commitment Orders giving custody of junior officers Lt. SG Antonio Trillanes IV ("Trillanes") and Capt. Gerardo Gambala to the Commanding Officers of ISAFP. On 2 August 2003, Gen. Abaya issued a directive to all Major Service Commanders to take into custody the military personnel under their command who took part in the Oakwood incident except the detained junior officers who were to remain under the custody of ISAFP.

CARPIO, J.: The Case This petition for review1 seeks to nullify the Decision2 of the Court of Appeals dated 17 September 2003 and Resolution dated 13 November 2003 in CA-G.R. SP No. 78545. The Court of Appeals’ Decision and Resolution dismissed the petition for habeas corpus filed by lawyers Homobono Adaza and Roberto Rafael Pulido ("petitioners") on behalf of their detained clients Capt. Gary Alejano (PN-Marines), Capt. Nicanor Faeldon (PN-Marines), Capt. Gerardo Gambala (PA), Lt. SG James Layug (PN), Capt. Milo Maestrecampo (PA), and Lt. SG Antonio Trillanes IV (PN) ("detainees"). Petitioners named as respondent Gen. Pedro Cabuay ("Gen. Cabuay"), Chief of the Intelligence Service of the Armed Forces of the Philippines ("ISAFP"), who has custody of the detainees. Petitioners impleaded Gen. Narciso Abaya ("Gen. Abaya"), Sec. Angelo Reyes and Roilo Golez, who are respectively the Chief of Staff of the Armed Forces of the Philippines ("AFP"), Secretary of National Defense and National Security Adviser, because they have command responsibility over Gen. Cabuay. Antecedent Facts Early morning of 27 July 2003, some 321 armed soldiers, led by the now detained junior officers, entered and took control of the Oakwood Premier Luxury Apartments ("Oakwood"), an upscale apartment complex, located in the business district of Makati City. The soldiers disarmed the security officers of Oakwood and planted explosive devices in its immediate surroundings. The junior officers publicly renounced their support for the administration and called for the resignation of President Gloria Macapagal-Arroyo and several cabinet members.

On 11 August 2003, petitioners filed a petition for habeas corpus with the Supreme Court. On 12 August 2003, the Court issued a Resolution, which resolved to: (a) ISSUE the WRIT OF HABEAS CORPUS; (b) require respondents to make a RETURN of the writ on Monday, 18 August 2003, at 10:00 a.m. before the Court of Appeals; (c) refer the case to the Court of Appeals for RAFFLE among the Justices thereof for hearing, further proceedings and decision thereon, after which a REPORT shall be made to this Court within ten (10) days from promulgation of the decision.3 Thus, the Court issued a Writ of Habeas Corpus dated 12 August 2003 directing respondents to make a return of the writ and to appear and produce the persons of the detainees before the Court of Appeals on the scheduled date for hearing and further proceedings. On the same date, the detainees and their other co-accused filed with the Regional Trial Court of Makati City a Motion for Preliminary Investigation, which the trial court granted. On 18 August 2003, pursuant to the directives of the Court, respondents submitted their Return of the Writ and Answer to the petition and produced the detainees before the Court of Appeals during the scheduled hearing. After the parties filed their memoranda on 28 August 2003, the appellate court considered the petition submitted for decision. On 17 September 2003, the Court of Appeals rendered its decision dismissing the petition. Nonetheless, the appellate court ordered Gen. Cabuay, who was in charge of implementing the regulations in the ISAFP Detention Center, to uphold faithfully the rights of the detainees in

accordance with Standing Operations Procedure No. 0263-04. The appellate court directed Gen. Cabuay to adhere to his commitment made in court regarding visiting hours and the detainees’ right to exercise for two hours a day. The Ruling of the Court of Appeals The Court of Appeals found the petition bereft of merit. The appellate court pointed out that the detainees are already charged of coup d’etat 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 court’s decision reads: WHEREFORE, the foregoing considered, the instant petition is hereby DISMISSED. Respondent Cabuay is hereby ORDERED to faithfully adhere to his commitment to uphold the constitutional rights of the detainees in accordance with the Standing Operations Procedure No. 0263-04 regarding visiting hours and the right of the detainees to exercise for two (2) hours a day. SO ORDERED.4 The Issues Petitioners raise the following issues for resolution: A. THE COURT OF APPEALS ERRED IN REVIEWING AND REVERSING A DECISION OF THE SUPREME COURT; B. THE COURT OF APPEALS ERRED IN NOT ACKNOWLEDGING THE APPROPRIATENESS OF THE REMEDY PETITIONERS SEEK; and C. THE COURT OF APPEALS ERRED IN ASSERTING THE LEGALITY OF THE CONDITIONS OF THE DETAINED JUNIOR OFFICERS’ DETENTION.5

The Ruling of the Court The petition lacks merit. Petitioners claim that the Court’s 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 Court’s 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 Court’s 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 writ’s application to circumstances where there is deprivation of a person’s 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 one’s 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 (₱4,000.00). The provisions of the above Section notwithstanding, any security officer with custodial responsibility over any detainee or prisoner may undertake such reasonable measures as may be necessary to secure his safety and prevent his escape. (Emphasis supplied) True, Section 4(b) of RA 7438 makes it an offense to prohibit a lawyer from visiting a detainee client "at any hour of the day or, in urgent cases, of the night." However, the last paragraph of the same Section 4(b) makes the express qualification that "notwithstanding" the provisions of Section 4(b), the detention officer has the power to undertake such reasonable measures as may be necessary to secure the safety of the detainee and prevent his escape. The last paragraph of Section 4(b) of RA 7438 prescribes a clear standard. The regulations governing a detainee’s 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 government’s 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 detainee’s 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 basis clearly 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 detainee’s 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

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

We quote Bell v. Wolfish:

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, nonpunitive response to valid security concerns.

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 Government’s interest in ensuring a detainee’s 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 institution’s interest in maintaining jail security do not, without more, constitute unconstitutional punishment, even if they are discomforting and are restrictions that the detainee would not have experienced had he been released while awaiting trial. We need not here attempt to detail the precise extent of the legitimate governmental interests that may justify conditions or restrictions of pretrial detention. It is enough simply to recognize that in addition to ensuring the detainees’ presence at trial, the effective management of the detention facility once the individual is confined is a valid objective that may justify imposition of conditions and restrictions of pretrial detention and dispel any inference that such restrictions are intended as punishment.30

An action constitutes a punishment when (1) that action causes the inmate to suffer some harm or "disability," and (2) the purpose of the action is to punish the inmate. 31 Punishment also requires that the harm or disability be significantly greater than, or be independent of, the inherent discomforts of confinement.32 Block v. Rutherford,33 which reiterated Bell v. Wolfish, upheld the blanket restriction on contact visits as this practice was reasonably related to maintaining security. The safety of innocent individuals will be jeopardized if they are exposed to detainees who while not yet convicted are awaiting trial for serious, violent offenses and may have prior criminal conviction. 34 Contact visits make it possible for the detainees to hold visitors and jail staff hostage to effect escapes. 35 Contact visits also leave the jail vulnerable to visitors smuggling in weapons, drugs, and other contraband.36 The restriction on contact visits was imposed even on low-risk detainees as they

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

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 People’s 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 citizen’s 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. Travisono49 recognized that pre-trial detainees, unlike convicted prisoners, enjoy a limited right of privacy in communication. Censorship of pre-trial detainees’ mail addressed to public officials, courts and counsel was held impermissible. While incoming mail may be inspected for contraband and read in certain instances, outgoing mail of pre-trial detainees could not be inspected or read at all. In the subsequent case of Wolff v. McDonnell,50 involving convicted prisoners, the U.S. Supreme Court held that prison officials could open in the presence of the inmates incoming mail from attorneys to inmates. However, prison officials could not read such mail from attorneys. Explained the U.S. Supreme Court: The issue of the extent to which prison authorities can open and inspect incoming mail from attorneys to inmates, has been considerably narrowed in the course of this litigation. The prison regulation under challenge provided that ‘(a)ll incoming and outgoing mail will be read and inspected,’ and no exception was made for attorney-prisoner mail. x x x Petitioners now concede that they cannot open and read mail from attorneys to inmates, but contend that they may open all letters from attorneys as long as it is done in the presence of the prisoners. The narrow issue thus presented is whether letters determined or found to be from attorneys may be opened by prison authorities in the presence of the inmate or whether such mail must be delivered unopened if normal detection techniques fail to indicate contraband. xxx x x x If prison officials had to check in each case whether a communication was from an attorney before opening it for inspection, a near impossible task of administration would be imposed. We think it entirely appropriate that the State require any such communications to be specially marked as originating from an attorney, with his name and address being given, if they are to receive special treatment. It would also certainly be permissible that prison authorities require that a lawyer desiring to correspond with a prisoner, first identify himself and his client to the prison officials, to assure that the letters marked privileged are actually from members of the bar. As to the ability to open the mail in the presence of inmates, this could in no way constitute censorship, since the mail would not be read. Neither could it chill such communications, since the inmate’s 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 prisoner’s 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. Wiggins56 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. 62

That a law is required before an executive officer could intrude on a citizen’s privacy rights 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, pretrial detainees and convicted prisoners have a diminished expectation of privacy rights. In assessing the regulations imposed in detention and prison facilities that are alleged to infringe on the constitutional rights of the detainees and convicted prisoners, U.S. courts "balance the guarantees of the Constitution with the legitimate concerns of prison administrators." 63 The deferential review of such regulations stems from the principle that: [s]ubjecting the day-to-day judgments of prison officials to an inflexible strict scrutiny analysis would seriously hamper their ability to anticipate security problems and to adopt innovative solutions to the intractable problems of prison administration. 64 The detainees in the present case are junior officers accused of leading 300 soldiers in committing coup d’etat, 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 CAG.R. SP No. 78545. No pronouncement as to costs. SO ORDERED. ANTONIO T. CARPIO

The instant cases had their beginnings in 1977 when the National Housing Authority (NHA) filed expropriation proceedings against the Zuzuarreguis, petitioners in G.R. No. 152104, for parcels of land belonging to the latter situated in Antipolo, Rizal, with a total land area of 1,790,570.36 square meters, more or less. This case was lodged before the RTC, Branch 141, Municipality of Makati,5 docketed therein as Civil Case No. 26804 entitled, "National Housing Authority v. Pilar Ibañez Vda. De Zuzuarregui, et al." On 25 May 1983, said case was ordered archived 6 by Branch 141. FIRST DIVISION G.R. No. 152072

January 31, 2006

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

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

April 22, 1983

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

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

G.R. No. 152104

Dear Sir and Madam:

January 31, 2006

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

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

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

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

5. You are willing to accept NHA 5-year bonds as part payment up to 75% of the total compensation. In the event of your desire to discount the bonds, we shall assist to have them discounted at 75% of its face value. 6. Our lawyer’s fees shall be in the proportion of the cash/bonds ratio of the just compensation. Likewise our fees are subject to 10% withholding tax. xxxx Should the above proposal be acceptable to your goodselves, kindly signify your formal acceptance as (sic) the space hereunder provided.

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

Very truly yours, (Sgd.) (Sgd.) SANTIAGO N. PASTOR ROMEO G. ROXAS Lawyer Lawyer CONFORME: (Sgd.) (Sgd.) ANTONIO DE ZUZUARREGUI, JR. PACITA JAVIER In my behalf and as heir to the late Pilar Y. vda. De Zuzuarregui as heir to the late Jose De Zuzuarregui7 A Motion to Set Case for Hearing,8 dated 14 February 1984, was filed by Attys. Roxas and Pastor in Civil Case No. 26804, praying that the case be revived and be set for hearing by the court at the earliest date available in its calendar.

(2) To represent us in the negotiations for a compromise with the National Housing Authority for our properties subject of the above case; (3) To negotiate for and in our behalves for the settlement of the just compensation of our properties payable in cash or in bonds; (4) To sign and prepare all papers relative to the preparation of a Compromise Agreement or any papers and communications which shall eventually bear our signatures; and (5) That this Special Power of Attorney is enforce (sic) as long as ATTYS. ROMEO G. ROXAS AND SANTIAGO PASTOR are our lawyers in Civil Case No. 26804 before the Regional Trial Court, Makati, Branch CXLI.

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

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

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

IN WITNESS WHEREOF, We have hereunto set our hands this 26th day of August, 1985, in Makati, M. M., Philippines. (Sgd.) ANTONIO DE ZUZUARREGUI, JR.1avvph!l.ne+ (Sgd.) ENRIQUE DE ZUZUARREGUI

JOINT SPECIAL POWER OF ATTORNEY

(Sgd.) PACITA JAVIER10

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

4. To accept for and in my behalf payments for my properties after the Compromise Agreement is duly approved by the Court, the actual receipts of which payments shall be signed by me. HEREBY GIVING AND GRANTING unto my said attorneys full power and authority whatsoever requisite, necessary or proper … to be done under and by virtue of these presents. IN WITNESS WHEREOF, I have hereunto set my hand this 22nd day of November 1985, in the City of Manila, Philippines. (Sgd.) BEATRIZ ZUZUARREGUI VDA. DE REYES11

SPECIAL POWER OF ATTORNEY KNOW ALL MEN BY THESE PRESENTS: That I, BEATRIZ ZUZUARREGUI VDA. DE REYES, Filipino, of legal age, widow, and a resident of E. Rodriguez Ave., Quezon City, Philippines do hereby appoint, name and constitute ATTYS. ROMEO G. ROXAS, SANTIAGO PASTOR and BASILIO H. TOQUERO, to be my true and lawful attorneys … : 1. To represent me in the negotiation for a Compromise with the National Housing Authority for my properties subject to my approval in CIVIL CASE No. 26804, entitled "National Housing Authority vs. Pilar Ibañez de Zuzuarregui, et al., before the Regional Trial Court, Makati, Branch CXLI; 2. To negotiate for and in my behalf for the settlement of the just compensation of my properties payable in cash or in bond, subject to my approval; 3. To sign and prepare all papers relative to the preparation of a Compromise Agreement or any papers and communications which shall eventually bear my signature;

On 10 December 1985, a Letter-Agreement was executed by and between Antonio Zuzuarregui, Jr., Pacita Javier and Enrique De Zuzuarregui, on the one hand, and Attys. Romeo G. Roxas and Santiago Pastor, on the other. The said Letter-Agreement reads: December 10, 1985 Atty. Romeo G. Roxas Atty. Santiago Pastor Makati Executive Center Salcedo Village, Makati Dear Atty. Roxas & Atty. Pastor: This will confirm an amendment to our agreement regarding your attorney’s fees as our lawyers and counsels for the Zuzuarregui’s properties expropriated by National Housing Authority covering ONE HUNDRED SEVENTY-NINE (179) HECTARES, more or less, covered by TCT Nos. 138340, 85633 and 85634 and filed as Civil Case No. 26804. We hereby confirm and agree that we are willing to accept as final and complete settlement for our 179 hectares expropriated by NHA a price of SEVENTEEN PESOS (P17.00) per square meter, or for a total of THIRTY MILLION FOUR HUNDRED THOUSAND PESOS (P30.4 Million), all payable in NHA Bonds.

We also agree and confirm that for and in consideration of your services as our lawyers and counsels in the said expropriation case, we commit and bind ourselves to pay to you, your heirs or assignees-in-interest, as your contingent attorney’s fees any and all amount in excess of the SEVENTEEN PESOS (P17.00) per square meter payable in NHA bonds as mentioned above. This Letter Agreement serves also as your authority to collect directly from NHA the amount pertaining to you as your contingent attorney’s fees. This Letter Agreement hereby amends and supersedes our previous agreement regarding your attorney’s fees as our lawyers and counsels in the above-mentioned expropriation case. Very truly yours, (Sgd.) ANTONIO DE ZUZUARREGUI, JR. In my behalf as heir to the late Pilar I. vda. de Zuzuarregui (Sgd.)PACITA JAVIER As heir to the late Jose De Zuzuarregui (Sgd.) ENRIQUE DE ZUZUARREGUI CONFORME: (Sgd.)ATTY. ROMEO G. ROXAS (Sgd.)ATTY. SANTIAGO PASTOR12 Resolution No. 117413 dated 16 December 1985 was issued by the NHA stating that the Zuzuarregui property would be acquired at a cost of P19.50 per square meter; that the Zuzuarreguis would be paid in NHA Bonds, subject to the availability of funds; and that the yield on the bonds to be paid to the Zuzuarreguis shall be based on the Central Bank rate at the time of payment. As a result of the aforesaid NHA Resolution, a Compromise Agreement was executed between the Zuzuarreguis and the NHA in Civil Case No. 26804. The Compromise Agreement, stipulated among other things, that the just compensation of the Zuzuarregui properties would be at P19.50 per square meter payable in NHA Bonds. In a Decision dated 20 December 1985, the RTC, Branch 141, Makati, approved the Compromise Agreement submitted by the parties. On 27 December 1985, the NHA Legal Department, through Atty. Jose B. H. Pedrosa, released to Atty. Romeo G. Roxas, in behalf of the Zuzuarreguis, the amount of P20,000,000.00 in NHA Bearer Bonds as "partial payment for several parcels of land with a total area of 1,790,570.36 square meters located in Antipolo, Rizal."14 On even date, Atty. Romeo G. Roxas delivered NHA Bonds to Antonio De Zuzuarregui in the amount of P15,000,000.00.15 On 04 February 1986, the amount of P34,500,000.00 in Bearer Bonds was again released by the NHA to Atty. Romeo G.

Roxas in behalf of the Zuzuarreguis.16 On 14 February 1986, the Zuzuarreguis issued a receipt17 for receiving the amount of P30,070,000.00. This receipt included the P15,000,000.00 given to them last 27 December 1985. Again on 17 February 1986, the Zuzuarreguis, through Beatriz Zuzuarregui vda. De Reyes, issued another receipt for the amount of P450,000.00 in NHA bonds.18 The total amount in NHA bonds released to Atty. Romeo G. Roxas in behalf of the Zuzuarreguis amounted to P54,500,000.00. Out of this amount, the records show that the amount turned over to the Zuzuarreguis by Atty. Roxas amounted to P30,520,000.00 in NHA bonds. Computed at P19.50 per square meter, the 1,790,570.36 square meters property of the Zuzuarreguis was expropriated at a total price of P34,916,122.00. The total amount released by the NHA was P54,500,000.00. The difference of P19,583,878.00 is, undoubtedly, the yield on the bonds. On 25 August 1987, a letter19 was sent by the Zuzuarreguis’ new counsel, Jose F. Gonzalez, to Attys. Roxas and Pastor, demanding that the latter deliver to the Zuzuarreguis the yield corresponding to bonds paid by the NHA within a period of 10 days from receipt, under pain of administrative, civil and/or criminal action. Attys. Roxas and Pastor answered via a letter dated 21 September 1987 explaining their side of the story. They stated therein, among other things, that the amount that they got seems huge from the surface, but it just actually passed their hands, as it did not really go to them. 20 On 29 September 1987, a letter21 was sent by the Zuzuarreguis through Antonio De Zuzuarregui, Jr., to Attys. Romeo G. Roxas and Santiago N. Pastor, informing the latter that their services as counsels of the Zuzuarreguis (except Betty) in the expropriation proceedings filed by the NHA, docketed as Civil Case No. 26804, was being formally terminated. Apparently unsatisfied with the explanation of Attys. Roxas and Pastor, the Zuzuarreguis filed a civil action for Sum of Money and Damages on 14 November 1989 before the RTC, Quezon City, Branch 98, docketed as Civil Case No. Q-89-4013, against the NHA, Jose B. H. Pedrosa, Atty. Romeo G. Roxas and Atty. Santiago N. Pastor. The Zuzuarreguis demanded that the yield on the NHA bonds be turned over to them. After due hearing, a Decision22 in Civil Case No. Q-89-4013 was rendered on 03 January 1994, dismissing the Complaint. The dispositive portion reads: WHEREFORE, in view of the foregoing consideration[s], judgment is hereby rendered ordering the dismissal of the complaint against all the defendants; and, further ordering plaintiffs, jointly and solidarily, to: 1. Pay each of the defendants Romeo G. Roxas, Santiago Pastor and Jose B. H. Perdosa, the amount of P200,000.00, P200,000.00 and P100,000.00, respectively, as moral damages; 2. Pay each of the defendants Roxas, Pastor and Pedrosa, the amount of P50,000.00, P50,000.00, and P25,000.00, respectively as exemplary damages;

3. Pay attorney’s fees to defendants Roxas and Pastor in the amount of P20,000.00; and 4. Pay the costs of this suit. A Notice of Appeal23 dated 10 February 1994 was filed by the Zuzuarreguis. Subsequently, on 26 April 1995, the Zuzuarreguis filed their appeal brief with the Court of Appeals. The case was docketed as CA-G.R. CV No. 45732. A Decision24 was eventually promulgated by the Fifteenth Division of the Court of Appeals on 25 June 2001, reversing and setting aside the ruling of Branch 98, viz: Therefore, We find that the amount of P4,476,426.275 is, in the opinion of this Court, commensurate to the services rendered by defendants-appellees. This amount has been arrived at by giving to defendants-appellees P2.50 per square meter of the 1,790,570.51 square meter expropriated properties of herein plaintiffs-appellants.

II THE HONORABLE COURT OF APPEALS GRAVELY ERRED ON A QUESTION OF LAW IN HOLDING THAT DEFENDANTS-APPELLANTS, HEREIN PETITIONERS, CONCEALED TO THE PLAINTIFFS-APPELLEES, HEREIN RESPONDENTS, THE YIELD OF THE NHA BONDS 31 The Zuzuarreguis, petitioners in G.R. No. 152101, on the other hand, assign as errors the following: I THE COURT OF APPEALS ERRED IN AWARDING TO PETITIONERS THE PRINCIPAL AMOUNT OF ONLY P12,596,696.425 AND NOT P17,073,122.70 MAKING A DIFFERENCE OF P4,476,426.28 II

WHEREFORE, IN VIEW OF THE FOREGOING, the decision dated January 3, 1994 of the Regional Trial Court, National Capital Judicial Region, Branch 98, Quezon City in Civil Case No. 89-4013 entitled "Antonio Zuzuarregui, Jr., et al. versus National Housing Authority, et al." for "Sum of Money and Damages," is hereby REVERSED and SET ASIDE. Defendants-Appellees Roxas and Pastor are hereby ordered to return to plaintiffs-appellants the amount of P12,596,696.425, the balance from the P17,073,122.70, received as yield from NHA bonds after deducting the reasonable attorney’s fees in the amount of P4,476,426.275. 25 26

Attys. Roxas and Pastor filed a Motion for Reconsideration on 25 July 2001. The Zuzuarreguis also filed a Motion for Reconsideration27 on 30 July 2001, not having been satisfied with the award, while the NHA and Pedrosa filed their Motions for Reconsideration 28 on 03 August 2001. In a Resolution dated 06 February 2002, the Court of Appeals denied for lack of merit all the Motions for Reconsideration. On 05 March 2002, Attys. Roxas and Pastor filed a Petition for Review on Certiorari 29 assailing the Decision of the Court of Appeals, docketed as G.R. No. 152072. Likewise, on 21 March 2002, the Zuzuarreguis filed their own Petition for Review on Certiorari 30 assailing the same Decision, docketed as G.R. No. 152104.1avvph!l.ne+ ASSIGNMENT OF ERRORS

THE RESPONDENTS SHOULD BE HELD LIABLE FOR INTEREST FROM THE DATE OF THE FILING OF THE COMPLAINT UNTIL FULLY PAID III THE RESPONDENTS SHOULD BE HELD LIABE FOR MORAL AND EXEMPLARY DAMAGES AND ATTORNEY’S FEES IV THE RESPONDENTS NHA AND JOSE B.H. PEDROSA ARE JOINTLY AND SEVERALLY LIABLE WITH RESPONDENTS ROXAS AND PASTOR32 ISSUE FOR RESOLUTION Drawn from the above assignment of errors, it is patent that the principal issue that must be addressed by this Court is:

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

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

I

THE COURT’S RULING

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

Attys. Roxas and Pastor, petitioners in G.R. No. 152072, contend in the main that the Zuzuarreguis are only entitled to the amount of P17.00 per square meter for the 1,790,570.36 square meters expropriated by the government. This was, according to them, embodied in the Letter-Agreement dated 10 December 1985, wherein the Zuzuarreguis agreed to accept the price

of P17.00 per square meter. Besides, Attys. Roxas and Pastor contend that the price of P17.00 was even way above the P11.00 that the Zuzuarreguis were willing to accept for their properties under the Letter of Engagement executed by the parties earlier on 22 April 1983. Computed at P17.00 per square meter, they stress that the amount that should go to the Zuzuarreguis for their 1,790,570.36 square meters property should be P30,439,696.10, and that in fact the Zuzuarreguis have received P30,520,000.00. The Letter-Agreement dated 10 December 1985 should thus stand as law between the parties. Since this Letter-Agreement, which was "as plain and simple as can be such that there is no need for any further construction," already fixed the amount that would go to the Zuzuarreguis (P17.00 per square meter), then it should be so. Attys. Roxas and Pastor further assert that the receipts issued by the Zuzuarreguis dated 14 February 1986 and 17 February 1986 indicated that the amounts received by the latter were in "full and final payment" for the subject properties. The NHA, for its part, insists that there was no conspiracy between Attys. Roxas and Pastor on the one hand, and the NHA and Atty. Pedrosa on the other, on the application of yields from NHA bonds.33 The Zuzuarreguis, according to the NHA, "miserably failed to substantiate and establish conspiracy" between them. The Zuzuarreguis, for their part, though they were triumphant in the Court of Appeals, insist that the amounts awarded them were not enough. According to them, the P12,596,696.425 awarded by the Court of Appeals was not correct. They should have been awarded the amount of P17,073,122.70. Quoting the Zuzuarreguis: Respondents Roxas and Pastor retained for themselves the amount of P3,980,000.00 which represented the agreed attorney’s fees of Roxas and Pastor at P2.50 per square meter. The amount of P20,000,000.00 representing the yield of all the bearer bonds was, in the words of the Court of Appeals, "deliberately hidden" by respondents Roxas and Pastor from petitioners. By mathematical computation, the P20,000,000.00 yield should be proportionately divided at the ratio of P17.00 (petitioners’) and P2.50 (share of respondents Roxas and Pastor). Following this ratio of division, of the P20,000,000.00 yield, P17,073,122.70 should pertain to petitioners and the balance of P2,926,877.30 to respondents Roxas and Pastor. Add this amount to the total of P3,980,000.00 at the agreed rate of P2.50 per square meter, the total attorney’s fees of respondents Roxas and Pastor should be P6,906,877.30, not bad, again in the words of the Court of Appeals, for handling "a simple expropriation case which ended up in a compromise agreement." It was, therefore, in error to still deduct the amount of P4,476,426.28 from petitioners share in the yield in the amount of P17,073,122.70 leaving then only P12,596,696.42. What was done, however, is that the product of 1,790,570.36 sq m. (area of the expropriated land of petitioners) and P2.50 which is 4,476,426.28 was again deducted from the P17,073,122.70 which is the corresponding share of the petitioners out of the total yield of P20,000,000.00. If this were a criminal case, petitioners were being sentenced twice for the same offense. 34 The Zuzuarreguis further insist that legal interest on the amount of P17,073,122.70 be imposed from the date of the filing of the complaint, including moral and exemplary damages, and attorney’s fees.

We sustain the Court of Appeals, but with modification in the computation. A contract is a meeting of the minds between two persons whereby one binds himself, with respect to the other, to give something or to render some service. 35 Contracts shall be obligatory, in whatever form they may have been entered into, provided all the essential requisites for their validity are present.36 Under Article 1318 of the Civil Code, there are three essential requisites which must concur in order to give rise to a binding contract: (1) consent of the contracting parties; (2) object certain which is the subject matter of the contract; and (3) cause of the obligation which is established. 37 All these requisites were present in the execution of the Letter-Agreement. Consent is manifested by the meeting of the offer and the acceptance upon the thing and the cause which are to constitute the contract.38 The Zuzuarreguis, in entering into the LetterAgreement, fully gave their consent thereto. In fact, it was them (the Zuzuarreguis) who sent the said letter to Attys. Roxas and Pastor, for the purpose of confirming all the matters which they had agreed upon previously. There is absolutely no evidence to show that anybody was forced into entering into the Letter-Agreement. Verily, its existence, due execution and contents were admitted by the Zuzuarreguis themselves.39 The second requisite is the object certain. The objects in this case are twofold. One is the money that will go to the Zuzuarreguis (P17.00 per square meter), and two, the money that will go to Attys. Roxas and Pastor (any and all amount in excess of P17.00 per square meter). There was certainty as to the amount that will go to the Zuzuarreguis, and there was likewise certainty as to what amount will go to Attys. Roxas and Pastor. The cause is the legal service that was provided by Attys. Roxas and Pastor. In general, cause is the why of the contract or the essential reason which moves the contracting parties to enter into the contract.40 It is basic that a contract is the law between the parties. 41 Obligations arising from contracts have the force of law between the contracting parties and should be complied with in good faith. Unless the stipulations in a contract are contrary to law, morals, good customs, public order or public policy, the same are binding as between the parties.42 In Licudan v. Court of Appeals,43 we did not allow the Contract for Professional Services between the counsel and his client to stand as the law between them as the stipulation for the lawyer’s compensation was unconscionable and unreasonable. We said: Although the Contract for Professional Services dated August 30, 1979 was apparently voluntarily signed by the late Aurelio Licudan for himself and on behalf of his daughter, petitioner Cristina Licudan-Campos and by the petitioner Wilfredo Licudan who both manifested in open court that they gave their free and willing consent to the said contract, we cannot allow the said contract to stand as the law between the parties involved considering that the rule that in the presence of a contract for professional services duly executed by the parties thereto, the same becomes the law

between the said parties is not absolute but admits an exception – that the stipulations therein are not contrary to law, good morals, good customs, public policy or public order. 44

court, as to its reasonableness,47such that under Canon 20 of the Code of Professional Responsibility, a lawyer is tasked to charge only fair and reasonable fees.

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

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

13. Contingent Fees. –

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

A contract for contingent fee, where sanctioned by law, should be reasonable under all the circumstances of the case including the risk and uncertainty of the compensation, but should always be subject to the supervision of a court, as to its reasonableness. and Canon 20, Rule 20.01 of the Code of Professional Responsibility, 46 viz: CANON 20 – A LAWYER SHALL CHARGE ONLY FAIR AND REASONABLE FEES. Rule 20.01. – A lawyer shall be guided by the following factors in determining his fees: (a) The time spent and the extent of the services rendered or required; (b) The novelty and difficulty of the question involved; (c) The importance of the subject matter; (d) The skill demanded; (e) The probability of losing other employment as a result of acceptance of the proffered case; (f) The customary charges for similar services and the schedule of fees of the IBP chapter to which he belongs; (g) The amount involved in the controversy and the benefits resulting to the client from the service; (h) The contingency or certainty of compensation; (i) The character of the employment, whether occasional or established; and (j) The professional standing of the lawyer. However, in cases where contingent fees are sanctioned by law, the same should be reasonable under all the circumstances of the case, and should always be subject to the supervision of a

Attorney’s fees are unconscionable if they affront one’s sense of justice, decency or reasonableness.49 It becomes axiomatic therefore, that power to determine the reasonableness or the, unconscionable character of attorney's fees stipulated by the parties is a matter falling within the regulatory prerogative of the courts. 50 In the instant case, Attys. Roxas and Pastor received an amount which was equal to forty-four percent (44%) of the just compensation paid (including the yield on the bonds) by the NHA to the Zuzuarreguis, or an amount equivalent to P23,980,000.00 of the P54,500,000.00. Considering that there was no full blown hearing in the expropriation case, ending as it did in a Compromise Agreement, the 44% is, undeniably, unconscionable and excessive under the circumstances. Its reduction is, therefore, in order. This is in accordance with our ruling in the earlier case of Tanhueco v. De Dumo51, where we reduced the amount of attorney’s fees from sixty percent (60%) to fifteen percent (15%), for being excessive and unreasonable. It is imperative that the contingent fees received by Attys. Roxas and Pastor must be equitably reduced. In the opinion of this Court, the yield that corresponds to the percentage share of the Zuzuarreguis in the P19.50 per square meter just compensation paid by the NHA must be returned by Attys. Roxas and Pastor.1avvph!l.ne+ The yield on the NHA bonds amounted to P19,583,878.00. This amount must therefore be divided between the Zuzuarreguis, on the one hand, and Attys. Roxas and Pastor, on the other. The division must be pro rata. The amount of P17.00 that should go to the Zuzuarreguis represents 87.18% of the P19.50 per square meter just compensation, The P2.50 per square meter that was to go to Attys. Roxas and Pastor, on the other hand, represents 12.82%. The Zuzuarreguis are entitled to the yield equal to 87.18% of the P19,583,878.00, while Attys. Roxas and Pastor are entitled to 12.82% of said amount. The amount corresponding to 87.17% of P19,583,878.00 is P17,073,224.84. This is the yield that the Zuzuarreguis are entitled to. Attys. Roxas and Pastor, on the other hand, are entitled to P2,510,653.16. Attys. Roxas and Pastor, in the opinion of this Court, were not shortchanged for their efforts for they would still be earning or actually earned attorney’s fees in the amount of P6,987,078.75 (P4,476,425.59 + P2,510,653.16).

The amount of P17,073,224.84 must therefore be returned by Attys. Roxas and Pastor to the Zuzuarreguis. They can take this out from the yield in the amount of P19,583,878.00 which they have appropriated for themselves. On the issue of moral and exemplary damages, we cannot award the same for there was no direct showing of bad faith on the part of Attys. Roxas and Pastor, for as we said earlier, contingency fees are not per se prohibited by law. It is only necessary that it be reduced when excessive and unconscionable, which we have already done. We likewise cannot hold the NHA and Atty. Pedrosa jointly and severally liable to the Zuzuarreguis for there is no evidence to show conspiracy between them. WHEREFORE, in view of all the foregoing considerations, the Decision and Resolution of the Court of Appeals dated 25 June 2001 and 06 February 2002, respectively, are AFFIRMED but with the MODIFICATION that Attys. Romeo G. Roxas and Santiago N. Pastor are hereby ordered to return to the Zuzuarreguis the amount of P17,073,224.84. No costs.

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:

SO ORDERED. 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.

MINITA V. CHICO-NAZARIO Associate Justice

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.

Faced with the task of dramatising these rerkble events, screenwriter David Williamson and history Prof Al McCoy have chosen a "docu-drama" style and created [four] fictitious characters to trace the revolution from the death of Senator Aquino, to the Feb revolution and the fleeing of Marcos from the country. These character stories have been woven through the real events to help our huge international audience understand this ordinary period inFilipino history. First, there's Tony O'Neil, an American television journalist working for major network. Tony reflects the average American attitude to the Phihppinence —once a colony, now the home of crucially important military bases. Although Tony is aware of the corruption and of Marcos' megalomania, for him, there appears to be no alternative to Marcos except the Communists. Next, Angie Fox a fiery Australian photo-journalist. A 'new girl in town,' she is quickly caught up in the events as it becomes dear that the time has come for a change. Through Angle and her relationship with one of the Reform Army Movement Colonels (a fictitious character), we follow the developing discontent in the armed forces. Their dislike for General Ver, their strong loyalty to Defense Minister Enrile, and ultimately their defection from Marcos. The fourth fictitious character is Ben Balano, a middle-aged editor of a Manila newspaper who despises the Marcos regime and is a supporter an promoter of Cory Aquino. Ben has two daughters, Cehea left wing lawyer who is a secret

member of the New People's Army, and Eva--a -P.R. girl, politically moderate and very much in love with Tony. Ultimately, she must choose between her love and the revolution. Through the interviews and experiences of these central characters, we show the complex nature of Filipino society, and thintertwining series of events and characters that triggered these remarkable changes. Through them also, we meet all of the principal characters and experience directly dramatic recreation of the revolution. The story incorporates actual documentary footage filmed during the period which we hope will capture the unique atmosphere and forces that combined to overthrow President Marcos. David Williamson is Australia's leading playwright with some 14 hugely successful plays to his credit(Don's Party,' 'The Club,' Travelling North) and 11 feature films (The Year of Living Dangerously,' Gallipoli,' 'Phar Lap'). Professor McCoy (University of New South Wales) is an American historian with a deep understanding of the Philippines, who has worked on the research for this project for some 18 months. Together with Davi Wilhamgon they have developed a script we believe accurately depicts the complex issues and events that occurred during th period . The six hour series is a McElroy and McElroy co-production with Home Box Office in American, the Australian Broadcast Corporation in Australia and Zenith Productions in the United Kingdom The proposed motion picture would be essentially a re-enact. ment of the events that made possible the EDSA revolution; it is designed to be viewed in a six-hour mini-series television play, presented in a "docu-drama" style, creating four (4) fictional characters interwoven with real events, and utilizing actual documentary footage as background. On 21 December 1987, private respondent Enrile replied that "[he] would not and will not approve of the use, appropriation, reproduction and/or exhibition of his name, or picture, or that of any member of his family in any cinema or television production, film or other medium for advertising or commercial exploitation" and further advised petitioners that 'in the production, airing, showing, distribution or exhibition of said or similar film, no reference whatsoever (whether written, verbal or visual) should not be made to [him] or any member of his family, much less to any matter purely personal to them. It appears that petitioners acceded to this demand and the name of private respondent Enrile was deleted from the movie script, and petitioners proceeded to film the projected motion picture. On 23 February 1988, private respondent filed a Complaint with application for Temporary Restraining Order and Wilt of Pretion with the Regional Trial Court of Makati, docketed as Civil Case No. 88-151 in Branch 134 thereof, seeking to enjoin petitioners from producing the movie "The Four Day Revolution". The complaint alleged that petitioners' production of the mini-series without private respondent's consent and over his objection, constitutes an obvious violation of his

right of privacy. On 24 February 1988, the trial court issued ex-parte a Temporary Restraining Order and set for hearing the application for preliminary injunction. On 9 March 1988, Hal McElroy flied a Motion to Dismiss with Opposition to the Petition for Preliminary Injunction contending that the mini-series fim would not involve the private life of Juan Ponce Enrile nor that of his family and that a preliminary injunction would amount to a prior restraint on their right of free expression. Petitioner Ayer Productions also filed its own Motion to Dismiss alleging lack of cause of action as the mini-series had not yet been completed. In an Order 2 dated 16 March 1988, respondent court issued a writ of Preliminary Injunction against the petitioners, the dispositive portion of which reads thus: WHEREFORE, let a writ of preliminary injunction be issued, ordering defendants, and all persons and entities employed or under contract with them, including actors, actresses and members of the production staff and crew as well as all persons and entities acting on defendants' behalf, to cease and desist from producing and filming the mini-series entitled 'The Four Day Revolution" and from making any reference whatsoever to plaintiff or his family and from creating any fictitious character in lieu of plaintiff which nevertheless is based on, or bears rent substantial or marked resemblance or similarity to, or is otherwise Identifiable with, plaintiff in the production and any similar film or photoplay, until further orders from this Court, upon plaintiff's filing of a bond in the amount of P 2,000,000.00, to answer for whatever damages defendants may suffer by reason of the injunction if the Court should finally decide that plaintiff was not entitled thereto. xxx xxx xxx (Emphasis supplied) On 22 March 1988, petitioner Ayer Productions came to this Court by a Petition for certiorari dated 21 March 1988 with an urgent prayer for Preliminary Injunction or Restraining Order, which petition was docketed as G.R. No. L-82380. A day later, or on 23 March 1988, petitiioner Hal McElroy also filed separate Petition for certiorari with Urgent Prayer for a Restraining Order or Preliminary Injunction, dated 22 March 1988, docketed as G.R. No. L-82398. By a Resolution dated 24 March 1988, the petitions were consolidated and private respondent was required to file a consolidated Answer. Further, in the same Resolution, the Court granted a Temporary Restraining Order partially enjoining the implementation of the respondent Judge's Order of 16 March 1988 and the Writ of Preliminary Injunction issued therein, and allowing the petitioners to resume producing and filming those portions of the projected mini-series which do not make any reference to private respondent or his family or to any fictitious character based on or respondent.

Private respondent seasonably filed his Consolidated Answer on 6 April 1988 invoking in the main a right of privacy. I The constitutional and legal issues raised by the present Petitions are sharply drawn. Petitioners' claim that in producing and "The Four Day Revolution," they are exercising their freedom of speech and of expression protected under our Constitution. Private respondent, upon the other hand, asserts a right of privacy and claims that the production and filming of the projected miniseries would constitute an unlawful intrusion into his privacy which he is entitled to enjoy. Considering first petitioners' claim to freedom of speech and of expression the Court would once more stress that this freedom includes the freedom to film and produce motion pictures and to exhibit such motion pictures in theaters or to diffuse them through television. In our day and age, motion pictures are a univesally utilized vehicle of communication and medium Of expression. Along with the press, radio and television, motion pictures constitute a principal medium of mass communication for information, education and entertainment. In Gonzales v. Katigbak, 3former Chief Justice Fernando, speaking for the Court, explained: 1. Motion pictures are important both as a medium for the communication of Ideas and the expression of the artistic impulse. Their effect on the perception by our people of issues and public officials or public figures as well as the pre cultural traits is considerable. Nor as pointed out in Burstyn v. Wilson(343 US 495 [19421) is the Importance of motion pictures as an organ of public opinion lessened by the fact that they are designed to entertain as well as to inform' (Ibid, 501). There is no clear dividing line between what involves knowledge and what affords pleasure. If such a distinction were sustained, there is a diminution of the basic right to free expression. ...4 This freedom is available in our country both to locally-owned and to foreign-owned motion picture companies. Furthermore the circumstance that the production of motion picture films is a commercial activity expected to yield monetary profit, is not a disqualification for availing of freedom of speech and of expression. In our community as in many other countries, media facilities are owned either by the government or the private sector but the private sector-owned media facilities commonly require to be sustained by being devoted in whole or in pailt to revenue producing activities. Indeed, commercial media constitute the bulk of such facilities available in our country and hence to exclude commercially owned and operated media from the exerciseof constitutionally protected om of speech and of expression can only result in the drastic contraction of such constitutional liberties in our country. The counter-balancing of private respondent is to a right of privacy. It was demonstrated sometime ago by the then Dean Irene R. Cortes that our law, constitutional and statutory, does include a right of privacy. 5 It is left to case law, however, to mark out the precise scope and content of this right in differing types of particular situations. The right of privacy or "the right to be let alone," 6 like the right of free expression, is not an absolute right. A limited intrusion into a person's privacy has long been regarded as permissible where that person is a public figure and the information sought to be elicited from him or to be published about him constitute of apublic character. 7 Succinctly

put, the right of privacy cannot be invoked resist publication and dissemination of matters of public interest. 8 The interest sought to be protected by the right of privacy is the right to be free from unwarranted publicity, from the wrongful publicizing of the private affairs and activities of an individual which are outside the realm of legitimate public concern. 9 Lagunzad v. Vda. de Gonzales, 10 on which private respondent relies heavily, recognized a right to privacy in a context which included a claim to freedom of speech and of expression. Lagunzad involved a suit fortion picture producer as licensee and the widow and family of the late Moises Padilla as licensors. This agreement gave the licensee the right to produce a motion Picture Portraying the life of Moises Padilla, a mayoralty candidate of the Nacionalista Party for the Municipality of Magallon, Negros Occidental during the November 1951 elections and for whose murder, Governor Rafael Lacson, a member of the Liberal Party then in power and his men were tried and convicted. 11 In the judgment of the lower court enforcing the licensing agreement against the licensee who had produced the motion picture and exhibited it but refused to pay the stipulated royalties, the Court, through Justice Melencio-Herrera, said: Neither do we agree with petitioner's subon that the Licensing Agreement is null and void for lack of, or for having an illegal cause or consideration, while it is true that petitioner bad pled the rights to the book entitled "The Moises Padilla Story," that did not dispense with the need for prior consent and authority from the deceased heirs to portray publicly episodes in said deceased's life and in that of his mother and the member of his family. As held in Schuyler v. Curtis, ([1895],147 NY 434,42 NE 31 LRA 286.49 Am St Rep 671), 'a privilege may be given the surviving relatives of a deperson to protect his memory, but the privilege wts for the benefit of the living, to protect their feelings and to preventa violation of their own rights in the character and memory of the deceased.' Petitioners averment that private respondent did not have any property right over the life of Moises Padilla since the latter was a public figure, is neither well taken. Being a public figure ipso facto does not automatically destroy in toto a person's right to privacy. The right to invade a person's privacy to disseminate public information does not extend to a fictional or novelized representation of a person, no matter how public a he or she may be (Garner v. Triangle Publications, DCNY 97 F. Supp., SU 549 [1951]). In the case at bar, while it is true that petitioner exerted efforts to present a true-to-life Story Of Moises Padilla, petitioner admits that he included a little romance in the film because without it, it would be a drab story of torture and brutality. 12 In Lagunzad, the Court had need, as we have in the instant case, to deal with contraposed claims to freedom of speech and of expression and to privacy. Lagunzad the licensee in effect claimed, in the name of freedom of speech and expression, a right to produce a motion picture biography at least partly "fictionalized" of Moises Padilla without the consent of and without paying pre-agreed royalties to the widow and family of Padilla. In rejecting the licensee's claim, the Court said: Lastly, neither do we find merit in petitioners contention that the Licensing Agreement infringes on the constitutional right of freedom of speech and of the press, in that, as a citizen and as a newspaperman, he had the right to express his thoughts in film on the public life of Moises Padilla without prior restraint.The

right freedom of expression, indeed, occupies a preferred position in the "hierarchy of civil liberties" (Philippine Blooming Mills Employees Organization v. Philippine Blooming Mills Co., Inc., 51 SCRA 191 [1963]). It is not, however, without limitations. As held in Gonzales v. Commission on Elections, 27 SCRA 835, 858 [1960]: xxx xxx xxx The prevailing doctine is that the clear and present danger rule is such a limitation. Another criterion for permissible limitation on freedom of speech and the press, which includes such vehicles of the mass media as radio, television and the movies, is the "balancing of interest test" (Chief Justice Enrique M. Fernando on the Bill of Rights, 1970 ed. p. 79). The principle "requires a court to take conscious and detailed consideration of the interplay of interests observable in given situation or type of situation" (Separation Opinion of the late Chief Justice Castro in Gonzales v. Commission on Elections, supra, p. 899). In the case at bar, the interests observable are the right to privacy asserted by respondent and the right of freedom of expression invoked by petitioner. taking into account the interplay of those interests, we hold that under the particular circumstances presented, and considering the obligations assumed in the Licensing Agreement entered into by petitioner, the validity of such agreement will have to be upheld particularly because the limits of freedom of expression are reached when expression touches upon matters of essentially private concern." 13 Whether the "balancing of interests test" or the clear and present danger test" be applied in respect of the instant Petitions, the Court believes that a different conclusion must here be reached: The production and filming by petitioners of the projected motion picture "The Four Day Revolution" does not, in the circumstances of this case, constitute an unlawful intrusion upon private respondent's "right of privacy." 1. It may be observed at the outset that what is involved in the instant case is a prior and direct restraint on the part of the respondent Judge upon the exercise of speech and of expression by petitioners. The respondent Judge has restrained petitioners from filming and producing the entire proposed motion picture. It is important to note that in Lagunzad, there was no prior restrain of any kind imposed upon the movie producer who in fact completed and exhibited the film biography of Moises Padilla. Because of the speech and of expression, a weighty presumption of invalidity vitiates. 14 The invalidity of a measure of prior restraint doesnot, of course, mean that no subsequent liability may lawfully be imposed upon a person claiming to exercise such constitutional freedoms. The respondent Judge should have stayed his hand, instead of issuing an ex-parte Temporary Restraining Order one day after filing of a complaint by the private respondent and issuing a Preliminary Injunction twenty (20) days later; for the projected motion picture was as yet uncompleted and hence not exhibited to any audience. Neither private respondent nor the respondent trial Judge knew what the completed film would precisely look like. There was, in other words, no "clear and present danger" of any violation of any right to privacy that private respondent could lawfully assert.

2. The subject matter of "The Four Day Revolution" relates to the non-bloody change of government that took place at Epifanio de los Santos Avenue in February 1986, and the trian of events which led up to that denouement. Clearly, such subject matter is one of public interest and concern. Indeed, it is, petitioners' argue, of international interest. The subject thus relates to a highly critical stage in the history of this countryand as such, must be regarded as having passed into the public domain and as an appropriate subject for speech and expression and coverage by any form of mass media. The subject mater, as set out in the synopsis provided by the petitioners and quoted above, does not relate to the individual life and certainly not to the private life of private respondent Ponce Enrile. Unlike in Lagunzad, which concerned the life story of Moises Padilla necessarily including at least his immediate family, what we have here is not a film biography, more or less fictionalized, of private respondent Ponce Enrile. "The Four Day Revolution" is not principally about, nor is it focused upon, the man Juan Ponce Enrile' but it is compelled, if it is to be historical, to refer to the role played by Juan Ponce Enrile in the precipitating and the constituent events of the change of government in February 1986. 3. The extent of the instrusion upon the life of private respondent Juan Ponce Enrile that would be entailed by the production and exhibition of "The Four Day Revolution" would, therefore, be limited in character. The extent of that intrusion, as this Court understands the synopsis of the proposed film, may be generally described as such intrusion as is reasonably necessary to keep that film a truthful historical account. Private respondent does not claim that petitioners threatened to depict in "The Four Day Revolution" any part of the private life of private respondent or that of any member of his family. 4. At all relevant times, during which the momentous events, clearly of public concern, that petitioners propose to film were taking place, private respondent was what Profs. Prosser and Keeton have referred to as a "public figure:" A public figure has been defined as a person who, by his accomplishments, fame, or mode of living, or by adopting a profession or calling which gives the public a legitimate interest in his doings, his affairs, and his character, has become a 'public personage.' He is, in other words, a celebrity. Obviously to be included in this category are those who have achieved some degree of reputation by appearing before the public, as in the case of an actor, a professional baseball player, a pugilist, or any other entertainment. The list is, however, broader than this. It includes public officers, famous inventors and explorers, war heroes and even ordinary soldiers, an infant prodigy, and no less a personage than the Grand Exalted Ruler of a lodge. It includes, in short, anyone who has arrived at a position where public attention is focused upon him as a person. Such public figures were held to have lost, to some extent at least, their tight to privacy. Three reasons were given, more or less indiscrimately, in the decisions" that they had sought publicity and consented to it, and so could not complaint when they received it; that their personalities and their affairs has already public, and could no longer be regarded as their own private business; and that the press had a privilege, under the Constitution, to inform the public about those who have become legitimate matters of public interest. On one or another of these grounds, and sometimes all, it was held that there was no liability when

they were given additional publicity, as to matters legitimately within the scope of the public interest they had aroused.

respondent's privacy cannot be regarded as unreasonable and actionable. Such portrayal may be carried out even without a license from private respondent.

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.

II

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

In a Manifestation dated 30 March 1988, petitioner Hal McElroy informed this Court that a Temporary Restraining Order dated 25 March 1988, was issued by Judge Teofilo Guadiz of the Regional Trial Court of Makati, Branch 147, in Civil Case No. 88-413, entitled "Gregorio B. Honasan vs. Ayer Productions Pty. Ltd., McElroy Film Productions, Hal McElroy, Lope Juban and PMP Motion for Pictures Production" enjoining him and his production company from further filimg any scene of the projected mini-series film. Petitioner alleged that Honasan's complaint was a "scissors and paste" pleading, cut out straight grom the complaint of private respondent Ponce Enrile in Civil Case No. 88-151. Petitioner Ayer Productions, in a separate Manifestation dated 4 April 1988, brought to the attention of the Court the same information given by petitoner Hal McElroy, reiterating that the complaint of Gregorio B. Honasan was substantially identical to that filed by private respondent herein and stating that in refusing to join Honasan in Civil Case No. 88151, counsel for private respondent, with whom counsel for Gregorio Honasan are apparently associated, deliberately engaged in "forum shopping." Private respondent filed a Counter-Manifestation on 13 April 1988 stating that the "slight similarity" between private respondent's complaint and that on Honasan in the construction of their legal basis of the right to privacy as a component of the cause of action is understandable considering that court pleadings are public records; that private respondent's cause of action for invasion of privacy is separate and distinct from that of Honasan's although they arose from the same tortious act of petitioners' that the rule on permissive joinder of parties is not mandatory and that, the cited cases on "forum shopping" were not in point because the parties here and those in Civil Case No. 88-413 are not identical. For reasons that by now have become clear, it is not necessary for the Court to deal with the question of whether or not the lawyers of private respondent Ponce Enrile have engaged in "forum shopping." It is, however, important to dispose to the complaint filed by former Colonel Honasan who, having refused to subject himself to the legal processes of the Republic and having become once again in fugitive from justice, must be deemed to have forfeited any right the might have had to protect his privacy through court processes. WHEREFORE, a) the Petitions for Certiorari are GRANTED DUE COURSE, and the Order dated 16 March 1988 of respondent trial court granting a Writ of Preliminary Injunction is hereby SET ASIDE. The limited Temporary Restraining Order granted by this Court on 24 March 1988 is hereby MODIFIED by enjoining unqualifiedly the implementation of respondent Judge's Order of 16 March 1988 and made PERMANENT, and b) Treating the Manifestations of petitioners dated 30 March 1988 and 4 April 1988 as separate Petitions for Certiorari with Prayer for Preliminary Injunction or Restraining Order, the Court, in the exercise of its plenary and supervisory jurisdiction, hereby REQUIRES Judge Teofilo Guadiz of the Regional Trial Court of Makati, Branch 147, forthwith to DISMISS Civil Case No. 88-413 and

accordingly to SET ASIDE and DISSOLVE his Temporary Restraining Order dated 25 March 1988 and any Preliminary Injunction that may have been issued by him. No pronouncement as to costs. SO ORDERED. Yap, C.J., Fernan, Narvasa, Melencio-Herrera, Gutierrez, Jr., Cruz, Paras, Gancayco, Padilla, Bidin, Sarmiento, Cortes and Griño-Aquino, JJ., concur.

Republic of the Philippines SUPREME COURT Manila EN BANC G.R. No. L-44640 October 12, 1976 PABLO C. SANIDAD and PABLITO V. SANIDAD, petitioner, vs. HONORABLE COMMISSION ON ELECTIONS and HONORABLE NATIONAL TREASURER, respondents. G.R. No. L-44684. October 12,1976 VICENTE M. GUZMAN, petitioner, vs. COMMISSION ELECTIONS, respondent. G.R. No. L-44714. October 12,1976 RAUL M. GONZALES, RAUL T. GONZALES, JR., and ALFREDO SALAPANTAN, petitioners, vs. HONORABLE COMMISSION ON SELECTIONS and HONORABLE NATIONAL TREASURER, respondents. MARTIN, J,: The capital question raised in these prohibition suits with preliminary injunction relates to the power of the incumbent President of the Philippines to propose amendments to the present Constitution in the absence of the interim National Assembly which has not been convened. On September 2, 1976, President Ferdinand E. Marcos issued Presidential Decree No. 991 calling for a national referendum on October 16, 1976 for the Citizens Assemblies ("barangays") to resolve, among other things, the issues of martial law, the I . assembly, its replacement, the powers of such replacement, the period of its existence, the length of the period for tile exercise by the President of his present powers.1 Twenty days after or on September 22, 1976, the President issued another related decree, Presidential Decree No. 1031, amending the previous Presidential Decree No. 991, by declaring the provisions of presidential Decree No. 229 providing for the manner of voting and canvass of votes in "barangays" (Citizens Assemblies) applicable to the national referendum-plebiscite of October 16, 1976. Quite relevantly, Presidential Decree No. 1031 repealed Section 4, of Presidential Decree No. 991, the full text of which (Section 4) is quoted in the footnote below. 2

On the same date of September 22, 1976, the President issued Presidential Decree No. 1033, stating the questions to be submitted to the people in the referendum-plebiscite on October 16, 1976. The Decree recites in its "whereas" clauses that the people's continued opposition to the convening of the National Assembly evinces their desire to have such body abolished and replaced thru a constitutional amendment, providing for a legislative body, which will be submitted directly to the people in the referendum-plebiscite of October 16. The questions ask, to wit: (1) Do you want martial law to be continued? (2) Whether or not you want martial law to be continued, do you approve the following amendments to the Constitution? For the purpose of the second question, the referendum shall have the effect of a plebiscite within the contemplation of Section 2 of Article XVI of the Constitution. PROPOSED AMENDMENTS: 1. There shall be, in lieu of the interim National Assembly, an interim Batasang Pambansa. Members of the interim Batasang Pambansa which shall not be more than 120, unless otherwise provided by law, shall include the incumbent President of the Philippines, representatives elected from the different regions of the nation, those who shall not be less than eighteen years of age elected by their respective sectors, and those chosen by the incumbent President from the members of the Cabinet. Regional representatives shall be apportioned among the regions in accordance with the number of their respective inhabitants and on the basis of a uniform and progressive ratio while the sectors shall be determined by law. The number of representatives from each region or sector and the, manner of their election shall be prescribed and regulated by law. 2. The interim Batasang Pambansa shall have the same powers and its members shall have the same functions, responsibilities, rights, privileges, and disqualifications as the interim National Assembly and the regular National Assembly and the members thereof. However, it shall not exercise the power provided in Article VIII, Section 14(l) of the Constitution. 3. The incumbent President of the Philippines shall, within 30 days from the election and selection of the members, convene the interim Batasang Pambansa and preside over its sessions until the Speaker shall have been elected. The incumbent President of the Philippines shall be the Prime Minister and he shall continue to exercise all his powers even after the interim Batasang Pambansa is organized and ready to discharge its functions and likewise he shall continue to exercise his powers and prerogatives under the nineteen hundred and thirty five. Constitution and the powers vested in the President and the Prime Minister under this Constitution. 4. The President (Prime Minister) and his Cabinet shall exercise all the powers and functions, and discharge the responsibilities of the regular President (Prime Minister) and his Cabinet, and shall be subject only to such disqualifications as the President (Prime Minister) may prescribe. The

President (Prime Minister) if he so desires may appoint a Deputy Prime Minister or as many Deputy Prime Ministers as he may deem necessary. 5. The incumbent President shall continue to exercise legislative powers until martial law shall have been lifted. 6. Whenever in the judgment of the President (Prime Minister), there exists a grave emergency or a threat or imminence thereof, or whenever the interim Batasang Pambansa or the regular National Assembly fails or is unable to act adequately on any matter for any reason that in his judgment requires immediate action, he may, in order to meet the exigency, issue the necessary decrees, orders or letters of instructions, which shall form part of the law of the land. 7. The barangays and sanggunians shall continue as presently constituted but their functions, powers, and composition may be altered by law. Referenda conducted thru the barangays and under the Supervision of the Commission on Elections may be called at any time the government deems it necessary to ascertain the will of the people regarding any important matter whether of national or local interest. 8. All provisions of this Constitution not inconsistent with any of these amendments shall continue in full force and effect. 9. These amendments shall take effect after the incumbent President shall have proclaimed that they have been ratified by I majority of the votes cast in the referendum-plebiscite." The Commission on Elections was vested with the exclusive supervision and control of the October 1976 National Referendum-Plebiscite. On September 27, 1976, PABLO C. SANIDAD and PABLITO V. SANIDAD, father and son, commenced L-44640 for Prohibition with Preliminary Injunction seeking to enjoin the Commission on Elections from holding and conducting the Referendum Plebiscite on October 16; to declare without force and effect Presidential Decree Nos. 991 and 1033, insofar as they propose amendments to the Constitution, as well as Presidential Decree No. 1031, insofar as it directs the Commission on Elections to supervise, control, hold, and conduct the Referendum-Plebiscite scheduled on October 16, 1976. Petitioners contend that under the 1935 and 1973 Constitutions there is no grant to the incumbent President to exercise the constituent power to propose amendments to the new Constitution. As a consequence, the Referendum-Plebiscite on October 16 has no constitutional or legal basis. On October 5, 1976, the Solicitor General filed the comment for respondent Commission on Elections, The Solicitor General principally maintains that petitioners have no standing to sue; the issue raised is political in nature, beyond judicial cognizance of this Court; at this state of the transition period, only the incumbent President has the authority to exercise constituent power; the referendum-plebiscite is a step towards normalization.

On September 30, 1976, another action for Prohibition with Preliminary Injunction, docketed as L44684, was instituted by VICENTE M. GUZMAN, a delegate to the 1971 Constitutional Convention, asserting that the power to propose amendments to, or revision of the Constitution during the transition period is expressly conferred on the interim National Assembly under Section 16, Article XVII of the Constitution.3 Still another petition for Prohibition with Preliminary Injunction was filed on October 5, 1976 by RAUL M. GONZALES, his son RAUL, JR., and ALFREDO SALAPANTAN, docketed as L- 44714, to restrain the implementation of Presidential Decrees relative to the forthcoming ReferendumPlebiscite of October 16. These last petitioners argue that even granting him legislative powers under Martial Law, the incumbent President cannot act as a constituent assembly to propose amendments to the Constitution; a referendum-plebiscite is untenable under the Constitutions of 1935 and 1973; the submission of the proposed amendments in such a short period of time for deliberation renders the plebiscite a nullity; to lift Martial Law, the President need not consult the people via referendum; and allowing 15-.year olds to vote would amount to an amendment of the Constitution, which confines the right of suffrage to those citizens of the Philippines 18 years of age and above. We find the petitions in the three entitled cases to be devoid of merit. I Justiciability of question raised. 1. As a preliminary resolution, We rule that the petitioners in L-44640 (Pablo C. Sanidad and Pablito V. Sanidad) possess locus standi to challenge the constitutional premise of Presidential Decree Nos. 991, 1031, and 1033. It is now an ancient rule that the valid source of a stature Presidential Decrees are of such nature-may be contested by one who will sustain a direct injuries as a in result of its enforcement. At the instance of taxpayers, laws providing for the disbursement of public funds may be enjoined, upon the theory that the expenditure of public funds by an officer of the State for the purpose of executing an unconstitutional act constitutes a misapplication of such funds. 4 The breadth of Presidential Decree No. 991 carries all appropriation of Five Million Pesos for the effective implementation of its purposes. 5 Presidential Decree No. 1031 appropriates the sum of Eight Million Pesos to carry out its provisions. 6 The interest of the aforenamed petitioners as taxpayers in the lawful expenditure of these amounts of public money sufficiently clothes them with that personality to litigate the validity of the Decrees appropriating said funds. Moreover, as regards taxpayer's suits, this Court enjoys that open discretion to entertain the same or not. 7 For the present case, We deem it sound to exercise that discretion affirmatively so that the authority upon which the disputed Decrees are predicated may be inquired into. 2. The Solicitor General would consider the question at bar as a pure political one, lying outside the domain of judicial review. We disagree. The amending process both as to proposal and ratification, raises a judicial question. 8This is especially true in cases where the power of the Presidency to initiate the of normally exercised by the legislature, is seriously doubted. Under the

terms of the 1973 Constitution, the power to propose amendments o the constitution resides in the interim National Assembly in the period of transition (See. 15, Transitory provisions). After that period, and the regular National Assembly in its active session, the power to propose amendments becomes ipso facto the prerogative of the regular National Assembly (Sec. 1, pars. 1 and 2 of Art. XVI, 1973 constitution). The normal course has not been followed. Rather than calling the National Assembly to constitute itself into a constituent assembly the incumbent President undertook the proposal of amendments and submitted the proposed amendments thru Presidential Decree 1033 to the people in a Referendum-Plebiscite on October 16. Unavoidably, the regularity regularity of the procedure for amendments, written in lambent words in the very Constitution sought to be amended, raises a contestable issue. The implementing Presidential Decree Nos. 991, 1031, and 1033, which commonly purport to have the force and effect of legislation are assailed as invalid, thus the issue of the validity of said Decrees is plainly a justiciable one, within the competence of this Court to pass upon. Section 2 (2), Article X of the new Constitution provides: "All cases involving the constitutionality of a treaty, executive agreement, or law may shall be heard and decided by the Supreme Court en banc and no treaty, executive agreement, or law may be declared unconstitutional without the concurrence of at least ten Members. ..." The Supreme Court has the last word in the construction not only of treaties and statutes, but also of the Constitution itself The amending, like all other powers organized in the Constitution, is in form a delegated and hence a limited power, so that the Supreme Court is vested with that authorities to determine whether that power has been discharged within its limits. Political questions are neatly associated with the wisdom, of the legality of a particular act. Where the vortex of the controversy refers to the legality or validity of the contested act, that matter is definitely justiciable or non-political. What is in the heels of the Court is not the wisdom of the act of the incumbent President in proposing amendments to the Constitution, but his constitutional authority to perform such act or to assume the power of a constituent assembly. Whether the amending process confers on the President that power to propose amendments is therefore a downright justiciable question. Should the contrary be found, the actuation of the President would merely be a brutum fulmen. If the Constitution provides how it may be amended, the judiciary as the interpreter of that Constitution, can declare whether the procedure followed or the authority assumed was valid or not.10 We cannot accept the view of the Solicitor General, in pursuing his theory of non-justiciability, that the question of the President's authority to propose amendments and the regularity of the procedure adopted for submission of the proposal to the people ultimately lie in the judgment of the A clear Descartes fallacy of vicious circle. Is it not that the people themselves, by their sovereign act, provided for the authority and procedure for the amending process when they ratified the present Constitution in 1973? Whether, therefore, the constitutional provision has been followed or not is the proper subject of inquiry, not by the people themselves of course who exercise no power of judicial but by the Supreme Court in whom the people themselves vested that power, a power which includes the competence to determine whether the constitutional norms for amendments have been observed or not. And, this inquiry must be done a prior not a posterior i.e., before the submission to and ratification by the people. Indeed, the precedents evolved by the Court or, prior constitutional cases underline the preference of the Court's majority to treat such issue of Presidential role in the amending process as one of non-political impression. In the Plebiscite Cases, 11 the contention of the Solicitor General that the issue on the legality of Presidential Decree No. 73 "submitting to the Pilipino people (on January

15, 1973) for ratification or rejection the Constitution of the Republic of the Philippines proposed by the 1971 Constitutional Convention and appropriating fund s therefore "is a political one, was rejected and the Court unanimously considered the issue as justiciable in nature. Subsequently in the Ratification Cases12 involving the issue of whether or not the validity of Presidential Proclamation No. 1102. announcing the Ratification by the Filipino people of the constitution proposed by the 1971 Constitutional Convention," partakes of the nature of a political question, the affirmative stand of' the Solicitor General was dismissed, the Court ruled that the question raised is justiciable. Chief Justice Concepcion, expressing the majority view, said, Thus, in the aforementioned plebiscite cases, We rejected the theory of the respondents therein that the question whether Presidential Decree No. 73 calling a plebiscite to be held on January 15, 1973, for the ratification or rejection of the proposed new Constitution, was valid or not, was not a proper subject of judicial inquiry because, they claimed, it partook of a political nature, and We unanimously declared that the issue was a justiciable one. With Identical unanimity. We overruled the respondent's contention in the 1971 habeas corpus cases, questioning Our authority to determine the constitutional sufficiency of the factual bases of the Presidential proclamation suspending the privilege of the writ of habeas corpus on August 21, 1971, despite the opposite view taken by this Court in Barcelon vs. Baker and Montenegro vs. Castaneda, insofar as it adhered to the former case, which view We, accordingly, abandoned and refused to apply. For the same reason, We did not apply and expressly modified, in Gonzales vs. Commission on Elections, the political-question theory adopted in Mabanag vs. Lopez Vito." 13 The return to Barcelon vs. Baker and Mabanag vs. Lopez Vito, urged by the Solicitor General, was decisively refused by the Court. Chief Justice Concepcion continued: "The reasons adduced in support thereof are, however, substantially the same as those given in support on the political question theory advanced in said habeas corpus and plebiscite cases, which were carefully considered by this Court and found by it to be legally unsound and constitutionally untenable. As a consequence. Our decisions in the aforementioned habeas corpus cases partakes of the nature and effect of a stare decisis which gained added weight by its virtual reiteration." II The amending process as laid out in the new Constitution. 1. Article XVI of the 1973 Constitution on Amendments ordains: SECTION 1. (1) Any amendment to, or revision of, this Constitution may be proposed by the National Assembly upon a vote of three-fourths of all its Members, or by a constitutional convention. (2) The National Assembly may, by a vote of two-thirds of all its Members, call a constitutional convention or, by a majority vote of all its Members, submit the question of calling such a convention to the electorate in an election. SECTION 2. Any amendment to, or revision of, this Constitution shall be valid when ratified by a majority of the votes cast in a plebiscite which shall be held not later than three months after the approval of such amendment or revision.

In the present period of transition, the interim National Assembly instituted in the Transitory Provisions is conferred with that amending power. Section 15 of the Transitory Provisions reads: SECTION 15. The interim National Assembly, upon special call by the interim Prime Minister, may, by a majority vote of all its Members, propose amendments to this Constitution. Such amendments shall take effect when ratified in accordance with Article Sixteen hereof.

however, is one of policy, not of law.17 Such being the case, approval of the President of any proposed amendment is a misnomer 18 The prerogative of the President to approve or disapprove applies only to the ordinary cases of legislation. The President has nothing to do with proposition or adoption of amendments to the Constitution. 19 III Concentration of Powers

There are, therefore, two periods contemplated in the constitutional life of the nation, i.e., period of normalcy and period of transition. In times of normally, the amending process may be initiated by the proposals of the (1) regular National Assembly upon a vote of three-fourths of all its members; or (2) by a Constitutional Convention called by a vote of two-thirds of all the Members of the National Assembly. However the calling of a Constitutional Convention may be submitted to the electorate in an election voted upon by a majority vote of all the members of the National Assembly. In times of transition, amendments may be proposed by a majority vote of all the Members of the National Assembly upon special call by the interim Prime Minister,. 2. This Court in Aquino v. COMELEC," had already settled that the incumbent President is vested with that prerogative of discretion as to when he shall initially convene the interim National Assembly. Speaking for the majority opinion in that case, Justice Makasiar said: "The Constitutional Convention intended to leave to the President the determination of the time when he shall initially convene the interim National Assembly, consistent with the prevailing conditions of peace and order in the country." Concurring, Justice Fernandez, himself a member of that Constitutional Convention, revealed: "(W)hen the Delegates to the Constitutional Convention voted on the Transitory Provisions, they were aware of the fact that under the same, the incumbent President was given the discretion as to when he could convene the interim National Assembly; it was so stated plainly by the sponsor, Delegate Yaneza; as a matter of fact, the proposal that it be convened 'immediately', made by Delegate Pimentel (V) was rejected. The President's decision to defer the convening of the interim National Assembly soon found support from the people themselves. In the plebiscite of January 10-15, 1973, at which the ratification of the 1973 Constitution was submitted, the people voted against the convening of the interim National Assembly. In the referendum of July 24, 1973, the Citizens Assemblies ("bagangays") reiterated their sovereign will to withhold the convening of the interim National Assembly. Again, in the referendum of February 27, 1975, the proposed question of whether the interim National Assembly shall be initially convened was eliminated, because some of the members of Congress and delegates of the Constitutional Convention, who were deemed automatically members of the I interim National Assembly, were against its inclusion since in that referendum of January, 1973, the people had already resolved against it. 3. In sensu strictiore, when the legislative arm of the state undertakes the proposals of amendment to a Constitution, that body is not in the usual function of lawmaking. lt is not legislating when engaged in the amending process.16 Rather, it is exercising a peculiar power bestowed upon it by the fundamental charter itself. In the Philippines, that power is provided for in Article XVI of the 1973 Constitution (for the regular National Assembly) or in Section 15 of the Transitory Provisions (for the National Assembly). While ordinarily it is the business of the legislating body to legislate for the nation by virtue of constitutional conferment amending of the Constitution is not legislative in character. In political science a distinction is made between constitutional content of an organic character and that of a legislative character'. The distinction,

in the President during crisis government. 1. In general, the governmental powers in crisis government the Philippines is a crisis government today are more or less concentrated in the President. 20 According to Rossiter, "(t)he concentration of government power in a democracy faced by an emergency is a corrective to the crisis inefficiencies inherent in the doctrine of the separation of powers. In most free states it has generally been regarded as imperative that the total power of the government be parceled out among three mutually independent branches executive, legislature, and judiciary. It is believed to be destructive of constitutionalism if any one branch should exercise any two or more types of power, and certainly a total disregard of the separation of powers is, as Madison wrote in the Federalist, No. 47, 'the very definition of tyranny.' In normal times the separation of powers forms a distinct obstruction to arbitrary governmental action. By this same token, in abnormal times it may form an insurmountable barrier to a decisive emergency action in behalf of the state and its independent existence. There are moments in the life of any government when all powers must work together in unanimity of purpose and action, even if this means the temporary union of executive, legislative, and judicial power in the hands of one man. The more complete the separation of powers in a constitutional system, the more difficult and yet the more necessary will be their fusion in time of crisis. This is evident in a comparison of the crisis potentialities of the cabinet and presidential systems of government. In the former the all-important harmony of legislature and executive is taken for granted; in the latter it is neither guaranteed nor to be to confidently expected. As a result, cabinet is more easily established and more trustworthy than presidential dictatorship. The power of the state in crisis must not only be concentrated and expanded; it must also be freed from the normal system of constitutional and legal limitations. 21 John Locke, on the other hand, claims for the executive in its own right a broad discretion capable even of setting aside the ordinary laws in the meeting of special exigencies for which the legislative power had not provided. 22 The rationale behind such broad emergency powers of the Executive is the release of the government from "the paralysis of constitutional restrains" so that the crisis may be ended and normal times restored. 2. The presidential exercise of legislative powers in time of martial law is now a conceded valid at. That sun clear authority of the President is saddled on Section 3 (pars. 1 and 2) of the Transitory Provisions, thus:23 The incumbent President of the Philippines shall initially convene the interim National Assembly and shall preside over its sessions until the interim Speaker shall have been elected. He shall continue to exercise his powers and

prerogatives under the nineteen hundred and thirty-five Constitution and the powers vested in the President and the Prime Minister under this Constitution until the calls upon the interim National Assembly to elect the interim President and the interim Prime Minister, who shall then exercise their respective powers vested by this Constitution. All proclamations, orders, decrees, instructions, and acts promulgated, issued, or done by the incumbent President shall be part of the law of the land, and shall remain valid, binding, and effective even after lifting of martial law or the ratification of this Constitution, unless modified, revoked, or superseded by subsequent proclamations, orders, decrees, instructions, or other acts of the incumbent President, or unless expressly and explicitly modified or repealed by the regular National Assembly. "It is unthinkable," said Justice Fernandez, a 1971 Constitutional Convention delegate, "that the Constitutional Convention, while giving to the President the discretion when to call the interim National Assembly to session, and knowing that it may not be convened soon, would create a vacuum in the exercise of legislative powers. Otherwise, with no one to exercise the lawmaking powers, there would be paralyzation of the entire governmental machinery." 24 Paraphrasing Rossiter, this is an extremely important factor in any constitutional dictatorship which extends over a period of time. The separation of executive and legislature ordained in the Constitution presents a distinct obstruction to efficient crisis government. The steady increase in executive power is not too much a cause for as the steady increase in the magnitude and complexity of the problems the President has been called upon by the Filipino people to solve in their behalf, which involve rebellion, subversion, secession, recession, inflation, and economic crisis-a crisis greater than war. In short, while conventional constitutional law just confines the President's power as Commander-in-Chief to the direction of the operation of the national forces, yet the facts of our political, social, and economic disturbances had convincingly shown that in meeting the same, indefinite power should be attributed to tile President to take emergency measures 25 IV Authority of the incumbent President t to propose amendments to the Constitution. 1. As earlier pointed out, the power to legislate is constitutionally consigned to the interim National Assembly during the transition period. However, the initial convening of that Assembly is a matter fully addressed to the judgment of the incumbent President. And, in the exercise of that judgment, the President opted to defer convening of that body in utter recognition of the people's preference. Likewise, in the period of transition, the power to propose amendments to the Constitution lies in the interim National Assembly upon special call by the President (See. 15 of the Transitory Provisions). Again, harking to the dictates of the sovereign will, the President decided not to call the interim National Assembly. Would it then be within the bounds of the Constitution and of law for the President to assume that constituent power of the interim Assembly vis-a-vis his assumption of

that body's legislative functions? The answer is yes. If the President has been legitimately discharging the legislative functions of the interim Assembly, there is no reason why he cannot validly discharge the function of that Assembly to propose amendments to the Constitution, which is but adjunct, although peculiar, to its gross legislative power. This, of course, is not to say that the President has converted his office into a constituent assembly of that nature normally constituted by the legislature. Rather, with the interim National Assembly not convened and only the Presidency and the Supreme Court in operation, the urges of absolute necessity render it imperative upon the President to act as agent for and in behalf of the people to propose amendments to the Constitution. Parenthetically, by its very constitution, the Supreme Court possesses no capacity to propose amendments without constitutional infractions. For the President to shy away from that actuality and decline to undertake the amending process would leave the governmental machineries at a stalemate or create in the powers of the State a destructive vacuum, thereby impeding the objective of a crisis government "to end the crisis and restore normal times." In these parlous times, that Presidential initiative to reduce into concrete forms the constant voices of the people reigns supreme. After all, constituent assemblies or constitutional conventions, like the President now, are mere agents of the people .26 2. The President's action is not a unilateral move. As early as the referendums of January 1973 and February 1975, the people had already rejected the calling of the interim National Assembly. The Lupong Tagapagpaganap of the Katipunan ng mga Sanggunian, the Pambansang Katipunan ng mga Barangay, and the Pambansang Katipunan ng mga Barangay, representing 42,000 barangays, about the same number of Kabataang Barangay organizations, Sanggunians in 1,458 municipalities, 72 provinces, 3 sub-provinces, and 60 cities had informed the President that the prevailing sentiment of the people is for the abolition of the interim National Assembly. Other issues concerned the lifting of martial law and amendments to the Constitution .27 The national organizations of Sangguniang Bayan presently proposed to settle the issues of martial law, the interim Assembly, its replacement, the period of its existence, the length of the period for the exercise by the President of its present powers in a referendum to be held on October 16 . 28 The Batasang Bayan (legislative council) created under Presidential Decree 995 of September 10, 1976, composed of 19 cabinet members, 9 officials with cabinet rank, 91 members of the Lupong Tagapagpaganap (executive committee) of the Katipunan ng mga Sangguniang Bayan voted in session to submit directly to the people in a plebiscite on October 16, the previously quoted proposed amendments to the Constitution, including the issue of martial law .29 Similarly, the "barangays" and the "sanggunians" endorsed to the President the submission of the proposed amendments to the people on October 16. All the foregoing led the President to initiate the proposal of amendments to the Constitution and the subsequent issuance of Presidential Decree No, 1033 on September 22, 1976 submitting the questions (proposed amendments) to the people in the National Referendum-Plebiscite on October 16. V The People is Sovereign 1. Unlike in a federal state, the location of sovereignty in a unitary state is easily seen. In the Philippines, a republican and unitary state, sovereignty "resides in the people and all government authority emanates from them .30 In its fourth meaning, Savigny would treat people as "that particular organized assembly of individuals in which, according to the Constitution, the highest power exists." 31 This is the concept of popular sovereignty. It means that the constitutional

legislator, namely the people, is sovereign 32 In consequence, the people may thus write into the Constitution their convictions on any subject they choose in the absence of express constitutional prohibition. 33 This is because, as Holmes said, the Constitution "is an experiment, as all life is all experiment."34 "The necessities of orderly government," wrote Rottschaefer, "do not require that one generation should be permitted to permanently fetter all future generations." A constitution is based, therefore, upon a self-limiting decision of the people when they adopt it. 35 2. The October 16 referendum-plebiscite is a resounding call to the people to exercise their sovereign power as constitutional legislator. The proposed amendments, as earlier discussed, proceed not from the thinking of a single man. Rather, they are the collated thoughts of the sovereign will reduced only into enabling forms by the authority who can presently exercise the powers of the government. In equal vein, the submission of those proposed amendments and the question of martial law in a referendum-plebiscite expresses but the option of the people themselves implemented only by the authority of the President. Indeed, it may well be said that the amending process is a sovereign act, although the authority to initiate the same and the procedure to be followed reside somehow in a particular body. VI Referendum-Plebiscite not rendered nugatory by the participation of the 15-year olds. 1. October 16 is in parts a referendum and a plebiscite. The question - (1) Do you want martial law to be continued? - is a referendum question, wherein the 15-year olds may participate. This was prompted by the desire of the Government to reach the larger mas of the people so that their true pulse may be felt to guide the President in pursuing his program for a New Order. For the succeeding question on the proposed amendments, only those of voting age of 18 years may participate. This is the plebiscite aspect, as contemplated in Section 2, Article XVI of the new Constitution. 36 On this second question, it would only be the votes of those 18 years old and above which will have valid bearing on the results. The fact that the voting populace are simultaneously asked to answer the referendum question and the plebiscite question does not infirm the referendum-plebiscite. There is nothing objectionable in consulting the people on a given issue, which is of current one and submitting to them for ratification of proposed constitutional amendments. The fear of commingled votes (15-year olds and 18-year olds above) is readily dispelled by the provision of two ballot boxes for every barangay center, one containing the ballots of voters fifteen years of age and under eighteen, and another containing the ballots of voters eighteen years of age and above. 37 The ballots in the ballot box for voters fifteen years of age and under eighteen shall be counted ahead of the ballots of voters eighteen years and above contained in another ballot box. And, the results of the referendum-plebiscite shall be separately prepared for the age groupings, i.e., ballots contained in each of the two boxes. 38 2. It is apt to distinguish here between a "referendum" and a "plebiscite." A "referendum" is merely consultative in character. It is simply a means of assessing public reaction to the given issues submitted to the people foe their consideration, the calling of which is derived from or within the

totality of the executive power of the President.39 It is participated in by all citizens from the age of fifteen, regardless of whether or not they are illiterates, feeble-minded, or ex- convicts . 40 A "plebiscite," on the other hand, involves the constituent act of those "citizens of the Philippines not otherwise disqualified by law, who are eighteen years of age or over, and who shall have resided in the Philippines for at least one year and in the place wherein they propose to vote for at least six months preceding the election Literacy, property or any other substantive requirement is not imposed. It is generally associated with the amending process of the Constitution, more particularly, the ratification aspect. VII 1. There appeals to be no valid basis for the claim that the regime of martial law stultifies in main the freedom to dissent. That speaks of a bygone fear. The martial law regime which, in the observation of Justice Fernando, 41 is impressed with a mild character recorded no State imposition for a muffled voice. To be sure, there are restraints of the individual liberty, but on certain grounds no total suppression of that liberty is aimed at. The for the referendum-plebiscite on October 16 recognizes all the embracing freedoms of expression and assembly The President himself had announced that he would not countenance any suppression of dissenting views on the issues, as he is not interested in winning a "yes" or "no" vote, but on the genuine sentiment of the people on the issues at hand. 42 Thus, the dissenters soon found their way to the public forums, voicing out loud and clear their adverse views on the proposed amendments and even (in the valid ratification of the 1973 Constitution, which is already a settled matter. 43 Even government employees have been held by the Civil Service Commission free to participate in public discussion and even campaign for their stand on the referendum-plebiscite issues. 44 VIII Time for deliberation is not short. 1. The period from September 21 to October 16 or a period of 3 weeks is not too short for free debates or discussions on the referendum-plebiscite issues. The questions are not new. They are the issues of the day. The people have been living with them since the proclamation of martial law four years ago. The referendums of 1973 and 1975 carried the same issue of martial law. That notwithstanding, the contested brief period for discussion is not without counterparts in previous plebiscites for constitutional amendments. Justice Makasiar, in the Referendum Case, recalls: "Under the old Society, 15 days were allotted for the publication in three consecutive issues of the Official Gazette of the women's suffrage amendment to the Constitution before the scheduled plebiscite on April 30, 1937 (Com. Act No. 34). The constitutional amendment to append as ordinance the complicated Tydings-Kocialskowski was published in only three consecutive issues of the Official Gazette for 10 days prior to the scheduled plebiscite (Com. Act 492). For the 1940 Constitutional amendments providing for the bicameral Congress, the reelection of the President and Vice President, and the creation of the Commission on Elections, 20 days of publication in three consecutive issues of the Official Gazette was fixed (Com Act No. 517). And the Parity Amendment, an involved constitutional amendment affecting the economy as well as the

independence of the Republic was publicized in three consecutive issues of the Official Gazette for 20 days prior to the plebiscite (Rep. Act No. 73)." 45 2. It is worthy to note that Article XVI of the Constitution makes no provision as to the specific date when the plebiscite shall be held, but simply states that it "shall be held not later than three months after the approval of such amendment or revision." In Coleman v. Miller, 46 the United States Supreme court held that this matter of submission involves "an appraisal of a great variety of relevant conditions, political, social and economic," which "are essentially political and not justiciable." The constituent body or in the instant cases, the President, may fix the time within which the people may act. This is because proposal and ratification are not treated as unrelated acts, but as succeeding steps in a single endeavor, the natural inference being that they are not to be widely separated in time; second, it is only when there is deemed to be a necessity therefor that amendments are to be proposed, the reasonable implication being that when proposed, they are to be considered and disposed of presently, and third, ratification is but the expression of the approbation of the people, hence, it must be done contemporaneously. 47 In the words of Jameson, "(a)n alteration of the Constitution proposed today has relation to the sentiment and the felt needs of today, and that, if not ratified early while that sentiment may fairly be supposed to exist. it ought to be regarded as waived, and not again to be voted upon, unless a second time proposed by proper body

Upon the third issue, Chief Justice Castro and Associate Justices Barredo, Makasiar, Aquino, Concepcion Jr. and Martin are of the view that there is a sufficient and proper submission of the proposed amendments for ratification by the people. Associate Justices Barredo and Makasiar expressed the hope, however that the period of time may be extended. Associate Justices Fernando, Makasiar and Antonio are of the view that the question is political and therefore beyond the competence and cognizance of this Court, Associate Justice Fernando adheres to his concurrence in the opinion of Chief Justice Concepcion in Gonzales vs. COMELEC (21 SCRA 774).Associate Justices Teehankee and MUNOZ Palma hold that prescinding from the President's lack of authority to exercise the constituent power to propose the amendments, etc., as above stated, there is no fair and proper submission with sufficient information and time to assure intelligent consent or rejection under the standards set by this Court in the controlling cases of Gonzales, supra, and Tolentino vs. COMELEC (41 SCRA 702). Chief Justice Castro and Associate Justices Barredo, Makasiar, Antonio, Aquino, Concepcion Jr. and Martin voted to dismiss the three petitions at bar. For reasons as expressed in his separate opinion, Associate Justice Fernando concurs in the result. Associate Justices Teehankee and Munoz Palma voted to grant the petitions. ACCORDINGLY, the vote being 8 to 2 to dismiss, the said petitions are hereby dismissed. This decision is immediately executory.

IN RESUME SO ORDERED. The three issues are Aquino, J, in the result. 1. Is the question of the constitutionality of Presidential Decrees Nos. 991, 1031 and 1033 political or justiciable? 2. During the present stage of the transition period, and under, the environmental circumstances now obtaining, does the President possess power to propose amendments to the Constitution as well as set up the required machinery and prescribe the procedure for the ratification of his proposals by the people? 3. Is the submission to the people of the proposed amendments within the time frame allowed therefor a sufficient and proper submission? Upon the first issue, Chief Justice Fred Ruiz Castro and Associate Justices Enrique M. Fernando, Claudio Teehankee, Antonio P. Barredo, Cecilia Munoz Palma, Hermogenes Concepcion Jr. and Ruperto G. Martin are of the view that the question posed is justiciable, while Associate Justices Felix V. Makasiar, Felix Q. Antonio and Ramon C. Aquino hold the view that the question is political. Upon the second issue, Chief Justice Castro and Associate Justices Barredo, Makasiar, Antonio, Aquino, Concepcion Jr. and Martin voted in the affirmative, while Associate Justices Teehankee and Munoz Palma voted in the negative. Associate Justice Fernando, conformably to his concurring and dissenting opinion in Aquino vs. Enrile (59 SCRA 183), specifically dissents from the proposition that there is concentration of powers in the Executive during periods of crisis, thus raising serious doubts as to the power of the President to propose amendments.

Republic of the Philippines SUPREME COURT Manila EN BANC

G.R. No. 103956 March 31, 1992 BLO UMPAR ADIONG, petitioner, vs. COMMISSION ON ELECTIONS, respondent.

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

xxx

xxx

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

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. — It is unlawful:

Prohibited Forms of Election Propaganda. — In addition to the forms of election propaganda prohibited under Section 85 of Batas Pambansa Blg. 881, it shall be unlawful: (a) to draw, paint, inscribe, write, post, display or publicly exhibit any election propaganda in any place, whether private, or public, except in the

common poster areas and/or billboards provided in the immediately preceding section, at the candidate's own residence, or at the campaign headquarters of the candidate or political party: Provided, That such posters or election propaganda shall in no case exceed two (2) feet by three (3) feet in area: Provided, Further, That at the site of and on the occasion of a public meeting or rally, streamers, not more than two (2) and not exceeding three (3) feet by eight (8) feet each may be displayed five (5) days before the date of the meeting or rally, and shall be removed within twenty-four (24) hours after said meeting or rally; . . . (Emphasis supplied) Petitioner Blo Umpar Adiong, a senatorial candidate in the May 11, 1992 elections now assails the COMELEC's Resolution insofar as it prohibits the posting of decals and stickers in "mobile" places like cars and other moving vehicles. According to him such prohibition is violative of Section 82 of the Omnibus Election Code and Section 11(a) of Republic Act No. 6646. In addition, the petitioner believes that with the ban on radio, television and print political advertisements, he, being a neophyte in the field of politics stands to suffer grave and irreparable injury with this prohibition. The posting of decals and stickers on cars and other moving vehicles would be his last medium to inform the electorate that he is a senatorial candidate in the May 11, 1992 elections. Finally, the petitioner states that as of February 22, 1992 (the date of the petition) he has not received any notice from any of the Election Registrars in the entire country as to the location of the supposed "Comelec Poster Areas." The petition is impressed with merit. The COMELEC's prohibition on posting of decals and stickers on "mobile" places whether public or private except in designated areas provided for by the COMELEC itself is null and void on constitutional grounds. First — the prohibition unduly infringes on the citizen's fundamental right of free speech enshrined in the Constitution (Sec. 4, Article III). There is no public interest substantial enough to warrant the kind of restriction involved in this case. There are various concepts surrounding the freedom of speech clause which we have adopted as part and parcel of our own Bill of Rights provision on this basic freedom. All of the protections expressed in the Bill of Rights are important but we have accorded to free speech the status of a preferred freedom. (Thomas v. Collins, 323 US 516, 89 L. Ed. 430 [1945]; Mutuc v. Commission on Elections, 36 SCRA 228 [1970]) This qualitative significance of freedom of expression arises from the fact that it is the matrix, the indispensable condition of nearly every other freedom. (Palko v. Connecticut, 302 U.S. 319 [1937]; Salonga v. 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 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 kneejerk impulse. By the time we revoke an unallowably restrictive regulation or ruling, time which is of the essence to a candidate may have lapsed and irredeemable opportunities may have been lost.

When faced with border line situations where freedom to speak by a candidate or party and freedom to know on the part of the electorate are invoked against actions intended for maintaining clean and free elections, the police, local officials and COMELEC, should lean in favor of freedom. For in the ultimate analysis, the freedom of the citizen and the State's power to regulate are not antagonistic. There can be no free and honest elections if in the efforts to maintain them, the freedom to speak and the right to know are unduly curtailed. There were a variety of opinions expressed in the National Press Club v. Commission on Elections (supra) case but all of us were unanimous that regulation of election activity has its limits. We examine the limits of regulation and not the limits of free speech. The carefully worded opinion of the Court, through Mr. Justice Feliciano, shows that regulation of election campaign activity may not pass the test of validity if it is too general in its terms or not limited in time and scope in its application, if it restricts one's expression of belief in a candidate or one's opinion of his or her qualifications, if it cuts off the flow of media reporting, and if the regulatory measure bears no clear and reasonable nexus with the constitutionally sanctioned objective. Even as the Court sustained the regulation of political advertisements, with some rather strong dissents, in National Press Club, we find the regulation in the present case of a different category. The promotion of a substantial Government interest is not clearly shown. A government regulation is sufficiently justified if it is within the constitutional power of the Government, if it furthers an important or substantial governmental interest; if the governmental interest is unrelated to the suppression of free expression; and if the incidental restriction on alleged First Amendment freedoms is no greater than is essential to the furtherance of that interest. (Id., at 377, 20 L Ed 2d 672, 88 S Ct 1673. (City Council v. Taxpayers For Vincent, 466 US 789, 80 L Ed 2d 772, 104 S Ct 2118 [1984]) The posting of decals and stickers in mobile places like cars and other moving vehicles does not endanger any substantial government interest. There is no clear public interest threatened by such activity so as to justify the curtailment of the cherished citizen's right of free speech and expression. Under the clear and present danger rule not only must the danger be patently clear and pressingly present but the evil sought to be avoided must be so substantive as to justify a clamp over one's mouth or a writing instrument to be stilled: The case confronts us again with the duty our system places on the Court to say where the individual's freedom ends and the State's power begins. Choice on that border, now as always delicate, is perhaps more so where the usual presumption supporting legislation is balanced by the preferred place given in our scheme to the great, the indispensable democratic freedom secured by the first Amendment . . . That priority gives these liberties a sanctity and a sanction not permitting dubious intrusions and it is the character of the right, not of the limitation, which determines what standard governs the choice . . . For these reasons any attempt to restrict those liberties must be justified by clear public interest, threatened not doubtfully or remotely, but by clear and present danger. The rational connection between the remedy provided and the evil to be

curbed, which in other context might support legislation against attack on due process grounds, will not suffice. These rights rest on firmer foundation. Accordingly, whatever occasion would restrain orderly discussion and persuasion, at appropriate time and place, must have clear support in public danger, actual or impending. Only the greatest abuses, endangering permanent interests, give occasion for permissible limitation. (Thomas V. Collins, 323 US 516 [1945]). (Emphasis supplied) Significantly, the freedom of expression curtailed by the questioned prohibition is not so much that of the candidate or the political party. The regulation strikes at the freedom of an individual to express his preference and, by displaying it on his car, to convince others to agree with him. A sticker may be furnished by a candidate but once the car owner agrees to have it placed on his private vehicle, the expression becomes a statement by the owner, primarily his own and not of anybody else. If, in the National Press Club case, the Court was careful to rule out restrictions on reporting by newspapers or radio and television stations and commentators or columnists as long as these are not correctly paid-for advertisements or purchased opinions with less reason can we sanction the prohibition against a sincere manifestation of support and a proclamation of belief by an individual person who pastes a sticker or decal on his private property. Second — the questioned prohibition premised on the statute and as couched in the resolution is void for overbreadth. A statute is considered void for overbreadth when "it offends the constitutional principle that a governmental purpose to control or prevent activities constitutionally subject to state regulations may not be achieved by means which sweep unnecessarily broadly and thereby invade the area of protected freedoms." (Zwickler v. Koota, 19 L ed 2d 444 [1967]). In a series of decisions this Court has held that, even though the governmental purpose be legitimate and substantial, that purpose cannot be pursued by means that broadly stifle fundamental personal liberties when the end can be more narrowly achieved. The breadth of legislative abridgment must be viewed in the light of less drastic means for achieving the same basic purpose. In Lovell v. Griffin, 303 US 444, 82 L ed 949, 58 S Ct 666, the Court invalidated an ordinance prohibiting all distribution of literature at any time or place in Griffin, Georgia, without a license, pointing out that so broad an interference was unnecessary to accomplish legitimate municipal aims. In Schneider v. Irvington, 308 US 147, 84 L ed 155, 60 S Ct. 146, the Court dealt with ordinances of four different municipalities which either banned or imposed prior restraints upon the distribution of handbills. In holding the ordinances invalid, the court noted that where legislative abridgment of fundamental personal rights and liberties is asserted, "the courts should be astute to examine the effect of the challenged legislation. Mere legislative preferences or beliefs respecting matters of public convenience may well support regulation directed at other personal activities, but be insufficient to justify such as diminishes the exercise of rights so vital to the maintenance of democratic institutions," 308 US, at 161. In Cantwell v Connecticut, 310 US 296, 84 L ed 1213, 60 S Ct. 900, 128 ALR 1352, the Court said that "[c]onduct remains subject to regulation for the protection of society,"

but pointed out that in each case "the power to regulate must be so exercised as not, in attaining a permissible end, unduly to infringe the protected freedom." (310 US at 304) (Shelton v. Tucker, 364 US 479 [1960] The resolution prohibits the posting of decals and stickers not more than eight and one-half (8-1/2) inches in width and fourteen (14) inches in length in any place, including mobile places whether public or private except in areas designated by the COMELEC. Verily, the restriction as to where the decals and stickers should be posted is so broad that it encompasses even the citizen's private property, which in this case is a privately-owned vehicle. In consequence of this prohibition, another cardinal rule prescribed by the Constitution would be violated. Section 1, Article III of the Bill of Rights provides that no person shall be deprived of his property without due process of law:

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."

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.

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.

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])

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)

As earlier stated, we have to consider the fact that in the posting of decals and stickers on cars and other moving vehicles, the candidate needs the consent of the owner of the vehicle. In such a case, the prohibition would not only deprive the owner who consents to such posting of the decals and stickers the use of his property but more important, in the process, it would deprive the citizen of his right to free speech and information: Freedom to distribute information to every citizen wherever he desires to receive it is so clearly vital to the preservation of a free society that, putting aside reasonable police and health regulations of time and manner of distribution, it must be fully preserved. The danger of distribution can so easily be controlled by traditional legal methods leaving to each householder the full right to decide whether he will receive strangers as visitors, that stringent prohibition can serve no purpose but that forbidden by the constitution, the naked restriction of the dissemination of ideas." (Martin v. City of Struthers, Ohio, 319 U.S. 141; 87 L. ed. 1313 [1943]) The right to property may be subject to a greater degree of regulation but when this right is joined by a "liberty" interest, the burden of justification on the part of the Government must be exceptionally convincing and irrefutable. The burden is not met in this case. Section 11 of Rep. Act 6646 is so encompassing and invasive that it prohibits the posting or display of election propaganda in any place, whether public or private, except in the common poster areas sanctioned by COMELEC. This means that a private person cannot post his own crudely prepared personal poster on his own front door or on a post in his yard. While the

It is to be reiterated that the posting of decals and stickers on cars, calesas, tricycles, pedicabs and other moving vehicles needs the consent of the owner of the vehicle. Hence, the preference of the citizen becomes crucial in this kind of election propaganda not the financial resources of the candidate. Whether the candidate is rich and, therefore, can afford to doleout more decals and stickers or poor and without the means to spread out the same number of decals and stickers is not as important as the right of the owner to freely express his choice and exercise his right of free speech. The owner can even prepare his own decals or stickers for posting on his personal property. To strike down this right and enjoin it is impermissible encroachment of his liberties. In sum, the prohibition on posting of decals and stickers on "mobile" places whether public or private except in the authorized areas designated by the COMELEC becomes censorship which cannot be justified by the Constitution: . . . The concept of the Constitution as the fundamental law, setting forth the criterion for the validity of any public act whether proceeding from the highest official or the lowest functionary, is a postulate of our system of government. That is to manifest fealty to the rule of law, with priority accorded to that which occupies the topmost rung in the legal hierarchy. The three departments of government in the discharge of the functions with which it is entrusted have no choice but to yield obedience to its commands. Whatever limits it imposes must be observed. Congress in the enactment of statutes must ever be on guard lest the restrictions on its authority, either substantive or formal, be transcended. The Presidency in the execution of the laws cannot ignore or disregard what it ordains. In its task of applying the law to the facts as found in deciding cases, the

judiciary is called upon to maintain inviolate what is decreed by the fundamental law. Even its power of judicial review to pass upon the validity of the acts of the coordinate branches in the course of adjudication is a logical. corollary of this basic principle that the Constitution is paramount. It overrides any governmental measure that fails to live up to its mandates. Thereby there is a recognition of its being the supreme law. (Mutuc v. Commission on Elections, supra) The unusual circumstances of this year's national and local elections call for a more liberal interpretation of the freedom to speak and the right to know. It is not alone the widest possible dissemination of information on platforms and programs which concern us. Nor are we limiting ourselves to protecting the unfettered interchange of ideas to bring about political change. (Cf. New York Times v. Sullivan, supra) The big number of candidates and elective positions involved has resulted in the peculiar situation where almost all voters cannot name half or even two-thirds of the candidates running for Senator. The public does not know who are aspiring to be elected to public office. There are many candidates whose names alone evoke qualifications, platforms, programs and ideologies which the voter may accept or reject. When a person attaches a sticker with such a candidate's name on his car bumper, he is expressing more than the name; he is espousing ideas. Our review of the validity of the challenged regulation includes its effects in today's particular circumstances. We are constrained to rule against the COMELEC prohibition. WHEREFORE, the petition is hereby GRANTED. The portion of Section 15 (a) of Resolution No. 2347 of the Commission on Elections providing that "decals and stickers may be posted only in any of the authorized posting areas provided in paragraph (f) of Section 21 hereof" is DECLARED NULL and VOID. SO ORDERED. Narvasa, C.J., Melencio-Herrera, Paras, Padilla, Bidin, Griño-Aquino, Medialdea, Regalado, Davide, Jr., Romero and Nocon, J.J., concur. Feliciano and Bellosillo, JJ., are on leave.

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-9316052. 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: 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 ABSCBN 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 sociopolitical 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. 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 sociopolitical 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.

The only exceptions from the MTRCBs power of review are those expressly mentioned in Section 7 of P. D. No. 1986, such as (1) television programs imprinted or exhibited by the Philippine Government and/or its departments and agencies, and (2) newsreels. Thus: SEC. 7. Unauthorized showing or exhibition. It shall be unlawful for any person or entity to exhibit or cause to be exhibited in any moviehouse, theatre, or public place or by television within the Philippines any motion picture, television program or publicity material, including trailers, and stills for lobby displays in connection with motion pictures, not duly authorized by the owner or his assignee and passed by the BOARD; or to print or cause to be printed on any motion picture to be exhibited in any theater or public place or by television a label or notice showing the same to have been officially passed by the BOARD when the same has not been previously authorized, except motion pictures, television programs or publicity material imprinted or exhibited by the Philippine Government and/or its departments and agencies, and newsreels. Still in a desperate attempt to be exempted, respondents contend that the The Inside Story falls under the category of newsreels. Their contention is unpersuasive. P. D. No. 1986 does not define newsreels. Websters dictionary defines newsreels as short motion picture films portraying or dealing with current events. [33] A glance at actual samples of newsreels shows that they are mostly reenactments of events that had already happened. Some concrete examples are those of Dziga Vertovs Russian Kino-Pravda newsreel series (KinoPravdameans 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 case or controversy; (3) that the question must be raised at the earliest possible opportunity; and, (4) that the decision on the constitutional or legal question must be necessary to the determination of the case itself.[38]

WHEREFORE, the instant petition is GRANTED. The assailed RTC Decision dated November 18, 1997 and Order dated August 26, 2002 are hereby REVERSED. The Decision dated March 12, 1993 of petitioner MTRCB is AFFIRMED. Costs against respondents. SO ORDERED. Panganiban, (Chairman), Corona, Carpio-Morales, and Garcia, JJ., concur.

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

EN BANC G.R. No. 133486

January 28, 2000

ABS-CBN BROADCASTING CORPORATION, petitioner, vs. COMMISSION ON ELECTIONS, respondent. PANGANIBAN, J.:

Petitioner raises this lone issue: "Whether or not the Respondent Commission acted with grave abuse of discretion amounting to a lack or excess of jurisdiction when it approved the issuance of a restraining order enjoining the petitioner or any [other group], its agents or representatives from conducting exit polls during the . . . May 11 elections." 3 In his Memorandum,4 the solicitor general, in seeking to dismiss the Petition, brings up additional issues: (1) mootness and (2) prematurity, because of petitioner's failure to seek a reconsideration of the assailed Comelec Resolution. The Court's Ruling The Petition5 is meritorious.

The holding of exit polls and the dissemination of their results through mass media constitute an essential part of the freedoms of speech and of the press. Hence, the Comelec cannot ban them totally in the guise of promoting clean, honest, orderly and credible elections. Quite the contrary, exit polls — properly conducted and publicized — can be vital tools in eliminating the evils of election-fixing and fraud. Narrowly tailored countermeasures may be prescribed by the Comelec so as to minimize or suppress the incidental problems in the conduct of exit polls, without transgressing in any manner the fundamental rights of our people. The Case and the Facts Before us is a Petition for Certiorari under Rule 65 of the Rules of Court assailing Commission on Elections (Comelec) en banc Resolution No. 98-14191 dated April 21, 1998. In the said Resolution, the poll body RESOLVED to approve the issuance of a restraining order to stop ABS-CBN or any other groups, its agents or representatives from conducting such exit survey and to authorize the Honorable Chairman to issue the same. The Resolution was issued by the Comelec allegedly upon "information from [a] reliable source that ABS-CBN (Lopez Group) has prepared a project, with PR groups, to conduct radio-TV coverage of the elections . . . and to make [an] exit survey of the . . . vote during the elections for national officials particularly for President and Vice President, results of which shall be [broadcast] immediately."2 The electoral body believed that such project might conflict with the official Comelec count, as well as the unofficial quick count of the National Movement for Free Elections (Namfrel). It also noted that it had not authorized or deputized Petitioner ABS-CBN to undertake the exit survey.

Procedural Issues: Mootness and Prematurity The solicitor general contends that the petition is moot and academic, because the May 11, 1998 election has already been held and done with. Allegedly, there is no longer any actual controversy before us. The issue is not totally moot. While the assailed Resolution referred specifically to the May 11, 1998 election, its implications on the people's fundamental freedom of expression transcend the past election. The holding of periodic elections is a basic feature of our democratic government. By its very nature, exit polling is tied up with elections. To set aside the resolution of the issue now will only postpone a task that could well crop up again in future elections. 6 In any event, in Salonga v. Cruz Paño, the Court had occasion to reiterate that it "also has the duty to formulate guiding and controlling constitutional principles, precepts, doctrines, or rules. It has the symbolic function of educating bench and bar on the extent of protection given by constitutional guarantees."7 Since the fundamental freedoms of speech and of the press are being invoked here, we have resolved to settle, for the guidance of posterity, whether they likewise protect the holding of exit polls and the dissemination of data derived therefrom. The solicitor general further contends that the Petition should be dismissed for petitioner's failure to exhaust available remedies before the issuing forum, specifically the filing of a motion for reconsideration.

This Court, however, has ruled in the past that this procedural requirement may be glossed over to prevent a miscarriage of justice,8 when the issue involves the principle of social justice or the protection of labor,9 when the decision or resolution sought to be set aside is a nullity, 10 or when the need for relief is extremely urgent and certiorari is the only adequate and speedy remedy available.11 The instant Petition assails a Resolution issued by the Comelec en banc on April 21, 1998, only twenty (20) days before the election itself. Besides, the petitioner got hold of a copy thereof only on May 4, 1998. Under the circumstances, there was hardly enough opportunity to move for a reconsideration and to obtain a swift resolution in time or the May 11, 1998 elections. Moreover, not only is time of the essence; the Petition involves transcendental constitutional issues. Direct resort to this Court through a special civil action for certiorari is therefore justified. Main Issue: Validity of Conducting Exit Polls An exit poll is a species of electoral survey conducted by qualified individuals or groups of individuals for the purpose of determining the probable result of an election by confidentially asking randomly selected voters whom they have voted for, immediately after they have officially cast their ballots. The results of the survey are announced to the public, usually through the mass media, to give an advance overview of how, in the opinion of the polling individuals or organizations, the electorate voted. In our electoral history, exit polls had not been resorted to until the recent May 11, 1998 elections. In its Petition, ABS-CBN Broadcasting Corporation maintains that it is a responsible member of the mass media, committed to report balanced election-related data, including "the exclusive results of Social Weather Station (SWS) surveys conducted in fifteen administrative regions." It argues that the holding of exit polls and the nationwide reporting their results are valid exercises of the freedoms of speech and of the press. It submits that, in precipitately and unqualifiedly restraining the holding and the reporting of exit polls, the Comelec gravely abused its discretion and grossly violated the petitioner's constitutional rights. Public respondent, on the other hand, vehemently denies that, in issuing the assailed Resolution, it gravely abused its discretion. It insists that the issuance thereof was "pursuant to its constitutional and statutory powers to promote a clean, honest, orderly and credible May 11, 1998 elections"; and "to protect, preserve and maintain the secrecy and sanctity of the ballot." It contends that "the conduct of exit surveys might unduly confuse and influence the voters," and that the surveys were designed "to condition the minds of people and cause confusion as to who are the winners and the [losers] in the election," which in turn may result in "violence and anarchy." Public respondent further argues that "exit surveys indirectly violate the constitutional principle to preserve the sanctity of the ballots," as the "voters are lured to reveal the contents of ballots," in violation of Section 2, Article V of the Constitution;12 and relevant provisions of the Omnibus Election Code.13 It submits that the constitutionally protected freedoms invoked by petitioner "are

not immune to regulation by the State in the legitimate exercise of its police power," such as in the present case. The solicitor general, in support of the public respondent, adds that the exit polls pose a "clear and present danger of destroying the credibility and integrity of the electoral process," considering that they are not supervised by any government agency and can in general be manipulated easily. He insists that these polls would sow confusion among the voters and would undermine the official tabulation of votes conducted by the Commission, as well as the quick count undertaken by the Namfrel. Admittedly, no law prohibits the holding and the reporting of exit polls. The question can thus be more narrowly defined: May the Comelec, in the exercise of its powers, totally ban exit polls? In answering this question, we need to review quickly our jurisprudence on the freedoms of speech and of the press. Nature and Scope of Freedoms of Speech and of the Press The freedom of expression is a fundamental principle of our democratic government. It "is a 'preferred' right and, therefore, stands on a higher level than substantive economic or other liberties. . . . [T]his must be so because the lessons of history, both political and legal, illustrate that freedom of thought and speech is the indispensable condition of nearly every other form of freedom."14 Our Constitution clearly mandates that no law shall be passed abridging the freedom of speech or of the press.15 In the landmark case Gonzales v. Comelec,16 this Court enunciated that at the very least, free speech and a free press consist of the liberty to discuss publicly and truthfully any matter of public interest without prior restraint. The freedom of expression is a means of assuring individual self-fulfillment, of attaining the truth, of securing participation by the people in social and political decision-making, and of maintaining the balance between stability and change. 17 It represents a profound commitment to the principle that debates on public issues should be uninhibited, robust, and wide open. 18 It means more than the right to approve existing political beliefs or economic arrangements, to lend support to official measures, or to take refuge in the existing climate of opinion on any of public consequence. And paraphrasing the eminent Justice Oliver Wendell Holmes,19 we stress that the freedom encompasses the thought we hate, no less than the thought we agree with. Limitations The realities of life in a complex society, however, preclude an absolute exercise of the freedoms of speech and of the press. Such freedoms could not remain unfettered and unrestrained at all times and under all circumstances.20They are not immune to regulation by the State in the exercise of its police power.21 While the liberty to think is absolute, the power to express such thought in words and deeds has limitations.

In Cabansag v. Fernandez22 this Court had occasion to discuss two theoretical test in determining the validity of restrictions to such freedoms, as follows: These are the "clear and present danger" rule and the "dangerous tendency" rule. The first, as interpreted in a number of cases, means that the evil consequence of the comment or utterance must be "extremely serious and the degree of imminence extremely high" before the utterance can be punished. The danger to be guarded against is the "substantive evil" sought to be prevented. . . .23 The "dangerous tendency" rule, on the other hand, . . . may be epitomized as follows: if the words uttered create a dangerous tendency which the state has a right to prevent, then such words are punishable. It is not necessary that some definite or immediate acts of force, violence, or unlawfulness be advocated. It is sufficient that such acts be advocated in general terms. Nor is it necessary that the language used be reasonably calculated to incite persons to acts of force, violence, or unlawfulness. It is sufficient if the natural tendency and probable effect of the utterance be to bring about the substantive evil which the legislative body seeks to prevent.24 Unquestionably, this Court adheres to the "clear and present danger" test. It implicitly did in its earlier decisions in Primicias v. Fugoso25 and American Bible Society v. City of Manila;26 as well as in later ones, Vera v. Arca,27 Navarro v. Villegas,28 Imbong v. Ferrer,29 Blo Umpar Adiong v. Comelec30 and, more recently, in Iglesia ni Cristo v. MTRCB.31In setting the standard or test for the "clear and present danger" doctrine, the Court echoed the words of Justice Holmes: "The question in every case is whether the words used are used in such circumstances and are of such a nature as to create a clear and present danger that they will bring about the substantive evils that Congress has a right to prevent. It is a question of proximity and degree." 32 A limitation on the freedom of expression may be justified only by a danger of such substantive character that the state has a right to prevent. Unlike in the "dangerous tendency" doctrine, the danger must not only be clear but also present. "Present" refers to the time element; the danger must not only be probable but very likely to be inevitable. 33The evil sought to be avoided must be so substantive as to justify a clamp over one's mouth or a restraint of a writing instrument. 34 Justification for a Restriction Doctrinally, the Court has always ruled in favor of the freedom of expression, and any restriction is treated an exemption. The power to exercise prior restraint is not to be presumed; rather the presumption is against its validity.35 And it is respondent's burden to overthrow such presumption. Any act that restrains speech should be greeted with furrowed brows, 36 so it has been said. To justify a restriction, the promotion of a substantial government interest must be clearly shown.37 Thus: A government regulation is sufficiently justified if it is within the constitutional power of the government, if it furthers an important or substantial government interest; if the governmental interest is unrelated to the suppression of free expression; and if the

incidental restriction on alleged First Amendment freedoms is no greater than is essential to the furtherance of that interest.38 Hence, even though the government's purposes are legitimate and substantial, they cannot be pursued by means that broadly stifle fundamental personal liberties, when the end can be more narrowly achieved.39 The freedoms of speech and of the press should all the more be upheld when what is sought to be curtailed is the dissemination of information meant. to add meaning to the equally vital right of suffrage.40 We cannot support any ruling or order "the effect of which would be to nullify so vital a constitutional right as free speech."41 When faced with borderline situations in which the freedom of a candidate or a party to speak or the freedom of the electorate to know is invoked against actions allegedly made to assure clean and free elections, this Court shall lean in favor of freedom. For in the ultimate analysis, the freedom of the citizen and the State's power to regulate should not be antagonistic. There can be no free and honest elections if, in the efforts to maintain them, the freedom to speak and the right to know are unduly curtailed. 42 True, the government has a stake in protecting the fundamental right to vote by providing voting places that are safe and accessible. It has the duty to secure the secrecy of the ballot and to preserve the sanctity and the integrity of the electoral process. However, in order to justify a restriction of the people's freedoms of speech and of the press, the state's responsibility of ensuring orderly voting must far outweigh them. These freedoms have additional importance, because exit polls generate important research data which may be used to study influencing factors and trends in voting behavior. An absolute prohibition would thus be unreasonably restrictive, because it effectively prevents the use of exit poll data not only for election-day projections, but also for long-term research. 43 Comelec Ban on Exit Polling In the case at bar, the Comelec justifies its assailed Resolution as having been issued pursuant to its constitutional mandate to ensure a free, orderly, honest, credible and peaceful election. While admitting that "the conduct of an exit poll and the broadcast of the results thereof [are] . . . an exercise of press freedom," it argues that "[p]ress freedom may be curtailed if the exercise thereof creates a clear and present danger to the community or it has a dangerous tendency." It then contends that "an exit poll has the tendency to sow confusion considering the randomness of selecting interviewees, which further make[s] the exit poll highly unreliable. The probability that the results of such exit poll may not be in harmony with the official count made by the Comelec . . . is ever present. In other words, the exit poll has a clear and present danger of destroying the credibility and integrity of the electoral process." Such arguments are purely speculative and clearly untenable. First, by the very nature of a survey, the interviewees or participants are selected at random, so that the results will as much as possible be representative or reflective of the general sentiment or view of the community or group polled. Second, the survey result is not meant to replace or be at par with the official Comelec count. It consists merely of the opinion of the polling group as to who the electorate in general has probably voted for, based on the limited data gathered from polled individuals. Finally, not at stake

here are the credibility and the integrity of the elections, which are exercises that are separate and independent from the exit polls. The holding and the reporting of the results of exit polls cannot undermine those of the elections, since the former is only part of the latter. If at all, the outcome of one can only be indicative of the other. The Comelec's concern with the possible noncommunicative effect of exit polls — disorder and confusion in the voting centers — does not justify a total ban on them. Undoubtedly, the assailed Comelec Resolution is too broad, since its application is without qualification as to whether the polling is disruptive or not.44 Concededly, the Omnibus Election Code prohibits disruptive behavior around the voting centers.45 There is no showing, however, that exit polls or the means to interview voters cause chaos in voting centers. Neither has any evidence been presented proving that the presence of exit poll reporters near an election precinct tends to create disorder or confuse the voters. Moreover, the prohibition incidentally prevents the collection of exit poll data and their use for any purpose. The valuable information and ideas that could be derived from them, based on the voters' answer to the survey questions will forever remain unknown and unexplored. Unless the ban is restrained, candidates, researchers, social scientists and the electorate in general would be deprived of studies on the impact of current events and of election-day and other factors on voters' choices.1âwphi1.nêt In Daily Herald Co. v. Munro,46 the US Supreme Court held that a statute, one of the purposes of which was to prevent the broadcasting of early returns, was unconstitutional because such purpose was impermissible, and the statute was neither narrowly tailored to advance a state interest nor the least restrictive alternative. Furthermore, the general interest of the State in insulating voters from outside influences is insufficient to justify speech regulation. Just as curtailing election-day broadcasts and newspaper editorials for the reason that they might indirectly affect the voters' choices is impermissible, so is impermissible, so is regulating speech via an exit poll restriction.47 The absolute ban imposed by the Comelec cannot, therefore, be justified. It does not leave open any alternative channel of communication to gather the type of information obtained through exit polling. On the other hand, there are other valid and reasonable ways and means to achieve the Comelec end of avoiding or minimizing disorder and confusion that may be brought about by exit surveys. For instance, a specific limited area for conducting exit polls may be designated. Only professional survey groups may be allowed to conduct the same. Pollsters may be kept at a reasonable distance from the voting center. They may be required to explain to voters that the latter may refuse interviewed, and that the interview is not part of the official balloting process. The pollsters may further be required to wear distinctive clothing that would show they are not election officials.48 Additionally, they may be required to undertake an information campaign on the nature of the exercise and the results to be obtained therefrom. These measures, together with a general prohibition of disruptive behavior, could ensure a clean, safe and orderly election. For its part, petitioner ABS-CBN explains its survey methodology as follows: (1) communities are randomly selected in each province; (2) residences to be polled in such communities are also

chosen at random; (3) only individuals who have already voted, as shown by the indelible ink on their fingers, are interviewed; (4) the interviewers use no cameras of any sort; (5) the poll results are released to the public only on the day after the elections. 49 These precautions, together with the possible measures earlier stated, may be undertaken to abate the Comelec's fear, without consequently and unjustifiably stilling the people's voice. With the foregoing premises, we conclude that the interest of the state in reducing disruption is outweighed by the drastic abridgment of the constitutionally guaranteed rights of the media and the electorate. Quite the contrary, instead of disrupting elections, exit polls — properly conducted and publicized — can be vital tools for the holding of honest, orderly, peaceful and credible elections; and for the elimination of election-fixing, fraud and other electoral ills. Violation of Ballot Secrecy The contention of public respondent that exit polls indirectly transgress the sanctity and the secrecy of the ballot is off-tangent to the real issue. Petitioner does not seek access to the ballots cast by the voters. The ballot system of voting is not at issue here. The reason behind the principle of ballot secrecy is to avoid vote buying through voter identification. Thus, voters are prohibited from exhibiting the contents of their official ballots to other persons, from making copies thereof, or from putting distinguishing marks thereon so as to be identified. Also proscribed is finding out the contents of the ballots cast by particular voters or disclosing those of disabled or illiterate voters who have been assisted. Clearly, what is forbidden is the association of voters with their respective votes, for the purpose of assuring that the votes have been cast in accordance with the instructions of a third party. This result cannot, however, be achieved merely through the voters' verbal and confidential disclosure to a pollster of whom they have voted for. In exit polls, the contents of the official ballot are not actually exposed. Furthermore, the revelation of whom an elector has voted for is not compulsory, but voluntary. Voters may also choose not to reveal their identities. Indeed, narrowly tailored countermeasures may be prescribed by the Comelec, so as to minimize or suppress incidental problems in the conduct of exit polls, without transgressing the fundamental rights of our people. WHEREFORE, the Petition is GRANTED, and the Temporary Restraining Order issued by the Court on May 9, 1998 is made PERMANENT. Assailed Minute Resolution No. 98-1419 issued by the Comelec en banc on April 21, 1998 is hereby NULLIFIED and SET ASIDE. No costs. SO ORDERED. Davide, Jr., C.J., Bellosillo, Puno, Quisumbing, Purisima, Buena, Gonzaga-Reyes, YnaresSantiago and De Leon, Jr., JJ., concur. Kapunan, J., see dissenting opinion. Vitug, J., please see separate opinion. Melo and Mendoza, JJ., are join the separate opinion of Justice Vitug. Pardo, J., took no part.

Republic of the Philippines SUPREME COURT Manila EN BANC G.R. No. 168338

February 15, 2008

FRANCISCO CHAVEZ, petitioner, vs. RAUL M. GONZALES, in his capacity as the Secretary of the Department of Justice; and NATIONAL TELECOMMUNICATIONS COMMISSION (NTC), respondents. SEPARATE CONCURRING OPINION CARPIO, J.: The Case This is a petition for the writs of certiorari and prohibition to set aside "acts, issuances, and orders" of respondents Secretary of Justice Raul M. Gonzalez (respondent Gonzales) and the National Telecommunications Commission (NTC), particularly an NTC "press release" dated 11 June 2005, warning radio and television stations against airing taped conversations allegedly between President Gloria Macapagal-Arroyo and Commission on Elections (COMELEC) Commissioner Virgilio Garcillano (Garcillano)1 under pain of suspension or revocation of their airwave licenses.

On 11 June 2005, the NTC issued a press release warning radio and television stations that airing the Garci Tapes is a "cause for the suspension, revocation and/or cancellation of the licenses or authorizations" issued to them.5 On 14 June 2005, NTC officers met with officers of the broadcasters group, Kapisanan ng mga Broadcasters sa Pilipinas (KBP), to dispel fears of censorship. The NTC and KBP issued a joint press statement expressing commitment to press freedom.6 On 21 June 2005, petitioner Francisco I. Chavez (petitioner), as citizen, filed this petition to nullify the "acts, issuances, and orders" of the NTC and respondent Gonzalez (respondents) on the following grounds: (1) respondents’ conduct violated freedom of expression and the right of the people to information on matters of public concern under Section 7, Article III of the Constitution, and (2) the NTC acted ultra vires when it warned radio and television stations against airing the Garci Tapes. In their Comment to the petition, respondents raised threshold objections that (1) petitioner has no standing to litigate and (2) the petition fails to meet the case or controversy requirement in constitutional adjudication. On the merits, respondents claim that (1) the NTC's press release of 11 June 2005 is a mere "fair warning," not censorship, cautioning radio and television networks on the lack of authentication of the Garci Tapes and of the consequences of airing false or fraudulent material, and (2) the NTC did not act ultra vires in issuing the warning to radio and television stations. In his Reply, petitioner belied respondents' claim on his lack of standing to litigate, contending that his status as a citizen asserting the enforcement of a public right vested him with sufficient interest to maintain this suit. Petitioner also contests respondents' claim that the NTC press release of 11 June 2005 is a mere warning as it already prejudged the Garci Tapes as inauthentic and violative of the Anti-Wiretapping Law, making it a "cleverly disguised x x x gag order."

The Facts On 24 June 2004, Congress, acting as national board of canvassers, proclaimed President Arroyo winner in the 2004 presidential elections. 2 President Arroyo received a total of 12,905,808 votes, 1,123,576 more than the votes of her nearest rival, Fernando Poe, Jr. Sometime before 6 June 2005, the radio station dzMM aired the Garci Tapes where the parties to the conversation discussed "rigging" the results of the 2004 elections to favor President Arroyo. On 6 June 2005, Presidential spokesperson Ignacio Bunye (Bunye) held a press conference in Malacañang Palace, where he played before the presidential press corps two compact disc recordings of conversations between a woman and a man. Bunye identified the woman in both recordings as President Arroyo but claimed that the contents of the second compact disc had been "spliced" to make it appear that President Arroyo was talking to Garcillano. However, on 9 June 2005, Bunye backtracked and stated that the woman's voice in the compact discs was not President Arroyo’s after all. 3 Meanwhile, other individuals went public, claiming possession of the genuine copy of the Garci Tapes.4 Respondent Gonzalez ordered the National Bureau of Investigation to investigate media organizations which aired the Garci Tapes for possible violation of Republic Act No. 4200 or the Anti-Wiretapping Law.

ISSUE The principal issue for resolution is whether the NTC warning embodied in the press release of 11 June 2005 constitutes an impermissible prior restraint on freedom of expression. I vote to (1) grant the petition, (2) declare the NTC warning, embodied in its press release dated 11 June 2005, an unconstitutional prior restraint on protected expression, and (3) enjoin the NTC from enforcing the same. 1. Standing to File Petition Petitioner has standing to file this petition. When the issue involves freedom of expression, as in the present case, any citizen has the right to bring suit to question the constitutionality of a government action in violation of freedom of expression, whether or not the government action is directed at such citizen. The government action may chill into silence those to whom the action is directed. Any citizen must be allowed to take up the cudgels for those who have been cowed into inaction because freedom of expression is a vital public right that must be defended by everyone and anyone.

Freedom of expression, being fundamental to the preservation of a free, open and democratic society, is of transcendental importance that must be defended by every patriotic citizen at the earliest opportunity. We have held that any concerned citizen has standing to raise an issue of transcendental importance to the nation,7 and petitioner in this present petition raises such issue. 2. Overview of Freedom of Expression, Prior Restraint and Subsequent Punishment

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

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

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

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

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

Freedom of expression is the freedom to disseminate ideas and beliefs, whether competing, conforming or otherwise. It is the freedom to express to others what one likes or dislikes, as it is the freedom of others to express to one and all what they favor or disfavor. It is the free expression for the ideas we love, as well as the free expression for the ideas we hate. 9 Indeed, the function of freedom of expression is to stir disputes: [I]t may indeed best serve its high purpose when it induces a condition of unrest, creates dissatisfaction with conditions as they are, or even stirs people to anger. Speech is often provocative and challenging. It may strike at prejudices and preconceptions and have profound unsettling effects as it presses for acceptance of an idea. 10 Section 4, Article III of the Constitution prohibits the enactment of any law curtailing freedom of expression: No law shall be passed abridging the freedom of speech, of expression, or the press, or the right of the people peaceably to assemble and petition the government for redress of grievances. Thus, the rule is that expression is not subject to any prior restraint or censorship because the Constitution commands that freedom of expression shall not be abridged. Over time, however, courts have carved out narrow and well defined exceptions to this rule out of necessity.

If the prior restraint is not aimed at the message or idea of the expression, it is content-neutral even if it burdens expression. A content-neutral restraint is a restraint which regulates the time, place or manner of the expression in public places 16 without any restraint on the content of the expression. Courts will subject content-neutral restraints to intermediate scrutiny. 17 An example of a content-neutral restraint is a permit specifying the date, time and route of a rally passing through busy public streets. A content-neutral prior restraint on protected expression which does not touch on the content of the expression enjoys the presumption of validity and is thus enforceable subject to appeal to the courts.18 Courts will uphold time, place or manner restraints if they are content-neutral, narrowly tailored to serve a significant government interest, and leave open ample alternative channels of expression. 19 In content-neutral prior restraint on protected speech, there should be no prior restraint on the content of the expression itself. Thus, submission of movies or pre-taped television programs to a government review board is constitutional only if the review is for classification and not for censoring any part of the content of the submitted materials.20 However, failure to submit such materials to the review board may be penalized without regard to the content of the materials.21 The review board has no power to reject the airing of the submitted materials. The review board’s power is only to classify the materials, whether for general patronage, for adults only, or for some other classification. The power to classify expressions applies only to movies and pre-taped television programs22 but not to live television programs. Any classification of live television programs necessarily entails prior restraint on expression.

Expression that may be subject to prior restraint is unprotected expression or low-value expression. By definition, prior restraint on unprotected expression is content-based 23 since the restraint is imposed because of the content itself. In this jurisdiction, there are currently only four categories of unprotected expression that may be subject to prior restraint. This Court recognized false or misleading advertisement as unprotected expression only in October 2007. 24 Only unprotected expression may be subject to prior restraint. However, any such prior restraint on unprotected expression must hurdle a high barrier. First, such prior restraint is presumed unconstitutional. Second,the government bears a heavy burden of proving the constitutionality of the prior restraint.25 Courts will subject to strict scrutiny any government action imposing prior restraint on unprotected expression.26 The government action will be sustained if there is a compelling State interest, and prior restraint is necessary to protect such State interest. In such a case, the prior restraint shall be narrowly drawn - only to the extent necessary to protect or attain the compelling State interest. Prior restraint is a more severe restriction on freedom of expression than subsequent punishment. Although subsequent punishment also deters expression, still the ideas are disseminated to the public. Prior restraint prevents even the dissemination of ideas to the public.

substantive evil that the State has a right and duty to prevent, and such danger must be grave and imminent.33 Prior restraint on unprotected expression takes many forms - it may be a law, administrative regulation, or impermissible pressures like threats of revoking licenses or withholding of benefits.34 The impermissible pressures need not be embodied in a government agency regulation, but may emanate from policies, advisories or conduct of officials of government agencies. 3. Government Action in the Present Case The government action in the present case is a warning by the NTC that the airing or broadcasting of the Garci Tapes by radio and television stations is a "cause for the suspension, revocation and/or cancellation of the licenses or authorizations" issued to radio and television stations. The NTC warning, embodied in a press release, relies on two grounds. First, the airing of the Garci Tapes "is a continuing violation of the Anti-Wiretapping Law and the conditions of the Provisional Authority and/or Certificate of Authority issued to radio and TV stations." Second, the Garci Tapes have not been authenticated, and subsequent investigation may establish that the tapes contain false information or willful misrepresentation. Specifically, the NTC press release contains the following categorical warning:

While there can be no prior restraint on protected expression, such expression may be subject to subsequent punishment,27 either civilly or criminally. Thus, the publication of election surveys cannot be subject to prior restraint,28 but an aggrieved person can sue for redress of injury if the survey turns out to be fabricated. Also, while Article 201 (2)(b)(3) of the Revised Penal Code punishing "shows which offend any race or religion" cannot be used to justify prior restraint on religious expression, this provision can be invoked to justify subsequent punishment of the perpetrator of such offensive shows.29 Similarly, if the unprotected expression does not warrant prior restraint, the same expression may still be subject to subsequent punishment, civilly or criminally. Libel falls under this class of unprotected expression. However, if the expression cannot be subject to the lesser restriction of subsequent punishment, logically it cannot also be subject to the more severe restriction of prior restraint. Thus, since profane language or "hate speech" against a religious minority is not subject to subsequent punishment in this jurisdiction, 30 such expression cannot be subject to prior restraint. If the unprotected expression warrants prior restraint, necessarily the same expression is subject to subsequent punishment. There must be a law punishing criminally the unprotected expression before prior restraint on such expression can be justified. The legislature must punish the unprotected expression because it creates a substantive evil that the State must prevent. Otherwise, there will be no legal basis for imposing a prior restraint on such expression. The prevailing test in this jurisdiction to determine the constitutionality of government action imposing prior restraint on three categories of unprotected expression – pornography, 31 advocacy of imminent lawless action, and danger to national security - is the clear and present danger test.32 The expression restrained must present a clear and present danger of bringing about a

Taking into consideration the country’s unusual situation, and in order not to unnecessarily aggravate the same, the NTC warns all radio stations and television networks owners/operators that the conditions of the authorizations and permits issued to them by Government like the Provisional Authority and/or Certificate of Authority explicitly provides that said companies shall not use its stations for the broadcasting or telecasting of false information or willful misrepresentation. Relative thereto, it has come to the attention of the Commission that certain personalities are in possession of alleged taped conversation which they claim, (sic) involve the President of the Philippines and a Commissioner of the COMELEC regarding their supposed violation of election laws. These personalities have admitted that the taped conversations are product of illegal wiretapping operations. Considering that these taped conversations have not been duly authenticated nor could it be said at this time that the tapes contain an accurate or truthful representation of what was recorded therein, (sic) it is the position of the Commission that the continuous airing or broadcast of the said taped conversations by radio and television stations is a continuing violation of the Anti-Wiretapping Law and the conditions of the Provisional Authority and/or Certificate of Authority issued to these radio and television stations. If it has been (sic) subsequently established that the said tapes are false and/or fraudulent after a prosecution or appropriate investigation, the concerned radio and television companies are hereby warned that their broadcast/airing of such false information and/or willful misrepresentation shall be just cause for the suspension, revocation and/or cancellation of the licenses or authorizations issued to the said companies. (Boldfacing and underscoring supplied)

The NTC does not claim that the public airing of the Garci Tapes constitutes unprotected expression that may be subject to prior restraint. The NTC does not specify what substantive evil the State seeks to prevent in imposing prior restraint on the airing of the Garci Tapes. The NTC does not claim that the public airing of the Garci Tapes constitutes a clear and present danger of a substantive evil, of grave and imminent character, that the State has a right and duty to prevent. The NTC did not conduct any hearing in reaching its conclusion that the airing of the Garci Tapes constitutes a continuing violation of the Anti-Wiretapping Law. At the time of issuance of the NTC press release, and even up to now, the parties to the conversations in the Garci Tapes have not complained that the wire-tapping was without their consent, an essential element for violation of the Anti-Wiretapping Law.35 It was even the Office of the President, through the Press Secretary, that played and released to media the Garci Tapes containing the alleged "spliced" conversation between President Arroyo and Commissioner Garcillano. There is also the issue of whether a wirelesscellular phone conversation is covered by the Anti-Wiretapping Law. Clearly, the NTC has no factual or legal basis in claiming that the airing of the Garci Tapes constitutes a violation of the Anti-Wiretapping Law. The radio and television stations were not even given an opportunity to be heard by the NTC. The NTC did not observe basic due process as mandated in Ang Tibay v. Court of Industrial Relations.36 The NTC claims that the Garci Tapes, "after a prosecution or the appropriate investigation," may constitute "false information and/or willful misrepresentation." However, the NTC does not claim that such possible false information or willful misrepresentation constitutes misleading commercial advertisement. In the United States, false or deceptive commercial speech is categorized as unprotected expression that may be subject to prior restraint. Recently, this Court upheld the constitutionality of Section 6 of the Milk Code requiring the submission to a government screening committee of advertising materials for infant formula milk to prevent false or deceptive claims to the public.37 There is, however, no claim here by respondents that the Garci Tapes constitute false or misleading commercial advertisement. The NTC concedes that the Garci Tapes have not been authenticated as accurate or truthful. The NTC also concedes that only "after a prosecution or appropriate investigation" can it be established that the Garci Tapes constitute "false information and/or willful misrepresentation." Clearly, the NTC admits that it does not even know if the Garci Tapes contain false information or willful misrepresentation. 4. Nature of Prior Restraint in the Present Case The NTC action restraining the airing of the Garci Tapes is a content-based prior restraint because it is directed at the message of the Garci Tapes. The NTC’s claim that the Garci Tapes might contain "false information and/or willful misrepresentation," and thus should not be publicly aired, is an admission that the restraint is content-based.

of the Garci Tapes is essentially a political expression because it exposes that a presidential candidate had allegedly improper conversations with a COMELEC Commissioner right after the close of voting in the last presidential elections. Obviously, the content of the Garci Tapes affects gravely the sanctity of the ballot. Public discussion on the sanctity of the ballot is indisputably a protected expression that cannot be subject to prior restraint. Public discussion on the credibility of the electoral process is one of the highest political expressions of any electorate, and thus deserves the utmost protection. If ever there is a hierarchy of protected expressions, political expression would occupy the highest rank,38 and among different kinds of political expression, the subject of fair and honest elections would be at the top. In any event, public discussion on all political issues should always remain uninhibited, robust and wide open. The rule, which recognizes no exception, is that there can be no content-based prior restraint on protected expression. On this ground alone, the NTC press release is unconstitutional. Of course, if the courts determine that the subject matter of a wiretapping, illegal or not, endangers the security of the State, the public airing of the tape becomes unprotected expression that may be subject to prior restraint. However, there is no claim here by respondents that the subject matter of the Garci Tapes involves national security and publicly airing the tapes would endanger the security of the State. 39 The alleged violation of the Anti-Wiretapping Law is not in itself a ground to impose a prior restraint on the airing of the Garci Tapes because the Constitution expressly prohibits the enactment of any law, and that includes anti-wiretapping laws, curtailing freedom of expression.40 The only exceptions to this rule are the four recognized categories of unprotected expression. However, the content of the Garci Tapes does not fall under any of these categories of unprotected expression. The airing of the Garci Tapes does not violate the right to privacy because the content of the Garci Tapes is a matter of important public concern. The Constitution guarantees the people’s right to information on matters of public concern.41 The remedy of any person aggrieved by the public airing of the Garci Tapes is to file a complaint for violation of the Anti-Wiretapping Law after the commission of the crime. Subsequent punishment, absent a lawful defense, is the remedy available in case of violation of the Anti-Wiretapping Law. The present case involves a prior restraint on protected expression. Prior restraint on protected expression differs significantly from subsequent punishment of protected expression. While there can be no prior restraint on protected expression, there can be subsequent punishment for protected expression under libel, tort or other laws. In the present case, the NTC action seeks prior restraint on the airing of the Garci Tapes, not punishment of personnel of radio and television stations for actual violation of the Anti-Wiretapping Law. 6. Only the Courts May Impose Content-Based Prior Restraint

5. Nature of Expression in the Present Case The public airing of the Garci Tapes is a protected expression because it does not fall under any of the four existing categories of unprotected expression recognized in this jurisdiction. The airing

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

In the present case, the airing of the Garci Tapes is a protected expression that can never be subject to prior restraint. However, even assuming for the sake of argument that the airing of the Garci Tapes constitutes unprotected expression, only the courts have the power to adjudicate on the factual and legal issue of whether the airing of the Garci Tapes presents a clear and present danger of bringing about a substantive evil that the State has a right and duty to prevent, so as to justify the prior restraint. Any order imposing prior restraint on unprotected expression requires prior adjudication by the courts on whether the prior restraint is constitutional. This is a necessary consequence from the presumption of invalidity of any prior restraint on unprotected expression. Unless ruled by the courts as a valid prior restraint, government agencies cannot implement outright such prior restraint because such restraint is presumed unconstitutional at inception. As an agency that allocates frequencies or airwaves, the NTC may regulate the bandwidth position, transmitter wattage, and location of radio and television stations, but not the content of the broadcasts. Such content-neutral prior restraint may make operating radio and television stations more costly. However, such content-neutral restraint does not restrict the content of the broadcast. 7. Government Failed to Overcome Presumption of Invalidity Assuming that the airing of the Garci Tapes constitutes unprotected expression, the NTC action imposing prior restraint on the airing is presumed unconstitutional. The Government bears a heavy burden to prove that the NTC action is constitutional. The Government has failed to meet this burden. In their Comment, respondents did not invoke any compelling State interest to impose prior restraint on the public airing of the Garci Tapes. The respondents claim that they merely "fairly warned" radio and television stations to observe the Anti-Wiretapping Law and pertinent NTC circulars on program standards. Respondents have not explained how and why the observance by radio and television stations of the Anti-Wiretapping Law and pertinent NTC circulars constitutes a compelling State interest justifying prior restraint on the public airing of the Garci Tapes. Violation of the Anti-Wiretapping Law, like the violation of any criminal statute, can always be subject to criminal prosecution after the violation is committed. Respondents have not explained why there is a need in the present case to impose prior restraint just to prevent a possible future violation of the Anti-Wiretapping Law. Respondents have not explained how the violation of the Anti-Wiretapping Law, or of the pertinent NTC circulars, can incite imminent lawless behavior or endanger the security of the State. To allow such restraint is to allow prior restraint on all future broadcasts that may possibly violate any of the existing criminal statutes. That would be the dawn of sweeping and endless censorship on broadcast media. 8. The NTC Warning is a Classic Form of Prior Restraint The NTC press release threatening to suspend or cancel the airwave permits of radio and television stations constitutes impermissible pressure amounting to prior restraint on protected expression. Whether the threat is made in an order, regulation, advisory or press release, the

chilling effect is the same: the threat freezes radio and television stations into deafening silence. Radio and television stations that have invested substantial sums in capital equipment and market development suddenly face suspension or cancellation of their permits. The NTC threat is thus real and potent. In Burgos v. Chief of Staff,42 this Court ruled that the closure of the We Forum newspapers under a general warrant "is in the nature of a previous restraint or censorship abhorrent to the freedom of the press guaranteed under the fundamental law." The NTC warning to radio and television stations not to air the Garci Tapes or else their permits will be suspended or cancelled has the same effect – a prior restraint on constitutionally protected expression. In the recent case of David v. Macapagal-Arroyo,43 this Court declared unconstitutional government threats to close down mass media establishments that refused to comply with government prescribed "standards" on news reporting following the declaration of a State of National Emergency by President Arroyo on 24 February 2006. The Court described these threats in this manner: Thereafter, a wave of warning[s] came from government officials. Presidential Chief of Staff Michael Defensor was quoted as saying that such raid was "meant to show a 'strong presence,' to tell media outlets not to connive or do anything that would help the rebels in bringing down this government." Director General Lomibao further stated that "if they do not follow the standards — and the standards are if they would contribute to instability in the government, or if they do not subscribe to what is in General Order No. 5 and Proc. No. 1017 — we will recommend a 'takeover.'" National Telecommunications Commissioner Ronald Solis urged television and radio networks to "cooperate" with the government for the duration of the state of national emergency. He warned that his agency will not hesitate to recommend the closure of any broadcast outfit that violates rules set out for media coverage during times when the national security is threatened.44 (Emphasis supplied) The Court struck down this "wave of warning[s]" as impermissible restraint on freedom of expression. The Court ruled that "the imposition of standards on media or any form of prior restraint on the press, as well as the warrantless search of the Tribune offices and whimsical seizure of its articles for publication and other materials, are declared UNCONSTITUTIONAL." 45 The history of press freedom has been a constant struggle against the censor whose weapon is the suspension or cancellation of licenses to publish or broadcast. The NTC warning resurrects the weapon of the censor. The NTC warning is a classic form of prior restraint on protected expression, which in the words of Near v. Minnesota is "the essence of censorship."46 Long before the American Declaration of Independence in 1776, William Blackstone had already written in his Commentaries on the Law of England, "The liberty of the press x x x consists in laying no previous restraints upon publication x x x."47 Although couched in a press release and not in an administrative regulation, the NTC threat to suspend or cancel permits remains real and effective, for without airwaves or frequencies, radio and television stations will fall silent and die. The NTC press release does not seek to advance a

legitimate regulatory objective, but to suppress through coercion information on a matter of vital public concern. 9. Conclusion In sum, the NTC press release constitutes an unconstitutional prior restraint on protected expression. There can be no content-based prior restraint on protected expression. This rule has no exception. I therefore vote to (1) grant the petition, (2) declare the NTC warning, embodied in its press release dated 11 June 2005, an unconstitutional prior restraint on protected expression, and (3) enjoin the NTC from enforcing the same. ANTONIO T. CARPIO Associate Justice

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

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.

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.

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.

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.

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.

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. 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

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 ideal that the probability of guilty on the part of the accused is greater than when the complaints are filed by a private individual, specially when the latter is a former subordinate of the alleged offender, who was responsible for the dismissal of the complainant from

her employment. It is only too apparent that the article published on August 11, 1956, presented the plaintiff in a more unfavorable light than she actually was. It goes without saying that newspapers must enjoy a certain degree of discretion in determining the manner in which a given event should be presented to the public, and the importance to be attached thereto, as a news item, and that its presentation in a sensational manner is not per se illegal. Newspaper may publish news items relative to judicial, legislative or other official proceedings, which are not of confidential nature, because the public is entitled to know the truth with respect to such proceedings, which, being official and non-confidential, are open to public consumption. But, to enjoy immunity, a publication containing derogatory information must be not only true, but, also, fair, and it must be made in good faith and without any comments or remarks. Defendants maintain that their alleged malice in publishing the news items in question had not been established by the plaintiff. However, Article 354 of the Revised Penal Code, provides: Every defamatory imputation is presumed to be malicious, even if it be true, if no good intention and justifiable motive for making it is shown, except in the following cases: 1. A private communication made by any person to another in the performance of any legal, moral or social duty; and 2. A fair and true report, made in good faith, without any comments or remarks, of any judicial, legislative or other official proceedings which are not of confidential nature, or of any statement, report or speech delivered in said proceedings, or of any other act performed by public officers in the exercise of other functions. In the case at bar, aside from containing information derogatory to the plaintiff, the article published on August 11, 1956, presented her in a worse predicament than that in which she, in fact, was. In other words, said article was not a fair and true report of the proceedings there in alluded to. What is more, its sub-title — "PCAC RAPS L. POLICARPIO ON FRAUD" — is a comment or remark, besides being false. Accordingly, the defamatory imputations contained in said article are "presumed to be malicious". Then too, how could defendants claim to have acted with good intentions or justifiable motive in falsely stating that the complaints had been filed with the Office of the City Fiscal by the PCAC as a result of the administrative investigation of Col. Alba? Either they knew the truth about it or they did not know it. If they did, then the publication would be actually malicious. If they did not or if they acted under a misapprehension of the facts, they were guilty of negligence in making said statement, for the consequences of which they are liable solidarily (Articles 2176, 2194, 2208 and 2219 [I], Civil Code of the Philippines; 17 R.C.L. sec. 95, p. 349). We note that the news item published on August 13, 1956, rectified a major inaccuracy contained in the first article, by stating that neither Col. Alba nor the PCAC had filed the aforementioned complaints with the city fiscal's office. It, likewise, indicated the number of sheets of stencil involved in said complaints. But, this rectification or clarification does not wipe out the responsibility arising from the publication of the first article, although it may and should mitigate it (Jimenez vs. Reyes, 27 Phil. 52). For this reason, we feel that the interest of justice and of all

parties concerned would be served if the defendants indemnify the plaintiff in the sums of P3,000, by way of moral damages, and P2,000, as attorney's fees. WHEREFORE, the decision appealed from is hereby reversed and another one shall be entered sentencing the defendants herein to pay jointly and severally to the plaintiff the aforementioned sums of P3,000, as moral damages, and P2,000, by way of attorney's fees, in addition to the costs. It is so ordered. Padilla, Bautista Angelo, Reyes, J.B.L., Barrera, Paredes and Dizon, JJ., concur. Bengzon, C.J., is on leave.

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 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 SubCommittee 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

congressman from the North as some sort of a consultant on economic affairs. The first thing the organizer did was to initiate hearings and round-the-table discussions with people from the business, export and -- his favorite -- the garments sector. xxx The 'organizers' principal gamely went along, thinking that his 'consultant' had nothing but the good of these sectors in mind. It was only later that he realized that the 'consultant' was acting with a burst of energy 'in aid of extortion.' The 'consultant' was fired. xxx There seems to be no end to what a man could do to pursue his dubious ways. He has tried to operate under a guise of a well-meaning reformist. He has intellectual pretensions - and sometimes he succeeds in getting his thoughts in the inside pages of some newspapers, with the aid of some naive newspaper people. He has been turning out a lot of funny-looking advice on investments, export growth, and the like. xxx

A '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.

A cabinet secretary has one big wish. He is hoping for a broad power to ban crooks and influencepeddlers 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.

xxx

3 July 1989

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 andApparel 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.

A supposed conference on transportation was a big failure. The attendance was very poor and the few who participated in the affair were mostly leaders of jeepney drivers groups. None of the government officials involved in regulating public transportation was there. The big names in the industry also did not participate. With such a poor attendance, one wonders why the conference organizers went ahead with the affair and tried so hard to convince 3,000 companies and individuals to contribute to the affair.

xxx

xxx

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.

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?

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

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 -

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.

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]

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.

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 deals who 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

On their part, petitioners filed a motion for reconsideration but the Court of Appeals denied the motion in its Resolution of 12 September 1996. Hence the instant petition for review. The petitioners contend that the Court of Appeals erred: (a) in ruling that private respondent Wenceslao was sufficiently identified by petitioner Borjal in the questioned articles; (b) in refusing to accord serious consideration to the findings of the Department of Justice and the Office of the President that private respondent Wenceslao was not sufficiently identified in the questioned articles, this notwithstanding that the degree of proof required in a preliminary investigation is merely prima facie evidence which is significantly less than the preponderance of evidence required in civil cases; (c) in ruling that the subject articles do not constitute qualifiedly privileged communication; (d) in refusing to apply the "public official doctrine" laid down in New York Times v. Sullivan; (e) in ruling that the questioned articles lost their privileged character because of their publication in a newspaper of general circulation; (f) in ruling that private respondent has a valid cause of action for libel against petitioners although he failed to prove actual malice on their part, and that the prosecutors of the City of Manila, the Department of Justice, and eventually, the Office of the President, had already resolved that there was no sufficient evidence to prove the existence of libel; and, (g) assuming arguendo that Borjal should be held liable, in adjudging petitioner Soliven solidarily liable with him. Thus, petitioners pray for the reversal of the appellate courts ruling, the dismissal of the complaint against them for lack of merit, and the award of damages on their counterclaim. The petition is impressed with merit. In order to maintain a libel suit, it is essential that the victim be identifiable although it is not necessary that he be named. It is also not sufficient that the offended party recognized himself as the person attacked or defamed, but it must be shown that at least a third person could identify him as the object of the libelous publication. [10] Regrettably, these requisites have not been complied with in the case at bar. In ruling for private respondent, the Court of Appeals found that Borjal's column writings sufficiently identified Wenceslao as the "conference organizer." It cited the First National Conference on Land Transportation, the letterheads used listing different telephone numbers, the donation of P100,000.00 from Juliano Lim and the reference to the "organizer of the conference" the very same appellation employed in all the column items - as having sufficiently established the identity of private respondent Wenceslao for those who knew about the FNCLT who were present at its inception, and who had pledged their assistance to it. We hold otherwise. These conclusions are at variance with the evidence at hand. The questioned articles written by Borjal do not identify private respondent Wenceslao as the organizer of the conference. The first of the Jaywalker articles which appeared in the 31 May 1989 issue of The Philippine Star yielded nothing to indicate that private respondent was the person referred to therein. Surely, as observed by petitioners, there were millions of "heroes" of the EDSA Revolution and anyone of them could be "self-proclaimed" or an "organizer of seminars and conferences." As a matter of fact, in his 9 June 1989 column petitioner Borjal wrote about the "socalled First National Conference on Land Transportation whose principal organizers are not

specified" (italics supplied).[11] Neither did the FNCLT letterheads [12] disclose the identity of the conference organizer since these contained only an enumeration of names where private respondent Francisco Wenceslao was described as Executive Director and Spokesman and not as a conference organizer.[13] The printout[14] and tentative program[15] of the conference were devoid of any indication of Wenceslao as organizer. The printout which contained an article entitled "Who Organized the NCLT?" did not even mention private respondent's name, while the tentative program only denominated private respondent as "Vice Chairman and Executive Director," and not as organizer. No less than private respondent himself admitted that the FNCLT had several organizers and that he was only a part of the organization, thus I would like to clarify for the record that I was only a part of the organization. I was invited then because I was the head of the technical panel of the House of Representatives Sub-Committee on Industrial Policy that took care of congressional hearings.[16] Significantly, private respondent himself entertained doubt that he was the person spoken of in Borjal's columns. The former even called up columnist Borjal to inquire if he (Wenceslao) was the one referred to in the subject articles. [17] His letter to the editor published in the 4 June 1989 issue of The Philippine Star even showed private respondent Wenceslao's uncertainty Although he used a subterfuge, I was almost certain that Art Borjal referred to the First National Conference on Land Transportation (June 29-30) and me in the second paragraph of his May 31 column x x x[18] Identification is grossly inadequate when even the alleged offended party is himself unsure that he was the object of the verbal attack. It is well to note that the revelation of the identity of the person alluded to came not from petitioner Borjal but from private respondent himself when he supplied the information through his 4 June 1989 letter to the editor. Had private respondent not revealed that he was the "organizer" of the FNCLT referred to in the Borjal articles, the public would have remained in blissful ignorance of his identity. It is therefore clear that on the element of identifiability alone the case falls. The above disquisitions notwithstanding, and on the assumption arguendo that private respondent has been sufficiently identified as the subject of Borjal's disputed comments, we now proceed to resolve the other issues and pass upon the pertinent findings of the courts a quo. The third, fourth, fifth and sixth assigned errors all revolve around the primary question of whether the disputed articles constitute privileged communications as to exempt the author from liability. The trial court ruled that petitioner Borjal cannot hide behind the proposition that his articles are privileged in character under the provisions of Art. 354 of The Revised Penal Code which state Art. 354. Requirement for publicity. - Every defamatory imputation is presumed to be malicious, even if it be true, if no good intention and justifiable motive for making it is shown, except in the following cases:

1) A private communication made by any person to another in the performance of any legal, moral or social duty; and, 2) A fair and true report, made in good faith, without any comments or remarks, of any judicial, legislative or other official proceedings which are not of confidential nature, or of any statement, report or speech delivered in said proceedings, or of any other act performed by public officers in the exercise of their functions. Respondent court explained that the writings in question did not fall under any of the exceptions described in the above-quoted article since these were neither "private communications" nor "fair and true report x x xwithout 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 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 selfcensorship, since would-be critics would be deterred from voicing out their criticisms even if such were believed to be true, or were in fact true, because of doubt whether it could be proved or because of fear of the expense of having to prove it.[28] In the present case, we deem private respondent a public figure within the purview of the New York Times ruling. At any rate, we have also defined "public figure" in Ayers Production Pty., Ltd. v. Capulong[29] as x x x x a person who, by his accomplishments, fame, mode of living, or by adopting a profession or calling which gives the public a legitimate interest in his doings, his affairs and his character, has become a public personage. He is, in other words, a celebrity. Obviously, to be included in this category are those who have achieved some degree of reputation by appearing before the public, as in the case of an actor, a professional baseball player, a pugilist, or any other entertainer. The list is, however, broader than this. It includes public officers, famous inventors and explorers, war heroes and even ordinary soldiers, infant prodigy, and no less a personage than the Great Exalted Ruler of the lodge. It includes, in short, anyone who has arrived at a position where the public attention is focused upon him as a person. The FNCLT was an undertaking infused with public interest. It was promoted as a joint project of the government and the private sector, and organized by top government officials and prominent businessmen. For this reason, it attracted media mileage and drew public attention not only to the conference itself but to the personalities behind as well. As its Executive Director and spokesman, private respondent consequently assumed the status of a public figure. But even assuming ex-gratia argumenti that private respondent, despite the position he occupied in the FNCLT, would not qualify as a public figure, it does not necessarily follow that he could not validly be the subject of a public comment even if he was not a public official or at least a public figure, for he could be, as long as he was involved in a public issue. If a matter is a subject of public or general interest, it cannot suddenly become less so merely because a private individual is involved or because in some sense the individual did not voluntarily choose to become involved. The publics primary interest is in the event; the public focus is on the conduct of the participant and the content, effect and significance of the conduct, not the participant's prior anonymity or notoriety.[30]

There is no denying that the questioned articles dealt with matters of public interest. A reading of the imputations of petitioner Borjal against respondent Wenceslao shows that all these necessarily bore upon the latter's official conduct and his moral and mental fitness as Executive Director of the FNCLT. The nature and functions of his position which included solicitation of funds, dissemination of information about the FNCLT in order to generate interest in the conference, and the management and coordination of the various activities of the conference demanded from him utmost honesty, integrity and competence. These are matters about which the public has the right to be informed, taking into account the very public character of the conference itself. Concededly, petitioner Borjal may have gone overboard in the language employed describing the "organizer of the conference." One is tempted to wonder if it was by some mischievous gambit that he would also dare test the limits of the "wild blue yonder" of free speech in this jurisdiction. But no matter how intemperate or deprecatory the utterances appear to be, the privilege is not to be defeated nor rendered inutile for, as succinctly expressed by Mr. Justice Brennan in New York Times v. Sullivan, "[D]ebate on public issues should be uninhibited, robust and wide open, and that it may well include vehement, caustic and sometimes unpleasantly sharp attacks on the government and public officials.[31] The Court of Appeals concluded that since malice is always presumed in the publication of defamatory matters in the absence of proof to the contrary, the question of privilege is immaterial. We reject this postulate. While, generally, malice can be presumed from defamatory words, the privileged character of a communication destroys the presumption of malice. [32] The onus of proving actual malice then lies on plaintiff, private respondent Wenceslao herein. He must bring home to the defendant, petitioner Borjal herein, the existence of malice as the true motive of his conduct.[33] Malice connotes ill will or spite and speaks not in response to duty but merely to injure the reputation of the person defamed, and implies an intention to do ulterior and unjustifiable harm. [34] Malice is bad faith or bad motive.[35] It is the essence of the crime of libel.[36] In the milieu obtaining, can it be reasonably inferred that in writing and publishing the articles in question petitioner Borjal acted with malice? Primarily, private respondent failed to substantiate by preponderant evidence that petitioner was animated by a desire to inflict unjustifiable harm on his reputation, or that the articles were written and published without good motives or justifiable ends. On the other hand, we find petitioner Borjal to have acted in good faith. Moved by a sense of civic duty and prodded by his responsibility as a newspaperman, he proceeded to expose and denounce what he perceived to be a public deception. Surely, we cannot begrudge him for that. Every citizen has the right to enjoy a good name and reputation, but we do not consider that petitioner Borjal has violated that right in this case nor abused his press freedom. Furthermore, to be considered malicious, the libelous statements must be shown to have been written or published with the knowledge that they are false or in reckless disregard of whether they are false or not. [37]"Reckless disregard of what is false or not" means that the defendant entertains serious doubt as to the truth of the publication, [38] or that he possesses a high degree of awareness of their probable falsity.[39] The articles subject of the instant case can hardly be said to have been written with knowledge that these are false or in reckless disregard of what is false or not. This is not to say however that the very serious allegations of petitioner Borjal assumed by private respondent to be

directed against him are true. But we nevertheless find these at least to have been based on reasonable grounds formed after the columnist conducted several personal interviews and after considering the varied documentary evidence provided him by his sources. Thus, the following are supported by documentary evidence: (a) that private respondent requested Gloria MacapagalArroyo, then head of the Garments and Textile Export Board (GTEB), to expedite the processing and release of the import approval and certificate of availability of a garment firm in exchange for the monetary contribution of Juliano Lim, which necessitated a reply from the office of Gloria Macapagal-Arroyo explaining the procedure of the GTEB in processing applications and clarifying that all applicants were treated equally; [40] (b) that Antonio Periquet was designated Chairman of the Executive Committee of the FNCLT notwithstanding that he had previously declined the offer; [41] and, (c) that despite the fact that then President Aquino and her Secretary of Transportation Rainerio Reyes declined the invitation to be guest speakers in the conference, their names were still included in the printout of the FNCLT. [42] Added to these are the admissions of private respondent that: (a) he assisted Juliano Lim in his application for a quota allocation with the GTEB in exchange for monetary contributions to the FNCLT; [43] (b) he included the name of then Secretary of Transportation Rainerio Reyes in the promotional materials of the conference notwithstanding the latter's refusal to lend his name to and participate in the FNCLT; [44] and, (c) he used different letterheads and telephone numbers.[45] Even assuming that the contents of the articles are false, mere error, inaccuracy or even falsity alone does not prove actual malice. Errors or misstatements are inevitable in any scheme of truly free expression and debate. Consistent with good faith and reasonable care, the press should not be held to account, to a point of suppression, for honest mistakes or imperfections in the choice of language. There must be some room for misstatement of fact as well as for misjudgment. Only by giving them much leeway and tolerance can they courageously and effectively function as critical agencies in our democracy. [46] In Bulletin Publishing Corp. v. Noel[47] we held A newspaper especially one national in reach and coverage, should be free to report on events and developments in which the public has a legitimate interest with minimum fear of being hauled to court by one group or another on criminal or civil charges for libel, so long as the newspaper respects and keeps within the standards of morality and civility prevailing within the general community. To avoid the self-censorship that would necessarily accompany strict liability for erroneous statements, rules governing liability for injury to reputation are required to allow an adequate margin of error by protecting some inaccuracies. It is for the same reason that the New York Times doctrine requires that liability for defamation of a public official or public figure may not be imposed in the absence of proof of "actual malice" on the part of the person making the libelous statement. At any rate, it may be salutary for private respondent to ponder upon the advice of Mr. Justice Malcolm expressed in U.S. v. Bustos,[48] that "the interest of society and the maintenance of good government demand a full discussion of public affairs. Complete liberty to comment on the conduct of public men is a scalpel in the case of free speech. The sharp incision of its probe relieves the abscesses of officialdom. Men in public life may suffer under a hostile and unjust accusation; the wound may be assuaged by the balm of a clear conscience. A public official must not be too thin-skinned with reference to comments upon his official acts.

The foregoing disposition renders the second and seventh assigned errors moot and academic, hence, we find no necessity to pass upon them. We must however take this opportunity to likewise remind media practitioners of the high ethical standards attached to and demanded by their noble profession. The danger of an unbridled irrational exercise of the right of free speech and press, that is, in utter contempt of the rights of others and in willful disregard of the cumbrous responsibilities inherent in it, is the eventual selfdestruction 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 a subject touching the common welfare. It is the brightest jewel in the crown of the law to speak and maintain the golden mean between defamation, on one hand, and a healthy and robust right of free public discussion, on the other. WHEREFORE, the petition is GRANTED. The Decision of the Court of Appeals of 25 March 1996 and its Resolution of 12 September 1996 denying reconsideration are REVERSED and SET ASIDE, and the complaint for damages against petitioners is DISMISSED. Petitioners counterclaim for damages is likewise DISMISSED for lack of merit. No costs.

SO ORDERED. Puno, Martinez, and Buena, JJ., concur. Mendoza, J., in the result.

THIRD DIVISION

and furnished the same to other officers of the said hospital, said letter containing slanderous and defamatory remarks against DR. JUAN F. TORRES, JR., which states in part, to wit: 27June 1991

[G.R. No. 113216. September 5, 1997] Dr. Esperanza I. Cabral 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

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.

PANGANIBAN, J.:

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

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.

Dr. Orestes P. Monzon,

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,

Staff Consultant Dear Dr. Cabral, This is to demand the return of all professional fees due me as a consultant in Nuclear Medicine, this Center, since January 31, 1989 until my resignation effective January 31, 1991, amounting to at least P100,000.00 for the year 1990 alone. Records in the Nuclear Medicine Section will show that from January 1989 to January 1991, a total of 2,308 patients were seen. Of these, I had officially supervised, processed, and interpreted approximately a total of 1,551 cases as against approximately 684 and 73 cases done by Dr. Monzon and Dr. Torres respectively. Until my resignation I had received a monthly share of professional fees averaging P1,116.90/month supposedly representing 20% of the total monthly professional fees. The rest were divided equally between Dr. Monzon and Dr. Torres. There was never any agreement between us three consultants that this should be the arrangement and I am certain that this was not with your approval. The burden of unfairness would have been lesser if there was an equal distribution of labor and the schedule of duties were strictly followed. As it was, the schedule of duties submitted monthly to the office of the Asst. Director for Medical Services was simply a dummy to comply with administrative requirements rather than a guideline for strict compliance. Both consultants have complete daily time records even if they did not come regularly. Dr. Torres came for an hour every week, Dr. Monzon came sporadically during the week while I was left with everything from training the residents and supervising the Techs to processing and interpreting the results on a regular basis. I had a part time appointment just like Dr. Monzon and Dr. Torres. In the interest of fairness and to set a precedent for the protection of future PHC Nuclear Medicine Alumni I am calling your attention to the unfair and inhuman conditions I went through as a Consultant in that Section. I trust that your sense of professionalism will put a stop to this corruption.

I suggest that a committee be formed to make an audit of the distribution of professional fees in this Section. At this point, let me stress that since professional fees vary according to the type of procedure done and since there was no equity of labor between us I am not settling for an equal percentage share. I demand that I be indemnified of all professional fees due me on a case to case basis. Let me make clear my intention of pursuing this matter legally should there be no favorable action in my behalf. Let me state at this point6 that the actions of Dr. Torres and Dr. Monzon are both unprofessional and unbecoming and are clearly violating the code of ethics of the medical profession and the Philippine Civil Service Rules and Regulations related to graft and corruption. Thank you. and other words of similar import, when in truth and in fact, as the accused very well knew, the same are entirely false and untrue but were publicly made for no other purpose than to expose said DR. JUAN F. TORRES, JR. to public ridicule, thereby casting dishonor, discredit and contempt upon the person of the said offended party, to his damage and prejudice. A petition for review of the resolution of Assistant City Prosecutor Vestil was filed by petitioner before the Department of Justice pursuant to P.D. No. 77 as amended by P.D. No. 911. The Department of Justice gave due course to the petition and directed the Quezon City prosecutor to move for deferment of further proceedings and to elevate the entire records of the case.[5]Accordingly, a Motion to Defer Arraignment dated September 7, 1992 was filed by Prosecutor Tirso M. Gavero before the court a quo.[6] On September 9, 1992, the trial court granted the motion and deferred petitioners arraignment until the final termination of the petition for review.[7] Without the consent or approval of the trial prosecutor, private complainant, through counsel, filed a Motion to Lift the Order dated September 9, 1992 and to Set the Case for Arraignment/Trial. [8]

On January 8, 1993, the trial court issued an Order setting aside its earlier Order of September 9, 1992 and scheduling petitioners arraignment on January 18, 1993 at two oclock in the afternoon.[9] In a resolution dated January 27, 1993, then Justice Secretary Franklin M. Drilon reversed the Quezon City investigating prosecutor. Pertinent portions of Drilons ruling read:[10] From the circumstances obtaining, the subject letter was written to bring to the attention of the Director of the Philippine Heart Center for Asia and other responsible authorities the unjust and unfair treatment that Dr. Ledesma was getting from complainants. Since complainants and respondent are government employees, and the subject letter is a complaint to higher authorities of the PHCA on a subject matter in which respondent has an interest and in reference to which she has a duty to question the same is definitely privileged (US vs. Bustos, 37 Phil. 131). Moreover, in Ang vs. Castro, 136 SCRA 455, the Supreme Court, citing Santiago vs. Calvo, 48 Phil. 922, ruled that A communication made in good faith upon any subject matter in which the party making the communication has an interest or concerning which he has a duty is privileged...

although it contains incriminatory or derogatory matter which, without the privilege, would be libelous and actionable. The follow-up letter sent by respondent to the director of the PHCA, is a direct evidence of respondents righteous disposition of following the rule of law and is a clear indication that her purpose was to seek relief from the proper higher authority who is the Director of PHCA. The same interpretation should be accorded the civil and administrative complaints which respondent filed against complainants. They are mere manifestations of her earnest desire to pursue proper relief for the alleged injustice she got from complainants. If she was motivated by malice and ill-will in sending the subject communication to the Director of the PHCA, she would not have sent the second letter and filed the administrative and civil cases against complainants. Moreover, it is unbelievable that it took complainants one year to realize that the questioned letter subjected them to public and malicious imputation of a vice or omission. It is beyond the ordinary course of human conduct for complainants to start feeling the effects of the alleged libelous letter that of experiencing sleepless nights, wounded feelings, serious anxiety, moral shock and besmirched reputation - one year after they read the communication in question. The claim that the case of Crespo vs. Mogul, 151 SCRA 462 is applicable to the instant case is unfounded. In the first place, the instant cases are not being reinvestigated. It is the resolutions of the investigating prosecutor that are under review. Further, the record shows that the court has issued an order suspending the proceedings pending the resolutions of the petitions for review by this Office. In the issuance of its order, the court recognizes that the Secretary of Justice has the power and authority to review the resolutions of prosecutors who are under his control and supervision. In view of the foregoing, the appealed resolutions are hereby reversed. You are directed to withdraw the Informations which you filed in Court. Inform this Office of the action taken within ten (10) days from receipt hereof. In obedience to the above directive, Quezon City Trial Prosecutor Tirso M. Gavero filed a Motion to Withdraw Information dated February 17,1993, [11] attaching thereto the resolution of Secretary Drilon. The trial judge denied this motion in his Order dated February 22, 1993, as follows:[12] The motion of the trial prosecutor to withdraw the information in the above-entitled case is denied. Instead, the trial prosecutor of this court is hereby directed to prosecute the case following the guidelines and doctrine laid down by the Supreme Court in the case of Crespo vs. Mogul, 151 SCRA 462. Petitioners motion for reconsideration [13] was denied by the trial judge in the Order dated March 5, 1993, as follows:[14]

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

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 -

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]

(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

Hence, this recourse to this Court.

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

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?

2. It constitutes or it may lead to misuse or misapplication of judicial power as defined in the Constitution; The Courts Ruling 3. It goes against the constitutional proscription that rules of procedure should not diminish substantive rights;

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

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;

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.

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]

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:

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.

4. Erroneous Appeals. x x x x

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.

e) Duty of counsel.It is therefore incumbent upon every attorney who would seek review of a judgment or order promulgated against his client to make sure of the nature of the errors he proposes to assign, whether these be of fact or of law; then upon such basis to ascertain carefully which Court has appellate jurisdiction; and finally, to follow scrupulously the requisites for appeal prescribed by law, ever aware that any error or imprecision in compliance may well be fatal to his clients cause. FOR STRICT COMPLIANCE. Be that as it may, the Court noting the importance of the substantial matters raised decided to overlook petitioners lapse and granted due course to the petition per Resolution dated July 15, 1996, with a warning that henceforth petitions which fail to specify an assignment of errors of the proper lower court may be denied due course motu proprio by this Court.

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

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 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 faciecase 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:

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.

SEC. 4. Duty of investigating fiscal.--x x x x xxx xxx xxx If upon petition by a proper party, the Secretary of Justice reverses the resolution of the provincial or city fiscal or chief state prosecutor, he shall direct the fiscal concerned to file the corresponding information without conducting another preliminary investigation or to dismiss or move for dismissal of the complaint or information. This appeal rests upon the sound discretion of the secretary of justice arising from his power of supervision and control over the prosecuting arm of the government, not on a substantial right on the part of the accused as claimed by petitioner.

Appeal Did Not Divest the Trial Court of Jurisdiction Where the secretary of justice exercises his power of review only after an information has been filed, trial courts should defer or suspend arraignment and further proceedings until the

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

The Marcelo and Martinez Cases Are Consistent In Marcelo vs. Court of Appeals,[31] this Court ruled that, although it is more prudent to wait for a final resolution of a motion for review or reinvestigation from the secretary of justice before acting on a motion to dismiss or a motion to withdraw an information, a trial court nonetheless should make its own study and evaluation of said motion and not rely merely on the awaited action of the secretary. The trial court has the option to grant or deny the motion to dismiss the case filed

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

No Grave Abuse of Discretion in theResolution of the Secretary of Justice In the light of recent holdings in Marcelo and Martinez; and considering that the issue of the correctness of the justice secretarys resolution has been amply threshed out in petitioners letter, the information, the resolution of the secretary of justice, the motion to dismiss, and even the exhaustive discussion in the motion for reconsideration all of which were submitted to the court -the trial judge committed grave abuse of discretion when it denied the motion to withdraw the information, based solely on his bare and ambiguous reliance on Crespo. The trial courts order is inconsistent with our repetitive calls for an independent and competent assessment of the issue(s) presented in the motion to dismiss. The trial judge was tasked to evaluate the secretarys recommendation finding the absence of probable cause to hold petitioner criminally liable for libel. He failed to do so. He merely ruled to proceed with the trial without stating his reasons for disregarding the secretarys recommendation. Had he complied with his judicial obligation, he would have discovered that there was, in fact, sufficient ground to grant the motion to withdraw the information. The documents before the trial court judge clearly showed that there was no probable cause to warrant a criminal prosecution for libel.

Under the established scheme of things in criminal prosecutions, this Court would normally remand the case to the trial judge for his or her independent assessment of the motion to withdraw the information. However, in order not to delay the disposition of this case and to afford the parties complete relief, we have decided to make directly the independent assessment the trial court should have done. The petitioner has attached as annexes to the present petition for review the information, which contains a complete and faithful reproduction of the subject letter, the resolution of the secretary of justice, the prosecutions motion for reconsideration of the trial courts Order of February 22, 1993, and even the private complainants opposition to said motion. The records below have been reproduced and submitted to this Court for its appreciation. Thus, a remand to the trial court serves no purpose and will only clog the dockets. We thus proceed to examine the substance of the resolution of the secretary of justice. The secretary reversed the finding of probable cause on the grounds that (1) the subject letter was privileged in nature and (2) the complaint was merely a countercharge. In every case for libel, the following requisites must concur: (a) it must be defamatory; (b) it must be malicious; (c) it must be given publicity; and (d) the victim must be identifiable. At the preliminary investigation stage, these requisites must show prima facie a well-founded belief that a crime has been committed and that the accused probably committed it. A cursory reading of the information immediately demonstrates a failure on the part of the complainant to establish the foregoing elements of libel. Every defamatory imputation, even if true, is presumed malicious, if no good intention or justifiable motive for making it is shown. There is malice when the author of the imputation is prompted by personal ill will or spite and speaks not in response to duty but merely to injure the reputation of the person who claims to have been defamed. [33] In this case however, petitioners letter was written to seek redress of proper grievance against the inaccurate distribution and payment of professional fees and against unfair treatment in the Nuclear Medicine Department of the Philippine Heart Center.It is a qualified privileged communication under Article 354(1) of the Revised Penal Code which provides: ART. 354. Requirement of publicity. -- Every defamatory imputation is presumed to be malicious, even if it be true, if no good intention and justifiable motive for making it is shown, except in the following cases: 1. A private communication made by any person to another in the performance of any legal, moral or social duty; and xxx xxx xxx

The rule on privileged communication is that a communication made in good faith on any subject matter in which the communicator has an interest, or concerning which he has a duty, is privileged if made to a person having a corresponding interest or duty, although it contains incriminatory matter which, without the privilege, would be libelous and actionable. Petitioners letter was a private communication made in the performance of a moral duty on her part. Her intention was not to inflict an unjustifiable harm on the private complainant, but to present her grievance to her superior. The privileged nature of her letter overcomes the presumption of malice. There is no malice when justifiable motive exists; and in the absence of malice, there is no libel. We note that the information itself failed to allege the existence of malice. Thus, we agree with the ruling of the secretary of justice: [34] x x x (T)he subject letter was written to bring to the attention of the Director of the Philippine Heart Center for Asia and other responsible authorities the unjust and unfair treatment that Dr. Ledesma was getting from government employees, and the subject letter is a complaint x x x on a subject matter in which respondent has an interest and in reference to which she has a duty to question the same is definitely privileged (US vs. Bustos, 37 Phil. 131). Moreover, in Ang vs. Castro, 136 SCRA 455, the Supreme Court, citing Santiago vs. Calvo, 48 Phil. 922, ruled that a communication made in good faith upon any subject matter in which the party making the communication has an interest or concerning which he has a duty is privileged although it contains incriminatory or derogatory matter which, without the privilege, would be libelous and actionable. The follow-up letter sent by respondent to the director of the PHCA, is a direct evidence of respondents righteous disposition of following the rule of law and is a clear indication that her purpose was to seek relief from the proper higher authority xxx. The same interpretation should be accorded the civil and administrative complaints which respondent filed against complainants. They are mere manifestations of her earnest desire to pursue proper relief for the alleged injustice she got from complainants. If she was motivated by malice and ill-will in sending the subject communication to the Director of the PHCA, she would not have sent the second letter and filed the administrative and civil cases against complainants. In Alonzo, the settled rule is that, when a public officer, in the discharge of his or her official duties, sends a communication to another officer or to a body of officers, who have a duty to perform with respect to the subject matter of the communication, such communication does not amount to publication within the meaning of the law on defamation. [35] Publication in libel means making the defamatory matter, after it has been written, known to someone other than the person to whom it has been written.[36] The reason for such rule is that a communication of the defamatory matter to the person defamed cannot injure his reputation though it may wound his self-esteem. A mans reputation is not the good opinion he has of himself, but the estimation in which others hold him.[37] In this case, petitioner submitted the letter to the director of said hospital; she did not disseminate the letter and its contents to third persons. Hence, there was no publicity and the matter is clearly covered by paragraph 1 of Article 354 of the Penal Code. Further, we note that the information against petitioner was filed only on July 27, 1992 or one year after June 27, 1991, the date the letter was sent. It is obviously nothing more than a countercharge to give Complainant Torres a leverage against petitioners administrative action against him.

Ineluctably, Judge Asuncions denial of the motion to withdraw the information and the reconsideration thereof was not only precipitate but manifestly erroneous. This is further compounded by the fact that he did not explain his grounds for his denial inasmuch as he did not make an independent assessment of the motion or the arguments in the resolution of the secretary of justice. All in all, such rash action did not do justice to the sound ruling in Crespo vs. Mogul upon which, ironically, he supposedly rested his action, or to the directive in Marcelo and Martinez where this Court required trial courts to make an independent assessment of the merits of the motion. WHEREFORE, the assailed Decision is hereby REVERSED and SET ASIDE. The Motion to Withdraw the Information dated February 17, 1993 filed before the trial court is GRANTED. No costs. SO ORDERED. 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]

What the people know, the sources said, is that the two trips of the governor who is also the minister of the Government Reorganization Commission was purely junket. This was confirmed when capitol sources disclosed that about P700,000.00 collected by way of cash advances by ranking provincial officials were allegedly used for the two trips. The cash advances, the sources said, were made at the instance of Villafuerte.

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.

It was learned that the amount was withdrawn without resolution approving its release. Villarfuerte however said that he spent his own money for the two trips. The governor was accompanied abroad by political supporters mostly municipal mayors in Camarines Sur, the report said. This was contested by several individuals who told Bicol Forum that the members of Villafuertes entourage did not have official functions in the province. Villafuerte and his companions reportedly attended the 1986 baseball games in Japan. When in truth and in fact said allegations are false and utterly untrue as the complainant has not done such acts, thus embarrassing, discrediting and ridiculing him before his friends, followers and other people.[3] The information was later amended to include Jose Burgos, Jr., who was at that time the publisher-editor of the Bicol Forum. [4] The trial court, however, never acquired jurisdiction over his person as he did not surrender nor was he ever arrested by the authorities. It appears from the records that prior to the filing of the criminal complaint, the private complainant had already instituted a separate civil action for damages arising out of the questioned news article before the RTC, Branch 23, Naga City. Due to this, the criminal suit for libel was ordered consolidated with the civil case pursuant to Article 360 of the Revised Penal Code, as amended.[5]Subsequently, the consolidated actions were transferred to RTC, Branch 33, Pili, Camarines Sur, in accordance with Republic Act No. 4363 which outlines the venue of libel cases in the event that the offended party is a public official such as in this case. [6] Thereafter, a joint trial of the cases ensued with accused Burgos, Jr., being declared as in default in the civil case due to his failure to attend its pre-trial conference. Upon being arraigned, the petitioner and Ramos both pleaded not guilty. [7] During the trial, the private complainant himself took the witness stand to refute the statements contained in the subject news article. According to him, there were previous news reports and broadcasts regarding the cash advances allegedly made by some provincial government officials of Camarines Sur and that it was also reported that he made a trip to Japan which was branded as a mere junket. [8] The private complainant, however, explained that after he clarified over the radio that he never went to Japan, the issue was never discussed again until the matter was included in the questioned news item. [9] As for the cash advances, the private

complainant stated that the Provincial Auditor and the Budget Officer had already made a statement to the effect that he had no pending cash advances. [10] Further, the private complainant clarified that he made his trip to Israel in his capacity as a cabinet member of former President Corazon C. Aquino and that he spent his own money for the said official trip thereby debunking Bicol Forums report that his travel to Israel was purely a junket. [11] The private complainant also complained that no one from the Bicol Forum made any attempt to get his side of the story nor was he aware of any effort exerted by the representatives of said publication to confirm the veracity of the contents of the subject news article from any source at the provincial capitol. [12] Finally, the private complainant took exception to the banner headline which states Villafuertes Denial Convinces No One. According to him, the Bicol Forum seemed to be making a mockery of his previous explanations regarding the cash advances and his trips abroad and such a sweeping statement subjected him to public ridicule and humiliation. [13] On the other hand, Ramos testified that he wrote the questioned news item on the basis of a note given to him by a source whom he refused to identify. [14] Said source was allegedly connected with the Provincial Treasurers Office.[15] The note reads: Media consultants of Villafuerte specially DWLV announcers had been announcing the travels of Villafuerte to Israel and Japan without spending a single centavo. This is unbelievable as lately the Gov. said he [spent] his own money for the trips.

After the trial, the court a quo rendered a joint decision the dispositive portion of which reads: IN VIEW OF ALL THE FOREGOING CONSIDERATIONS, judgment is hereby rendered: In Criminal Case No. P-1855 Finding the accused Nick Ramos and Salvador D. Flor guilty beyond reasonable doubt of the crime of Libel defined and punished under Article 353 in connection with Article 355 of the Revised Penal Code and they are each sentenced to pay a fine of Two Thousand Pesos (P2,000.00) with subsidiary imprisonment in case of insolvency; and to pay the costs of suit. In Civil Case No. P-1672 Ordering the defendants Nick Ramos, Salvador D. Flor and Jose Burgos, Jr. to pay jointly and severally to the plaintiff the following: 1. The amount of Three Hundred Thousand Pesos (P300,000.00) as moral damages; 2. The amount of Five Thousand Pesos (P5,000.00) as exemplary damages;

No one will believe this. The governor and party went to Israel and Japan as there were some P700,000.00 cash advances collected in form of advances by top provincial officials for the trips. No [doubt] Villafuerte had a hand on this because he is the governor approving cash advances. Among them were Panes and Maceda. There were no resolution, please publish this that people concern will react and they be forced to account for the money. Authenticated papers will follow. Bulls eye ito. capr[16]

3. The amount of Five Thousand Pesos (P5,000.00) as attorneys fees; and to pay the costs of suit.[22] Unsatisfied with the findings of the trial court, the petitioner and Ramos filed an appeal with the Court of Appeals which affirmed the judgment of the trial court through its decision dated 10 December 1996.[23] They thereafter filed a motion for reconsideration [24] which was denied for lack of merit by the appellate court in its resolution of 19 August 1999. [25] In upholding the conclusion reached by the trial court, the Court of Appeals ratiocinated, thus:

Ramos likewise alleged that prior to writing the subject news article, he went to his source to ask some clarificatory questions and was told that he would be given authenticated records of the cash advances. Later, he was given a copy of the Schedule of Cash Advances of Disbursing Officers and Other Officers (as of June 30 1987). [17] Among the provincial government officials listed therein were the private respondent who had a 1986 balance of P25,000.00 incurred for cultural activities; Atty. Jose Maceda who also had a 1986 balance of P130,084.00 for sports development, Operation Smile, NAMCYA Festival, and prisoners subsistence; and Eulogio Panes, Jr., who had beside his name a 1986 balance of P250,000 for the purpose of sports development. Ramos also claimed that when he went to the Provincial Treasurers Office to conduct his investigation, he was shown some vouchers and was told that many of the members of the baseball delegation to Japan were not elected provincial officials and, in fact, some mayors and private individuals were sent as part of the Philippine group. [18]

The informant of Nick Ramos made a sweeping conclusion that it was Gov. Villafuerte who made the trips abroad using government money as there were cash advances of P700,000.00 made by top provincial officials, without first having verified the truth about the matters contained in his report. The imputation became malicious when they are based on mere conjectures. The alleged libelous article must be construed as a whole. The effect of the news item upon the minds of the readers must be considered in the prosecution of libel cases. The words used in the news report tends to impute a criminal act on the governor which may cause the readers to hold him up to public ridicule and induce them to believe that the governor was indeed guilty. The accused editor admitted that he did not make any personal investigation as to the truth of the statements made in the report. When such communication was sent for publication, the so-called privilege was destroyed when malice in fact was present. [26]

During his turn at the witness stand, the petitioner admitted that the headline was written by him in his capacity as the managing editor [19] in accordance with the policy of their paper to print as headlines matters dealing with public concerns and public officials. [20] According to him, the banner headline and the sub-headline truthfully reflect the substance of the story prepared by Ramos. [21]

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:

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]

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

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]

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 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

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 Timescase. We do not agree. As the US Supreme Court itself declared, reckless disregard cannot be fully encompassed in one infallible definition. Inevitably its outer limits will be marked out through case-by-case adjudication.[41] The case of Garrison v. State of Louisiana [42] stressed that only those false statements made with the high degree of awareness of their probable falsity demanded by New York Times may be the subject of either civil or criminal sanctions [43] and concluded by restating the reckless disregard standard in the following manner: . . . The test which we laid down in New York Times is not keyed to ordinary care; defeasance of the privilege is conditioned, not on mere negligence, but on reckless disregard for the truth. [44] Subsequently, in St. Amant v. Thompson[45] it was stated that . . . These cases are clear that reckless conduct is not measured by whether a reasonably prudent man would have published, or would have investigated before publishing. There must be sufficient evidence to permit the conclusion that the defendant in fact entertained serious doubts as to the truth of his publication. Publishing with such doubts shows reckless disregard for truth or falsity and demonstrates actual malice. [46] Applied to the case at bar, we hold that the prosecution failed to meet the criterion of reckless disregard. As the records reveal, the issue of cash advances against the coffers of the provincial government of Camarines Sur was a major political topic in said locality at that time. Even the private respondent himself admitted during his direct testimony that he went on radio in order to address the matter. It was clearly a legitimate topic to be discussed not only by the members of the media but by the public as what was involved was the dispensation of taxpayers money.

Further, it bears emphasis that in this case, the petitioner and Ramos had in their possession information relating to the cash advances and the private respondents travels abroad. The information was provided by one who worked in the provincial treasurers office and had access to the pertinent financial records of the provincial government. Their informant was familiar with the procedure with regard to the approval of cash advances. The inference they drew from the note given by their source that the private respondent prodded some of the provincial government officials to take out cash advances may have been false but the same does not warrant a conviction for libel nor support a claim for damages. As discussed by Newell Slight unintentional errors, however, will be excused. If a writer in the course of temperate and legitimate criticism falls into error as to some detail, or draws an incorrect inference from the facts before him, and thus goes beyond the limits of strict truth, such inaccuracies will not cause judgment to go against him, if the jury are satisfied, after reading the whole publication, that it was written honestly, fairly and with regard to what truth and justice require. It is not to be expected that a public journalist will always be infallible.[47] During the hearing of these cases, the private complainant also refuted the material points contained in the subject news article in an effort to prove the falsity of the allegations contained therein. This Court finds such effort inadequate to adjudge the petitioner guilty of the crime of libel or to entitle the private respondent to damages. Under the New York Times test, false statements alone are not actionable; maliciousness may be shown only through knowledge of falsity or reckless disregard of truth or falsity.[48] Further, both the prosecution and the OSG make capital of Ramos and the petitioners failure to confirm the information supplied by the unidentified source which ultimately became the basis for the news article under consideration in an obvious attempt to establish the element of reckless disregard for truth. The prosecution also painstakingly tried to establish malice in fact on the part of the petitioner by harping on the fact that neither he nor Ramos took the time to give the private respondent the chance to air his side before putting the alleged libelous news story to print. The contention fails to persuade. While substantiation of the facts supplied is an important reporting standard, still, a reporter may rely on information given by a lone source although it reflects only one side of the story provided the reporter does not entertain a high degree of awareness of [its] probable falsity. [49] The prosecution, in this case, utterly failed to prove that the petitioner and Ramos entertained such awareness. We also hold that the petitioners and Ramoss failure to present their informant before the court as well as other evidence that would prove Ramos claim that he had conducted an investigation to verify the information passed on to him should not be taken against them. On this point, we turn to our pronouncement in the case of Rodolfo R. Vasquez v. Court of Appeals, et al., [50] to wit: A rule placing on the accused the burden of showing the truth of allegations of official misconduct and/or good motives and justifiable ends for making such allegations would not only be contrary to Art. 361 of the Revised Penal Code. It would, above all, infringe on the constitutionally guaranteed freedom of expression. Such a rule would deter citizens from performing their duties as members of a self-governing community. Without free speech and assembly, discussions of our most

abiding concerns as a nation would be stifled. As Justice Brandeis has said, public discussion is a political duty and the greatest menace to freedom is an inert people. [51] Indeed, the difficulty of producing evidence, both documentary and testimonial, on behalf of the petitioner was readily apparent when, during his cross-examination, Ramos testified that he was not allowed by the custodians of the material provincial financial records to photocopy the latter particularly because said documents dealt with the matter of cash advances. [52] Further, as their informant was employed in the provincial treasurers office, it is understandable why he opted not to expose himself and openly charge his superior, the private complainant herein, lest he incur the latters wrath. Finally, the private respondent claims that the banner headline ridiculed him before the public does not merit consideration as the rule in this jurisdiction is that [t]he headline of a newspaper story or publication claimed to be libelous must be read and construed in connection with the language that follows.[53] A perusal of the entire news story accompanying the headline in this case readily establishes the fact that the questioned article dealt with refutations by the private respondents critics of his explanation over the radio with regard to the issues mentioned therein. The wording of the headline may have contained an exaggeration but the same nevertheless represents a fair index of the contents of the news story accompanying it. [54] WHEREFORE, the petition is GRANTED. The Decision of the Court of Appeals of 10 December 1996 which affirmed the Joint Decision dated 18 March 1991 of the Regional Trial Court, Branch 33, Pili, Camarines Sur, and its Resolution of 19 August 1999 denying reconsideration are REVERSED and SET ASIDE. No costs. SO ORDERED. Puno, (Chairman), Austria-Martinez, Callejo, Sr., and Tinga, JJ., concur.

Republic of the Philippines SUPREME COURT SECOND DIVISION G.R. No. 143372 December 13, 2005 PHILIPPINE JOURNALISTS, INC. (PEOPLE’S JOURNAL), ZACARIAS NUGUID, JR. and CRISTINA LEE,Petitioners, vs. FRANCIS THOENEN, Respondent. DECISION CHICO-NAZARIO, J.: For almost a century, this Court has sought that elusive equilibrium between the law on defamation on one hand, and the constitutionally guaranteed freedoms of speech and press on the other. This case revisits that search. On 30 September 1990, the following news item appeared in the People’s Journal, a tabloid of general circulation: Swiss Shoots Neighbors’ Pets RESIDENTS of a subdivision in Parañaque have asked the Bureau of Immigration to deport a Swiss who allegedly shoots wayward neighbors’ pets that he finds in his domain. The BF Homes residents through lawyer Atty. Efren Angara complained that the deportation of Francis Thoenen, of 10 Calcutta BF Homes Phase III, could help "prevent the recurrence of such incident in the future." Angara explained that house owners could not control their dogs and cats when they slip out of their dwellings unnoticed. An alleged confrontation between Thoenen and the owner of a pet he shot recently threatens to exacerbate the problem, Angara said. Cristina Lee1 The subject of this article, Francis Thoenen, is a retired engineer permanently residing in this country with his Filipina wife and their children. Claiming that the report was false and defamatory, and that the petitioners acted irresponsibly in failing to verify the truth of the same prior to

publication, he filed a civil case for damages against herein petitioners Philippine Journalists, Inc., Zacarias Nuguid, Jr., its publisher, and reporter Cristina Lee. Thoenen claimed that the article destroyed the respect and admiration he enjoyed in the community, and that since it had been published, he and his wife received several queries and angry calls from friends, neighbors and relatives. For the impairment of his reputation and standing in the community, and his mental anguish, Thoenen sought ₱200,000.00 in moral damages, ₱100,000.00 in exemplary damages, and ₱50,000.00 in attorney’s fees. The petitioners admitted publication of the news item, ostensibly out of a "social and moral duty to inform the public on matters of general interest, promote the public good and protect the moral public (sic) of the people," and that the story was published in good faith and without malice. 2 The principal source of the article was a letter3 by a certain Atty. Efren Angara addressed to Commissioner Andrea Domingo of the Commission on Immigration and Deportation (CID, now Bureau of Immigration), which states: Dear Madame: We would like to request your office to verify the true status/authenticity of the residency in the Philippines of a foreign national (a Swiss) by the name of Francis Thoenen who is presently residing at No. 10 Calcuta cor. Beirut Street, BF Homes (PH. III), Parañaque, Metro Manila. I received (sic) complaint from my clients residing around his vicinity that this foreigner had (sic) been causing troubles ever since he showed up. He is too meticulous and had (sic) been shooting dogs and cats passing his house wall everytime. Such act which (sic) is unacceptable to the owners especially if inspite (sic) of control their pets slips (sic) out unnoticed. A confrontation between him and the owner of the dog he shoot, (sic) already occurred last time. In some instances this guy had been always driving his car barbarously inside the subdivision with children playing around (sic) the street. Before my clients petitioned themselves with the endorsement of the Homeowners Association and filed to your office for deportation we’re 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 CID’s 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 Thoenen’s 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

WHEREFORE, the Complaint is hereby ordered DISMISSED WITHOUT PRONOUNCEMENT AS TO COSTS.12

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 respondent’s address was indicated in the letter, Cristina Lee made no efforts to contact either him or the purported letter-writer, Atty. Angara.9

. . . [E]ven without malice on the part of defendants-appellees, the news item published in the 30 September 1990 edition of People’s 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.

The petitioners claim that Lee sought confirmation of the story from the newspaper’s correspondent in Parañaque, who told her that a woman who refused to identify herself confirmed that there had indeed been an incident of pet-shooting in the neighborhood involving the respondent.10 However, the correspondent in question was never presented in court to verify the truth of this allegation. Neither was the alleged CID source presented to verify that the above letter had indeed come from the Department, nor even that the same was a certified true copy of a letter on file in their office. On 31 August 1994, the Regional Trial Court, Branch 62, Makati City, rendered a Decision 11 in favor of the petitioners, which reads in part: There is no malice on the part of the defendants in publishing the news item done in the exercise of their profession as journalists reporting to the people on matters of public interest. The news report was based on an official communication filed with the Bureau of Immigration and Deportation. As noted by the Court of Appeals in Marti(r)ez vs. Alanao, CA-G.R No. 27086, September 30, 1991, which is similar to the present case: While indeed, the news item subject of the present case might have ruffled the sensitivities of plaintiff, this Court however believes that the alleged defamatory articles falls within the purview of a qualifiedly privileged matter, and that therefore, it cannot be presumed to be malicious. The onus of proving malice is accordingly shifted to the plaintiff, that is, that he must prove that the defendants were actuated by ill-will in what they caused to be printed and published, with a design to carelessly or wantonly injure the plaintiff. (US vs. Bustos, et al., 37 Phil. 731) This, plaintiff failed to do, consequently, his case must fall. The publication in question is a privileged communication protected by the freedom of the press.

On appeal, the court a quo reversed13 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,

…. 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 ₱200,000.00; exemplary damages of ₱50,000.00, and legal fees to ₱30,000.00; all of which shall be borne jointly and severally by appellees.14 Petitioners’ motion for reconsideration having been denied, 15 this petition for certiorari under Rule 45 of the 1997 Rules of Civil Procedure was filed on the following grounds: 1. The Court of Appeals erred in finding the petitioners Cristina Lee, Nuguid and PJI liable under Article 19 of the Civil Code. 2. The Court of Appeals erred in finding the petitioners liable for libel even if the article was based on a letter released by the Bureau of Immigration, hence a qualified privilege communication. 3. The Court of Appeals erred in concluding that petitioners did not ascertain the truth of the subject news item. 4. The Court of Appeals erred in awarding damages notwithstanding that the same was excessive unconscionable and devoid of any basis. The petitioners argue that this case is one for damages arising from libel, and not one for abuse of rights under the New Civil Code. They further claim the constitutional protections extended by the freedom of speech and of the press clause of the 1987 Constitution against liability for libel, claiming that the article was published in fulfillment of its social and moral duty to inform the public "on matters of general interest, promote the public good and protect the moral [fabric] of the people."16 They insist that the news article was based on a letter released by the Bureau of

Immigration, and is thus a qualifiedly privileged communication. To recover damages, the respondent must prove its publication was attended by actual malice - that is, with knowledge that it was false or with reckless disregard of whether it was false or not. 17 For the reasons stated below, we hold that the constitutional privilege granted under the freedom of speech and the press against liability for damages does not extend to the petitioners in this case. The freedom of speech and of the press is not absolute. The freedom of speech and press and assembly, first laid down by President McKinley in the Instruction to the Second Philippine Commission of 07 April 1900, is an almost verbatim restatement of the first amendment of the Constitution of the United States.18 Enshrined in Section 4, Article III of the Bill of Rights of the 1987 Constitution, it states, "No law shall be passed abridging the freedom of speech, of expression, or of the press, or the right of the people peaceably to assemble and petition the government for redress of grievances." But not all speech is protected. "The right of free speech is not absolute at all times and under all circumstances. There are certain well-defined and narrowly limited classes of speech, the prevention and punishment of which has never been thought to raise any Constitutional problem. These include the lewd and obscene, the profane, the libelous, and the insulting or ‘fighting’ words - those which by their very utterance inflict injury or tend to incite an immediate breach of the peace. It has been well observed that such utterances are no essential part of any exposition of ideas, and are of such slight social value as a step to truth that any benefit that may be derived from them is clearly outweighed by the social interest in order and morality." 19 Libel is not protected speech. Article 353 of the Revised Penal Code defines libel as "a public and malicious imputation of a crime, or of a vice or defect, real or imaginary, or any act, omission, condition, status, or circumstance tending to cause the dishonor, discredit, or contempt of a natural or juridical person, or to blacken the memory of one who is dead." For an imputation to be libelous, the following requisites must be met: (a) the allegation of a discreditable act or condition concerning another; (b) publication of the charge; (c) identity of the person defamed; and (d) existence of malice. 20 In Vasquez v. Court of Appeals,21 we had occasion to further explain. Thus: An allegation is considered defamatory if it ascribes to a person the commission of a crime, the possession of a vice or defect, real or imaginary, or any act, omission, condition, status or circumstance which tends to dishonor or discredit or put him in contempt, or which tends to blacken the memory of one who is dead. There is publication if the material is communicated to a third person. It is not required that the person defamed has read or heard about the libelous remark. What is material is that a third person has read or heard the libelous statement, for "a man’s 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 respondent’s name and address were clearly indicated in the article ascribing to him the questionable practice of shooting the wayward pets of his neighbors. The backlash caused by the publication of the article was in fact such that stones had been thrown at their house, breaking several flower pots, and daily and nightly calls compelled him to request a change of their telephone number. 22 These facts are not contested by the petitioners. What the petitioners claim is the absence of proof of the fourth element - malice. As a general rule, malice is presumed. Article 354 of the Revised Penal Code states: ART. 354. Requirement of Publicity. - Every defamatory imputation is presumed to be malicious, even if it be true, if no good intention and justifiable motive for making it is shown, except in the following cases: 1. A private communication made by any person to another in the performance of any legal, moral or social duty; and 2. A fair and true report, made in good faith, without any comments or remarks, of any judicial, legislative or other official proceedings which are not of confidential nature, or of any statement, report or speech delivered in said proceedings, or of any other act performed by public officers in the exercise of their functions. The article is not a privileged communication. We first discussed the freedom of speech and press and assembly vis-a-vis the laws on libel and slander in the groundbreaking case of US v. Bustos,23 where we applied the prevailing English and American jurisprudence to the effect that: The interest of society and the maintenance of good government demand a full discussion of public affairs. Complete liberty to comment on the conduct of public men is a scalpel in the case of free speech. The sharp incision of its probe relieves the abscesses of officialdom. Men in public life may suffer under a hostile and an unjust accusation; the wound can be assuaged with the balm of a clear conscience. A public officer must not be too thin-skinned with reference to comment upon his official acts. Only thus can the intelligence and dignity of the individual be exalted. Of course, criticism does not authorize defamation. Nevertheless, as the individual is less

than the State, so must expected criticism be born for the common good? Rising superior to any official, or set of officials, to the Chief Executive, to the Legislature, to the Judiciary - to any or all the agencies of Government - public opinion should be the constant source of liberty and democracy. (citations omitted) The demand to protect public opinion for the welfare of society and the orderly administration of government inevitably lead to the adoption of the doctrine of privileged communication. "A privileged communication may be either absolutely privileged or qualifiedly privileged. Absolutely privileged communications are those which are not actionable even if the author has acted in bad faith. An example is found in Sec. 11, Art. VI of the 1987 Constitution which exempts a member of Congress from liability for any speech or debate in the Congress or in any Committee thereof. Upon the other hand, qualifiedly privileged communications containing defamatory imputations are not actionable unless found to have been made without good intention or justifiable motive. To this genre belong ‘private communications’ and ‘fair and true report without any comments or remarks.’"24 The appellate court correctly ruled that the petitioners’ story is not privileged in character, for it is neither "private communication" nor a fair and true report without any comments or remarks. US v. Bustos defined the concept of private communication thus: "A communication made bona fide upon any subject-matter in which the party communicating has an interest, or in reference to which he has a duty, is privileged, if made to a person having a corresponding interest or duty, although it contained criminatory matter which without this privilege would be slanderous and actionable. A pertinent illustration of the application of qualified privilege is a complaint made in good faith and without malice in regard to the character or conduct of a public official when addressed to an officer or a board having some interest or duty in the matter." 25 This defense is unavailing to petitioners. In Daez v. Court of Appeals26 we held that: As a rule, it is the right and duty of a citizen to make a complaint of any misconduct on the part of public officials, which comes to his notice, to those charged with supervision over them. Such a communication is qualifiedly privileged and the author is not guilty of libel. The rule on privilege, however, imposes an additional requirement. Such complaints should be addressed solely to some official having jurisdiction to inquire into the charges, or power to redress the grievance or has some duty to perform or interest in connection therewith. (emphasis supplied) In the instant case, even if we assume that the letter written by the spurious Atty. Angara is privileged communication, it lost its character as such when the matter was published in the newspaper and circulated among the general population. A written letter containing libelous matter cannot be classified as privileged when it is published and circulated in public, 27 which was what the petitioners did in this case. Neither is the news item a fair and true report without any comments or remarks of any judicial, legislative or other official proceedings; there is in fact no proceeding to speak of. Nor is the article related to any act performed by public officers in the exercise of their functions, for it concerns only false imputations against Thoenen, a private individual seeking a quiet life.

The petitioners also claim to have made the report out of a "social and moral duty to inform the public on matters of general interest." In Borjal v. Court of Appeals, we stated that "the enumeration under Art. 354 is not an exclusive list of qualifiedly privileged communications since fair commentaries on matters of public interest are likewise privileged. We stated that the doctrine of fair commentaries means "that while in general every discreditable imputation publicly made is deemed false, because every man is presumed innocent until his guilt is judicially proved, and every false imputation is deemed malicious, nevertheless, when the discreditable imputation is directed against a public person in his public capacity, it is not necessarily actionable. In order that such discreditable imputation to a public official may be actionable, it must either be a false allegation of fact or a comment based on a false supposition."28 Again, this argument is unavailing to the petitioners. As we said, the respondent is a private individual, and not a public official or public figure. We are persuaded by the reasoning of the United States Supreme Court in Gertz v. Robert Welch, Inc.,29 that a newspaper or broadcaster publishing defamatory falsehoods about an individual who is neither a public official nor a public figure may not claim a constitutional privilege against liability, for injury inflicted, even if the falsehood arose in a discussion of public interest.30 Having established that the article cannot be considered as privileged communication, malice is therefore presumed, and the fourth requisite for the imputation of libel to attach to the petitioners in this case is met. The news article is therefore defamatory and is not within the realm of protected speech. There is no longer a need to discuss the other assignment of errors, save for the amount of damages to which respondent is entitled. In Policarpio v. Manila Times Publishing Co., Inc.,31 we awarded damages where the defendants deliberately presented a private individual in a worse light that what she actually was, and where other factual errors were not prevented although defendants had the means to ascertain the veracity of their report. Such are the facts obtaining here. We must point out that Lee’s 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 Thoenen’s status as a foreign resident. Lee’s 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 Lee’s main source of information, Atty. Efren Angara, apparently either does not exist, or is not a lawyer. Petitioner Lee would have been enlightened on substantially all these matters had she but tried to contact either Angara or Thoenen. Although it has been stressed that a newspaper "should not be held to account to a point of suppression for honest mistakes, or imperfection in the choice of words," 32 even the most liberal view of free speech has never countenanced the publication of falsehoods, especially the persistent and unmitigated dissemination of patent lies. 33"There is no constitutional value in false statements of fact. Neither the intentional lie nor the careless error materially advances society’s

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 individual’s 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 ₱200,000.00, exemplary damages of ₱50,000.00 and legal fees of ₱30,000.00, 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 ₱100,000.00, exemplary damages of ₱30,000.00, and legal fees of ₱20,000.00. No costs. SO ORDERED. MINITA V. CHICO-NAZARIO Associate Justice

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;

THIRD DIVISION G.R. No. 159751

December 6, 2006

GAUDENCIO E. FERNANDO and RUDY ESTORNINOS, petitioners, vs. COURT OF APPEALS, respondent.

c. Copies of Hustler International Magazine with nude obscene pictures; and d. Copies of VHS tapes containing pornographic shows.3 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:

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 (PNPCIDG 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

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 xrated 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. SO ORDERED.7 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 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. Kottinger.14 There the Court defined obscenity as something which is offensive to chastity, decency or 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 "twocents 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: 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 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 PNPCIDG 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.

Republic of the Philippines SUPREME COURT Manila EN BANC

aftermath of such assemblies, and petitioner has manifested that it has no means of preventing such disorders; That, consequently, every time that such assemblies are announced, the community is placed in such a state of fear and tension that offices are closed early and employees dismissed, storefronts boarded up, classes suspended, and transportation disrupted, to the general detriment of the public:

G.R. No. L-31687 February 26, 1970

That civil rights and liberties can exist and be preserved only in an order society;

NAVARRO, petitioner, vs. CITY MAYOR ANTONIO J. VILLEGAS, respondent.

The petitioner has failed to show a clear specific legal duty on the part of respondent Mayor to grant their application for permit unconditionally; The Court resolved to DENY the writ prayed for and to dismiss the petition.

RESOLUTION

GENTLEMEN: Quoted hereunder, for your information, is a resolution of this Court of even date: Separate Opinions "In Case G.R. No. L-31687 (Navarro vs. Villegas), the Court, after considering the pleadings and arguments of the parties, issued the following Resolution: Without prejudice to a more extended opinion and taking into account the following considerations:

VILLAMOR, J., concurring:

That respondent Mayor has not denied nor absolutely refused the permit sought by petitioner;

The right to freedom of assembly is not denied; but this right is neither unlimited nor absolute. It is not correct to say that the Mayor has refused to grant the permit applied for; he offered an alternative which, in my opinion, is not unreasonable. There being no arbitrary refusal to grant permit, petitioner is not entitled to the writ.

That as stated in Primicias v. Fugoso, 80 Phil. 75, respondent Mayor possesses reasonable discretion to determine or specify the streets or public places to be used for the assembly in order to secure convenient use thereof by others and provide adequate and proper policing to minimize the risks of disorder and maintain public safety and order; That respondent Mayor has expressly stated his willingness to grant permits for peaceful assemblies at Plaza Miranda during Saturdays, Sundays and holidays when they would not cause unnecessarily great disruption of the normal activities of the community and has further offered Sunken Gardens as an alternative to Plaza Miranda as the site of the demonstration sought to be held this afternoon; That experiences in connection with present assemblies and demonstrations do not warrant the Court's disbelieving respondent Mayor's appraisal that a public rally at Plaza Miranda, as compared to one at the Sunken Gardens as he suggested, poses a clearer and more imminent danger of public disorders, breaches of the peace, criminal acts, and even bloodshed as an

CASTRO and FERNANDO, JJ., dissenting: Two members of the Court, Castro and Fernando, find themselves unable to concur with their brethren and would vote to grant the petition. The right to freedom of assembly while not unlimited is entitled to be accorded the utmost deference and respect. If respondent Mayor premised his refusal to grant the permit as sought by petitioner on a clear showing that he was so empowered under the criteria supplied by Primicias W. Fugoso, then this petition should not prosper as petitioner himself did invoke such authority. The grounds for his refusal are however, set forth thus in his letter of February 24, 1970 addressed to petitioner: "In the greater interest of the general public, and in order not to unduly disturb the life of the community, this Office, guided by a lesson gained from the events of the past few weeks, has temporarily adopted the policy of not issuing any permit for the use of Plaza Miranda for rallies or demonstrations during week days." 1 They do

not, in the opinion of the above two justices, meet the standard of the Primicias ruling. Under the circumstances, the effect is one of prior restraint of a constitutional right. This is not allowable. An excerpt from a 1969 American Supreme Court decision is persuasive. Thus: "For in deciding whether or not to withhold a permit, the members of the Commission were to be guided only by their own ideas of 'public welfare, peace, safety, health, decency, good order, morals or convenience.' This ordinance as it was written, therefore, fell squarely within the ambit of the many decisions of this Court over the last 30 years, holding that a law subjecting the exercise of First Amendment freedoms to the prior restraint of a license, without narrow, objective, and definite standards to guide the licensing authority, is unconstitutional." 2 This is without prejudice to a more extended opinion being written later.

Republic of the Philippines SUPREME COURT Manila EN BANC G.R. No. L-65366 November 9, 1983 JOSE B.L. REYES, in behalf of the ANTI-BASES COALITION (ABC), petitioner, vs. RAMON BAGATSING, as Mayor of the City of Manila, respondent. Lorenzo M. Tañada Jose W. Diokno and Haydee B. Yorac for petitioner.

elements to infiltrate and/or disrupt any assembly or congregations where a large number of people is expected to attend." 7 Respondent Mayor suggested, however, in accordance with the recommendation of the police authorities, that "a permit may be issued for the rally if it is to be held at the Rizal Coliseum or any other enclosed area where the safety of the participants themselves and the general public may be ensured." 8 The oral argument was heard on October 25, 1983, the very same day the answer was filed. The Court then deliberated on the matter. That same afternoon, a minute resolution was issued by the Court granting the mandatory injunction prayed for on the ground that there was no showing of the existence of a clear and present danger of a substantive evil that could justify the denial of a permit. On this point, the Court was unanimous, but there was a dissent by Justice Aquino on the ground that the holding of a rally in front of the US Embassy would be violative of Ordinance No. 7295 of the City of Manila. The last sentence of such minute resolution reads: "This resolution is without prejudice to a more extended opinion." 9 Hence this detailed exposition of the Court's stand on the matter.

The Solicitor General for respondent.

FERNANDO, C.J.:ñé+.£ªwph!1 This Court, in this case of first impression, at least as to some aspects, is called upon to delineate the boundaries of the protected area of the cognate rights to free speech and peaceable assembly, 1 against an alleged intrusion by respondent Mayor Ramon Bagatsing. Petitioner, retired Justice JB L. Reyes, on behalf of the Anti-Bases Coalition sought a permit from the City of Manila to hold a peaceful march and rally on October 26, 1983 from 2:00 to 5:00 in the afternoon, starting from the Luneta, a public park, to the gates of the United States Embassy, hardly two blocks away. Once there, and in an open space of public property, a short program would be held. 2 During the course of the oral argument, 3 it was stated that after the delivery of two brief speeches, a petition based on the resolution adopted on the last day by the International Conference for General Disbarmament, World Peace and the Removal of All Foreign Military Bases held in Manila, would be presented to a representative of the Embassy or any of its personnel who may be there so that it may be delivered to the United States Ambassador. The march would be attended by the local and foreign participants of such conference. There was likewise an assurance in the petition that in the exercise of the constitutional rights to free speech and assembly, all the necessary steps would be taken by it "to ensure a peaceful march and rally." 4 The filing of this suit for mandamus with alternative prayer for writ of preliminary mandatory injunction on October 20, 1983 was due to the fact that as of that date, petitioner had not been informed of any action taken on his request on behalf of the organization to hold a rally. On October 25, 1983, the answer of respondent Mayor was filed on his behalf by Assistant Solicitor General Eduardo G. Montenegro. 5 It turned out that on October 19, such permit was denied. Petitioner was unaware of such a fact as the denial was sent by ordinary mail. The reason for refusing a permit was due to police intelligence reports which strongly militate against the advisability of issuing such permit at this time and at the place applied for." 6 To be more specific, reference was made to persistent intelligence reports affirm[ing] the plans of subversive/criminal

1. It is thus clear that the Court is called upon to protect the exercise of the cognate rights to free speech and peaceful assembly, arising from the denial of a permit. The Constitution is quite explicit: "No law shall be passed abridging the freedom of speech, or of the press, or the right of the people peaceably to assemble and petition the Government for redress of grievances." 10 Free speech, like free press, may be Identified with the liberty to discuss publicly and truthfully any matter of public concern without censorship or punishment. 11 There is to be then no previous restraint on the communication of views or subsequent liability whether in libel suits, 12 prosecution for sedition, 13 or action for damages, 14 or contempt proceedings 15 unless there be a clear and present danger of a substantive evil that [the State] has a right to prevent." 16 Freedom of assembly connotes the right people to meet peaceably for consultation and discussion of matters Of public concern.17 It is entitled to be accorded the utmost deference and respect. It is hot to be limited, much less denied, except on a showing, as 's the case with freedom of expression, of a clear and present danger of a substantive evil that the state has a right to prevent. 18 Even prior to the 1935 Constitution, Justice Maicolm had occasion to stress that it is a necessary consequence of our republican institutions and complements the right of free speech. 19 To paraphrase opinion of Justice Rutledge speaking for the majority of the American Supreme Court Thomas v. Collins, 20 it was not by accident or coincidence that the right to freedom of speech and of the press were toupled in a single guarantee with the and to petition the rights of the people peaceably to assemble and to petition the government for redress of grievances. All these rights, while not Identical, are inseparable. the every case, therefo re there is a limitation placed on the exercise of this right, the judiciary is called upon to examine the effects of the challenged governmental actuation. The sole justification for a limitation on the exercise of this right, so fundamental to the maintenance of democratic institutions, is the danger, of a character both grave and imminent, of a serious evil to public safety, public morals, public health, or any other legitimate public interest. 21 2. Nowhere is the rationale that underlies the freedom of expression and peaceable assembly better expressed than in this excerpt from an opinion of Justice Frankfurter: "It must never be forgotten, however, that the Bill of Rights was the child of the Enlightenment. Back of the guaranty of free speech lay faith in the power of an appeal to reason by all the peaceful means for gaining access to the mind. It was in order to avert force and explosions due to restrictions upon rational

modes of communication that the guaranty of free speech was given a generous scope. But utterance in a context of violence can lose its significance as an appeal to reason and become part of an instrument of force. Such utterance was not meant to be sheltered by the Constitution." 22 What was rightfully stressed is the abandonment of reason, the utterance, whether verbal or printed, being in a context of violence. It must always be remembered that this right likewise provides for a safety valve, allowing parties the opportunity to give vent to theirviews, 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 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 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 reassuring such that both on the part of the national government and the citizens, reason and moderation have prevailed. That is as it should be. WHEREFORE, the mandatory injunction prayed for is granted. No costs. Concepcion, Jr., Guerrero, Melencio-Herrera, Escolin, Relova and Gutierrez, , Jr.,JJ., concur. De Castro, J, is on leave.

Republic of the Philippines SUPREME COURT Manila EN BANC G.R. No. L-62270 May 21, 1984 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 exparte 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 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." 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 placethere 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, 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.

MAYO UNO (NAFLU-KMU), represented by its National President, JOSELITO V. USTAREZ, ANTONIO C. PASCUAL, SALVADOR T. CARRANZA, GILDA SUMILANG, FRANCISCO LASTRELLA, and ROQUE M. TAN, Petitioners, vs. THE HONORABLE EXECUTIVE SECRETARY, PNP DIRECTOR GENRAL ARTURO LOMIBAO, HONORABLE MAYOR LITO ATIENZA, and PNP MPD CHIEF SUPT. PEDRO BULAONG, Respondents. EN BANC G.R. No. 169838

April 25, 2006

BAYAN, KARAPATAN, KILUSANG MAGBUBUKID NG PILIPINAS (KMP), GABRIELA, Fr. Jose Dizon, Renato Constantino, Jr., Froyel Yaneza, and Fahima Tajar, Petitioners, vs. EDUARDO ERMITA, in his capacity as Executive Secretary, Manila City Mayor LITO ATIENZA, Chief of the Philippine National Police, Gen. ARTURO M. LOMIBAO, NCRPO Chief Maj. Gen. VIDAL QUEROL, and Western Police District Chief Gen. PEDRO BULAONG, Respondents. x---------------------------------x G.R. No. 169848

April 25, 2006

Jess Del Prado, Wilson Fortaleza, Leody de Guzman, Pedro Pinlac, Carmelita Morante, Rasti Delizo, Paul Bangay, Marie Jo Ocampo, Lilia dela Cruz, Cristeta Ramos, Adelaida Ramos, Mary Grace Gonzales, Michael Torres, Rendo Sabusap, Precious Balute, Roxanne Magboo, Ernie Bautista, Joseph de Jesus, Margarita Escober, Djoannalyn Janier, Magdalena Sellote, Manny Quiazon, Ericson Dizon, Nenita Cruzat, Leonardo De los Reyes, Pedrito Fadrigon, Petitioners, vs. EDUARDO ERMITA, in his official capacity as The Executive Secretary and in his personal capacity, ANGELO REYES, in his official capacity as Secretary of the Interior and Local Governments, ARTURO LOMIBAO, in his official capacity as the Chief, Philippine National Police, VIDAL QUEROL, in his official capacity as the Chief, National Capital Regional Police Office (NCRPO), PEDRO BULAONG, in his official capacity as the Chief, Manila Police District (MPD) AND ALL OTHER PUBLIC OFFICERS GARCIA, and AND PRIVATE INDIVIDUALS ACTING UNDER THEIR CONTROL, SUPERVISION AND INSTRUCTIONS, Respondents. x---------------------------------x G.R. No. 169881

April 25, 2006

KILUSANG MAYO UNO, represented by its Chairperson ELMER C. LABOG and Secretary General JOEL MAGLUNSOD, NATIONAL FEDERATION OF LABOR UNIONS-KILUSANG

DECISION AZCUNA, J.: Petitioners come in three groups. The first petitioners, Bayan, et al., in G.R. No. 169838,1 allege that they are citizens and taxpayers of the Philippines and that their rights as organizations and individuals were violated when the rally they participated in on October 6, 2005 was violently dispersed by policemen implementing Batas Pambansa (B.P.) No. 880. The second group consists of 26 individual petitioners, Jess del Prado, et al., in G.R. No. 169848,2 who allege that they were injured, arrested and detained when a peaceful mass action they held on September 26, 2005 was preempted and violently dispersed by the police. They further assert that on October 5, 2005, a group they participated in marched to Malacañang to protest issuances of the Palace which, they claim, put the country under an "undeclared" martial rule, and the protest was likewise dispersed violently and many among them were arrested and suffered injuries. The third group, Kilusang Mayo Uno (KMU), et al., petitioners in G.R. No. 169881,3 allege that they conduct peaceful mass actions and that their rights as organizations and those of their individual members as citizens, specifically the right to peaceful assembly, are affected by Batas Pambansa No. 880 and the policy of "Calibrated Preemptive Response" (CPR) being followed to implement it. KMU, et al., claim that on October 4, 2005, a rally KMU co-sponsored was to be conducted at the Mendiola bridge but police blocked them along C.M. Recto and Lepanto Streets and forcibly dispersed them, causing injuries to several of their members. They further allege that on October 6, 2005, a multi-sectoral rally which KMU also co-sponsored was scheduled to proceed along España Avenue in front of the University of Santo Tomas and going towards Mendiola bridge. Police officers blocked them along Morayta Street and prevented them from proceeding further. They were then forcibly dispersed, causing injuries on one of them. 4 Three other rallyists were arrested. All petitioners assail Batas Pambansa No. 880, some of them in toto and others only Sections 4, 5, 6, 12, 13(a), and 14(a), as well as the policy of CPR. They seek to stop violent dispersals of rallies under the "no permit, no rally" policy and the CPR policy recently announced.

B.P. No. 880, "The Public Assembly Act of 1985," provides: Batas Pambansa Blg. 880 An Act Ensuring The Free Exercise By The People Of Their Right Peaceably To Assemble And Petition The Government [And] For Other Purposes Be it enacted by the Batasang Pambansa in session assembled: Section 1. Title. – This Act shall be known as "The Public Assembly Act of 1985."

Sec. 4. Permit when required and when not required. – A written permit shall be required for any person or persons to organize and hold a public assembly in a public place. However, no permit shall be required if the public assembly shall be done or made in a freedom park duly established by law or ordinance or in private property, in which case only the consent of the owner or the one entitled to its legal possession is required, or in the campus of a government-owned and operated educational institution which shall be subject to the rules and regulations of said educational institution. Political meetings or rallies held during any election campaign period as provided for by law are not covered by this Act. Sec. 5. Application requirements. – All applications for a permit shall comply with the following guidelines:

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

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

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

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

(a) "Public assembly" means any rally, demonstration, march, parade, procession or any other form of mass or concerted action held in a public place for the purpose of presenting a lawful cause; or expressing an opinion to the general public on any particular issue; or protesting or influencing any state of affairs whether political, economic or social; or petitioning the government for redress of grievances. The processions, rallies, parades, demonstrations, public meetings and assemblages for religious purposes shall be governed by local ordinances; Provided, however, That the declaration of policy as provided in Section 2 of this Act shall be faithfully observed. The definition herein contained shall not include picketing and other concerted action in strike areas by workers and employees resulting from a labor dispute as defined by the Labor Code, its implementing rules and regulations, and by the Batas Pambansa Bilang 227. (b) "Public place" shall include any highway, boulevard, avenue, road, street, bridge or other thoroughfare, park, plaza, square, and/or any open space of public ownership where the people are allowed access.

(c) The application shall be filed with the office of the mayor of the city or municipality in whose jurisdiction the intended activity is to be held, at least five (5) working days before the scheduled public assembly. (d) Upon receipt of the application, which must be duly acknowledged in writing, the office of the city or municipal mayor shall cause the same to immediately be posted at a conspicuous place in the city or municipal building. Sec. 6. Action to be taken on the application. – (a) It shall be the duty of the mayor or any official acting in his behalf to issue or grant a permit unless there is clear and convincing evidence that the public assembly will create a clear and present danger to public order, public safety, public convenience, public morals or public health.

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

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

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

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

(d) The action on the permit shall be in writing and served on the applica[nt] within twentyfour hours. (e) If the mayor or any official acting in his behalf denies the application or modifies the terms thereof in his permit, the applicant may contest the decision in an appropriate court of law. (f) In case suit is brought before the Metropolitan Trial Court, the Municipal Trial Court, the Municipal Circuit Trial Court, the Regional Trial Court, or the Intermediate Appellate court, its decisions may be appealed to the appropriate court within forty-eight (48) hours after receipt of the same. No appeal bond and record on appeal shall be required. A decision granting such permit or modifying it in terms satisfactory to the applicant shall be immediately executory. (g) All cases filed in court under this section shall be decided within twenty-four (24) hours from date of filing. Cases filed hereunder shall be immediately endorsed to the executive judge for disposition or, in his absence, to the next in rank. (h) In all cases, any decision may be appealed to the Supreme Court. (i) Telegraphic appeals to be followed by formal appeals are hereby allowed. Sec. 7. Use of Public throroughfare. – Should the proposed public assembly involve the use, for an appreciable length of time, of any public highway, boulevard, avenue, road or street, the mayor or any official acting in his behalf may, to prevent grave public inconvenience, designate the route thereof which is convenient to the participants or reroute the vehicular traffic to another direction so that there will be no serious or undue interference with the free flow of commerce and trade. Sec. 8. Responsibility of applicant. – It shall be the duty and responsibility of the leaders and organizers of a public assembly to take all reasonable measures and steps to the end that the intended public assembly shall be conducted peacefully in accordance with the terms of the permit. These shall include but not be limited to the following: (a) To inform the participants of their responsibility under the permit;|avvphi|.net (b) To police the ranks of the demonstrators in order to prevent non-demonstrators from disrupting the lawful activities of the public assembly; (c) To confer with local government officials concerned and law enforcers to the end that the public assembly may be held peacefully; (d) To see to it that the public assembly undertaken shall not go beyond the time stated in the permit; and (e) To take positive steps that demonstrators do not molest any person or do any act unduly interfering with the rights of other persons not participating in the public assembly.

Sec. 9. Non-interference by law enforcement authorities. – Law enforcement agencies shall not interfere with the holding of a public assembly. However, to adequately ensure public safety, a law enforcement contingent under the command of a responsible police officer may be detailed and stationed in a place at least one hundred (100) meters away from the area of activity ready to maintain peace and order at all times. Sec. 10. Police assistance when requested. – It shall be imperative for law enforcement agencies, when their assistance is requested by the leaders or organizers, to perform their duties always mindful that their responsibility to provide proper protection to those exercising their right peaceably to assemble and the freedom of expression is primordial. Towards this end, law enforcement agencies shall observe the following guidelines: (a) Members of the law enforcement contingent who deal with the demonstrators shall be in complete uniform with their nameplates and units to which they belong displayed prominently on the front and dorsal parts of their uniform and must observe the policy of "maximum tolerance" as herein defined; (b) The members of the law enforcement contingent shall not carry any kind of firearms but may be equipped with baton or riot sticks, shields, crash helmets with visor, gas masks, boots or ankle high shoes with shin guards; (c) Tear gas, smoke grenades, water cannons, or any similar anti-riot device shall not be used unless the public assembly is attended by actual violence or serious threats of violence, or deliberate destruction of property. Sec. 11. Dispersal of public assembly with permit. – No public assembly with a permit shall be dispersed. However, when an assembly becomes violent, the police may disperse such public assembly as follows: (a) At the first sign of impending violence, the ranking officer of the law enforcement contingent shall call the attention of the leaders of the public assembly and ask the latter to prevent any possible disturbance; (b) If actual violence starts to a point where rocks or other harmful objects from the participants are thrown at the police or at the non-participants, or at any property causing damage to such property, the ranking officer of the law enforcement contingent shall audibly warn the participants that if the disturbance persists, the public assembly will be dispersed; (c) If the violence or disturbance prevailing as stated in the preceding subparagraph should not stop or abate, the ranking officer of the law enforcement contingent shall audibly issue a warning to the participants of the public assembly, and after allowing a reasonable period of time to lapse, shall immediately order it to forthwith disperse; (d) No arrest of any leader, organizer or participant shall also be made during the public assembly unless he violates during the assembly a law, statute, ordinance or any

provision of this Act. Such arrest shall be governed by Article 125 of the Revised Penal Code, as amended; (e) Isolated acts or incidents of disorder or breach of the peace during the public assembly shall not constitute a ground for dispersal.

Sec. 14. Penalties. – Any person found guilty and convicted of any of the prohibited acts defined in the immediately preceding section shall be punished as follows: (a) violation of subparagraph (a) shall be punished by imprisonment of one month and one day to six months;

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

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

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

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

(a) The holding of any public assembly as defined in this Act by any leader or organizer without having first secured that written permit where a permit is required from the office concerned, or the use of such permit for such purposes in any place other than those set out in said permit: Provided, however, That no person can be punished or held criminally liable for participating in or attending an otherwise peaceful assembly; (b) Arbitrary and unjustified denial or modification of a permit in violation of the provisions of this Act by the mayor or any other official acting in his behalf; (c) The unjustified and arbitrary refusal to accept or acknowledge receipt of the application for a permit by the mayor or any official acting in his behalf; (d) Obstructing, impeding, disrupting or otherwise denying the exercise of the right to peaceful assembly; (e) The unnecessary firing of firearms by a member of any law enforcement agency or any person to disperse the public assembly;

(d) violations of item 2, item 3, or item 5 of subparagraph (g) shall be punished by imprisonment of one day to thirty days. Sec. 15. Freedom parks. – Every city and municipality in the country shall within six months after the effectivity of this Act establish or designate at least one suitable "freedom park" or mall in their respective jurisdictions which, as far as practicable, shall be centrally located within the poblacion where demonstrations and meetings may be held at any time without the need of any prior permit. In the cities and municipalities of Metropolitan Manila, the respective mayors shall establish the freedom parks within the period of six months from the effectivity this Act. Sec. 16. Constitutionality. – Should any provision of this Act be declared invalid or unconstitutional, the validity or constitutionality of the other provisions shall not be affected thereby.

(f) Acts in violation of Section 10 hereof;

Sec. 17. Repealing clause. – All laws, decrees, letters of instructions, resolutions, orders, ordinances or parts thereof which are inconsistent with the provisions of this Act are hereby repealed, amended, or modified accordingly.

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

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

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

Approved, October 22, 1985.

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

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

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

Malacañang Official

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

Manila, Philippines NEWS

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

Release No. 2 September 21, 2005

STATEMENT OF EXECUTIVE SECRETARY EDUARDO ERMITA On Unlawful Mass Actions In view of intelligence reports pointing to credible plans of anti-government groups to inflame the political situation, sow disorder and incite people against the duly constituted authorities, we have instructed the PNP as well as the local government units to strictly enforce a "no permit, no rally" policy, disperse groups that run afoul of this standard and arrest all persons violating the laws of the land as well as ordinances on the proper conduct of mass actions and demonstrations. The rule of calibrated preemptive response is now in force, in lieu of maximum tolerance. The authorities will not stand aside while those with ill intent are herding a witting or unwitting mass of people and inciting them into actions that are inimical to public order, and the peace of mind of the national community. Unlawful mass actions will be dispersed. The majority of law-abiding citizens have the right to be protected by a vigilant and proactive government. We appeal to the detractors of the government to engage in lawful and peaceful conduct befitting of a democratic society. The President’s call for unity and reconciliation stands, based on the rule of law. Petitioners Bayan, et al., contend that Batas Pambansa No. 880 is clearly a violation of the Constitution and the International Covenant on Civil and Political Rights and other human rights treaties of which the Philippines is a signatory. 5 They argue that B.P. No. 880 requires a permit before one can stage a public assembly regardless of the presence or absence of a clear and present danger. It also curtails the choice of venue and is thus repugnant to the freedom of expression clause as the time and place of a public assembly form part of the message for which the expression is sought. Furthermore, it is not content-neutral as it does not apply to mass actions in support of the government. The words "lawful cause," "opinion," "protesting or influencing" suggest the exposition of some cause not espoused by the government. Also, the phrase "maximum tolerance" shows that the law applies to assemblies against the government because they are being tolerated. As a content-based legislation, it cannot pass the strict scrutiny test. Petitioners Jess del Prado, et al., in turn, argue that B.P. No. 880 is unconstitutional as it is a curtailment of the right to peacefully assemble and petition for redress of grievances because it puts a condition for the valid exercise of that right. It also characterizes public assemblies without a permit as illegal and penalizes them and allows their dispersal. Thus, its provisions are not mere regulations but are actually prohibitions. Furthermore, the law delegates powers to the Mayor without providing clear standards. The two standards stated in the laws (clear and present danger and imminent and grave danger) are inconsistent.

Regarding the CPR policy, it is void for being an ultra vires act that alters the standard of maximum tolerance set forth in B.P. No. 880, aside from being void for being vague and for lack of publication. Finally, petitioners KMU, et al., argue that the Constitution sets no limits on the right to assembly and therefore B.P. No. 880 cannot put the prior requirement of securing a permit. And even assuming that the legislature can set limits to this right, the limits provided are unreasonable: First, allowing the Mayor to deny the permit on clear and convincing evidence of a clear and present danger is too comprehensive. Second, the five-day requirement to apply for a permit is too long as certain events require instant public assembly, otherwise interest on the issue would possibly wane. As to the CPR policy, they argue that it is preemptive, that the government takes action even before the rallyists can perform their act, and that no law, ordinance or executive order supports the policy. Furthermore, it contravenes the maximum tolerance policy of B.P. No. 880 and violates the Constitution as it causes a chilling effect on the exercise by the people of the right to peaceably assemble. Respondents in G.R. No. 169838 are Eduardo Ermita, as Executive Secretary, Manila City Mayor Lito Atienza, Chief, of the Philippine National Police (PNP) Gen. Arturo Lomibao, National Capital Region Police Office (NCRPO) Chief, PNP Maj. Gen. Vidal Querol, and Manila Police District (MPD) Chief Gen. Pedro Bulaong. Respondents in G.R. No. 169848 are Eduardo Ermita as Executive Secretary and in his personal capacity; Angelo Reyes, as Secretary of the Interior and Local Governments; Arturo Lomibao, as Chief Vidal Querol, as Chief, NCRPO; Pedro Bulaong, as Chief, MPD, and all other public officers and private individuals acting under their control, supervision and instruction. Respondents in G.R. No. 169881 are the Honorable Executive Secretary, PNP Director General Arturo Lomibao, the Honorable Mayor Joselito Atienza, and PNP MPD Chief Pedro Bulaong. Respondents argue that: 1. Petitioners have no standing because they have not presented evidence that they had been "injured, arrested or detained because of the CPR," and that "those arrested stand to be charged with violating Batas Pambansa [No.] 880 and other offenses." 2. Neither B.P. No. 880 nor CPR is void on its face. Petitioners cannot honestly claim that the time, place and manner regulation embodied in B.P. No. 880 violates the threepronged test for such a measure, to wit: (a) B.P. No. 880 is content-neutral, i.e., it has no reference to content of regulated speech; (b) B.P. No. 880 is narrowly tailored to serve a significant governmental interest, i.e., the interest cannot be equally well served by a means that is less intrusive of free speech interests; and (c) B.P. No. 880 leaves open alternative channels for communication of the information. 6

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

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

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

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

5. Sangalang v. Intermediate Appellate Court9 held that a local chief executive has the authority to exercise police power to meet "the demands of the common good in terms of traffic decongestion and public convenience." Furthermore, the discretion given to the mayor is narrowly circumscribed by Sections 5 (d), and 6 (a), (b), (c), (d), (e), 13 and 15 of the law. 6. The standards set forth in the law are not inconsistent. "Clear and convincing evidence that the public assembly will create a clear and present danger to public order, public safety, public convenience, public morals or public health" and "imminent and grave danger of a substantive evil" both express the meaning of the "clear and present danger test."10 7. CPR is simply the responsible and judicious use of means allowed by existing laws and ordinances to protect public interest and restore public order. Thus, it is not accurate to call it a new rule but rather it is a more pro-active and dynamic enforcement of existing laws, regulations and ordinances to prevent chaos in the streets. It does not replace the rule of maximum tolerance in B.P. No. 880. Respondent Mayor Joselito Atienza, for his part, submitted in his Comment that the petition in G.R. No. 169838 should be dismissed on the ground that Republic Act No. 7160 gives the Mayor power to deny a permit independently of B.P. No. 880; that his denials of permits were under the "clear and present danger" rule as there was a clamor to stop rallies that disrupt the economy and to protect the lives of other people; that J. B. L. Reyes v. Bagatsing,11 Primicias v. Fugoso,12 and Jacinto v. CA,13 have affirmed the constitutionality of requiring a permit; that the permit is for the use of a public place and not for the exercise of rights; and that B.P. No. 880 is not a content-based regulation because it covers all rallies. The petitions were ordered consolidated on February 14, 2006. After the submission of all the Comments, the Court set the cases for oral arguments on April 4, 2006,14 stating the principal issues, as follows: 1. On the constitutionality of Batas Pambansa No. 880, specifically Sections 4, 5, 6, 12 13(a) and 14(a) thereof, and Republic Act No. 7160:

(b) Are they void on grounds of overbreadth or vagueness? (c) Do they constitute prior restraint? (d) Are they undue delegations of powers to Mayors?

2. On the constitutionality and legality of the policy of Calibrated Preemptive Response (CPR): (a) Is the policy void on its face or due to vagueness? (b) Is it void for lack of publication? (c) Is the policy of CPR void as applied to the rallies of September 26 and October 4, 5 and 6, 2005? During the course of the oral arguments, the following developments took place and were approved and/or noted by the Court: 1. Petitioners, in the interest of a speedy resolution of the petitions, withdrew the portions of their petitions raising factual issues, particularly those raising the issue of whether B.P. No. 880 and/or CPR is void as applied to the rallies of September 20, October 4, 5 and 6, 2005. 2. The Solicitor General agreed with the observation of the Chief Justice that CPR should no longer be used as a legal term inasmuch as, according to respondents, it was merely a "catchword" intended to clarify what was thought to be a misunderstanding of the maximum tolerance policy set forth in B.P. No. 880 and that, as stated in the affidavit executed by Executive Secretary Eduardo Ermita and submitted to the Ombudsman, it does not replace B.P. No. 880 and the maximum tolerance policy embodied in that law. The Court will now proceed to address the principal issues, taking into account the foregoing developments. Petitioners’ standing cannot be seriously challenged. Their right as citizens to engage in peaceful assembly and exercise the right of petition, as guaranteed by the Constitution, is directly affected by B.P. No. 880 which requires a permit for all who would publicly assemble in the nation’s streets and parks. They have, in fact, purposely engaged in public assemblies without the required permits to press their claim that no such permit can be validly required without violating the

Constitutional guarantee. Respondents, on the other hand, have challenged such action as contrary to law and dispersed the public assemblies held without the permit. Section 4 of Article III of the Constitution provides: Sec. 4. No law shall be passed abridging the freedom of speech, of expression, or of the press, or the right of the people peaceably to assemble and petition the government for redress of grievances. The first point to mark is that the right to peaceably assemble and petition for redress of grievances is, together with freedom of speech, of expression, and of the press, a right that enjoys primacy in the realm of constitutional protection. For these rights constitute the very basis of a functional democratic polity, without which all the other rights would be meaningless and unprotected. As stated in Jacinto v. CA,15 the Court, as early as the onset of this century, in U.S. v. Apurado,16 already upheld the right to assembly and petition, as follows: There is no question as to the petitioners’ rights to peaceful assembly to petition the government for a redress of grievances and, for that matter, to organize or form associations for purposes not contrary to law, as well as to engage in peaceful concerted activities. These rights are guaranteed by no less than the Constitution, particularly Sections 4 and 8 of the Bill of Rights, Section 2(5) of Article IX, and Section 3 of Article XIII. Jurisprudence abounds with hallowed pronouncements defending and promoting the people’s exercise of these rights. As early as the onset of this century, this Court in U.S. vs. Apurado, already upheld the right to assembly and petition and even went as far as to acknowledge: "It is rather to be expected that more or less disorder will mark the public assembly of the people to protest against grievances whether real or imaginary, because on such occasions feeling is always wrought to a high pitch of excitement, and the greater, the grievance and the more intense the feeling, the less perfect, as a rule will be the disciplinary control of the leaders over their irresponsible followers. But if the prosecution be permitted to seize upon every instance of such disorderly conduct by individual members of a crowd as an excuse to characterize the assembly as a seditious and tumultuous rising against the authorities, then the right to assemble and to petition for redress of grievances would become a delusion and a snare and the attempt to exercise it on the most righteous occasion and in the most peaceable manner would expose all those who took part therein to the severest and most unmerited punishment, if the purposes which they sought to attain did not happen to be pleasing to the prosecuting authorities. If instances of disorderly conduct occur on such occasions, the guilty individuals should be sought out and punished therefor, but the utmost discretion must be exercised in drawing the line between disorderly and seditious conduct and between an essentially peaceable assembly and a tumultuous uprising." Again, in Primicias v. Fugoso,17 the Court likewise sustained the primacy of freedom of speech and to assembly and petition over comfort and convenience in the use of streets and parks. Next, however, it must be remembered that the right, while sacrosanct, is not absolute. In Primicias, this Court said:

The right to freedom of speech, and to peacefully assemble and petition the government for redress of grievances, are fundamental personal rights of the people recognized and guaranteed by the constitutions of democratic countries. But it is a settled principle growing out of the nature of well-ordered civil societies that the exercise of those rights is not absolute for it may be so regulated that it shall not be injurious to the equal enjoyment of others having equal rights, nor injurious to the rights of the community or society. The power to regulate the exercise of such and other constitutional rights is termed the sovereign "police power," which is the power to prescribe regulations, to promote the health, morals, peace, education, good order or safety, and general welfare of the people. This sovereign police power is exercised by the government through its legislative branch by the enactment of laws regulating those and other constitutional and civil rights, and it may be delegated to political subdivisions, such as towns, municipalities and cities by authorizing their legislative bodies called municipal and city councils to enact ordinances for the purpose.18 Reyes v. Bagatsing19 further expounded on the right and its limits, as follows: 1. It is thus clear that the Court is called upon to protect the exercise of the cognate rights to free speech and peaceful assembly, arising from the denial of a permit. The Constitution is quite explicit: "No law shall be passed abridging the freedom of speech, or of the press, or the right of the people peaceably to assemble and petition the Government for redress of grievances." Free speech, like free press, may be identified with the liberty to discuss publicly and truthfully any matter of public concern without censorship or punishment. There is to be then no previous restraint on the communication of views or subsequent liability whether in libel suits, prosecution for sedition, or action for damages, or contempt proceedings unless there be a "clear and present danger of a substantive evil that [the State] has a right to prevent." Freedom of assembly connotes the right of the people to meet peaceably for consultation and discussion of matters of public concern. It is entitled to be accorded the utmost deference and respect. It is not to be limited, much less denied, except on a showing, as is the case with freedom of expression, of a clear and present danger of a substantive evil that the state has a right to prevent. Even prior to the 1935 Constitution, Justice Malcolm had occasion to stress that it is a necessary consequence of our republican institutions and complements the right of free speech. To paraphrase the opinion of Justice Rutledge, speaking for the majority of the American Supreme Court in Thomas v. Collins, it was not by accident or coincidence that the rights to freedom of speech and of the press were coupled in a single guarantee with the rights of the people peaceably to assemble and to petition the government for redress of grievances. All these rights, while not identical, are inseparable. In every case, therefore, where there is a limitation placed on the exercise of this right, the judiciary is called upon to examine the effects of the challenged governmental actuation. The sole justification for a limitation on the exercise of this right, so fundamental to the maintenance of democratic institutions, is the danger, of a character both grave and imminent, of a serious evil to public safety, public morals, public health, or any other legitimate public interest. 2. Nowhere is the rationale that underlies the freedom of expression and peaceable assembly better expressed than in this excerpt from an opinion of Justice Frankfurter: "It must never be forgotten, however, that the Bill of Rights was the child of the Enlightenment. Back of the guaranty of free speech lay faith in the power of an appeal to

reason by all the peaceful means for gaining access to the mind. It was in order to avert force and explosions due to restrictions upon rational modes of communication that the guaranty of free speech was given a generous scope. But utterance in a context of violence can lose its significance as an appeal to reason and become part of an instrument of force. Such utterance was not meant to be sheltered by the Constitution." What was rightfully stressed is the abandonment of reason, the utterance, whether verbal or printed, being in a context of violence. It must always be remembered that this right likewise provides for a safety valve, allowing parties the opportunity to give vent to their views, even if contrary to the prevailing climate of opinion. For if the peaceful means of communication cannot be availed of, resort to non-peaceful means may be the only alternative. Nor is this the sole reason for the expression of dissent. It means more than just the right to be heard of the person who feels aggrieved or who is dissatisfied with things as they are. Its value may lie in the fact that there may be something worth hearing from the dissenter. That is to ensure a true ferment of ideas. There are, of course, welldefined limits. What is guaranteed is peaceable assembly. One may not advocate disorder in the name of protest, much less preach rebellion under the cloak of dissent. The Constitution frowns on disorder or tumult attending a rally or assembly. Resort to force is ruled out and outbreaks of violence to be avoided. The utmost calm though is not required. As pointed out in an early Philippine case, penned in 1907 to be precise, United States v. Apurado: "It is rather to be expected that more or less disorder will mark the public assembly of the people to protest against grievances whether real or imaginary, because on such occasions feeling is always wrought to a high pitch of excitement, and the greater the grievance and the more intense the feeling, the less perfect, as a rule, will be the disciplinary control of the leaders over their irresponsible followers." It bears repeating that for the constitutional right to be invoked, riotous conduct, injury to property, and acts of vandalism must be avoided. To give free rein to one’s destructive urges is to call for condemnation. It is to make a mockery of the high estate occupied by intellectual liberty in our scheme of values. There can be no legal objection, absent the existence of a clear and present danger of a substantive evil, on the choice of Luneta as the place where the peace rally would start. The Philippines is committed to the view expressed in the plurality opinion, of 1939 vintage, of Justice Roberts in Hague v. CIO: "Whenever the title of streets and parks may rest, they have immemorially been held in trust for the use of the public and, time out of mind, have been used for purposes of assembly, communicating thoughts between citizens, and discussing public questions. Such use of the streets and public places has, from ancient times, been a part of the privileges, immunities, rights and liberties of citizens. The privilege of a citizen of the United States to use the streets and parks for communication of views on national questions may be regulated in the interest of all; it is not absolute, but relative, and must be exercised in subordination to the general comfort and convenience, and in consonance with peace and good order; but must not, in the guise of regulation, be abridged or denied." The above excerpt was quoted with approval in Primicias v. Fugoso. Primicias made explicit what was implicit in Municipality of Cavite v. Rojas, a 1915 decision, where this Court categorically affirmed that plazas or parks and streets are outside the commerce of man and thus nullified a contract that leased Plaza Soledad of plaintiff-municipality. Reference was made to such plaza "being a promenade for public use," which certainly is not the only purpose that it could serve. To repeat, there can be no valid reason why a permit should not be granted for the proposed march and rally starting from a public park that is the Luneta.

4. Neither can there be any valid objection to the use of the streets to the gates of the US embassy, hardly two blocks away at the Roxas Boulevard. Primicias v. Fugoso has resolved any lurking doubt on the matter. In holding that the then Mayor Fugoso of the City of Manila should grant a permit for a public meeting at Plaza Miranda in Quiapo, this Court categorically declared: "Our conclusion finds support in the decision in the case of Willis Cox v. State of New Hampshire, 312 U.S., 569. In that case, the statute of New Hampshire P.L. chap. 145, section 2, providing that no parade or procession upon any ground abutting thereon, shall be permitted unless a special license therefor shall first be obtained from the selectmen of the town or from licensing committee,’ was construed by the Supreme Court of New Hampshire as not conferring upon the licensing board unfettered discretion to refuse to grant the license, and held valid. And the Supreme Court of the United States, in its decision (1941) penned by Chief Justice Hughes affirming the judgment of the State Supreme Court, held that ‘a statute requiring persons using the public streets for a parade or procession to procure a special license therefor from the local authorities is not an unconstitutional abridgment of the rights of assembly or of freedom of speech and press, where, as the statute is construed by the state courts, the licensing authorities are strictly limited, in the issuance of licenses, to a consideration of the time, place, and manner of the parade or procession, with a view to conserving the public convenience and of affording an opportunity to provide proper policing, and are not invested with arbitrary discretion to issue or refuse license, * * *. "Nor should the point made by Chief Justice Hughes in a subsequent portion of the opinion be ignored: "Civil liberties, as guaranteed by the Constitution, imply the existence of an organized society maintaining public order without which liberty itself would be lost in the excesses of unrestricted abuses. The authority of a municipality to impose regulations in order to assure the safety and convenience of the people in the use of public highways has never been regarded as inconsistent with civil liberties but rather as one of the means of safeguarding the good order upon which they ultimately depend. The control of travel on the streets of cities is the most familiar illustration of this recognition of social need. Where a restriction of the use of highways in that relation is designed to promote the public convenience in the interest of all, it cannot be disregarded by the attempted exercise of some civil right which in other circumstances would be entitled to protection." xxx 6. x x x The principle under American doctrines was given utterance by Chief Justice Hughes in these words: "The question, if the rights of free speech and peaceable assembly are to be preserved, is not as to the auspices under which the meeting is held but as to its purpose; not as to the relations of the speakers, but whether their utterances transcend the bounds of the freedom of speech which the Constitution protects." There could be danger to public peace and safety if such a gathering were marked by turbulence. That would deprive it of its peaceful character. Even then, only the guilty parties should be held accountable. It is true that the licensing official, here respondent Mayor, is not devoid of discretion in determining whether or not a permit would be granted. It is not, however, unfettered discretion. While prudence requires that there be a realistic appraisal not of what may possibly occur but of what may probably occur, given all the relevant circumstances, still the assumption – especially so where the assembly is scheduled for a specific public place – is that the permit must be for the assembly being held there. The exercise of such a right, in the language of Justice Roberts, speaking for

the American Supreme Court, is not to be "abridged on the plea that it may be exercised in some other place." xxx 8. By way of a summary. The applicants for a permit to hold an assembly should inform the licensing authority of the date, the public place where and the time when it will take place. If it were a private place, only the consent of the owner or the one entitled to its legal possession is required. Such application should be filed well ahead in time to enable the public official concerned to appraise whether there may be valid objections to the grant of the permit or to its grant but at another public place. It is an indispensable condition to such refusal or modification that the clear and present danger test be the standard for the decision reached. If he is of the view that there is such an imminent and grave danger of a substantive evil, the applicants must be heard on the matter. Thereafter, his decision, whether favorable or adverse, must be transmitted to them at the earliest opportunity. Thus if so minded, they can have recourse to the proper judicial authority. Free speech and peaceable assembly, along with the other intellectual freedoms, are highly ranked in our scheme of constitutional values. It cannot be too strongly stressed that on the judiciary, -- even more so than on the other departments – rests the grave and delicate responsibility of assuring respect for and deference to such preferred rights. No verbal formula, no sanctifying phrase can, of course, dispense with what has been so felicitiously termed by Justice Holmes "as the sovereign prerogative of judgment." Nonetheless, the presumption must be to incline the weight of the scales of justice on the side of such rights, enjoying as they do precedence and primacy. x x x. B.P. No. 880 was enacted after this Court rendered its decision in Reyes. The provisions of B.P. No. 880 practically codify the ruling in Reyes:

Reyes v. Bagatsing

B.P. No. 880

(G.R. No. L-65366, November 9, 1983,

Sec. 4. Permit when required and when not required.-- A written permit shall be required for any person or persons to organize and hold a public assembly in a public place. However, no permit shall be required if the public assembly shall be done or made in a freedom park duly established by law or ordinance or in private property, in which case only the consent of the owner or the one entitled to its legal possession is required, or in the campus of a government-owned and

125 SCRA 553, 569) 8. By way of a summary. The applicants for a permit to hold an assembly should inform the licensing authority of the date, the public place where and the time when it will take place. If it were a private place, only the consent of the owner or the one entitled to its legal possession is required. Such application should be filed well

ahead in time to enable the public official concerned to appraise whether there may be valid objections to the grant of the permit or to its grant but at another public place. It is an indispensable condition to such refusal or modification that the clear and present danger test be the standard for the decision reached. If he is of the view that there is such an imminent and grave danger of a substantive evil, the applicants must be heard on the matter. Thereafter, his decision, whether favorable or adverse, must be transmitted to them at the earliest opportunity. Thus if so minded, they can have recourse to the proper judicial authority.

operated educational institution which shall be subject to the rules and regulations of said educational institution. Political meetings or rallies held during any election campaign period as provided for by law are not covered by this Act. Sec. 5. Application requirements.-- All applications for a permit shall comply with the following guidelines: (a) The applications shall be in writing and shall include the names of the leaders or organizers; the purpose of such public assembly; the date, time and duration thereof, and place or streets to be used for the intended activity; and the probable number of persons participating, the transport and the public address systems to be used. (b) The application shall incorporate the duty and responsibility of applicant under Section 8 hereof. (c) The application shall be filed with the office of the mayor of the city or municipality in whose jurisdiction the intended activity is to be held, at least five (5) working days before the scheduled public assembly. (d) Upon receipt of the application, which must be duly acknowledged in writing, the office of the city or municipal mayor shall cause the same to immediately be posted at a conspicuous place in the city or

municipal building. Sec. 6. Action to be taken on the application. – (a) It shall be the duty of the mayor or any official acting in his behalf to issue or grant a permit unless there is clear and convincing evidence that the public assembly will create a clear and present danger to public order, public safety, public convenience, public morals or public health. (b) The mayor or any official acting in his behalf shall act on the application within two (2) working days from the date the application was filed, failing which, the permit shall be deemed granted. Should for any reason the mayor or any official acting in his behalf refuse to accept the application for a permit, said application shall be posted by the applicant on the premises of the office of the mayor and shall be deemed to have been filed. (c) If the mayor is of the view that there is imminent and grave danger of a substantive evil warranting the denial or modification of the permit, he shall immediately inform the applicant who must be heard on the matter. (d) The action on the permit shall be in writing and served on the applica[nt] within twenty-four

hours. (e) If the mayor or any official acting in his behalf denies the application or modifies the terms thereof in his permit, the applicant may contest the decision in an appropriate court of law. (f) In case suit is brought before the Metropolitan Trial Court, the Municipal Trial Court, the Municipal Circuit Trial Court, the Regional Trial Court, or the Intermediate Appellate Court, its decisions may be appealed to the appropriate court within fortyeight (48) hours after receipt of the same. No appeal bond and record on appeal shall be required. A decision granting such permit or modifying it in terms satisfactory to the applicant shall be immediately executory. (g) All cases filed in court under this section shall be decided within twenty-four (24) hours from date of filing. Cases filed hereunder shall be immediately endorsed to the executive judge for disposition or, in his absence, to the next in rank. (h) In all cases, any decision may be appealed to the Supreme Court. (i) Telegraphic appeals to be followed by formal appeals are

The International Covenant on Civil and Political Rights hereby allowed.

Article 19. 1. Everyone shall have the right to hold opinions without interference.

It is very clear, therefore, that B.P. No. 880 is not an absolute ban of public assemblies but a restriction that simply regulates the time, place and manner of the assemblies. This was adverted to in Osmeña v. Comelec,20 where the Court referred to it as a "content-neutral" regulation of the time, place, and manner of holding public assemblies. 21 A fair and impartial reading of B.P. No. 880 thus readily shows that it refers to all kinds of public assemblies22 that would use public places. The reference to "lawful cause" does not make it content-based because assemblies really have to be for lawful causes, otherwise they would not be "peaceable" and entitled to protection. Neither are the words "opinion," "protesting" and "influencing" in the definition of public assembly content based, since they can refer to any subject. The words "petitioning the government for redress of grievances" come from the wording of the Constitution, so its use cannot be avoided. Finally, maximum tolerance is for the protection and benefit of all rallyists and is independent of the content of the expressions in the rally. Furthermore, the permit can only be denied on the ground of clear and present danger to public order, public safety, public convenience, public morals or public health. This is a recognized exception to the exercise of the right even under the Universal Declaration of Human Rights and the International Covenant on Civil and Political Rights, thus: Universal Declaration of Human Rights Article 20 1. Everyone has the right to freedom of peaceful assembly and association. xxx Article 29 1. Everyone has duties to the community in which alone the free and full development of his personality is possible. 2. In the exercise of his rights and freedoms, everyone shall be subject only to such limitations as are determined by law solely for the purpose of securing due recognition and respect for the rights and freedoms of others and of meeting the just requirements of morality, public order and the general welfare in a democratic society. 3. These rights and freedoms may in no case be exercised contrary to the purposes and principles of the United Nations.

2. Everyone shall have the right to freedom of expression; this right shall include freedom to seek, receive and impart information and ideas of all kinds, regardless of frontiers, either orally, in writing or in print, in the form of art, or through any other media of his choice. 3. The exercise of the rights provided for in paragraph 2 of this article carries with it special duties and responsibilities. It may therefore be subject to certain restrictions, but these shall only be such as are provided by law and are necessary: (a) For respect of the rights or reputations of others; (b) For the protection of national security or of public order (ordre public), or of public health or morals. Contrary to petitioner’s claim, the law is very clear and is nowhere vague in its provisions. "Public" does not have to be defined. Its ordinary meaning is well-known. Webster’s Dictionary defines it, thus:23 public, n, x x x 2a: an organized body of people x x x 3: a group of people distinguished by common interests or characteristics x x x. Not every expression of opinion is a public assembly. The law refers to "rally, demonstration, march, parade, procession or any other form of mass or concerted action held in a public place." So it does not cover any and all kinds of gatherings. Neither is the law overbroad. It regulates the exercise of the right to peaceful assembly and petition only to the extent needed to avoid a clear and present danger of the substantive evils Congress has the right to prevent. There is, likewise, no prior restraint, since the content of the speech is not relevant to the regulation. As to the delegation of powers to the mayor, the law provides a precise and sufficient standard – the clear and present danger test stated in Sec. 6(a). The reference to "imminent and grave danger of a substantive evil" in Sec. 6(c) substantially means the same thing and is not an inconsistent standard. As to whether respondent Mayor has the same power independently under Republic Act No. 716024 is thus not necessary to resolve in these proceedings, and was not pursued by the parties in their arguments.

Finally, for those who cannot wait, Section 15 of the law provides for an alternative forum through the creation of freedom parks where no prior permit is needed for peaceful assembly and petition at any time: Sec. 15. Freedom parks. – Every city and municipality in the country shall within six months after the effectivity of this Act establish or designate at least one suitable "freedom park" or mall in their respective jurisdictions which, as far as practicable, shall be centrally located within the poblacion where demonstrations and meetings may be held at any time without the need of any prior permit. In the cities and municipalities of Metropolitan Manila, the respective mayors shall establish the freedom parks within the period of six months from the effectivity this Act. This brings up the point, however, of compliance with this provision. The Solicitor General stated during the oral arguments that, to his knowledge, only Cebu City has declared a freedom park – Fuente Osmeña. That of Manila, the Sunken Gardens, has since been converted into a golf course, he added. If this is so, the degree of observance of B.P. No. 880’s mandate that every city and municipality set aside a freedom park within six months from its effectivity in 1985, or 20 years ago, would be pathetic and regrettable. The matter appears to have been taken for granted amidst the swell of freedom that rose from the peaceful revolution of 1986. Considering that the existence of such freedom parks is an essential part of the law’s system of regulation of the people’s exercise of their right to peacefully assemble and petition, the Court is constrained to rule that after thirty (30) days from the finality of this Decision, no prior permit may be required for the exercise of such right in any public park or plaza of a city or municipality until that city or municipality shall have complied with Section 15 of the law. For without such alternative forum, to deny the permit would in effect be to deny the right. Advance notices should, however, be given to the authorities to ensure proper coordination and orderly proceedings. The Court now comes to the matter of the CPR. As stated earlier, the Solicitor General has conceded that the use of the term should now be discontinued, since it does not mean anything other than the maximum tolerance policy set forth in B.P. No. 880. This is stated in the Affidavit of respondent Executive Secretary Eduardo Ermita, submitted by the Solicitor General, thus: 14. The truth of the matter is the policy of "calibrated preemptive response" is in consonance with the legal definition of "maximum tolerance" under Section 3 (c) of B.P. Blg. 880, which is the "highest degree of restraint that the military, police and other peacekeeping authorities shall observe during a public assembly or in the dispersal of the same." Unfortunately, however, the phrase "maximum tolerance" has acquired a different meaning over the years. Many have taken it to mean inaction on the part of law enforcers even in the face of mayhem and serious threats to public order. More so, other felt that they need not bother secure a permit when holding rallies thinking this would be "tolerated." Clearly, the popular connotation of "maximum tolerance" has departed from its real essence under B.P. Blg. 880.

15. It should be emphasized that the policy of maximum tolerance is provided under the same law which requires all pubic assemblies to have a permit, which allows the dispersal of rallies without a permit, and which recognizes certain instances when water cannons may be used. This could only mean that "maximum tolerance" is not in conflict with a "no permit, no rally policy" or with the dispersal and use of water cannons under certain circumstances for indeed, the maximum amount of tolerance required is dependent on how peaceful or unruly a mass action is. Our law enforcers should calibrate their response based on the circumstances on the ground with the view to preempting the outbreak of violence. 16. Thus, when I stated that calibrated preemptive response is being enforced in lieu of maximum tolerance I clearly was not referring to its legal definition but to the distorted and much abused definition that it has now acquired. I only wanted to disabuse the minds of the public from the notion that law enforcers would shirk their responsibility of keeping the peace even when confronted with dangerously threatening behavior. I wanted to send a message that we would no longer be lax in enforcing the law but would henceforth follow it to the letter. Thus I said, "we have instructed the PNP as well as the local government units to strictly enforce a no permit, no rally policy . . . arrest all persons violating the laws of the land . . . unlawful mass actions will be dispersed." None of these is at loggerheads with the letter and spirit of Batas Pambansa Blg. 880. It is thus absurd for complainants to even claim that I ordered my co-respondents to violate any law.25 At any rate, the Court rules that in view of the maximum tolerance mandated by B.P. No. 880, CPR serves no valid purpose if it means the same thing as maximum tolerance and is illegal if it means something else. Accordingly, what is to be followed is and should be that mandated by the law itself, namely, maximum tolerance, which specifically means the following: Sec. 3. Definition of terms. – For purposes of this Act: xxx (c) "Maximum tolerance" means the highest degree of restraint that the military, police and other peace keeping authorities shall observe during a public assembly or in the dispersal of the same. xxx Sec. 9. Non-interference by law enforcement authorities. – Law enforcement agencies shall not interfere with the holding of a public assembly. However, to adequately ensure public safety, a law enforcement contingent under the command of a responsible police officer may be detailed and stationed in a place at least one hundred (100) meters away from the area of activity ready to maintain peace and order at all times. Sec. 10. Police assistance when requested. – It shall be imperative for law enforcement agencies, when their assistance is requested by the leaders or organizers, to perform their duties always mindful that their responsibility to provide proper protection to those exercising their right peaceably to assemble and the freedom of expression is primordial.1avvphil.net Towards this end, law enforcement agencies shall observe the following guidelines:

(a) Members of the law enforcement contingent who deal with the demonstrators shall be in complete uniform with their nameplates and units to which they belong displayed prominently on the front and dorsal parts of their uniform and must observe the policy of "maximum tolerance" as herein defined; (b) The members of the law enforcement contingent shall not carry any kind of firearms but may be equipped with baton or riot sticks, shields, crash helmets with visor, gas masks, boots or ankle high shoes with shin guards; (c) Tear gas, smoke grenades, water cannons, or any similar anti-riot device shall not be used unless the public assembly is attended by actual violence or serious threats of violence, or deliberate destruction of property. Sec. 11. Dispersal of public assembly with permit. – No public assembly with a permit shall be dispersed. However, when an assembly becomes violent, the police may disperse such public assembly as follows: (a) At the first sign of impending violence, the ranking officer of the law enforcement contingent shall call the attention of the leaders of the public assembly and ask the latter to prevent any possible disturbance; (b) If actual violence starts to a point where rocks or other harmful objects from the participants are thrown at the police or at the non-participants, or at any property causing damage to such property, the ranking officer of the law enforcement contingent shall audibly warn the participants that if the disturbance persists, the public assembly will be dispersed; (c) If the violence or disturbance prevailing as stated in the preceding subparagraph should not stop or abate, the ranking officer of the law enforcement contingent shall audibly issue a warning to the participants of the public assembly, and after allowing a reasonable period of time to lapse, shall immediately order it to forthwith disperse; (d) No arrest of any leader, organizer or participant shall also be made during the public assembly unless he violates during the assembly a law, statute, ordinance or any provision of this Act. Such arrest shall be governed by Article 125 of the Revised Penal Code, as amended; (d) Isolated acts or incidents of disorder or breach of the peace during the public assembly shall not constitute a ground for dispersal. xxx Sec. 12. Dispersal of public assembly without permit. – When the public assembly is held without a permit where a permit is required, the said public assembly may be peacefully dispersed. Sec. 13. Prohibited acts. – The following shall constitute violations of the Act:

(e) Obstructing, impeding, disrupting or otherwise denying the exercise of the right to peaceful assembly; (f) The unnecessary firing of firearms by a member of any law enforcement agency or any person to disperse the public assembly; (g) Acts described hereunder if committed within one hundred (100) meters from the area of activity of the public assembly or on the occasion thereof: xxx 4. the carrying of firearms by members of the law enforcement unit; 5. the interfering with or intentionally disturbing the holding of a public assembly by the use of a motor vehicle, its horns and loud sound systems. Furthermore, there is need to address the situation adverted to by petitioners where mayors do not act on applications for a permit and when the police demand a permit and the rallyists could not produce one, the rally is immediately dispersed. In such a situation, as a necessary consequence and part of maximum tolerance, rallyists who can show the police an application duly filed on a given date can, after two days from said date, rally in accordance with their application without the need to show a permit, the grant of the permit being then presumed under the law, and it will be the burden of the authorities to show that there has been a denial of the application, in which case the rally may be peacefully dispersed following the procedure of maximum tolerance prescribed by the law. In sum, this Court reiterates its basic policy of upholding the fundamental rights of our people, especially freedom of expression and freedom of assembly. In several policy addresses, Chief Justice Artemio V. Panganiban has repeatedly vowed to uphold the liberty of our people and to nurture their prosperity. He said that "in cases involving liberty, the scales of justice should weigh heavily against the government and in favor of the poor, the oppressed, the marginalized, the dispossessed and the weak. Indeed, laws and actions that restrict fundamental rights come to the courts with a heavy presumption against their validity. These laws and actions are subjected to heightenedscrutiny."26 For this reason, the so-called calibrated preemptive response policy has no place in our legal firmament and must be struck down as a darkness that shrouds freedom. It merely confuses our people and is used by some police agents to justify abuses. On the other hand, B.P. No. 880 cannot be condemned as unconstitutional; it does not curtail or unduly restrict freedoms; it merely regulates the use of public places as to the time, place and manner of assemblies. Far from being insidious, "maximum tolerance" is for the benefit of rallyists, not the government. The delegation to the mayors of the power to issue rally "permits" is valid because it is subject to the constitutionallysound "clear and present danger" standard. In this Decision, the Court goes even one step further in safeguarding liberty by giving local governments a deadline of 30 days within which to designate specific freedom parks as provided

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