1

CONSTI2_3RD WAVE FULL TEXT

G.R. No. 93833 September 28, 1995
SOCORRO D. RAMIREZ, petitioner,
vs.
HONORABLE COURT OF APPEALS, and ESTER S. GARCIA, respondents.
KAPUNAN, J.:
A civil case damages was filed by petitioner Socorro D. Ramirez in the Regional
Trial Court of Quezon City alleging that the private respondent, Ester S. Garcia,
in a confrontation in the latter's office, allegedly vexed, insulted and humiliated
her in a "hostile and furious mood" and in a manner offensive to petitioner's
dignity and personality," contrary to morals, good customs and public policy." 1
In support of her claim, petitioner produced a verbatim transcript of the event and
sought moral damages, attorney's fees and other expenses of litigation in the
amount of P610,000.00, in addition to costs, interests and other reliefs awardable
at the trial court's discretion. The transcript on which the civil case was based
was culled from a tape recording of the confrontation made by petitioner. 2 The
transcript reads as follows:
Plaintiff Soccoro D. Ramirez (Chuchi) Good Afternoon M'am.
Defendant Ester S. Garcia (ESG) Ano ba ang nangyari sa 'yo, nakalimot ka na
kung paano ka napunta rito, porke member ka na, magsumbong ka kung ano
ang gagawin ko sa 'yo.
CHUCHI Kasi, naka duty ako noon.
ESG Tapos iniwan no. (Sic)
CHUCHI Hindi m'am, pero ilan beses na nila akong binalikan, sabing ganoon

ESG Ito and (sic) masasabi ko sa 'yo, ayaw kung (sic) mag explain ka, kasi
hanggang 10:00 p.m., kinabukasan hindi ka na pumasok. Ngayon ako ang
babalik sa 'yo, nag-aaply ka sa States, nag-aaply ka sa review mo, kung
kakailanganin ang certification mo, kalimutan mo na kasi hindi ka sa akin
makakahingi.
CHUCHI Hindi M'am. Kasi ang ano ko talaga noon i-cocontinue ko up to 10:00
p.m.
ESG Bastos ka, nakalimutan mo na kung paano ka pumasok dito sa hotel.
Magsumbong ka sa Union kung gusto mo. Nakalimutan mo na kung paano ka
nakapasok dito "Do you think that on your own makakapasok ka kung hindi ako.
Panunumbyoyan na kita (Sinusumbatan na kita).
CHUCHI Itutuloy ko na M'am sana ang duty ko.
ESG Kaso ilang beses na akong binabalikan doon ng mga no (sic) ko.
ESG Nakalimutan mo na ba kung paano ka pumasok sa hotel, kung on your
own merit alam ko naman kung gaano ka "ka bobo" mo. Marami ang nag-aaply
alam kong hindi ka papasa.
CHUCHI Kumuha kami ng exam noon.

ESG Oo, pero hindi ka papasa.

CHUCHI Eh, bakit ako ang nakuha ni Dr. Tamayo
ESG Kukunin ka kasi ako.
CHUCHI Eh, di sana
ESG Huwag mong ipagmalaki na may utak ka kasi wala kang utak. Akala mo ba
makukuha ka dito kung hindi ako.
CHUCHI Mag-eexplain ako.
ESG Huwag na, hindi ako mag-papa-explain sa 'yo, makaalala ka kung paano ka
puma-rito. "Putang-ina" sasabi-sabihin mo kamag-anak ng nanay at tatay mo ang mga
magulang ko.
ESG Wala na akong pakialam, dahil nandito ka sa loob, nasa labas ka puwede ka ng
hindi pumasok, okey yan nasaloob ka umalis ka doon.
CHUCHI Kasi M'am, binbalikan ako ng mga taga Union.
ESG Nandiyan na rin ako, pero huwag mong kalimutan na hindi ka makakapasok
kung hindi ako. Kung hindi mo kinikilala yan okey lang sa akin, dahil tapos ka na.
CHUCHI Ina-ano ko m'am na utang na loob.
ESG Huwag na lang, hindi mo utang na loob, kasi kung baga sa no, nilapastangan
mo ako.
CHUCHI Paano kita nilapastanganan?
ESG Mabuti pa lumabas ka na. Hindi na ako makikipagusap sa 'yo. Lumabas ka na.
Magsumbong ka. 3
As a result of petitioner's recording of the event and alleging that the said act of secretly
taping the confrontation was illegal, private respondent filed a criminal case before the
Regional Trial Court of Pasay City for violation of Republic Act 4200, entitled "An Act to
prohibit and penalize wire tapping and other related violations of private communication,
and other purposes." An information charging petitioner of violation of the said Act, dated
October 6, 1988 is quoted herewith:
INFORMATION
The Undersigned Assistant City Fiscal Accusses Socorro D. Ramirez of Violation of
Republic Act No. 4200, committed as follows:
That on or about the 22nd day of February, 1988, in Pasay City Metro Manila,
Philippines, and within the jurisdiction of this honorable court, the above-named accused,
Socorro D. Ramirez not being authorized by Ester S. Garcia to record the latter's
conversation with said accused, did then and there willfully, unlawfully and feloniously,
with the use of a tape recorder secretly record the said conversation and thereafter
communicate in writing the contents of the said recording to other person.
Contrary to law.
Pasay City, Metro Manila, September 16, 1988.
MARIANO M. CUNETA
Asst. City Fiscal
Upon arraignment, in lieu of a plea, petitioner filed a Motion to Quash the Information on
the ground that the facts charged do not constitute an offense, particularly a violation of
R.A. 4200. In an order May 3, 1989, the trial court granted the Motion to Quash, agreeing

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with petitioner that 1) the facts charged do not constitute an offense under R.A.
4200; and that 2) the violation punished by R.A. 4200 refers to a the taping of a
communication by a personother than a participant to the communication. 4
From the trial court's Order, the private respondent filed a Petition for Review
on Certiorari with this Court, which forthwith referred the case to the Court of
Appeals in a Resolution (by the First Division) of June 19, 1989.
On February 9, 1990, respondent Court of Appeals promulgated its assailed
Decision declaring the trial court's order of May 3, 1989 null and void, and
holding that:
[T]he allegations sufficiently constitute an offense punishable under Section 1 of
R.A. 4200. In thus quashing the information based on the ground that the facts
alleged do not constitute an offense, the respondent judge acted in grave abuse
of discretion correctible by certiorari. 5
Consequently, on February 21, 1990, petitioner filed a Motion for
Reconsideration which respondent Court of Appeals denied in its
Resolution 6 dated June 19, 1990. Hence, the instant petition.
Petitioner vigorously argues, as her "main and principal issue" 7 that the
applicable provision of Republic Act 4200 does not apply to the taping of a
private conversation by one of the parties to the conversation. She contends that
the provision merely refers to the unauthorized taping of a private conversation
by a party other than those involved in the communication.8 In relation to this,
petitioner avers that the substance or content of the conversation must be
alleged in the Information, otherwise the facts charged would not constitute a
violation of R.A. 4200. 9 Finally, petitioner agues that R.A. 4200 penalizes the
taping of a "private communication," not a "private conversation" and that
consequently, her act of secretly taping her conversation with private respondent
was not illegal under the said act. 10
We disagree.
First, legislative intent is determined principally from the language of a statute.
Where the language of a statute is clear and unambiguous, the law is applied
according to its express terms, and interpretation would be resorted to only
where a literal interpretation would be either impossible 11 or absurb or would
lead to an injustice. 12
Section 1 of R.A. 4200 entitled, " An Act to Prohibit and Penalized Wire Tapping
and Other Related Violations of Private Communication and Other Purposes,"
provides:
Sec. 1. It shall be unlawfull for any person, not being authorized by all the parties
to any private communication or spoken word, to tap any wire or cable, or by
using any other device or arrangement, to secretly overhear, intercept, or record
such communication or spoken word by using a device commonly known as a
dictaphone or dictagraph or detectaphone or walkie-talkie or tape recorder, or
however otherwise described.
The aforestated provision clearly and unequivocally makes it illegal for any
person, not authorized by all the parties to any private communication to secretly

record such communication by means of a tape recorder. The law makes no distinction
as to whether the party sought to be penalized by the statute ought to be a party other
than or different from those involved in the private communication. The statute's intent to
penalize all persons unauthorized to make such recording is underscored by the use of
the qualifier "any". Consequently, as respondent Court of Appeals correctly concluded,
"even a (person) privy to a communication who records his private conversation with
another without the knowledge of the latter (will) qualify as a violator" 13 under this
provision of R.A. 4200.
A perusal of the Senate Congressional Records, moreover, supports the respondent
court's conclusion that in enacting R.A. 4200 our lawmakers indeed contemplated to
make illegal, unauthorized tape recording of private conversations or communications
taken either by the parties themselves or by third persons. Thus:
xxx xxx xxx
Senator Taada: That qualified only "overhear".
Senator Padilla: So that when it is intercepted or recorded, the element of secrecy would
not appear to be material. Now, suppose, Your Honor, the recording is not made by all
the parties but by some parties and involved not criminal cases that would be mentioned
under section 3 but would cover, for example civil cases or special proceedings whereby
a recording is made not necessarily by all the parties but perhaps by some in an effort to
show the intent of the parties because the actuation of the parties prior, simultaneous
even subsequent to the contract or the act may be indicative of their intention. Suppose
there is such a recording, would you say, Your Honor, that the intention is to cover it
within the purview of this bill or outside?
Senator Taada: That is covered by the purview of this bill, Your Honor.
Senator Padilla: Even if the record should be used not in the prosecution of offense but
as evidence to be used in Civil Cases or special proceedings?
Senator Taada: That is right. This is a complete ban on tape recorded conversations
taken without the authorization of all the parties.
Senator Padilla: Now, would that be reasonable, your Honor?
Senator Taada: I believe it is reasonable because it is not sporting to record the
observation of one without his knowing it and then using it against him. It is not fair, it is
not sportsmanlike. If the purpose; Your honor, is to record the intention of the parties. I
believe that all the parties should know that the observations are being recorded.
Senator Padilla: This might reduce the utility of recorders.
Senator Taada: Well no. For example, I was to say that in meetings of the board of
directors where a tape recording is taken, there is no objection to this if all the parties
know. It is but fair that the people whose remarks and observations are being made
should know that the observations are being recorded.
Senator Padilla: Now, I can understand.
Senator Taada: That is why when we take statements of persons, we say: "Please be
informed that whatever you say here may be used against you." That is fairness and that
is what we demand. Now, in spite of that warning, he makes damaging statements
against his own interest, well, he cannot complain any more. But if you are going to take

3
a recording of the observations and remarks of a person without him knowing
that it is being taped or recorded, without him knowing that what is being
recorded may be used against him, I think it is unfair.
xxx xxx xxx
(Congression Record, Vol. III, No. 31, p. 584, March 12, 1964)
Senator Diokno: Do you understand, Mr. Senator, that under Section 1 of the bill
as now worded, if a party secretly records a public speech, he would be
penalized under Section 1? Because the speech is public, but the recording is
done secretly.
Senator Taada: Well, that particular aspect is not contemplated by the bill. It is
the communication between one person and another person not between a
speaker and a public.
xxx xxx xxx
(Congressional Record, Vol. III, No. 33, p. 626, March 12, 1964)
xxx xxx xxx
The unambiguity of the express words of the provision, taken together with the
above-quoted deliberations from the Congressional Record, therefore plainly
supports the view held by the respondent court that the provision seeks to
penalize even those privy to the private communications. Where the law makes
no distinctions, one does not distinguish.
Second, the nature of the conversations is immaterial to a violation of the statute.
The substance of the same need not be specifically alleged in the information.
What R.A. 4200 penalizes are the acts of secretly overhearing, intercepting or
recording private communications by means of the devices enumerated therein.
The mere allegation that an individual made a secret recording of a private
communication by means of a tape recorder would suffice to constitute an
offense under Section 1 of R.A. 4200. As the Solicitor General pointed out in his
COMMENT before the respondent court: "Nowhere (in the said law) is it required
that before one can be regarded as a violator, the nature of the conversation, as
well as its communication to a third person should be professed."14
Finally, petitioner's contention that the phrase "private communication" in Section
1 of R.A. 4200 does not include "private conversations" narrows the ordinary
meaning of the word "communication" to a point of absurdity. The word
communicate comes from the latin word communicare, meaning "to share or to
impart." In its ordinary signification, communication connotes the act of sharing or
imparting signification, communication connotes the act of sharing or imparting,
as in a conversation, 15 or signifies the "process by which meanings or thoughts
are shared between individuals through a common system of symbols (as
language signs or gestures)" 16 These definitions are broad enough to include
verbal or non-verbal, written or expressive communications of "meanings or
thoughts" which are likely to include the emotionally-charged exchange, on
February 22, 1988, between petitioner and private respondent, in the privacy of
the latter's office. Any doubts about the legislative body's meaning of the phrase
"private communication" are, furthermore, put to rest by the fact that the terms

"conversation" and "communication" were interchangeably used by Senator Taada in

his Explanatory Note to the bill quoted below:
It has been said that innocent people have nothing to fear from their conversations being
overheard. But this statement ignores the usual nature of conversations as well the
undeniable fact that most, if not all, civilized people have some aspects of their lives they
do not wish to expose. Freeconversations are often characterized by exaggerations,
obscenity, agreeable falsehoods, and the expression of anti-social desires of views not
intended to be taken seriously. The right to the privacy of communication, among others,
has expressly been assured by our Constitution. Needless to state here, the framers of
our Constitution must have recognized the nature of conversations between individuals
and the significance of man's spiritual nature, of his feelings and of his intellect. They
must have known that part of the pleasures and satisfactions of life are to be found in the
unaudited, and free exchange of communication between individuals free from every
unjustifiable intrusion by whatever means. 17
In Gaanan vs. Intermediate Appellate Court, 18 a case which dealt with the issue of
telephone wiretapping, we held that the use of a telephone extension for the purpose of
overhearing a private conversation without authorization did not violate R.A. 4200
because a telephone extension devise was neither among those "device(s) or
arrangement(s)" enumerated therein, 19 following the principle that "penal statutes must
be construed strictly in favor of the accused." 20 The instant case turns on a different
note, because the applicable facts and circumstances pointing to a violation of R.A. 4200
suffer from no ambiguity, and the statute itself explicitly mentions the unauthorized
"recording" of private communications with the use of tape-recorders as among the acts
punishable.
WHEREFORE, because the law, as applied to the case at bench is clear and
unambiguous and leaves us with no discretion, the instant petition is hereby DENIED.
The decision appealed from is AFFIRMED. Costs against petitioner.
SO ORDERED.
SECOND DIVISION
[G.R. No. 107383. February 20, 1996.]
CECILIA ZULUETA, petitioner, vs. COURT OF APPEALS and ALFREDO
MARTIN, respondents.
DECISION
MENDOZA, J.:
This is a petition to review the decision of the Court of Appeals, affirming the decision of
the Regional Trial Court of Manila (Branch X) which ordered petitioner to return
documents and papers taken by her from private respondents clinic without the latters
knowledge and consent.
The facts are as follows:
Petitioner Cecilia Zulueta is the wife of private respondent Alfredo Martin. On March 26,
1982, petitioner entered the clinic of her husband, a doctor of medicine, and in the

4
presence of her mother, a driver and private respondents secretary, forcibly
opened the drawers and cabinet in her husbands clinic and took 157 documents
consisting of private correspondence between Dr. Martin and his alleged
paramours, greetings cards, cancelled checks, diaries, Dr. Martins passport, and
photographs. The documents and papers were seized for use in evidence in a
case for legal separation and for disqualification from the practice of medicine
which petitioner had filed against her husband.
Dr. Martin brought this action below for recovery of the documents and papers
and for damages against petitioner. The case was filed with the Regional Trial
Court of Manila, Branch X, which, after trial, rendered judgment for private
respondent, Dr. Alfredo Martin, declaring him the capital/exclusive owner of the
properties described in paragraph 3 of plaintiffs Complaint or those further
described in the Motion to Return and Suppress and ordering Cecilia Zulueta
and any person acting in her behalf to immediately return the properties to Dr.
Martin and to pay him P5,000.00, as nominal damages; P5,000.00, as moral
damages and attorneys fees; and to pay the costs of the suit. The writ of
preliminary injunction earlier issued was made final and petitioner Cecilia Zulueta
and her attorneys and representatives were enjoined from using or
submitting/admitting as evidence the documents and papers in question. On
appeal, the Court of Appeals affirmed the decision of the Regional Trial Court.
Hence this petition.
There is no question that the documents and papers in question belong to private
respondent, Dr. Alfredo Martin, and that they were taken by his wife, the herein
petitioner, without his knowledge and consent. For that reason, the trial court
declared the documents and papers to be properties of private respondent,
ordered petitioner to return them to private respondent and enjoined her from
using them in evidence. In appealing from the decision of the Court of Appeals
affirming the trial courts decision, petitioners only ground is that in Alfredo Martin
v. Alfonso Felix, Jr.,1 this Court ruled that the documents and papers (marked as
Annexes A-i to J-7 of respondents comment in that case) were admissible in
evidence and, therefore, their use by petitioners attorney, Alfonso Felix, Jr., did
not constitute malpractice or gross misconduct. For this reason it is contended
that the Court of Appeals erred in affirming the decision of the trial court instead
of dismissing private respondents complaint.
Petitioners contention has no merit. The case against Atty. Felix, Jr. was for
disbarment. Among other things, private respondent, Dr. Alfredo Martin, as
complainant in that case, charged that in using the documents in evidence, Atty.
Felix, Jr. committed malpractice or gross misconduct because of the injunctive
order of the trial court. In dismissing the complaint against Atty. Felix, Jr., this
Court took note of the following defense of Atty. Felix, Jr. which it found to be
impressed with merit:2
On the alleged malpractice or gross misconduct of respondent [Alfonso Felix, Jr.],
he maintains that:
xxx
xxx
xxx

4. When respondent refiled Cecilias case for legal separation before the Pasig Regional
Trial Court, there was admittedly an order of the Manila Regional Trial Court prohibiting
Cecilia from using the documents Annex A-I to J-7. On September 6, 1983, however
having appealed the said order to this Court on a petition for certiorari, this Court issued
a restraining order on aforesaid date which order temporarily set aside the order of the
trial court. Hence, during the enforceability of this Courts order, respondents request for
petitioner to admit the genuineness and authenticity of the subject annexes cannot be
looked upon as malpractice. Notably, petitioner Dr. Martin finally admitted the truth and
authenticity of the questioned annexes. At that point in time, would it have been
malpractice for respondent to use petitioners admission as evidence against him in the
legal separation case pending in the Regional Trial Court of Makati? Respondent submits
it is- not malpractice.
Significantly, petitioners admission was done not thru his counsel but by Dr. Martin
himself under oath. Such verified admission constitutes an affidavit, and, therefore,
receivable in evidence against him. Petitioner became bound by his admission. For
Cecilia to avail herself of her husbands admission and use the same in her action for
legal separation cannot be treated as malpractice.
Thus, the acquittal of Atty. Felix, Jr. in the administrative case amounts to no more than a
declaration that his use of the documents and papers for the purpose of securing Dr.
Martins admission as to their genuiness and authenticity did not constitute a violation of
the injunctive order of the trial court. By no means does the decision in that case
establish the admissibility of the documents and papers in question.
It cannot be overemphasized that if Atty. Felix, Jr. was acquitted of the charge of violating
the writ of preliminary injunction issued by the trial court, it was only because, at the time
he used the documents and papers, enforcement of the order of the trial court was
temporarily restrained by this Court. The TRO issued by this Court was eventually lifted
as the petition for certiorari filed by petitioner against the trial courts order was dismissed
and, therefore, the prohibition against the further use of the documents and papers
became effective again.
Indeed the documents and papers in question are inadmissible in evidence. The
constitutional injunction declaring the privacy of communication and correspondence [to
be] 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.

5
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.
G.R. No. L-69809 October 16, 1986
EDGARDO A. GAANAN, petitioner,
vs.
INTERMEDIATE APPELLATE COURT and PEOPLE OF THE
PHILIPPINES, respondents.
GUTIERREZ, JR., J.:
This petition for certiorari asks for an interpretation of Republic Act (RA) No.
4200, otherwise known as the Anti-Wiretapping Act, on the issue of whether or
not an extension telephone is among the prohibited devices in Section 1 of the
Act, such that its use to overhear a private conversation would constitute
unlawful interception of communications between the two parties using a
telephone line.
The facts presented by the People and narrated in the respondent court's
decision are not disputed by the petitioner.
In the morning of October 22, 1975, complainant Atty. Tito Pintor and his client
Manuel Montebon were in the living room of complainant's residence discussing
the terms for the withdrawal of the complaint for direct assault which they filed
with the Office of the City Fiscal of Cebu against Leonardo Laconico. After they
had decided on the proposed conditions, complainant made a telephone call to
Laconico (tsn, August 26, 1981, pp. 3-5).
That same morning, Laconico telephoned appellant, who is a lawyer, to come to
his office and advise him on the settlement of the direct assault case because his
regular lawyer, Atty. Leon Gonzaga, went on a business trip. According to the
request, appellant went to the office of Laconico where he was briefed about the
problem. (Exhibit 'D', tsn, April 22, 1982, pp. 4-5).
When complainant called up, Laconico requested appellant to secretly listen to
the telephone conversation through a telephone extension so as to hear
personally the proposed conditions for the settlement. Appellant heard
complainant enumerate the following conditions for withdrawal of the complaint
for direct assault.

(a) the P5,000.00 was no longer acceptable, and that the figure had been increased to
P8,000.00. A breakdown of the P8,000.00 had been made together with other demands,
to wit: (a) P5,000.00 no longer for the teacher Manuel Montebon, but for Atty. Pintor
himself in persuading his client to withdraw the case for Direct Assault against Atty.
Laconico before the Cebu City Fiscal's Office;
(b) Public apology to be made by Atty. Laconico before the students of Don Bosco
Technical High School;
(c) Pl,000.00 to be given to the Don Bosco Faculty club;
(d) transfer of son of Atty. Laconico to another school or another section of Don Bosco
Technical High School;
(e) Affidavit of desistance by Atty. Laconico on the Maltreatment case earlier filed against
Manuel Montebon at the Cebu City Fiscal's Office, whereas Montebon's affidavit of
desistance on the Direct Assault Case against Atty. Laconico to be filed later;
(f) Allow Manuel Montebon to continue teaching at the Don Bosco Technical School;
(g) Not to divulge the truth about the settlement of the Direct Assault Case to the mass
media;
(h) P2,000.00 attorney s fees for Atty. Pintor. (tsn, August 26, 1981, pp. 47-48).
Twenty minutes later, complainant called up again to ask Laconico if he was agreeable to
the conditions. Laconico answered 'Yes'. Complainant then told Laconico to wait for
instructions on where to deliver the money. (tsn, March 10, 1983, pp. 2-12).
Complainant called up again and instructed Laconico to give the money to his wife at the
office of the then Department of Public Highways. Laconico who earlier alerted his friend
Colonel Zulueta of the Criminal Investigation Service of the Philippine Constabulary,
insisted that complainant himself should receive the money. (tsn, March 10, 1982, pp.
26-33). When he received the money at the Igloo Restaurant, complainant was arrested
by agents of the Philippine Constabulary.
Appellant executed on the following day an affidavit stating that he heard complainant
demand P8,000.00 for the withdrawal of the case for direct assault. Laconico attached
the affidavit of appellant to the complainant for robbery/extortion which he filed against
complainant. Since appellant listened to the telephone conversation without
complainant's consent, complainant charged appellant and Laconico with violation of the
Anti-Wiretapping Act.
After trial on the merits, the lower court, in a decision dated November 22, 1982, found
both Gaanan and Laconico guilty of violating Section 1 of Republic Act No. 4200. The
two were each sentenced to one (1) year imprisonment with costs. Not satisfied with the
decision, the petitioner appealed to the appellate court.
On August 16, 1984, the Intermediate Appellate Court affirmed the decision of the trial
court, holding that the communication between the complainant and accused Laconico
was private in nature and, therefore, covered by Rep. Act No. 4200; that the petitioner
overheard such communication without the knowledge and consent of the complainant;
and that the extension telephone which was used by the petitioner to overhear the
telephone conversation between complainant and Laconico is covered in the term
"device' as provided in Rep. Act No. 4200.

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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

7
thereof cannot be considered as "tapping" the wire or cable of a telephone line.
The telephone extension in this case was not installed for that purpose. It just
happened to be there for ordinary office use. It is a rule in statutory construction
that in order to determine the true intent of the legislature, the particular clauses
and phrases of the statute should not be taken as detached and isolated
expressions, but the whole and every part thereof must be considered in fixing
the meaning of any of its parts. (see Commissioner of Customs v. Esso
Estandard Eastern, Inc., 66 SCRA 113,120).
In the case of Empire Insurance Com any v. Rufino (90 SCRA 437, 443-444), we
ruled:
Likewise, Article 1372 of the Civil Code stipulates that 'however general the terms
of a contract may be, they shall not be understood to comprehend things that are
distinct and cases that are different from those upon which the parties intended
to agree.' Similarly, Article 1374 of the same Code provides that 'the various
stipulations of a contract shall be interpreted together, attributing to the doubtful
ones that sense which may result from all of them taken jointly.
xxx xxx xxx
Consequently, the phrase 'all liabilities or obligations of the decedent' used in
paragraph 5(c) and 7(d) should be then restricted only to those listed in the
Inventory and should not be construed as to comprehend all other obligations of
the decedent. The rule that 'particularization followed by a general expression will
ordinarily be restricted to the former' is based on the fact in human experience
that usually the minds of parties are addressed specially to the particularization,
and that the generalities, though broad enough to comprehend other fields if they
stood alone, are used in contemplation of that upon which the minds of the
parties are centered. (Hoffman v. Eastern Wisconsin R., etc., Co., 134 Wis. 603,
607, 115 NW 383, cited in Francisco, Revised Rules of Court (Evidence), 1973
ed, pp. 180-181).
Hence, the phrase "device or arrangement" in Section 1 of RA No. 4200,
although not exclusive to that enumerated therein, should be construed to
comprehend instruments of the same or similar nature, that is, instruments the
use of which would be tantamount to tapping the main line of a telephone. It
refers to instruments whose installation or presence cannot be presumed by the
party or parties being overheard because, by their very nature, they are not of
common usage and their purpose is precisely for tapping, intercepting or
recording a telephone conversation.
An extension telephone is an instrument which is very common especially now
when the extended unit does not have to be connected by wire to the main
telephone but can be moved from place ' to place within a radius of a kilometer or
more. A person should safely presume that the party he is calling at the other end
of the line probably has an extension telephone and he runs the risk of a third
party listening as in the case of a party line or a telephone unit which shares its
line with another. As was held in the case of Rathbun v. United States (355, U.S.
107, 2 L Ed 2d 137-138):

Common experience tells us that a call to a particular telephone number may cause the
bell to ring in more than one ordinarily used instrument. Each party to a telephone
conversation takes the risk that the other party may have an extension telephone and
may allow another to overhear the conversation. When such takes place there has been
no violation of any privacy of which the parties may complain. Consequently, one
element of 605, interception, has not occurred.
In the same case, the Court further ruled that the conduct of the party would differ in no
way if instead of repeating the message he held out his hand-set so that another could
hear out of it and that there is no distinction between that sort of action and permitting an
outsider to use an extension telephone for the same purpose.
Furthermore, it is a general rule that penal statutes must be construed strictly in favor of
the accused. Thus, in case of doubt as in the case at bar, on whether or not an extension
telephone is included in the phrase "device or arrangement", the penal statute must be
construed as not including an extension telephone. In the case of People v. Purisima, 86
SCRA 542, 562, we explained the rationale behind the rule:
American jurisprudence sets down the reason for this rule to be the tenderness of the
law of the rights of individuals; the object is to establish a certain rule by conformity to
which mankind would be safe, and the discretion of the court limited. (United States v.
Harris, 177 US 305, 44 L Ed 780, 20 S Ct 609; Braffith v. Virgin Islands (CA3) 26 F2d
646; Caudill v. State, 224 Ind 531, 69 NE2d; Jennings v. Commonwealth, 109 VA 821,63
SE 1080, all cited in 73 Am Jur 2d 452). The purpose is not to enable a guilty person to
escape punishment through a technicality but to provide a precise definition of forbidden
acts." (State v. Zazzaro, 20 A 2d 737, quoted in Martin's Handbook on Statutory
Construction, Rev. Ed. pp. 183-184).
In the same case of Purisima, we also ruled that on the construction or interpretation of a
legislative measure, the primary rule is to search for and determine the intent and spirit of
the law. A perusal of the Senate Congressional Records will show that not only did our
lawmakers not contemplate the inclusion of an extension telephone as a prohibited
device or arrangement" but of greater importance, they were more concerned with
penalizing the act of recording than the act of merely listening to a telephone
conversation.
xxx xxx xxx
Senator Taada. Another possible objection to that is entrapment which is certainly
objectionable. It is made possible by special amendment which Your Honor may
introduce.
Senator Diokno.Your Honor, I would feel that entrapment would be less possible with the
amendment than without it, because with the amendment the evidence of entrapment
would only consist of government testimony as against the testimony of the defendant.
With this amendment, they would have the right, and the government officials and the
person in fact would have the right to tape record their conversation.
Senator Taada. In case of entrapment, it would be the government.
Senator Diokno. In the same way, under this provision, neither party could record and,
therefore, the court would be limited to saying: "Okay, who is more credible, the police

8
officers or the defendant?" In these cases, as experienced lawyers, we know that
the Court go with the peace offices.
(Congressional Record, Vol. 111, No. 33, p. 628, March 12, 1964).
xxx xxx xxx
Senator Diokno. The point I have in mind is that under these conditions, with an
agent outside listening in, he could falsify the testimony and there is no way of
checking it. But if you allow him to record or make a recording in any form of
what is happening, then the chances of falsifying the evidence is not very much.
Senator Taada. Your Honor, this bill is not intended to prevent the presentation
of false testimony. If we could devise a way by which we could prevent the
presentation of false testimony, it would be wonderful. But what this bill intends to
prohibit is the use of tape record and other electronic devices to intercept private
conversations which later on will be used in court.
(Congressional Record, Vol. III, No. 33, March 12, 1964, p. 629).
It can be readily seen that our lawmakers intended to discourage, through
punishment, persons such as government authorities or representatives of
organized groups from installing devices in order to gather evidence for use in
court or to intimidate, blackmail or gain some unwarranted advantage over the
telephone users. Consequently, the mere act of listening, in order to be
punishable must strictly be with the use of the enumerated devices in RA No.
4200 or others of similar nature. We are of the view that an extension telephone
is not among such devices or arrangements.
WHEREFORE, the petition is GRANTED. The decision of the then Intermediate
Appellate Court dated August 16, 1984 is ANNULLED and SET ASIDE. The
petitioner is hereby ACQUITTED of the crime of violation of Rep. Act No. 4200,
otherwise known as the Anti-Wiretapping Act.
SO ORDERED.
Feria (Chairman), Fernan, Alampay and Paras, JJ., concur.
EN BANC
IN THE MATTER OF THE PETITION G.R. No. 160792
FOR HABEAS CORPUS OF
CAPT. GARY ALEJANO, PN (MARINES)
CAPT. NICANOR FAELDON, PN (MARINES)
CAPT. GERARDO GAMBALA, PA
LT. SG JAMES LAYUG, PN
CAPT. MILO MAESTRECAMPO, PA
LT. SG ANTONIO TRILLANES IV, PN
HOMOBONO ADAZA, and
ROBERTO RAFAEL (ROEL) PULIDO,
Petitioners,
Present:

Davide, Jr., C.J.,

Puno,
Panganiban,
Quisumbing,
Ynares-Santiago,
Sandoval-Gutierrez,
- versus - Carpio,
Austria-Martinez,
Corona,
Carpio Morales,
Callejo, Sr.,
Azcuna,
Tinga,
Chico-Nazario, and
Garcia, JJ.
GEN. PEDRO CABUAY,
GEN. NARCISO ABAYA,
SEC. ANGELO REYES, and Promulgated:
SEC. ROILO GOLEZ,
Respondents. August 25, 2005
The Case
This petition for review[1] seeks to nullify the Decision[2] of the Court of Appeals dated
17 September 2003 and Resolution dated 13 November 2003 in CA-G.R. SP No. 78545.
The Court of Appeals Decision and Resolution dismissed the petition for habeas
corpus filed by lawyers Homobono Adaza and Roberto Rafael Pulido (petitioners) on
behalf of their detained clients Capt. Gary Alejano (PN-Marines), Capt. Nicanor Faeldon
(PN-Marines), Capt. Gerardo Gambala (PA), Lt. SG James Layug (PN), Capt. Milo
Maestrecampo (PA), and Lt. SG Antonio Trillanes IV (PN) (detainees).
Petitioners named as respondent Gen. Pedro Cabuay (Gen. Cabuay), Chief of the
Intelligence Service of the Armed Forces of the Philippines (ISAFP), who has custody of
the detainees. Petitioners impleaded Gen. Narciso Abaya (Gen. Abaya), Sec. Angelo
Reyes and Roilo Golez, who are respectively the Chief of Staff of the Armed Forces of
the Philippines (AFP), Secretary of National Defense and National Security Adviser,
because they have command responsibility over Gen. Cabuay.
Antecedent Facts

9
Early morning of 27 July 2003, some 321 armed soldiers, led by the now
detained junior officers, entered and took control of the Oakwood Premier Luxury
Apartments (Oakwood), an upscale apartment complex, located in the business
district of Makati City. The soldiers disarmed the security officers of Oakwood and
planted explosive devices in its immediate surroundings. The junior officers
publicly renounced their support for the administration and called for the
resignation of President Gloria Macapagal-Arroyo and several cabinet members.
Around 7:00 p.m. of the same date, the soldiers voluntarily surrendered to the
authorities after several negotiations with government emissaries. The soldiers
later defused the explosive devices they had earlier planted. The soldiers then
returned to their barracks.
On 31 July 2003, Gen. Abaya, as the Chief of Staff of the AFP, issued a directive
to all the Major Service Commanders to turn over custody of ten junior officers to
the ISAFP Detention Center. The transfer took place while military and civilian
authorities were investigating the soldiers involvement in the Oakwood incident.
On 1 August 2003, government prosecutors filed an Information for coup
detat with the Regional Trial Court of Makati City, Branch 61, against the soldiers
involved in the 27 July 2003 Oakwood incident. The government prosecutors
accused the soldiers of coup detat as defined and penalized under Article 134-A
of the Revised Penal Code of the Philippines, as amended. The case was
docketed as Criminal Case No. 03-2784. The trial court later issued the
Commitment Orders giving custody of junior officers Lt. SG Antonio Trillanes IV
(Trillanes) and Capt. Gerardo Gambala to the Commanding Officers of ISAFP.
On 2 August 2003, Gen. Abaya issued a directive to all Major Service
Commanders to take into custody the military personnel under their command
who took part in the Oakwood incident except the detained junior officers who
were to remain under the custody of ISAFP.
On 11 August 2003, petitioners filed a petition for habeas corpus with the
Supreme Court. On 12 August 2003, the Court issued a Resolution, which
resolved to:
(a) ISSUE the WRIT OF HABEAS CORPUS; (b) require respondents to make
a RETURN of the writ on Monday, 18 August 2003, at 10:00 a.m. before the
Court of Appeals; (c) refer the case to the Court of Appeals for RAFFLE among
the Justices thereof for hearing, further proceedings and decision thereon, after
which a REPORT shall be made to this Court within ten (10) days from
promulgation of the decision.[3]

Thus, the Court issued a Writ of Habeas Corpus dated 12 August 2003 directing
respondents to make a return of the writ and to appear and produce the persons of the
detainees before the Court of Appeals on the scheduled date for hearing and further
proceedings.
On the same date, the detainees and their other co-accused filed with the Regional Trial
Court of Makati City a Motion for Preliminary Investigation, which the trial court granted.
On 18 August 2003, pursuant to the directives of the Court, respondents submitted their
Return of the Writ and Answer to the petition and produced the detainees before the
Court of Appeals during the scheduled hearing. After the parties filed their memoranda
on 28 August 2003, the appellate court considered the petition submitted for decision.
On 17 September 2003, the Court of Appeals rendered its decision dismissing the
petition. Nonetheless, the appellate court ordered Gen. Cabuay, who was in charge of
implementing the regulations in the ISAFP Detention Center, to uphold faithfully the
rights of the detainees in accordance with Standing Operations Procedure No. 0263-04.
The appellate court directed Gen. Cabuay to adhere to his commitment made in court
regarding visiting hours and the detainees right to exercise for two hours a day.
The Ruling of the Court of Appeals
The Court of Appeals found the petition bereft of merit. The appellate court pointed out
that the detainees are already charged of coup detat before the Regional Trial Court of
Makati. Habeas corpus is unavailing in this case as the detainees confinement is under a
valid indictment, the legality of which the detainees and petitioners do not even question.
The Court of Appeals recognized that habeas corpus may also be the appropriate
remedy to assail the legality of detention if there is a deprivation of a constitutional right.
However, the appellate court held that the constitutional rights alleged to have been
violated in this case do not directly affect the detainees liberty. The appellate court ruled
that the regulation of the detainees right to confer with their counsels is reasonable under
the circumstances.
The appellate court declared that while the opening and reading of Trillanes letter is an
abhorrent violation of his right to privacy of communication, this does not justify the
issuance of a writ of habeas corpus. The violation does not amount to illegal restraint,
which is the proper subject of habeas corpus proceedings.
The Court of Appeals thus dismissed the petition and ordered Gen. Cabuay to fulfill the
promise he made in open court to uphold the visiting hours and the right of the detainees

10
to exercise for two hours a day. The dispositive portion of the appellate courts
decision reads:
WHEREFORE, the foregoing considered, the instant petition is hereby
DISMISSED. Respondent Cabuay is hereby ORDERED to faithfully adhere to his
commitment to uphold the constitutional rights of the detainees in accordance
with the Standing Operations Procedure No. 0263-04 regarding visiting hours
and the right of the detainees to exercise for two (2) hours a day.
SO ORDERED.[4]
The Issues
Petitioners raise the following issues for resolution:
A.
THE COURT OF APPEALS ERRED IN
REVIEWING AND REVERSING A DECISION OF THE SUPREME COURT;
B. THE COURT OF APPEALS ERRED IN NOT ACKNOWLEDGING THE
APPROPRIATENESS OF THE REMEDY PETITIONERS SEEK; and

C. THE COURT OF APPEALS ERRED IN ASSERTING THE LEGALITY OF THE

CONDITIONS OF THE DETAINED JUNIOR OFFICERS DETENTION.[5]
The Ruling of the Court
The petition lacks merit.
Petitioners claim that the Courts 12 August 2003 Order granted the petition and
the Court remanded the case to the Court of Appeals only for a factual hearing.
Petitioners thus argue that the Courts Order had already foreclosed any question
on the propriety and merits of their petition.
Petitioners claim is baseless. A plain reading of the 12 August 2003 Order shows
that the Court referred to the Court of Appeals the duty to inquire into the cause
of the junior officers detention. Had the Court ruled for the detainees release, the
Court would not have referred the hearing of the petition to the Court of Appeals.

The Court would have forthwith released the detainees had the Court upheld petitioners
cause.

In a habeas corpus petition, the order to present an individual before the court is a
preliminary step in the hearing of the petition.[6] The respondent must produce the
person and explain the cause of his detention.[7] However, this order is not a ruling on
the propriety of the remedy or on the substantive matters covered by the remedy. Thus,
the Courts order to the Court of Appeals to conduct a factual hearing was not an
affirmation of the propriety of the remedy of habeas corpus.
For obvious reasons, the duty to hear the petition for habeas corpus necessarily includes
the determination of the propriety of the remedy. If a court finds the alleged cause of the
detention unlawful, then it should issue the writ and release the detainees. In the present
case, after hearing the case, the Court of Appeals found that habeas corpus is
inapplicable. After actively participating in the hearing before the Court of Appeals,
petitioners are estopped from claiming that the appellate court had no jurisdiction to
inquire into the merits of their petition.
The Court of Appeals correctly ruled that the remedy of habeas corpus is not the proper
remedy to address the detainees complaint against the regulations and conditions in the
ISAFP Detention Center. The remedy of habeas corpus has one objective: to inquire into
the cause of detention of a person.[8] The purpose of the writ is to determine whether a
person is being illegally deprived of his liberty.[9] If the inquiry reveals that the detention
is illegal, the court orders the release of the person. If, however, the detention is proven
lawful, then the habeas corpus proceedings terminate. The use of habeas corpus is thus
very limited. It is not a writ of error.[10] Neither can it substitute for an appeal.[11]
Nonetheless, case law has expanded the writs application to circumstances where there
is deprivation of a persons constitutional rights. The writ is available where a person
continues to be unlawfully denied of one or more of his constitutional freedoms, where
there is denial of due process, where the restraints are not merely involuntary but are
also unnecessary, and where a deprivation of freedom originally valid has later become
arbitrary.[12]
However, a mere allegation of a violation of ones constitutional right is not sufficient. The
courts will extend the scope of the writ only if any of the following circumstances is
present: (a) there is a deprivation of a constitutional right resulting in the unlawful
restraint of a person; (b) the court had no jurisdiction to impose the sentence; or (c) an
excessive penalty is imposed and such sentence is void as to the excess.[13] Whatever
situation the petitioner invokes, the threshold remains high. The violation of constitutional
right must be sufficient to void the entire proceedings.[14]

11
Petitioners admit that they do not question the legality of the detention of the
detainees. Neither do they dispute the lawful indictment of the detainees for
criminal and military offenses. What petitioners bewail is the regulation adopted
by Gen. Cabuay in the ISAFP Detention Center preventing petitioners as lawyers
from seeing the detainees their clients any time of the day or night. The
regulation allegedly curtails the detainees right to counsel and violates Republic
Act No. 7438 (RA 7438).[15] Petitioners claim that the regulated visits made it
difficult for them to prepare for the important hearings before the Senate and the
Feliciano Commission.
Petitioners also point out that the officials of the ISAFP Detention Center violated
the detainees right to privacy of communication when the ISAFP officials opened
and read the personal letters of Trillanes and Capt. Milo Maestrecampo
(Maestrecampo). Petitioners further claim that the ISAFP officials violated the
detainees right against cruel and unusual punishment when the ISAFP officials
prevented the detainees from having contact with their visitors. Moreover, the
ISAFP officials boarded up with iron bars and plywood slabs the iron grills of the
detention cells, limiting the already poor light and ventilation in the detainees
cells.
Pre-trial detainees do not forfeit their constitutional rights upon confinement.
[16] However, the fact that the detainees are confined makes their rights more
limited than those of the public.[17] RA 7438, which specifies the rights of
detainees and the duties of detention officers, expressly recognizes the power of
the detention officer to adopt and implement reasonable measures to secure the
safety of the detainee and prevent his escape. Section 4(b) of RA 7438 provides:
Section 4. Penalty Clause. a) x x x
b) Any person who obstructs, prevents or prohibits any lawyer, any member of
the immediate family of a person arrested, detained or under custodial
investigation, or any medical doctor or priest or religious minister or by his
counsel, from visiting and conferring privately chosen by him or by any member
of his immediate family with him, or from examining and treating him, or from
ministering to his spiritual needs, at any hour of the day or, in urgent cases, of the
night shall suffer the penalty of imprisonment of not less than four (4) years nor
more than six (6) years, and a fine of four thousand pesos (P4,000.00).
The provisions of the above Section notwithstanding, any security officer with
custodial responsibility over any detainee or prisoner may undertake such
reasonable measures as may be necessary to secure his safety and prevent his
escape. (Emphasis supplied)

True, Section 4(b) of RA 7438 makes it an offense to prohibit a lawyer from visiting a
detainee client at any hour of the day or, in urgent cases, of the night. However, the last
paragraph of the same Section 4(b) makes the express qualification
that notwithstanding the provisions of Section 4(b), the detention officer has the power to
undertake such reasonable measures as may be necessary to secure the safety of the
detainee and prevent his escape.
The last paragraph of Section 4(b) of RA 7438 prescribes a clear standard. The
regulations governing a detainees confinement must be reasonable measures x x x to
secure his safety and prevent his escape. Thus, the regulations must be reasonably
connected to the governments objective of securing the safety and preventing the
escape of the detainee. The law grants the detention officer the authority to undertake
such reasonable measures or regulations.
Petitioners contend that there was an actual prohibition of the detainees right to effective
representation when petitioners visits were limited by the schedule of visiting hours.
Petitioners assert that the violation of the detainees rights entitle them to be released
from detention.
Petitioners contention does not persuade us. The schedule of visiting hours does not
render void the detainees indictment for criminal and military offenses to warrant the
detainees release from detention. The ISAFP officials did not deny, but merely regulated,
the detainees right to counsel. The purpose of the regulation is not to render ineffective
the right to counsel, but to secure the safety and security of all detainees. American
cases are instructive on the standards to determine whether regulations on pre-trial
confinement are permissible.
In Bell v. Wolfish,[18] the United States (U.S.) Supreme Court held that regulations must
be reasonably related to maintaining security and must not be excessive in achieving
that purpose. Courts will strike down a restriction that is arbitrary and purposeless.
[19] However, Bell v. Wolfish expressly discouraged courts from skeptically questioning
challenged restrictions in detention and prison facilities.[20] The U.S. Supreme Court
commanded the courts to afford administrators wide-ranging deference in implementing
policies to maintain institutional security.[21]
In our jurisdiction, the last paragraph of Section 4(b) of RA 7438 provides the standard to
make regulations in detention centers allowable: such reasonable measures as may be
necessary to secure the detainees safety and prevent his escape. In the present case,
the visiting hours accorded to the lawyers of the detainees are reasonably connected to
the legitimate purpose of securing the safety and preventing the escape of all detainees.
While petitioners may not visit the detainees any time they want, the fact that the
detainees still have face-to-face meetings with their lawyers on a daily basis clearly

12
shows that there is no impairment of detainees right to counsel. Petitioners as
counsels could visit their clients between 8:00 a.m. and 5:00 p.m. with a lunch
break at 12:00 p.m. The visiting hours are regular business hours, the same
hours when lawyers normally entertain clients in their law offices. Clearly, the
visiting hours pass the standard of reasonableness. Moreover, in urgent cases,
petitioners could always seek permission from the ISAFP officials to confer with
their clients beyond the visiting hours.
The scheduled visiting hours provide reasonable access to the detainees, giving
petitioners sufficient time to confer with the detainees. The detainees right to
counsel is not undermined by the scheduled visits. Even in the hearings before
the Senate and the Feliciano Commission,[22] petitioners were given time to
confer with the detainees, a fact that petitioners themselves admit.[23] Thus, at
no point were the detainees denied their right to counsel.
Petitioners further argue that the bars separating the detainees from their visitors
and the boarding of the iron grills in their cells with plywood amount to unusual
and excessive punishment. This argument fails to impress us. Bell v.
Wolfish pointed out that while a detainee may not be punished prior to an
adjudication of guilt in accordance with due process of law, detention inevitably
interferes with a detainees desire to live comfortably.[24] The fact that the
restrictions inherent in detention intrude into the detainees desire to live
comfortably does not convert those restrictions into punishment.[25] It is
when the restrictions are arbitrary and purposeless that courts will infer intent to
punish.[26] Courts will also infer intent to punish even if the restriction seems to
be related rationally to the alternative purpose if the restriction appears excessive
in relation to that purpose.[27] Jail officials are thus not required to use the least
restrictive security measure.[28] They must only refrain from implementing a
restriction that appears excessive to the purpose it serves.[29]
We quote Bell v. Wolfish:
One further point requires discussion. The petitioners assert, and respondents
concede, that the essential objective of pretrial confinement is to insure the
detainees presence at trial. While this interest undoubtedly justifies the original
decision to confine an individual in some manner, we do not accept respondents
argument that the Governments interest in ensuring a detainees presence at trial
is the only objective that may justify restraints and conditions once the decision is
lawfully made to confine a person. If the government could confine or otherwise
infringe the liberty of detainees only to the extent necessary to ensure their
presence at trial, house arrest would in the end be the only constitutionally
justified form of detention. The Government also has legitimate interests that
stem from its need to manage the facility in which the individual is detained.
These legitimate operational concerns may require administrative measures that

go beyond those that are, strictly speaking, necessary to ensure that the detainee shows
up at trial. For example, the Government must be able to take steps to maintain security
and order at the institution and make certain no weapons or illicit drugs reach
detainees. Restraints that are reasonably related to the institutions interest in maintaining
jail security do not, without more, constitute unconstitutional punishment, even if they are
discomforting and are restrictions that the detainee would not have experienced had he
been released while awaiting trial. We need not here attempt to detail the precise extent
of the legitimate governmental interests that may justify conditions or restrictions of
pretrial detention. It is enough simply to recognize that in addition to ensuring the
detainees presence at trial, the effective management of the detention facility once the
individual is confined is a valid objective that may justify imposition of conditions and
restrictions of pretrial detention and dispel any inference that such restrictions are
intended as punishment.[30]
An action constitutes a punishment when (1) that action causes the inmate to suffer
some harm or disability, and (2) the purpose of the action is to punish the inmate.
[31]Punishment also requires that the harm or disability be significantly greater than, or
be independent of, the inherent discomforts of confinement.[32]
Block v. Rutherford,[33] which reiterated Bell v. Wolfish, upheld the blanket restriction on
contact visits as this practice was reasonably related to maintaining security.The safety
of innocent individuals will be jeopardized if they are exposed to detainees who while not
yet convicted are awaiting trial for serious, violent offenses and may have prior criminal
conviction.[34] Contact visits make it possible for the detainees to hold visitors and jail
staff hostage to effect escapes.[35] Contact visits also leave the jail vulnerable to visitors
smuggling in weapons, drugs, and other contraband.[36] The restriction on contact visits
was imposed even on low-risk detainees as they could also potentially be enlisted to help
obtain contraband and weapons.[37] The security consideration in the imposition of
blanket restriction on contact visits was ruled to outweigh the sentiments of the
detainees.[38]
Block v. Rutherford held that the prohibition of contact visits bore a rational connection to
the legitimate goal of internal security.[39] This case reaffirmed the hands-off doctrine
enunciated in Bell v. Wolfish, a form of judicial self-restraint, based on the premise that
courts should decline jurisdiction over prison matters in deference to administrative
expertise.[40]
In the present case, we cannot infer punishment from the separation of the detainees
from their visitors by iron bars, which is merely a limitation on contact visits. The iron bars
separating the detainees from their visitors prevent direct physical contact but still allow
the detainees to have visual, verbal, non-verbal and limited physical contact with their
visitors. The arrangement is not unduly restrictive. In fact, it is not even a strict non-

13
contact visitation regulation like in Block v. Rutherford. The limitation on the
detainees physical contacts with visitors is a reasonable, non-punitive response
to valid security concerns.
The boarding of the iron grills is for the furtherance of security within the ISAFP
Detention Center. This measure intends to fortify the individual cells and to
prevent the detainees from passing on contraband and weapons from one cell to
another. The boarded grills ensure security and prevent disorder and crime within
the facility. The diminished illumination and ventilation are but discomforts
inherent in the fact of detention, and do not constitute punishments on the
detainees.
We accord respect to the finding of the Court of Appeals that the conditions in the
ISAFP Detention Center are not inhuman, degrading and cruel. Each detainee,
except for Capt. Nicanor Faeldon and Capt. Gerardo Gambala, is confined in
separate cells, unlike ordinary cramped detention cells. The detainees are
treated well and given regular meals. The Court of Appeals noted that the cells
are relatively clean and livable compared to the conditions now prevailing in the
city and provincial jails, which are congested with detainees. The Court of
Appeals found the assailed measures to be reasonable considering that the
ISAFP Detention Center is a high-risk detention facility. Apart from the soldiers, a
suspected New Peoples Army (NPA) member and two suspected Abu Sayyaf
members are detained in the ISAFP Detention Center.
We now pass upon petitioners argument that the officials of the ISAFP Detention
Center violated the detainees right to privacy when the ISAFP officials opened
and read the letters handed by detainees Trillanes and Maestrecampo to one of
the petitioners for mailing. Petitioners point out that the letters were not in a
sealed envelope but simply folded because there were no envelopes in the
ISAFP Detention Center. Petitioners contend that the Constitution prohibits the
infringement of a citizens privacy rights unless authorized by law. The Solicitor
General does not deny that the ISAFP officials opened the letters.
Courts in the U.S. have generally permitted prison officials to open and read all
incoming and outgoing mail of convicted prisoners to prevent the smuggling of
contraband into the prison facility and to avert coordinated escapes.[41] Even in
the absence of statutes specifically allowing prison authorities from opening and
inspecting mail, such practice was upheld based on the principle of civil deaths.
[42] Inmates were deemed to have no right to correspond confidentially with
anyone. The only restriction placed upon prison authorities was that the right of
inspection should not be used to delay unreasonably the communications
between the inmate and his lawyer.[43]
Eventually, the inmates outgoing mail to licensed attorneys, courts, and court
officials received respect.[44] The confidential correspondences could not be
censored.[45]The infringement of such privileged communication was held to be

a violation of the inmates First Amendment rights.[46] A prisoner has a right to consult
with his attorney in absolute privacy, which right is not abrogated by the legitimate
interests of prison authorities in the administration of the institution.[47] Moreover, the
risk is small that attorneys will conspire in plots that threaten prison security.[48]
American jurisprudence initially made a distinction between the privacy rights enjoyed by
convicted inmates and pre-trial detainees. The case of Palmigiano v.
Travisono[49] recognized that pre-trial detainees, unlike convicted prisoners, enjoy a
limited right of privacy in communication. Censorship of pre-trial detainees mail
addressed to public officials, courts and counsel was held impermissible. While incoming
mail may be inspected for contraband and read in certain instances, outgoing mail of pretrial 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
xx
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 inmates

14
presence insures that prison officials will not read the mail. The possibility that
contraband will be enclosed in letters, even those from apparent attorneys, surely
warrants prison officials opening the letters. We disagree with the Court of
Appeals that this should only be done in appropriate circumstances. Since a
flexible test, besides being unworkable, serves no arguable purpose in protecting
any of the possible constitutional rights enumerated by respondent, we think that
petitioners, by acceding to a rule whereby the inmate is present when mail from
attorneys is inspected, have done all, and perhaps even more, than the
Constitution requires.[51]
In Hudson v. Palmer,[52] the U.S. Supreme Court ruled that an inmate has no
reasonable expectation of privacy inside his cell. The U.S. Supreme Court
explained that prisoners necessarily lose many protections of the Constitution,
thus:
However, while persons imprisoned for crime enjoy many protections of the
Constitution, it is also clear that imprisonment carries with it the circumscription
or loss of many significant rights. These constraints on inmates, and in some
cases the complete withdrawal of certain rights, are justified by the
considerations underlying our penal system. The curtailment of certain rights is
necessary, as a practical matter, to accommodate a myriad of institutional needs
and objectives of prison facilities, chief among which is internal security. Of
course, these restrictions or retractions also serve, incidentally, as reminders
that, under our system of justice, deterrence and retribution are factors in
addition to correction.[53]
The later case of State v. Dunn,[54] citing Hudson v. Palmer,
abandoned Palmigiano v. Travisono and made no distinction as to the detainees
limited right to privacy.State v. Dunn noted the considerable jurisprudence in the
United States holding that inmate mail may be censored for the furtherance of a
substantial government interest such as security or discipline. State v.
Dunn declared that if complete censorship is permissible, then the lesser act of
opening the mail and reading it is also permissible. We quote State v. Dunn:
[A] right of privacy in traditional Fourth Amendment terms is fundamentally
incompatible with the close and continual surveillance of inmates and their cells
required to ensure institutional security and internal order. We are satisfied that
society would insist that the prisoners expectation of privacy always yield to what
must be considered a paramount interest in institutional security. We believe that
it is accepted by our society that [l]oss of freedom of choice and privacy are
inherent incidents of confinement.

The distinction between the limited privacy rights of a pre-trial detainee and a convicted
inmate has been blurred as courts in the U.S. ruled that pre-trial detainees might
occasionally pose an even greater security risk than convicted inmates. Bell v.
Wolfish reasoned that those who are detained prior to trial may in many cases be
individuals who are charged with serious crimes or who have prior records and may
therefore pose a greater risk of escape than convicted inmates.[55] Valencia v.
Wiggins[56] further held that it is impractical to draw a line between convicted prisoners
and pre-trial detainees for the purpose of maintaining jail security.
American cases recognize that the unmonitored use of pre-trial detainees non-privileged
mail poses a genuine threat to jail security.[57] Hence, when a detainee places his letter
in an envelope for non-privileged mail, the detainee knowingly exposes his letter to
possible inspection by jail officials.[58] A pre-trial detainee has no reasonable expectation
of privacy for his incoming mail.[59] However, incoming mail from lawyers of inmates
enjoys limited protection such that prison officials can open and inspect the mail for
contraband but could not read the contents without violating the inmates right to
correspond with his lawyer.[60] The inspection of privileged mail is limited to physical
contraband and not to verbal contraband.[61]
Thus, we do not agree with the Court of Appeals that the opening and reading of the
detainees letters in the present case violated the detainees right to privacy of
communication. The letters were not in a sealed envelope. The inspection of the folded
letters is a valid measure as it serves the same purpose as the opening of sealed letters
for the inspection of contraband.
The letters alleged to have been read by the ISAFP authorities were not confidential
letters between the detainees and their lawyers. The petitioner who received the letters
from detainees Trillanes and Maestrecampo was merely acting as the detainees
personal courier and not as their counsel when he received the letters for mailing. In the
present case, since the letters were not confidential communication between the
detainees and their lawyers, the officials of the ISAFP Detention Center could read the
letters. If the letters are marked confidential communication between the detainees and
their lawyers, the detention officials should not read the letters but only open the
envelopes for inspection in the presence of the detainees.
That a law is required before an executive officer could intrude on a citizens privacy
rights[62] is a guarantee that is available only to the public at large but not to persons
who are detained or imprisoned. The right to privacy of those detained is subject to
Section 4 of RA 7438, as well as to the limitations inherent in lawful detention or
imprisonment. By the very fact of their detention, pre-trial detainees and convicted
prisoners have a diminished expectation of privacy rights.

15
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. courtsbalance the guarantees of the Constitution with the
legitimate concerns of prison administrators.[63] The deferential review of such
regulations stems from the principle that:

SO ORDERED.

[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]

HILARIO G. DAVIDE, JR.

Chief Justice

The detainees in the present case are junior officers accused of leading 300
soldiers in committing coup detat, a crime punishable with reclusion perpetua.
[65] The junior officers are not ordinary detainees but visible leaders of the
Oakwood incident involving an armed takeover of a civilian building in the heart
of the financial district of the country. As members of the military armed forces,
the detainees are subject to the Articles of War.[66]
Moreover, the junior officers are detained with other high-risk persons from the
Abu Sayyaf and the NPA. Thus, we must give the military custodian a wider
range of deference in implementing the regulations in the ISAFP Detention
Center. The military custodian is in a better position to know the security risks
involved in detaining the junior officers, together with the suspected Abu Sayyaf
and NPA members. Since the appropriate regulations depend largely on the
security risks involved, we should defer to the regulations adopted by the military
custodian in the absence of patent arbitrariness.
The ruling in this case, however, does not foreclose the right of detainees and
convicted prisoners from petitioning the courts for the redress of grievances.
Regulations and conditions in detention and prison facilities that violate the
Constitutional rights of the detainees and prisoners will be reviewed by the courts
on a case-by-case basis. The courts could afford injunctive relief or damages to
the detainees and prisoners subjected to arbitrary and inhumane conditions.
However, habeas corpus is not the proper mode to question conditions of
confinement.[67] The writ of habeas corpus will only lie if what is challenged is
the fact or duration of confinement.[68]
WHEREFORE, we DISMISS the petition. We AFFIRM the Decision of the Court
of Appeals in CA-G.R. SP No. 78545.
No pronouncement as to costs.

ANTONIO T. CARPIO
Associate Justice

Republic of the Philippines

SUPREME COURT
Manila
G.R. No. L-68635 March 12, 1987
IN THE MATTER OF PROCEEDINGS FOR DISCIPLINARY ACTION AGAINST ATTY.
WENCESLAO LAURETA, AND OF CONTEMPT PROCEEDINGS AGAINST EVA
MARAVILLA-ILUSTRE in G.R. NO. 68635, entitled "EVA MARAVILLA-ILUSTRE vs.
HON. INTERMEDIATE APPELLATE COURT, ET AL.
RESOLUTION
PER CURIAM:
In almost identical letters dated 20 October 1986, personally sent to Justices Andres R.
Narvasa, Ameurfina M. Herrera, and Isagani A. Cruz, and a fourth letter, dated 22
October 1986 addressed to Justice Florentino P. Feliciano, all members of the First
Division of this COURT, (mcorporated herein by reference), in feigned ignorance of the
Constitutional requirement that the Court's Divisions are composed of, and must act
through, at least five (5) members, and in a stance of dangling threats to effect a change
of the Court's adverse resolution, petitioner Eva Maravilla Ilustre wrote in part:
Please forgive us for taking the Liberty of addressing you this letter which we do hope
you will read very carefully.
It is important to call your attention to the dismissal of Case No. G.R. 68635 entitled Eva
Maravilla Ilustre vs. Hon. Intermediate Appellate Court, et al. by an untenable minuteresolution although an extended one, dated 14 May 1986 which we consider as an just
resolution deliberately and knowingly promulgated by the First Division of the Supreme
Court of which you are a member.
xxx xxx xxx
We consider the three minute-resolution: the first dated 14 May 1986; the second, dated
9 July 1986; and the third, 3 September 1986, railroaded with such hurry/ promptitude
unequaled in the entire history of the Supreme Court under circumstances that have
gone beyond the limits of legal and judicial ethic.
xxx xxx xxx
Your attention is called to minute-resolution of 9 July 1986 which writes finish to our case
before the Supreme Court (... THIS IS FINAL.) There is nothing final in this world We

16
assure you that this case is far from finished by a long shot For at the proper
time, we shall so act and bring this case before another forum where the
members of the Court can no longer deny our action with minute resolutions that
are not only unjust but are knowingly and deuberat only promulgated. The people
deserve to know how the members of the highest tribunal of the land perform in
the task of decision making by affixing their respective signed on judgments that
they render on petitions that they themselves give due course.
Please understand that we are pursuing further remedies in our quest for justice
under the law. We intend to hold responsible members of the First Division who
participated in the promulgation of these three minute- resolutions in question.
For the members thereof cannot claim immunity when their action runs afoul with
penal sanctions, even in the performance of official functions; like others, none of
the division members are above the law.
In our quest for justice, we wish to avoid doing injustice to anyone, particularly
the members of the First Division, providing that they had no hand in the
promulgation of the resolution in question. That is why we are requesting you to
inform us your participation in the promulgation of these resolutions in question.
Even we who are poor are also capable of playing fair even to those who take
advantage of our poverty by sheer power and influence. We shall then wait for
your reply. If, however, we do not hear from you after a week, then we will
consider your silence that you supported the dismissal of our petition. We will
then be guided accordingly. (Emphasis supplied).
The letter also attacked the participation in the case of Justice Pedro L. Yap,
Chairman of the First Division in this wise:
As Division Chairman, Associate Justice Pedro Yap, as a copy of Resolution
dated 14 May 1986 we received indicate, did not even have the elementary
courtesy of putting on record that he voluntarily inhibited himself from
participating in the promulgation of this minute-resolution, although an extended
one, which he should have done consistent with judicial decorum and the
Canons of Judicial Ethics. After he is the law partner of Atty. Sedfrey A. Ordonez
counsel for respondents, now the distinguished Solicitor General ... indicative
that even at this stage of the proceeding in point of time, the Supreme Court still
recognizes Atty. Sedfrey A. Ordonez as counsel for respondents, even as he is
already the Solicitor General. For not withdrawing from the case formally Atty.
Ordonez has manifested his unmitigated arrogance that he does not respect the
Canons of Professional Ethics, to the actuation of his law partner, Associate
Justice Pedro Yap, Chairman of the First Division of the Supreme Court, an act
that further aggravates the growing wrinkles in the domain of judicial
statesmanship, impressed as it is, with very serious and dangerous implications.
(9) By 11 April 1986, date of the reorganization of the First Division, Atty. Sedfrey
A. Ordonez already became the Solicitor General. With such amazingly magical
coincidence, Dr. Pedro Yap, law partner of Atty. Sedfrey A. Ordonez in the law
firm Salonga, Ordonez Yap, Padian became the Chairman of the Division.
xxx xxx xxx

(11) So we see that on 11 August 1986 to 14 May 1986 when some members of the
Division were still busy putting their respective offices in order and had possibly have no
Idea about the Maravilla case.
Was it possible for Chairman Yap to have convinced the Division members that Maravilla
petition is without merit and since the members the new ones knew nothing about the
case, readily agreed to the dismissal of the petition by a minute. resolution an
extended one. After all, this was the case of the Solicitor General. If this is what
happened, then we are sorry to say that you were deliberately "had"
After ala the 14 May 1986 untenable minute resolution although an extended one, does
not bear the signatures of the Division members. The members should have signed the
resolution, after ala the Supreme Court had given the petition due course, indicating
whether they concur, dissent or otherwise abstain from voting.
The letter to Justice Herrera went on to state:
We assume, of course, that you had studied the case thoroughly since you were with the
original First Division under the chairmanship of then Justice Claudio Teehankee. We
assure you that we will bring this case before another forum to hold responsible the
members of the Division who participated in the dismissal of the case by the unjust
minute-resolutions, knowingly rendered for intended objective that your conscience you
are aware.
xxx xxx xxx
We leave the next move to you by informing us your participation in the promulgation of
the minute-resolutions in question Please do not take this matter rightly for we know
justice in the end will prevail. For if we do not hear from you within a week, we will
consider your silence as your admission that you supported the dismissal of the petition.
In this way, we shall then be guided accordingly. The moment we take action in the plans
we are completing, we will then call a press conference with TV and radio coverage.
Arrangements in this regard are being done. The people should or ought to know why we
were thwarted in our quest for plain justice.
xxx xxx xxx
Finally, in view of action that we are prepared to take in this case, that will no doubt
cause nationwide attention, and there should be anyone that will cause me harm
personally, may we request you to show this letter to the authorities concerned so that
they will know where to look, when it becomes necessary. (Emphasis supplied)
The aforesaid letters were included in the Agenda of the First Division of 22 October
1986, were "Noted," and referred en consulta to the Court en banc.
On 28 October 1986, the Court en banc took up the background and history of the case,
found no reason to take any further action, and referred the case back to the First
Division 11 as set forth in the latter's resolution of October 27, 1986. " In this Resolution,
the First Division traced the history of the case, clarified that Justice Yap assumed his
position in this Court only on 2 May 1986; that when the resolution of dismissal was
issued on 14 May 1986, Justice Abad Santos was the incumbent Chairman of the First
Division, and that Justice Yap was unaware that Atty. Ordonez was private respondents'
counsel; that upon realization thereof, Justice Yap inhibited himself from further

17
participation in the case; and that Justice Yap was designated Chairman of the
First Division only on 14 July 1986, after the compulsory retirement of Justice
Vicente Abad Santos on 12 July 1986. The Resolution of the First Division
(incorporated herein by reference) concluded thus:
The dispositions in this case were arrived at after careful study. Because a case
is resolved against the interests of a party, does not mean that it is an "unjust
decision" or that it has been "railroaded".
This Division declares without hesitation that it has consistently rendered justice
without fear or favor. YAP, J., took no part.
On 3 November 1986, petitioner again addressed similar letters to Justices
Narvasa, Herrera, and Cruz, (incorporated herein by reference), excerpts from
which follow:
It is rather amazing that when we wrote you our previous letter, we never
dreamed that you would rush, as you did rush for assistance en consults with the
Honorable Court en banc. The unfortunate part of it all is the fact that the
Court en banc had to promulgate its resolution dated 28 October 1986 which to
us when considered in its entirety, is just as untenable as the First Division
extended and unsigned minute-resolution of 14 May 1986.
Evidently you misunderstood our point of inquiry, to wit: 'Did you or did you not
approve the dismissal of our petition under
1) The l4 May l986 minute resolution? Yes or No.
2) The 9 July l986 minute resolution? Yes or No.
3) The 3 Sept. 1986 minute resolution? Yes or No.
That was we asked. The other matters contained in our letter were intended
merely to give you the highlights of our case. This is what we wanted to know to
properly guide us when we finally bring our case to the other forum of justice.
Did it ever occur to you that when you and the other members of the First
Division referred our letters to the Honorable Court en banc en consults it was all
your fault that the Court en banc had to promulgate its unsigned extended
minute-resolution that unfortunately exposed the distinguished members of the
newly reorganized Supreme Court and, at the same time, convicted themselves
as guilty of distorting facts involved in our petition?
This, we are sure, will come as a shock to you. We will show you why.
xxx xxx xxx
This is just a sample of what we will expose to the nation before the other forum
of justice where we will soon bring this case beyond the reach of the newly
reorganized Supreme Court We are prepared to expose many more of this kind
of judicial performance readily constituting truvesty of justicePonder upon this
well because it is our very firm conviction that the people deserve to know how
the distinguished members of the highest tribunal of the land perform in duties in
this most sensitive area of decision making.
Anyhow, whether you referred our letter to the Court en banc consults) or not, the
situation remains the same. At the proper time, as we said, we will bring this
case before another forum of justicewhere the members of the First Division, in

fact the Honorable Court en banc may no longer deny our action by mere untenable and
unjust minute resolutions. Better believe it that we intend to hold responsible members of
the First Division who took part in the promulgation of the untenable and unjust extended
minute-resolution that is not even signed by any of those who promulgated it; therefore,
to us, is clearly bereft of judicial integrity from its very inception on 14 May 1986.
xxx xxx xxx
Thus, we will bring this case before another forum of justice as Eva Maravilla Ilustre
against the distinguished members of the First Division, in fact against the entire
membership of the newly organized Supreme Court (because of its en banc unsigned
extended minute-resolution that iswithout judicial integrity, dated 28 October 1986). But
do not be mislead (sic) for we are not alone in this fight. Other lawyers, not just by their
mere sympathy for me personally and my case, but by their firm conviction that judicial
statesmanship must be maintained at nines in the highest tribunal of justice in the land,
that they have offered their free legal services when the legal confrontation begins.
xxx xxx xxx
Paragraph 4, found on page 3 of the en banc resolution projects the most fantastic, most
unbelievable picture of Division Chairman Justice Yap. It states
...When the resolution of dismissal on May 14, 1986, Justice Yap was unaware that Atty.
Sedfrey A. Ordonez was private respondent's counsel.
The Honorable Court en banc must think everybody stupid to swallow this statement
hook, line and sinker For Justice Yap we say. Tell that to the marines. But more than this,
we leave this matter to the conscience of Justice Yap.
Ignoramus that we are, unschooled in the domain of law and procedure, but we are
learning a few as we promulgated our case within legitimate that we state here that both
resolutions that promulgated by the Court en banc of 28 October 1986 and that
promulgated by the First Division dated 27 October 1986, are nothing but a desperate
attempt when both are considered in their respective entirety, to maneuver without
success, some semblance of justification on the untenable and unjust 14 May 1986
extended and unsigned minute-resolution that is bereft of judicial integrity.
xxx xxx xxx
Thus, if the members of the First Division and those of the Honorable Court en
banc think for one minute that because of their respective 4-page minute but extended
resolutions apparently impressive for their lack of merit deliberately unsigned that
exposed their lack of judicial integrity, that we win now give up the fight, just forget it.
Ignoramus that we are, better believe it when we say we are prepared to carry the fight
before another forum of justice. When we do, we shall call for a press conference with
TV and radio coverage, so that we can present to the entire nation our quest for justice
against the steam-roller of power and influence and, at the same time, to call the
attention of the people to the manner in which the members of the highest tribunal of the
land perform their respective individual and collective functions in the domain of this most
sensitive area of decision making.
Allow us to restate our previous and now, our present inquiry, to wit:
Did you or did you not approve the dismissal of our petition under

18
a) The l4 May l986 minute resolution? Yes or No.
b) The 9 July l986 minute resolution? Yes or No.
c) The 3 Sept. 1986 minute resolution? Yes or No. (Emphasis supplied).
True to her threats, after having lost her case before this Court, petitioner filed on
16 December 1986 an Affidavit-Complaint before the Tanodbayan, totally
disregarding the facts and circumstances and legal considerations set forth in
this Court's aforecited Resolutions of the First Division and en banc. Some
Members of this Court were maliciously charged with having knowingly and
deliberately rendered, with bad faith, an unjust, extended Minute Resolution
"making" her opponents the "illegal owners" of vast estates. Some Justices of the
Court of Appeals were similarly maliciously charged with knowingly rendering
their "unjust resolution" of 20 January 1984 "through manifest and evident bad
faith," when their Resolution had in fact and law been upheld by this Court.
Additionally, Solicitor General Sedfrey A. Ordonez and Justice Pedro Yap of this
Court were also maliciously charged with having used their power and influence
in persuading and inducing the members of the First Division of this Court into
promulgating their "unjust extended Minute Resolution of 14 May 1986."
All the foregoing, in complete disregard of the Resolutions of this Court, as the
tribunal of last resort, 1) upholding the challenged judgment of the Court of
Appeals; 2) dismissing the Petition on the ground that the doctrine of res judicata
was clearly applicable not only as to the probate of the Will of the decedent but
also as to the heirship of petitioner, among others, and their right to intervene and
participate in the proceedings; and 3) finding that there was no attempt
whatsoever on the part of Justice Yap nor Solicitor General Ordonez to unduly
influence the members of the First Division.
The Complaint before the Tanodbayan (incorporated herein by reference) was
allegedly filed "in my quest for justice, something that has been closed to me by
the Supreme Court forever" and specifically charged:
CHARGE NO. ONE
Atty. Sedfrey A. Ordonez and Justice Pedro Yap of 1) "persuading, inducing,
influencing the members of the newly organized First Division ... into
promulgating their unjust, extended minute RESOLUTION of 14 May 1986,
knowingly with deliberate intent with such unusual hurry promptitude unequaled
in the entire history of the Supreme Court base on insignificant issues and
deliberately evading/prevaricating the more important substantial ones raised in
my petition, in violation of Section 3, sub-letter (a) of Republic Act No. 3019, as
amended, ... ; and
(2) Under the same Section 3, sub-letter (e) of the same Republic Act ...
for causing me and the other heirs of Ponciano Maravilla undue injury by using
their power and influence as Solicitor-General and Associate Justice,
respectively. ...
CHARGE NO. TWO

Associate Justices Luis Javellana, Vicente Mendoza and Serafin Cuevas, members of
the then FOURTH SPECIAL CASES DIVISION, Intermediate Appellate Court
1) For knowingly rendering their unjust RESOLUTION dated 20 January 1984 in the
exercise of their functions through manifest and evident bad faith in CA-G.R. No. SP13680, entitled "Francisco Q. Maravilla, et al. v. Hon. Antonia Corpus Macandog, et
al." in violation of article 204 of the revised Penal Code,2) For causing me and the other heirs such undue injury' by deliberately, knowingly
rendering their unjust RESOLUTION dated 20 January 1984 ... in violation of Republic
Act No. 3019, as amended, Section 3 (e) thereof.
CHARGE NO THREE
Associate Justice Vicente Abad Santos (retired) then Chairman of the First Division of
the Supreme Court as of 14 May 1986, and Associate Justice Isagani Cruz, Andres
Narvasa, Ameurfina M. Herrera and Pedro Yap, ...
1) For knowingly and deliberately rendering their unjust extended MINUTE
RESOLUTION of 14 May 1986 dismissing my petition in G.R. No. 68635, ... with
manifest and evident bad faith to make the clients of Atty. Sedfrey A. Ordonez now the
distinguished Solicitor General the 'illegal owners' of the vast estates of my aunt Digna
Maravilla ...;
2) Under Section 3, sub-letter (e) Republic Act No. 3019, as amended, ... for deliberately
causing us heirs of Ponciano Maravilla undue injury by depriving us of our rights over my
aunt's vast estates because of their manifest and evident bad faith in knowingly
promulgating their unjust extended minute RESOLUTION of 14 May 1986, deliberately
intended to make the clients of Atty. Sedfrey A. Ordonez, now the Solicitor General the
"illegal owners" of my aunt Digna Maravilla's estates when under the law, these Ordonez
clients are not entitled to own these vast properties whether under testate or intestate
succession or mixed succession (Emphasis supplied).
Atty. Laureta himself reportedly circulated copies of the Complaint to the press, which
was widely publicized in almost all dailies on 23 December 1986, without any copy
furnished this Court nor the members who were charged. The issue of the Daily Express
of 23 December 1986 published a banner headline reading
ORDONEZ, 8 JUSTICES FACE GRAFT CHARGES
thereby making it unjustly appear that the Justices of this Court and the other
respondents were charged with "graft and corruption" when the Complaint was actually
filed by a disgruntled litigant and her counsel after having lost her case thrice in this
Court.
On 26 December 1986, the Tanodbayan (Ombudsman) dismissed petitioner's Complaint
and decreed in the dispositive portion of his Resolution (herein incorporated by
reference) that:
WHEREFORE, all the premises considered, this Office resolves to dismiss the complaint
against Justices Pedro Yap, Isagani Cruz, Andres Narvasa, Ameurfina Melencio-Herrera,
Vicente Abad Santos, and will continue evaluating the complaint against Justices Serafin
Cuevas, Luis Javellana and Vicente Mendoza, Solicitor General Sedfrey Ordonez and
the private respondents.

19
The aforestated Resolution indicated at the bottom of the last page:
Copy Furnished:
DEAN WENCESLAO LAURETA
Counsel for the Complainant
919 Prudencio Street
Sampaloc, Manila
In the Resolution of this Court en banc, dated January 29, 1986, it required:
(1) Petitioner Eva Maravilla Ilustre to show cause, with in ten (10) days from
notice, why she should not be held in contempt for her aforecited statements,
conduct, acts and charges against the Supreme Court and/or official actions of
the Justices concerned, which statements, unless satisfactorily explained,
transcend the permissible bounds of propriety and undermine and degrade the
administration of justice; and
(2) Atty. Wenceslao Laureta, as an officer of the Court, to show cause, within ten
(10) days from notice, why no disciplinary action should be taken against him for
the aforecited statements, conduct, acts and charges against the Supreme Court
and the official actions of the Justices concerned, and for hiding therefrom in
anonymity behind his client's name, in an alleged quest for justice but with the
manifest intent to bring the Justices into disrepute and to subvert public
confidence in the Courts and the orderly administration of justice. (pp. 383-384,
Rollo).
(1)
In her Compliance-Answer filed on February 9, 1987, wherein Eva Maravilla
Ilustre prays that the contempt proceedings against her be dismissed, she
contends, in essence, that: (1) "there was no intention to affront the honor and
dignity" of the Court; (2) the letters addressed to the individual Justices were
private in character and were never meant for anybody, much less the Supreme
Court en banc, "there (being) a constitutional mandate affording protection to
privacy of communications;" (3) if her statements in those letters were really
contemptuous, the Court "should have immediately taken disciplinary
proceedings" against her, and not having done so, the Court has "forfeited" that
right and is now "estopped" from doing so; this citation for contempt is a
"vindictive reprisal" for her having filed the complaint before the Tanodbayan, "an
action that lacks sincerity, taken not in the spirit of judicial statemanship;" (4) she
instituted the complaint before the Tanodbayan "in my honest behalf that I lost my
case before the Supreme Court not because of lack of merit or of its own merits,
assisted by attorneys who offered their services in the prosecution of my case;"
(5) the newspaper publicity of this case "was no fault of mine; neither is it the
fault of my former counsel Dean Wenceslao Laureta, " who prevailed upon her to
call off the press conference with TV and radio coverage; that she is not a
"disgruntled litigant" who thrice lost before the Court, rather, she has challenged
the validity of the resolutions of the Court "containing distortion of facts,
conjectures and mistaken inferences" particularly, in that (a) there is no res
judicata, (b) the Court of Appeals in its decision declared that the judgment of the

trial Court had long attained finality, so that it can no longer be set aside, (c) her 11
opponents," clients of Atty. Ordonez, are not entitled to own her aunt's "vast properties"
whether under the law of testate or intestate succession or mixed succession," (d) that
the statement in this Court's Resolution that the Court of Appeals had denied intervention
is an "unadulterated distortion of the facts;" (b) the statement in the en banc Resolution
that some Justices of the Court of Appeals were similarly maliciously charged with
knowingly rendering their "unjust resolution" of 20 January 1984 is a bit "premature, a
pre-judgment over a case over which this Court does not have jurisdiction;" (7) Atty.
Laureta is not her counsel in the case before the Tanodbayan; (8) before the latter body,
she has "established not only probable cause but has also proved the collective
culpability (of the Justices concerned) as charged;" (9) and that her 53 page Motion for
Reconsideration before the Tanodbayan is made an integral part of her Answer.
(2)
In his own Answer, Atty. Laureta maintains substantially that: (1) he is not respondent
Ilustre's counsel before the Tanodbayan and that she has consulted and/or engaged the
services of other attorneys in the course of the prosecution of her case, fike Atty.
Edgardo M. Salandanan and Atty. Vedastro B. Gesmundo; that he just learned from other
sources that respondent llustre was planning to bring her case to the Tanodbayan with
the assistance of other lawyers who offered her their legal services; (2) it was he who
dissuaded her from calling her intended press conference and from circulating copies of
her complaint "not only in the performance of duty as an officer of the court, but also as a
former president of Manila III Chapter of the Integrated Bar of the Philippines and as a
professional lecturer in Legal and Judicial Ethics in some Manila law schools in his desire
to protect and uphold the honor and dignity of the Supreme Court as the highest tribunal
of the land." He should, therefore, be given "a little bit of credit for what he did" instead of
taking this disciplinary proceeding against him; that Ms. Ilustre is not a "disgruntled
litigant" who "lost her case thrice in this Court;" (3) he did not prepare respondent
Ilustre's letters to the individual Justices, I appearances to the contrary notwithstanding,"
that these letters were "never, at any time, considered as constituting contempt of court"
in the resolutions of this Court, otherwise, "it would have taken immediate disciplinary
action as it is doing now;" the Court has lost its right to consider the statements in the
letters as constituting contempt and it is now "estopped" from proceeding with this
disciplinary action; (4) by doing so, this Court has "unmistakably revealed the intent and
character that underlie its present action as a vindictive judicial vengeance, inconsistent
with the spirit of judicial statesmanship by hiding behind the well-recognized fact that the
Supreme Court is supreme in the domain of the administration of justice;" (5) "there was
no disregard intended to the Resolution of the Honorable Court, as the tribunal of last
resort, relative to its upholding the judgment of the Court of Appeals;" he is just doing "his
duty as an officer of the court to put the records in this regard in their proper light;"
particularly (a) that the judgment of the trial court had attained its finality long ago, (b) the
doctrine of res judicata is inapplicable, otherwise, this Court would not have remanded
the case to the Court of Appeals for review, (c) the observation in the First Division's
extended Resolution of 14 July 1986 that Justice Yap was unaware that Atty. Ordonez

20
was private respondents' counsel "defies every vestige of human understanding,"
that Justice Yap had forthwith inhibited himself from participating in the case is
not borne out by the record of this case. Justice Yap had "never voluntarily
entered on the record his inhibition" when he should have done so when
respondent Ilustre's petition was taken up; Justice Yap's partner, Atty. Ordonez,
continued to be recognized by this Court as counsel for private respondents even
as he was the Solicitor General; (b) finally, "appearances to the contrary
notwithstanding, he has not colted acts unworthy of his profession. The truth of
the matter is, he should at least be credited in whatever small way for his acts
and efforts taken by him to protect and uphold the honor and dignity of the
Honorable Court.
We find the explanations of both Ms. Ilustre and Atty. Laureta unsatisfactory.
Their claims that they had done nothing that could constitute an affront to the
honor and dignity of this Court dissipate in the face of attendant facts and
circumstances and "defy every vestige of human understanding," to use their
own language. Indeed, they should not "think that they will win a hearing by the
sheer multiplication of words." (Mathew 6:7).
Respondents' reliance on the "privacy of communication" is misplaced. Letters
addressed to individual Justices, in connection with the performance of their
judicial functions become part of the judicial record and are a matter of concern
for the entire Court. The contumacious character of those letters constrained the
First Division to refer the same to the Court en banc, en consults and so that the
Court en banc could pass upon the judicial acts of the Division. It was only in the
exercise of forbearance by the Court that it refrained from issuing immediately a
show cause order in the expectancy that after having read the Resolution of the
Court en banc of October 28, 1986, respondents would realize the unjustness
and unfairness of their accusations.
The Court is far from "estopped" in initiating these proceedings. The Chief Justice
had promptly announced his Statement, dated December 23, 1986, that "the
Supreme Court will take appropriate steps on the matter upon its resumption of
sessions on the first working day of the year. "
There is no vindicative reprisal involved. The Court's authority and duty under the
premises is unmistakable. It must act to preserve its honor and dignity from the
scurrilous attacks of an irate lawyer, mouthed by his client, and to safeguard the
morals and ethics of the legal profession.
We are not convinced that Atty. Laureta had nothing to do with respondent
Ilustre's letters to the individual Justices, nor with the com plaint filed before the
Tanodbayan. In the Motion for Reconsideration, dated June 11, 1986, filed by
Atty. Laureta in the main petition, he stressed:
10. The composition of the First Division was reduced to five members. Strangely
enough, about one month later, the Honorable Court promulgated its extended
resolution with such promptitude in the entire history of the Supreme Court,
unequaled in a manner of speaking, ...

In the Manifestation and Motion, dated June 25, 1986, filed by Atty. Laureta (p. 311,
Rollo), the same phrases were incanted:
the promptitude with which the Resolution of 14 May 1986 was promulgated (par. 9,
Motion for Reconsideration, p. 5) unequaled in the entire history of the Supreme Court in
so far as petitions given due course is concerned ... (Emphasis given)
Those same terms are reproduced verbatim in the letters ostensibly authored by
respondent Ilustre addressed to the individual Justices whom respondents have charged.
Thus:
We consider the three minute resolutions ... railroaded with such hurry/promptitude
unequalled in the entire history of the Supreme Court under circumstances that have
gone beyond the limits of legal and judicial ethics" ltr., to Justice Narvasa, p. 2; Itr., to
Justice Herrera, p. 2; Itr., to Justice Cruz, p. 2).
xxx xxx xxx
with such unusual hurry/promptitude unequalled in the entire history of the Supreme
Court (Ltr., to Justice Narvasa, p. 5; Itr., to Justice Herrera, p. 5; Itr., to Justice Cruz, p.
5).
The same terminologies are reiterated in the Complaint and in the Motion for
Reconsideration filed before the Tanodbayan (p. 2).
Further, in his Manifestation & Motion, dated June 25, 1986, Atty. Laureta stated:
counsel for petitioner personally inquired from Division Clerk of Court Corazon Served
the following:
(1) When was the above-entitled case deliberated by the First Division?
(2) Are there recorded minutes of such deliberation?
(3) Who among the members of the Division voted for dismissal of the petition to be
promulgated by resolution and who did not, if any?
(4) Who prepared the Resolution? (p.312, Rollo).
Atty. Laureta's obsession to receive the answer to his queries surfaces again in the
second letters dated November 3, 1986 to the individual Justices under the supposed
signatures of respondent Ilustre, thus:
Evidently you misunderstood our point of in our first letter. It is a very simple inquiry, to
wit Did you or did you not approve the dismissal of our petition under
1) The l4 May l986 minute resoluTion? Yes or No
2) The 9 July l986 minute resoluTion? Yes or No
3) The 3 Sept. 1986 minute resolution? Yes or No. (Emphasis supplied) ltr., to Justice
Narvasa, p. 1; to Justice Herrera, p. 1; to Justice Cruz, p. 1)
Additionally, the disparaging remarks like: exertion of "undue" and "powerful influence"
by Atty. Ordonez and Justice Yap; "distortion of facts, conjectures and mistaken
references"; "untenable minute resolution although extend. "unjust minute resolution"
repeated by Atty. Laureta in his several pleadings, echoed and re-echoed in the
individual letters to the Justices, as well as in the Complaint and the Motion for
Reconsideration before the Tanodbayan, reveal the not-too-hidden hand of Atty. Laureta.
The foregoing is bolstered by the reports received by the members of the Court that
copies of the complaint filed with the Tanodbayan were distributed to the editors of the

21
metropolitan newspapers in envelopes bearing the name of respondent Laureta,
who was heard over the radio speaking on the same complaint, and that he was
following up the complaint and the motion for reconsideration of the order of
dismissal of the Tanodbayan.
Furthermore, respondent Laureta as his co-respondent Ilustre's lawyer had
control of the proceedings. As stressed by this Court in an early case, as such
lawyer, "Whatever steps his client takes should be within his knowledge and
responsibility. Indeed, Canon 16 of the Canons of Legal E times should be
reminded him that '(a) lawyer should use his best efforts to restrain and to
prevent his clients from doing those things which the lawyer himself ought not to
do, particularly with reference to their conduct towards courts, judicial officers,
jurors, witnesses and suitors. If a client pursuits in such wrongdoing the lawyer
should terminate their relation.' " (In Re: Contempt Proceedings in Surigao
Mineral Reservation Board vs. Cloribel, 31 SCRA 1, 23) Respondent Laureta
manifestly failed to discharge such responsibility. For all intents and purposes, he
appears to have encouraged and abetted his client in denigrating the members of
the First Division of this Court, by baselessly charging them with rendering an
"unjust" resolution with "deliberate bad faith," because of his stubborn insistence
on his untenable arguments which had been rejected as without merit by the
Court's First Division, whose Resolution was upheld by the Court en banc.
Worse, the dissemination in the print and broadcast media in bold captions
falsely depicting the Justices as "FAC(ING) GRAFT CHARGES" instead of the
baseless rantings of a disgruntled litigant appear to have been timed to place
them in a bad light at the height of the Christmas season.
We come now to the specific accusations of respondents.
They charge Associate Justices Vicente Abad Santos (retired) then Chairman of
the First Division of the Supreme Court as of May 14,1986, Andres Narvasa,
Ameurfina M. Herrera, and Pedro Yap for knowingly and deliberately rendering
their "unjust, extended Resolution of May 14, 1986" dismissing their petition in
this case with manifest and evident bad faith to make the clients of Atty. Sedfrey
A. Ordonez (now the Solicitor General) the "illegal owners" of the estates of
Digna Maravilla, thereby causing the heirs of Ponciano Maravilla (Digna's eldest
brother) undue injury by depriving them of their rights over the estates of Digna
Maravilla (Charge No. Three before the Tanodbayan). They further charge
Justice Yap (and Atty. Sedfrey Ordonez) of having 11 persuade(ed), inducted(ed)
and influence(ed) the members of the newly organized First Division into
promulgating their "unjust, extended minute Resolution of 14 May 1986" (Charge
No. One before the Tanodbayan), which Resolution, (the "Division Resolution, "
for short) is herewith attached as Annex "A ".
Preliminarily, respondents deny that respondent Ilustre lost three times in this
Court. It cannot be denied, however, that, as stated in the Resolution of October
28, 1986 of the Court en banc, this is the third time (in fact, the fourth, if we
include Fernandez, et al. vs. Maravilla, L-18799, 10 SCRA 589 [1964]) that a

controversy involving the estate of the late Digna Maravilla is elevated to this Court. The
first was in G.R. No. L-23225 (37 SCRA 672 [1971], where this Court ruled:
IN VIEW OF THE FOREGOING, the decree of the court below denying probate of the
1944 will of Digna Maravilla (Exhibit "A") is reversed and the said testament is hereby
ordered probated. Let the records be returned to the Court of origin for further
proceedings conformable to law. ...
As stated in the en banc Resolution of October 28, 1986 (hereto attached as Annex " B ",
and hereinafter referred to as the "Banc Decision") while respondent Ilustre was not a
party in that case, upon remand of the case to the probate Court, she and other children
of the deceased brothers and sisters of the testatrix filed two Motions for Intervention.
Respondent Ilustre's participation in the state involved, therefore, harks back to that first
case.
The Court of Appeals resolved the issue of intervention in CA-G.R. No. 05394, entitled
"Heirs of Pastor Maravilla, et al. vs. Hon. Ernesto S. Tengco, et al." in a Decision penned
by Justice Venicio E scolin (hereinafter referred to as the "Escolin Decision") wherein it
was categorically ruled that there was no point to allowing intervention on the part of
respondent Ilustre, et al., "for failure to show any right or interest in the estate in
question. " Thus:
(2) As heretofore stated, private respondents, in their counter-petition for mandamus,
seek this Court's resolution on the petitioners' motion for intervention in Sp. Proc. No.
4977. In their respective pleadings and memoranda, the parties have lengthily discussed
the issue of whether or not petitioners may be allowed to intervene; and the same may
as well be determined in the present case, if only 'to avoid or, at least, minimize further
protracted controversy' between the parties (PCIB vs. Hon. Escolin, 56 SCRA 266). A
resolution of this issue should render moot and academic the question anent the
disqualification of respondent Judge.
We agree with private respondents that petitioners' motions for intervention are devoid of
merit, for failure on their part to show any right or interest in the estate in question. There
is no dispute that the last will and testament of the late Digna Maravilla had already been
admitted to probate in a final judgment which the Supreme Court promulgated on March
2, 1971 (G.R. No. L-23225). In the said will Digna instituted her husband Herminio
Maravilla as
xxx xxx xxx
The above testamentary provision for the universal heirship of Herminio Maravilla over
the residue of the decedent's present and future property legally and completely
excluded the petitioners, as collateral relatives of the testatrix, from inheriting any part of
the latter's estate through intestate succession or mixed succession. Having no forced or
compulsory heirs, except her husband, the testatrix had the absolute freedom to institute
the latter as her sole, universal heir, and such freedom is recognized by Article 842 of the
Civil Code which provides:
ART. 842. One who has no compulsory heirs may dispose by will of all his estate or any
part of it in favor of any person having capacity to succeed.

22
One who has compulsory heirs may dispose of his estate provided he does not
contravene the provisions of this Code with regard to the legitimate of said heirs.
There is therefore no point in allowing the petitioners, who clearly appear to have
no interest in the estate, to intervene in the proceedings involving the settlement
thereof.
xxx xxx xxx
The aforesaid Decision was affirmed by this Court in G.R. No. L-46155 on
November 9, 1977 and has become final. That was the second case involving
the estate filed before this Court.
Respondents' contention, therefore, that the statement in the Banc Resolution
"that the Court of Appeals had denied intervention" is an "unadulterated distortion
of the facts" is obviously erroneous and intended to mislead.
The "Escolin Decision" (in CA-G.R. No. 05394-R), which had become final, also
finally foreclosed any claim that respondent Ilustre, and those who sought to
intervene with her, may have had on the estate of Digna Maravilla. In
unmistakable terms, what the Court of Appeals held in that Decision, affirmed by
this Court, bears repeating:
The above testamentary provision for the universal heirship of Herminio Maravilla
over the residue of the decedent's present and future property legally and
completely excluded the petitioners, as collateral relatives of the testatrix, from
inheriting any part of the latter's estate through intestate succession or mixed
succession. ...
To circumvent that judgment, however, two years later, or on February 29, 1979,
respondent Ilustre, with respondent Laureta as counsel, filed a complaint for
partition of Digna Maravilla's estate and for damages against the heirs of Digna
Maravilla's husband, who had then passed away (docketed as Civil Case No. X404), before the Court of First Instance of Negros Occidental, San Carlos City,
Branch X, presided over by Judge Antonia Corpuz Macandog. That Court, after
declaring defendants therein (private respondents in the petition under review) in
default, ordered "all properties of Digna Maravilla mentioned in this case to go
back to their trunk of origin, the plaintiffs herein who are represented by Eva
Maravilla Ilustre and Eva Maravilla Ilustre herself" (hereinafter referred to as the
"Macandog Decision"). In addition, the judgment awarded damages to the
respondent Ilustre, et al., (the plaintiffs therein), and the sum of P100,000.00 to
their counsel, respondent Laureta.
A special civil action for certiorari was filed by the defeated parties (private
respondents in the petition under review) before this Court, docketed as G.R. No.
L-58014, praying that the lower Court's declaration of default in Civil Case No. X404 and all other actions or decisions taken thereafter be declared null and void
and that the dismissal of the complaint be ordered. On January 21, 1982, this
Court resolved to refer the case to the Court of Appeals in aid of its appellate
jurisdiction, questions of fact being involved.
In a Decision dated January 14, 1983, the Court of Appeals (Fourth
Division)', 1 in AC-G.R. SP No. 13680 (hereafter called the Busran Decision"),

dismissed the petition and denied certiorari stating in one breath that "the judgment
subject of assail had long become final" (at p. 13), and in another "for all we know, the
judgment below had already attained finality long ago." The reason relied upon was that
petitioners therein had the remedy of appeal but instead availed of Certiorari, which is
not a substitute therefor.
On motion for reconsideration, however, filed by petitioners (private respondents in the
petition under review), in that appealed case AC-GR SP No. 13680), the same Court of
Appeals (Fourth Special Cases Division) 2 in its Resolution of January 20, 1984 (the
"Javellana Resolution"), reconsidered and set aside the BusRan Decision" and entered
another one:
1. Annulling the order of default of the Hon. respondent Court dated 29 April 1980 and its
decision dated 11 August 1981; and
2. Dismissing private respondents' complaint in Civil Case No. X-404 and ordering the
Hon. respondent Court not to take further action therein.
Respondent Ilustre challenged that reversal in the present Petition for Review filed on
October 22, 1984. This is the third case brought before this Court involving the same
estate. Review was denied in an extended Resolution by the First Division of this Court
in the challenged Resolution of May 14, 1986, for the following reasons:
The appealed Decision stands on firm legal grounds.
(1) The Order of Default of the Trial Court was issued in grave abuse of discretion. The
Answer was only one day late besides the fact that when so filed, the Order of default
had not yet been issued by the Trial Court.
(2) While appeal is, indeed, the remedy from a judgment by default, certiorari may be
resorted to when a party has been illegally declared in 4 default Omico Mining &
Industrial Corporation vs. Vallejos 63 SCRA 300-301 [19751), or where it is necessary to
restore order to proceedings in the Court below (Lim Tanhu vs. Ramolete, 66 SCRA 462463 [19751).
(3) More importantly, the judgment of the Trial Court, in Civil Case No. X-404 declaring
that the Testatrix's collateral relatives have a rightful claim to her estate to the exclusion
of the husband who was designated her sole and universal heir, nullifies the Will already
probated by final judgment and overturns the pronouncements of both the Appellate
Court and this Court on the case.
There being former judgments on the issues which have become final rendered by
Courts having jurisdiction of the subject matter and the parties, the said judgments
having been rendered on the merits, and there being between the prior and subsequent
action Identity of parties, subject matter and substantial Identity of cause of action, it is
clear that the complaint below in Civil Case X-404 is barred by the principle of res
adjudicata, and whatever transpired therein are nun and void ab initio and without any
legal effect.
To rule otherwise would upset the fundamental issue on which res judicata rests that
parties ought not to be permitted to litigate the same issue more than once, that when a
right or fact has been judicially determined, the judgment of the Court, so long as it
remains unreversed, should be conclusive upon the parties and those in privity with them

23
in law or estate (Sarabia vs. Sec. of Agriculture and Natural Resources, 2 SCRA
54 [1961]).
ACCORDINGLY, the review sought for is denied and respondent Court's
judgment in CA-G.R. SP No. 13080 is hereby affirmed.
SO ORDERED.
Respondents decry the fact that the First Division set aside the due course Order
and denied review in an extended Minute Resolution instead of in a signed
Decision. They allege that said Resolution was "railroaded with such
hurry/promptitude unequalled in the entire history of the Supreme Court under
circumstances that have gone beyond the limits of legal and judicial ethics,"
unduly "persuaded, induced and influenced" by Solicitor General Ordonez and
Justice Pedro Yap.
Nothing is farthest from the truth. As explained in the "Banc Resolution"
The petition for review was assigned to the then First Division of seven Justices,
which initially gave it due course because the resolution of the Intermediate
Appellate Court had reversed a decision originally rendered by the then Court of
Appeals, and in order to have more time for further study.
Pleadings were submitted, the last being on May 3, 1985, which can be
considered as the date when this case was submitted for resolution.
The First Division of seven (7) was not able to act on the case up to the
February, 1986 political upheaval The last incident in the case was a motion for
the early release of decision filed by petitioner on November 19, 1985.
When this Court was reorganized in April of 1986, the membership of the First
Division was reduced to five (5) Justices. Taking account of the motion of
petitioner for early release of decision, the new First Division, then chairmanned
by Justice Abad Santos, realizing that the doctrine of res judicata was clearly
applicable not only as to the probate of the will but also as to the heirship of
petitioner, among others, and their right to intervene and participate in the
proceedings resolved, on May 14, 1986 to dismiss the petition through an
extended resolution which at the same time recalled the due course order. The
new Division of 5 acted unanimously.
The recall of a due course Order after a review of the records of the case is a
common occurrence in the Court. Respondents speak as if it were only their
petition which has been subjected to such recall. They have lost all objectivity in
this regard. They are hardly qualified, and cannot presume to speak of the I
entire history" of the Supreme Court.
As to the participation of Justice Yap in the ease, the "Banc Resolution" stated:
Justice Yap clarified that he was an official mission to Switzerland for the
Presidential Conunission on Good Government after his appointment to the
Supreme Court an April 11, 1986 and did not assume his position in the Supreme
Court his return on May 2, 1986. When the resolution of dismissal on May 14,
1986 was issued, Justice Yap was unaware that Atty. Sedfrey Ordonez was
private respondent's counsel.

On June 11, 1986, petitioner filed a motion for reconsideration, which was taken up by
the First Division on July 9, 1986 with Justice Abad Santos still the Chairman. This time,
Justice Yap, realizing that his former partner, Atty. Ordonez, had submitted the pleadings
for petitioner, inhibited himself and Justice Edgardo L. Paras was designated under
Special Order No. 21, dated July 9, 1986, to sit in the Division in his place. The motion
for reconsideration was denied with finality on July 9, 1986.
Justice Yap was designated Chairman of the First Division on July 14, 1986.
On August 7, 1986, petitioner asked leave to file a second motion for reconsideration,
which was denied on September 3, 1986, entry of judgment of the May 14, 1986
resolution having been made on July 28, 1986. Justice Yap again took no part in the
deliberation of the case.
But respondents continue to claim derisively that Justice Yap could not have been
"unaware" of the appearance of Atty. Sedfrey Ordonez. They reacted by saying "ten it to
the marines" (Letters of November 3, 1986 to Justices Narvasa, Herrera, and Cruz, at p.
8, respectively). But that was the true and untarnished fact. With so many cases being
handled by the Court, the appearances of lawyers during deliberative sessions very often
escape attention, concentration being centered on the issues to be resolved.
Respondents also fault the Court for "still recogniz(ing) Atty. Ordonez as counsel" for
their opponents in the case. In the same " Banc Resolution," it was clarified:
A copy of the resolution, dated May 14, 1986, was sent by the Releasing Clerks to Atty.
Sedfrey A. Ordonez as his name still appears on the cover page of the Rollo. It was not
necessarily because the Supreme Court still recognizes him as counsel for respondents
(at p. 4)
The fact of the matter is that even Atty. Laureta continued to recognize Atty. Ordonez as
counsel as shown by his pleadings filed before the Court, which inevitably contained the
notation "copy furnished Atty. Sedfrey Ordonez." No withdrawal of appearance having
been presented by Atty. Ordonez in the main petition, his name continues to be in the
Rollo of the case and the personnel concerned continue to furnish him with copies of
Resolutions of this Court.
In respect of the charge that the Resolutions of the First Division of May 14, 1986, July 9,
1986 denying the Motion for Reconsideration with finality, and September 3, 1986
denying leave to file a second motion for reconsideration since entry of judgment of the
May 14, 1986 Resolution had been made on July 28, 1986, were "unjust" and were
"railroaded," the Banc Resolution, adopting the Division Resolution, explained:
The aforesaid resolutions were by no means 'railroaded.' The pleadings filed by the
parties, as in any other case, were included in the Agenda of the First Division as soon
as feasible. The Division acts promptly on all Agenda items, and the minutes of its
deliberations are released as soon as possible after Agenda day.
xxx xxx xxx
The dispositions in this case were arrived at after careful study. Because a case is
resolved against the interests of a party, does not mean that it is an 'unjust decision;' or
that it has been "railroaded."

24
This Division declares without hesitation that it has consistently rendered justice
without fear or favor. (at p. 4)
Respondents insist that the doctrine of "res judicata" is inapplicable. In their own
words "the ordered probate of the 1944 Will of Digna Maravilla by judgment of
the Supreme Court in G.R. No. L-23225 is conclusive only as to the genuineness
and due execution of said will but not upon the validity of testamentary provision,
particularly with the invalid designation of Herminio Maravilla as sole and
universal heir of Digna Maravilla."
On this point, the "Javellana Resolution," in reversing the Busran Decision" ACGR SP No. 13680), aptly held:
The then Court of Appeals held that the questioned decision does not run counter
to the decision of the Hon. Supreme Court in G.R. No. L-23225 admitting the will
of Digna Maravilla to probate because the latter refers to the extrinsic validity of
the will while the former concerns its intrinsic validity. We cannot agree with this
observation because it is quite clear from the questioned decision that the will
was in effect declared not to have been freely and voluntarily executed by the
deceased Digna Maravilla but was the result of the evil and fraudulent
machinations of her husband, Herminio Maravilla, and sets aside said will The
declaration that private respondents, as collateral relatives of the deceased
Digna Maravilla, are entitled to her estate, is an indication that the Hon.
respondent Court has nullified the will. Private respondents are not compulsory
heirs and, in the absence of their being named legatees or devisees in the will,
they could only lay claim to the estate of Digna Maravilla if the latter died without
a will, pursuant to Art. 1003 of the New Civil Code, to wit:
Art. 1003. If there are no descendants ascendants, illegitimate children or a
surviving spouse, the collateral relatives shall succeed to the entire estate of the
deceased in accordance with the following articles.'
However, assuming arguendo, that the matter complain d of by private
respondents referred only to the intrinsic validity of the will, still, it was improper
for them to have instituted a separate action in a court other than that in which
the probate proceeding was pending.
xxx xxx xxx
It seems clear from these provisions of the law that while the estate is being
settled in the Court of First Instance in a special proceeding, no ordinary action
can be maintained in that court or in any other court by a person claiming to be
the heir, against the executor or against other persons claiming to be heirs, for
the purpose of having the rights of the plaintiffs in the estate determined The very
purpose of the trial or hearing provided for in section 753 is to settle and
determine those questions, and until they are settled and determined in that
proceeding and under that section no action such as the present one can be
maintained.
Considering that the "Escolin Decision, " as affirmed by this Court on November
9, 1977 in G.R. No. L-46155, had become final, the "Javellana Resolution" aptly
observed:

3. The questioned decision of the Hon. respondent Court dated 12 August 1981
(referring to the "Macandog Decision") unsettles and reviews issues which had long been
laid to rest by the Hon. Supreme Court and the then Court of Appeals.
But respondents ask: if res judicata were applicable, why did this Court, in G.R. No. L50814, refer the case to the Court of Appeals? The answer is simple. The issue of
whether the remedy of petitioners' in that case was appeal and not certiorari had to be
resolved. If certiorari were proper, then the "Macandog Decision" had not become final. If
appeal, its finality would be the consequence. The "Javellana Resolution," which
-reversed the Busran Decision," held that certiorari was proper when a party has been
illegally declared in default. It follows that the "Macandog Decision" had not attained
finality.
Still undaunted, respondents claim that the Court of Appeals "deliberately evaded
divaricated" two important issues: (1) that the judgment of the Trial Court (in CC No. X404) had attained finality as in fact the Court of Appeals had held that the "judgment of
assail had long become final," and (2) that Digna Maravilla's husband could not be
instituted as the sole and universal heir of the wife on indestructible ground of moral
impossibility and could not inherit wife's vast estate on the ground of utter unworthiness.
The penchant of respondents for making misleading statements is again obvious. It was
not in the "Javellana Resolution" that the Court of Appeals held that "the judgment of
assail (referring to the 'Macandog Decision') had long become final." That was in the
BurRan Decision," which was precisely reversed by the " Javellana Resolution."
As to the alleged unworthiness of the husband to inherit from his wife, the "Javellana
Resolution" pointedly observed:
The last will and testament of Digna Maravilla which instituted her husband, Herminio
Maravilla, as her sole and universal heir, was admitted to probate, pursuant to a final
judgment of the Hon. Supreme Court in G.R. No. L-23225, 27 February 1971. This
probate foreclosed all questions as to the age and mental capacity of the testator, the
signing of the document by the testator, or by someone in his behalf, and the
acknowledgment of the instrument by him in the presence of the required member of
witnesses who affix their signatures to the will to attest the act. In re Estate of Johnson,
39 Phil. 156, 168). Yet, more than ten years later, the Hon. respondent Court would
nullify the effects of the probate by declaring that Digna Maravilla did not voluntarily and
sanely execute the probated last will and testament, unifying the institution of Herminio
Maravilla as her sole and universal heir, and ordering the return of the properties of
Digna Maravilla to the trunk of origin.
The soundness of the legal conclusions arrived at in the "Escolin Decision" and
"Javellana Resolution" commends itself. Only a disgruntled litigant and a defeated lawyer
would claim that those judgments were accepted "hook, line and sinker" by this Court.
The doctrine of res judicata is inescapably applicable. Thus it was that the First Division,
in its challenged Resolution of May 14, 1986, found it unnecessary, after further study, to
have a signed Decision and, instead, recalled the due course Order, which it had
previously issued to give it "more time for further study" (p. 2, Banc Resolution, October
28, 1986). Contrary to respondents' claim, the Court is not "duty bound" to render signed

25
Decisions all the time. It has ample discretion to formulate Decisions and/or
minute Resolutions, provided a legal basis is given, depending on its evaluation
of a case.
But obdurately enough, respondents have seen fit to take their case to the
Tanodbayan charging the members of the First Division of this Court collectively
with having knowingly and deliberately rendered an "unjust extended minute
Resolution" with deliberate bad faith in violation of Article 204 of the Revised
Penal Code 3 and for deliberately causing "undue injury" to respondent Ilustre
and her co-heirs because of the 11 unjust Resolution" promulgated, in violation of
the AntiGraft and Corrupt Practices Act. 4
Respondents' action is brazenly unjustifiable. Nor can they plead ignorance. As
aptly declared in the Chief Justice's Statement of December 24, 1986, which the
Court hereby adopts in toto, "(I)t is elementary that the Supreme Court is
supreme the third great department of government entrusted exclusively with the
judicial power to adjudicate with finality all justiciable disputes, public and private.
No other department or agency may pass upon its judgments or declare them
"unjust." " It is elementary that "(A)s has ever been stressed since the early case
of Arnedo vs. Llorente (18 Phil. 257, 263 [1911]) "controlling and irresistible
reasons of public policy and of sound practice in the courts demand that at the
risk of occasional error, judgments of courts determining controversies submitted
to them should become final at some definite time fixed by law, or by a rule of
practice recognized by law, so as to be thereafter beyond the control even of the
court which rendered them for the purpose of correcting errors of fact or of law,
into which, in the opinion of the court it may have fallen. The very purpose for
which the courts are organized is to put an end to controversy, to decide the
questions submitted to the litigants, and to determine the respective rights of the
parties." (Luzon Brokerage Co., Inc. vs. Maritime Bldg., Co., Inc., 86 SCRA 305,
316-317)
Respondents should know that the provisions of Article 204 of the Revised Penal
Code as to "rendering knowingly unjust judgment" refer to an individual judge
who does so "in any case submitted to him for decision" and even then, it is not
the prosecutor who would pass judgment on the "unjustness" of the decision
rendered by him but the proper appellate court with jurisdiction to review the
same, either the Court of Appeals and/or the Supreme Court. Respondents
should likewise know that said penal article has no application to the members of
a collegiate court such as this Court or its Divisions who reach their conclusions
in consultation and accordingly render their collective judgment after due
deliberation. It also follows, consequently, that a charge of violation of the
AntiGraft and Corrupt Practices Act on the ground that such a collective decision
is "unjust" cannot prosper.
The Chief Justice's Statement of the supremacy of the Supreme Court's judicial
power is by no means a "display of arrogance" as per respondents' puerile
contention, but a restatement of the fundamental principle of separation of
powers and checks and balances under a republican form of government such

as ours, viz. that the three co-equal branches of government, the executive, legislative
and judicial, are each supreme and independent within the limits of its own sphere
Neither one can interfere with the performance of the duties of the other. (Forbes vs.
Chuoco 16 Phil. 534 [1910]). As restated by the late Justice Jose P. Laurel in the 1936
landmark case of Angara vs. Electoral Commission (63 Phil. 134), our Constitution "as a
definition of the powers of government"placed upon the judiciary the great burden of
"determining the nature, scope and extent of such powers" and 'when the judiciary
mediates to allocate constitutional boundaries, it does not assert any superiority over the
other departments . . . but only asserts the solemn and sacred obligation entrusted 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 the instrument
secures and guarantees to them.' "
As an officer of the Court, respondent Laureta, should realize that the cardinal principle
he would grossly impair and violate is that of the independence of the judiciary, which the
members of the bar are called upon to defend and preserve. The independence of the
judiciary is the indispensable means for enforcing the supremacy of the Constitution and
the rule of law.
To subject to the threat and ordeal of investigation and prosecution, a judge, more so a
member of the Supreme Court for official acts done by him in good faith and in the
regular exercise of official duty and judicial functions is to subvert and undermine that
very independence of the judiciary, and subordinate the judiciary to the executive. "For it
is a general principle of the highest importance to the proper administration of justice that
a judicial officer in exercising the authority vested in him, shall be free to act upon his
own convictions, without apprehension of personal consequences to himself. Liability to
answer to everyone who might feel himself aggrieved by the action of the judge would be
inconsistent with the possession of this freedom, and would destroy that independence
without which no judiciary can be either respectable or useful." (Bradley vs. Fisher, 80
U.S. 335).
Indeed, resolutions of the Supreme Court as a collegiate court, whether en banc or
division, speak for themselves and are entitled to full faith and credence and are beyond
investigation or inquiry under the same principle of conclusiveness of enrolled bills of the
legislature. (U.S. vs. Pons 34 Phil 729; Gardiner, et al. vs. Parades, et al., 61 Phil. 118;
Mabanag vs. Lopez Vito, 78 Phil. 1) The Supreme Court's pronouncement of the doctrine
that "(I)t is well settled that the enrolled bill . . . is conclusive upon the courts as regards
the tenor of the measure passed by Congress and approved by the President. If there
has been any mistake in the printing of the bill before it was certified by the officers of
Congress and approved by the Executive [as claimed by petitioner-importer who
unsuccessfully sought refund of margin fees] on which we cannot speculate, without
jeopardizing the principle of separation of powers and undermining one of the
cornerstones of our democratic system the remedy is by amendment or curative
legislation, not by judicial decree" is fully and reciprocally applicable to Supreme Court
orders, resolutions and decisions, mutatis mutandis (Casco Phil. Chemical Co., Inc. vs.

26
Gimenez, 7 SCRA 347, 350. (Citing Primicias vs. Paredes, 61 Phil. 118, 120;
Mabanag vs. Lopez Vito, 78 Phil. 1; Macias vs. Comelec, 3 SCRA 1)
The Court has consistently stressed that "the doctrine of separation of
powers calls for the executive, legislative and judicial departments being left
alone to discharge their duties as they see fit (Tan vs. Macapagal, 43 SCRA 677).
It has thus maintained in the same way that the judiciary has a right to expect
that neither the President nor Congress would cast doubt on the mainspring of its
orders or decisions, it should refrain from speculating as to alleged hidden forces
at work that could have impelled either coordinate branch into acting the way it
did. The concept of separation of powers presupposes mutual respect by and
between the three departments of the government. (Tecson vs. Salas, 34 SCRA
275, 286-287)
To allow litigants to go beyond the Court's resolution and claim that the members
acted "with deliberate bad faith" and rendered and "unjust resolution" in disregard
or violation of the duty of their high office to act upon their own independent
consideration and judgment of the matter at hand would be to destroy the
authenticity, integrity and conclusiveness of such collegiate acts and resolutions
and to disregard utterly the presumption of regular performance of official duty. To
allow such collateral attack would destroy the separation of powers and
undermine the role of the Supreme Court as the final arbiter of all justiciable
disputes.
Dissatisfied litigants and/or their counsels cannot without violating the separation
of powers mandated by the Constitution relitigate in another forum the final
judgment of this Court on legal issues submitted by them and their adversaries
for final determination to and by the Supreme Court and which fall within the
judicial power to determine and adjudicate exclusively vested by the Constitution
in the Supreme Court and in such inferior courts as may be established by law.
In resume, we find that respondent Ilustre has transcended the permissible
bounds of fair comment and criticism to the detriment of the orderly
administration of justice in her letters addressed to the individual Justices quoted
in the show-cause Resolution of this Court en banc, particularly the underlined
portions thereof; in the language of the charges she filed before the Tanodbayan
quoted and underscored in the same Resolution; in her statements, conduct, acts
and charges against the Supreme Court and/or the official actions of the Justices
concerned and her ascription of improper motives to them; and in her unjustified
outburst that she can no longer expect justice from this Court. The fact that said
letters are not technically considered pleadings, nor the fact that they were
submitted after the main petition had been finally resolved does not detract from
the gravity of the contempt committed. The constitutional right of freedom of
speech or right to privacy cannot be used as a shield for contemptuous acts
against the Court.
We likewise find that Atty. Laureta has committed acts unbecoming an officer of
the Court for his stance of dangling threats of bringing the matter to the "proper
forum" to effect a change of the Court's adverse Resolution; for his lack of

respect for and exposing to public ridicule, the two highest Courts of the land by
challenging in bad faith their integrity and claiming that they knowingly rendered unjust
judgments (Montecillo vs. Gica 60 SCRA 234 [1974]); for authoring, or at the very least,
assisting and/or abetting and/or not preventing the contemptuous statements, conduct,
acts and malicious charges of his client, respondent Ilustre, notwithstanding his
disclaimer that he had absolutely nothing to do with them, which we find disputed by the
facts and circumstances of record as above stated; for totally disregarding the facts and
circumstances and legal considerations set forth in this Court's Resolutions of the First
Division and en banc, as the Tribunal of last resort; for making it appear that the Justices
of this Court and other respondents before the Tanodbayan are charged with "graft and
corruption" when the complaint before the Tanodbayan, in essence, is a tirade from a
disgruntled litigant and a defeated counsel in a case that has been brought thrice before
this Court, and who would readily accept anything but the soundness of the judgments of
the Courts concerned, all with the manifest intent to bring the Justices of this Court and
of the Court of Appeals into disrepute and to subvert public confidence in the Courts.
Atty. Laureta should be reminded that his first duty is not to his client but to the
administration of justice; to that end, his chent's success is wholly subordinate; and his
conduct ought to and must always be scrupulously observant of law and ethics. For like
the Court itself, "a lawyer is an instrument or agency to advance the ends of justice."
(Surigao Mineral Conservation Board vs. Cloribel, 31 SCRA 1 [1970]; Castaneda vs.
Ago, 65 SCRA 505 [1975[).
In assessing the penalty on respondent Laureta, the Court notes that "disciplinary
proceedings against lawyers are suit generis. Neither purely civil nor purely criminal, they
do not involve a trial of an action or a suit, but are rather investigations by the Court into
the conduct of one of its officers. Not being intended to inflict punishment, it is in no
sense a criminal prosecution. Accordingly, there is neither a plaint nor a prosecutor
therein. It may be initiated by the Court motu proprio. Public interest is its primary
objective, and the real question for determination is whether or not the attorney is still a
fit person to be allowed the privileges as such. Hence, in the exercise of its disciplinary
powers, the Court merely calls upon a member of the Bar to account for his actions as an
officer of the Court with the end in view of preserving the purity of the legal profession
and the proper and honest administration of justice by purging the profession of
members who by their misconduct have proved themselves no longer worthy to be
entrusted with the duties and responsibilities pertaining to the office of an attorney."
Viewed in the light of the demonstrated persistence of grave misconduct and
undermining public confidence in the honor and integrity of the Court and its members (at
a time when the Court is exerting every effort to regain public confidence in our courts
after the trauma and debacle undergone by them in the past regime), the Court shall
impose upon him an indefinite suspension, leaving it to him to prove at some future and
opportune time, that he shag have once again regained the fitness to be allowed to
resume the practice of law as an officer of the Courts. (In re: Almacen, 31 SCRA 562)
ACCORDINGLY, (1) respondent Eva Maravilla Ilustre is hereby held in contempt, and is
hereby fined in the amount of P1,000.00 only, mindful that the power of contempt should

27
be exercised on the preservative and not on the vindictive principle of
punishment; and
(2) Atty. Wenceslao Laureta is found guilty of grave professional misconduct,
rendering him unfit to continue to be entrusted with the duties and responsibilities
belonging to the office of an attorney, and is hereby suspended from the practice
of law until further Orders, the suspension to take effect immediately.
Let copies of this Resolution be circulated to all Courts of the country for their
information and guidance, and spread in the personal record of Atty. Wenceslao
Laureta.
SO ORDERED.
Teehankee, C.J., Fernan, Narvasa, Melencio-Herrera, Alampay, Gutierrez, Jr.,
Cruz, Paras, Feliciano, Gancayco, Padilla, Bidin, Sarmiento and Cortes, JJ.,
concur.
Yap, J., took no part.
Footnotes
1 Composed of Justices Busran (ponente), Coquia and Zosa, as members.
2 Composed of Justices Cuevas, Mendoza and Javena ponente
3 ART. 204. Knowingly rendering unjust judgment. Any judge who shall knowingly
render an unjust judgment in any case submitted to him for decision, shall be
punished by prision mayor and perpetual absolute disqualification.
4 SEC. 3. Corrupt practices of public officers.
xxx xxx xxx
(e) Causing any undue injury to any party, including the Government, or any
private party any unwarranted benefits, advantage or preference in the discharge
of his official administrative or judicial functions through manifest partiality,
evident bad faith or gross inexcusable negligence. ...
SECOND DIVISION
[G.R. No. 135406. July 11, 2000]
DAVID GUTANG Y JUAREZ, petitioner, vs. PEOPLE OF THE
PHILIPPINES, respondent.
DECISION
DE LEON, JR., J.:
Before us is a petition for review on certiorari assailing the Decision[1] dated
September 9, 1998 rendered by the former Twelfth Division of the Court of
Appeals in CA-G.R. CR No. 19463. The assailed Decision affirmed the
judgment[2] dated October 13, 1995 of the Regional Trial Court of Pasig, Metro
Manila, finding petitioner David J. Gutang guilty beyond reasonable doubt for
violation of Sections 8 and 16 of RA 6425, as amended, (for illegal possession
and use of prohibited drugs) as charged in Criminal Cases Nos. 2696-D and
2697-D, respectively.
The facts are as follows:

On March 5, 1994, accused-appellant David Gutang, together with Noel Regala, Alex
Jimenez and Oscar de Venecia, Jr., was arrested by elements of the PNP NARCOM, in
connection with the enforcement of a search warrant[3] in his residence at No. 331
Ortigas Avenue, Greenhills, San Juan, Metro Manila. When the police operatives of the
PNP-NARCOM served the search warrant, which was issued by Judge Martin Villarama,
Jr. of the Regional Trial Court, Branch 156, Pasig, Metro Manila, they found the petitioner
and his three (3) companions inside the comfort room of the masters bedroom, at the
second floor of the house.[4] During the search, the following materials were found on
top of a glass table inside the masters bedroom:
a. shabu paraphernalias, such as tooters;
b. aluminum foil;
c. two (2) burners (one small, one big);
d. fourteen (14) disposable lighters;
e. three (3) weighing scales;
f. plastic sealant used in repacking shabu;
g. several transparent plastic bags of different sizes;
h. about 1.4 grams of suspected marijuana fruiting tops contained in a small white
plastic;
i. about 0.7 gram of suspected dried marijuana contained in a small plastic container.[5]
The PNP-NARCOM team also inspected the cars of accused Regala, Jimenez and de
Venecia, Jr. which were parked inside the compound of the residence of petitioner
Gutang. They found a Winchester Rayban case (sunglasses) with an undetermined
amount of suspected shabu residues and tooters in a black plastic container and
aluminum foil inside the car of Regala. The cars of Jimenez and de Venecia, Jr. yielded
negative results. The items which were confiscated were then brought to the crime
laboratory of the Philippine National Police (PNP) at Camp Crame, Quezon City for
laboratory tests. The results of the laboratory examinations showed that the said items
found in the masters bedroom of the residence of petitioner Gutang were positive for
marijuana and methamphetamine hydrochloride (shabu). The items found inside the car
of Regala were also positive for shabu.
The findings are as follows:
PHYSICAL SCIENCES REPORT NO. D-168-94
CASE: Alleged Viol. Of RA 6425
SUSPECTS: DAVID GUTANG Y JUAREZ
NOEL REGALA Y YORRO
ALEX JIMENEZ Y ESPINOSA
CAREY DE VENECIA Y LOCSIN
TIME AND DATE RECEIVED: 1430H, 05 MARCH 1994
REQUESTING PARTY/UNIT: C, 2nd SOG NARCOM
Camp Crame, Q.C.
SPECIMEN SUBMITTED:
Exh. A One (1) white plastic bag containing the following:

28
Exh. A-1 One (1) white film case with dried suspected marijuana fruiting tops
weighing 1.56 grams.
Exh. A-2 One (1) small black box with dried suspected marijuana fruiting tops
weighing 0.70 gram.
Exh. A-3 Two (2) pieces of improvised tooter with white crystalline residue.
Exh. A-4 Several foil and small plastic bag with white crystalline residue.
Exh. B One (1) white plastic bag marked ROEL REGALA containing the
following:
Exh. B-1 One (1) Winchester case with white crystalline substance.
Exh. B-2 One (1) black case containing several tooters with white crystalline
residue.
PURPOSE OF LABORATORY EXAMINATION:
To determine the presence of prohibited and/or regulated drug.
FINDINGS:
Qualitative examination conducted on the above-stated specimen gave the
following results:
1. Exhs. A-1 and A-2 POSITIVE to the test for Marijuana, a prohibited drug.
2. Exhs. A-3, A-4, B-1 and B-2 POSITIVE to the test for methamphetamine
hydrochloride (shabu), a regulated drug.
CONCLUSION
Exhs. A-1 and A-2 contain marijuana, a prohibited drug.
Exhs. A-3, A-4, B-1 and B-2 contain Methamphetamine Hydrochloride (shabu) a
regulated drug. xxx
REMARKS:
TIME AND DATE COMPLETED: 1630H, Or
March 1994
(Annex A, pp. 6-8)
On the same day, March 5, 1994, immediately after Gutang, Regala, Jimenez
and de Venecia, Jr. were placed under arrest, they were brought to the PNP
Crime Laboratory at Camp Crame. According to PNP Forensic Chemist Julita De
Villa, their office received from PNP-NARCOM which is also based in Camp
Crame a letter-request for drug dependency test on the four (4) men.[6] After
receiving the said request, Mrs. Esguerra of the PNP Crime Laboratory asked the
four (4) men including the petitioner to give a sample of their urine. The petitioner
and his co-accused complied and submitted their urine samples to determine the
presence of prohibited drugs. After examining the said urine samples, PNP
Forensic Chemist De Villa came out with Chemistry Report No. DT-107-94[7] and
Physical Report No. DT-107-94[8] dated March 9, 1994, showing that the said
urine samples all tested positive for the presence of methamphetamine
hydrochloride (shabu).
Consequently, the informations in Criminal Cases Nos. 2696-D and 2697-D were
filed in court against the petitioner and his companions for violation of Sections 8
and 16 of Republic Act No. 6425, (otherwise known as the Dangerous Drugs Act)
as amended by Republic Act No. 7659. Incidentally, the charge against accused

Oscar de Venecia, Jr. was dismissed by the trial court in an Order[9] dated August 3,
1994 on the ground that he voluntarily submitted himself for treatment, rehabilitation and
confinement at the New Beginnings Foundation, Inc., a private rehabilitation center
accredited by the Dangerous Drugs Board.
Upon arraignment, petitioner Gutang entered a plea of not guilty. His co-accused, Regala
and Jimenez, likewise pleaded not guilty. Thereafter, joint trial of the cases
proceeded. However, petitioner Gutang did not present any evidence.
After trial, the lower court rendered its decision, the dispositive portion of which reads:
WHEREFORE, foregoing considered, the Court finds 1) accused DAVID GUTANG and
ALEXANDER JIMENEZ in Criminal Case No. 2696-D, GUILTY beyond reasonable doubt
for violation of Section 8 of R.A. 6425 as amended (Possession and use of prohibited
drug); and are hereby sentenced to suffer a penalty of six (6) months of arresto mayor to
two (2) years, four (4) months of prision correccional and to pay the costs; 2) In Criminal
Case No. 2697-D (Possession) accused DAVID GUTANG, NOEL REGALA and
ALEXANDER JIMENEZ, GUILTY beyond reasonable doubt of violation of Section 16
(ibid) and are hereby sentenced to suffer a penalty of six (6) months of arresto mayor to
two (2) years, four (4) months of prision correccional and to pay the costs; 3) accused
NOEL REGALA, in Criminal Case No. 2698-D (Possession of regulated drugs) is hereby
sentenced to suffer a penalty of six (6) months ofarresto mayor to two (2) years, four (4)
months of prision correccional and to pay the costs.
The items confiscated are ordered forfeited in favor of the government and to be
disposed of in accordance with law.
SO ORDERED.[10]
The judgment of conviction of the lower court was affirmed by the Court of Appeals.
Hence, this petition wherein the petitioner raises the following assignments of error:
I
THE COURT OF APPEALS ERRED IN NOT FINDING THAT THE RECEIPT FOR
PROPERTY SEIZED; EXHIBIT I AND EXHIBIT R; THE PHYSICAL SCIENCE REPORT
NO. D-168-94. EXHIBIT D; THE CHEMISTRY REPORT NO. DT-107-94, EXHIBIT L;
AND THE PHYSICAL SCIENCE REPORT NO. DT-107-94, EXHIBIT M ARE
INADMISSIBLE IN EVIDENCE.
II
THE COURT OF APPEALS ERRED IN NOT FINDING THAT THE PRESUMPTION OF
INNOCENCE OF THE ACCUSED HAS NOT BEEN OVERCOME BY PROOF BEYOND
REASONABLE DOUBT.
We affirm the conviction of the petitioner.
Petitioner insists that the trial court erred in admitting in evidence Exhibits I and R, which
are the Receipts of Property Seized, considering that it was obtained in violation of his
constitutional rights. The said Receipts for Property Seized, which described the
properties seized from the petitioner by virtue of the search warrant, contain his
signature.According to petitioner, inasmuch as the said evidence were obtained without
the assistance of a lawyer, said evidence are tantamount to having been derived from an

29
uncounselled extra-judicial confession and, thus, are inadmissible in evidence for
being fruits of the poisonous tree.
We agree. It has been held in a long line of cases that the signature of the
accused in the Receipt of Property Seized is inadmissible in evidence if it was
obtained without the assistance of counsel.[11] The signature of the accused on
such a receipt is a declaration against his interest and a tacit admission of the
crime charged for the reason that, in the case at bar, mere unexplained
possession of prohibited drugs is punishable by law. Therefore, the signatures of
the petitioner on the two (2) Receipts of Property Seized (Exhibits I and R) are
not admissible in evidence, the same being tantamount to an uncounselled extrajudicial confession which is prohibited by the Constitution.
Petitioner further contends that since the Receipts for Property Seized (Exhibits I
and R) are inadmissible in evidence, it follows that the Physical Science Reports
Nos. D-168-94 and DT-107-94 (Exhibit D and M) and Chemistry Report No. DT107-94 (Exhibit L) finding the said items seized to be positive for marijuana and
shabu, are also inadmissible inasmuch as they are mere conclusions drawn from
the said Receipts and hence a part thereof.
We disagree. The fact that the Receipts of Property Seized (Exhibits I and R) are
inadmissible in evidence does not render inadmissable the Physical Science
Reports (Exhibit D and M) and the Chemistry Report (Exhibit L) inasmuch as the
examined materials were legally seized or taken from the petitioners bedroom on
the strength of a valid search warrant duly issued by Judge Villarama, Jr. of the
Regional Trial Court of Pasig, Metro Manila. Since the said materials were validly
seized or taken from the bedroom of the petitioner in his presence, the laboratory
tests conducted thereon were legally and validly done. Hence, the said Reports
containing the results of the laboratory examinations, aside from the testimonial
and other real evidence of the prosecution, are admissible in evidence and
sufficiently proved that the petitioner used and had the said prohibited drugs and
paraphernalia in his possession. In other words, even without the Receipts of
Property Seized (Exhibits I and R) the alleged guilt of the petitioner for the crimes
charged were proven beyond reasonable doubt.
Petitioner also posits the theory that since he had no counsel during the custodial
investigation when his urine sample was taken and chemically examined,
Exhibits L and M, which are the respective Chemistry and Physical Reports, both
dated March 9, 1994, are also inadmissible in evidence since his urine sample
was derived in effect from an uncounselled extra-judicial confession. Petitioner
claims that the taking of his urine sample allegedly violates Article III, Section 2 of
the Constitution, which provides that:
Sec. 2. The right of the people to be secure in their person, houses, papers, and
effects against unreasonable searches and seizures of whatever nature and for
any purpose shall be inviolable, and no search warrant or warrant of arrest shall
issue except upon probable cause to be determined personally by the judge after
examination under oath or affirmation of the complainant and the witnesses he

may produce, and particularly describing the place to be searched and the person or
things to be seized.
We are not persuaded. The right to counsel begins from the time a person is
taken into custody and placed under investigation for the commission of a crime, i.e.,
when the investigating officer starts to ask questions to elicit information and/or
confession or admissions from the accused. Such right is guaranteed by the Constitution
and cannot be waived except in writing and in the presence of counsel. However, what
the Constitution prohibits is the use of physical or moral compulsion to extort
communication from the accused, but not an inclusion of his body in evidence, when it
may be material.[12] In fact, an accused may validly be compelled to be photographed or
measured, or his garments or shoes removed or replaced, or to move his body to enable
the foregoing things to be done, without running afoul of the proscription against
testimonial compulsion.[13] The situation in the case at bar falls within the exemption
under the freedom from testimonial compulsion since what was sought to be examined
came from the body of the accused. This was a mechanical act the accused was made
to undergo which was not meant to unearth undisclosed facts but to ascertain physical
attributes determinable by simple observation. In fact, the record shows that petitioner
and his co-accused were not compelled to give samples of their urine but they in fact
voluntarily gave the same when they were requested to undergo a drug test.[14]
Assuming arguendo that the urine samples taken from the petitioner are inadmissible in
evidence, we agree with the trial court that the record is replete with other pieces of
credible evidence including the testimonial evidence of the prosecution which point to the
culpability of the petitioner for the crimes charged.
First of all, the petitioner has not satisfactorily explained the presence in his bedroom of
the assorted drug paraphernalia[15] and prohibited drugs found atop a round table
therein at the time of the raid.[16] Petitioners feeble excuse that he and his co-accused
were not in the masters bedroom but inside the comfort room deserves scant
consideration since the comfort room is part of the masters bedroom.[17] Prosecution
witness Capt. Franklin Moises Mabanag, head of the said PNP-NARCOM raiding team,
testified that when petitioner was arrested, the latter showed manifestations and signs
that he was under the influence of drugs, to wit:
By Fiscal Villanueva (To the witness)
Q: Mr. Witness, why was a drug defendant (sic) test requested on the persons of David
Gutang, Noel Regala, Alexander Jimenez and Oscar de Venecia?
A: A drug test was made on them because when we held these persons David Gutang,
Noel Regala, Alexander Jimenez and Oscar de Venecia, they showed manifestations
and signs that they are under the influence of drugs.
Atty. Arias:
That is a conjectural answer. The witness is not authorized to testify on that.
Fiscal Villanueva:
We agreed as to the expertise of this witness at the time when I was qualifying him
(interrupted)
By Fiscal Villanueva (To the witness)

30
Court:
At any rate, that was only his observation it is not necessarily binding to the
court, that is his testimony, let it remain.
Atty. Arias:
But the rule is clear.
Court:
That is what he observed.
Fiscal Villanueva:
And what is this manifestation that you observed?
Atty. Arias:
Precisely, that is already proving something beyond what his eyes can see.
Fiscal Villanueva:
That is part of his testimony.
Court:
Let the witness answer.
Witness:
I observed they are profusely sweating and their lips are dry, I let them show their
tongue and it was whitish and their faces are pale, reason why we made the
necessary request for drug test.[18]
It is worth noting that the search warrant was served only after months of
surveillance work by the PNP-NARCOM operatives led by Chief Inspector
Franklin Mabanag in the residence of petitioner. Earlier, a confidential informant
had even bought a gram of shabu from petitioner Gutang. Prosecution witness
Mabanag also found, during the surveillance, persons who frequented the house
of petitioner, and that the confidential informant of the PNP-NARCOM had in fact
gained entry into the house. The police officers are presumed to have performed
the search in the regular performance of their work. Allegedly improper motive on
the part of the PNP-NARCOM team must be shown by the defense, otherwise,
they are presumed to be in the regular performance of their official duties.[19] But
the defense failed to do so.
All told, in the face of the evidence adduced by the prosecution, it is clear that
petitioner is guilty beyond reasonable doubt of the crimes charged.
WHEREFORE, the petition is hereby DENIED. The decision of the Court of
Appeals affirming the judgment of the Regional Trial Court is AFFIRMED.
SO ORDERED.
Bellosillo, (Chairman), Mendoza, Quisumbing, and Buena, JJ., concur.
EN BANC
KILUSANG MAYO UNO,
NATIONAL FEDERATION OF
LABOR UNIONS-KILUSANG
MAYO UNO (NAFLU-KMU),

G.R. No. 167798

JOSELITO V. USTAREZ,
EMILIA P. DAPULANG,
SALVADOR T. CARRANZA,
MARTIN T. CUSTODIO, JR. and
ROQUE M. TAN,
Petitioners,
- versus THE DIRECTOR-GENERAL,
NATIONAL ECONOMIC
DEVELOPMENT AUTHORITY,
and THE SECRETARY,
DEPARTMENT OF BUDGET and
MANAGEMENT,
Respondents.
x- - - - - - - - - - - - - - - - - - - - - - - - - - - - - -x
BAYAN MUNA Representatives G.R. No. 167930
SATUR C. OCAMPO, TEODORO
A. CASIO, and JOEL G. VIRADOR, Present:
GABRIELA WOMENS PARTY
Representative LIZA L. MAZA, PANGANIBAN, C.J.,
ANAKPAWIS Representatives PUNO,
RAFAEL V. MARIANO QUISUMBING,
and CRISPIN B. BELTRAN, YNARES-SANTIAGO,
Rep. FRANCIS G. ESCUDERO, SANDOVAL-GUTIERREZ,
Rep. EDUARDO C. ZIALCITA, CARPIO,
Rep. LORENZO R. TAADA III, AUSTRIA-MARTINEZ,
DR. CAROL PAGADUAN-ARAULLO CORONA,
and RENATO M. REYES, JR. CARPIO-MORALES,

of BAYAN, MARIE HILAO-ENRIQUEZ CALLEJO, SR.,

of KARAPATAN, ANTONIO L. TINIO AZCUNA,
of ACT, FERDINAND GAITE TINGA,
of COURAGE, GIOVANNI A. TAPANG CHICO-NAZARIO,
of AGHAM, WILFREDO MARBELLA GARCIA, and
of KMP, LANA LINABAN of GABRIELA, VELASCO, Jr., JJ.
AMADO GAT INCIONG,
RENATO CONSTANTINO, JR.,
DEAN PACIFICO H. AGABIN,

31
SHARON R. DUREMDES of the
NATIONAL COUNCIL OF CHURCHES
IN THE PHILIPPINES, and
BRO. EDMUNDO L. FERNANDEZ (FSC)
of the ASSOCIATION OF MAJOR
RELIGIOUS SUPERIORS OF THE
PHILIPPINES (AMRSP),
Petitioners,
- versus EDUARDO ERMITA, in his capacity as
Executive Secretary, ROMULO NERI,
in his capacity as Director-General
of the NATIONAL ECONOMIC and
DEVELOPMENT AUTHORITY (NEDA)
and the Administrator of the Promulgated:
NATIONAL STATISTICS OFFICE (NSO),
Respondents. April 19, 2006
x-----------------------------------------------------x
DECISION
CARPIO, J.:
This case involves two consolidated petitions for certiorari, prohibition, and
mandamus under Rule 65 of the Rules of Court, seeking the nullification of
Executive Order No. 420 (EO 420) on the ground that it is unconstitutional.
EO 420, issued by President Gloria Macapagal-Arroyo on 13 April 2005, reads:
REQUIRING ALL GOVERNMENT AGENCIES AND GOVERNMENT-OWNED
AND CONTROLLED CORPORATIONS TO STREAMLINE AND HARMONIZE
THEIR IDENTIFICATION (ID) SYSTEMS, AND AUTHORIZING FOR SUCH
PURPOSE THE DIRECTOR-GENERAL, NATIONAL ECONOMIC AND
DEVELOPMENT AUTHORITY TO IMPLEMENT THE SAME, AND FOR OTHER
PURPOSES
WHEREAS, good governance is a major thrust of this Administration;
WHEREAS, the existing multiple identification systems in government have
created unnecessary and costly redundancies and higher costs to government,
while making it inconvenient for individuals to be holding several identification
cards;

WHEREAS, there is urgent need to streamline and integrate the processes and issuance
of identification cards in government to reduce costs and to provide greater convenience
for those transacting business with government;
WHEREAS, a unified identification system will facilitate private businesses, enhance the
integrity and reliability of government-issued identification cards in private transactions,
and prevent violations of laws involving false names and identities.
NOW, THEREFORE, I, GLORIA MACAPAGAL-ARROYO, President of the Republic of
the Philippines by virtue of the powers vested in me by law, do hereby direct the
following:
Section 1. Adoption of a unified multi-purpose identification (ID) system for
government. All government agencies, including government-owned and controlled
corporations, are hereby directed to adopt a unified multi-purpose ID system to ensure
the attainment of the following objectives:
a. To reduce costs and thereby lessen the financial burden on both the government and
the public brought about by the use of multiple ID cards and the maintenance of
redundant database containing the same or related information;
b. To ensure greater convenience for those transacting business with the government
and those availing of government services;
c.
To facilitate private businesses and promote the wider use of the unified ID
card as provided under this executive order;
d.
To enhance the integrity and reliability of government-issued ID cards; and
e. To facilitate access to and delivery of quality and effective government service.
Section 2. Coverage All government agencies and government-owned and controlled
corporations issuing ID cards to their members or constituents shall be covered by
this executive order.
Section 3. Data requirement for the unified ID system The data to be collected and
recorded by the participating agencies shall be limited to the following:
Name
Home Address
Sex
Picture
Signature
Date of Birth
Place of Birth
Marital Status
Names of Parents
Height
Weight
Two index fingers and two thumbmarks
Any prominent distinguishing features like moles and others
Tax Identification Number (TIN)

32
Provided that a corresponding ID number issued by the participating agency and
a common reference number shall form part of the stored ID data and, together
with at least the first five items listed above, including the print of the right
thumbmark, or any of the fingerprints as collected and stored, shall appear on the
face or back of the ID card for visual verification purposes.
Section 4. Authorizing the Director-General, National Economic and
Development Authority, to Harmonize All Government Identification Systems. The
Director-General, National Economic Development Authority, is hereby
authorized to streamline and harmonize all government ID systems.
Section 5. Functions and responsibilities of the Director-General, National
Economic and Development Authority. In addition to his organic functions and
responsibilities, the Director-General, National Economic and Development
Authority, shall have the following functions and responsibilities:
a. Adopt within sixty (60) days from the effectivity of this executive order a unified
government ID system containing only such data and features, as indicated in
Section 3 above, to validly establish the identity of the card holder:
b.
Enter into agreements with local governments, through their
respective leagues of governors or mayors, the Commission on Elections
(COMELEC), and with other branches or instrumentalities of the government, for
the purpose of ensuring government-wide adoption of and support to this effort to
streamline the ID systems in government;
b.
Call on any other government agency or institution, or create
subcommittees or technical working groups, to provide such assistance as may
be necessary or required for the effective performance of its functions; and
d. Promulgate such rules or regulations as may be necessary in pursuance of the
objectives of this executive order.
Section 6. Safeguards. The Director-General, National Economic and
Development Authority, and the pertinent agencies shall adopt such safeguard as
may be necessary and adequate to ensure that the right to privacy of an
individual takes precedence over efficient public service delivery. Such
safeguards shall, as a minimum, include the following:
a. The data to be recorded and stored, which shall be used only for purposes of
establishing the identity of a person, shall be limited to those specified in Section
3 of this executive order;
b. In no case shall the collection or compilation of other data in violation of a
persons right to privacy shall be allowed or tolerated under this order;
c. Stringent systems of access control to data in the identification system shall be
instituted;
d. Data collected and stored for this purpose shall be kept and treated as strictly
confidential and a personal or written authorization of the Owner shall be
required for access and disclosure of data;
e. The identification card to be issued shall be protected by advanced security
features and cryptographic technology; and

f. A written request by the Owner of the identification card shall be required for any
correction or revision of relevant data, or under such conditions as the participating
agency issuing the identification card shall prescribe.
Section 7. Funding. Such funds as may be recommended by the Department of Budget
and Management shall be provided to carry out the objectives of this executive order.
Section 8. Repealing clause. All executive orders or issuances, or portions thereof, which
are inconsistent with this executive order, are hereby revoked, amended or modified
accordingly.
Section 9. Effectivity. This executive order shall take effect fifteen (15) days after its
publication in two (2) newspapers of general circulation.
DONE in the City of Manila, this 13th day of April, in the year of Our Lord, Two Thousand
and Five.
Thus, under EO 420, the President directs all government agencies and governmentowned and controlled corporations to adopt a uniform data collection and format for their
existing identification (ID) systems.
Petitioners in G.R. No. 167798 allege that EO 420 is unconstitutional because it
constitutes usurpation of legislative functions by the executive branch of the government.
Furthermore, they allege that EO 420 infringes on the citizens right to privacy.[1]
Petitioners in G.R. No. 167930 allege that EO 420 is void based on the following
grounds:
1. EO 420 is contrary to law. It completely disregards and violates the decision of this
Honorable Court in Ople v. Torres et al., G.R. No. 127685, July 23, 1998. It also violates
RA 8282 otherwise known as the Social Security Act of 1997.
2. The Executive has usurped the legislative power of Congress as she has no power to
issue EO 420. Furthermore, the implementation of the EO will use public funds not
appropriated by Congress for that purpose.
3.
EO 420 violates the constitutional provisions on the right to privacy
(i) It allows access to personal confidential data without the owners consent.
(ii)
EO 420 is vague and without adequate safeguards or penalties for any
violation of its provisions.
(iii) There are no compelling reasons that will legitimize the necessity of EO 420.
4. Granting without conceding that the President may issue EO 420, the Executive Order
was issued without public hearing.

33
5. EO 420 violates the Constitutional provision on equal protection of laws and
results in the discriminatory treatment of and penalizes those without ID.[2]
Issues
Essentially, the petitions raise two issues. First, petitioners claim that EO 420 is a
usurpation of legislative power by the President. Second, petitioners claim that
EO 420 infringes on the citizens right to privacy.
Respondents question the legal standing of petitioners and the ripeness of the
petitions. Even assuming that petitioners are bereft of legal standing, the Court
considers the issues raised under the circumstances of paramount public
concern or of transcendental significance to the people. The petitions also
present a justiciable controversy ripe for judicial determination because all
government entities currently issuing identification cards are mandated to
implement EO 420, which petitioners claim is patently unconstitutional. Hence,
the Court takes cognizance of the petitions.
The Courts Ruling
The petitions are without merit.
On the Alleged Usurpation of Legislative Power
Section 2 of EO 420 provides, Coverage. All government agencies and
government-owned and controlled corporations issuing ID cards to their
members or constituents shall be covered by this executive order. EO 420
applies only to government entities that issue ID cards as part of their
functions under existing laws. These government entities have already been
issuing ID cards even prior to EO 420. Examples of these government entities
are the GSIS,[3] SSS,[4] Philhealth,[5] Mayors Office,[6] LTO,[7] PRC,[8] and
similar government entities.
Section 1 of EO 420 directs these government entities to adopt a unified multipurpose ID system. Thus, all government entities that issue IDs as part of their
functions under existing laws are required to adopt a uniform data collection and
format for their IDs. Section 1 of EO 420 enumerates the purposes of the uniform
data collection and format, namely:
a.
To reduce costs and thereby lessen the financial burden on both
the government and the public brought about by the use of multiple ID cards and
the maintenance of redundant database containing the same or related
information;

b.
To ensure greater convenience for those transacting business with the
government and those availing of government services;
c.
To facilitate private businesses and promote the wider use of the unified ID
card as provided under this executive order;
d.
To enhance the integrity and reliability of government-issued ID cards; and
e.
service.

To facilitate access to and delivery of quality and effective government

In short, the purposes of the uniform ID data collection and ID format are to reduce costs,
achieve efficiency and reliability, insure compatibility, and provide convenience to the
people served by government entities.
Section 3 of EO 420 limits the data to be collected and recorded under the uniform ID
system to only 14 specific items, namely: (1) Name; (2) Home Address; (3) Sex; (4)
Picture; (5) Signature; (6) Date of Birth; (7) Place of Birth; (8) Marital Status; (9) Name of
Parents; (10) Height; (11) Weight; (12) Two index fingers and two thumbmarks; (13) Any
prominent distinguishing features like moles or others; and (14) Tax Identification
Number.
These limited and specific data are the usual data required for personal identification by
government entities, and even by the private sector. Any one who applies for or renews a
drivers license provides to the LTO all these 14 specific data.
At present, government entities like LTO require considerably more data from applicants
for identification purposes. EO 420 will reduce the data required to be collected and
recorded in the ID databases of the government entities. Government entities cannot
collect or record data, for identification purposes, other than the 14 specific data.
Various laws allow several government entities to collect and record data for their ID
systems, either expressly or impliedly by the nature of the functions of these government
entities. Under their existing ID systems, some government entities collect and record
more data than what EO 420 allows. At present, the data collected and recorded by
government entities are disparate, and the IDs they issue are dissimilar.
In the case of the Supreme Court,[9] the IDs that the Court issues to all its employees,
including the Justices, contain 15 specific data, namely: (1) Name; (2) Picture; (3)
Position; (4) Office Code Number; (5) ID Number; (6) Height; (7) Weight; (8) Complexion;
(9) Color of Hair; (10) Blood Type; (11) Right Thumbmark; (12) Tax Identification Number;
(13) GSIS Policy Number; (14) Name and Address of Person to be Notified in Case of

34
Emergency; and (15) Signature. If we consider that the picture in the ID can
generally also show the sex of the employee, the Courts ID actually contains 16
data.
In contrast, the uniform ID format under Section 3 of EO 420 requires only the
first five items listed in Section 3, plus the fingerprint, agency number and the
common reference number, or only eight specific data. Thus, at present, the
Supreme Courts ID contains far more data than the proposed uniform ID for
government entities under EO 420. The nature of the data contained in the
Supreme Court ID is also far more financially sensitive, specifically the Tax
Identification Number.
Making the data collection and recording of government entities unified, and
making their ID formats uniform, will admittedly achieve substantial benefits.
These benefits are savings in terms of procurement of equipment and supplies,
compatibility in systems as to hardware and software, ease of verification and
thus increased reliability of data, and the user-friendliness of a single ID format
for all government entities.
There is no dispute that government entities can individually limit the collection
and recording of their data to the 14 specific items in Section 3 of EO 420. There
is also no dispute that these government entities can individually adopt the ID
format as specified in Section 3 of EO 420. Such an act is certainly within the
authority of the heads or governing boards of the government entities that are
already authorized under existing laws to issue IDs.
A unified ID system for all these government entities can be achieved in either of
two ways. First, the heads of these existing government entities can enter into a
memorandum of agreement making their systems uniform. If the government
entities can individually adopt a format for their own ID pursuant to their regular
functions under existing laws, they can also adopt by mutual agreement a
uniform ID format, especially if the uniform format will result in substantial
savings, greater efficiency, and optimum compatibility. This is purely an
administrative matter, and does not involve the exercise of legislative power.
Second, the President may by executive or administrative order direct the
government entities under the Executive department to adopt a uniform ID data
collection and format. Section 17, Article VII of the 1987 Constitution provides
that the President shall have control of all executive departments, bureaus and
offices. The same Section also mandates the President to ensure that the laws
be faithfully executed.
Certainly, under this constitutional power of control the President can direct all
government entities, in the exercise of their functions under existing laws, to
adopt a uniform ID data collection and ID format to achieve savings, efficiency,

reliability, compatibility, and convenience to the public. The Presidents constitutional

power of control is self-executing and does not need any implementing legislation.
Of course, the Presidents power of control is limited to the Executive branch of
government and does not extend to the Judiciary or to the independent constitutional
commissions. Thus, EO 420 does not apply to the Judiciary, or to the COMELEC which
under existing laws is also authorized to issue voters ID cards.[10] This only shows that
EO 420 does not establish a national ID system because legislation is needed to
establish a single ID system that is compulsory for all branches of government.
The Constitution also mandates the President to ensure that the laws are faithfully
executed. There are several laws mandating government entities to reduce costs,
increase efficiency, and in general, improve public services.[11] The adoption of a
uniform ID data collection and format under EO 420 is designed to reduce costs,
increase efficiency, and in general, improve public services. Thus, in issuing EO 420, the
President is simply performing the constitutional duty to ensure that the laws are faithfully
executed.
Clearly, EO 420 is well within the constitutional power of the President to
promulgate. The President has not usurped legislative power in issuing EO 420. EO 420
is an exercise of Executive power the Presidents constitutional power of control over the
Executive department. EO 420 is also compliance by the President of the constitutional
duty to ensure that the laws are faithfully executed.
Legislative power is the authority to make laws and to alter or repeal them. In issuing EO
420, the President did not make, alter or repeal any law but merely implemented and
executed existing laws. EO 420 reduces costs, as well as insures efficiency, reliability,
compatibility and user-friendliness in the implementation of current ID systems of
government entities under existing laws. Thus, EO 420 is simply an executive issuance
and not an act of legislation.
The act of issuing ID cards and collecting the necessary personal data for imprinting on
the ID card does not require legislation. Private employers routinely issue ID cards to
their employees. Private and public schools also routinely issue ID cards to their
students. Even private clubs and associations issue ID cards to their members. The
purpose of all these ID cards is simply to insure the proper identification of a person as
an employee, student, or member of a club. These ID cards, although imposed as a
condition for exercising a privilege, are voluntary because a person is not compelled to
be an employee, student or member of a club.
What require legislation are three aspects of a government maintained ID card
system. First, when the implementation of an ID card system requires a special
appropriation because there is no existing appropriation for such purpose. Second, when
the ID card system is compulsory on all branches of government, including the

35
independent constitutional commissions, as well as compulsory on all citizens
whether they have a use for the ID card or not. Third, when the ID card system
requires the collection and recording of personal data beyond what is routinely or
usually required for such purpose, such that the citizens right to privacy is
infringed.
In the present case, EO 420 does not require any special appropriation because
the existing ID card systems of government entities covered by EO 420 have the
proper appropriation or funding. EO 420 is not compulsory on all branches of
government and is not compulsory on all citizens. EO 420 requires a very narrow
and focused collection and recording of personal data while safeguarding the
confidentiality of such data. In fact, the data collected and recorded under EO
420 are far less than the data collected and recorded under the ID systems
existing prior to EO 420.
EO 420 does not establish a national ID card system. EO 420 does not compel
all citizens to have an ID card. EO 420 applies only to government entities that
under existing laws are already collecting data and issuing ID cards as part of
their governmental functions. Every government entity that presently issues an ID
card will still issue its own ID card under its own name. The only difference is that
the ID card will contain only the five data specified in Section 3 of EO 420, plus
the fingerprint, the agency ID number, and the common reference number which
is needed for cross-verification to ensure integrity and reliability of identification.
This Court should not interfere how government entities under the Executive
department should undertake cost savings, achieve efficiency in operations,
insure compatibility of equipment and systems, and provide user-friendly service
to the public. The collection of ID data and issuance of ID cards are day-to-day
functions of many government entitiesunder existing laws. Even the Supreme
Court has its own ID system for employees of the Court and all first and second
level courts. The Court is even trying to unify its ID system with those of the
appellate courts, namely the Court of Appeals, Sandiganbayan and Court of Tax
Appeals.
There is nothing legislative about unifying existing ID systems of all courts within
the Judiciary. The same is true for government entities under the Executive
department.If government entities under the Executive department decide to
unify their existing ID data collection and ID card issuance systems to achieve
savings, efficiency, compatibility and convenience, such act does not involve the
exercise of any legislative power. Thus, the issuance of EO 420 does not
constitute usurpation of legislative power.
On the Alleged Infringement of the Right to Privacy
All these years, the GSIS, SSS, LTO, Philhealth and other government entities
have been issuing ID cards in the performance of their governmental
functions. There have been no complaints from citizens that the ID cards of these

government entities violate their right to privacy. There have also been no complaints of
abuse by these government entities in the collection and recording of personal
identification data.
In fact, petitioners in the present cases do not claim that the ID systems of government
entities prior to EO 420 violate their right to privacy. Since petitioners do not make such
claim, they even have less basis to complain against the unified ID system under EO
420. The data collected and stored for the unified ID system under EO 420 will be limited
to only 14 specific data, and the ID card itself will show only eight specific data. The data
collection, recording and ID card system under EO 420 will even require less data
collected, stored and revealed than under the disparate systems prior to EO 420.
Prior to EO 420, government entities had a free hand in determining the kind, nature and
extent of data to be collected and stored for their ID systems. Under EO 420,
government entities can collect and record only the 14 specific data mentioned in Section
3 of EO 420. In addition, government entities can show in their ID cards only eight of
these specific data, seven less data than what the Supreme Courts ID shows.
Also, prior to EO 420, there was no executive issuance to government entities
prescribing safeguards on the collection, recording, and disclosure of personal
identification data to protect the right to privacy. Now, under Section 5 of EO 420, the
following safeguards are instituted:
a.
The data to be recorded and stored, which shall be used only for purposes
of establishing the identity of a person, shall be limited to those specified in Section 3 of
this executive order;
b.
In no case shall the collection or compilation of other data in violation of a
persons right to privacy be allowed or tolerated under this order;
c.
Stringent systems of access control to data in the identification system
shall be instituted;
d.
Data collected and stored for this purpose shall be kept and treated as
strictly confidential and a personal or written authorization of the Owner shall be required
for access and disclosure of data;
e.
The identification card to be issued shall be protected by advanced security
features and cryptographic technology;
f.
A written request by the Owner of the identification card shall be required
for any correction or revision of relevant data, or under such conditions as the
participating agency issuing the identification card shall prescribe.

36
On its face, EO 420 shows no constitutional infirmity because it even narrowly
limits the data that can be collected, recorded and shown compared to the
existing ID systems of government entities. EO 420 further provides strict
safeguards to protect the confidentiality of the data collected, in contrast to the
prior ID systems which are bereft of strict administrative safeguards.
The right to privacy does not bar the adoption of reasonable ID systems by
government entities. Some one hundred countries have compulsory national ID
systems, including democracies such as Spain, France, Germany, Belgium,
Greece, Luxembourg, and Portugal. Other countries which do not have national
ID systems, like the United States, Canada, Australia, New Zealand, Ireland, the
Nordic Countries and Sweden, have sectoral cards for health, social or other
public services.[12] Even with EO 420, the Philippines will still fall under the
countries that do not have compulsory national ID systems but allow only
sectoral cards for social security, health services, and other specific purposes.
Without a reliable ID system, government entities like GSIS, SSS, Philhealth, and
LTO cannot perform effectively and efficiently their mandated functions under
existing laws. Without a reliable ID system, GSIS, SSS, Philhealth and similar
government entities stand to suffer substantial losses arising from false names
and identities. The integrity of the LTOs licensing system will suffer in the
absence of a reliable ID system.
The dissenting opinion cites three American decisions on the right to privacy,
namely, Griswold v. Connecticut,[13] U.S. Justice Department v. Reporters
Committee for Freedom of the Press,[14] and Whalen v. Roe.[15] The last two
decisions actually support the validity of EO 420, while the first is inapplicable to
the present case.
In Griswold, the U.S. Supreme Court declared unconstitutional a state law that
prohibited the use and distribution of contraceptives because enforcement of the
law would allow the police entry into the bedrooms of married couples. Declared
the U.S. Supreme Court: Would we allow the police to search the sacred
precincts of the marital bedrooms for telltale signs of the use of
contraceptives? The very idea is repulsive to the notions of privacy surrounding
the marriage relationship. Because the facts and the issue involved
in Griswold are materially different from the present case, Griswold has no
persuasive bearing on the present case.
In U.S. Justice Department, the issue was not whether the State could collect
and store information on individuals from public records nationwide but whether
the State could withhold such information from the press. The premise of the
issue in U.S. Justice Department is that the State can collect and store in a

central database information on citizens gathered from public records across the
country. In fact, the law authorized the Department of Justice to collect and preserve
fingerprints and other criminal identification records nationwide. The law also authorized
the Department of Justice to exchange such information with officials of States, cities and
other institutions.The Department of Justice treated such information as confidential. A
CBS news correspondent and the Reporters Committee demanded the criminal records
of four members of a family pursuant to the Freedom of Information Act. The U.S.
Supreme Court ruled that the Freedom of Information Act expressly exempts release of
information that would constitute an unwarranted invasion of personal privacy, and the
information demanded falls under that category of exempt information.
With the exception of the 8 specific data shown on the ID card, the personal data
collected and recorded under EO 420 are treated as strictly confidential under Section
6(d) of EO 420. These data are not only strictly confidential but also personal
matters. Section 7, Article III of the 1987 Constitution grants the right of the people to
information on matters of public concern. Personal matters are exempt or outside the
coverage of the peoples right to information on matters of public concern. The data
treated as strictly confidential under EO 420 being private matters and not matters of
public concern, these data cannot be released to the public or the press. Thus, the ruling
in U.S. Justice Department does not collide with EO 420 but actually supports the validity
EO 420.

Whalen v. Roe is the leading American case on the constitutional protection for control
over information. In Whalen, the U.S. Supreme Court upheld the validity of a New York
law that required doctors to furnish the government reports identifying patients who
received prescription drugs that have a potential for abuse. The government maintained
a central computerized database containing the names and addresses of the patients, as
well as the identity of the prescribing doctors. The law was assailed because the
database allegedly infringed the right to privacy of individuals who want to keep their
personal matters confidential. The U.S. Supreme Court rejected the privacy claim, and
declared:
Disclosures of private medical information to doctors, to hospital personnel, to insurance
companies, and to public health agencies are often an essential part of modern medical
practice even when the disclosure may reflect unfavorably on the character of the
patient. Requiring such disclosures to representatives of the State having responsibility
for the health of the community does not automatically amount to an impermissible
invasion of privacy. (Emphasis supplied)

37
Compared to the personal medical data required for disclosure to the New York
State in Whalen, the 14 specific data required for disclosure to the Philippine
government under EO 420 are far less sensitive and far less personal. In fact, the
14 specific data required under EO 420 are routine data for ID systems, unlike
the sensitive and potentially embarrassing medical records of patients taking
prescription drugs. Whalen, therefore, carries persuasive force for upholding the
constitutionality of EO 420 as non-violative of the right to privacy.
Subsequent U.S. Supreme Court decisions have reiterated Whalen. In Planned
Parenthood of Central Missouri v. Danforth,[16] the U.S. Supreme
Court upheld the validity of a law that required doctors performing abortions to fill
up forms, maintain records for seven years, and allow the inspection of such
records by public health officials.The U.S. Supreme Court ruled that
recordkeeping and reporting requirements that are reasonably directed to the
preservation of maternal health and that properly respect a patients
confidentiality and privacy are permissible.
Again, in Planned Parenthood of Southeastern Pennsylvania v. Casey,[17] the
U.S. Supreme Court upheld a law that required doctors performing an abortion to
file a report to the government that included the doctors name, the womans age,
the number of prior pregnancies and abortions that the woman had, the medical
complications from the abortion, the weight of the fetus, and the marital status of
the woman. In case of state-funded institutions, the law made such information
publicly available. In Casey, the U.S. Supreme Court stated: The collection of
information with respect to actual patients is a vital element of medical research,
and so it cannot be said that the requirements serve no purpose other than to
make abortion more difficult.

appropriate legislation, and it is only on this ground that the petition is granted by this
Court.
EO 420 applies only to government entities that already maintain ID systems and issue
ID cards pursuant to their regular functions under existing laws. EO 420 does not grant
such government entities any power that they do not already possess under existing
laws. In contrast, the assailed executive issuance in Ople v. Torres sought to establish
aNational Computerized Identification Reference System,[19] a national ID system that
did not exist prior to the assailed executive issuance. Obviously, a national ID card
system requires legislation because it creates a new national data collection and card
issuance system where none existed before.
In the present case, EO 420 does not establish a national ID system but makes the
existing sectoral card systems of government entities like GSIS, SSS, Philhealth and
LTO less costly, more efficient, reliable and user-friendly to the public. Hence, EO 420 is
a proper subject of executive issuance under the Presidents constitutional power of
control over government entities in the Executive department, as well as under the
Presidents constitutional duty to ensure that laws are faithfully executed.
WHEREFORE, the petitions are DISMISSED. Executive Order No. 420 is
declared VALID.
SO ORDERED.
ANTONIO T. CARPIO
Associate Justice
WE CONCUR:

Compared to the disclosure requirements of personal data that the U.S. Supreme
Court have upheld in Whalen, Danforth and Casey as not violative of the right to
privacy,the disclosure requirements under EO 420 are far benign and cannot
therefore constitute violation of the right to privacy. EO 420 requires disclosure of
14 personal data that are routine for ID purposes, data that cannot possibly
embarrass or humiliate anyone.

ARTEMIO V. PANGANIBAN
Chief Justice

Petitioners have not shown how EO 420 will violate their right to
privacy. Petitioners cannot show such violation by a mere facial examination of
EO 420 because EO 420 narrowly draws the data collection, recording and
exhibition while prescribing comprehensive safeguards. Ople v. Torres[18] is not
authority to hold that EO 420 violates the right to privacy because in that case the
assailed executive issuance, broadly drawn and devoid of safeguards, was
annulled solely on the ground that the subject matter required legislation. As then
Associate Justice, now Chief Justice Artemio V. Panganiban noted in his
concurring opinion in Ople v. Torres, The voting is decisive only on the need for

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.

38
G.R. No. 82398 April 29, 1988
HAL MCELROY petitioner,
vs.
HON. IGNACIO M. CAPULONG, in his capacity as Presiding Judge of the
Regional Trial Court of Makati, Branch 134 and JUAN PONCE
ENRILE, respondents.
FELICIANO, J.:
Petitioner Hal McElroy an Australian film maker, and his movie production
company, Petitioner Ayer Productions pty Ltd. (Ayer Productions), 1 envisioned,
sometime in 1987, the for commercial viewing and for Philippine and international
release, the histolic peaceful struggle of the Filipinos at EDSA (Epifanio de los
Santos Avenue). Petitioners discussed this Project with local movie producer
Lope V. Juban who suggested th they consult with the appropriate government
agencies and also with General Fidel V. Ramos and Senator Juan Ponce Enrile,
who had played major roles in the events proposed to be filmed.
The proposed motion picture entitled "The Four Day Revolution" was endorsed
by the Movie Television Review and Classification Board as wel as the other
government agencies consulted. General Fidel Ramos also signified his approval
of the intended film production.
In a letter dated 16 December 1987, petitioner Hal McElroy informed private
respondent Juan Ponce Enrile about the projected motion picture enclosing a
synopsis of it, the full text of which is set out below:
The Four Day Revolution is a six hour mini-series about People Powera unique
event in modern history that-made possible the Peaceful revolution in the
Philippines in 1986.
Faced with the task of dramatising these rerkble events, screenwriter David
Williamson and history Prof Al McCoy have chosen a "docu-drama" style and
created [four] fictitious characters to trace the revolution from the death of
Senator Aquino, to the Feb revolution and the fleeing of Marcos from the country.
These character stories have been woven through the real events to help our
huge international audience understand this ordinary period inFilipino history.
First, there's Tony O'Neil, an American television journalist working for major
network. Tony reflects the average American attitude to the Phihppinence once
a colony, now the home of crucially important military bases. Although Tony is
aware of the corruption and of Marcos' megalomania, for him, there appears to
be no alternative to Marcos except the Communists.
Next, Angie Fox a fiery Australian photo-journalist. A 'new girl in town,' she is
quickly caught up in the events as it becomes dear that the time has come for a
change. Through Angle and her relationship with one of the Reform Army
Movement Colonels (a fictitious character), we follow the developing discontent
in the armed forces. Their dislike for General Ver, their strong loyalty to Defense
Minister Enrile, and ultimately their defection from Marcos.

The fourth fictitious character is Ben Balano, a middle-aged editor of a Manila newspaper
who despises the Marcos regime and is a supporter an promoter of Cory Aquino. Ben
has two daughters, Cehea left wing lawyer who is a secret member of the New People's
Army, and Eva--a -P.R. girl, politically moderate and very much in love with Tony.
Ultimately, she must choose between her love and the revolution.
Through the interviews and experiences of these central characters, we show the
complex nature of Filipino society, and thintertwining series of events and characters that
triggered these remarkable changes. Through them also, we meet all of the principal
characters and experience directly dramatic recreation of the revolution. The story
incorporates actual documentary footage filmed during the period which we hope will
capture the unique atmosphere and forces that combined to overthrow President
Marcos.
David Williamson is Australia's leading playwright with some 14 hugely successful plays
to his credit(Don's Party,' 'The Club,' Travelling North) and 11 feature films (The Year of
Living Dangerously,' Gallipoli,' 'Phar Lap').
Professor McCoy (University of New South Wales) is an American historian with a deep
understanding of the Philippines, who has worked on the research for this project for
some 18 months. Together with Davi Wilhamgon they have developed a script we
believe accurately depicts the complex issues and events that occurred during th period .
The six hour series is a McElroy and McElroy co-production with Home Box Office in
American, the Australian Broadcast Corporation in Australia and Zenith Productions in
the United Kingdom
The proposed motion picture would be essentially a re-enact. ment of the events that
made possible the EDSA revolution; it is designed to be viewed in a six-hour mini-series
television play, presented in a "docu-drama" style, creating four (4) fictional characters
interwoven with real events, and utilizing actual documentary footage as background.
On 21 December 1987, private respondent Enrile replied that "[he] would not and will not
approve of the use, appropriation, reproduction and/or exhibition of his name, or picture,
or that of any member of his family in any cinema or television production, film or other
medium for advertising or commercial exploitation" and further advised petitioners that 'in
the production, airing, showing, distribution or exhibition of said or similar film, no
reference whatsoever (whether written, verbal or visual) should not be made to [him] or
any member of his family, much less to any matter purely personal to them.
It appears that petitioners acceded to this demand and the name of private respondent
Enrile was deleted from the movie script, and petitioners proceeded to film the projected
motion picture.
On 23 February 1988, private respondent filed a Complaint with application for
Temporary Restraining Order and Wilt of Pretion with the Regional Trial Court of Makati,
docketed as Civil Case No. 88-151 in Branch 134 thereof, seeking to enjoin petitioners
from producing the movie "The Four Day Revolution". The complaint alleged that
petitioners' production of the mini-series without private respondent's consent and over
his objection, constitutes an obvious violation of his right of privacy. On 24 February

39
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. L82380.
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 mini-series would constitute an unlawful intrusion
into his privacy which he is entitled to enjoy.
Considering first petitioners' claim to freedom of speech and of expression the Court
would once more stress that this freedom includes the freedom to film and produce
motion pictures and to exhibit such motion pictures in theaters or to diffuse them through
television. In our day and age, motion pictures are a univesally utilized vehicle of
communication and medium Of expression. Along with the press, radio and television,
motion pictures constitute a principal medium of mass communication for information,
education and entertainment. In Gonzales v. Katigbak,3 former Chief Justice Fernando,
speaking for the Court, explained:
1. Motion pictures are important both as a medium for the communication of Ideas and
the expression of the artistic impulse. Their 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

40
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 preagreed 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.

41
2. The subject matter of "The Four Day Revolution" relates to the non-bloody
change of government that took place at Epifanio de los Santos Avenue in
February 1986, and the trian of events which led up to that denouement. Clearly,
such subject matter is one of public interest and concern. Indeed, it is, petitioners'
argue, of international interest. The subject thus relates to a highly critical stage
in the history of this countryand as such, must be regarded as having passed into
the public domain and as an appropriate subject for speech and expression and
coverage by any form of mass media. The subject mater, as set out in the
synopsis provided by the petitioners and quoted above, does not relate to the
individual life and certainly not to the private life of private respondent Ponce
Enrile. Unlike in Lagunzad, which concerned the life story of Moises Padilla
necessarily including at least his immediate family, what we have here is not a
film biography, more or less fictionalized, of private respondent Ponce Enrile.
"The Four Day Revolution" is not principally about, nor is it focused upon, the
man Juan Ponce Enrile' but it is compelled, if it is to be historical, to refer to the
role played by Juan Ponce Enrile in the precipitating and the constituent events
of the change of government in February 1986.
3. The extent of the instrusion upon the life of private respondent Juan Ponce
Enrile that would be entailed by the production and exhibition of "The Four Day
Revolution" would, therefore, be limited in character. The extent of that intrusion,
as this Court understands the synopsis of the proposed film, may be generally
described as such intrusion as is reasonably necessary to keep that film a truthful
historical account. Private respondent does not claim that petitioners threatened
to depict in "The Four Day Revolution" any part of the private life of private
respondent or that of any member of his family.
4. At all relevant times, during which the momentous events, clearly of public
concern, that petitioners propose to film were taking place, private respondent
was what Profs. Prosser and Keeton have referred to as a "public figure:"
A public figure has been defined as a person who, by his accomplishments,
fame, or mode of living, or by adopting a profession or calling which gives the
public a legitimate interest in his doings, his affairs, and his character, has
become a 'public personage.' He is, in other words, a celebrity. Obviously to be
included in this category are those who have achieved some degree of reputation
by appearing before the public, as in the case of an actor, a professional baseball
player, a pugilist, or any other entertainment. The list is, however, broader than
this. It includes public officers, famous inventors and explorers, war heroes and
even ordinary soldiers, an infant prodigy, and no less a personage than the
Grand Exalted Ruler of a lodge. It includes, in short, anyone who has arrived at a
position where public attention is focused upon him as a person.
Such public figures were held to have lost, to some extent at least, their tight to
privacy. Three reasons were given, more or less indiscrimately, in the decisions"
that they had sought publicity and consented to it, and so could not complaint
when they received it; that their personalities and their affairs has already public,
and could no longer be regarded as their own private business; and that the

press had a privilege, under the Constitution, to inform the public about those who have
become legitimate matters of public interest. On one or another of these grounds, and
sometimes all, it was held that there was no liability when they were given additional
publicity, as to matters legitimately within the scope of the public interest they had
aroused.
The privilege of giving publicity to news, and other matters of public interest, was held to
arise out of the desire and the right of the public to know what is going on in the world,
and the freedom of the press and other agencies of information to tell it. "News" includes
all events and items of information which are out of the ordinary hum-drum routine, and
which have 'that indefinable quality of information which arouses public attention.' To a
very great extent the press, with its experience or instinct as to what its readers will want,
has succeeded in making its own definination of news, as a glance at any morning
newspaper will sufficiently indicate. It includes homicide and othe crimes, arrests and
police raides, suicides, marriages and divorces, accidents, a death from the use of
narcotics, a woman with a rare disease, the birth of a child to a twelve year old girl, the
reappearance of one supposed to have been murdered years ago, and undoubtedly
many other similar matters of genuine, if more or less deplorable, popular appeal.
The privilege of enlightening the public was not, however, limited, to the dissemination of
news in the scene of current events. It extended also to information or education, or even
entertainment and amusement, by books, articles, pictures, films and broadcasts
concerning interesting phases of human activity in general, as well as the reproduction of
the public scene in newsreels and travelogues. In determining where to draw the line, the
courts were invited to exercise a species of censorship over what the public may be
permitted to read; and they were understandably liberal in allowing the benefit of the
doubt. 15
Private respondent is a "public figure" precisely because, inter alia, of his participation as
a principal actor in the culminating events of the change of government in February
1986. Because his participation therein was major in character, a film reenactment of the
peaceful revolution that fails to make reference to the role played by private respondent
would be grossly unhistorical. The right of privacy of a "public figure" is necessarily
narrower than that of an ordinary citizen. Private respondent has not retired into the
seclusion of simple private citizenship. he continues to be a "public figure." After a
successful political campaign during which his participation in the EDSA Revolution was
directly or indirectly referred to in the press, radio and television, he sits in a very public
place, the Senate of the Philippines.
5. The line of equilibrium in the specific context of the instant case between the
constitutional freedom of speech and of expression and the right of privacy, may be
marked out in terms of a requirement that the proposed motion picture must be fairly
truthful and historical in its presentation of events. There must, in other words, be no
knowing or reckless disregard of truth in depicting the participation of private respondent
in the EDSA Revolution. 16 There must, further, be no presentation of the private life of
the unwilling private respondent and certainly no revelation of intimate or embarrassing
personal facts. 17 The proposed motion picture should not enter into what Mme. Justice

42
Melencio-Herrera in Lagunzad referred to as "matters of essentially private
concern." 18 To the extent that "The Four Day Revolution" limits itself in
portraying the participation of private respondent in the EDSA Revolution to those
events which are directly and reasonably related to the public facts of the EDSA
Revolution, the intrusion into private respondent's privacy cannot be regarded as
unreasonable and actionable. Such portrayal may be carried out even without a
license from private respondent.
II
In a Manifestation dated 30 March 1988, petitioner Hal McElroy informed this
Court that a Temporary Restraining Order dated 25 March 1988, was issued by
Judge Teofilo Guadiz of the Regional Trial Court of Makati, Branch 147, in Civil
Case No. 88-413, entitled "Gregorio B. Honasan vs. Ayer Productions Pty. Ltd.,
McElroy Film Productions, Hal McElroy, Lope Juban and PMP Motion for Pictures
Production" enjoining him and his production company from further filimg any
scene of the projected mini-series film. Petitioner alleged that Honasan's
complaint was a "scissors and paste" pleading, cut out straight grom the
complaint of private respondent Ponce Enrile in Civil Case No. 88-151. Petitioner
Ayer Productions, in a separate Manifestation dated 4 April 1988, brought to the
attention of the Court the same information given by petitoner Hal McElroy,
reiterating that the complaint of Gregorio B. Honasan was substantially identical
to that filed by private respondent herein and stating that in refusing to join
Honasan in Civil Case No. 88-151, counsel for private respondent, with whom
counsel for Gregorio Honasan are apparently associated, deliberately engaged in
"forum shopping."
Private respondent filed a Counter-Manifestation on 13 April 1988 stating that the
"slight similarity" between private respondent's complaint and that on Honasan in
the construction of their legal basis of the right to privacy as a component of the
cause of action is understandable considering that court pleadings are public
records; that private respondent's cause of action for invasion of privacy is
separate and distinct from that of Honasan's although they arose from the same
tortious act of petitioners' that the rule on permissive joinder of parties is not
mandatory and that, the cited cases on "forum shopping" were not in point
because the parties here and those in Civil Case No. 88-413 are not identical.
For reasons that by now have become clear, it is not necessary for the Court to
deal with the question of whether or not the lawyers of private respondent Ponce
Enrile have engaged in "forum shopping." It is, however, important to dispose to
the complaint filed by former Colonel Honasan who, having refused to subject
himself to the legal processes of the Republic and having become once again in
fugitive from justice, must be deemed to have forfeited any right the might have
had to protect his privacy through court processes.
WHEREFORE,
a) the Petitions for Certiorari are GRANTED DUE COURSE, and the Order dated
16 March 1988 of respondent trial court granting a Writ of Preliminary Injunction
is hereby SET ASIDE. The limited Temporary Restraining Order granted by this

Court on 24 March 1988 is hereby MODIFIED by enjoining unqualifiedly the

implementation of respondent Judge's Order of 16 March 1988 and made PERMANENT,
and
b) Treating the Manifestations of petitioners dated 30 March 1988 and 4 April 1988 as
separate Petitions for Certiorari with Prayer for Preliminary Injunction or Restraining
Order, the Court, in the exercise of its plenary and supervisory jurisdiction, hereby
REQUIRES Judge Teofilo Guadiz of the Regional Trial Court of Makati, Branch 147,
forthwith to DISMISS Civil Case No. 88-413 and accordingly to SET ASIDE and
DISSOLVE his Temporary Restraining Order dated 25 March 1988 and any Preliminary
Injunction that may have been issued by him.
No pronouncement as to costs.
SO ORDERED.
Republic of the Philippines
SUPREME COURT
Manila
EN BANC
G.R. No. 90878 January 29, 1990
PABLITO V. SANIDAD, petitioner,
vs.
THE COMMISSION ON ELECTIONS, respondent.
MEDIALDEA, J.:
This is a petition for certiorari assailing the constitutionality of Section 19 of Comelec
Resolution No. 2167 on the ground that it violates the constitutional guarantees of the
freedom of expression and of the press.
On October 23, 1989, Republic Act No. 6766, entitled "AN ACT PROVIDING FOR AN
ORGANIC ACT FOR THE CORDILLERA AUTONOMOUS REGION" was enacted into
law. Pursuant to said law, the City of Baguio and the Cordilleras which consist of the
provinces of Benguet, Mountain Province, Ifugao, Abra and Kalinga-Apayao, all
comprising the Cordillera Autonomous Region, shall take part in a plebiscite for the
ratification of said Organic Act originally scheduled last December 27, 1989 which was,
however, reset to January 30, 1990 by virtue of Comelec Resolution No. 2226 dated
December 27, 1989.
The Commission on Elections, by virtue of the power vested by the 1987 Constitution,
the Omnibus Election Code (BP 881), said R.A. 6766 and other pertinent election laws,
promulgated Resolution No. 2167, to govern the conduct of the plebiscite on the said
Organic Act for the Cordillera Autonomous Region.
In a petition dated November 20, 1989, herein petitioner Pablito V. Sanidad, who claims
to be a newspaper columnist of the "OVERVIEW" for the BAGUIO MIDLAND COURIER,
a weekly newspaper circulated in the City of Baguio and the Cordilleras, assailed the
constitutionality of Section 19 of Comelec Resolution No. 2167, which provides:

43
Section 19. Prohibition on columnists, commentators or announcers. During
the plebiscite campaign period, on the day before and on the plebiscite day, no
mass media columnist, commentator, announcer or personality shall use his
column or radio or television time to campaign for or against the plebiscite
issues.
It is alleged by petitioner that said provision is void and unconstitutional because
it violates the constitutional guarantees of the freedom of expression and of the
press enshrined in the Constitution.
Unlike a regular news reporter or news correspondent who merely reports the
news, petitioner maintains that as a columnist, his column obviously and
necessarily contains and reflects his opinions, views and beliefs on any issue or
subject about which he writes. Petitioner believes that said provision of
COMELEC Resolution No. 2167 constitutes a prior restraint on his
constitutionally-guaranteed freedom of the press and further imposes subsequent
punishment for those who may violate it because it contains a penal provision, as
follows:
Article XIII, Section 122, Election Offenses and Banned Acts or Activities.
Except to the extent that the same may not be applicable plebiscite. the banned
acts/activities and offenses defined in and penalized by the Omnibus Election
Code ('Sections 261, 262, 263 and Article' XXII, B.P. Blg. 881) and the pertinent
provisions of R.A. No. 6646 shall be aplicable to the plebiscite governed by this
Resolution.
Petitioner likewise maintains that if media practitioners were to express their
views, beliefs and opinions on the issue submitted to a plebiscite, it would in fact
help in the government drive and desire to disseminate information, and hear, as
well as ventilate, all sides of the issue.
On November 28, 1989, We issued a temporary restraining order enjoining
respondent Commission on Elections from enforcing and implementing Section
19 of Resolution No. 2167. We also required the respondent to comment on the
petition.
On January 9, 1990, respondent Commission on Elections, through the Office of
the Solicitor General filed its Comment.
Respondent Comelec maintains that the questioned provision of Comelec
Resolution No. 2167 is not violative of the constitutional guarantees of the
freedom of expression and of the press. Rather it is a valid implementation of the
power of the Comelec to supervise and regulate media during election or
plebiscite periods as enunciated in Article IX-C, Section 4 of the 1987
Constitution of the Republic of the Philippines.
It is stated further by respondent that Resolution 2167 does not absolutely bar
petitioner from expressing his views and/or from campaigning for or against the
Organic Act. He may still express his views or campaign for or against the act
through the Comelec space and airtime. This is provided under Sections 90 and
92 of BP 881:

Section 90. Comelec Space. Commission shall procure space in at least one
newspaper of general circulation in every province or city: Provided, however, That in the
absence of said newspaper, publication shall be done in any other magazine or
periodical in said province or city, which shall be known as "Comelec Space" wherein
candidates can announce their candidacy. Said space shall be allocated, free of charge
equally and impartially within the area in which the newspaper is circulated.
Section 92. Comelec Time. The Commission shall procure radio and television time to
be known as "Comelec Time" which shall be allocated equally and impartially among the
candidates within the area of coverage of all radio and television stations. For this
purpose, the franchise of all radio broadcasting and television stations are hereby
amended so as to provide radio or television time, free of charge, during the period of the
campaign.
Respondent Comelec has relied much on Article IX-C of the 1987 Constitution and
Section 11 of R.A. 6646 as the basis for the promulgation of the questioned Section 19 of
Comelec Resolution 2167.
Article IX-C of the 1987 Constitution provides:
The Commission may, during the election period, supervise or regulate the enjoyment or
utilization of all franchises or permits for the operation of transportation and other public
utilities, media of communication or information, all grants, special privileges, or
concessions granted by the Government or any subdivision, agency or instrumentality
thereof, including any government-owned or controlled corporation or its subsidiary. Such
supervision or regulation shall aim to ensure equal opportunity, time, and space, and the
right to reply, including reasonable, equal rates therefor, for public information campaigns
and forums among candidates in connection with the objective of holding free, orderly,
honest, peaceful and credible elections.
Similarly, Section 11 of Republic Act No. 6646 (The Electoral Reform Law of 1987)
likewise provides:
Prohibited forms of election Propaganda. In addition to the forms of election
propaganda prohibited under Section 85 of Batas Pambansa Blg. 881, it shall be
unlawful: ...
(b) for any newspaper, radio, broadcasting or television station, or other mass media, or
any person making use of the mass media to sell or to give free of charge print space or
air time for campaign or other political purposes except to the Commission as provided
under Sections 90 and 92 of Batas Pambansa Blg. 881. Any mass media columnist,
commentator, announcer, or personality who is a candidate for any elective office shall
take a leave of absence from his work as such during the campaign period. (Emphasis
ours)
However, it is clear from Art. IX-C of the 1987 Constitution that what was granted to the
Comelec was the power to supervise and regulate the use and enjoyment of franchises,
permits or other grants issued for the operation of transportation or other public utilities,
media of communication or information to the end that equal opportunity, time and space,
and the right to reply, including reasonable, equal rates therefor, for public information
campaigns and forums among candidates are ensured. The evil sought to be prevented

44
by this provision is the possibility that a franchise holder may favor or give any
undue advantage to a candidate in terms of advertising space or radio or
television time. This is also the reason why a "columnist, commentator,
announcer or personality, who is acandidate for any elective office is required to
take a leave of absence from his work during the campaign period (2nd par.
Section 11(b) R.A. 6646). It cannot be gainsaid that a columnist or commentator
who is also a candidate would be more exposed to the voters to the prejudice of
other candidates unless required to take a leave of absence.
However, neither Article IX-C of the Constitution nor Section 11 (b), 2nd par. of
R.A. 6646 can be construed to mean that the Comelec has also been granted the
right to supervise and regulate the exercise by media practitioners themselves of
their right to expression during plebiscite periods. Media practitioners exercising
their freedom of expression during plebiscite periods are neither the franchise
holders nor the candidates. In fact, there are no candidates involved in a
plebiscite. Therefore, Section 19 of Comelec Resolution No. 2167 has no
statutory basis.
In the case of Badoy, Jr. v. Comelec, L-32546, Oct. 16, 1970, where the
constitutionality of the prohibition of certain forms of election propaganda was
assailed, We ruled therein that the prohibition is a valid exercise of the police
power of the state "to prevent the perversion and prostitution of the electoral
apparatus and of the denial of equal protection of the laws." The evil sought to be
prevented in an election which led to Our ruling in that case does not obtain in a
plebiscite. In a plebiscite, votes are taken in an area on some special political
matter unlike in an election where votes are cast in favor of specific persons for
some office. In other words, the electorate is asked to vote for or against issues,
not candidates in a plebiscite.
Anent respondent Comelec's argument that Section 19 of Comelec Resolution
2167 does not absolutely bar petitioner-columnist from expressing his views
and/or from campaigning for or against the organic act because he may do so
through the Comelec space and/or Comelec radio/television time, the same is
not meritorious. While the limitation does not absolutely bar petitioner's freedom
of expression, it is still a restriction on his choice of the forum where he may
express his view. No reason was advanced by respondent to justify such
abridgement. We hold that this form of regulation is tantamount to a restriction of
petitioner's freedom of expression for no justifiable reason.
Plebiscite issues are matters of public concern and importance. The people's
right to be informed and to be able to freely and intelligently make a decision
would be better served by access to an unabridged discussion of the issues,
including the forum. The people affected by the issues presented in a plebiscite
should not be unduly burdened by restrictions on the forum where the right to
expression may be exercised. Comelec spaces and Comelec radio time may
provide a forum for expression but they do not guarantee full dissemination of
information to the public concerned because they are limited to either specific
portions in newspapers or to specific radio or television times.

ACCORDINGLY, the instant petition is GRANTED. Section 19 of Comelec Resolution No.

2167 is declared null and void and unconstitutional. The restraining order herein issued
is hereby made permanent.
SO ORDERED.

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.
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 areasprovided in paragraph (f) of Section 21 hereof.
Section 21 (f) of the same resolution provides:
Sec. 21(f). Prohibited forms of election propaganda.
It is unlawful:
xxx xxx xxx
(f) To draw, paint, inscribe, post, display or publicly exhibit any election propaganda in
any place, whether public or private, mobile or stationary, except in the COMELEC
common posted areas and/or billboards, at the campaign headquarters of the candidate
or political party, organization or coalition, or at the candidate's own residential house or
one of his residential houses, if he has more than one:Provided, that such posters or
election propaganda shall not exceed two (2) feet by three (3) feet in size. (Emphasis
supplied)
xxx xxx xxx

45
The statutory provisions sought to be enforced by COMELEC are Section 82 of
the Omnibus Election Code on lawful election propaganda which provides:
Lawful election propaganda. Lawful election propaganda shall include:
(a) Pamphlets, leaflets, cards, decals, stickers or other written or printed
materials of a size not more than eight and one-half inches in width and fourteen
inches in length;
(b) Handwritten or printed letters urging voters to vote for or against any
particular candidate;
(c) Cloth, paper or cardboard posters, whether framed or posted, with an area
not exceeding two feet by three feet, except that, at the site and on the occasion
of a public meeting or rally, or in announcing the holding of said meeting or rally,
streamers not exceeding three feet by eight feet in size, shall be
allowed: Provided, That said streamers may not be displayed except one week
before the date of the meeting or rally and that it shall be removed within
seventy-two hours after said meeting or rally; or
(d) All other forms of election propaganda not prohibited by this Code as the
Commission may authorize after due notice to all interested parties and hearing
where all the interested parties were given an equal opportunity to be
heard: Provided, That the Commission's authorization shall be published in two
newspapers of general circulation throughout the nation for at least twice within
one week after the authorization has been granted. (Section 37, 1978 EC)
and Section 11(a) of Republic Act No. 6646 which provides:
Prohibited Forms of Election Propaganda. In addition to the forms of election
propaganda prohibited under Section 85 of Batas Pambansa Blg. 881, it shall be
unlawful: (a) to draw, paint, inscribe, write, post, display or publicly exhibit any
election propaganda in any place, whether private, or public, except in the
common poster areas and/or billboards provided in the immediately preceding
section, at the candidate's own residence, or at the campaign headquarters of
the candidate or political party: Provided, That such posters or election
propaganda shall in no case exceed two (2) feet by three (3) feet in
area: Provided, Further, That at the site of and on the occasion of a public
meeting or rally, streamers, not more than two (2) and not exceeding three (3)
feet by eight (8) feet each may be displayed five (5) days before the date of the
meeting or rally, and shall be removed within twenty-four (24) hours after said
meeting or rally; . . . (Emphasis supplied)
Petitioner Blo Umpar Adiong, a senatorial candidate in the May 11, 1992
elections now assails the COMELEC's Resolution insofar as it prohibits the
posting of decals and stickers in "mobile" places like cars and other moving
vehicles. According to him such prohibition is violative of Section 82 of the
Omnibus Election Code and Section 11(a) of Republic Act No. 6646. In addition,
the petitioner believes that with the ban on radio, television and print political
advertisements, he, being a neophyte in the field of politics stands to suffer grave
and irreparable injury with this prohibition. The posting of decals and stickers on
cars and other moving vehicles would be his last medium to inform the electorate

that he is a senatorial candidate in the May 11, 1992 elections. Finally, the petitioner
states that as of February 22, 1992 (the date of the petition) he has not received any
notice from any of the Election Registrars in the entire country as to the location of the
supposed "Comelec Poster Areas."
The petition is impressed with merit. The COMELEC's prohibition on posting of decals
and stickers on "mobile" places whether public or private except in designated
areas provided for by the COMELEC itself is null and void on constitutional grounds.
First the prohibition unduly infringes on the citizen's fundamental right of free speech
enshrined in the Constitution (Sec. 4, Article III). There is no public interest substantial
enough to warrant the kind of restriction involved in this case.
There are various concepts surrounding the freedom of speech clause which we have
adopted as part and parcel of our own Bill of Rights provision on this basic freedom.
All of the protections expressed in the Bill of Rights are important but we have accorded
to free speech the status of a preferred freedom. (Thomas v. Collins, 323 US 516, 89 L.
Ed. 430 [1945]; Mutuc v. Commission on Elections, 36 SCRA 228 [1970])
This qualitative significance of freedom of expression arises from the fact that it is the
matrix, the indispensable condition of nearly every other freedom. (Palko v. Connecticut,
302 U.S. 319 [1937]; Salonga v. Pao, 134 SCRA 438 [1985]) It is difficult to imagine
how the other provisions of the Bill of Rights and the right to free elections may be
guaranteed if the freedom to speak and to convince or persuade is denied and taken
away.
We have adopted the principle that debate on public issues should be uninhibited,
robust, and wide open and that it may well include vehement, caustic and sometimes
unpleasantly sharp attacks on government and public officials. (New York Times Co. v.
Sullivan, 376 U.S. 254, 11 L. Ed. 686 [1964]; cited in the concurring opinion of then Chief
Justice Enrique Fernando in Babst v. National Intelligence Board, 132 SCRA 316 [1984])
Too many restrictions will deny to people the robust, uninhibited, and wide open debate,
the generating of interest essential if our elections will truly be free, clean and honest.
We have also ruled that the preferred freedom of expression calls all the more for the
utmost respect when what may be curtailed is the dissemination of information to make
more meaningful the equally vital right of suffrage. (Mutuc v. Commission on
Elections, supra)
The determination of the limits of the Government's power to regulate the exercise by a
citizen of his basic freedoms in order to promote fundamental public interests or policy
objectives is always a difficult and delicate task. The so-called balancing of interests
individual freedom on one hand and substantial public interests on the other is made
even more difficult in election campaign cases because the Constitution also gives
specific authority to the Commission on Elections to supervise the conduct of free,
honest, and orderly elections.
We recognize the fact that under the Constitution, the COMELEC during the election
period is granted regulatory powers vis-a-vis the conduct and manner of elections, to wit:
Sec. 4. The Commission may, during the election period supervise or regulate the
enjoyment or utilization of all franchises or permits for the operation of transportation and

46
other public utilities, media of communication or information, all grants special
privileges, or concessions granted by the Government or any subdivision,
agency, or instrumentality thereof, including any government-owned or controlled
corporation or its subsidiary. Such supervision or regulation shall aim to ensure
equal opportunity, time, and space, and the right to reply, including reasonable
equal rates therefore, for public information campaigns and forms among
candidates in connection with the object of holding free, orderly, honest, peaceful
and credible elections. (Article IX(c) section 4)
The variety of opinions expressed by the members of this Court in the recent
case of National Press Club v. Commission on Elections (G.R. No. 102653,
March 5, 1991) and its companion cases underscores how difficult it is to draw a
dividing line between permissible regulation of election campaign activities and
indefensible repression committed in the name of free and honest elections. In
the National Press Club, case, the Court had occasion to reiterate the preferred
status of freedom of expression even as it validated COMELEC regulation of
campaigns through political advertisements. The gray area is rather wide and we
have to go on a case to case basis.
There is another problem involved. Considering that the period of legitimate
campaign activity is fairly limited and, in the opinion of some, too short, it
becomes obvious that unduly restrictive regulations may prove unfair to affected
parties and the electorate.
For persons who have to resort to judicial action to strike down requirements
which they deem inequitable or oppressive, a court case may prove to be a
hollow remedy. The judicial process, by its very nature, requires time for rebuttal,
analysis and reflection. We cannot act instantly on knee-jerk impulse. By the time
we revoke an unallowably restrictive regulation or ruling, time which is of the
essence to a candidate may have lapsed and irredeemable opportunities may
have been lost.
When faced with border line situations where freedom to speak by a candidate or
party and freedom to know on the part of the electorate are invoked against
actions intended for maintaining clean and free elections, the police, local
officials and COMELEC, should lean in favor of freedom. For in the ultimate
analysis, the freedom of the citizen and the State's power to regulate are not
antagonistic. There can be no free and honest elections if in the efforts to
maintain them, the freedom to speak and the right to know are unduly curtailed.
There were a variety of opinions expressed in the National Press Club v.
Commission on Elections (supra) case but all of us were unanimous that
regulation of election activity has its limits. We examine the limits of regulation
and not the limits of free speech. The carefully worded opinion of the Court,
through Mr. Justice Feliciano, shows that regulation of election campaign activity
may not pass the test of validity if it is too general in its terms or not limited in
time and scope in its application, if it restricts one's expression of belief in a
candidate or one's opinion of his or her qualifications, if it cuts off the flow of

media reporting, and if the regulatory measure bears no clear and reasonable nexus with
the constitutionally sanctioned objective.
Even as the Court sustained the regulation of political advertisements, with some rather
strong dissents, inNational 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

47
television stations and commentators or columnists as long as these are not
correctly paid-for advertisements or purchased opinions with less reason can we
sanction the prohibition against a sincere manifestation of support and a
proclamation of belief by an individual person who pastes a sticker or decal on
his private property.
Second the questioned prohibition premised on the statute and as couched in
the resolution is void for overbreadth.
A statute is considered void for overbreadth when "it offends the constitutional
principle that a governmental purpose to control or prevent activities
constitutionally subject to state regulations may not be achieved by means which
sweep unnecessarily broadly and thereby invade the area of protected
freedoms." (Zwickler v. Koota, 19 L ed 2d 444 [1967]).
In a series of decisions this Court has held that, even though the governmental
purpose be legitimate and substantial, that purpose cannot be pursued by means
that broadly stifle fundamental personal liberties when the end can be more
narrowly achieved. The breadth of legislative abridgment must be viewed in the
light of less drastic means for achieving the same basic purpose.
In Lovell v. Griffin, 303 US 444, 82 L ed 949, 58 S Ct 666, the Court invalidated
an ordinance prohibiting all distribution of literature at any time or place in Griffin,
Georgia, without a license, pointing out that so broad an interference was
unnecessary to accomplish legitimate municipal aims. In Schneider v. Irvington,
308 US 147, 84 L ed 155, 60 S Ct. 146, the Court dealt with ordinances of four
different municipalities which either banned or imposed prior restraints upon the
distribution of handbills. In holding the ordinances invalid, the court noted that
where legislative abridgment of fundamental personal rights and liberties is
asserted, "the courts should be astute to examine the effect of the challenged
legislation. Mere legislative preferences or beliefs respecting matters of public
convenience may well support regulation directed at other personal activities, but
be insufficient to justify such as diminishes the exercise of rights so vital to the
maintenance of democratic institutions," 308 US, at 161. In Cantwell v
Connecticut, 310 US 296, 84 L ed 1213, 60 S Ct. 900, 128 ALR 1352, the Court
said that "[c]onduct remains subject to regulation for the protection of society,"
but pointed out that in each case "the power to regulate must be so exercised as
not, in attaining a permissible end, unduly to infringe the protected freedom."
(310 US at 304) (Shelton v. Tucker, 364 US 479 [1960]
The resolution prohibits the posting of decals and stickers not more than eight
and one-half (8-1/2) inches in width and fourteen (14) inches in length in any
place, including mobile places whether public or private except in areas
designated by the COMELEC. Verily, the restriction as to where the decals and
stickers should be posted is so broad that it encompasses even the citizen's
private property, which in this case is a privately-owned vehicle. In consequence
of this prohibition, another cardinal rule prescribed by the Constitution would be
violated. Section 1, Article III of the Bill of Rights provides that no person shall be
deprived of his property without due process of law:

Property is more than the mere thing which a person owns, it includes the right to
acquire, use, and dispose of it; and the Constitution, in the 14th Amendment, protects
these essential attributes.
Property is more than the mere thing which a person owns. It is elementary that it
includes the right to acquire, use, and dispose of it. The Constitution protects these
essential attributes of property. Holden v. Hardy, 169 U.S. 366, 391, 41 L. ed. 780, 790,
18 Sup. Ct. Rep. 383. Property consists of the free use, enjoyment, and disposal of a
person's acquisitions without control or diminution save by the law of the land. 1 Cooley's
Bl. Com. 127. (Buchanan v. Warley 245 US 60 [1917])
As earlier stated, we have to consider the fact that in the posting of decals and stickers
on cars and other moving vehicles, the candidate needs the consent of the owner of the
vehicle. In such a case, the prohibition would not only deprive the owner who consents to
such posting of the decals and stickers the use of his property but more important, in the
process, it would deprive the citizen of his right to free speech and information:
Freedom to distribute information to every citizen wherever he desires to receive it is so
clearly vital to the preservation of a free society that, putting aside reasonable police and
health regulations of time and manner of distribution, it must be fully preserved. The
danger of distribution can so easily be controlled by traditional legal methods leaving to
each householder the full right to decide whether he will receive strangers as visitors,
that stringent prohibition can serve no purpose but that forbidden by the constitution, the
naked restriction of the dissemination of ideas." (Martin v. City of Struthers, Ohio, 319
U.S. 141; 87 L. ed. 1313 [1943])
The right to property may be subject to a greater degree of regulation but when this right
is joined by a "liberty" interest, the burden of justification on the part of the Government
must be exceptionally convincing and irrefutable. The burden is not met in this case.
Section 11 of Rep. Act 6646 is so encompassing and invasive that it prohibits the posting
or display of election propaganda in any place, whether public or private, except in the
common poster areas sanctioned by COMELEC. This means that a private person
cannot post his own crudely prepared personal poster on his own front door or on a post
in his yard. While the COMELEC will certainly never require the absurd, there are no
limits to what overzealous and partisan police officers, armed with a copy of the statute
or regulation, may do.
The provisions allowing regulation are so loosely worded that they include the posting of
decals or stickers in the privacy of one's living room or bedroom. This is delegation
running riot. As stated by Justice Cardozo in his concurrence in Panama Refining Co. v.
Ryan (293 U.S. 388; 79 L. Ed. 446 [1935), "The delegated power is unconfined and
vagrant . . . This is delegation running riot. No such plentitude of power is susceptible of
transfer."
Third the constitutional objective to give a rich candidate and a poor candidate equal
opportunity to inform the electorate as regards their candidacies, mandated by Article II,
Section 26 and Article XIII, section 1 in relation to Article IX (c) Section 4 of the
Constitution, is not impaired by posting decals and stickers on cars and other private
vehicles. Compared to the paramount interest of the State in guaranteeing freedom of

48
expression, any financial considerations behind the regulation are of marginal
significance.
Under section 26 Article II of the Constitution, "The State shall guarantee equal
access to opportunities for public service, . . . while under section 1, Article XIII
thereof "The Congress shall give highest priority to the enactment of measures
that protect and enhance the right of all the people to human dignity, reduce
social, economic, andpolitical inequalities, and remove cultural inequities by
equitably diffusing wealth and political power for the common good." (Emphasis
supplied)
It is to be reiterated that the posting of decals and stickers on cars, calesas,
tricycles, pedicabs and other moving vehicles needs the consent of the owner of
the vehicle. Hence, the preference of the citizen becomes crucial in this kind of
election propaganda not the financial resources of the candidate. Whether the
candidate is rich and, therefore, can afford to doleout more decals and stickers or
poor and without the means to spread out the same number of decals and
stickers is not as important as the right of the owner to freely express his choice
and exercise his right of free speech. The owner can even prepare his own
decals or stickers for posting on his personal property. To strike down this right
and enjoin it is impermissible encroachment of his liberties.
In sum, the prohibition on posting of decals and stickers on "mobile" places
whether public or private except in the authorized areas designated by the
COMELEC becomes censorship which cannot be justified by the Constitution:
. . . The concept of the Constitution as the fundamental law, setting forth the
criterion for the validity of any public act whether proceeding from the highest
official or the lowest functionary, is a postulate of our system of government. That
is to manifest fealty to the rule of law, with priority accorded to that which
occupies the topmost rung in the legal hierarchy. The three departments of
government in the discharge of the functions with which it is entrusted have no
choice but to yield obedience to its commands. Whatever limits it imposes must
be observed. Congress in the enactment of statutes must ever be on guard lest
the restrictions on its authority, either substantive or formal, be transcended. The
Presidency in the execution of the laws cannot ignore or disregard what it
ordains. In its task of applying the law to the facts as found in deciding cases, the
judiciary is called upon to maintain inviolate what is decreed by the fundamental
law. Even its power of judicial review to pass upon the validity of the acts of the
coordinate branches in the course of adjudication is a logical. corollary of this
basic principle that the Constitution is paramount. It overrides any governmental
measure that fails to live up to its mandates. Thereby there is a recognition of its
being the supreme law. (Mutuc v. Commission on Elections, supra)
The unusual circumstances of this year's national and local elections call for a
more liberal interpretation of the freedom to speak and the right to know. It is not
alone the widest possible dissemination of information on platforms and
programs which concern us. Nor are we limiting ourselves to protecting the
unfettered interchange of ideas to bring about political change. (Cf. New York

Times v. Sullivan, supra) The big number of candidates and elective positions involved
has resulted in the peculiar situation where almost all voters cannot name half or even
two-thirds of the candidates running for Senator. The public does not know who are
aspiring to be elected to public office.
There are many candidates whose names alone evoke qualifications, platforms,
programs and ideologies which the voter may accept or reject. When a person attaches
a sticker with such a candidate's name on his car bumper, he is expressing more than
the name; he is espousing ideas. Our review of the validity of the challenged regulation
includes its effects in today's particular circumstances. We are constrained to rule
against the COMELEC prohibition.
WHEREFORE, the petition is hereby GRANTED. The portion of Section 15 (a) of
Resolution No. 2347 of the Commission on Elections providing that "decals and stickers
may be posted only in any of the authorized posting areas provided in paragraph (f) of
Section 21 hereof" is DECLARED NULL and VOID.
SO ORDERED.
Narvasa, C.J., Melencio-Herrera, Paras, Padilla, Bidin, Grio-Aquino, Medialdea,
Regalado, Davide, Jr., Romero and Nocon, J.J., concur.
Feliciano and Bellosillo, JJ., are on leave.

Separate Opinions
CRUZ, J.: concurring:
I join Mr. Justice Gutierrez and reiterate the views expressed in my dissent in National
Press Club v. Commission on Elections. The stand taken by the Court in the case at bar
is a refreshing change from its usual deferential attitude toward authoritarianism as a
persistent vestige of the past regime. After the disappointing decision in the ad ban case,
I hope that the present decision will guide us to the opposite direction, toward liberty and
the full recognition of freedom of expression. This decision is a small step in rectifying the
errors of the past, but it is a step just the same, and on the right track this time.
Regarding the sticker ban, I think we are being swamped with regulations that unduly
obstruct the free flow of information so vital in an election campaign. The Commission on
Elections seems to be bent on muzzling the candidates and imposing all manner of silly
restraints on their efforts to reach the electorate. Reaching the electorate is precisely the
purpose of an election campaign, but the Commission on Elections obviously believes
that the candidates should be as quiet as possible.
Instead of limiting the dissemination of information on the election issues and the
qualifications of those vying for public office, what the Commission on Elections should
concentrate on is the education of the voters on the proper exercise of their suffrages.
This function is part of its constitutional duty to supervise and regulate elections and to
prevent them from deteriorating into popularity contests where the victors are chosen on
the basis not of their platforms and competence but on their ability to sing or dance, or

49
play a musical instrument, or shoot a basketball, or crack a toilet joke, or exhibit
some such dubious talent irrelevant to their ability to discharge a public office.
The public service is threatened with mediocrity and indeed sheer ignorance if
not stupidity. That is the problem the Commission on Elections should try to
correct instead of wasting its time on much trivialities as where posters shall be
allowed and stickers should not be attached and speeches may be delivered.
The real threat in the present election is the influx of the unqualified professional
entertainers whose only asset is the support of their drooling fans, the
demagogues who drumbeat to the clink of coins their professed present virtues
and past innocence, the opportunists for whom flexibility is a means of political
survival and even of financial gain, and, most dangerous of all, the elements of
our electorate who would, with their mindless ballots, impose these officeseekers upon the nation. These are the evils the Commission on Elections
should try to correct, not the inconsequential and inane question of where
stickers should be stuck. I have nothing but praise for the zeal of the Commission
on Elections in pursuing the ideal of democratic elections, but I am afraid it is
barking up the wrong tree.
Separate Opinions
CRUZ, J., concurring:
I join Mr. Justice Gutierrez and reiterate the views expressed in my dissent
in National Press Club v. Commission on Elections. The stand taken by the Court
in the case at bar is a refreshing change from its usual deferential attitude toward
authoritarianism as a persistent vestige of the past regime. After the
disappointing decision in the ad ban case, I hope that the present decision will
guide us to the opposite direction, toward liberty and the full recognition of
freedom of expression. This decision is a small step in rectifying the errors of the
past, but it is a step just the same, and on the right track this time.
Regarding the sticker ban, I think we are being swamped with regulations that
unduly obstruct the free flow of information so vital in an election campaign. The
Commission on Elections seems to be bent on muzzling the candidates and
imposing all manner of silly restraints on their efforts to reach the electorate.
Reaching the electorate is precisely the purpose of an election campaign, but the
Commission on Elections obviously believes that the candidates should be as
quiet as possible.
Instead of limiting the dissemination of information on the election issues and the
qualifications of those vying for public office, what the Commission on Elections
should concentrate on is the education of the voters on the proper exercise of
their suffrages. This function is part of its constitutional duty to supervise and
regulate elections and to prevent them from deteriorating into popularity contests
where the victors are chosen on the basis not of their platforms and competence
but on their ability to sing or dance, or play a musical instrument, or shoot a
basketball, or crack a toilet joke, or exhibit some such dubious talent irrelevant to
their ability to discharge a public office. The public service is threatened with
mediocrity and indeed sheer ignorance if not stupidity. That is the problem the

Commission on Elections should try to correct instead of wasting its time on much
trivialities as where posters shall be allowed and stickers should not be attached and
speeches may be delivered.
The real threat in the present election is the influx of the unqualified professional
entertainers whose only asset is the support of their drooling fans, the demagogues who
drumbeat to the clink of coins their professed present virtues and past innocence, the
opportunists for whom flexibility is a means of political survival and even of financial gain,
and, most dangerous of all, the elements of our electorate who would, with their mindless
ballots, impose these office-seekers upon the nation. These are the evils the
Commission on Elections should try to correct, not the inconsequential and inane
question of where stickers should be stuck. I have nothing but praise for the zeal of the
Commission on Elections in pursuing the ideal of democratic elections, but I am afraid it
is barking up the wrong tree.

EN BANC
[G.R. No. 133486. January 28, 2000]
ABS-CBN BROADCASTING CORPORATION, petitioner, vs. COMMISSION ON
ELECTIONS, respondent.
DECISION
PANGANIBAN, J.:
The holding of exit polls and the dissemination of their results through mass media
constitute an essential part of the freedoms of speech and of the press. Hence, the
Comelec cannot ban them totally in the guise of promoting clean, honest, orderly and
credible elections. Quite the contrary, exit polls -- properly conducted and publicized -can be vital tools in eliminating the evils of election-fixing and fraud. Narrowly tailored
countermeasures may be prescribed by the Comelec so as to minimize or suppress the
incidental problems in the conduct of exit polls, without transgressing in any manner the
fundamental rights of our people.
The Case and the Facts
Before us is a Petition for Certiorari under Rule 65 of the Rules of Court assailing
Commission on Elections (Comelec) en banc Resolution No. 98-1419[1] dated April 21,
1998. In the said Resolution, the poll body
"RESOLVED to approve the issuance of a restraining order to stop ABS-CBN or any
other groups, its agents or representatives from conducting such exit survey and to
authorize the Honorable Chairman to issue the same."
The Resolution was issued by the Comelec allegedly upon "information from [a] reliable
source that ABS-CBN (Lopez Group) has prepared a project, with PR groups, to conduct
radio-TV coverage of the elections x x x and to make [an] exit survey of the x x x vote
during the elections for national officials particularly for President and Vice President,
results of which shall be [broadcast] immediately."[2] The electoral body believed that
such project might conflict with the official Comelec count, as well as the unofficial quick

50
count of the National Movement for Free Elections (Namfrel). It also noted that it
had not authorized or deputized Petitioner ABS-CBN to undertake the exit
survey.
On May 9, 1998, this Court issued the Temporary Restraining Order prayed for
by petitioner. We directed the Comelec to cease and desist, until further orders,
from implementing the assailed Resolution or the restraining order issued
pursuant thereto, if any. In fact, the exit polls were actually conducted and
reported by media without any difficulty or problem.
The Issues
Petitioner raises this lone issue: "Whether or not the Respondent Commission
acted with grave abuse of discretion amounting to a lack or excess of jurisdiction
when it approved the issuance of a restraining order enjoining the petitioner or
any [other group], its agents or representatives from conducting exit polls during
the x x x May 11 elections."[3]
In his Memorandum,[4] the solicitor general, in seeking to dismiss the Petition,
brings up additional issues: (1) mootness and (2) prematurity, because of
petitioner's failure to seek a reconsideration of the assailed Comelec Resolution.
The Court's Ruling
The Petition[5] is meritorious.
Procedural Issues: Mootness and Prematurity
The solicitor general contends that the petition is moot and academic, because
the May 11, 1998 election has already been held and done with. Allegedly, there
is no longer any actual controversy before us.
The issue is not totally moot. While the assailed Resolution referred specifically
to the May 11, 1998 election, its implications on the people's fundamental
freedom of expression transcend the past election. The holding of periodic
elections is a basic feature of our democratic government. By its very nature, exit
polling is tied up with elections. To set aside the resolution of the issue now will
only postpone a task that could well crop up again in future elections.[6]
In any event, in Salonga v. Cruz Pano, the Court had occasion to reiterate that it
"also has the duty to formulate guiding and controlling constitutional principles,
precepts, doctrines, or rules. It has the symbolic function of educating bench and
bar on the extent of protection given by constitutional guarantees."[7] Since the
fundamental freedoms of speech and of the press are being invoked here, we
have resolved to settle, for the guidance of posterity, whether they likewise
protect the holding of exit polls and the dissemination of data derived therefrom.
The solicitor general further contends that the Petition should be dismissed for
petitioner's failure to exhaust available remedies before the issuing forum,
specifically the filing of a motion for reconsideration.
This Court, however, has ruled in the past that this procedural requirement may
be glossed over to prevent a miscarriage of justice,[8] when the issue involves
the principle of social justice or the protection of labor,[9] when the decision or

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

51
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. x x x [T]his must be so because the
lessons of history, both political and legal, illustrate that freedom of thought and
speech is the indispensable condition of nearly every other form of freedom."[14]
Our Constitution clearly mandates that no law shall be passed abridging the
freedom of speech or of the press.[15] In the landmark case Gonzales v.
Comelec,[16] this Court enunciated that at the very least, free speech and a free
press consist of the liberty to discuss publicly and truthfully any matter of public
interest without prior restraint.
The freedom of expression is a means of assuring individual self-fulfillment, of
attaining the truth, of securing participation by the people in social and political
decision-making, and of maintaining the balance between stability and change.
[17] It represents a profound commitment to the principle that debates on public
issues should be uninhibited, robust, and wide open.[18] It means more than the
right to approve existing political beliefs or economic arrangements, to lend
support to official measures, or to take refuge in the existing climate of opinion on
any matter of public consequence. And paraphrasing the eminent justice Oliver
Wendell Holmes,[19] we stress that the freedom encompasses the thought we
hate, no less than the thought we agree with.
Limitations
The realities of life in a complex society, however, preclude an absolute exercise
of the freedoms of speech and of the press. Such freedoms could not remain
unfettered and unrestrained at all times and under all circumstances.[20] They
are not immune to regulation by the State in the exercise of its police power.
[21] While the liberty to think is absolute, the power to express such thought in
words and deeds has limitations.
In Cabansag v. Fernandez[22] this Court had occasion to discuss two theoretical
tests in determining the validity of restrictions to such freedoms, as follows:
"These are the 'clear and present danger' rule and the 'dangerous tendency' rule.
The first, as interpreted in a number of cases, means that the evil consequence
of the comment or utterance must be 'extremely serious and the degree of
imminence extremely high' before the utterance can be punished. The danger to
be guarded against is the 'substantive evil' sought to be prevented. x x x"[23]
"The 'dangerous tendency' rule, on the other hand, x x x may be epitomized as
follows: If the words uttered create a dangerous tendency which the state has a

right to prevent, then such words are punishable. It is not necessary that some definite or
immediate acts of force, violence, or unlawfulness be advocated. It is sufficient that such
acts be advocated in general terms. Nor is it necessary that the language used be
reasonably calculated to incite persons to acts of force, violence, or unlawfulness. It is
sufficient if the natural tendency and probable effect of the utterance be to bring about
the substantive evil which the legislative body seeks to prevent."[24]
Unquestionably, this Court adheres to the "clear and present danger" test. It implicitly did
in its earlier decisions in Primicias v. Fugoso[25] and American Bible Society v. City of
Manila;[26] as well as inlater ones, Vera v. Arca,[27] Navarro v. Villegas,[28] Imbong v.
Ferrer,[29] Blo Umpar Adiong v. Comelec[30] and, more recently, in Iglesia ni Cristo v.
MTRCB.[31] In setting the standard or test for the "clear and present danger" doctrine,
the Court echoed the words of justice Holmes: "The question in every case is whether
the words used are used in such circumstances and are of such a nature as to create a
clear and present danger that they will bring about the substantive evils that Congress
has a right to prevent. It is a question of proximity and degree."[32]
A limitation on the freedom of expression may be justified only by a danger of
such substantive character that the state has a right to prevent. Unlike in the "dangerous
tendency" doctrine, the danger must not only be clear but also present. "Present" refers
to the time element; the danger must not only be probable but very likely to be inevitable.
[33] The evil sought to be avoided must be so substantive as to justify a clamp over
one's mouth or a restraint of a writing instrument.[34]
Justification for a Restriction
Doctrinally, the Court has always ruled in favor of the freedom of expression, and any
restriction is treated an exemption. The power to exercise prior restraint is not to be
presumed; rather the presumption is against its validity.[35] And it is respondent's burden
to overthrow such presumption. Any act that restrains speech should be greeted with
furrowed brows,[36] so it has been said.
To justify a restriction, the promotion of a substantial government interest must be clearly
shown.[37] Thus:
"A government regulation is sufficiently justified if it is within the constitutional power of
the government, if it furthers an important or substantial government interest; if the
governmental interest is unrelated to the suppression of free expression; and if the
incidental restriction on alleged First Amendment freedoms is no greater than is essential
to the furtherance of that interest."[38]
Hence, even though the government's purposes are legitimate and substantial, they
cannot be pursued by means that broadly, stifle fundamental personal liberties, when the
end can be more narrowly achieved.[39]
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

52
clean and free elections, this Court shall lean in favor of freedom. For in the
ultimate analysis, the freedom of the citizen and the State's power to regulate
should not be antagonistic. There can be no free and honest elections if, in the
efforts to maintain them, the freedom to speak and the right to know are unduly
curtailed.[42]
True, the government has a stake in protecting the fundamental right to vote by
providing voting places that are safe and accessible. It has the duty to secure the
secrecy of the ballot and to preserve the sanctity and the integrity of the electoral
process. However, in order to justify a restriction of the people's freedoms of
speech and of the press, the state's responsibility of ensuring orderly voting must
far outweigh them.
These freedoms have additional importance, because exit polls generate
important research data which may be used to study influencing factors and
trends in voting behavior. An absolute prohibition would thus be unreasonably
restrictive, because it effectively prevents the use of exit poll data not only for
election-day projections, but also for long-term research.[43]
Comelec Ban on Exit Polling
In the case at bar, the Comelec justifies its assailed Resolution as having been
issued pursuant to its constitutional mandate to ensure a free, orderly, honest,
credible and peaceful election. While admitting that "the conduct of an exit poll
and the broadcast of the results thereof [are] x x x an exercise of press freedom,"
it argues that "[p]ress freedom may be curtailed if the exercise thereof creates a
clear and present danger to the community or it has a dangerous tendency." It
then contends that "an exit poll has the tendency to sow confusion considering
the randomness of selecting interviewees, which further make[s] the exit poll
highly unreliable. The probability that the results of such exit poll may not be in
harmony with the official count made by the Comelec x x x is ever present. In
other words, the exit poll has a clear and present danger of destroying the
credibility and integrity of the electoral process."
Such arguments are purely speculative and clearly untenable. First, by the very
nature of a survey, the interviewees or participants are selected at random, so
that the results will as much as possible be representative or reflective of the
general sentiment or view of the community or group polled. Second, the survey
result is not meant to replace or be at par with the official Comelec count. It
consists merely of the opinion of the polling group as to who the electorate in
general has probably voted for, based on the limited data gathered from polled
individuals. Finally, not at stake here are the credibility and the integrity of the
elections, which are exercises that are separate and independent from the exit
polls. The holding and the reporting of the results of exit polls cannot undermine
those of the elections, since the former is only part of the latter. If at all, the
outcome of one can only be indicative of the other.
The Comelec's concern with the possible noncommunicative effect of exit polls -disorder and confusion in the voting centers -- does not justify a total ban on
them. Undoubtedly, the assailed Comelec Resolution is too broad, since its

application is without qualification as to whether the polling is disruptive or not.

[44] Concededly, the Omnibus Election Code prohibits disruptive behavior around the
voting centers.[45] There is no showing, however, that exit polls or the means to
interview voters cause chaos in voting centers. Neither has any evidence been
presented proving that the presence of exit poll reporters near an election precinct tends
to create disorder or confuse the voters.
Moreover, the prohibition incidentally prevents the collection of exit poll data and their
use for any purpose. The valuable information and ideas that could be derived from
them, based on the voters' answers to the survey questions will forever remain unknown
and unexplored. Unless the ban is restrained, candidates, researchers, social scientists
and the electorate in general would be deprived of studies on the impact of current
events and of election-day and other factors on voters' choices.
In Daily Herald Co. v. Munro,[46] the US Supreme Court held that a statute, one of the
purposes of which was to prevent the broadcasting of early returns, was
unconstitutional because such purpose was impermissible, and the statute was neither
narrowly tailored to advance a state interest nor the least restrictive alternative.
Furthermore, the general interest of the State in insulating voters from outside influences
is insufficient to justify speech regulation. Just as curtailing election-day broadcasts and
newspaper editorials for the reason that they might indirectly affect the voters' choices is
impermissible, so is regulating speech via an exit poll restriction.[47]
The absolute ban imposed by the Comelec cannot, therefore, be justified. It does not
leave open any alternative channel of communication to gather the type of information
obtained through exit polling. On the other hand, there are other valid and reasonable
ways and means to achieve the Comelec end of avoiding or minimizing disorder and
confusion that may be brought about by exit surveys.
For instance, a specific limited area for conducting exit polls may be designated. Only
professional survey groups may be allowed to conduct the same. Pollsters may be kept
at a reasonable distance from the voting center. They may be required to explain to
voters that the latter may refuse to be interviewed, and that the interview is not part of the
official balloting process. The pollsters may further be required to wear distinctive
clothing that would show they are not election officials.[48] Additionally, they may be
required to undertake an information campaign on the nature of the exercise and the
results to be obtained therefrom. These measures, together with a general prohibition of
disruptive behavior, could ensure a clean, safe and orderly election.
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.

53
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.

CHAVEZ VS GONZALES
February 15, 2008
G.R. No. 168338
x-------------------------------------------------------------------------------------x
DECISION

PUNO, C.J.:
A. Precis
In this jurisdiction, it is established that freedom of the press is crucial and so
inextricably woven into the right to free speech and free expression, that any attempt to
restrict it must be met with an examination so critical that only a danger that is clear and
present would be allowed to curtail it.
Indeed, we have not wavered in the duty to uphold this cherished freedom. We have
struck down laws and issuances meant to curtail this right, as in Adiong v. COMELEC,
[1] Burgos v. Chief of Staff,[2] Social Weather Stations v. COMELEC,[3] and Bayan v.
Executive Secretary Ermita.[4] When on its face, it is clear that a governmental act is
nothing more than a naked means to prevent the free exercise of speech, it must be
nullified.
B. The Facts
1. The case originates from events that occurred a year after the 2004 national and
local elections. On June 5, 2005, Press Secretary Ignacio Bunye told reporters that the
opposition was planning to destabilize the administration by releasing an audiotape of a
mobile phone conversation allegedly between the President of the Philippines, Gloria
Macapagal Arroyo, and a high-ranking official of the Commission on Elections
(COMELEC). The conversation was audiotaped allegedly through wire-tapping.
[5] Later, in a Malacaang press briefing, Secretary Bunye produced two versions of the
tape, one supposedly the complete version, and the other, a spliced, doctored or
altered version, which would suggest that the President had instructed the COMELEC
official to manipulate the election results in the Presidents favor. [6] It seems that
Secretary Bunye admitted that the voice was that of President Arroyo, but subsequently
made a retraction. [7]
2. On June 7, 2005, former counsel of deposed President Joseph Estrada, Atty. Alan
Paguia, subsequently released an alleged authentic tape recording of the
wiretap. Included in the tapes were purported conversations of the President, the First
Gentleman Jose Miguel Arroyo, COMELEC Commissioner Garcillano, and the late
Senator Barbers.[8]
3. On June 8, 2005, respondent Department of Justice (DOJ) Secretary Raul
Gonzales warned reporters that those who had copies of the compact disc (CD) and
those broadcasting or publishing its contents could be held liable under the AntiWiretapping Act. These persons included Secretary Bunye and Atty. Paguia. He also

54
stated that persons possessing or airing said tapes were committing a continuing
offense, subject to arrest by anybody who had personal knowledge if the crime
was committed or was being committed in their presence.[9]
4. On June 9, 2005, in another press briefing, Secretary Gonzales ordered the
National Bureau of Investigation (NBI) to go after media organizations found to
have caused the spread, the playing and the printing of the contents of a tape of
an alleged wiretapped conversation involving the President about fixing votes in
the 2004 national elections. Gonzales said that he was going to start
with Inq7.net, a joint venture between the Philippine Daily Inquirer and
GMA7 television network, because by the very nature of the Internet medium, it
was able to disseminate the contents of the tape more widely. He then
expressed his intention of inviting the editors and managers of Inq7.net and
GMA7 to a probe, and supposedly declared, I [have] asked the NBI to conduct a
tactical interrogation of all concerned. [10]
5.

On June 11, 2005, the NTC issued this press release: [11]

NTC GIVES FAIR WARNING TO RADIO AND TELEVISION

OWNERS/OPERATORS TO OBSERVE ANTI-WIRETAPPING LAW AND
PERTINENT CIRCULARS ON PROGRAM STANDARDS
xxx

xxx

xxx

these radio and television stations. It has been subsequently established that the said
tapes are false and/or fraudulent after a prosecution or appropriate investigation, the
concerned radio and television companies are hereby warned that their broadcast/airing
of such false information and/or willful misrepresentation shall be just cause for the
suspension, revocation and/or cancellation of the licenses or authorizations issued to the
said companies.
In addition to the above, the [NTC] reiterates the pertinent NTC circulars on program
standards to be observed by radio and television stations. NTC Memorandum Circular
111-12-85 explicitly states, among others, that all radio broadcasting and television
stations shall, during any broadcast or telecast, cut off from the air the speech, play, act
or scene or other matters being broadcast or telecast the tendency thereof is to
disseminate false information or such other willful misrepresentation, or to propose
and/or incite treason, rebellion or sedition. The foregoing directive had been reiterated
by NTC Memorandum Circular No. 22-89, which, in addition thereto, prohibited radio,
broadcasting and television stations from using their stations to broadcast or telecast any
speech, language or scene disseminating false information or willful misrepresentation,
or inciting, encouraging or assisting in subversive or treasonable acts.
The [NTC] will not hesitate, after observing the requirements of due process, to apply
with full force the provisions of said Circulars and their accompanying sanctions on erring
radio and television stations and their owners/operators.

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

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

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

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

Considering that these taped conversations have not been duly authenticated nor
could it be said at this time that the tapes contain an accurate or truthful
representation of what was recorded therein, it is the position of the [NTC] that
the continuous airing or broadcast of the said taped conversations by radio and
television stations is a continuing violation of the Anti-Wiretapping Law and the
conditions of the Provisional Authority and/or Certificate of Authority issued to

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

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

55
KBP has program standards that KBP members will observe in the treatment
of news and public affairs programs. These include verification of sources, nonairing of materials that would constitute inciting to sedition and/or rebellion.
The KBP Codes also require that no false statement or willful
misrepresentation is made in the treatment of news or commentaries.

strike down the acts and statements made by respondents as violations of the right to
free speech, free expression and a free press. For another, the recipients of the press
statements have not come forwardneither intervening nor joining petitioner in this
action. Indeed, as a group, they issued a joint statement with respondent NTC that does
not complain about restraints on freedom of the press.

The supposed wiretapped tapes should be treated with sensitivity and

handled responsibly giving due consideration to the process being undertaken to
verify and validate the authenticity and actual content of the same.

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

C. The Petition

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

Petitioner Chavez filed a petition under Rule 65 of the Rules of Court against
respondents Secretary Gonzales and the NTC, praying for the issuance of the
writs of certiorari and prohibition, as extraordinary legal remedies, to annul void
proceedings, and to prevent the unlawful, unconstitutional and oppressive
exercise of authority by the respondents.[13]
Alleging that the acts of respondents are violations of the freedom on expression
and of the press, and the right of the people to information on matters of public
concern,[14] petitioner specifically asked this Court:
[F]or [the] nullification of acts, issuances, and orders of respondents committed
or made since June 6, 2005 until the present that curtail the publics rights to
freedom of expression and of the press, and to information on matters of public
concern specifically in relation to information regarding the controversial taped
conversion of President Arroyo and for prohibition of the further commission of
such acts, and making of such issuances, and orders by respondents. [15]
Respondents[16] denied that the acts transgress the Constitution, and
questioned petitioners legal standing to file the petition. Among the arguments
they raised as to the validity of the fair warning issued by respondent NTC, is
that broadcast media enjoy lesser constitutional guarantees compared to print
media, and the warning was issued pursuant to the NTCs mandate to regulate
the telecommunications industry. [17] It was also stressed that most of the
[television] and radio stations continue, even to this date, to air the tapes, but of
late within the parameters agreed upon between the NTC and KBP. [18]

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

D. THE PROCEDURAL THRESHOLD: LEGAL STANDING

But aside from the primordial issue of determining whether free speech and freedom of
the press have been infringed, the case at bar also gives this Court the opportunity: (1) to
distill the essence of freedom of speech and of the press now beclouded by the vagaries
of motherhood statements; (2) to clarify the types of speeches and their differing
restraints allowed by law; (3) to discuss the core concepts of prior restraint, contentneutral and content-based regulations and their constitutional standard of review; (4) to
examine the historical difference in the treatment of restraints between print and
broadcast media and stress the standard of review governing both; and (5) to call
attention to the ongoing blurring of the lines of distinction between print and broadcast
media.

To be sure, the circumstances of this case make the constitutional challenge

peculiar. Petitioner, who is not a member of the broadcast media, prays that we

E. RE-EXAMINING THE LAW ON FREEDOM OF SPEECH,

56
OF EXPRESSION AND OF THE PRESS
No law shall be passed abridging the freedom of speech, of expression, or of the
press, or the right of the people peaceably to assemble and petition the
government for redress of grievances.[24]
Freedom of expression has gained recognition as a fundamental principle of
every democratic government, and given a preferred right that stands on a higher
level than substantive economic freedom or other liberties. The cognate rights
codified by Article III, Section 4 of the Constitution, copied almost verbatim from
the First Amendment of the U.S. Bill of Rights,[25] were considered the
necessary consequence of republican institutions and the complement of free
speech.[26] This preferred status of free speech has also been codified at the
international level, its recognition now enshrined in international law as a
customary norm that binds all nations.[27]
In the Philippines, the primacy and high esteem accorded freedom of expression
is a fundamental postulate of our constitutional system. [28] This right was
elevated to constitutional status in the 1935, the 1973 and the 1987
Constitutions, reflecting our own lesson of history, both political and legal, that
freedom of speech is an indispensable condition for nearly every other form of
freedom.[29] Moreover, our history shows that the struggle to protect the freedom
of speech, expression and the press was, at bottom, the struggle for the
indispensable preconditions for the exercise of other freedoms.[30] For it is only
when the people have unbridled access to information and the press that they
will be capable of rendering enlightened judgments. In the oft-quoted words of
Thomas Jefferson, we cannot both be free and ignorant.
E.1. ABSTRACTION OF FREE SPEECH
Surrounding the freedom of speech clause are various concepts that we have
adopted as part and parcel of our own Bill of Rights provision on this basic
freedom.[31] What is embraced under this provision was discussed exhaustively
by the Court in Gonzales v. Commission on Elections, [32] in which it was held:
At the very least, free speech and free press may be identified with the liberty
to discuss publicly and truthfully any matter of public interest without censorship
and punishment. There is to be no previous restraint on the communication of
views or subsequent liability whether in libel suits, prosecution for sedition, or
action for damages, or contempt proceedings unless there be a clear and
present danger of substantive evil that Congress has a right to prevent. [33]
Gonzales further explained that the vital need of a constitutional democracy for
freedom of expression is undeniable, whether as a means of assuring individual

self-fulfillment; of attaining the truth; of assuring participation by the people in social,

including political, decision-making; and of maintaining the balance between stability and
change.[34] As early as the 1920s, the trend as reflected in Philippine and American
decisions was to recognize the broadest scope and assure the widest latitude for this
constitutional guarantee. The trend represents a profound commitment to the principle
that debate on public issue should be uninhibited, robust, and wide-open. [35]
Freedom of speech and of the press means something more than the right to approve
existing political beliefs or economic arrangements, to lend support to official measures,
and to take refuge in the existing climate of opinion on any matter of public consequence.
[36] When atrophied, the right becomes meaningless.[37]The right belongs as well -- if
not more to those who question, who do not conform, who differ.[38] The ideas that
may be expressed under this freedom are confined not only to those that are
conventional or acceptable to the majority. To be truly meaningful, freedom of speech
and of the press should allow and even encourage the articulation of the unorthodox
view, though it be hostile to or derided by others; or though such view induces a
condition of unrest, creates dissatisfaction with conditions as they are, or even stirs
people to anger.[39] To paraphrase Justice Holmes, it is freedom for the thought that we
hate, no less than for the thought that agrees with us. [40]
The scope of freedom of expression is so broad that it extends protection to nearly
all forms of communication. It protects speech, print and assembly regarding secular as
well as political causes, and is not confined to any particular field of human interest. The
protection covers myriad matters of public interest or concern embracing all issues,
about which information is needed or appropriate, so as to enable members of society to
cope with the exigencies of their period. The constitutional protection assures the
broadest possible exercise of free speech and free press for religious, political,
economic, scientific, news, or informational ends, inasmuch as the Constitution's basic
guarantee of freedom to advocate ideas is not confined to the expression of ideas that
are conventional or shared by a majority.
The constitutional protection is not limited to the exposition of ideas. The protection
afforded free speech extends to speech or publications that are entertaining as well as
instructive or informative. Specifically, in Eastern Broadcasting Corporation (DYRE) v.
Dans,[41] this Court stated that all forms of media, whether print or broadcast, are
entitled to the broad protection of the clause on freedom of speech and of expression.
While all forms of communication are entitled to the broad protection of freedom of
expression clause, the freedom of film, television and radio broadcasting is somewhat
lesser in scope than the freedom accorded to newspapers and other print media, as will
be subsequently discussed.
E.2. DIFFERENTIATION: THE LIMITS & RESTRAINTS OF FREE SPEECH

57
From the language of the specific constitutional provision, it would appear
that the right to free speech and a free press is not susceptible of any limitation.
But the realities of life in a complex society preclude a literal interpretation of the
provision prohibiting the passage of a law that would abridge such freedom. For
freedom of expression is not an absolute, [42] nor is it an unbridled license that
gives immunity for every possible use of language and prevents the punishment
of those who abuse this freedom.
Thus, all speech are not treated the same. Some types of speech may be
subjected to some regulation by the State under its pervasive police power, in
order that it may not be injurious to the equal right of others or those of the
community or society.[43] The difference in treatment is expected because the
relevant interests of one type of speech, e.g., political speech, may vary from
those of another, e.g., obscene speech. Distinctions have therefore been made in
the treatment, analysis, and evaluation of the permissible scope of restrictions on
various categories of speech. [44] We have ruled, for example, that in our
jurisdiction slander or libel, lewd and obscene speech, as well as fighting words
are not entitled to constitutional protection and may be penalized.[45]
Moreover, the techniques of reviewing alleged restrictions on speech
(overbreadth, vagueness, and so on) have been applied differently to each
category, either consciously or unconsciously. [46] A study of free speech
jurisprudencewhether here or abroadwill reveal that courts have developed
different tests as to specific types or categories of speech in
concrete situations; i.e., subversive speech; obscene speech; the speech of the
broadcast media and of the traditional print media; libelous speech; speech
affecting associational rights; speech before hostile audiences; symbolic speech;
speech that affects the right to a fair trial; and speech associated with rights of
assembly and petition. [47]
Generally, restraints on freedom of speech and expression are evaluated by
either or a combination of three tests, i.e., (a) the dangerous tendency
doctrinewhich permits limitations on speech once a rational connection has been
established between the speech restrained and the danger
contemplated; [48] (b) the balancing of interests tests, used as a standard when
courts need to balance conflicting social values and individual interests, and
requires a conscious and detailed consideration of the interplay of interests
observable in a given situation of type of situation; [49] and (c) the clear and
present danger rule which rests on the premise that speech may be restrained
because there is substantial danger that the speech will likely lead to an evil the
government has a right to prevent. This rule requires that the evil consequences
sought to be prevented must be substantive, extremely serious and the degree
of imminence extremely high. [50]

As articulated in our jurisprudence, we have applied either the dangerous tendency

doctrine or clear and present danger test to resolve free speech challenges. More
recently, we have concluded that we have generally adhered to the clear and present
danger test. [51]
E.3. IN FOCUS: FREEDOM OF THE PRESS
Much has been written on the philosophical basis of press freedom as part of the larger
right of free discussion and expression. Its practical importance, though, is more easily
grasped. It is the chief source of information on current affairs. It is the most pervasive
and perhaps most powerful vehicle of opinion on public questions. It is the instrument by
which citizens keep their government informed of their needs, their aspirations and their
grievances. It is the sharpest weapon in the fight to keep government responsible and
efficient. Without a vigilant press, the mistakes of every administration would go
uncorrected and its abuses unexposed. As Justice Malcolm wrote in United States v.
Bustos:[52]
The interest of society and the maintenance of good government demand a full
discussion of public affairs. Complete liberty to comment on the conduct of public men is
a scalpel in the case of free speech. The sharp incision of its probe relieves the
abscesses of officialdom. Men in public life may suffer under a hostile and unjust
accusation; the wound can be assuaged with the balm of clear conscience.
Its contribution to the public weal makes freedom of the press deserving of extra
protection. Indeed, the press benefits from certain ancillary rights. The productions of
writers are classified as intellectual and proprietary. Persons who interfere or defeat the
freedom to write for the press or to maintain a periodical publication are liable for
damages, be they private individuals or public officials.
E.4. ANATOMY OF RESTRICTIONS: PRIOR RESTRAINT, CONTENT-NEUTRAL AND
CONTENT-BASED REGULATIONS
Philippine jurisprudence, even as early as the period under the 1935 Constitution,
has recognized four aspects of freedom of the press. These are (1) freedom from prior
restraint; (2) freedom from punishment subsequent to publication; [53] (3) freedom of
access to information; [54] and (4) freedom of circulation.[55]
Considering that petitioner has argued that respondents press statement constitutes
a form of impermissible prior restraint, a closer scrutiny of this principle is in order, as
well as its sub-specie of content-based (as distinguished from content-neutral)
regulations.
At this point, it should be noted that respondents in this case deny that their acts
constitute prior restraints. This presents a unique tinge to the present challenge,

58
considering that the cases in our jurisdiction involving prior restrictions on speech
never had any issue of whether the governmental act or
issuance actually constituted prior restraint. Rather, the determinations were
always about whether the restraint was justified by the Constitution.
Be that as it may, the determination in every case of whether there is an
impermissible restraint on the freedom of speech has always been based on the
circumstances of each case, including the nature of the restraint. And in its
application in our jurisdiction, the parameters of this principle have been etched
on a case-to-case basis, always tested by scrutinizing the governmental
issuance or act against the circumstances in which they operate, and then
determining the appropriate test with which to evaluate.
Prior restraint refers to official governmental restrictions on the press or
other forms of expression in advance of actual publication or dissemination.
[56] Freedom from prior restraint is largely freedom from government censorship
of publications, whatever the form of censorship, and regardless of whether it is
wielded by the executive, legislative or judicial branch of the government. Thus, it
precludes governmental acts that required approval of a proposal to publish;
licensing or permits as prerequisites to publication including the payment of
license taxes for the privilege to publish; and even injunctions against
publication. Even the closure of the business and printing offices of certain
newspapers, resulting in the discontinuation of their printing and publication, are
deemed as previous restraint or censorship.[57] Any law or official that requires
some form of permission to be had before publication can be made, commits an
infringement of the constitutional right, and remedy can be had at the courts.
Given that deeply ensconced in our fundamental law is the hostility against
all prior restraints on speech, and any act that restrains speech is presumed
invalid,[58] and any act that restrains speech is hobbled by the presumption of
invalidity and should be greeted with furrowed brows, [59] it is important to
stress not all prior restraints on speech are invalid. Certain previous restraints
may be permitted by the Constitution, but determined only upon a careful
evaluation of the challenged act as against the appropriate test by which it should
be measured against.
Hence, it is not enough to determine whether the challenged act constitutes
some form of restraint on freedom of speech. A distinction has to be made
whether the restraint is (1) a content-neutral regulation, i.e., merely concerned
with the incidents of the speech, or one that merely controls the time, place or
manner, and under well defined standards;[60] or (2) a content-based restraint
or censorship, i.e., the restriction is based on the subject matter of the utterance
or speech. [61] The cast of the restriction determines the test by which the
challenged act is assayed with.

When the speech restraints take the form of a content-neutral regulation, only a
substantial governmental interest is required for its validity.[62] Because regulations of
this type are not designed to suppress any particular message, they are not subject to
the strictest form of judicial scrutiny but an intermediate approachsomewhere between
the mere rationality that is required of any other law and the compelling interest standard
applied to content-based restrictions.[63] The test is called intermediate because the
Court will not merely rubberstamp the validity of a law but also require that the
restrictions be narrowly-tailored to promote an important or significant governmental
interest that is unrelated to the suppression of expression. The intermediate approach
has been formulated in this manner:
A governmental regulation is sufficiently justified if it is within the constitutional power of
the Government, if it furthers an important or substantial governmental interest; if the
governmental interest is unrelated to the suppression of free expression; and if the
incident restriction on alleged [freedom of speech & expression] is no greater than is
essential to the furtherance of that interest. [64]
On the other hand, a governmental action that restricts freedom of speech or of the
press based on content is given the strictest scrutiny in light of its inherent and invasive
impact. Only when the challenged act has overcome the clear and present danger
rule will it pass constitutional muster,[65] with the government having the burden of
overcoming the presumed unconstitutionality.
Unless the government can overthrow this presumption, the content-based restraint
will be struck down.[66]
With respect to content-based restrictions, the government must also show the type
of harm the speech sought to be restrained would bring about especially the gravity
and the imminence of the threatened harm otherwise the prior restraint will be
invalid. Prior restraint on speech based on its content cannot be justified by hypothetical
fears, but only by showing a substantive and imminent evil that has taken the life of a
reality already on ground.[67] As formulated, the question in every case is whether the
words used are used in such circumstances and are of such a nature as
to create a clear and present danger that they will bring about the substantive
evils that Congress has a right to prevent. It is a question of proximity and degree.[68]
The regulation which restricts the speech content must also serve an important or
substantial government interest, which is unrelated to the suppression of free
expression. [69]
Also, the incidental restriction on speech must be no greater than what is essential
to the furtherance of that interest. [70] A restriction that is so broad that it encompasses
more than what is required to satisfy the governmental interest will be

59
invalidated. [71] The regulation, therefore, must be reasonable and narrowly
drawn to fit the regulatory purpose, with the least restrictive means
undertaken. [72]

interests,[79] they are decided on whether the governmental restriction is narrowly

tailored to further a substantial governmental interest,[80] or the intermediate test.

Thus, when the prior restraint partakes of a content-neutral regulation, it is

subjected to an intermediate review. A content-based regulation,
[73] however,bears a heavy presumption of invalidity and is measured against
the clear and present danger rule. The latter will pass constitutional muster only
if justified by a compelling reason, and the restrictions imposed are neither
overbroad nor vague. [74]

As pointed out by respondents, Philippine jurisprudence has also echoed a differentiation

in treatment between broadcast and print media. Nevertheless, a review of Philippine
case law on broadcast media will show thatas we have deviated with the American
conception of the Bill of Rights[81] we likewise did not adopt en masse the U.S.
conception of free speech as it relates to broadcast media, particularly as to which test
would govern content-based prior restraints.

Applying the foregoing, it is clear that the challenged acts in the case at bar
need to be subjected to the clear and present danger rule, as they are contentbasedrestrictions. The acts of respondents focused solely on but one objecta
specific content fixed as these were on the alleged taped conversations
between the President and a COMELEC official. Undoubtedly these did not
merely provide regulations as to the time, place or manner of the dissemination
of speech or expression.

Our cases show two distinct features of this dichotomy. First, the difference in treatment,
in the main, is in the regulatory scheme applied to broadcast media that is not imposed
on traditional print media, and narrowly confined to unprotected speech (e.g., obscenity,
pornography, seditious and inciting speech), or is based on a compelling government
interest that also has constitutional protection, such as national security or the electoral
process.

E.5. Dichotomy of Free Press: Print v. Broadcast Media

Finally, comes respondents argument that the challenged act is valid on the
ground that broadcast media enjoys free speech rights that are lesser in scope to
that of print media. We next explore and test the validity of this argument, insofar
as it has been invoked to validate a content-based restriction on broadcast
media.
The regimes presently in place for each type of media differ from one
other. Contrasted with the regime in respect of books, newspapers, magazines
and traditional printed matter, broadcasting, film and video have been subjected
to regulatory schemes.
The dichotomy between print and broadcast media traces its origins in the United
States. There, broadcast radio and television have been held to have limitedFirst
Amendment protection,[75] and U.S. Courts have excluded broadcast media
from the application of the strict scrutiny standard that they would otherwise
apply to content-based restrictions.[76] According to U.S. Courts, the three
major reasons why broadcast media stands apart from print media are: (a) the
scarcity of the frequencies by which the medium operates [i.e., airwaves are
physically limited while print medium may be limitless]; [77] (b) its
pervasiveness as a medium; and (c) its unique accessibility to children.
[78] Because cases involving broadcast media need not follow precisely the
same approach that [U.S. courts] have applied to other media, nor go so far as
to demand that such regulations serve compelling government

Second, regardless of the regulatory schemes that broadcast media is subjected to, the
Court has consistently held that the clear and present danger test applies to contentbased restrictions on media, without making a distinction as to traditional print or
broadcast media.
The distinction between broadcast and traditional print media was first enunciated
in Eastern Broadcasting Corporation (DYRE) v. Dans,[82] wherein it was held that [a]ll
forms of media, whether print or broadcast, are entitled to the broad protection of the
freedom of speech and expression clause. The test for limitations on freedom of
expression continues to be the clear and present danger rule[83]
Dans was a case filed to compel the reopening of a radio station which had been
summarily closed on grounds of national security. Although the issue had become moot
and academic because the owners were no longer interested to reopen, the Court still
proceeded to do an analysis of the case and made formulations to serve as guidelines
for all inferior courts and bodies exercising quasi-judicial functions. Particularly, the Court
made a detailed exposition as to what needs be considered in cases involving broadcast
media. Thus:[84]
xxx

xxx

xxx

(3)
All forms of media, whether print or broadcast, are entitled to the broad protection
of the freedom of speech and expression clause. The test for limitations on freedom of
expression continues to be the clear and present danger rule, that words are used in
such circumstances and are of such a nature as to create a clear and present danger
that they will bring about the substantive evils that the lawmaker has a right to prevent, In

60
his Constitution of the Philippines (2nd Edition, pp. 569-570) Chief Justice
Enrique M. Fernando cites at least nine of our decisions which apply the test.
More recently, the clear and present danger test was applied in J.B.L. Reyes in
behalf of the Anti-Bases Coalition v. Bagatsing. (4) The clear and present danger
test, however, does not lend itself to a simplistic and all embracing interpretation
applicable to all utterances in all forums.
Broadcasting has to be licensed. Airwave frequencies have to be allocated
among qualified users. A broadcast corporation cannot simply appropriate a
certain frequency without regard for government regulation or for the rights of
others.
All forms of communication are entitled to the broad protection of the freedom of
expression clause. Necessarily, however, the freedom of television and radio
broadcasting is somewhat lesser in scope than the freedom accorded to
newspaper and print media.
The American Court in Federal Communications Commission v. Pacifica
Foundation (438 U.S. 726), confronted with a patently offensive and indecent
regular radio program, explained why radio broadcasting, more than other forms
of communications, receives the most limited protection from the free expression
clause. First, broadcast media have established a uniquely pervasive presence in
the lives of all citizens, Material presented over the airwaves confronts the
citizen, not only in public, but in the privacy of his home. Second, broadcasting is
uniquely accessible to children. Bookstores and motion picture theaters may be
prohibited from making certain material available to children, but the same
selectivity cannot be done in radio or television, where the listener or viewer is
constantly tuning in and out.
Similar considerations apply in the area of national security.
The broadcast media have also established a uniquely pervasive presence in the
lives of all Filipinos. Newspapers and current books are found only in
metropolitan areas and in the poblaciones of municipalities accessible to fast and
regular transportation. Even here, there are low income masses who find the cost
of books, newspapers, and magazines beyond their humble means. Basic needs
like food and shelter perforce enjoy high priorities.
On the other hand, the transistor radio is found everywhere. The television set is
also becoming universal. Their message may be simultaneously received by a
national or regional audience of listeners including the indifferent or unwilling who
happen to be within reach of a blaring radio or television set. The materials
broadcast over the airwaves reach every person of every age, persons of varying
susceptibilities to persuasion, persons of different I.Q.s and mental capabilities,
persons whose reactions to inflammatory or offensive speech would be difficult to
monitor or predict. The impact of the vibrant speech is forceful and immediate.
Unlike readers of the printed work, the radio audience has lesser opportunity to
cogitate analyze, and reject the utterance.
(5)
The clear and present danger test, therefore, must take the particular
circumstances of broadcast media into account. The supervision of radio

stations-whether by government or through self-regulation by the industry itself calls for

thoughtful, intelligent and sophisticated handling.
The government has a right to be protected against broadcasts which incite the listeners
to violently overthrow it. Radio and television may not be used to organize a rebellion or
to signal the start of widespread uprising. At the same time, the people have a right to be
informed. Radio and television would have little reason for existence if broadcasts are
limited to bland, obsequious, or pleasantly entertaining utterances. Since they are the
most convenient and popular means of disseminating varying views on public issues,
they also deserve special protection.
(6)
The freedom to comment on public affairs is essential to the vitality of a
representative democracy. In the 1918 case of United States v. Bustos (37 Phil. 731) this
Court was already stressing that.
The interest of society and the maintenance of good government demand a full
discussion of public affairs. Complete liberty to comment on the conduct of public men is
a scalpel in the case of free speech. The sharp incision of its probe relieves the
abscesses of officialdom. Men in public life may suffer under a hostile and an unjust
accusation; the wound can be assuaged with the balm of a clear conscience. A public
officer must not be too thin-skinned with reference to comment upon his official acts.
Only thus can the intelligence and dignity of the individual be exalted.
(7)
Broadcast stations deserve the special protection given to all forms of media by
the due process and freedom of expression clauses of the Constitution. [Citations
omitted]
It is interesting to note that the Court in Dans adopted the arguments found in U.S.
jurisprudence to justify differentiation of treatment (i.e., the scarcity, pervasiveness and
accessibility to children), but only after categorically declaring that the test for limitations
on freedom of expression continues to be the clear and present danger rule, for all
forms of media, whether print or broadcast. Indeed, a close reading of the above-quoted
provisions would show that the differentiation that the Court in Dans referred to was
narrowly restricted to what is otherwise deemed as unprotected speech (e.g.,
obscenity, national security, seditious and inciting speech), or to validate a licensing or
regulatory scheme necessary to allocate the limited broadcast frequencies, which is
absent in print media. Thus, when this Court declared in Dans that the freedom given to
broadcast media was somewhat lesser in scope than the freedom accorded to
newspaper and print media, it was not as to what test should be applied, but the context
by which requirements of licensing, allocation of airwaves, and application of norms to
unprotected speech. [85]
In the same year that the Dans case was decided, it was reiterated in Gonzales v.
Katigbak,[86] that the test to determine free expression challenges was the clear and
present danger, again without distinguishing the media.[87] Katigbak, strictly speaking,
does not treat of broadcast media but motion pictures. Although the issue involved
obscenity standards as applied to movies,[88] the Court concluded its decision with the

61
following obiter dictum that a less liberal approach would be used to resolve
obscenity issues in television as opposed to motion pictures:
All that remains to be said is that the ruling is to be limited to the concept of
obscenity applicable to motion pictures. It is the consensus of this Court that
where television is concerned, a less liberal approach calls for observance. This
is so because unlike motion pictures where the patrons have to pay their way,
television reaches every home where there is a set. Children then will likely be
among the avid viewers of the programs therein shown..It cannot be denied
though that the State as parens patriae is called upon to manifest an attitude of
caring for the welfare of the young.
More recently, in resolving a case involving the conduct of exit polls and
dissemination of the results by a broadcast company, we reiterated that the clear
and present danger rule is the test we unquestionably adhere to issues that
involve freedoms of speech and of the press.[89]
This is not to suggest, however, that the clear and present danger rule has
been applied to all cases that involve the broadcast media. The rule applies to
all media, including broadcast, but only when the challenged act is a contentbased regulation that infringes on free speech, expression and the
press. Indeed, in Osmena v. COMELEC,[90] which also involved broadcast
media, the Court refused to apply the clear and present danger rule to a
COMELEC regulation of time and manner of advertising of political
advertisements because the challenged restriction was content-neutral.[91] And
in a case involving due process and equal protection issues, the Court
in Telecommunications and Broadcast Attorneys of the Philippines v.
COMELEC[92] treated a restriction imposed on a broadcast media as a
reasonable condition for the grant of the medias franchise, without going into
which test would apply.
That broadcast media is subject to a regulatory regime absent in print media
is observed also in other jurisdictions, where the statutory regimes in place over
broadcast media include elements of licensing, regulation by administrative
bodies, and censorship. As explained by a British author:
The reasons behind treating broadcast and films differently from the print media
differ in a number of respects, but have a common historical basis. The stricter
system of controls seems to have been adopted in answer to the view that owing
to their particular impact on audiences, films, videos and broadcasting require a
system of prior restraints, whereas it is now accepted that books and other
printed media do not. These media are viewed as beneficial to the public in a
number of respects, but are also seen as possible sources of harm.[93]

Parenthetically, these justifications are now the subject of debate. Historically, the
scarcity of frequencies was thought to provide a rationale. However, cable and satellite
television have enormously increased the number of actual and potential
channels. Digital technology will further increase the number of channels available. But
still, the argument persists that broadcasting is the most influential means of
communication, since it comes into the home, and so much time is spent watching
television. Since it has a unique impact on people and affects children in a way that the
print media normally does not, that regulation is said to be necessary in order to preserve
pluralism. It has been argued further that a significant main threat to free expressionin
terms of diversitycomes not from government, but from private corporate
bodies. These developments show a need for a reexamination of the traditional notions
of the scope and extent of broadcast media regulation. [94]
The emergence of digital technology -- which has led to the convergence of
broadcasting, telecommunications and the computer industry -- has likewise led to the
question of whether the regulatory model for broadcasting will continue to be appropriate
in the converged environment.[95] Internet, for example, remains largely unregulated,
yet the Internet and the broadcast media share similarities, [96] and the rationales used
to support broadcast regulation apply equally to the Internet.[97]Thus, it has been argued
that courts, legislative bodies and the government agencies regulating media must agree
to regulate both, regulate neither or develop a new regulatory framework and rationale to
justify the differential treatment. [98]
F. The Case At Bar
Having settled the applicable standard to content-based restrictions on broadcast
media, let us go to its application to the case at bar. To
recapitulate, a governmental action that restricts freedom of speech
or of the press based on content is given the strictest
scrutiny, with the government having the burden of overcoming the
presumed unconstitutionality by the clear and present danger rule. This rule applies
equally to all kinds of media, including broadcast media.
This outlines the procedural map to follow in cases like the one at bar as it spells out
the following: (a) the test; (b) the presumption; (c) the burden of proof; (d) the party to
discharge the burden; and (e) the quantum of evidence necessary. On the basis of the
records of the case at bar, respondents who have the burden to show that these acts do
not abridge freedom of speech and of the press failed to hurdle the clear and present
danger test. It appears that the great evil which government wants to prevent is the
airing of a tape recording in alleged violation of the anti-wiretapping law. The records of
the case at bar, however, are confused and confusing, and respondents evidence falls
short of satisfying the clear and present danger test. Firstly, the various statements of

62
the Press Secretary obfuscate the identity of the voices in the tape
recording. Secondly, the integrity of the taped conversation is also suspect. The
Press Secretary showed to the public two versions, one supposed to be a
complete version and the other, an altered version. Thirdly, the evidence of
the respondents on the whos and the hows of the wiretapping act is ambivalent,
especially considering the tapes different versions. The identity of the wiretappers, the manner of its commission and other related and relevant proofs are
some of the invisibles of this case. Fourthly, given all these unsettled facets of
the tape, it is even arguable whether its airing would violate the anti-wiretapping
law.
We rule that not every violation of a law will justify straitjacketing the
exercise of freedom of speech and of the press. Our laws are of different
kindsand doubtless, some of them provide norms of conduct which even if
violated have only an adverse effect on a persons private comfort but does not
endanger national security. There are laws of great significance but their
violation, by itself and without more, cannot support suppression of free speech
and free press. In fine, violation of law is just a factor, a vital one to be sure,
which should be weighed in adjudging whether to restrain freedom of speech
and of the press. Thetotality of the injurious effects of the violation to private and
public interest must be calibrated in light of the preferred status accorded by the
Constitution and by related international covenants protecting freedom of speech
and of the press. In calling for a careful and calibrated measurement of the
circumference of all these factors to determine compliance with the clear and
present danger test, the Court should not be misinterpreted as
devaluing violations of law. By all
means, violations of law should be vigorously prosecuted by the
State for they breed their own evil consequence. But to repeat, the need to
prevent their violation cannot per se trump the exercise of
free speech and free press, a preferred right whose breach can
lead to greater evils. For this failure of the respondents alone to offer proof to
satisfy the clear and present danger test, the Court has no option but to uphold
the exercise of free speech and free press. There is no showing that the feared
violation of the anti-wiretapping law clearly endangers the national security of the
State.
This is not all the faultline in the stance of the respondents. We slide to the
issue of whether the mere press statements of the Secretary of Justice and of the
NTC in question constitute a form of content-based prior restraint that has
transgressed the Constitution. In resolving this issue, we hold
that it is not decisive that the press statements made by respondents were not
reduced in or followed up with formal orders or circulars. It is sufficient that the
press statements were made by respondents while in the exercise of their official
functions. Undoubtedly, respondent Gonzales made his statements as Secretary

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

[G.R. No. 119673. July 26, 1996]

63
IGLESIA NI CRISTO (INC.), petitioner, vs. THE HONORABLE COURT OF
APPEALS, BOARD OF REVIEW FOR MOTION PICTURES AND TELEVISION
and HONORABLE HENRIETTA S. MENDEZ, respondents.
DECISION
PUNO, J.:
This is a petition for review of the Decision dated March 24, 1995 of the
respondent Court of Appeals affirming the action of the respondent Board of
Review for Motion Pictures and Television which x-rated the TV Program Ang
Iglesia ni Cristo.
Petitioner Iglesia ni Cristo, a duly organized religious organization, has a
television program entitled Ang Iglesia ni Cristo aired on Channel 2 every
Saturday and on Channel 13 every Sunday. The program presents and
propagates petitioners religious beliefs, doctrines and practices often times in
comparative studies with other religions.
Sometime in the months of September, October and November 1992, petitioner
submitted to the respondent Board of Review for Motion Pictures and Television
the VTR tapes of its TV program Series Nos. 116, 119, 121 and 128. The Board
classified the series as X or not for public viewing on the ground that they
offend and constitute an attack against other religions which is expressly
prohibited by law.
Petitioner pursued two (2) courses of action against the respondent Board. On
November 28, 1992, it appealed to the Office of the President the classification of
its TV Series No. 128. It succeeded in its appeal for on December 18, 1992, the
Office of the President reversed the decision of the respondent Board. Forthwith,
the Board allowed Series No. 128 to be publicly telecast.
On December 14, 1992, petitioner also filed against the respondent Board Civil
Case No. Q-92-14280, with the RTC, NCR, Quezon City.[1] Petitioner alleged
that the respondent Board acted without jurisdiction or with grave abuse of
discretion in requiring petitioner to submit the VTR tapes of its TV program and in
x-rating them. It cited its TV Program Series Nos. 115, 119, 121 and 128. In
their Answer, respondent Board invoked its power under P.D. No. 1986 in
relation to Article 201 of the Revised Penal Code.
On January 4, 1993, the trial court held a hearing on petitioners prayer for a writ
of preliminary injunction. The parties orally argued and then marked their
documentary evidence. Petitioner submitted the following as its exhibits, viz.:
(1)
Exhibit A, respondent Boards Voting Slip for Television showing its
September 9, 1992 action on petitioners Series No. 115 as follows:[2]
REMARKS:
There are some inconsistencies in the particular program as it is very surprising
for this program to show series of Catholic ceremonies and also some religious
sects and using it in their discussion about the bible. There are remarks which
are direct criticism which affect other religions.
Need more opinions for this particular program. Please subject to more opinions.

(2)
Exhibit A-1, respondent Boards Voting Slip for Television showing its
September 11, 1992 subsequent action on petitioners Series No. 115 as follows:[3]
REMARKS:
This program is criticizing different religions, based on their own interpretation of the
Bible.
We suggest that the program should delve on explaining their own faith and beliefs and
avoid attacks on other faith.
(3)
Exhibit B, respondent Boards Voting Slip for Television showing its October
9, 1992 action on petitioners Series No. 119, as follows:[4]
REMARKS:
The Iglesia ni Cristo insists on the literal translation of the bible and says that our
(Catholic) veneration of the Virgin Mary is not to be condoned because nowhere it is
found in the bible that we should do so.
This is intolerance and robs off all sects of freedom of choice, worship and decision.
(4)
Exhibit C, respondent Boards Voting Slip for Television showing its October
20, 1992 action on petitioners Series No. 121 as follows:[5]
REMARKS:
I refuse to approve the telecast of this episode for reasons of the attacks, they do on,
specifically, the Catholic religion.
I refuse to admit that they can tell, dictate any other religion that they are right and the
rest are wrong, which they clearly present in this episode.
(5)
Exhibit D, respondent Boards Voting Slip for Television showing its
November 20, 1992 action on petitioners Series No. 128 as follows:[6]
REMARKS:
The episode presented criticizes the religious beliefs of the Catholic and Protestants
beliefs.
We suggest a second review.
(6)
Exhibits E, E-1, petitioners block time contract with ABS-CBN
Broadcasting Corporation dated September 1, 1992.[7]
(7)
Exhibit F, petitioners Airtime Contract with Island Broadcasting Corporation.
[8]
(8)
Exhibit G, letter dated December 18, 1992 of former Executive Secretary
Edelmiro A. Amante, Sr., addressed to Henrietta S. Mendez reversing the decision of the
respondent Board which x-rated the showing of petitioners Series No. 129. The letter
reads in part:
xxx
xxx
xxx
The television episode in question is protected by the constitutional guarantee of free
speech and expression under Article III, Section 4 of the 1987 Constitution.
We have viewed a tape of the television episode in question, as well as studied the
passages found by MTRCB to be objectionable and we find no indication that the
episode poses any clear and present danger sufficient to limit the said constitutional
guarantee.

64
(9)
Exhibits H, H-1, letter dated November 26, 1992 of Teofilo C.
Ramos, Sr., addressed to President Fidel V. Ramos appealing the action of the
respondent Board x-rating petitioners Series No. 128.
On its part, respondent Board submitted the following exhibits, viz.:
(1) Exhibit 1, Permit Certificate for Television Exhibition No. 15181 dated
December 18, 1992 allowing the showing of Series No. 128 under parental
guidance.
(2) Exhibit 2, which is Exhibit G of petitioner.
(3) Exhibit 3, letter dated October 12, 1992 of Henrietta S. Mendez, addressed
to the Christian Era Broadcasting Service which reads in part:
xxx
In the matter of your television show Ang Iglesia ni Cristo Series No. 119,
please be informed that the Board was constrained to deny your show a permit to
exhibit. The material involved constitute an attack against another religion which
is expressly prohibited by law. Please be guided in the submission of future
shows.
After evaluating the evidence of the parties, the trial court issued a writ of
preliminary injunction on petitioners bond of P10,000.00.
The trial court set the pre-trial of the case and the parties submitted their pre-trial
briefs.[9] The pre-trial briefs show that the parties evidence is basically the
evidence they submitted in the hearing of the issue of preliminary injunction. The
trial of the case was set and reset several times as the parties tried to reach an
amicable accord. Their efforts failed and the records show that after submission
of memoranda, the trial court rendered a Judgment,[10] on December 15, 1993,
the dispositive portion of which reads:
x x x
WHEREFORE, judgment is hereby rendered ordering respondent Board of
Review for Motion Pictures and Television (BRMPT) to grant petitioner Iglesia ni
Cristo the necessary permit for all the series of Ang Iglesia ni Cristo program.
Petitioner Iglesia ni Cristo, however, is directed to refrain from offending and
attacking other existing religions in showing Ang Iglesia ni Cristo program.
SO ORDERED.
Petitioner moved for reconsideration[11] praying: (a) for the deletion of the
second paragraph of the dispositive portion of the Decision, and (b) for the Board
to be perpetually enjoined from requiring petitioner to submit for review the tapes
of its program. The respondent Board opposed the motion.[12] On March 7,
1993, the trial court granted petitioners Motion for Reconsideration. It ordered:
[13]
x x x
WHEREFORE, the Motion for Reconsideration is granted. The second portion of
the Courts Order dated December 15, 1993, directing petitioner to refrain from
offending and attacking other existing religions in showing Ang Iglesia ni Cristo
program is hereby deleted and set aside. Respondents are further prohibited

from requiring petitioner Iglesia ni Cristo to submit for review VTR tapes of its religious
program Ang Iglesia ni Cristo.
Respondent Board appealed to the Court of Appeals after its motion for reconsideration
was denied.[14]
On March 5, 1995, the respondent Court of Appeals[15] reversed the trial court. It ruled
that: (1) the respondent board has jurisdiction and power to review the TV program Ang
Iglesia ni Cristo, and (2) the respondent Board did not act with grave abuse of discretion
when it denied permit for the exhibition on TV of the three series of Ang Iglesia ni Cristo
on the ground that the materials constitute an attack against another religion. It also
found the series indecent, contrary to law and contrary to good customs.
In this petition for review on certiorari under Rule 45, petitioner raises the following
issues:
I
WHETHER OR NOT THE HONORABLE COURT OF APPEALS ERRED IN HOLDING
THAT ANG IGLESIA NI CRISTO PROGRAM IS NOT CONSTITUTIONALLY
PROTECTED AS A FORM OF RELIGIOUS EXERCISE AND EXPRESSION.
II
WHETHER OR NOT THE HONORABLE COURT OF APPEALS ERRED IN NOT
HOLDING THAT BEING AN EXERCISE OF RELIGIOUS FREEDOM, THE ANG
IGLESIA NI CRISTO PROGRAM IS SUBJECT TO THE POLICE POWER OF THE
STATE ONLY IN THE EXTREME CASE THAT IT POSES A CLEAR AND PRESENT
DANGER.
III
WHETHER OR NOT THE HONORABLE COURT OF APPEALS ERRED IN HOLDING
THAT THE MTRCB IS VESTED WITH THE POWER TO CENSOR RELIGIOUS
PROGRAMS.
IV
WHETHER OR NOT THE HONORABLE COURT OF APPEALS ERRED IN HOLDING
THAT THE ANG IGLESIA NI CRISTO, A PURELY RELIGIOUS PROGRAM IS
INDECENT AND CONTRARY TO LAW AND GOOD CUSTOMS.
The basic issues can be reduced into two: (1) first, whether the respondent Board has
the power to review petitioners TV program Ang Iglesia ni Cristo, and (2) second,
assuming it has the power, whether it gravely abused its discretion when it prohibited the
airing of petitioners religious program, series Nos. 115, 119 and 121, for the reason that
they constitute an attack against other religions and that they are indecent, contrary to
law and good customs.
The first issue can be resolved by examining the powers of the Board under P.D. No.
1986. Its Section 3 pertinently provides:
Sec. 3 Powers and Functions. The BOARD shall have the following functions, powers
and duties:
xxx
xxx
xxx
b) To screen, review and examine all motion pictures as herein defined, television
programs, including publicity materials such as advertisements, trailers and stills,

65
whether such motion pictures and publicity materials be for theatrical or nontheatrical distribution for television broadcast or for general viewing, imported or
produced in the Philippines and in the latter case, whether they be for local
viewing or for export.
c) To approve, delete objectionable portion from and/or prohibit the importation,
exportation, production, copying, distribution, sale, lease, exhibition and/or
television broadcast of the motion pictures,television programs and publicity
materials, subject of the preceding paragraph, which, in the judgment of the
BOARD applying contemporary Filipino cultural values as standard, are
objectionable for beingimmoral, indecent, contrary to law and/or good customs,
injurious to the prestige of the Republic of the Philippines and its people, or with
a dangerous tendency to encourage the commission of violence or of a wrong or
crime, such as but not limited to:
i) Those which tend to incite subversion, insurrection, rebellion or sedition against
the State, or otherwise threaten the economic and/or political stability of the
State;
ii) Those which tend to undermine the faith and confidence of the people, their
government and/or duly constituted authorities;
iii) Those which glorify criminals or condone crimes;
iv) Those which serve no other purpose but to satisfy the market for violence or
pornography;
v) Those which tend to abet the traffic in and use of prohibited drugs;
vi) Those which are libelous or defamatory to the good name and reputation of
any person, whether living or dead;
vii) Those which may constitute contempt of court or of any quasi-judicial tribunal,
or pertain to matters which are sub-judice in nature (emphasis ours).
The law gives the Board the power to screen, review and examine all television
programs. By the clear terms of the law, the Board has the power to approve,
delete 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.
Petitioner contends that the term television program should not include religious
programs like its program Ang Iglesia ni Cristo. A contrary interpretation, it is
urged, will contravene Section 5, Article III of the Constitution which guarantees
that no law shall be made respecting an establishment of religion, or prohibiting
the free exercise thereof. The free exercise and enjoyment of religious
profession and worship, without discrimination or preference, shall forever be
allowed.
We reject petitioners submission which need not set us adrift in a constitutional
voyage towards an uncharted sea. Freedom of religion has been accorded

a preferred statusby the framers of our fundamental laws, past and present. We have
affirmed this preferred status well aware that it is designed to protect the broadest
possible liberty of conscience, to allow each man to believe as his conscience directs, to
profess his beliefs, and to live as he believes he ought to live, consistent with the liberty
of others and with the common good.[16] We have also laboriously defined in our
jurisprudence the intersecting umbras and penumbras of the right to religious profession
and worship. To quote the summation of Mr. Justice Isagani Cruz, our well-known
constitutionalist:[17]
Religious Profession and Worship
The right to religious profession and worship has a two-fold aspect, viz., freedom to
believe and freedom to act on ones beliefs. The first is absolute as long as the belief is
confined within the realm of thought. The second is subject to regulation where the belief
is translated into external acts that affect the public welfare.
(1) Freedom to Believe
The individual is free to believe (or disbelieve) as he pleases concerning the
hereafter. He may indulge his own theories about life and death; worship any god he
chooses, or none at all; embrace or reject any religion; acknowledge the divinity of God
or of any being that appeals to his reverence; recognize or deny the immortality of his
soul in fact, cherish any religious conviction as he and he alone sees fit. However
absurd his beliefs may be to others, even if they be hostile and heretical to the majority,
he has full freedom to believe as he pleases. He may not be required to prove his
beliefs. He may not be punished for his inability to do so. Religion, after all, is a matter
of faith. Men may believe what they cannot prove. Every one has a right to his beliefs
and he may not be called to account because he cannot prove what he believes.
(2) Freedom to Act on Ones Beliefs
But where the individual externalizes his beliefs in acts or omissions that affect the
public, his freedom to do so becomes subject to the authority of the State. As great as
this liberty may be, religious freedom, like all the other rights guaranteed in the
Constitution, can be enjoyed only with a proper regard for the rights of others. It is error
to think that the mere invocation of religious freedom will stalemate the State and render
it impotent in protecting the general welfare. The inherent police power can be exercised
to prevent religious practices inimical to society. And this is true even if such practices
are pursued out of sincere religious conviction and not merely for the purpose of evading
the reasonable requirements or prohibitions of the law.
Justice Frankfurter put it succinctly: The constitutional provision on religious freedom
terminated disabilities, it did not create new privileges. It gave religious liberty, not civil
immunity. Its essence is freedom from conformity to religious dogma, not freedom from
conformity to law because of religious dogma.
Accordingly, while one has full freedom to believe in Satan, he may not offer the object of
his piety a human sacrifice, as this would be murder. Those who literally interpret the
Biblical command to go forth and multiply are nevertheless not allowed to contract
plural marriages in violation of the laws against bigamy. A person cannot refuse to pay
taxes on the ground that it would be against his religious tenets to recognize any

66
authority except that of God alone. An atheist cannot express his disbelief in
acts of derision that wound the feelings of the faithful. The police power can be
validly asserted against the Indian practice of the suttee born of deep religious
conviction, that calls on the widow to immolate herself at the funeral pile of her
husband.
We thus reject petitioners postulate that its religious program is per se beyond
review by the respondent Board. Its public broadcast on TV of its religious
program brings it out of the bosom of internal belief. Television is a medium that
reaches even the eyes and ears of children. The Court iterates the rule that the
exercise of religious freedom can be regulated by the State when it will bring
about the clear and present danger of some substantive evil which the State is
duty bound to prevent, i.e., serious detriment to the more overriding interest of
public health, public morals, or public welfare. A laissez faire policy on the
exercise of religion can be seductive to the liberal mind but history counsels the
Court against its blind adoption as religion is and continues to be a volatile area
of concern in our country today. Across the sea and in our shore, the bloodiest
and bitterest wars fought by men were caused by irreconcilable religious
differences. Our country is still not safe from the recurrence of this stultifying
strife considering our warring religious beliefs and the fanaticism with which
some of us cling and claw to these beliefs. Even now, we have yet to settle the
near century old strife in Mindanao, the roots of which have been nourished by
the mistrust and misunderstanding between our Christian and Muslim brothers
and sisters. The bewildering rise of weird religious cults espousing violence as
an article of faith also proves the wisdom of our rule rejecting a strict let alone
policy on the exercise of religion. For sure, we shall continue to subject any act
pinching the space for the free exercise of religion to a heightened scrutiny but
we shall not leave its rational exercise to the irrationality of man. For when
religion divides and its exercise destroys, the State should not stand still.
It is also petitioners submission that the respondent appellate court gravely erred
when it affirmed the ruling of the respondent Board x-rating its TV Program
Series Nos. 115, 119, 121 and 128. The records show that the respondent Board
disallowed the program series for attacking other religions. Thus, Exhibits A,
A-1, (respondent Boards Voting Slip for Television) reveal that its reviewing
members x-rated Series 115 for x x x criticizing different religions, based on their
own interpretation of the Bible. They suggested that the program should only
explain petitioners x x x own faith and beliefs and avoid attacks on other
faiths. Exhibit B shows that Series No. 119 was x-rated because the Iglesia ni
Cristo insists on the literal translation of the bible and says that our Catholic
veneration of the Virgin Mary is not to be condoned because nowhere it is found
in the bible that we should do so. This is intolerance x x x. Exhibit C shows
that Series No. 121 was x-rated x x x for reasons of the attacks, they do on,
specifically, the Catholic religion. x x x (T)hey can not tell, dictate any other
religion that they are right and the rest are wrong x x x. Exhibit D also shows
that Series No. 128 was not favorably recommended because it x x x outrages

Catholic and Protestants beliefs. On second review, it was x-rated because of its
unbalanced interpretations of some parts of the Bible.[18] In sum, the respondent
Board x-rated petitioners TV program series Nos. 115, 119, 121 and 128 because of
petitioners controversial biblical interpretations and its attacks against contrary
religious beliefs. The respondent appellate court agreed and even held that the said
attacks are indecent, contrary to law and good customs.
We reverse the ruling of the appellate court.
First. Deeply ensconced in our fundamental law is its hostility against all prior restraints
on speech, including religious speech. Hence, any act that restrains speech is hobbled
by the presumption of invalidity and should be greeted with furrowed brows.[19] It is the
burden of the respondent Board to overthrow this presumption. If it fails to discharge this
burden, its act of censorship will be struck down. It failed in the case at bar.
Second. The evidence shows that the respondent Board x-rated petitioners TV series for
attacking other religions, especially the Catholic church. An examination of the
evidence, especially Exhibits A, A-1, B, C, and D will show that the so-called
attacks are mere criticisms of some of the deeply held dogmas and tenets of other
religions. The videotapes were not viewed by the respondent court as they were not
presented as evidence. Yet they were considered by the respondent court as indecent,
contrary to law and good customs, hence, can be prohibited from public viewing under
Section 3(c) of PD 1986. This ruling clearly suppresses petitioners freedom of speech
and interferes with its right to free exercise of religion. It misappreciates the essence of
freedom to differ as delineated in the benchmark case of Cantwell v. Connecticut,
[20] viz.:
xxx
xxx
xxx
In the realm of religious faith, and in that of political belief, sharp differences arise. In
both fields, the tenets of one man may seem the rankest error to his neighbor. To
persuade others to his own point of view, the pleader, as we know, at times, resorts to
exaggeration, to vilification of men who have been, or are prominent in church or state or
even to false statements. But the people of this nation have ordained in the light of
history that inspite of the probability of excesses and abuses, these liberties are, in the
long view, essential to enlightened opinion and right conduct on the part of the citizens of
democracy.
The respondent Board may disagree with the criticisms of other religions by petitioner but
that gives it no excuse to interdict such criticisms, however, unclean they may be. Under
our constitutional scheme, it is not the task of the State to favor any religion by protecting
it against an attack by another religion. Religious dogmas and beliefs are often at war
and to preserve peace among their followers, especially the fanatics, the establishment
clause of freedom of religion prohibits the State from leaning towards any religion. Vis-avis religious differences, the State enjoys no banquet of options. Neutrality alone is its
fixed and immovable stance. In fine, respondent board cannot squelch the speech of
petitioner Iglesia ni Cristo simply because it attacks other religions, even if said religion
happens to be the most numerous church in our country. In a State where there ought to
be no difference between the appearance and the reality of freedom of religion, the

67
remedy against bad theology is better theology. The bedrock of freedom of
religion is freedom of thought and it is best served by encouraging the
marketplace of dueling ideas. When the luxury of time permits, the marketplace
of ideas demands that speech should be met by more speech for it is the spark
of opposite speech, the heat of colliding ideas that can fan the embers of truth.
Third. The respondents cannot also rely on the ground attacks against another
religion in x-rating the religious program of petitioner. Even a sideglance at
Section 3 of PD 1986 will reveal that it is not among the grounds to justify an
order prohibiting the broadcast of petitioners television program. The ground
attack against another religion was merely added by the respondent Board in its
Rules.[21] This rule is void for it runs smack against the hoary doctrine that
administrative rules and regulations cannot expand the letter and spirit of the law
they seek to enforce.
It is opined that the respondent board can still utilize attack against any religion
as a ground allegedly x x x because Section 3 (c) of PD 1986 prohibits the
showing of motion pictures, television programs and publicity materials which are
contrary to law and Article 201 (2) (b) (3) of the Revised Penal Code punishes
anyone who exhibits shows whichoffend any race or religion. We respectfully
disagree for it is plain that the word attack is not synonymous with the word
offend. Moreover, Article 201 (2) (b) (3) of the Revised Penal Code should be
invoked to justify the subsequent punishment of a show which offends any
religion. It cannot be utilized to justify prior censorship of speech. It must be
emphasized that E.O. 876, the law prior to PD 1986, included attack against any
religion as a ground for censorship. The ground was not, however, carried over
by PD 1986. Its deletion is a decree to disuse it. There can be no other
intent. Indeed, even the Executive Department espouses this view. Thus, in an
Opinion dated November 28, 1985 then Minister of Justice, now President of the
Senate, Neptali Gonzales explained:
x x x
However, the question whether the BRMPT (now MTRCB) may preview and
censor the subject television program of INC should be viewed in the light of the
provision of Section 3, paragraph (c) of PD 1986, which is substantially the same
as the provision of Section 3, paragraph (c) of E.O. No. 876-A, which prescribes
the standards of censorship, to wit: immoral, indecent, contrary to law and/or
good customs, injurious to the prestige of the Republic of the Philippines or its
people or with dangerous tendency to encourage the commission of violence, or
of a wrong as determined by the Board, applying contemporary Filipino cultural
values as standard. As stated, the intention of the Board to subject the INCs
television program to previewing and censorship is prompted by the fact that its
religious program makes mention of beliefs and practices of other religion. On
the face of the law itself, there can conceivably be no basis for censorship of said
program by the Board as much as the alleged reason cited by the Board does
not appear to be within the contemplation of the standards of censorship set by
law. (Italics supplied)

Fourth. In x-rating the TV program of the petitioner, the respondents failed to apply the
clear and present danger rule. In American Bible Society v. City of Manila,[22] this Court
held: The constitutional guaranty of free exercise and enjoyment of religious profession
and worship carries with it the right to disseminate religious information. Any restraint of
such right can be justified like other restraints on freedom of expression on the ground
that there is a clear and present danger of any substantive evil which the State has the
right to prevent. In Victoriano vs. Elizalde Rope Workers Union,[23] we further ruled
that x x x it is only where it is unavoidably necessary to prevent an immediate and grave
danger to the security and welfare of the community that infringement of religious
freedom may be justified, and only to the smallest extent necessary to avoid the danger.
The records show that the decision of the respondent Board, affirmed by the respondent
appellate court, is completely bereft of findings of facts to justify the conclusion that the
subject video tapes constitute impermissible attacks against another religion. There is
no showing whatsoever of the type of harm the tapes will bring about especially the
gravity and imminence of the threatened harm. Prior restraint on speech, including
religious speech, cannot be justified by hypothetical fears but only by the showing of a
substantive and imminent evil which has taken the life of a reality already on ground.
It is suggested that we re-examine the application of clear and present danger rule to the
case at bar. In the United States, it is true that the clear and present danger test has
undergone permutations. It was Mr. Justice Holmes who formulated the test
in Schenck v. US,[24] as follows: x x x the question in every case is whether the words
used are used in such circumstances and are of such a nature as to create a clear and
present danger that they will bring about the substantive evils that Congress has a right
to prevent. Admittedly, the test was originally designed to determine the latitude which
should be given to speech that espouses anti-government action. Bannered by Justices
Holmes and Brandeis, the test attained its full flowering in the decade of the forties, when
its umbrella was used to protect speech other than subversive speech.[25] Thus, for
instance, the test was applied to annul a total ban on labor picketing.[26] The use of the
test took a downswing in the 1950s when the US Supreme Court decided Dennis v.
United States involving communist conspiracy.[27] In Dennis, the components of the test
were altered as the High Court adopted Judge Learned Hands formulation that x x x in
each case [courts] must ask whether the gravity of the evil, discounted by its
improbability, justifies such invasion of free speech as is necessary to avoid the danger.
The imminence requirement of the test was thus diminished and to that extent, the
protection of the rule was weakened. In 1969, however, the strength of the test was
reinstated in Brandenburg v. Ohio,[28] when the High Court restored in the test the
imminence requirement, and even added an intent requirement which according to a
noted commentator ensured that only speech directed at inciting lawlessness could be
punished.[29] Presently in the United States, the clear and present danger test is not
applied to protect low value speeches such as obscene speech, commercial speech and
defamation. Be that as it may, the test is still applied to four types of speech: speech that
advocates dangerous ideas, speech that provokes a hostile audience reaction, out of
court contempt and release of information that endangers a fair trial.[30] Hence, even

68
following the drift of American jurisprudence, there is reason to apply the clear
and present danger test to the case at bar which concerns speech that attacks
other religions and could readily provoke hostile audience reaction. It cannot be
doubted that religious truths disturb and disturb terribly.
It is also opined that it is inappropriate to apply the clear and present danger test
to the case at bar because the issue involves the content of speech and not the
time, place or manner of speech. Allegedly, unless the speech is first allowed, its
impact cannot be measured, and the causal connection between the speech and
the evil apprehended cannot be established. The contention overlooks the fact
that the case at bar involves videotapes that are pre-taped and hence, their
speech content is known and not an X quantity. Given the specific content of the
speech, it is not unreasonable to assume that the respondent Board, with its
expertise, can determine whether its sulphur will bring about the substantive evil
feared by the law.
Finally, it is also opined by Mr. Justice Kapunan that x x x the determination of
the question as to whether or not such vilification, exaggeration or fabrication
falls within or lies outside the boundaries of protected speech or expression is
a judicial function which cannot be arrogated by an administrative body such as a
Board of Censors. He submits that a system of prior restraint may only be
validly administered by judges and not left to administrative agencies. The same
submission is made by Mr. Justice Mendoza.
This thoughtful thesis is an attempt to transplant another American rule in our
jurisdiction. Its seedbed was laid down by Mr. Justice Brennan in his concurring
opinion in the 1962 case of Manual Enterprise v. Day.[31] By 1965, the US
Supreme Court in Freedman v. Maryland[32] was ready to hold that the teaching
of cases is that, because only a judicial determination in an adversary proceeding
ensures the necessary sensitivity to freedom of expression, only a procedure
requiring a judicial determination suffices to impose a valid final restraint.[33]
While the thesis has a lot to commend itself, we are not ready to hold that it is
unconstitutional for Congress to grant an administrative body quasi-judicial power
to preview and classify TV programs and enforce its decision subject to review by
our courts. As far back as 1921, we upheld this set-up in Sotto vs. Ruiz,[34] viz.:
The use of the mails by private persons is in the nature of a privilege which can
be regulated in order to avoid its abuse. Persons possess no absolute right to
put into the mail anything they please, regardless of its character.
On the other hand, the exclusion of newspaper and other publications from the
mails, in the exercise of executive power, is extremely delicate in nature and can
only be justified where the statute is unequivocably applicable to the supposed
objectionable publication. In excluding any publication for the mails, the object
should be not to interfere with the freedom of the press or with any other
fundamental right of the people. This is the more true with reference to articles
supposedly libelous than to other particulars of the law, since whether an article
is or is not libelous, is fundamentally a legal question. In order for there to be
due process of law, the action of the Director of Posts must be subject to revision

by the courts in case he had abused his discretion or exceeded his authority. (Exparte Jackson [1878], 96 U.S., 727; Public Clearing House vs. Coyne [1903], 194 U.S.,
497; Post Publishing Co. vs. Murray [1916], 23-Fed., 773)
As has been said, the performance of the duty of determining whether a publication
contains printed matter of a libelous character rests with the Director of Posts and
involves the exercise of his judgment and discretion. Every intendment of the law is in
favor of the correctness of his action. The rule is (and we go only to those cases coming
from the United States Supreme Court and pertaining to the United States PostmasterGeneral), that the courts will not interfere with the decision of the Director of Posts unless
clearly of opinion that it was wrong. (Bates & Guilid Co. vs. Payne [1904], 194 U.S.,
106; Smith vs. Hitchcock [1912], 226 U.S., 63; Masses Pub. Co. vs. Patten [1917], 246
Fed., 24. But see David vs. Brown [1900], 103 Fed., 909, announcing a somewhat
different doctrine and relied upon by the Attorney-General).
To be sure, legal scholars in the United States are still debating the proposition whether
or not courts alone are competent to decide whether speech is constitutionally protected.
[35] The issue involves highly arguable policy considerations and can be better
addressed by our legislators.
IN VIEW WHEREOF, the Decision of the respondent Court of Appeals dated March 24,
1995 is affirmed insofar as it sustained the jurisdiction of the respondent MTRCB to
review petitioners TV program entitled Ang Iglesia ni Cristo, and is reversed and set
aside insofar as it sustained the action of the respondent MTRCB x-rating petitioners TV
Program Series Nos. 115, 119, and 121. No costs.
SO ORDERED.
THIRD DIVISION
[G.R. No. 155282. January 17, 2005]
MOVIE AND TELEVISION REVIEW AND CLASSIFICATION BOARD
(MTRCB), petitioner, vs. ABS-CBN BROADCASTING CORPORATION and LOREN
LEGARDA, respondents.
DECISION
SANDOVAL-GUTIERREZ, J.:
For our resolution is the petition for review on certiorari under Rule 45 of the 1997 Rules
of Court, as amended, filed by petitioner Movie and Television Review and Classification
Board (MTRCB) against ABS-CBN Broadcasting Corporation (ABS-CBN) and former
Senator Loren Legarda, respondents, assailing the (a) Decision dated November 18,
1997,[1]and (b) Order dated August 26, 2002[2] of the Regional Trial Court, Branch 77,
Quezon City, in Civil Case No. Q-93-16052.
The facts are undisputed.
On October 15, 1991, at 10:45 in the evening, respondent ABS-CBN aired Prostituition, 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

69
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 ABS-CBN Channel 2 of the same category shall be submitted to
the Board of Review and Approval before showing; otherwise the Board will act
accordingly.[10]
On appeal, the Office of Atty. Henrietta S. Mendez, Chairman of the MTRCB,
issued a Decision dated March 12, 1993 affirming the above ruling of its
Investigating Committee.[11] Respondents filed a motion for reconsideration but
was denied in a Resolution dated April 14, 1993.[12]
Respondents then filed a special civil action for certiorari with the Regional Trial
Court (RTC), Branch 77, Quezon City. It seeks to: (1) declare as unconstitutional
Sections 3(b),[13] 3(c),[14] 3(d),[15] 4,[16] 7,[17] and 11[18] of P. D. No. 1986
and Sections 3,[19] 7,[20] and 28[21] (a) of the MTRCB Rules and Regulations;
[22] (2) (in the alternative) exclude the The Inside Story from the coverage of
the above cited provisions; and (3) annul and set aside the MTRCB Decision
dated March 12, 1993 and Resolution dated April 14, 1993. Respondents
averred that the above-cited provisions constitute prior restraint on
respondents exercise of freedom of expression and of the press, and, therefore,
unconstitutional. Furthermore, the above cited provisions do not apply to the
The Inside Story because it falls under the category of public affairs program,

news documentary, or socio-political editorials governed by standards similar to those

governing newspapers.
On November 18, 1997, the RTC rendered a Decision[23] in favor of respondents, the
dispositive portion of which reads:
WHEREFORE, PREMISES CONSIDERED, judgment is hereby rendered:
1. ANNULLING AND SETTING ASIDE the assailed Decision and Resolution of MTRCB
dated March 12, 1993;
2. DECLARING AND DECREEING that Sections 3 (b), (c), and (d), 4, 7, and 11 of P.D.
No. 1986 and Sections 3, 7, 28 (a) of its Implementing Rules do not cover the TV
Program The Inside Story and other similar programs, they being public affairs
programs which can be equated to newspapers; and
3. MAKING PERMANENT the Injunction against Respondents or all persons acting in
their behalf.
SO ORDERED.
Petitioner filed a motion for reconsideration but was denied.[24]
Hence, this petition for review on certiorari.
Petitioner MTRCB through the Solicitor General, contends inter alia: first, all television
programs, including public affairs programs, news documentaries, or socio-political
editorials, are subject to petitioners power of review under Section 3 (b) of P.D. No.
1986 and pursuant to this Courts ruling in Iglesia ni Cristo vs. Court of Appeals;
[25] second, television programs are more accessible to the public than newspapers,
thus, the liberal regulation of the latter cannot apply to the former; third, petitioners
power to review television programs under Section 3(b) of P. D. No. 1986 does not
amount to prior restraint; and fourth, Section 3(b) of P. D. No. 1986 does not violate
respondents constitutional freedom of expression and of the press.
Respondents take the opposite stance.
The issue for our resolution is whether the MTRCB has the power or authority to review
the The Inside Story prior to its exhibition or broadcast by television.
The petition is impressed with merit.
The present controversy brings into focus the provisions of Section 3 of P. D. No. 1986,
partly reproduced as follows:
SEC. 3. Powers and Functions. The BOARD shall have the following functions,
powers and duties:
x x x
x x x
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

70
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:
x x x
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 socio-political editorial protected under Section 4,[31] Article III
of the Constitution. Albeit, respondents basis is not freedom of religion, as in Iglesia ni
Cristo,[32]but freedom of expression and of the press, the ruling in Iglesia ni
Cristo applies squarely to the instant issue. It is significant to note that in Iglesia ni
Cristo, this Court declared that freedom of religion has been accorded
a preferred status by the framers of our fundamental laws, past and present, designed
to protect the broadest possible liberty of conscience, to allow each man to believe as his
conscience directs x x x. Yet despite the fact that freedom of religion has been
accorded a preferred status, still this Court, did not exempt theIglesia 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 nopreferred 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 KinoPravdanewsreel series (Kino-Pravda means literally film-truth, a term that was later
translated literally into the French cinema verite) and Frank Capras Why We Fight
series.[34]Apparently, newsreels are straight presentation of events. They are depiction

71
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.
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

72
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

73
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 OBrientest 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.

74
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.
Republic of the Philippines
SUPREME COURT
Manila
EN BANC
G.R. No. L-21049 December 22, 1923

THE PEOPLE OF THE PHILIPPINE ISLANDS, plaintiff-appellee,

vs.
ISAAC PEREZ, defendant-appellant.
Mario Guaria for appellant.
Attorney-General Villa Real for appellee.
MALCOLM, J.:
Isaac Perez, the municipal secretary of Pilar, Sorsogon, and Fortunato Lodovice, a
citizen of that municipality, happening to meet on the morning of April 1, 1992, in
the presidencia of Pilar, they became engaged in a discussion regarding the
administration of Governor-General Wood, which resulted in Perez shouting a number of
times: "The Filipinos, like myself, must use bolos for cutting off Wood's head for having
recommended a bad thing for the Filipinos, for he has killed our independence." Charged
in the Court of First Instance of Sorsogon with a violation of article 256 of the Penal Code
having to do with contempt of ministers of the Crown or other persons in authority, and
convicted thereof, Perez has appealed the case to this court. The question presented for
decision is, What crime, if any, did the accused commit?
A logical point of departure is the information presented in this case. It reads in
translation as follows:
That on or about April 1, 1922, in the municipality of Pilar, Province of Sorsogon,
Philippine Islands, the said accused, Isaac Perez, while holding a discussion with several
persons on political matters, did criminally, unlawfully and wilfully and with knowledge
that Honorable Leonard Wood was the Governor-General of the Philippine Islands and in
the discharge of his functions as such authority, insult by word, without his presence,
said Governor-General, uttering in a loud voice and in the presence of many persons,
and in a public place, the following phrases: "Asin an manga filipinos na caparejo co,
maninigong gumamit nin sundang asin haleon an payo ni Wood huli can saiyang
recomendacion sa pag raot con Filipinas," which in English, is as follows: "And the
Filipinos, like myself, must use bolos for cutting off Wood's head for having
recommended a bad thing for the Philippines.
Contrary to article 256 of the Penal Code.
At the trial of the case, two witnesses were called on behalf of the prosecution and three
witnesses on behalf of the defense. According to the first witness for the Government,
Juan Lumbao, the municipal president of Pilar, what Perez said on the occasion in
question was this:
"The Filipinos, like myself, should get a bolo and cut off the head of Governor-General
Wood, because he has recommended a bad administration in these Islands and has not
made a good recommendation; on the contrary, he has assassinated the independence
of the Philippines and for this reason, we have not obtained independence and the head
of that Governor-General must be cut off." Higinio J. Angustia, justice of the peace of
Pilar, in a written statement, and Gregorio Cresencio, another witness for the
prosecution, corroborated the testimony of the first witness. Cresencio understood that

75
Perez invited the Filipinos including himself to get theirbolos and cut off the head
of Governor-General Wood and throw it into the sea.
The witnesses for the defense did not deny that an altercation took place on the
morning of April 1, 1922, in which the accused participated. But they endeavored
to explain that the discussion was between Perez and one Severo Madrid, the
latter maintaining that the fault was due to the Nacionalista Party, while Perez
argued that the Governor-General was to blame. The accused testified that the
discussion was held in a peaceful manner, and that what he wished to say was
that the Governor-General should be removed and substituted by another. On
the witness stand, he stated that his words were the following: "We are but
blaming the Nacionalista Party which is in power but do not take into account that
above the representatives there is Governor-General Wood who controls
everything, and I told him that the day on which the Democrats may kill that
Governor-General, then we, the Filipinos will install the government we like
whether you Democratas want to pay or not to pay taxes."
The trial judge found as a fact, and we think with abundant reason, that it had
been proved beyond a reasonable doubt that the accused made use of the
language stated in the beginning of this decision and set out in the information.
The question of fact thus settled, the question of law recurs as to the crime of
which the accused should be convicted.
It should be recalled that the fiscal named, in the information, article 256 of the
Penal Code as having been infringed and the trial judge so found in his decision.
The first error assigned by counsel for the appellant is addressed to this
conclusion of the lower court and is to the effect that article 256 of the Penal
Code is no longer in force.
In the case of United States vs. Helbig ([1920], R. G. No. 14705 1), the accused
was charged with having uttered the following language: "To hell with the
President of the United States and his proclamation!" Mr. Helbig was prosecuted
under article 256, and though the case was eventually sent back to the court of
origin for a new trial, the appellate court by majority vote held as a question of
law that article 256 is still in force.
In the case of People vs. Perfecto ([1922], 43 Phil., 887), the accused was
charged with having published an article reflecting on the Philippine Senate and
its members in violation of article 256 of the Penal Code. In this court, Mr.
Perfecto was acquitted by unanimous vote, with three members of the court
holding that article 256 was abrogated completely by the change from Spanish to
American sovereignty over the Philippines, and with six members holding that the
Libel Law had the effect of repealing so much of article 256 as relates to written
defamation, abuse, or insult, and that under the information and the facts, the
defendant was neither guilty of a violation of article 256 of the Penal Code nor of
the libel Law. In the course of the main opinion in the Perfecto case, is found this
significant sentence: "Act No. 292 of the Philippine Commission, the Treason and
Sedition Law, may also have affected article 256, but as to this point, it is not
necessary to make a pronouncement."

It may therefore be taken as settled doctrine, to which those of us who retain a contrary
opinion must bow with as good grace as we can muster, that until otherwise decided by
higher authority, so much of article 256 of the Penal Code as does not relate to ministers
of the Crown or to writings coming under the Libel Law, exist and must be enforced. To
which proposition, can properly be appended a corollary, namely: Seditious words,
speeches, or libels, constitute a violation of Act No. 292, the Treason and Sedition Law,
and to this extent, both the Penal Code and the Libel Law are modified.
Accepting the above statements relative to the continuance and status of article 256 of
the Penal Code, it is our opinion that the law infringed in this instance is not this article
but rather a portion of the Treason and Sedition Law. In other words, as will later appear,
we think that the words of the accused did not so much tend to defame, abuse, or insult,
a person in authority, as they did to raise a disturbance in the community.
In criminal law, there are a variety of offenses which are not directed primarily against
individuals, but rather against the existence of the State, the authority of the
Government, or the general public peace. The offenses created and defined in Act No.
292 are distinctly of this character. Among them is sedition, which is the raising of
commotions or disturbances in the State. It is a revolt against legitimate authority.
Though the ultimate object of sedition is a violation of the public peace or at least such a
course of measures as evidently engenders it, yet it does not aim at direct and open
violence against the laws, or the subversion of the Constitution. (2 Bouvier's Law
Dictionary, 974; U.S. vs. Abad [1902], 1 Phil., 437; People vs. Cabrera [1922], 43 Phil.,
64.)
It is of course fundamentally true that the provisions of Act No. 292 must not be
interpreted so as to abridge the freedom of speech and the right of the people peaceably
to assemble and petition the Government for redress of grievances. Criticism is permitted
to penetrate even to the foundations of Government. Criticism, no matter how severe, on
the Executive, the Legislature, and the Judiciary, is within the range of liberty of
speech, unless the intention and effect be seditious. But when the intention and effect of
the act is seditious, the constitutional guaranties of freedom of speech and press and of
assembly and petition must yield to punitive measures designed to maintain the prestige
of constituted authority, the supremacy of the constitution and the laws, and the
existence of the State. (III Wharton's Criminal Law, pp. 2127 et seq.; U.S. vs. Apurado
[1907], 7 Phil., 422; Peoplevs. Perfecto, supra.)
Here, the person maligned by the accused is the Chief Executive of the Philippine
Islands. His official position, like the Presidency of the United States and other high
offices, under a democratic form of government, instead, of affording immunity from
promiscuous comment, seems rather to invite abusive attacks. But in this instance, the
attack on the Governor-General passes the furthest bounds of free speech was intended.
There is a seditious tendency in the words used, which could easily produce disaffection
among the people and a state of feeling incompatible with a disposition to remain loyal to
the Government and obedient to the laws.
The Governor-General is an executive official appointed by the President of the United
States by and with the advice and consent of the Senate of the United States, and holds

76
in his office at the pleasure of the President. The Organic Act vests supreme
executive power in the Governor-General to be exercised in accordance with law.
The Governor-General is the representative of executive civil authority in the
Philippines and of the sovereign power. A seditious attack on the GovernorGeneral is an attack on the rights of the Filipino people and on American
sovereignty. (Concepcion vs. Paredes [1921], 42 Phil., 599; U.S. vs. Dorr [1903],
2 Phil., 332.)
Section 8 of Act No. 292 of the Philippine Commission, as amended by Act No.
1692, appears to have been placed on the statute books exactly to meet such a
situation. This section reads as follows:
Every person who shall utter seditious words or speeches, or who shall write,
publish or circulate scurrilous libels against the Government of the United States
or against the Government of the Philippine Islands, or who shall print, write,
publish utter or make any statement, or speech, or do any act which tends to
disturb or obstruct any lawful officer in executing his office or in performing his
duty, or which tends to instigate others to cabal or meet together for unlawful
purposes, or which suggests or incites rebellious conspiracies or which tends to
stir up the people against the lawful authorities, or which tends to disturb the
peace of the community or the safety or order of the Government, or who shall
knowingly conceal such evil practices from the constituted authorities, shall be
punished by a fine not exceeding two thousand dollars United States currency or
by imprisonment not exceeding two years, or both, in the discretion of the court.
In the words of the law, Perez has uttered seditious words. He has made a
statement and done an act which tended to instigate others to cabal or meet
together for unlawful purposes. He has made a statement and done an act which
suggested and incited rebellious conspiracies. He has made a statement and
done an act which tended to stir up the people against the lawful authorities. He
has made a statement and done an act which tended to disturb the peace of the
community and the safety or order of the Government. All of these various
tendencies can be ascribed to the action of Perez and may be characterized as
penalized by section 8 of Act No. 292 as amended.
A judgment and sentence convicting the accused of a violation of section 8 of Act
No. 292 as amended, is, in effect, responsive to, and based upon, the offense
with which the defendant is charged. The designation of the crime by the fiscal is
not conclusive. The crime of which the defendant stands charged is that
described by the facts stated in the information. In accordance with our settled
rule, an accused may be found guilty and convicted of a graver offense than that
designated in the information, if such graver offense is included or described in
the body of the information, and is afterwards justified by the proof presented
during the trial. (Guevarra's Code of Criminal Procedure, p. 9; De Joya's Code of
Criminal Procedure, p. 9.)
The penalty meted out by the trial court falls within the limits provided by the
Treason and Sedition Law, and will, we think, sufficiently punish the accused.

That we have given more attention to this case than it deserves, may be possible. Our
course is justified when it is recalled that only last year, Mr. Chief Justice Taft of the
United States Supreme Court, in speaking of an outrageous libel on the Governor of the
Porto Rico, observed: "A reading of the two articles removes the slightest doubt that they
go far beyond the "exuberant expressions of meridional speech," to use the expression
of this court in a similar case in Gandia vs. Pettingill (222 U.S. , 452, 456). Indeed they
are so excessive and outrageous in their character that they suggest the query whether
their superlative vilification has not overleapt itself and become unconsciously
humorous." (Balzac vs. Porto Rico [1922], 258 U.S., 298.) While our own sense of humor
is not entirely blunted, we nevertheless entertain the conviction that the courts should be
the first to stamp out the embers of insurrection. The fugitive flame of disloyalty, lighted
by an irresponsible individual, must be dealt with firmly before it endangers the general
public peace.
The result is to agree with the trial Judge in his findings of fact, and on these facts to
convict the accused of a violation of section 8 of Act No. 292 as amended. With the
modification thus indicated, judgment is affirmed, it being understood that, in accordance
with the sentence of the lower court, the defendant and appellant shall suffer 2 months
and 1 day's imprisonment and pay the costs. So ordered.
Street, Ostrand, Johns and Romualdez, JJ., concur.

Separate Opinions
JOHNSON, J., concurring:
I agree with the opinion of Mr. Justice Villamor. I cannot give assent to a doctrine which
permits a complaint to be presented upon one theory and the trial to be carried through
upon that theory and then to condemn the defendant upon a theory which he nor the
prosecution ever dreamed of.
VILLAMOR, J., concurring and dissenting:
I agree in that the accused should be sentenced to suffer two months and one day
of arresto mayor with costs, as imposed by the court a quo, under the provisions of
article 256 of the Penal Code, but not under section 8 of Act No. 292. The accused, in my
opinion, should not be convicted of the crime of sedition because there is no allegation in
the complaint nor proof in the record, showing that when the accused uttered the words
that gave rise to these proceedings, he had the intention of inciting others to gather for
an illicit purpose, or to incite any conspiracy or rebellion, or to disturb the peace of the
community or the safety and order of the Government which are the acts penalized by
section 8 of Act No. 292. On the contrary, having due regard to the place and time when
the discussion arose between Lodovice and the accused, the political rivalry between
them and the difference of opinion that they entertained regarding the administration of
the Governor-General, the Honorable Leonard Wood, it would appear evident that the
accused expressed himself in biting and poignant language, unbecoming and improper

77
of a law abiding citizen and highly detrimental and insulting to the authority of the
Governor-General which is the thing prohibited and punished by article 256 of the
Penal Code.
Avancea and Johnson, JJ., concurs.
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, Malacaan technical
assistant, on charges filed by Herminia D. Reyes, a Unesco confidential assistant. The
Unesco commission functions under the Office of the President.
Fiscal Manases G. Reyes, to whom the cases were assigned, immediately scheduled
preliminary investigation of the charges on August 22 at 2 p.m. Colonel Alba, in turn,
indicated that the administrative phase of the inquiry will continue Monday and then
resume on August 21 at Malacaan Park. The Palace Investigator said there are other
charges, but would not specify these.
Alba said Miss Reyes had testified on circumstances supposedly substantiating the
malversation charge. Testimony had allegedly indicated that the accused had used
Unesco stencils for private and personal purposes. Specification reputedly said that Miss
Policarpio had taken stencils from the Unesco storeroom and used these for French
lessons not at all connected with Unesco work; for the preparation of contracts of sale of
pianos in her business establishment; for preparation of invitations sent to members of
the League of Women Voters of which she is one of the officers.
Cited as witnesses on this charge are Miss Reyes, Francisco Manalo of Barrio Salabat,
Taal, Batangas, Federico Vergara and Pablo Armesto both of the Unesco.1wph1.t

78
Regarding the charge of estafa through falsification of public documents
allegedly also committed sometime in 1955, Miss Policarpio was accused of
having collected expenses for supposed trips. The accusation said the Unesco
official had sought reimbursement of expenses for a trip to Baler, Quezon, on
Aug. 19, last year, representing expenses of her car when in fact she supposedly
rode in an army plane.
Testimony indicated that a newspaper woman who was a supposed copassenger had even written about the plane trip in her newspaper column. The
same voucher also allegedly collected expenses for going to a Unesco
Bayambang (Pangasinan) project, although records reputedly showed that she
was absent in that conferences.
Witnesses cited on the charge include Aurelio Savalbaro, a Philippine Air Force
pilot, Lt. Clemente Antonio and others, also of the PAF.
Miss Policarpio becomes the second high-ranking woman government official to
face charges involving financial disbursements in their office. The first was Sen.
Pacita M. Gonzales who is still under charge mis-spending funds of the Social
Welfare Administration and the UNAC while she had charge of these.
The complainant, Miss Reyes, was earlier ordered relieved from her Unesco post
by Miss Policarpio on charges including conduct "unbecoming a lady", and as a
result had not been paid her salary. She appealed to Malacaan which dismissed
her suit and later she sued before Judge Rafael Amparo to compel payment of
her salary. The court also rejected her plea on the ground that she had not
exhausted all administrative remedies, the Palace not having made a clearcut
decision on her case.
The Daily Mirror of August 13, 1956, likewise, carried on its first page with a
picture of plaintiff and of Miss Reyes, taken during the administrative
investigation being conducted by Col. Alba another news item, reading:
"PALACE OPENS INVESTIGATION OF RAPS AGAINST POLICARPIO
Alba Probes Administrative Phase of
Fraud Charges Against Unesco Woman
Official; Fiscal Sets Prelim Quiz
Of Criminal Suit on Aug. 22.
The administrative phase of two-pronged investigation Miss Lumen Policarpio,
head of the Unesco national commission here, opened in Malacaan before Col.
Crisanto V. Alba.
The judicial inquiry of charges filed by Herminia D. Reyes, also the complainant
in the Malacaan case before the Presidential Complaints and Action
Commission, will be conducted by Fiscal Manases G. Reyes on Aug. 22 at 2 p.m.
Miss Policarpio stands accused by Reyes of having malversed public property
and of having fraudulently sought reimbursement of supposed official expenses.
Colonel Alba, at the start of his investigation at the Malacaan Park, clarified that
neither he nor the PCAC had initiated the criminal action before the city fiscal's
office. The complaint before the fiscal was started by an information she naming

Herminia D. Reyes as complainant and citing other persons as witnesses. Fiscal Reyes
set preliminary investigation of these charges for Aug. 22.
Miss Reyes, technical assistant of the Unesco, stated at the Palace inquiry that during
1955 Miss Policarpio allegedly used several sheets of government stencils for her private
and personal use, such as for French lessons, contracts of sale of pianos and for
invitations of the League of Women Voters of which she (Miss Policarpio) is an officer.
The Unesco commission here functions under the Office of the President.
The charge was filed with the PCAC, and the PCAC endorsed it to Colonel Alba for
investigation.
Miss Policarpio this morning was not represented by an lawyer. Federico Diaz, lawyer
representing complainant Miss Reyes, petitioned for the suspension of Miss Policarpio,
executive secretary of the Unesco.
Alba did not act immediately on the petition. He said he was holding a hearing on the
petition on August 15.
During this morning's investigation three witness appeared. The first witness was Atty.
Antonio Lopez of the PCAC who brought with him 18 sheets of stencil which were
allegedly used by Miss Policarpio for her personal use. These sheets were admitted as
temporary exhibits.
The second witness was Federico Vergara of the Unesco who said that he received four
of the 18 sheets, but he could not identify which of the sheets he had received.
The third witness was Francisco Manalo who certified on the charge of oppression in
office against Miss Policarpio.
The other charge of Miss Reyes corresponded to supposed reimbursements sought by
Miss Policarpio for a trip to Quezon Province and to Pangasinan. On the first, Miss
Reyes' complaint alleged the Unesco official had asked for refund of expenses for use of
her car when, Miss Reyes claimed she had actually made the trip aboard an army plane.
Miss Reyes also said Miss Policarpio was absent from the Bayambang conference for
which she also sought allegedly refund of expenses.
The complainant had previously been ordered relieved of her Unesco post by Miss
Policarpio and had later sued at the Palace and before the Court for payment of her
salary.
The title of the article of August 11, 1956 "WOMAN OFFICIAL SUED" was given
prominence with a 6-column (about 11 inches) banner headline of one-inch types.
Admittedly, its sub-title "PCAC RAPS L. POLICARPIO PIO ON FRAUD" printed in
bold one-centimeter types, is not true. Similarly, the statement in the first paragraph of
the article, to the effect that plaintiff "was charged with malversation and estafa in
complaints filed with the city fiscal's office by the Presidential Complaint and Action
Commission" otherwise known as PCAC is untrue, the complaints for said offenses
having been filed by Miss Reyes. Neither is it true that said "criminal action was
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

79
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

80
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 Sub-Committee on Industrial Policy.
During the congressional hearings on the transport crisis sometime in September 1988
undertaken by the House Sub-Committee on Industrial Policy, those who attended
agreed to organize the First National Conference on Land Transportation (FNCLT) to be
participated in by the private sector in the transport industry and government agencies
concerned in order to find ways and means to solve the transportation crisis. More
importantly, the objective of the FNCLT was to draft an omnibus bill that would embody a
long-term land transportation policy for presentation to Congress. The conference which,
according to private respondent, was estimated to cost around P1,815,000.00 would be
funded through solicitations from various sponsors such as government agencies, private
organizations, transport firms, and individual delegates or participants.[2]
On 28 February 1989, at the organizational meeting of the FNCLT, private respondent
Francisco Wenceslao was elected Executive Director. As such, he wrote numerous
solicitation letters to the business community for the support of the conference.
Between May and July 1989 a series of articles written by petitioner Borjal was published
on different dates in his column Jaywalker. The articles dealt with the alleged anomalous
activities of an "organizer of a conference" without naming or identifying private
respondent. Neither did it refer to the FNCLT as the conference therein
mentioned. Quoted hereunder are excerpts from the articles of petitioner together with
the dates they were published[3] -

81
31 May 1989
Another self-proclaimed hero of the EDSA Revolution goes around organizing
seminars and conferences for a huge fee. This is a simple ploy coated in jazzy
letterheads and slick prose. The hero has the gall to solicit fees from anybody
with bucks to spare. Recently, in his usual straightforward style, Transportation
Secretary Rainerio Ray Reyes, asked that his name be stricken off from the
letterheads the hero has been using to implement one of his pet
seminars. Reyes said: I would like to reiterate my request that you delete my
name. Note that Ray Reyes is an honest man who would confront anybody
eyeball to eyeball without blinking.
9 June 1989
Another questionable portion of the so-called conference is its unauthorized use
of the names of President Aquino and Secretary Ray Reyes. The conference
program being circulated claims that President Aquino and Reyes will be main
speakers in the conference. Yet, the word is that Cory and Reyes have not
accepted the invitation to appear in this confab. Ray Reyes even says that the
conference should be unmasked as a moneymaking gimmick.
19 June 1989
x x x some 3,000 fund solicitation letters were sent by the organizer to every
Tom, Dick and Harry and to almost all government agencies. And the letterheads
carried the names of Reyes and Periquet. Agrarian Reform Secretary on leave
Philip Juico received one, but he decided to find out from Reyes himself what the
project was all about. Ray Reyes, in effect, advised Juico to put the fund
solicitation letter in the waste basket. Now, if the 3,000 persons and agencies
approached by the organizer shelled out 1,000 each, thats easily P3 million to a
project that seems so unsophisticated. But note that one garment company
gave P100,000, after which the Garments Regulatory Board headed by Trade
and Industry Undersecretary Gloria Macapagal-Arroyo was approached by the
organizer to expedite the garment license application of the P100,000 donor.
21 June 1989
A 'conference organizer' associated with shady deals seems to have a lot of trash
tucked inside his closet. The Jaywalker continues to receive information about
the mans dubious deals. His notoriety, according to reliable sources, has
reached the Premier Guest House where his name is spoken like dung.
xxx
The first information says that the 'organizer' tried to mulct half a million pesos
from a garment producer and exporter who was being investigated for violation of
the rules of the Garments, Textile, Embroidery and Apparel Board. The
'organizer' told the garment exporter that the case could be fixed for a sum
of P500,000.00. The organizer got the shock of his life when the exporter told
him: 'If I have that amount, I will hire the best lawyers, not you.' The organizer
left in a huff, his thick face very pale.
xxx

Friends in government and the private sector have promised the Jaywalker more 'dope'
on the 'organizer.' It seems that he was not only indiscreet; he even failed to cover his
tracks. You will be hearing more of the 'organizers' exploits from this corner soon.
22 June 1989
The scheming 'organizer' we have been writing about seems to have been spreading his
wings too far. A congressional source has informed the Jaywalker that the schemer once
worked for a congressman from the North as some sort of a consultant on economic
affairs. The first thing the organizer did was to initiate hearings and round-the-table
discussions with people from the business, export and -- his favorite -- the garments
sector.
xxx
The 'organizers' principal gamely went along, thinking that his 'consultant' had nothing
but the good of these sectors in mind. It was only later that he realized that the
'consultant' was acting with a burst of energy 'in aid of extortion.' The 'consultant' was
fired.
xxx
There seems to be no end to what a man could do to pursue his dubious ways. He has
tried to operate under a guise of a well-meaning reformist. He has intellectual
pretensions - and sometimes he succeeds in getting his thoughts in the inside pages of
some newspapers, with the aid of some naive newspaper people. He has been turning
out a lot of funny-looking advice on investments, export growth, and the like.
xxx
A cabinet secretary has one big wish. He is hoping for a broad power to ban crooks and
influence-peddlers from entering the premises of his department. But the Cabinet man
might not get his wish. There is one 'organizer' who, even if physically banned, can still
concoct ways of doing his thing. Without a tinge of remorse, the 'organizer' could fill up
his letterheads with names of Cabinet members, congressmen, and reputable people
from the private sector to shore up his shady reputation and cover up his notoriety.
3 July 1989
A supposed conference on transportation was a big failure. The attendance was very
poor and the few who participated in the affair were mostly leaders of jeepney drivers
groups. None of the government officials involved in regulating public transportation was
there. The big names in the industry also did not participate. With such a poor
attendance, one wonders why the conference organizers went ahead with the affair and
tried so hard to convince 3,000 companies and individuals to contribute to the affair.
xxx
The conference was doomed from the start. It was bound to fail. The personalities who
count in the field of transportation refused to attend the affair or withdrew their support
after finding out the background of the organizer of the conference. How could a
conference on transportation succeed without the participation of the big names in the
industry and government policy-makers?
Private respondent reacted to the articles. He sent a letter to The Philippine
Star insisting that he was the organizer alluded to in petitioner Borjals columns.[4] In a

82
subsequent letter to The Philippine Star, private respondent refuted the matters
contained in petitioner Borjals columns and openly challenged him in this
manner To test if Borjal has the guts to back up his holier than thou attitude, I am
prepared to relinquish this position in case it is found that I have misappropriated
even one peso of FNCLT money. On the other hand, if I can prove that Borjal
has used his column as a hammer to get clients for his PR Firm, AA Borjal
Associates, he should resign from the STAR and never again write a column. Is
it a deal?[5]
Thereafter, private respondent filed a complaint with the National Press Club
(NPC) against petitioner Borjal for unethical conduct. He accused petitioner
Borjal of using his column as a form of leverage to obtain contracts for his public
relations firm, AA Borjal Associates.[6] In turn, petitioner Borjal published a
rejoinder to the challenge of private respondent not only to protect his name and
honor but also to refute the claim that he was using his column for character
assassination.[7]
Apparently not satisfied with his complaint with the NPC, private respondent filed
a criminal case for libel against petitioners Borjal and Soliven, among
others. However, in a Resolution dated 7 August 1990, the Assistant Prosecutor
handling the case dismissed the complaint for insufficiency of evidence. The
dismissal was sustained by the Department of Justice and later by the Office of
the President.
On 31 October 1990 private respondent instituted against petitioners a civil
action for damages based on libel subject of the instant case.[8] In their answer,
petitioners interposed compulsory counterclaims for actual, moral and exemplary
damages, plus attorneys fees and costs. After due consideration, the trial court
decided in favor of private respondent Wenceslao and ordered petitioners Borjal
and Soliven to indemnify private respondent P1,000,000.00 for actual and
compensatory damages, in addition to P200,000.00 for moral
damages, P100,000.00 for exemplary damages, P200,000.00 for attorneys fees,
and to pay the costs of suit.
The Court of Appeals affirmed the decision of the court a quo but reduced the
amount of the monetary award to P110,000.00 actual damages, P200,000.00
moral damages and P75,000.00 attorney's fees plus costs. In a 20-page
Decision promulgated 25 March 1996, the appellate court ruled inter alia that
private respondent was sufficiently identifiable, although not named, in the
questioned articles; that private respondent was in fact defamed by petitioner
Borjal by describing him variously as a "self-proclaimed hero," "a conference
organizer associated with shady 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 Extension of Time to File Petition and a Motion for Suspension of Time to
File Petition.[9] However, in a Resolution dated 27 May 1996, the Second Division
denied both motions: the first, for being premature, and the second, for being a wrong
remedy.
On 20 November 1996 when the First Division consolidated and transferred the present
case to the Second Division, there was no longer any case thereat with which to
consolidate this case since G.R. No. 124396 had already been disposed of by the
Second Division almost six (6) months earlier.
On their part, petitioners filed a motion for reconsideration but the Court of Appeals
denied the motion in its Resolution of 12 September 1996. Hence the instant petition for
review. The petitioners contend that the Court of Appeals erred: (a) in ruling that private
respondent Wenceslao was sufficiently identified by petitioner Borjal in the questioned
articles; (b) in refusing to accord serious consideration to the findings of the Department
of Justice and the Office of the President that private respondent Wenceslao was not
sufficiently identified in the questioned articles, this notwithstanding that the degree of
proof required in a preliminary investigation is merely prima facie evidence which is
significantly less than the preponderance of evidence required in civil cases; (c) in ruling
that the subject articles do not constitute qualifiedly privileged communication; (d) in
refusing to apply the "public official doctrine" laid down in New York Times v. Sullivan; (e)
in ruling that the questioned articles lost their privileged character because of their
publication in a newspaper of general circulation; (f) in ruling that private respondent has
a valid cause of action for libel against petitioners although he failed to prove actual
malice on their part, and that the prosecutors of the City of Manila, the Department of
Justice, and eventually, the Office of the President, had already resolved that there was
no sufficient evidence to prove the existence of libel; and, (g) assuming arguendo that
Borjal should be held liable, in adjudging petitioner Soliven solidarily liable with
him. Thus, petitioners pray for the reversal of the appellate courts ruling, the dismissal
of the complaint against them for lack of merit, and the award of damages on their
counterclaim.
The petition is impressed with merit. In order to maintain a libel suit, it is essential that
the victim be identifiable although it is not necessary that he be named. It is also not
sufficient that the offended party recognized himself as the person attacked or defamed,
but it must be shown that at least a third person could identify him as the object of the

83
libelous publication.[10] Regrettably, these requisites have not been complied
with in the case at bar.
In ruling for private respondent, the Court of Appeals found that Borjal's column
writings sufficiently identified Wenceslao as the "conference organizer." It cited
the First National Conference on Land Transportation, the letterheads used
listing different telephone numbers, the donation of P100,000.00 from Juliano
Lim and the reference to the "organizer of the conference" - the very same
appellation employed in all the column items - as having sufficiently established
the identity of private respondent Wenceslao for those who knew about the
FNCLT who were present at its inception, and who had pledged their assistance
to it.
We hold otherwise. These conclusions are at variance with the evidence at
hand. The questioned articles written by Borjal do not identify private respondent
Wenceslao as the organizer of the conference. The first of the Jaywalker articles
which appeared in the 31 May 1989 issue of The Philippine Star yielded nothing
to indicate that private respondent was the person referred to therein. Surely, as
observed by petitioners, there were millions of "heroes" of the EDSA Revolution
and anyone of them could be "self-proclaimed" or an "organizer of seminars and
conferences." As a matter of fact, in his 9 June 1989 column petitioner Borjal
wrote about the "so-called First National Conference on Land Transportation
whose principal organizers are not specified" (italics supplied).[11] Neither did the
FNCLT letterheads[12] disclose the identity of the conference organizer since
these contained only an enumeration of names where private respondent
Francisco Wenceslao was described as Executive Director and Spokesman and
not as a conference organizer.[13] The printout[14] and tentative program[15] of
the conference were devoid of any indication of Wenceslao as organizer. The
printout which contained an article entitled "Who Organized the NCLT?" did not
even mention private respondent's name, while the tentative program only
denominated private respondent as "Vice Chairman and Executive Director," and
not as organizer.
No less than private respondent himself admitted that the FNCLT
had several organizers and that he was only a part of the organization, thus I would like to clarify for the record that I was only a part of the organization. I
was invited then because I was the head of the technical panel of the House of
Representatives Sub-Committee on Industrial Policy that took care of
congressional hearings.[16]
Significantly, private respondent himself entertained doubt that he was the
person spoken of in Borjal's columns. The former even called up columnist
Borjal to inquire if he (Wenceslao) was the one referred to in the subject articles.
[17] His letter to the editor published in the 4 June 1989 issue of The Philippine
Star even showed private respondent Wenceslao's uncertainty Although he used a subterfuge, I was almost certain that Art Borjal referred to the
First National Conference on Land Transportation (June 29-30) and me in the
second paragraph of his May 31 column x x x[18]

Identification is grossly inadequate when even the alleged offended party is himself
unsure that he was the object of the verbal attack. It is well to note that the revelation of
the identity of the person alluded to came not from petitioner Borjal but from private
respondent himself when he supplied the information through his 4 June 1989 letter to
the editor. Had private respondent not revealed that he was the "organizer" of the
FNCLT referred to in the Borjal articles, the public would have remained in blissful
ignorance of his identity. It is therefore clear that on the element of identifiability alone
the case falls.
The above disquisitions notwithstanding, and on the assumption arguendo that private
respondent has been sufficiently identified as the subject of Borjal's disputed comments,
we now proceed to resolve the other issues and pass upon the pertinent findings of the
courts a quo.
The third, fourth, fifth and sixth assigned errors all revolve around the primary question of
whether the disputed articles constitute privileged communications as to exempt the
author from liability.
The trial court ruled that petitioner Borjal cannot hide behind the proposition that his
articles are privileged in character under the provisions of Art. 354 of The Revised Penal
Code which state Art. 354. Requirement for publicity. - Every defamatory imputation is presumed to be
malicious, even if it be true, if no good intention and justifiable motive for making it is
shown, except in the following cases:
1) A private communication made by any person to another in the performance of any
legal, moral or social duty; and,
2) A fair and true report, made in good faith, without any comments or remarks, of any
judicial, legislative or other official proceedings which are not of confidential nature, or of
any statement, report or speech delivered in said proceedings, or of any other act
performed by public officers in the exercise of their functions.
Respondent court explained that the writings in question did not fall under any of the
exceptions described in the above-quoted article since these were neither "private
communications" nor "fair and true report x x x without any comments or remarks." But
this is incorrect.
A privileged communication may be either absolutely privileged or qualifiedly
privileged. Absolutely privileged communications are those which are not actionable
even if the author has acted in bad faith. An example is found in Sec. 11, Art. VI, of the
1987 Constitution which exempts a member of Congress from liability for any speech or
debate in the Congress or in any Committee thereof. Upon the other hand, qualifiedly
privileged communications containing defamatory imputations are not actionable unless
found to have been made without good intention or justifiable motive. To this genre
belong "private communications" and "fair and true report without any comments or
remarks."
Indisputably, petitioner Borjals questioned writings are not within the exceptions of Art.
354 of The Revised Penal Code for, as correctly observed by the appellate court, they
are neither private communications nor fair and true report without any comments or

84
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 selfdetermination 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

85
figures are insulated from libel judgments. The guarantees of freedom of speech
and press prohibit a public official or public figure from recovering damages for a
defamatory falsehood relating to his official conduct unless he proves that the
statement was made with actual malice, i.e., with knowledge that it was false or
with reckless disregard of whether it was false or not.
The raison d'etre for the New York Times doctrine was that to require critics of
official conduct to guarantee the truth of all their factual assertions on pain of libel
judgments would lead to self-censorship, since would-be critics would be
deterred from voicing out their criticisms even if such were believed to be true, or
were in fact true, because of doubt whether it could be proved or because of fear
of the expense of having to prove it.[28]
In the present case, we deem private respondent a public figure within the
purview of the New York Times ruling. At any rate, we have also defined "public
figure" in Ayers Production Pty., Ltd. v. Capulong[29] as x x x x a person who, by his accomplishments, fame, mode of living, or by
adopting a profession or calling which gives the public a legitimate interest in his
doings, his affairs and his character, has become a public personage. He is, in
other words, a celebrity. Obviously, to be included in this category are those who
have achieved some degree of reputation by appearing before the public, as in
the case of an actor, a professional baseball player, a pugilist, or any other
entertainer. The list is, however, broader than this. It includes public officers,
famous inventors and explorers, war heroes and even ordinary soldiers, infant
prodigy, and no less a personage than the Great Exalted Ruler of the lodge. It
includes, in short, anyone who has arrived at a position where the public
attention is focused upon him as a person.
The FNCLT was an undertaking infused with public interest. It was promoted as
a joint project of the government and the private sector, and organized by top
government officials and prominent businessmen. For this reason, it attracted
media mileage and drew public attention not only to the conference itself but to
the personalities behind as well. As its Executive Director and spokesman,
private respondent consequently assumed the status of a public figure.
But even assuming ex-gratia argumenti that private respondent, despite the
position he occupied in the FNCLT, would not qualify as a public figure, it does
not necessarily follow that he could not validly be the subject of a public comment
even if he was not a public official or at least a public figure, for he could be, as
long as he was involved in a public issue. If a matter is a subject of public or
general interest, it cannot suddenly become less so merely because a private
individual is involved or because in some sense the individual did not voluntarily
choose to become involved. The publics primary interest is in the event; the
public focus is on the conduct of the participant and the content, effect and
significance of the conduct, not the participant's prior anonymity or notoriety.[30]
There is no denying that the questioned articles dealt with matters of public
interest. A reading of the imputations of petitioner Borjal against respondent
Wenceslao shows that all these necessarily bore upon the latter's official conduct

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

86
The articles subject of the instant case can hardly be said to have been written
with knowledge that these are false or in reckless disregard of what is false or
not. This is not to say however that the very serious allegations of petitioner
Borjal assumed by private respondent to be directed against him are true. But
we nevertheless find these at least to have been based on reasonable grounds
formed after the columnist conducted several personal interviews and after
considering the varied documentary evidence provided him by his
sources. Thus, the following are supported by documentary evidence: (a) that
private respondent requested Gloria Macapagal-Arroyo, then head of the
Garments and Textile Export Board (GTEB), to expedite the processing and
release of the import approval and certificate of availability of a garment firm in
exchange for the monetary contribution of Juliano Lim, which necessitated a
reply from the office of Gloria Macapagal-Arroyo explaining the procedure of the
GTEB in processing applications and clarifying that all applicants were treated
equally;[40] (b) that Antonio Periquet was designated Chairman of the Executive
Committee of the FNCLT notwithstanding that he had previously declined the
offer;[41] and, (c) that despite the fact that then President Aquino and her
Secretary of Transportation Rainerio Reyes declined the invitation to be guest
speakers in the conference, their names were still included in the printout of the
FNCLT.[42] Added to these are the admissions of private respondent that: (a) he
assisted Juliano Lim in his application for a quota allocation with the GTEB in
exchange for monetary contributions to the FNCLT;[43] (b) he included the name
of then Secretary of Transportation Rainerio Reyes in the promotional materials
of the conference notwithstanding the latter's refusal to lend his name to and
participate in the FNCLT;[44] and, (c) he used different letterheads and telephone
numbers.[45]
Even assuming that the contents of the articles are false, mere error, inaccuracy
or even falsity alone does not prove actual malice. Errors or misstatements are
inevitable in any scheme of truly free expression and debate. Consistent with
good faith and reasonable care, the press should not be held to account, to a
point of suppression, for honest mistakes or imperfections in the choice of
language. There must be some room for misstatement of fact as well as for
misjudgment. Only by giving them much leeway and tolerance can they
courageously and effectively function as critical agencies in our democracy.
[46] In Bulletin Publishing Corp. v. Noel[47] we held A newspaper especially one national in reach and coverage, should be free to
report on events and developments in which the public has a legitimate interest
with minimum fear of being hauled to court by one group or another on criminal
or civil charges for libel, so long as the newspaper respects and keeps within the
standards of morality and civility prevailing within the general community.
To avoid the self-censorship that would necessarily accompany strict liability for
erroneous statements, rules governing liability for injury to reputation are required
to allow an adequate margin of error by protecting some inaccuracies. It is for
the same reason that the New York Times doctrine requires that liability for

defamation of a public official or public figure may not be imposed in the absence of
proof of "actual malice" on the part of the person making the libelous statement.
At any rate, it may be salutary for private respondent to ponder upon the advice of Mr.
Justice Malcolm expressed in U.S. v. Bustos,[48] that "the interest of society and the
maintenance of good government demand a full discussion of public affairs. Complete
liberty to comment on the conduct of public men is a scalpel in the case of free
speech. The sharp incision of its probe relieves the abscesses of officialdom. Men in
public life may suffer under a hostile and unjust accusation; the wound may be assuaged
by the balm of a clear conscience. A public official must not be too thin-skinned with
reference to comments upon his official acts.
The foregoing disposition renders the second and seventh assigned errors moot and
academic, hence, we find no necessity to pass upon them.
We must however take this opportunity to likewise remind media practitioners of the high
ethical standards attached to and demanded by their noble profession. The danger of an
unbridled irrational exercise of the right of free speech and press, that is, in utter
contempt of the rights of others and in willful disregard of the cumbrous responsibilities
inherent in it, is the eventual self-destruction of the right and the regression of human
society into a veritable Hobbesian state of nature where life is short, nasty and
brutish. Therefore, to recognize that there can be no absolute "unrestraint" in speech is
to truly comprehend the quintessence of freedom in the marketplace of social thought
and action, genuine freedom being that which is limned by the freedom of others. If
there is freedom of the press, ought there not also be freedom from the press? It is in
this sense that self-regulation as distinguished from self-censorship becomes the ideal
mean for, as Mr. Justice Frankfurter has warned, "[W]ithout x x x a lively sense of
responsibility, a free press may readily become a powerful instrument of injustice."[49]
Lest we be misconstrued, this is not to diminish nor constrict that space in which
expression freely flourishes and operates. For we have always strongly maintained, as
we do now, that freedom of expression is man's birthright - constitutionally protected and
guaranteed, and that it has become the singular role of the press to act as its "defensor
fidei" in a democratic society such as ours. But it is also worth keeping in mind that the
press is the servant, not the master, of the citizenry, and its freedom does not carry with it
an unrestricted hunting license to prey on the ordinary citizen.[50]
On petitioners counterclaim for damages, we find the evidence too meager to sustain
any award. Indeed, private respondent cannot be said to have instituted the present suit
in abuse of the legal processes and with hostility to the press; or that he acted
maliciously, wantonly, oppressively, fraudulently and for the sole purpose of harassing
petitioners, thereby entitling the latter to damages. On the contrary, private respondent
acted within his rights to protect his honor from what he perceived to be malicious
imputations against him. Proof and motive that the institution of the action was prompted
by a sinister design to vex and humiliate a person must be clearly and preponderantly
established to entitle the victim to damages. The law could not have meant to impose a
penalty on the right to litigate, nor should counsels fees be awarded every time a party
wins a suit.[51]

87
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
[G.R. No. 113216. September 5, 1997]
RHODORA M. LEDESMA, petitioner, vs. COURT OF APPEALS and HON.
MAXIMIANO C. ASUNCION, in his capacity as Presiding Judge of RTC, Quezon
City, respondents.
DECISION
PANGANIBAN, J.:
When confronted with a motion to withdraw an information on the ground of lack
of probable cause based on a resolution of the secretary of justice, the bounden
duty of the trial court is to make an independent assessment of the merits of such
motion. Having acquired jurisdiction over the case, the trial court is not bound by
such resolution but is required to evaluate it before proceeding further with the
trial. While the secretarys ruling is persuasive, it is not binding on courts. A trial
court, however, commits reversible error or even grave abuse of discretion if it
refuses/neglects to evaluate such recommendation and simply insists on
proceeding with the trial on the mere pretext of having already acquired
jurisdiction over the criminal action.
This principle is explained in this Decision resolving a petition for review
on certiorari of the Decision[1] of the Court of Appeals,[2] promulgated on
September 14, 1993 in CA-G.R. SP No. 30832 which in effect affirmed an order
of the Regional Trial Court of Quezon City denying the prosecutions withdrawal
of a criminal information against petitioner.
The Antecedent Facts
From the pleadings submitted in this case, the undisputed facts are as follows:

Sometime in April 1992, a complaint for libel was filed by Dr. Juan F. Torres, Jr. against
Dr. Rhodora M. Ledesma, petitioner herein, before the Quezon City Prosecutors Office,
docketed as I.S. No. 92-5433A. Petitioner filed her counter-affidavit to the complaint.
Finding sufficient legal and factual basis, the Quezon City Prosecutors Office filed on
July 6, 1992 an Information for libel against petitioner with the Regional Trial Court of
Quezon City, Branch 104.[3] The Information filed by Assistant City Prosecutor Augustine
A. Vestil reads: [4]
That on or about the 27th day of June 1991, in Quezon City, Metro Manila, Philippines,
the said accused, acting with malice, did, then and there, wilfully, unlawfully and
feloniously send a letter addressed to Dr. Esperanza I. Cabral, Director of Philippine
Heart Center, East Avenue, this city, and furnished the same to other officers of the said
hospital, said letter containing slanderous and defamatory remarks against DR. JUAN F.
TORRES, JR., which states in part, to wit:
27June 1991
Dr. Esperanza I. Cabral
Director
Subject:
Return of all professional fees due Dr. Rhodora M. Ledesma, Nuclear
Medicine Specialist/Consultant, Philippine Heart Center, from January 31, 1989 to
January 31, 1991.
Respondents:
Dr. Juan F. Torres, Jr., Chief, Nuclear Medicine Section
Dr. Orestes P. Monzon,
Staff Consultant
Dear Dr. Cabral,
This is to demand the return of all professional fees due me as a consultant in Nuclear
Medicine, this Center, since January 31, 1989 until my resignation effective January 31,
1991, amounting to at leastP100,000.00 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

88
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

89
case following the guidelines and doctrine laid down by the Supreme Court in the
case of Crespo vs. Mogul, 151 SCRA 462.
Petitioners motion for reconsideration[13] was denied by the trial judge in the
Order dated March 5, 1993, as follows:[14]
Finding no cogent reason to justify the reconsideration of the ruling of this Court
dated February 22, 1993, the Motion for Reconsideration dated March 1, 1993
filed by the accused through counsel is hereby denied.
Aggrieved, petitioner filed a petition for certiorari and prohibition with the
Supreme Court. In a Resolution dated March 31, 1993, this Court referred the
case to the Court of Appeals for proper determination and disposition pursuant to
Section 9, paragraph 1 of B.P. 129.[15]
Respondent Court dismissed the petition for lack of merit, holding that it had no
jurisdiction to overturn the doctrine laid down in Crespo vs. Mogul -- once a
complaint or information has been filed in court, any disposition of the
case, i.e., dismissal, conviction or acquittal of the accused, rests on the sound
discretion of the trial court.[16]
Hence, this recourse to this Court.
The Issues
For unexplained reasons, petitioner failed to make an assignment of errors
against the appellate court. Her counsel merely repeated the alleged errors of
the trial court: [17]
I.
The Orders, dated February 22, 1993 and March 5, 1993, of respondent
Judge Asuncion relied solely on the Crespo vs. Mogul (151 SCRA 462)
decision. It is respectfully submitted that said case is not applicable because:
1.
It infringes on the constitutional separation of powers between the
executive and judicial branches of the government;
2.
It constitutes or it may lead to misuse or misapplication of judicial
power as defined in the Constitution;
3.
It goes against the constitutional proscription that rules of procedure
should not diminish substantive rights;
4.
It goes against the principle of non-delegation of powers;
5.
It sets aside or disregards substantive and procedural rules;
6.
It deprives a person of his constitutional right to procedural due
process;
7.
Its application may constitute or lead to denial of equal protection of
laws;
8.
It deprives the secretary of justice or the president of the power to
control or review the acts of a subordinate official;
9.
It will lead to, encourage, abet or promote abuse or even corruption
among the ranks of investigating fiscals;
10.
It does not subserve the purposes of a preliminary investigation
because -

(10.a)
It subjects a person to the burdens of an unnecessary trial, specially in
cases where the investigating fiscal recommends no bail for the accused;
(10.b)
It subjects the government, both the executive and the judiciary, to
unnecessary time and expenses attendant to an unnecessary trial;
(10.c)
It contributes to the clogging of judicial dockets; and
11.
It has no statutory or procedural basis or precedent.
II.
On the assumption that Crespo vs. Mogul is applicable, it is submitted that 1.
Respondent Judge Asuncion committed grave abuse of discretion, amounting
to lack of jurisdiction, when he denied the Motion to Withdraw Information since he had
already deferred to, if not recognized, the authority of the Secretary of Justice; and
2.
The facts in Crespo vs. Mogul are different from the instant case. Hence,
respondent Judge Asuncion committed grave abuse of discretion, amounting to lack of
jurisdiction, when he relied solely on said case in denying the Motion to Withdraw
Information.
In sum, the main issue in this petition is: Did Respondent Court commit any reversible
error in affirming the trial courts denial of the prosecutions Motion to Withdraw
Information?
The Courts Ruling
The petition is impressed with merit. We answer the above question in the affirmative.
Preliminary Matter
Before discussing the substance of this case, the Court will preliminarily address a
procedural matter. Prior to the effectivity of the 1997 Rules of Civil Procedure on July 1,
1997, Section 2 of Rule 45, which governed appeals from the Court of Appeals to the
Supreme Court, provided:
SEC. 2.
Contents of petition.The petition shall contain a concise statement of x x
x the assignment of errors made in the court below x x x.
A petition for review on certiorari under Rule 45 requires a concise statement of the
errors committed by the Court of Appeals, not of the trial court. For failure to follow this
Rule, the petition could have been dismissed by this Court motu proprio, considering that
under Section 4 of the same Rule, review is not a matter of right but of sound
discretion.
We take this occasion to stress the need for precision and clarity in the assignment of
errors. Review under this rule is unlike an appeal in a criminal case where the death
penalty, reclusin perpetua or life imprisonment is imposed and where the whole case is
opened for review. Under Rule 45, only the issues raised therein by the petitioner will be
passed upon by the Court, such that an erroneous specification of the issues may cause
the dismissal of the petition. We stressed this in Circular No. 2-90, entitled Guidelines to
be Observed in Appeals to the Court of Appeals and to the Supreme Court, as follows:
4. Erroneous Appeals. x x x x
e)
Duty of counsel.It is therefore incumbent upon every attorney who would seek
review of a judgment or order promulgated against his client to make sure of the nature
of the errors he proposes to assign, whether these be of fact or of law; then upon such
basis to ascertain carefully which Court has appellate jurisdiction; and finally, to follow

90
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 proprioby 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 wellgrounded belief that an offense has been committed and that the accused is
probably guilty thereof.[19] By reason of the abbreviated nature of preliminary
investigations, a dismissal of the charges as a result thereof is not equivalent to a
judicial pronouncement of acquittal. Hence, no double jeopardy attaches.
In declaring this function to be lodged in the prosecutor, the Court distinguished
the determination of probable cause for the issuance of a warrant of arrest or a
search warrant from a preliminary investigation proper in this wise:[20]
xxx Judges and prosecutors alike should distinguish the preliminary inquiry
which determines probable cause for the issuance of a warrant of arrest from a
preliminary investigation proper which ascertains whether the offender should be
held for trial or released. xxx The determination of probable cause for the
warrant of arrest is made by the Judge. The preliminary investigation proper-whether xxx there is reasonable ground to believe that the accused is guilty of
the offense charged and, therefore, whether xxx he should be subjected to the
expense, rigors and embarrassment of trial--is the function of the prosecutor.
We reiterate that preliminary investigation should be distinguished as to whether
it is an investigation for the determination of a sufficient ground for the filing of the
information or it is an investigation for the determination of a probable cause for
the issuance of a warrant of arrest. The first kind of preliminary investigation is
executive in nature. It is part of the prosecutors job. The second kind of
preliminary investigation which is more properly called preliminary examination is
judicial in nature and is lodged with the judge.

Sound policy supports this distinction. Otherwise, judges would be unduly laden with the
preliminary examination and investigation of criminal complaints instead of concentrating
on hearing and deciding cases filed before their courts. The Separate Opinion of Mr.
Chief Justice Andres R. Narvasa in Roberts, Jr. vs. Court of 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 reinvestigation 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

91
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 noprima facie case exists, authorize and direct the
investigating fiscal concerned or any other fiscal or state prosecutor to cause or move for
the dismissal of the case, or, where he finds a prima facie case, to cause the filing of an
information in court against the respondent, based on the same sworn statements or
evidence submitted without the necessity of conducting another preliminary
investigation.
Pursuant thereto, the Department of Justice promulgated Circular No. 7 dated January
25, 1990 governing appeals in preliminary investigation. Appeals under Section 2 are
limited to resolutions dismissing a criminal complaint. However, Section 4 provides an
exception: appeals from resolutions finding probable cause upon a showing of manifest
error or grave abuse of discretion are allowed, provided the accused has not been
arraigned. In the present case, petitioners appeal to the secretary of justice was given
due course on August 26, 1992 pursuant to this Circular.
On June 30, 1993, Circular No. 7 was superseded by Department Order No. 223;
however, the scope of appealable cases remained unchanged:
SECTION 1. What May Be Appealed. -- Only resolutions of the Chief State
Prosecutor/Regional State Prosecutor/Provincial or City Prosecutor dismissing a criminal
complaint may be the subject of an appeal to the Secretary of Justice except as
otherwise provided in Section 4 hereof.
Appeals from the resolutions of provincial/city prosecutors where the penalty prescribed
for the offense charged does not exceed prisin correccional, regardless of the
imposable fine, shall be made to the Regional State Prosecutors who shall resolve the
appeals with finality, pursuant to Department Order No. 318 dated August 28, 1991 as
amended by D.O. No. 34 dated February 4, 1992, D.O. No. 223 dated August 11, 1992
and D.O. No. 45 dated February 2, 1993. Such appeals shall also be governed by these
rules.
SEC. 4. Non-Appealable Cases; Exceptions.--No appeal may be taken from a resolution
of the Chief State Prosecutor/Regional State Prosecutor/Provincial or City Prosecutor
finding probable cause except upon showing of manifest error or grave abuse of
discretion. Notwithstanding the showing of manifest error or grave abuse of discretion,
no appeal shall be entertained where the appellant had already been arraigned. If the

92
appellant (is) arraigned during the pendency of the appeal, x x x appeal shall be
dismissed motu proprio by the Secretary of Justice.
An appeal/motion for reinvestigation from a resolution finding probable cause,
however, shall not hold the filing of the information in court.
Apart from the foregoing statutory and administrative issuances, the power of
review of the secretary of justice is recognized also by Section 4 of Rule 112 of
the Rules of Court:
SEC. 4. Duty of investigating fiscal.--x x x x
xxx
xxx
xxx
If upon petition by a proper party, the Secretary of Justice reverses the resolution
of the provincial or city fiscal or chief state prosecutor, he shall direct the fiscal
concerned to file the corresponding information without conducting another
preliminary investigation or to dismiss or move for dismissal of the complaint or
information.
This appeal rests upon the sound discretion of the secretary of justice arising
from his power of supervision and control over the prosecuting arm of the
government, not on a substantial right on the part of the accused as claimed by
petitioner.
Appeal Did Not Divest the Trial Court of Jurisdiction
Where the secretary of justice exercises his power of review only after an
information has been filed, trial courts should defer or suspend arraignment and
further proceedings until the appeal is resolved. Such deferment or suspension,
however, does not signify that the trial court is ipso facto bound by the resolution
of the secretary of justice. Jurisdiction, once acquired by the trial court, is not lost
despite a resolution by the secretary of justice to withdraw the information or to
dismiss the case.
Judicial Review of the Resolution of the Secretary of Justice
Judicial power is defined under the 1987 Constitution as the duty of courts to
settle actual controversies involving rights which are legally demandable and
enforceable. Such power includes the determination of whether there has been
a grave abuse of discretion amounting to lack or excess of jurisdiction on the part
of any branch or instrumentality of the government.[28] Under this definition, a
court is without power to directly decide matters over which full discretionary
authority has been delegated to the legislative or executive branch of the
government. It is not empowered to substitute its judgment for that of Congress
or of the President. It may, however, look into the question of whether such
exercise has been made in grave abuse of discretion.
Judicial review of the acts of other departments is not an assertion of superiority
over them or a derogation of their functions. In the words of Justice Laurel
in Angara vs. Electoral Commission:[29]
x x x [W]hen the judiciary mediates to allocate constitutional boundaries, it does
not in reality nullify or invalidate an act of the legislature, but only asserts the
solemn and sacred obligation assigned to it by the Constitution to determine

conflicting claims of authority under the Constitution and to establish for the parties in an
actual controversy the rights which that instrument sources and guarantees to them. This
is in truth all that is involved in what is termed judicial supremacy which properly is the
power of the judicial review under the Constitution. x x x.
It is not the purpose of this Court to decrease or limit the discretion of the secretary of
justice to review the decisions of the government prosecutors under him. In Crespo, the
secretary was merely advised to restrict such review to exceptionally meritorious
cases. Rule 112, Section 4 of the Rules of Court, which recognizes such power, does
not, however, allow the trial court to automatically dismiss the case or grant the
withdrawal of the information upon the resolution of the secretary of justice. This is
precisely the import of Crespo, Marcelo, Martinez vs. Court of Appeals[30] and the recent
case of Roberts, Jr. vs. Court of Appeals, which all required the trial court to make its
own evaluation of the merits of the case, because granting the motion to dismiss or to
withdraw the information is equivalent to effecting a disposition of the case itself.
The Marcelo and Martinez Cases Are Consistent
In Marcelo vs. Court of Appeals,[31] this Court ruled that, although it is more prudent to
wait for a final resolution of a motion for review or reinvestigation from the secretary of
justice before acting on a motion to dismiss or a motion to withdraw an information, a trial
court nonetheless should make its own study and evaluation of said motion and not rely
merely on the awaited action of the secretary. The trial court has the option to grant or
deny the motion to dismiss the case filed by the fiscal, whether before or after the
arraignment of the accused, and whether after a reinvestigation or upon instructions of
the secretary who reviewed the records of the investigation; provided that such grant or
denial is made from its own assessment and evaluation of the merits of the motion.
In Martinez vs. Court of Appeals,[32] this Court overruled the grant of the motion to
dismiss filed by the prosecuting fiscal upon the recommendation of the secretary of
justice because such grant was based upon considerations other than the judges own
assessment of the matter. Relying solely on the conclusion of the prosecution to the
effect that there was no sufficient evidence against the accused to sustain the allegation
in the information, the trial judge did not perform his function of making an independent
evaluation or assessment of the merits of the case.
Despite the pronouncement in Marcelo that a final resolution of the appeal to the
Department of Justice is necessary, both decisions followed the rule in Crespo vs.
Mogul: Once a complaint or information is filed in court, any disposition of the case such
as its dismissal or its continuation rests on the sound discretion of the court. Trial judges
are thus required to make their own assessment of whether the secretary of justice
committed grave abuse of discretion in granting or denying the appeal, separately and
independently of the prosecutions or the secretarys evaluation that such evidence is
insufficient or that no probable cause to hold the accused for trial exists. They should
embody such assessment in their written order disposing of the motion.
The above-mentioned cases depict two extreme cases in complying with this
rule. In Marcelo, the dismissal of the criminal action upon the favorable recommendation
of the Review Committee, Office of the City Prosecutor, was precipitate in view of the

93
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 wellfounded 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.

94
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]
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 abovenamed accused who are the news correspondent and the managing editor, respectively,
of the local weekly newspaper Bicol Forum, did then and there willfully, unlawfully and
feloniously, without justifiable motive and with malicious intent of impeaching, discrediting
and destroying the honor, integrity, good name and reputation of the complainant as
Minister of the Presidential Commission on Government Reorganization and concurrently
Governor of the Province of Camarines Sur, and to expose him to public hatred, ridicule
and contempt, write, edit, publish and circulate an issue of the local weekly newspaper
BICOL FORUM throughout the Bicol Region, with banner headline and front page news
item read by the public throughout the Bicol Region, pertinent portions of which are
quoted verbatim as follows:
VILLAFUERTES DENIAL CONVINCES NO ONE
NAGA CITY-Gov. Luis Villafuertes denial that he did not spend government money for
his trips to Japan and Israel two weeks ago has failed to convince people in Camarines
Sur, reliable sources said.
What the people know, the sources said, is that the two trips of the governor who is also
the minister of the Government Reorganization Commission was purely junket.
This was confirmed when capitol sources disclosed that about P700,000.00 collected by
way of cash advances by ranking provincial officials were allegedly used for the two trips.
The cash advances, the sources said, were made at the instance of Villafuerte.
It was learned that the amount was withdrawn without resolution approving its release.

95
Villarfuerte however said that he spent his own money for the two trips.
The governor was accompanied abroad by political supporters mostly municipal
mayors in Camarines Sur, the report said.
This was contested by several individuals who told Bicol Forum that the
members of Villafuertes entourage did not have official functions in the province.
Villafuerte and his companions reportedly attended the 1986 baseball games in
Japan.
When in truth and in fact said allegations are false and utterly untrue as the
complainant has not done such acts, thus embarrassing, discrediting and
ridiculing him before his friends, followers and other people.[3]
The information was later amended to include Jose Burgos, Jr., who was at that
time the publisher-editor of the Bicol Forum.[4] The trial court, however, never
acquired jurisdiction over his person as he did not surrender nor was he ever
arrested by the authorities.
It appears from the records that prior to the filing of the criminal complaint, the
private complainant had already instituted a separate civil action for damages
arising out of the questioned news article before the RTC, Branch 23, Naga City.
Due to this, the criminal suit for libel was ordered consolidated with the civil case
pursuant to Article 360 of the Revised Penal Code, as amended.
[5] Subsequently, the consolidated actions were transferred to RTC, Branch 33,
Pili, Camarines Sur, in accordance with Republic Act No. 4363 which outlines the
venue of libel cases in the event that the offended party is a public official such
as in this case.[6] Thereafter, a joint trial of the cases ensued with accused
Burgos, Jr., being declared as in default in the civil case due to his failure to
attend its pre-trial conference.
Upon being arraigned, the petitioner and Ramos both pleaded not guilty.[7]
During the trial, the private complainant himself took the witness stand to refute
the statements contained in the subject news article. According to him, there
were previous news reports and broadcasts regarding the cash advances
allegedly made by some provincial government officials of Camarines Sur and
that it was also reported that he made a trip to Japan which was branded as a
mere junket.[8] The private complainant, however, explained that after he
clarified over the radio that he never went to Japan, the issue was never
discussed again until the matter was included in the questioned news item.[9] As
for the cash advances, the private complainant stated that the Provincial Auditor
and the Budget Officer had already made a statement to the effect that he had
no pending cash advances.[10] Further, the private complainant clarified that he
made his trip to Israel in his capacity as a cabinet member of former President
Corazon C. Aquino and that he spent his own money for the said official trip
thereby debunking Bicol Forums report that his travel to Israel was purely a
junket.[11] The private complainant also complained that no one from the Bicol
Forum made any attempt to get his side of the story nor was he aware of any
effort exerted by the representatives of said publication to confirm the veracity of
the contents of the subject news article from any source at the provincial capitol.

[12] Finally, the private complainant took exception to the banner headline which states
Villafuertes Denial Convinces No One. According to him, the Bicol Forum seemed to
be making a mockery of his previous explanations regarding the cash advances and his
trips abroad and such a sweeping statement subjected him to public ridicule and
humiliation.[13]
On the other hand, Ramos testified that he wrote the questioned news item on the basis
of a note given to him by a source whom he refused to identify.[14] Said source was
allegedly connected with the Provincial Treasurers Office.[15] The note reads:
Media consultants of Villafuerte specially DWLV announcers had been announcing the
travels of Villafuerte to Israel and Japan without spending a single centavo. This is
unbelievable as lately the Gov. said he [spent] his own money for the trips.
No one will believe this. The governor and party went to Israel and Japan as there were
some P700,000.00 cash advances collected in form of advances by top provincial
officials for the trips. No [doubt] Villafuerte had a hand on this because he is the
governor approving cash advances. Among them were Panes and Maceda.
There were no resolution, please publish this that people concern will react and they be
forced to account for the money. Authenticated papers will follow. Bulls eye ito.
capr[16]
Ramos likewise alleged that prior to writing the subject news article, he went to his
source to ask some clarificatory questions and was told that he would be given
authenticated records of the cash advances. Later, he was given a copy of the Schedule
of Cash Advances of Disbursing Officers and Other Officers (as of June 30 1987).
[17] Among the provincial government officials listed therein were the private respondent
who had a 1986 balance of P25,000.00 incurred for cultural activities; Atty. Jose Maceda
who also had a 1986 balance of P130,084.00 for sports development, Operation Smile,
NAMCYA Festival, and prisoners subsistence; and Eulogio Panes, Jr., who had beside
his name a 1986 balance of P250,000 for the purpose of sports development. Ramos
also claimed that when he went to the Provincial Treasurers Office to conduct his
investigation, he was shown some vouchers and was told that many of the members of
the baseball delegation to Japan were not elected provincial officials and, in fact, some
mayors and private individuals were sent as part of the Philippine group.[18]
During his turn at the witness stand, the petitioner admitted that the headline was written
by him in his capacity as the managing editor[19] in accordance with the policy of their
paper to print as headlines matters dealing with public concerns and public officials.
[20] According to him, the banner headline and the sub-headline truthfully reflect the
substance of the story prepared by Ramos.[21]
After the trial, the court a quo rendered a joint decision the dispositive portion of which
reads:
IN VIEW OF ALL THE FOREGOING CONSIDERATIONS, judgment is hereby rendered:
In Criminal Case No. P-1855
Finding the accused Nick Ramos and Salvador D. Flor guilty beyond reasonable doubt
of the crime of Libel defined and punished under Article 353 in connection with Article
355 of the Revised Penal Code and they are each sentenced to pay a fine of Two

96
Thousand Pesos (P2,000.00) with subsidiary imprisonment in case of insolvency;
and to pay the costs of suit.
In Civil Case No. P-1672
Ordering the defendants Nick Ramos, Salvador D. Flor and Jose Burgos, Jr. to
pay jointly and severally to the plaintiff the following:
1.
The amount of Three Hundred Thousand Pesos (P300,000.00) as moral
damages;
2.
The amount of Five Thousand Pesos (P5,000.00) as exemplary damages;
3.
The amount of Five Thousand Pesos (P5,000.00) as attorneys fees; and
to pay the costs of suit.[22]
Unsatisfied with the findings of the trial court, the petitioner and Ramos filed an
appeal with the Court of Appeals which affirmed the judgment of the trial court
through its decision dated 10 December 1996.[23] They thereafter filed a motion
for reconsideration[24] which was denied for lack of merit by the appellate court
in its resolution of 19 August 1999.[25]
In upholding the conclusion reached by the trial court, the Court of Appeals
ratiocinated, thus:
The informant of Nick Ramos made a sweeping conclusion that it was Gov.
Villafuerte who made the trips abroad using government money as there were
cash advances of P700,000.00 made by top provincial officials, without first
having verified the truth about the matters contained in his report. The
imputation became malicious when they are based on mere conjectures. The
alleged libelous article must be construed as a whole. The effect of the news
item upon the minds of the readers must be considered in the prosecution of libel
cases. The words used in the news report tends to impute a criminal act on the
governor which may cause the readers to hold him up to public ridicule and
induce them to believe that the governor was indeed guilty. The accused editor
admitted that he did not make any personal investigation as to the truth of the
statements made in the report. When such communication was sent for
publication, the so-called privilege was destroyed when malice in fact was
present.[26]
In fine, the sole issue brought for the consideration of this Court is whether the
questioned news item is libelous. We reverse.
Libel is defined as a public and malicious imputation of a crime, or of a vice or
defect, real or imaginary, or any act, omission, condition, status, or circumstance
tending to cause the dishonor, discredit, or contempt of a natural person or
juridical person, or to blacken the memory of one who is dead.[27] Any of these
imputations is defamatory and under the general rule stated in Article 354 of the
Revised Penal Code, every defamatory imputation is presumed to be malicious.
[28] The presumption of malice, however, does not exist in the following
instances:
1.
A private communication made by any person to another in the
performance of any legal, moral, or social duty; and

2.
A fair and true report, made in good faith, without any comments or remarks, of
any judicial, legislative, or other official proceedings which are not of confidential nature,
or of any statement, report, or speech delivered in said proceedings, or of any other act
performed by public officers in the exercise of their functions.[29]
The law recognizes two kinds of privileged matters. First are those which are classified
as absolutely privileged which enjoy immunity from libel suits regardless of the existence
of malice in fact. Included herein are statements made in official proceedings of the
legislature by the members thereof.[30] Likewise, statements made in the course of
judicial proceedings are absolutely privileged but only if pertinent or relevant to the case
involved.[31]
The other kind of privileged matters are the qualifiedly or conditionally
privileged communications which, unlike the first classification, may be susceptible to a
finding of libel provided the prosecution establishes the presence of malice in fact. The
exceptions provided for in Article 354 of the Revised Penal Code fall into this category.
In the case, however, of Borjal v. Court of Appeals,[32] this Court recognized that the
enumeration stated in Article 354 of the Revised Penal Code is not exclusive but is
rendered more expansive by the constitutional guarantee of freedom of the press, thus:
. . . To be sure, the enumeration under Art. 354 is not an exclusive list of qualifiedly
privileged communications since fair commentaries on matters of public interest are
likewise privileged. The rule on privileged communications had its genesis not in the
nations penal code but in the Bill of Rights of the Constitution guaranteeing freedom of
speech and of the press. As early as 1918, 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 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]

97
Of course, this does not mean that a public official is barred from recovering
damages in cases involving defamations. His entitlement, however, is limited to
instances when the defamatory statement was made with actual malice that is,
with knowledge that it was false or with reckless disregard of whether it was false
or not.[36] This is the test laid down in the leading case of New York Times Co. v.
Sullivan.[37]
In the case at bar, the Office of the Solicitor General (OSG) argues that the
purported libelous news item was designed to malign the integrity and reputation
of the [private complainant] for it ascribed to the latter corruption and dishonesty
in government service.[38] Moreover, the OSG maintains that the questioned
news article does not enjoy the mantle of protection afforded a privileged matter
as the petitioner and Ramos published the news item based on mere speculation
and conjecture.[39] Their decision to publish the unverified information furnished
them by the unnamed source, who was never presented before the trial court,
and their failure to verify the truth of statements which appeared under the
banner headline of the 18-24 August 1986 issue of the Bicol Forum indicates that
the news item was published intemperately and maliciously.[40] The OSG is
therefore of the opinion that the subject news item satisfied the test pronounced
in the New York Times case. We do not agree.
As the US Supreme Court itself declared, reckless disregard cannot be fully
encompassed in one infallible definition. Inevitably its outer limits will be marked
out through case-by-case adjudication.[41] The case of Garrison v. State of
Louisiana[42] stressed that only those false statements made with the high
degree of awareness of their probable falsity demanded by New York Times may
be the subject of either civil or criminal sanctions[43] and concluded by restating
the reckless disregard standard in the following manner:
. . . The test which we laid down in New York Times is not keyed to ordinary care;
defeasance of the privilege is conditioned, not on mere negligence, but on
reckless disregard for the truth.[44]
Subsequently, in St. Amant v. Thompson[45] it was stated that
. . . These cases are clear that reckless conduct is not measured by whether a
reasonably prudent man would have published, or would have investigated
before publishing. There must be sufficient evidence to permit the conclusion
that the defendant in fact entertained serious doubts as to the truth of his
publication. Publishing with such doubts shows reckless disregard for truth or
falsity and demonstrates actual malice. [46]
Applied to the case at bar, we hold that the prosecution failed to meet the
criterion of reckless disregard. As the records reveal, the issue of cash
advances against the coffers of the provincial government of Camarines Sur was
a major political topic in said locality at that time. Even the private respondent
himself admitted during his direct testimony that he went on radio in order to
address the matter. It was clearly a legitimate topic to be discussed not only by
the members of the media but by the public as what was involved was the
dispensation of taxpayers money.

Further, it bears emphasis that in this case, the petitioner and Ramos had in their
possession information relating to the cash advances and the private respondents
travels abroad. The information was provided by one who worked in the provincial
treasurers office and had access to the pertinent financial records of the provincial
government. Their informant was familiar with the procedure with regard to the approval
of cash advances. The inference they drew from the note given by their source that the
private respondent prodded some of the provincial government officials to take out cash
advances may have been false but the same does not warrant a conviction for libel nor
support a claim for damages. As discussed by Newell
Slight unintentional errors, however, will be excused. If a writer in the course of
temperate and legitimate criticism falls into error as to some detail, or draws an incorrect
inference from the facts before him, and thus goes beyond the limits of strict truth, such
inaccuracies will not cause judgment to go against him, if the jury are satisfied, after
reading the whole publication, that it was written honestly, fairly and with regard to what
truth and justice require. It is not to be expected that a public journalist will always be
infallible.[47]
During the hearing of these cases, the private complainant also refuted the material
points contained in the subject news article in an effort to prove the falsity of the
allegations contained therein. This Court finds such effort inadequate to adjudge the
petitioner guilty of the crime of libel or to entitle the private respondent to damages.
Under the New York Times test, false statements alone are not actionable; maliciousness
may be shown only through knowledge of falsity or reckless disregard of truth or falsity.
[48]
Further, both the prosecution and the OSG make capital of Ramos and the petitioners
failure to confirm the information supplied by the unidentified source which ultimately
became the basis for the news article under consideration in an obvious attempt to
establish the element of reckless disregard for truth. The prosecution also painstakingly
tried to establish malice in fact on the part of the petitioner by harping on the fact that
neither he nor Ramos took the time to give the private respondent the chance to air his
side before putting the alleged libelous news story to print.
The contention fails to persuade.
While substantiation of the facts supplied is an important reporting standard, still, a
reporter may rely on information given by a lone source although it reflects only one side
of the story provided the reporter does not entertain a high degree of awareness of [its]
probable falsity.[49] The prosecution, in this case, utterly failed to prove that the
petitioner and Ramos entertained such awareness.
We also hold that the petitioners and Ramoss failure to present their informant before
the court as well as other evidence that would prove Ramos claim that he had
conducted an investigation to verify the information passed on to him should not be taken
against them. On this point, we turn to our pronouncement in the case of Rodolfo R.
Vasquez v. Court of Appeals, et al.,[50] to wit:
A rule placing on the accused the burden of showing the truth of allegations of official
misconduct and/or good motives and justifiable ends for making such allegations would

98
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 crossexamination, 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
Manila
EN BANC
G.R. No. L-69500 July 22, 1985
JOSE ANTONIO U. GONZALEZ in behalf of MALAYA FILMS, LINO BROCKA,
JOSE F. LACABA, and DULCE Q. SAGUISAG, petitioners,
vs.
CHAIRMAN MARIA KALAW KATIGBAK, GENERAL WILFREDO C. ESTRADA
(Ret.), and THE BOARD OF REVIEW FOR MOTION PICTURES AND
TELEVISION (BRMPT), respondents.

Irene R. Cortes, Perfecto V. Fernandez, Haydee Yorac and Joker P. Arroyo for
petitioners.
The Solicitor General for respondents.
FERNANDO, C.J.:
In this case of first impression, a certiorari proceeding filed on January 10, 1985, there is
a persuasive ring to the invocation of the constitutional right to freedom of
expression 1 of an artistand for that matter a man of letters tooas the basis for a
ruling on the scope of the power of respondent Board of Review for Motion Pictures and
Television and how it should be exercised. The dispute between the parties has been
narrowed down. The motion picture in question, Kapit sa Patalim was classified "For
Adults Only." There is the further issue then, also one of first impression, as to the proper
test of what constitutes obscenity in view of the objections raised. Thus the relevance of
this constitutional command: "Arts and letters shall be under the patronage of the
State. 2
The principal petitioner is Jose Antonio U. Gonzalez, 3 President of the Malaya Films, a
movie production outfit duly registered as a single proprietorship with the Bureau of
Domestic Trade. The respondent is the Board of Review for Motion Pictures and
Television, with Maria Kalaw Katigbak as its Chairman and Brig. Gen. Wilfredo C.
Estrada as its Vice-Chairman, also named respondents.
In a resolution of a sub-committee of respondent Board of October 23, 1984, a permit to
exhibit the film Kapit sa Patalim under the classification "For Adults Only," with certain
changes and deletions enumerated was granted. A motion for reconsideration was filed
by petitioners stating that the classification of the film "For Adults Only" was without
basis. 4 Then on November 12, 1984, respondent Board released its decision: "Acting on
the applicant's Motion for Reconsideration dated 29 October 1984, the Board, after a
review of the resolution of the sub-committee and an examination of the film, Resolves to
affirm in toto the ruling of the sub-committee. Considering, however, certain vital
deficiencies in the application, the Board further Resolves to direct the Chairman of the
Board to Withheld the issuance of the Permit to exhibit until these deficiencies are
supplied. 5 Hence this petition.
This Court, in a resolution of January 12, 1985, required respondent to answer. In such
pleading submitted on January 21, 1985, as one of its special and affirmative defenses, it
was alleged that the petition is moot as "respondent Board has revoked its questioned
resolution, replacing it with one immediately granting petitioner company a permit to
exhibit the film Kapit without any deletion or cut [thus an] adjudication of the questions
presented above would be academic on the case." 6 Further: "The modified resolution of
the Board, of course, classifies Kapit as for-adults-only, but the petition does not raise
any issue as to the validity of this classification. All that petitioners assail as arbitrary on
the part of the Board's action are the deletions ordered in the film. 7 The prayer was for
the dismissal of the petition.
An amended petition was then filed on January 25, 1985. The main objection was the
classification of the film as "For Adults Only." For petitioners, such classification "is

99
without legal and factual basis and is exercised as impermissible restraint of
artistic expression. The film is an integral whole and all its portions, including
those to which the Board now offers belated objection, are essential for the
integrity of the film. Viewed as a whole, there is no basis even for the vague
speculations advanced by the Board as basis for its classification. 8 There was
an answer to the amended petition filed on February 18, 1985. It was therein
asserted that the issue presented as to the previous deletions ordered by the
Board as well as the statutory provisions for review of films and as to the
requirement to submit the master negative have been all rendered moot. It was
also submitted that the standard of the law for classifying films afford a practical
and determinative yardstick for the exercise of judgment. For respondents, the
question of the sufficiency of the standards remains the only question at issue.
It would be unduly restrictive under the circumstances to limit the issue to one of
the sufficiency of standards to guide respondent Board in the exercise of its
power. Even if such were the case, there is justification for an inquiry into the
controlling standard to warrant the classification of "For Adults Only." This is
especially so, when obscenity is the basis for any alleged invasion of the right to
the freedom of artistic and literary expression embraced in the free speech and
free press guarantees of the Constitution.
1. Motion pictures are important both as a medium for the communication of
Ideas and the expression of the artistic impulse. Their effects on the perception
by our people of issues and public officials or public figures as well as the
prevailing cultural traits is considerable. Nor as pointed out in Burstyn v.
Wilson 9 is the "importance of motion pictures as an organ of public opinion
lessened by the fact that they are designed to entertain as well as to
inform. 10 There is no clear dividing line between what involves knowledge and
what affords pleasure. If such a distinction were sustained, there is a diminution
of the basic right to free expression. Our recent decision in Reyes v.
Bagatsing 11 cautions against such a move. Press freedom, as stated in the
opinion of the Court, "may be Identified with the liberty to discuss publicly and
truthfully any matter of public concern without censorship or punishment. 12 This
is not to say that such freedom, as is the freedom of speech, absolute. It can be
limited if "there be a 'clear and present danger of a substantive evil that [the
State] has a right to prevent. 13
2. Censorship or previous restraint certainly is not all there is to free speech or
free press. If it were so, then such basic rights are emasculated. It is however,
except in exceptional circumstances a sine qua non for the meaningful exercise
of such right. This is not to deny that equally basic is the other important aspect
of freedom from liability. Nonetheless, for the purposes of this litigation, the
emphasis should rightly be on freedom from censorship. It is, beyond question, a
well-settled principle in our jurisdiction. As early as 1909, in the case of United
States v. Sedano, 14 a prosecution for libel, the Supreme Court of the Philippines
already made clear that freedom of the press consists in the right to print what
one chooses without any previous license. There is reaffirmation of such a view

in Mutuc v. Commission on Elections, 15 where an order of respondent Commission on

Elections giving due course to the certificate of candidacy of petitioner but prohibiting him
from using jingles in his mobile units equipped with sound systems and loud speakers
was considered an abridgment of the right of the freedom of expression amounting as it
does to censorship. It is the opinion of this Court, therefore, that to avoid an
unconstitutional taint on its creation, the power of respondent Board is limited to the
classification of films. It can, to safeguard other constitutional objections, determine what
motion pictures are for general patronage and what may require either parental guidance
or be limited to adults only. That is to abide by the principle that freedom of expression is
the rule and restrictions the exemption. The power to exercise prior restraint is not to be
presumed, rather the presumption is against its validity. 16
3. The test, to repeat, to determine whether freedom of excession may be limited is the
clear and present danger of an evil of a substantive character that the State has a right to
prevent. Such danger must not only be clear but also present. There should be no doubt
that what is feared may be traced to the expression complained of. The causal
connection must be evident. Also, there must be reasonable apprehension about its
imminence. The time element cannot be ignored. Nor does it suffice if such danger be
only probable. There is the require of its being well-nigh inevitable. The basic postulate,
wherefore, as noted earlier, is that where the movies, theatrical productions radio scripts,
television programs, and other such media of expression are concerned included as
they are in freedom of expression censorship, especially so if an entire production is
banned, is allowable only under the clearest proof of a clear and present danger of a
substantive evil to public public morals, public health or any other legitimate public
interest. 17 There is merit to the observation of Justice Douglas that "every writer, actor,
or producer, no matter what medium of expression he may use, should be freed from the
censor. 18
4. The law, however, frowns on obscenity and rightly so. As categorically stated
by Justice Brennan in Roth v. United States 19 speaking of the free speech and press
guarantee of the United States Constitution: "All Ideas having even the slightest
redeeming social importance unorthodox Ideas, controversial Ideas, even Ideas
hateful to the prevailing climate of opinion have the full protection of the guaranties,
unless excludable because they encroach upon the limited area of the First Amendment
is the rejection of obscenity as utterly without redeeming social importance. 20 Such a
view commends itself for approval.
5. There is, however, some difficulty in determining what is obscene. There is
persuasiveness to the approach followed in Roth: "The early leading standard of
obscenity allowed material to be judged merely by the effect of an isolated excerpt upon
particularly susceptible persons. Regina v. Hicklin [1868] LR 3 QB 360. Some American
courts adopted this standard but later decisions have rejected it and substituted this test:
whether to the average person, applying contemporary community standards, the
dominant theme of the material taken as a whole appeals to prurient interest. The Hicklin
test, judging obscenity by the effect of isolated passages upon the most susceptible
persons, might well encompass material legitimately treating with sex, and so it must be

100
rejected as unconstitutionally restrictive of the freedoms of speech and press. On
the other hand, the substituted standard provides safeguards adequate to
withstand the charge of constitutional infirmity. 21
6. The above excerpt which imposes on the judiciary the duty to be ever on
guard against any impermissible infringement on the freedom of artistic
expression calls to mind the landmark ponencia of Justice Malcolm in United
States v. Bustos, 22 decided in 1918. While recognizing the principle that libel is
beyond the pale of constitutional protection, it left no doubt that in determining
what constitutes such an offense, a court should ever be mindful that no violation
of the right to freedom of expression is allowable. It is a matter of pride for the
Philippines that it was not until 1984 in New York Timer v. Sullivan, 23 thirty-years
later, that the United States Supreme Court enunciated a similar doctrine.
7. It is quite understandable then why in the Roth opinion, Justice Brennan took
pains to emphasize that "sex and obscenity are not synonymous. 24 Further:
"Obscene material is material which deals with sex in a manner appealing to
prurient interest. The portrayal of sex, e.g., in art, literature and scientific works,
is not itself sufficient reason to deny material the constitutional protection of
freedom of speech and press. Sex, a great and mysterious motive force in
human life has indisputably been a subject of absorbing interest to mankind
through the ages; it is one of the vital problems of human interest and public
concern. 25
8. In the applicable law, Executive Order No. 876, reference was made to
respondent Board "applying contemporary Filipino cultural values as
standard, 26 words which can be construed in an analogous manner. Moreover,
as far as the question of sex and obscenity are concerned, it cannot be stressed
strongly that the arts and letters "shall be under the patronage of the
State. 27 That is a constitutional mandate. It will be less than true to its function if
any government office or agency would invade the sphere of autonomy that an
artist enjoys. There is no orthodoxy in what passes for beauty or for reality. It is
for the artist to determine what for him is a true representation. It is not to be
forgotten that art and belleslettres deal primarily with imagination, not so much
with ideas in a strict sense. What is seen or perceived by an artist is entitled to
respect, unless there is a showing that the product of his talent rightfully may be
considered obscene. As so wen put by Justice Frankfurter in a concurring
opinion, "the widest scope of freedom is to be given to the adventurous and
imaginative exercise of the human spirit" 28 in this sensitive area of a man's
personality. On the question of obscenity, therefore, and in the light of the facts of
this case, such standard set forth in Executive Order No. 878 is to be construed
in such a fashion to avoid any taint of unconstitutionality. To repeat, what was
stated in a recent decision 29 citing the language of Justice Malcolm in Yu Cong
Eng v. Trinidad, 30 it is "an elementary, a fundamental, and a universal role of
construction, applied when considering constitutional questions, that when a law
is susceptible of two constructions' one of which will maintain and the other
destroy it, the courts will always adopt the former. 31 As thus construed, there

can be no valid objection to the sufficiency of the controlling standard and its conformity
to what the Constitution ordains.
9. This being a certiorari petition, the question before the Court is whether or not there
was a grave abuse of discretion. That there was an abuse of discretion by respondent
Board is evident in the light of the difficulty and travail undergone by petitioners
before Kapit sa Patalim was classified as "For Adults Only," without any deletion or cut.
Moreover its perception of what constitutes obscenity appears to be unduly restrictive.
This Court concludes then that there was an abuse of discretion. Nonetheless, there are
not enough votes to maintain that such an abuse can be considered grave. Accordingly,
certiorari does not lie. This conclusion finds support in this explanation of respondents in
its Answer to the amended petition: "The adult classification given the film serves as a
warning to theater operators and viewers that some contents of Kapit are not fit for the
young. Some of the scenes in the picture were taken in a theater-club and a good portion
of the film shots concentrated on some women erotically dancing naked, or at least
nearly naked, on the theater stage. Another scene on that stage depicted the women
kissing and caressing as lesbians. And toward the end of the picture, there exists scenes
of excessive violence attending the battle between a group of robbers and the police.
The vulnerable and imitative in the young audience will misunderstand these
scenes." 32 Further: "Respondents further stated in its answer that petitioner company
has an option to have the film reclassified to For-General-Patronage if it would agree to
remove the obscene scenes and pare down the violence in the film." 33 Petitioners,
however, refused the "For Adults Only" classification and instead, as noted at the outset,
filed this suit for certiorari.
10. All that remains to be said is that the ruling is to be limited to the concept of obscenity
applicable to motion pictures. It is the consensus of this Court that where television is
concerned: a less liberal approach calls for observance. This is so because unlike motion
pictures where the patrons have to pay their way, television reaches every home where
there is a set. Children then will likely will be among the avid viewers of the programs
therein shown. As was observed by Circuit Court of Appeals Judge Jerome Frank, it is
hardly the concern of the law to deal with the sexual fantasies of the adult
population. 34 it cannot be denied though that the State as parens patriae is called upon
to manifest an attitude of caring for the welfare of the young.
WHEREFORE, this Court, in the light of the principles of law enunciated in the opinion,
dismisses this petition for certiorari solely on the ground that there are not enough votes
for a ruling that there was a grave abuse of discretion in the classification of Kapit sa
Patalim as "For-Adults-Only."
G.R. No. 80806 October 5, 1989
LEO PITA doing business under the name and style of PINOY PLAYBOY, petitioner,
vs.
THE COURT OF APPEALS, RAMON BAGATSING, and NARCISO
CABRERA, respondents.
William C. Arceno for petitioner.
Casibang, Perello and De Dios for private respondent.

101
SARMIENTO, J.:
The petitioner, publisher of Pinoy Playboy, a "men's magazine", seeks the review
of the decision of the Court of Appeals, 1 rejecting his appeal from the decision of
the Regional Trial Court, dismissing his complaint for injunctive relief. He invokes,
in particular, the guaranty against unreasonable searches and seizures of the
Constitution, as well as its prohibition against deprivation of property without due
process of law. There is no controversy as to the facts. We quote:
On December 1 and 3, 1983, pursuing an Anti-Smut Campaign initiated by the
Mayor of the City of Manila, Ramon D. Bagatsing, elements of the Special AntiNarcotics Group, Auxilliary Services Bureau, Western Police District, INP of the
Metropolitan Police Force of Manila, seized and confiscated from dealers,
distributors, newsstand owners and peddlers along Manila sidewalks,
magazines, publications and other reading materials believed to be obscene,
pornographic and indecent and later burned the seized materials in public at the
University belt along C.M. Recto Avenue, Manila, in the presence of Mayor
Bagatsing and several officers and members of various student organizations.
Among the publications seized, and later burned, was "Pinoy Playboy"
magazines published and co-edited by plaintiff Leo Pita.
On December 7, 1983, plaintiff filed a case for injunction with prayer for issuance
of the writ of preliminary injunction against Mayor Bagatsing and Narcisco
Cabrera, as superintendent of Western Police District of the City of Manila,
seeking to enjoin and/or restrain said defendants and their agents from
confiscating plaintiffs magazines or from otherwise preventing the sale or
circulation thereof claiming that the magazine is a decent, artistic and educational
magazine which is not per seobscene, and that the publication is protected by
the Constitutional guarantees of freedom of speech and of the press.
By order dated December 8, 1 983 the Court set the hearing on the petition for
preliminary injunction on December 14,1983 and ordered the defendants to show
cause not later than December 13, 1983 why the writ prayed for should not be
granted.
On December 12, 1983, plaintiff filed an Urgent Motion for issuance of a
temporary restraining order. against indiscriminate seizure, confiscation and
burning of plaintiff's "Pinoy Playboy" Magazines, pending hearing on the petition
for preliminary injunction in view of Mayor Bagatsing's pronouncement to
continue the Anti-Smut Campaign. The Court granted the temporary restraining
order on December 14, 1983.
In his Answer and Opposition filed on December 27,1983 defendant Mayor
Bagatsing admitted the confiscation and burning of obscence reading materials
on December 1 and 3, 1983, but claimed that the said materials were voluntarily
surrendered by the vendors to the police authorities, and that the said
confiscation and seizure was (sic) undertaken pursuant to P.D. No. 960, as
amended by P.D. No. 969, which amended Article 201 of the Revised Penal
Code. In opposing the plaintiffs application for a writ of preliminary injunction,

defendant pointed out that in that anti- smut campaign conducted on December 1 and 3,
1983, the materials confiscated belonged to the magazine stand owners and peddlers
who voluntarily surrendered their reading materials, and that the plaintiffs establishment
was not raided.
The other defendant, WPD Superintendent, Narcisco Cabrera, filed no answer.
On January 5,1984, plaintiff filed his Memorandum in support of the issuance of the writ
of preliminary injunction, raising the issue as to "whether or not the defendants and/or
their agents can without a court order confiscate or seize plaintiffs magazine before any
judicial finding is made on whether said magazine is obscene or not".
The restraining order issued on December 14,1983 having lapsed on January 3,1984,
the plaintiff filed an urgent motion for issuance of another restraining order, which was
opposed by defendant on the ground that issuance of a second restraining order would
violate the Resolution of the Supreme Court dated January 11, 1983, providing for the
Interim Rules Relative to the Implementation of Batas Pambansa Blg. 129, which
provides that a temporary restraining order shall be effective only for twenty days from
date of its issuance.
On January 9, 1984 defendant filed his Comment and/or Rejoinder Memorandum in
support of his opposition to the issuance of a writ of preliminary injunction.
On January 11, 1984, the trial court issued an Order setting the case for hearing on
January 16, 1984 "for the parties to adduce evidence on the question of whether the
publication 'Pinoy Playboy Magazine alleged (sic) seized, confiscated and/or burned by
the defendants, are obscence per se or not".
On January 16, 1984, the Court issued an order granting plaintiffs motion to be given
three days "to file a reply to defendants' opposition dated January 9, 1984, serving a
copy thereof to the counsel for the defendants, who may file a rejoinder within the same
period from receipt, after which the issue of Preliminary Injunction shall be resolved".
Plaintiff's supplemental Memorandum was filed on January 18, 1984. Defendant filed his
Comment on plaintiff s supplemental Memorandum on January 20, 1984, and plaintiff
filed his "Reply-Memorandum" to defendants' Comment on January 25, 1984.
On February 3, 1984, the trial court promulgated the Order appealed from denying the
motion for a writ of preliminary injunction, and dismissing the case for lack of merit. 2
The Appellate Court dismissed the appeal upon the grounds, among other things, as
follows:
We cannot quarrel with the basic postulate suggested by appellant that seizure of
allegedly obscene publications or materials deserves close scrutiny because of the
constitutional guarantee protecting the right to express oneself in print (Sec. 9, Art. IV),
and the protection afforded by the constitution against unreasonable searches and
seizure (Sec. 3, Art.IV). It must be equally conceded, however, that freedom of the press
is not without restraint as the state has the right to protect society from pornographic
literature that is offensive to public morals, as indeed we have laws punishing the author,
publishers and sellers of obscene publications (Sec. I , Art. 201, Revised Penal Code, as
amended by P.D. No. 960 and P.D. No. 969). Also well settled is the rule that the right
against unreasonable searches and seizures recognizes certain exceptions, as when

102
there is consent to the search or seizure, (People vs. Malesugui 63 Phil. 22) or
search is an incident to an arrest, (People vs. Veloso, 48 Phil. 169; Alvero vs.
Dizon, 76 Phil. 637) or is conducted in a vehicle or movable structure (See Papa
vs. Magno, 22 SCRA 857). 3
The petitioner now ascribes to the respondent court the following errors:
1. The Court of Appeals erred in affirming the decision of the trial court and, in
effect, holding that the police officers could without any court warrant or order
seize and confiscate petitioner's magazines on the basis simply of their
determination that they are obscene.
2. The Court of Appeals erred in affirming the decision of the trial court and, in
effect, holding that the trial court could dismiss the case on its merits without any
hearing thereon when what was submitted to it for resolution was merely the
application of petitioner for the writ of preliminary injunction. 4
The Court states at the outset that it is not the first time that it is being asked to
pronounce what "obscene" means or what makes for an obscene or
pornographic literature. Early on, in People vs. Kottinger, 5 the Court laid down
the test, in determining the existence of obscenity, as follows: "whether the
tendency of the matter charged as obscene, is to deprave or corrupt those whose
minds are open to such immoral influences and into whose hands a publication
or other article charged as being obscene may fall." 6 "Another test,"
so Kottinger further declares, "is that which shocks the ordinary and common
sense of men as an indecency. " 7 Kottinger hastened to say, however, that
"[w]hether a picture is obscene or indecent must depend upon the circumstances
of the case, 8 and that ultimately, the question is to be decided by the "judgment
of the aggregate sense of the community reached by it." 9
Yet Kottinger, in its effort to arrive at a "conclusive" definition, succeeded merely
in generalizing a problem that has grown increasingly complex over the years.
Precisely, the question is: When does a publication have a corrupting tendency,
or when can it be said to be offensive to human sensibilities? And obviously, it is
to beg the question to say that a piece of literature has a corrupting
influence because it is obscene, and vice-versa.
Apparently, Kottinger was aware of its own uncertainty because in the same
breath, it would leave the final say to a hypothetical "community standard"
whatever that is and that the question must supposedly be judged from case
to case.
About three decades later, this Court promulgated People v. Go Pin, 10 a
prosecution under Article 201 of the Revised Penal Code. Go Pin, was also even
hazier:
...We agree with counsel for appellant in part. If such pictures, sculptures and
paintings are shown in art exhibit and art galleries for the cause of art, to be
viewed and appreciated by people interested in art, there would be no offense
committed. However, the pictures here in question were used not exactly for art's
sake but rather for commercial purposes. In other words, the supposed artistic
qualities of said pictures were being commercialized so that the cause of art was

of secondary or minor importance. Gain and profit would appear to have been the main,
if not the exclusive consideration in their exhibition; and it would not be surprising if the
persons who went to see those pictures and paid entrance fees for the privilege of doing
so, were not exactly artists and persons interested in art and who generally go to art
exhibitions and galleries to satisfy and improve their artistic tastes, but rather people
desirous of satisfying their morbid curiosity and taste, and lust, and for love for
excitement, including the youth who because of their immaturity are not in a position to
resist and shield themselves from the ill and perverting effects of these pictures. 11
xxx xxx xxx
As the Court declared, the issue is a complicated one, in which the fine lines have
neither been drawn nor divided. It is easier said than done to say, indeed, that if "the
pictures here in question were used not exactly for art's sake but rather for commercial
purposes," 12 the pictures are not entitled to any constitutional protection.
It was People v. Padan y Alova , 13 however, that introduced to Philippine jurisprudence
the "redeeming" element that should accompany the work, to save it from a valid
prosecution. We quote:
...We have had occasion to consider offenses like the exhibition of still or moving pictures
of women in the nude, which we have condemned for obscenity and as offensive to
morals. In those cases, one might yet claim that there was involved the element of art;
that connoisseurs of the same, and painters and sculptors might find inspiration in the
showing of pictures in the nude, or the human body exhibited in sheer nakedness, as
models in tableaux vivants. But an actual exhibition of the sexual act, preceded by acts
of lasciviousness, can have no redeeming feature. In it, there is no room for art. One can
see nothing in it but clear and unmitigated obscenity, indecency, and an offense to public
morals, inspiring and causing as it does, nothing but lust and lewdness, and exerting a
corrupting influence specially on the youth of the land. ... 14
Padan y Alova, like Go Pin, however, raised more questions than answers. For one thing,
if the exhibition was attended by "artists and persons interested in art and who generally
go to art exhibitions and galleries to satisfy and improve their artistic tastes," 15 could the
same legitimately lay claim to "art"? For another, suppose that the exhibition was so
presented that "connoisseurs of [art], and painters and sculptors might find
inspiration," 16 in it, would it cease to be a case of obscenity?
Padan y Alova, like Go Pin also leaves too much latitude for judicial arbitrament, which
has permitted an ad lib of Ideas and "two-cents worths" among judges as to what is
obscene and what is art.
In a much later decision, Gonzalez v. Kalaw Katigbak, 17 the Court, following trends in
the United States, adopted the test: "Whether to the average person, applying
contemporary standards, the dominant theme of the material taken as a whole appeals
to prurient interest." 18 Kalaw-Katigbak represented a marked departure
from Kottinger in the sense that it measured obscenity in terms of the "dominant theme"
of the work, rather than isolated passages, which were central toKottinger (although both
cases are agreed that "contemporary community standards" are the final arbiters of what
is "obscene"). Kalaw-Katigbak undertook moreover to make the determination of

103
obscenity essentially a judicial question and as a consequence, to temper the
wide discretion Kottinger had given unto law enforcers.
It is significant that in the United States, constitutional law on obscenity continues
to journey from development to development, which, states one authoritative
commentator (with ample sarcasm), has been as "unstable as it is
unintelligible." 19
Memoirs v. Massachusettes, 20 a 1966 decision, which characterized obscenity
as one "utterly without any redeeming social value," 21 marked yet another
development.
The latest word, however, is Miller v. California, 22 which expressly
abandoned Massachusettes, and established "basic guidelines," 23 to wit: "(a)
whether 'the average person, applying contemporary standards' would find the
work, taken as a whole, appeals to the prurient interest . . .; (b) whether the work
depicts or describes, in a patently offensive way, sexual conduct specifically
defined by the applicable state law; and (c) whether the work, taken as a whole,
lacks serious literary, artistic, political, or scientific value." 24
(A year later, the American Supreme Court decided Hamling v. United
States 25 which repeated Miller, and Jenkins v. Georgia, 26 yet another
reiteration of Miller. Jenkins, curiously, acquitted the producers of the motion
picture, Carnal Knowledge, in the absence of "genitals" portrayed on screen,
although the film highlighted contemporary American sexuality.)
The lack of uniformity in American jurisprudence as to what constitutes
"obscenity" has been attributed to the reluctance of the courts to recognize the
constitutional dimension of the problem . 27 Apparently, the courts have
assumed that "obscenity" is not included in the guaranty of free speech, an
assumption that, as we averred, has allowed a climate of opinions among
magistrates predicated upon arbitrary, if vague theories of what is acceptable to
society. And "[t]here is little likelihood," says Tribe, "that this development has
reached a state of rest, or that it will ever do so until the Court recognizes that
obscene speech is speech nonetheless, although it is subject as in all speech
to regulation in the interests of [society as a whole] but not in the interest of
a uniform vision of how human sexuality should be regarded and portrayed." 28
In the case at bar, there is no challenge on the right of the State, in the legitimate
exercise of police power, to suppress smut provided it is smut. For obvious
reasons, smut is not smut simply because one insists it is smut. So is it equally
evident that individual tastes develop, adapt to wide-ranging influences, and keep
in step with the rapid advance of civilization. What shocked our forebears, say,
five decades ago, is not necessarily repulsive to the present generation. James
Joyce and D.H. Lawrence were censored in the thirties yet their works are
considered important literature today. 29 Goya's La Maja desnuda was once
banned from public exhibition but now adorns the world's most prestigious
museums.

But neither should we say that "obscenity" is a bare (no pun intended) matter of opinion.
As we said earlier, it is the divergent perceptions of men and women that have probably
compounded the problem rather than resolved it.
What the Court is impressing, plainly and simply, is that the question is not, and has not
been, an easy one to answer, as it is far from being a settled matter. We share Tribe's
disappointment over the discouraging trend in American decisional law on obscenity as
well as his pessimism on whether or not an "acceptable" solution is in sight.
In the final analysis perhaps, the task that confronts us is less heroic than rushing to a
"perfect" definition of "obscenity", if that is possible, as evolving standards for proper
police conduct faced with the problem, which, after all, is the plaint specifically raised in
the petition.
However, this much we have to say.
Undoubtedly, "immoral" lore or literature comes within the ambit of free expression,
although not its protection. In free expression cases, this Court has consistently been on
the side of the exercise of the right, barring a "clear and present danger" that would
warrant State interference and action. 30 But, so we asserted in Reyes v.
Bagatsing,31 "the burden to show the existence of grave and imminent danger that
would justify adverse action ... lies on the. . . authorit[ies]." 32
"There must be objective and convincing, not subjective or conjectural, proof of the
existence of such clear and present danger." 33 "It is essential for the validity of ...
previous restraint or censorship that the ... authority does not rely solely on his own
appraisal of what the public welfare, peace or safety may require." 34
"To justify such a limitation, there must be proof of such weight and sufficiency to satisfy
the clear and present danger test." 35
The above disposition must not, however, be taken as a neat effort to arrive at a solutionso only we may arrive at one-but rather as a serious attempt to put the question in its
proper perspective, that is, as a genuine constitutional issue.
It is also significant that in his petition, the petitioner asserts constitutional issues, mainly,
due process and illegal search and seizure.
As we so strongly stressed in Bagatsing, a case involving the delivery of a political
speech, the presumption is that the speech may validly be said. The burden is on the
State to demonstrate the existence of a danger, a danger that must not only be: (1) clear
but also, (2) present, to justify State action to stop the speech. Meanwhile, the
Government must allow it (the speech). It has no choice. However, if it acts
notwithstanding that (absence of evidence of a clear and present danger), it must come
to terms with, and be held accountable for, due process.
The Court is not convinced that the private respondents have shown the required proof
to justify a ban and to warrant confiscation of the literature for which mandatory injunction
had been sought below. First of all, they were not possessed of a lawful court order: (1)
finding the said materials to be pornography, and (2) authorizing them to carry out a
search and seizure, by way of a search warrant.
The Court of Appeals has no "quarrel that ... freedom of the press is not without restraint,
as the state has the right to protect society from pornographic literature that is offensive

104
to public morals." 36 Neither do we. But it brings us back to square one: were the
"literature" so confiscated "pornographic"? That we have laws punishing the
author, publisher and sellers of obscence publications (Sec. 1, Art. 201, Revised
Penal Code, as amended by P.D. No. 960 and P.D. No. 969)," 37 is also fine, but
the question, again, is: Has the petitioner been found guilty under the statute?
The fact that the former respondent Mayor's act was sanctioned by "police
power" is no license to seize property in disregard of due process. In Philippine
Service Exporters, Inc. v. Drilon, 38 We defined police power as "state authority
to enact legislation that may interfere with personal liberty or property in order to
promote the general welfare ." 39Presidential Decrees Nos. 960 and 969 are,
arguably, police power measures, but they are not, by themselves, authorities for
high-handed acts. They do not exempt our law enforcers, in carrying out the
decree of the twin presidential issuances (Mr. Marcos'), from the commandments
of the Constitution, the right to due process of law and the right against
unreasonable searches and seizures, specifically. Significantly, the Decrees
themselves lay down procedures for implementation. We quote:
Sec. 2. Disposition of the Prohibited Articles. The disposition of the literature,
films, prints, engravings, sculptures, paintings, or other materials involved in the
violation referred to in Section 1 hereof (Art. 201), RPC as amended) shall be
governed by the following rules:
(a) Upon conviction of the offender, to be forfeited in favor of the Government to
be destroyed.
(b) Where the criminal case against any violator of this decree results in an
acquittal, the obscene/immoral literature, films, prints, engravings, sculptures,
paintings or other materials and articles involved in the violation referred to in
Section 1 (referring to Art. 201) hereof shall nevertheless be forfeited in favor of
the government to be destroyed, after forfeiture proceedings conducted by the
Chief of Constabulary.
(c) The person aggrieved by the forfeiture action of the Chief of Constabulary
may, within fifteen (15) days after his receipt of a copy of the decision, appeal the
matter to the Secretary of National Defense for review. The decision of the
Secretary of National Defense shall be final and unappealable. (Sec. 2, PD No,
960 as amended by PD No. 969.)
Sec. 4. Additional Penalties. Additional penalties shall be imposed as follows:
1. In case the offender is a government official or employee who allows the
violations of Section I hereof, the penalty as provided herein shall be imposed in
the maximum period and, in addition, the accessory penalties provided for in the
Revised Penal Code, as amended, shall likewise be imposed .40
Under the Constitution, on the other hand:
SEC. 3. The right of the people to be secure in their persons, houses, papers,
and effects against unreasonable searches and seizures of whatever nature and
for any purpose shall not be violated, and no search warrant or warrant of arrest
shall issue except upon probable cause to be determined by the judge, or such
other responsible officer as may be authorized by law, after examination under

oath or affirmation of the complainant and the witnesses he may produce, and
particularly describing the place to be searched, and the persons or things to be seized.
It is basic that searches and seizures may be done only through a judicial warrant,
otherwise, they become unreasonable and subject to challenge. In Burgos v. Chief of
Staff, AFP, 43 We counter-minded the orders of the Regional Trial Court authorizing the
search of the premises of We Forum and Metropolitan Mail, two Metro Manila dailies, by
reason of a defective warrant. We have greater reason here to reprobate the questioned
raid, in the complete absence of a warrant, valid or invalid. The fact that the instant case
involves an obscenity rap makes it no different from Burgos, a political case, because,
and as we have indicated, speech is speech, whether political or "obscene".
The Court is not ruling out warrantless searches, as the Rules of Court (1964 rev.) (the
Rules then prevailing), provide:
SEC. 12. Search without warrant of personarrested. A person charged with an offense
may be searched for dangerous weapons or anything which may be used as proof of the
commission of the offense. 44
but as the provision itself suggests, the search must have been an incident to a lawful
arrest, and the arrest must be on account of a crime committed. Here, no party has been
charged, nor are such charges being readied against any party, under Article 201, as
amended, of the Revised Penal Code.
We reject outright the argument that "[t]here is no constitutional nor legal provision which
would free the accused of all criminal responsibility because there had been no
warrant," 45 and that "violation of penal law [must] be punished." 46 For starters, there is
no "accused" here to speak of, who ought to be "punished". Second, to say that the
respondent Mayor could have validly ordered the raid (as a result of an anti-smut
campaign) without a lawful search warrant because, in his opinion, "violation of penal
laws" has been committed, is to make the respondent Mayor judge, jury, and executioner
rolled into one. And precisely, this is the very complaint of the petitioner.
We make this resume.
1. The authorities must apply for the issuance of a search warrant from a judge, if in their
opinion, an obscenity rap is in order;
2. The authorities must convince the court that the materials sought to be seized are
"obscene", and pose a clear and present danger of an evil substantive enough to warrant
State interference and action;
3. The judge must determine whether or not the same are indeed "obscene:" the
question is to be resolved on a case-to-case basis and on His Honor's sound discretion.
4. If, in the opinion of the court, probable cause exists, it may issue the search warrant
prayed for;
5. The proper suit is then brought in the court under Article 201 of the Revised Penal
Code;
6. Any conviction is subject to appeal. The appellate court may assess whether or not the
properties seized are indeed "obscene".

105
These do not foreclose, however, defenses under the Constitution or applicable
statutes, or remedies against abuse of official power under the Civil Code" 47 or
the Revised Penal code . 48
WHEREFORE, the petition is GRANTED. The decision of the respondent court is
REVERSED and SET ASIDE. It appearing, however, that the magazines subject
of the search and seizure ave been destroyed, the Court declines to grant
affirmative relief. To that extent, the case is moot and academic.
SO ORDERED.
ROXAS

ANTONIO DE ZUZUARREGUI, JR., ENRIQUE

DE ZUZUARREGUI, PACITA JAVIER,
ELIZABETH R. GONZALES, JOSEFINA R.
DAZA, ELIAS REYES, NATIVIDAD REYES,
TERESITA REYES, JOSE REYES and
ANTONIO REYES,
Respondents.
x---------------------x
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,
-versusTHE NATIONAL HOUSING AUTHORITY,
JOSE B. H. PEDROSA, ROMEO G. ROXAS
and SANTIAGO N. PASTOR,
Respondents.

Promulgated:
July 12, 2007
x- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - x
RESOLUTION

EN BANC
ROMEO G. ROXAS andSANTIAGO N.
PASTOR,
Petitioners,
- versus -

CHICO-NAZARIO,
GARCIA,
VELASCO, JR. and
NACHURA, JJ.

G.R. No. 152072

G.R. No. 152104

Present:
PUNO, C.J.,
QUISUMBING,
YNARES-SANTIAGO,
SANDOVAL-GUTIERREZ,*
CARPIO,
AUSTRIA-MARTINEZ,
CORONA,
CARPIO MORALES,
AZCUNA,
TINGA,

PER CURIAM:
Self-approbation, pride and self-esteem should not erode and dim the luster and dignity
of this Court. Against overweening bluster and superciliousness, nay, lordly claim, this
Court must stand steadfast, unmoved and uncompromising in upholding what is right and
proper. In such posture, the mandate of affording every man the equal protection of the
law cannot dwindle. Strict adherence to ethical conduct and righteousness without
veering away from responsibility will foster an impregnable respect, deference and even
reverence to this Courts decisions and pronouncements.
In a Resolution[1] dated 26 September 2006, the Court En Banc ordered Atty. Romeo
G. Roxas to explain in writing why he should not be held in contempt of court and
subjected to disciplinary action when he, in a letter[2] dated 13 September 2006
addressed to Associate Justice Minita V. Chico-Nazario with copies thereof furnished the
Chief Justice and all the other Associate Justices, intimated that Justice Nazario decided
G.R. No. 152072 and No. 152104 on considerations other than the pure merits of the
case, and called the Supreme Court a dispenser of injustice.
The letter of Atty. Roxas reads in part:
As an officer of the court, I am shocked beyond my senses to realize that such a
wrongful and unjust decision has been rendered with you no less as the ponente. This
terrible decision will go down in the annals of jurisprudence as an egregious example of
how the Supreme Court, supposedly the last vanguard and bulwark of justice is itself
made, wittingly or unwittingly, as a party to the wrongdoing by giving official and judicial
sanction and conformity to the unjust claims of the Zuzuarreguis. We cannot fathom how
such a decision could have been arrived at except through considerations other than the
pure merits of the case. Every law student reading through the case can see clearly how
a brother lawyer in the profession had been so short-changed by, ironically, the most
sacred and highest institution in the administration and dispensation of justice.

106
xxxx
This is an unjust and unfair decision, to say the least. x x x We cry out in disbelief
that such an impossible decision could spring forth from the Supreme Court, the
ultimate administrator and last bulwark of justice. As it stands, instead of being
an administrator of justice, the Supreme Court is ironically a dispenser of
injustice.
Under the circumstances, we hope you will forgive us in expressing our
sentiment in this manner as we are utterly frustrated and dismayed by the
elementary injustice being foisted upon us by the Supreme Court, no less. Given
the facts of the case, we will never understand what moved the Honorable
Justice to decide as she did and what forces and influences caused her to
reason out her decision in such an unfair and unjust manner as to compromise
the reputation, integrity and dignity itself of the Supreme Court, as a venerable
institution of justice.
As lawyers, we are officers of the Court so that, while we are
being underservedly pained by the seething injustice of the decision, we will
submit to the authority of Highest Court of the Land, even as our reverence for it
has been irreversibly eroded, thanks to your Honors Judgment.
xxxx
As for Your Honor, sleep well if you still can. In the end, those we address as
Honorable Justice in this earthly life will [be] judged by the Supreme Dispenser of
Justice where only the merits of Your Honors life will be relevant and material and
where technicalities can shield no one from his or her wrongdoings.
Good day to you, Madame Justice!
The decision referred to in the letter is the Courts decision[3] in these
consolidated cases where Attys. Roxas and Santiago N. Pastor were ordered to
return, among others, to Antonio de Zuzuarregui, Jr., et al. the amount
of P17,073,224.84.
Roxas and Pastor filed their Motion for Reconsideration[4] on 8 March
2006 which they followed with an Executive Summary[5] the day after. In a
resolution dated 22 March 2006, the Court noted the Executive Summary and
deferred action on the Motion for Reconsideration.[6]

On 27 March 2006, the Court denied with finality the Motion for Reconsideration as the
basic issues have already been passed upon and there being no substantial argument to
warrant the modification of the Courts decision.[7]
On 30 March 2006, Roxas and Pastor filed a Motion for Leave to File Supplemental
Motion for Reconsideration, together with the Supplemental Motion for Reconsideration.
[8]
The following day, they filed a Motion for Leave to File Motion to Set the Case for Oral
Argument, together with the Motion to Set the Case for Oral Argument (on the Motion for
Reconsideration and the Supplement thereto).[9] In a Manifestation dated 3 April
2006, Roxas and Pastor asked that a typographical error appearing in the affidavits of
service attached to the motions be corrected and that the Motion to Set Case for Oral
Argument be granted.[10]
On 7 April 2006, Antonio de Zuzuarregui, Jr., et al., filed a Motion for Leave to File
Comment on/Opposition to Motion for Reconsideration.[11]
On 7 June 2006, Roxas and Pastor filed an Urgent and Compelling Motion for
Reconsideration (with Motion to Refer the Case to the En Banc).[12]
On 7 June 2006, the Office of then Chief Justice Artemio V. Panganiban received
from Roxas a letter (with enclosures)[13] dated 6 June 2006 which contained, inter alia,
the following:
This is an unjust and unfair decision, to say the least. x x x We cry out in disbelief that
such an impossible decision could spring forth from the Supreme Court, the ultimate
administrator and last bulwark of justice. As it stands, instead of being an administrative
of justice, the Supreme Court will ironically be a dispenser of injustice.
Under the circumstances, we cannot avoid to suspect the bias and partiality of
the ponente of the case who we surmise must have been moved by considerations,
other than noble.
In this regard, Mr. Chief Justice, we implore Your Honor, as steward of the Highest Court
of the land, to take appropriate steps to forthwith correct this anomalous decision by first,
referring the case to the Supreme Court En Banc, and then, after allowing us the
opportunity to be heard orally En Banc and after judiciously considering our Urgent and
Compelling Motion for Reconsideration, thereafter reversing the decision of this
Honorable Courts First Division.
Finally, in order to cleanse the Supreme Court of the blot caused by this case, we most
ardently implore upon Your Honor to immediately direct the conduct of an investigation of

107
how such an impossible decision was rendered at all and to sanction the
perpetrators thereon.
As the Chief Justice, we have faith in you, Sir, to rectify a grievous wrong inflicted
upon a member of the Bar and to restore the good image and reputation of the
Court by causing the High Court to reverse such an inconceivable decision that is
unfair, unjust and illegal, being an [impairment] of the obligation of contracts and
against the principle of estoppel.
Said letter was indorsed to the Clerk of Court of the First Division for its inclusion
in the agenda.[14]
On 12 July 2006, the Court resolved to (a) Note Without Action (1) the motion of
petitioners Roxas and Pastor for leave to file supplemental motion for
reconsideration of the decision dated January 31, 2006; (2) the aforesaid
supplemental motion for reconsideration; and (3)
respondents Zuzuarreguis motion for leave of court to file comment/opposition to
motion for reconsideration, said motion for reconsideration having been denied
with finality in the resolution of 27 March 2006; (b) Deny for lack of merit said
petitioners (1) motion for leave to file motion to set case for oral argument; and
(2) motion to set the case for oral argument [on the motion for reconsideration
and the supplement thereto]; (c) Note petitioners manifestation regarding the
correction of typographical error in the affidavit of service of their motion for leave
to file motion to set case for oral argument and said motion to set case for oral
arguments; (d) Deny the urgent and compelling second motion for
reconsideration of petitioners Romeo G. Roxas and Santiago N. Pastor of the
decision dated 31 January 2006 [with motion to refer the case to the Court En
Banc], considering that a second motion for reconsideration is a prohibited
pleading under Sec. 2, Rule 52, in relation to Sec. 4, Rule 56 of the 1997 Rules
of Civil Procedure, as amended; (e) Deny said petitioners motion to refer the
cases to the Court En Banc, the latter not being an appellate court to which
decisions or resolutions of the Divisions may be appealed, pursuant to SC
Circular 2-89 dated 7 February 1989, as amended by the resolution of 18
November 1993; and (f) Note the First Indorsement dated 9 June 2006 of the
Hon. Chief Justice Artemio V. Panganiban referring for inclusion in the agenda
the thereto attached letter [with enclosures] of Atty. Romeo G. Roxas, relative to
these cases.[15]
On 13 September 2006, on motion by the Zuzuarreguis for the issuance of entry
of judgment, the Court ordered that entry of judgment in these cases be made in
due course.[16]
On 14 September 2006, Roxas and Pastor filed an Urgent Motion for Clarification
of Judgment.[17] On even date, the letter subject of this contempt proceeding

dated 13 September 2006 was received by Justice Nazario with copies thereof furnished
the Chief Justice and all the other Associate Justices.[18]
On 18 September 2006, Roxas and Pastor filed a Motion to Withdraw said motion and
instead prayed that their Urgent and Compelling Motion for Clarification of Judgment
dated 15 September 2006 be admitted.[19]
On 20 September 2006, the Court, treating petitioners Roxas and Pastors Urgent Motion
for Clarification of Judgment as a second motion for reconsideration, denied the same for
lack of merit. We also noted without action the motion to withdraw said motion for
clarification with intention to re-file the same with the necessary corrections, and referred
to the Court En Banc the letter dated 13 September 2006.[20]
In a resolution dated 26 September 2006, this Court ordered Atty. Roxas to explain in
writing why he should not be held in contempt of court and subjected to disciplinary
action on account of the letter he sent to Justice Nazario with copies thereof
furnished the Chief Justice and all the other Associate Justices.
On 22 November 2006, the Court noted without action petitioner Roxas and Pastors
Urgent and Compelling Motion for Clarification of Judgment in light of the denial of their
Urgent Motion for Clarification of Judgment on 20 September 2006 which the Court
treated as a second motion for reconsideration.[21]
On 16 November 2006, by way of compliance with the 26 September 2006 resolution,
Atty. Roxas submitted his written explanation. His letter stated:
With all due respect to this Honorable Court, and beyond my personal grievances, I
submit that the ruling in the subject consolidated cases may not have met the standards
or adhered to the basic characteristics of fair and just decision, such as objectivity,
neutrality and conformity to the laws and the constitution. x x x
xxxx
Aside from the fact that the aforesaid ruling appears to be seriously flawed, it also casts
grave aspersions on my personal and professional integrity and honor as a lawyer,
officer of the court and advocate of justice.
xxxx
These implications, Your Honors, which I find hard to accept, have caused me severe
anxiety, distress and depredation and have impelled me to exercise my right to express a
legitimate grievance or articulate a bona fide and fair criticism of this Honorable Courts
ruling.

108
While certain statements, averments and/or declarations in my 13 September
2006 letter may have been strongly-worded and construed by this Honorable
Court as tending to ascribe aspersions on the person of the Honorable Associate
Justice Minita V. Chico-Nazario, may I assure Your Honors that no such
ascription was ever intended by the undersigned.
Quite notably, despite my aggrieved sentiments and exasperated state, I chose
to ventilate my criticisms of the assailed ruling in a very discreet and private
manner. Accordingly, instead of resorting to public criticism through media
exposure, I chose to write a personal letter confined to the hallowed halls of the
highest tribunal of the land and within the bounds of decency and propriety. This
was done in good faith with no intention whatsoever to offend any member, much
less tarnish the image of this Honorable Court.
Nonetheless, it is with humble heart and a repentant soul that I express my
sincerest apologies not only to the individual members of this Honorable Court
but also to the Supreme Court as a revered institution and ultimate dispenser of
justice.
As earlier explained, I was merely exercising my right to express a legitimate
grievance or articulate a bona fide and fair criticism of this Honorable Courts
ruling. If the nature of my criticism/comment or the manner in which it was carried
out was perceived to have transgressed the permissible parameters of free
speech and expression, I am willing to submit myself to the sound and judicious
discretion of this Honorable Court. x x x
After reviewing the records of these cases, We firmly stand by our decision which
Atty. Roxas described to be unjust, unfair and impossible, and arrived at through
considerations other than the pure merits of the case. Atty. Roxass insistence
that said decision did not meet the standards or adhered to the basic
characteristics of fair and just decision, such as objectivity, neutrality and
conformity to the laws and the Constitution, is simply without basis. The fact that
the decision was not in his favor does not mean that the same was contrary to
our laws and was not rendered in a fair and impartial manner.

pretense cannot but tend to erode the people's faith in the integrity of the courts of justice
and in the administration of justice. He repeatedly invoked his supposed quest for law
and justice as justification for his contemptuous statements without realizing that, in
seeking both abstract elusive terms, he is merely pursuing his own personal concept of
law and justice. He seems not to comprehend that what to him may be lawful or just may
not be so in the minds of others. He could not accept that what to him may appear to be
right or correct may be wrong or erroneous from the viewpoint of another. x x x.
It is to be noted that prior to his letter dated 13 September 2006, Atty. Roxas wrote then
Chief Justice Artemio V. Panganiban asking for an immediate investigation of how such
an impossible decision was rendered at all and to sanction the perpetrators thereon. It is
to be stressed that then Chief Justice Panganiban was a member of the Division who
concurred in the ponencia written by Justice Nazario. The former and the other three
members[23] of the Division did not find anything illegal, unjust or unfair about the
decision; otherwise, they would have registered their dissents. There was none. The
decision was arrived at after a thorough deliberation of the members of the Court.
Atty. Roxas faulted the Supreme Court when (o)ur two Motions for Reconsiderations
were unceremoniously denied via Minute Resolutions without addressing at all the merits
of our very solid arguments. We cannot help but observe the High Courts resort to
technicalities (that a second motion for reconsideration is a prohibited pleading) if only for
it to avoid meeting the merits and arguments directly.
It is settled that the Court is not duty-bound to render signed Decisions all the time. It has
ample discretion to formulate Decisions and/or minute Resolutions, provided a legal
basis is given, depending on its evaluation of a case.[24] In the case before us, after
going over the motion for reconsideration filed by Roxas and Pastor, we did not find any
substantial argument that would merit the modification of our decision and that would
require an extended resolution since the basic issues had already been passed upon.

In one case,[22] we had this to say when a lawyer challenged the integrity not
only of the Court of Appeals but also of this Court by claiming that the courts
knowingly rendered an unjust judgment:

In his letter subject of this contempt proceeding, Atty. Roxas accused Justice Nazario of
deciding the case through considerations other than the pure merits of the case. He
averred that we will never understand what moved the Honorable Justice to decide as
she did and what forces and influences caused her to reason out her decision in such an
unfair and unjust manner as to compromise the reputation, integrity and dignity itself of
the Supreme Court, as a venerable institution of justice. He then ended by mocking her
when he said sleep well if you still can and that her earthly life will [be] judged by the
Supreme Dispenser of Justice where only the merits of Your Honors life will be relevant
and material and where technicalities can shield no one from his or her wrongdoings.

We note with wonder and amazement the brazen effrontery of respondent in

assuming that his personal knowledge of the law and his concept of justice are
superior to that of both the Supreme Court and the Court of Appeals. His

As to the Court, supposedly the last vanguard and bulwark of justice, he likewise
accuses it of making itself, wittingly or unwittingly, a party to the wrongdoing by giving
official and judicial sanction and conformity to the unjust claims of the adverse party. He

109
added: This is an unjust and unfair decision, to say the least. x x x We cry out in
disbelief that such an impossible decision could spring forth from the Supreme
Court, the ultimate administrator and last bulwark of justice. As it stands, instead
of being an administrator of justice, the Supreme Court is ironically a dispenser of
injustice.

xxxx

In his letter of explanation, Atty. Roxas extended apologies to Justice Nazario, to

the other members of the High Court and to the High Court itself as a revered
institution and ultimate dispenser of justice. He said he was merely exercising his
right to express a legitimate grievance or articulate a bona fide and fair criticism
of the Honorable Courts ruling. He explained that his criticism of the assailed
ruling was done in good faith with no intention whatsoever to offend any member,
much less tarnish the image of the Court.Instead of resorting to public criticism
through media exposure, he chose to ventilate his criticism in a very discreet and
private manner by writing a personal letter confined to the hallowed halls of the
Court and within bounds of decency and propriety.

Well-recognized therefore is the right of a lawyer, both as an officer of the court and as a
citizen, to criticize in properly respectful terms and through legitimate channels the acts
of courts and judges. x x x

We find the explanations of Atty. Roxas unsatisfactory. The accusation against

Justice Nazario is clearly without basis. The attack on the person of
Justice Nazario has caused her pain and embarrassment. His letter is full of
contemptuous remarks tending to degrade the dignity of the Court and erode
public confidence that should be accorded it.
To prevent liability from attaching on account of his letter, he invokes his rights to
free speech and privacy of communication. The invocation of these rights will not,
however, free him from liability. As already stated, his letter contained defamatory
statements that impaired public confidence in the integrity of the judiciary. The
making of contemptuous statements directed against the Court is not an exercise
of free speech; rather, it is an abuse of such right. Unwarranted attacks on the
dignity of the courts cannot be disguised as free speech, for the exercise of said
right cannot be used to impair the independence and efficiency of courts or public
respect therefor and confidence therein.[25]Free expression must not be used as
a vehicle to satisfy ones irrational obsession to demean, ridicule, degrade and
even destroy this Court and its magistrates.[26]

Courts and judges are not sacrosanct. They should and expect critical evaluation of their
performance. For like the executive and the legislative branches, the judiciary is rooted in
the soil of democratic society, nourished by the periodic appraisal of the citizen whom it
is expected to serve.

xxxx
Hence, as a citizen and as officer of the court, a lawyer is expected not only to exercise
the right, but also to consider it his duty to avail of such right. No law may abridge this
right. Nor is he professionally answerable for a scrutiny into the official conduct of the
judges, which would not expose him to legal animadversion as a citizen.
xxxx
But it is the cardinal condition of all such criticism that it shall be bona fide and shall not
spill over the walls of decency and propriety. A wide chasm exists between fair criticism,
on the one hand, and abuse and slander of courts and the judges thereof, on the
other. Intemperate and unfair criticism is a gross violation of the duty of respect to
courts. It is such a misconduct that subjects a lawyer to disciplinary action.
In the case at bar, we find the statements made by Atty. Roxas to have been
made mala fides and exceeded the boundaries of decency and propriety. By his unfair
and unfounded accusation against Justice Nazario, and his mocking of the Court for
allegedly being part of a wrongdoing and being a dispenser of injustice, he abused his
liberty of speech.

This Court does not curtail the right of a lawyer, or any person for that matter, to
be critical of courts and judges as long as they are made in properly respectful
terms and through legitimate channels. This Court in In re: Almacen[27] said:

In In re: Wenceslao Laureta,[28] cited in United BF Homeowners v. Sandoval-Gutierrez,

[29] we ruled:

Moreover, every citizen has the right to comment upon and criticize the
actuations of public officers. This right is not diminished by the fact that the
criticism is aimed at a judicial authority, or that is it articulated by a lawyer. Such
right is especially recognized where the criticism concerns a concluded litigation,
because then the courts actuation are thrown open to public consumption. x x x

To allow litigants to go beyond the Courts resolution and claim that the members acted
with deliberate bad faith and rendered an unjust resolution in disregard or violation of the
duty of their high office to act upon their own independent consideration and judgment of
the matter at hand would be to destroy the authenticity, integrity and conclusiveness of
such collegiate acts and resolutions and to disregard utterly the presumption of regular
performance of official duty. To allow such collateral attack would destroy the separation

110
of powers and undermine the role of the Supreme Court as the final arbiter of
all justiciable disputes.
xxxx
In resume, we find that respondent Ilustre has transcended the permissible
bounds of fair comment and criticism to the detriment of the orderly
administration of justice in her letters addressed to the individual Justices quoted
in the show-cause Resolution of this court en banc, particularly the under lined
portions thereof; in the language of the charges she filed before
theTanodbayan quoted and underscored in the same Resolution; in her
statements, conduct, acts and charges against the Supreme Court and/or the
official actions of the justices concerned and her ascription of improper motives
to them; and in her unjustified outburst that she can no longer expect justice from
this Court. The fact that said letters are not technically considered pleadings, nor
the fact that they were submitted after the main petition had been finally resolved
does not detract from the gravity of the contempt committed. The constitutional
right of freedom of speech or right to privacy cannot be used as a shield for
contemptuous acts against the Court.
Atty. Roxas likewise cannot hide under the mantle of the right to privacy. It must
be disclosed that prior to his letter addressed to Justice Nazario, Atty. Roxas first
wrote then Chief Justice Panganiban asking for an investigation as to how the
assailed decision was rendered and to sanction the perpetrators. The
accusations contained therein are similar to those in his letter to
Justice Nazario. The fact that his letters were merely addressed to the Justices of
this Court and were not disseminated to the media is of no moment.Letters
addressed to individual Justices, in connection with the performance of their
judicial functions, become part of the judicial record and are a matter of concern
for the entire court.[30] As can be gathered from the records, the letter to then
Chief Justice Panganiban was merely noted and no show-cause order was
issued in the hope that Atty. Roxaswould stop his assault on the Court. However,
since Atty. Roxas persisted in attacking the Court via his second letter, it
behooved the Court to order him to explain why he should not be held in
contempt of court and subjected to disciplinary action.
Under the circumstances, we find Atty. Romeo G. Roxas guilty of indirect
contempt of court under Section 3, Rule 71 of the 1997 Rules of Civil Procedure,
as amended.Said section reads:
Section 3. Indirect contempt to be punished after charge and hearing. After a
charge in writing has been filed, and an opportunity given to the respondent to
comment thereon within such period as may be fixed by the court and to be
heard by himself or counsel, a person guilty of any of the following acts may be
punished for indirect contempt:
xxxx

d. Any improper conduct tending, directly or indirectly, to impede, obstruct, or degrade

the administration of justice; x x x.
xxxx
Section 7, Rule 71 of the 1997 Rules of Civil Procedure, as amended, provides the
penalty for indirect contempt as follows:
Sec. 7. Punishment for indirect contempt. If the respondent is adjudged guilty of indirect
contempt committed against a Regional Trial Court or a court of equivalent or higher
rank, he may be punished by a fine not exceeding thirty thousand pesos or imprisonment
not exceeding six (6) months or both. x x x.
The disrespect caused to the Court by Atty. Roxas merits a fine of P30,000.00 with a
warning that a repetition of a similar act will warrant a more severe penalty.
With his contemptuous and defamatory statements, Atty. Roxas likewise violated Canon
11 of the Code of Professional Responsibility, particularly Canons 11.03 and
11.04. These provisions read:
CANON 11 -- A LAWYER SHALL OBSERVE AND MAINTAIN THE RESPECT DUE TO
THE COURTS AND TO JUDICIAL OFFICERS AND SHOULD INSIST ON SIMILAR
CONDUCT BY OTHERS
xxxx
Rule 11.03. A lawyer shall abstain from scandalous, offensive and menacing language or
behavior before the Courts.
Rule 11.04. A lawyer shall not attribute to a Judge motives not supported by the record or
have no materiality to the case.
It is the duty of a lawyer as an officer of the court to uphold the dignity and authority of
the courts and to promote confidence in the fair administration of justice and in the
Supreme Court as the last bulwark of justice and democracy.[31] Respect for the courts
guarantees the stability of the judicial institution. Without such guarantee, the institution
would be resting on a very shaky foundation.[32] When confronted with actions and
statements, from lawyers and non-lawyers alike, that tend to promote distrust and
undermine public confidence in the judiciary, this Court will not hesitate to wield its
inherent power to cite any person in contempt. In so doing, it preserves its honor and
dignity and safeguards the morals and ethics of the legal profession.[33]
WHEREFORE, premises considered, Atty. Romeo G. Roxas is found GUILTY of indirect
contempt of court. He is hereby FINED the amount of P30,000.00 to be paid within ten

111
(10) days from receipt of this Resolution and WARNED that a repetition of a
similar act will warrant a more severe penalty.
Let a copy of this Resolution be attached to Atty. Roxas personal record in the
Office of the Bar Confidant and copies thereof be furnished the Integrated Bar of
the Philippines.
SO ORDERED.
CANCIO C. GARCIA
Associate Justice

PRESBITERO J. VELASCO, JR.

Associate Justice

REYNATO S. PUNO
Chief Justice

LEONARDO A. QUISUMBING
Associate Justice

CONSUELO YNARES-SANTIAGO
Associate Justice

On leave
ANGELINA SANDOVAL-GUTIERREZ
Associate Justice

ANTONIO T. CARPIO
Associate Justice

ANTONIO EDUARDO B. NACHURA

Associate Justice

C E R T I F I C AT I O N
Pursuant to Article VIII, Section 13 of the Constitution, it is hereby certified that the
conclusions in the above Decision were reached in consultation before the case was
assigned to the writer of the opinion of the Court.

MA. ALICIA AUSTRIA-MARTINEZ

Associate Justice

RENATO C. CORONA
Associate Justice

CONCHITA CARPIO MORALES

Associate Justice

ADOLFO S. AZCUNA
Associate Justice

DANTE O. TINGA
Associate Justice

MINITA V. CHICO-NAZARIO
Associate Justice

REYNATO S. PUNO
Chief Justice

* On leave.
[1] Rollo, of G.R. No. 152072, pp. 813-814.
[2] Id. at 807-812.
[3] The antecedents are stated in the decision promulgated on 31 January 2006. Rollo,
Vol. 2, pp. 417-438.
[4] Id. at 445-492.
[5] Id. at 439-444.
[6] Id. at 493.

112
[7] Id. at 495.
[8] Id. at 496-524.
[9] Id. at 519-555.
[10] Id. at 556-566.
[11] Id. at 567-569.
[12] Id. at 571-689.
[13] Id. at 691-755.
[14] Id. at 690.
[15] Id. at 756-757.
[16] Id. at 762-C.
[17] Id. at 764-774.
[18] Id. at 807-812.
[19] Id. at 775-804.
[20] Id. at 805.
[21] Id. at 823.
[22] Montecillo v. Gica, G.R. No. 30380, 21 October 1974, 60 SCRA 234, 246.
[23] Associate Justices Consuelo Ynares-Santiago, Ma. Alicia Austria-Martinez
and Romeo J. Callejo, Sr. (now retired).
[24] In Re: Wenceslao Laureta, 12 March 1987, 148 SCRA 382, 417.
[25] In re: Published Alleged Threats Against Members of the Court in the
Plunder Case Hurled by Atty. Leonard de Vera, A.M. No. 01-12-03-SC, 29 July
2002, 385 SCRA 285, 291.
[26] Re: Letter Dated 21 February 2005 of Atty. Noel S. Sorreda, A.M. No. 05-304-SC, 22 July 2005, 464 SCRA 32, 45.
[27] G.R. No. 27654, 18 February 1970, 31 SCRA 562, 576-580.
[28] Supra note 24 at 420-421.
[29] A.M. No. CA-99-30, 29 September 1999, 315 SCRA 423, 435-436.
[30] Mercado v. Security Bank Corporation, G.R. No. 160445, 16 February 2006,
482 SCRA 501, 516.
[31] In re: Published Alleged Threats Against Members of the Court in the
Plunder Case Hurled by Atty. Leonard de Vera, supra note 25 at 292.
[32] Mercado v. Security Bank Corporation, G.R. No. 160445, 16 February 2006,
482 SCRA 501, 519-519 citing Salcedo v. Hernandez, 61 Phil. 724.
[33] In re: Wenceslao Laureta, supra note 24 at 403.

Republic of the Philippines

SUPREME COURT
Manila
EN BANC
G.R. No. 173034
October 9, 2007
PHARMACEUTICAL AND HEALTH CARE ASSOCIATION OF THE
PHILIPPINES, petitioner,
vs.
HEALTH SECRETARY FRANCISCO T. DUQUE III; HEALTH UNDER SECRETARIES
DR. ETHELYN P. NIETO, DR. MARGARITA M. GALON, ATTY. ALEXANDER A.
PADILLA, & DR. JADE F. DEL MUNDO; and ASSISTANT SECRETARIES DR. MARIO C.
VILLAVERDE, DR. DAVID J. LOZADA, AND DR. NEMESIO T. GAKO, respondents.
DECISION
AUSTRIA-MARTINEZ, J.:
The Court and all parties involved are in agreement that the best nourishment for an
infant is mother's milk. There is nothing greater than for a mother to nurture her beloved
child straight from her bosom. The ideal is, of course, for each and every Filipino child to
enjoy the unequaled benefits of breastmilk. But how should this end be attained?
Before the Court is a petition for certiorari under Rule 65 of the Rules of Court, seeking to
nullify Administrative Order (A.O.) No. 2006-0012 entitled, Revised Implementing Rules
and Regulations of Executive Order No. 51, Otherwise Known as The "Milk Code,"
Relevant International Agreements, Penalizing Violations Thereof, and for Other
Purposes (RIRR). Petitioner posits that the RIRR is not valid as it contains provisions
that are not constitutional and go beyond the law it is supposed to implement.
Named as respondents are the Health Secretary, Undersecretaries, and Assistant
Secretaries of the Department of Health (DOH). For purposes of herein petition, the DOH
is deemed impleaded as a co-respondent since respondents issued the questioned
RIRR in their capacity as officials of said executive agency.1
Executive Order No. 51 (Milk Code) was issued by President Corazon Aquino on
October 28, 1986 by virtue of the legislative powers granted to the president under the
Freedom Constitution. One of the preambular clauses of the Milk Code states that the
law seeks to give effect to Article 112 of the International Code of Marketing of Breastmilk
Substitutes (ICMBS), a code adopted by the World Health Assembly (WHA) in 1981.
From 1982 to 2006, the WHA adopted several Resolutions to the effect that
breastfeeding should be supported, promoted and protected, hence, it should be ensured
that nutrition and health claims are not permitted for breastmilk substitutes.

113
In 1990, the Philippines ratified the International Convention on the Rights of the
Child. Article 24 of said instrument provides that State Parties should take
appropriate measures to diminish infant and child mortality, and ensure that all
segments of society, specially parents and children, are informed of the
advantages of breastfeeding.
On May 15, 2006, the DOH issued herein assailed RIRR which was to take effect
on July 7, 2006.
However, on June 28, 2006, petitioner, representing its members that are
manufacturers of breastmilk substitutes, filed the present Petition
for Certiorari and Prohibition with Prayer for the Issuance of a Temporary
Restraining Order (TRO) or Writ of Preliminary Injunction.
The main issue raised in the petition is whether respondents officers of the DOH
acted without or in excess of jurisdiction, or with grave abuse of discretion
amounting to lack or excess of jurisdiction, and in violation of the provisions of
the Constitution in promulgating the RIRR.3
On August 15, 2006, the Court issued a Resolution granting a TRO enjoining
respondents from implementing the questioned RIRR.
After the Comment and Reply had been filed, the Court set the case for oral
arguments on June 19, 2007. The Court issued an Advisory (Guidance for Oral
Arguments) dated June 5, 2007, to wit:
The Court hereby sets the following issues:
1. Whether or not petitioner is a real party-in-interest;
2. Whether Administrative Order No. 2006-0012 or the Revised Implementing
Rules and Regulations (RIRR) issued by the Department of Health (DOH) is not
constitutional;
2.1 Whether the RIRR is in accord with the provisions of Executive Order No. 51
(Milk Code);
2.2 Whether pertinent international agreements1 entered into by the Philippines
are part of the law of the land and may be implemented by the DOH through the
RIRR; If in the affirmative, whether the RIRR is in accord with the international
agreements;
2.3 Whether Sections 4, 5(w), 22, 32, 47, and 52 of the RIRR violate the due
process clause and are in restraint of trade; and
2.4 Whether Section 13 of the RIRR on Total Effect provides sufficient standards.
_____________
1 (1) United Nations Convention on the Rights of the Child; (2) the WHO and
Unicef "2002 Global Strategy on Infant and Young Child Feeding;" and (3)
various World Health Assembly (WHA) Resolutions.
The parties filed their respective memoranda.
The petition is partly imbued with merit.
On the issue of petitioner's standing
With regard to the issue of whether petitioner may prosecute this case as the real
party-in-interest, the Court adopts the view enunciated in Executive Secretary v.
Court of Appeals,4 to wit:

The modern view is that an association has standing to complain of injuries to its
members. This view fuses the legal identity of an association with that of its
members. An association has standing to file suit for its workers despite its lack of direct
interest if its members are affected by the action. An organization has standing to assert
the concerns of its constituents.
xxxx
x x x We note that, under its Articles of Incorporation, the respondent was organized x x x
to act as the representative of any individual, company, entity or association on matters
related to the manpower recruitment industry, and to perform other acts and activities
necessary to accomplish the purposes embodied therein. The respondent is, thus, the
appropriate party to assert the rights of its members, because it and its members are in
every practical sense identical. x x x The respondent [association] is but the medium
through which its individual members seek to make more effective the expression of their
voices and the redress of their grievances. 5 (Emphasis supplied)
which was reasserted in Purok Bagong Silang Association, Inc. v. Yuipco,6 where the
Court ruled that an association has the legal personality to represent its members
because the results of the case will affect their vital interests.7
Herein petitioner's Amended Articles of Incorporation contains a similar provision just like
in Executive Secretary, that the association is formed "to represent directly or through
approved representatives the pharmaceutical and health care industry before the
Philippine Government and any of its agencies, the medical professions and the general
public."8 Thus, as an organization, petitioner definitely has an interest in fulfilling its
avowed purpose of representing members who are part of the pharmaceutical and health
care industry. Petitioner is duly authorized9to take the appropriate course of action to
bring to the attention of government agencies and the courts any grievance suffered by
its members which are directly affected by the RIRR. Petitioner, which is mandated by its
Amended Articles of Incorporation to represent the entire industry, would be remiss in its
duties if it fails to act on governmental action that would affect any of its industry
members, no matter how few or numerous they are. Hence, petitioner, whose legal
identity is deemed fused with its members, should be considered as a real party-ininterest which stands to be benefited or injured by any judgment in the present action.
On the constitutionality of the provisions of the RIRR
First, the Court will determine if pertinent international instruments adverted to by
respondents are part of the law of the land.
Petitioner assails the RIRR for allegedly going beyond the provisions of the Milk Code,
thereby amending and expanding the coverage of said law. The defense of the DOH is
that the RIRR implements not only the Milk Code but also various international
instruments10 regarding infant and young child nutrition. It is respondents' position that
said international instruments are deemed part of the law of the land and therefore the
DOH may implement them through the RIRR.
The Court notes that the following international instruments invoked by respondents,
namely: (1) The United Nations Convention on the Rights of the Child; (2) The
International Covenant on Economic, Social and Cultural Rights; and (3) the Convention

114
on the Elimination of All Forms of Discrimination Against Women, only provide in
general terms that steps must be taken by State Parties to diminish infant and
child mortality and inform society of the advantages of breastfeeding, ensure the
health and well-being of families, and ensure that women are provided with
services and nutrition in connection with pregnancy and lactation. Said
instruments do not contain specific provisions regarding the use or marketing of
breastmilk substitutes.
The international instruments that do have specific provisions regarding
breastmilk substitutes are the ICMBS and various WHA Resolutions.
Under the 1987 Constitution, international law can become part of the sphere of
domestic law either bytransformation or incorporation.11 The transformation
method requires that an international law be transformed into a domestic law
through a constitutional mechanism such as local legislation. The incorporation
method applies when, by mere constitutional declaration, international law is
deemed to have the force of domestic law.12
Treaties become part of the law of the land through transformation pursuant to
Article VII, Section 21 of the Constitution which provides that "[n]o treaty or
international agreement shall be valid and effective unless concurred in by at
least two-thirds of all the members of the Senate." Thus, treaties or conventional
international law must go through a process prescribed by the Constitution for it
to be transformed into municipal law that can be applied to domestic conflicts.13
The ICMBS and WHA Resolutions are not treaties as they have not been
concurred in by at least two-thirds of all members of the Senate as required
under Section 21, Article VII of the 1987 Constitution.
However, the ICMBS which was adopted by the WHA in 1981 had been
transformed into domestic law through local legislation, the Milk Code.
Consequently, it is the Milk Code that has the force and effect of law in this
jurisdiction and not the ICMBS per se.
The Milk Code is almost a verbatim reproduction of the ICMBS, but it is well to
emphasize at this point that the Code did not adopt the provision in the ICMBS
absolutely prohibiting advertising or other forms of promotion to the general
public of products within the scope of the ICMBS. Instead, the Milk Code
expressly provides that advertising, promotion, or other marketing materials may
be allowed if such materials are duly authorized and approved by the InterAgency Committee (IAC).
On the other hand, Section 2, Article II of the 1987 Constitution, to wit:
SECTION 2. The Philippines renounces war as an instrument of national
policy, adopts the generally accepted principles of international law as part of the
law of the land and adheres to the policy of peace, equality, justice, freedom,
cooperation and amity with all nations. (Emphasis supplied)
embodies the incorporation method.14
In Mijares v. Ranada,15 the Court held thus:
[G]enerally accepted principles of international law, by virtue of the incorporation
clause of the Constitution, form part of the laws of the land even if they do not

derive from treaty obligations. The classical formulation in international law sees
those customary rules accepted as binding result from the combination [of] two elements:
the established, widespread, and consistent practice on the part of States; and a
psychological element known as the opinion juris sive necessitates (opinion as to law or
necessity). Implicit in the latter element is a belief that the practice in question is
rendered obligatory by the existence of a rule of law requiring it.16 (Emphasis supplied)
"Generally accepted principles of international law" refers to norms of general or
customary international law which are binding on all states,17 i.e., renunciation of war as
an instrument of national policy, the principle of sovereign immunity,18 a person's right to
life, liberty and due process,19 and pacta sunt servanda,20 among others. The concept
of "generally accepted principles of law" has also been depicted in this wise:
Some legal scholars and judges look upon certain "general principles of law" as a
primary source of international law because they have the "character of jus rationale"
and are "valid through all kinds of human societies." (Judge Tanaka in his dissenting
opinion in the 1966 South West Africa Case, 1966 I.C.J. 296). O'Connell holds that
certain priniciples are part of international law because they are "basic to legal systems
generally" and hence part of the jus gentium. These principles, he believes, are
established by a process of reasoning based on the common identity of all legal systems.
If there should be doubt or disagreement, one must look to state practice and determine
whether the municipal law principle provides a just and acceptable solution. x x
x 21 (Emphasis supplied)
Fr. Joaquin G. Bernas defines customary international law as follows:
Custom or customary international law means "a general and consistent practice of
states followed by them from a sense of legal obligation [opinio juris]."
(Restatement) This statement contains the two basic elements of custom: the material
factor, that is, how states behave, and the psychological orsubjective factor, that is, why
they behave the way they do.
xxxx
The initial factor for determining the existence of custom is the actual behavior of states.
This includes several elements: duration, consistency, and generality of the practice of
states.
The required duration can be either short or long. x x x
xxxx
Duration therefore is not the most important element. More important is the consistency
and the generality of the practice. x x x
xxxx
Once the existence of state practice has been established, it becomes necessary to
determine why states behave the way they do. Do states behave the way they do
because they consider it obligatory to behave thus or do they do it only as a matter of
courtesy? Opinio juris, or the belief that a certain form of behavior is obligatory, is what
makes practice an international rule. Without it, practice is not law.22 (Underscoring and
Emphasis supplied)
Clearly, customary international law is deemed incorporated into our domestic system.23

115
WHA Resolutions have not been embodied in any local legislation. Have they
attained the status of customary law and should they then be deemed
incorporated as part of the law of the land?
The World Health Organization (WHO) is one of the international specialized
agencies allied with the United Nations (UN) by virtue of Article 57,24 in relation
to Article 6325 of the UN Charter. Under the 1946 WHO Constitution, it is the
WHA which determines the policies of the WHO,26 and has the power to adopt
regulations concerning "advertising and labeling of biological, pharmaceutical
and similar products moving in international commerce,"27 and to "make
recommendations to members with respect to any matter within the competence
of the Organization."28 The legal effect of its regulations, as opposed to
recommendations, is quite different.
Regulations, along with conventions and agreements, duly adopted by the
WHA bind member states thus:
Article 19. The Health Assembly shall have authority to adopt conventions or
agreements with respect to any matter within the competence of the
Organization. A two-thirds vote of the Health Assembly shall be required for the
adoption of such conventions or agreements, which shall come into force for
each Member when accepted by it in accordance with its constitutional
processes.
Article 20. Each Member undertakes that it will, within eighteen months after the
adoption by the Health Assembly of a convention or agreement, take action
relative to the acceptance of such convention or agreement. Each Member shall
notify the Director-General of the action taken, and if it does not accept such
convention or agreement within the time limit, it will furnish a statement of the
reasons for non-acceptance. In case of acceptance, each Member agrees to
make an annual report to the Director-General in accordance with Chapter XIV.
Article 21. The Health Assembly shall have authority to adopt regulations
concerning: (a) sanitary and quarantine requirements and other procedures
designed to prevent the international spread of disease; (b) nomenclatures with
respect to diseases, causes of death and public health practices; (c) standards
with respect to diagnostic procedures for international use; (d) standards with
respect to the safety, purity and potency of biological, pharmaceutical and similar
products moving in international commerce; (e) advertising and labeling of
biological, pharmaceutical and similar products moving in international
commerce.
Article 22. Regulations adopted pursuant to Article 21 shall come into force for all
Members after due notice has been given of their adoption by the Health
Assembly except for such Members as may notify the Director-General of
rejection or reservations within the period stated in the notice. (Emphasis
supplied)
On the other hand, under Article 23, recommendations of the WHA do not come
into force for members, in the same way that conventions or agreements under

Article 19 and regulations under Article 21 come into force. Article 23 of the WHO
Constitution reads:
Article 23. The Health Assembly shall have authority to make recommendations to
Members with respect to any matter within the competence of the Organization.
(Emphasis supplied)
The absence of a provision in Article 23 of any mechanism by which the recommendation
would come into force for member states is conspicuous.
The former Senior Legal Officer of WHO, Sami Shubber, stated that WHA
recommendations are generally not binding, but they "carry moral and political weight, as
they constitute the judgment on a health issue of the collective membership of the
highest international body in the field of health."29 Even the ICMBS itself was adopted as
a mere recommendation, as WHA Resolution No. 34.22 states:
"The Thirty-Fourth World Health Assembly x x x adopts, in the sense of Article 23 of the
Constitution, the International Code of Marketing of Breastmilk Substitutes annexed to
the present resolution." (Emphasis supplied)
The Introduction to the ICMBS also reads as follows:
In January 1981, the Executive Board of the World Health Organization at its sixtyseventh session, considered the fourth draft of the code, endorsed it, and unanimously
recommended to the Thirty-fourth World Health Assembly the text of a resolution by
which it would adopt the code in the form of a recommendation rather than a regulation.
x x x (Emphasis supplied)
The legal value of WHA Resolutions as recommendations is summarized in Article 62 of
the WHO Constitution, to wit:
Art. 62. Each member shall report annually on the action taken with respect to
recommendations made to it by the Organization, and with respect to conventions,
agreements and regulations.
Apparently, the WHA Resolution adopting the ICMBS and subsequent WHA Resolutions
urging member states to implement the ICMBS are merely recommendatory and legally
non-binding. Thus, unlike what has been done with the ICMBS whereby the legislature
enacted most of the provisions into law which is the Milk Code, the subsequent WHA
Resolutions,30 specifically providing for exclusive breastfeeding from 0-6 months,
continued breastfeeding up to 24 months, and absolutely prohibiting advertisements and
promotions of breastmilk substitutes, have not been adopted as a domestic law.
It is propounded that WHA Resolutions may constitute "soft law" or non-binding norms,
principles and practices that influence state behavior.31
"Soft law" does not fall into any of the categories of international law set forth in Article
38, Chapter III of the 1946 Statute of the International Court of Justice.32 It is, however,
an expression of non-binding norms, principles, and practices that influence state
behavior.33 Certain declarations and resolutions of the UN General Assembly fall under
this category.34 The most notable is the UN Declaration of Human Rights, which this
Court has enforced in various cases, specifically, Government of Hongkong Special
Administrative Region v. Olalia,35 Mejoff v. Director of Prisons,36 Mijares v.

116
Raada37 and Shangri-la International Hotel Management, Ltd. v. Developers
Group of Companies, Inc..38
The World Intellectual Property Organization (WIPO), a specialized agency
attached to the UN with the mandate to promote and protect intellectual property
worldwide, has resorted to soft law as a rapid means of norm creation, in order
"to reflect and respond to the changing needs and demands of its
constituents."39 Other international organizations which have resorted to soft law
include the International Labor Organization and the Food and Agriculture
Organization (in the form of the Codex Alimentarius).40
WHO has resorted to soft law. This was most evident at the time of the Severe
Acute Respiratory Syndrome (SARS) and Avian flu outbreaks.
Although the IHR Resolution does not create new international law binding on
WHO member states, it provides an excellent example of the power of "soft law"
in international relations. International lawyers typically distinguish binding rules
of international law-"hard law"-from non-binding norms, principles, and practices
that influence state behavior-"soft law." WHO has during its existence generated
many soft law norms, creating a "soft law regime" in international governance for
public health.
The "soft law" SARS and IHR Resolutions represent significant steps in laying
the political groundwork for improved international cooperation on infectious
diseases. These resolutions clearly define WHO member states' normative duty
to cooperate fully with other countries and with WHO in connection with
infectious disease surveillance and response to outbreaks.
This duty is neither binding nor enforceable, but, in the wake of the SARS
epidemic, the duty is powerful politically for two reasons. First, the SARS
outbreak has taught the lesson that participating in, and enhancing, international
cooperation on infectious disease controls is in a country's self-interest x x x if
this warning is heeded, the "soft law" in the SARS and IHR Resolution could
inform the development of general and consistent state practice on infectious
disease surveillance and outbreak response, perhaps crystallizing eventually into
customary international law on infectious disease prevention and control.41
In the Philippines, the executive department implemented certain measures
recommended by WHO to address the outbreaks of SARS and Avian flu by
issuing Executive Order (E.O.) No. 201 on April 26, 2003 and E.O. No. 280 on
February 2, 2004, delegating to various departments broad powers to close down
schools/establishments, conduct health surveillance and monitoring, and ban
importation of poultry and agricultural products.
It must be emphasized that even under such an international emergency, the
duty of a state to implement the IHR Resolution was still considered not binding
or enforceable, although said resolutions had great political influence.
As previously discussed, for an international rule to be considered as customary
law, it must be established that such rule is being followed by states because
they consider it obligatory to comply with such rules (opinio juris). Respondents
have not presented any evidence to prove that the WHA Resolutions, although

signed by most of the member states, were in fact enforced or practiced by at least a
majority of the member states; neither have respondents proven that any compliance by
member states with said WHA Resolutions was obligatory in nature.
Respondents failed to establish that the provisions of pertinent WHA Resolutions are
customary international law that may be deemed part of the law of the land.
Consequently, legislation is necessary to transform the provisions of the WHA
Resolutions into domestic law. The provisions of the WHA Resolutions cannot be
considered as part of the law of the land that can be implemented by executive agencies
without the need of a law enacted by the legislature.
Second, the Court will determine whether the DOH may implement the provisions of the
WHA Resolutions by virtue of its powers and functions under the Revised Administrative
Code even in the absence of a domestic law.
Section 3, Chapter 1, Title IX of the Revised Administrative Code of 1987 provides that
the DOH shall define the national health policy and implement a national health plan
within the framework of the government's general policies and plans, and issue orders
and regulations concerning the implementation of established health policies.
It is crucial to ascertain whether the absolute prohibition on advertising and other forms
of promotion of breastmilk substitutes provided in some WHA Resolutions has been
adopted as part of the national health policy.
Respondents submit that the national policy on infant and young child feeding is
embodied in A.O. No. 2005-0014, dated May 23, 2005. Basically, the Administrative
Order declared the following policy guidelines: (1) ideal breastfeeding practices, such as
early initiation of breastfeeding, exclusive breastfeeding for the first six months, extended
breastfeeding up to two years and beyond; (2) appropriate complementary feeding,
which is to start at age six months; (3) micronutrient supplementation; (4) universal salt
iodization; (5) the exercise of other feeding options; and (6) feeding in exceptionally
difficult circumstances. Indeed, the primacy of breastfeeding for children is emphasized
as a national health policy. However, nowhere in A.O. No. 2005-0014 is it declared that
as part of such health policy, the advertisement or promotion of breastmilk substitutes
should be absolutely prohibited.
The national policy of protection, promotion and support of breastfeeding cannot
automatically be equated with a total ban on advertising for breastmilk substitutes.
In view of the enactment of the Milk Code which does not contain a total ban on the
advertising and promotion of breastmilk substitutes, but instead, specifically creates an
IAC which will regulate said advertising and promotion, it follows that a total ban policy
could be implemented only pursuant to a law amending the Milk Code passed by the
constitutionally authorized branch of government, the legislature.
Thus, only the provisions of the Milk Code, but not those of subsequent WHA
Resolutions, can be validly implemented by the DOH through the subject RIRR.
Third, the Court will now determine whether the provisions of the RIRR are in
accordance with those of the Milk Code.
In support of its claim that the RIRR is inconsistent with the Milk Code, petitioner alleges
the following:

117
1. The Milk Code limits its coverage to children 0-12 months old, but the RIRR
extended its coverage to "young children" or those from ages two years old and
old or beyond, and forbids the use of health and nutritional claims. Section 13 of the
beyond:
RIRR, which provides for a "total effect" in the promotion of products within the scope of
MILK CODE
RIRR
the Code, is vague:
WHEREAS, in order to ensure that Section 2. Purpose These Revised
MILK CODE
RIRR
safe and adequate nutrition for
Rules and Regulations are hereby
SECTION 6. The General Public Section 4. Declaration of
infants is provided, there is a need promulgated to ensure the provision of
and Mothers.
Principles The following are
to protect and promote
safe and adequate nutrition for infants
(a) No advertising, promotion or the underlying principles from
breastfeeding and to inform the
and young children by the promotion,
other marketing materials, whether which the revised rules and
public about the proper use of
protection and support of
written, audio or visual,
regulations are premised
breastmilk substitutes and
breastfeeding and by ensuring the
for products within the scope of
upon:
supplements and related products proper use of breastmilk substitutes,
this Code shall be printed,
xxxx
through adequate, consistent and breastmilk supplements and related
published, distributed, exhibited f. Advertising, promotions, or
objective information and
products when these are medically
and broadcast unless such
sponsor-shipsof infant formula,
appropriate regulation of the
indicated and only when necessary,
materials are duly authorized and breastmilk substitutes and
marketing and distribution of the on the basis of adequate information
approved by an inter-agency
other related products are
said substitutes, supplements and and through appropriate marketing
committee created herein
prohibited.
related products;
and distribution.
pursuant to the applicable
Section 11. Prohibition No
SECTION 4(e). "Infant" means a Section 5(ff). "Young Child" means a
standards provided for in this
advertising, promotions,
person falling within the age
person from the age of more than
Code.
sponsorships, or marketing
bracket of 0-12 months.
twelve (12) months up to the age of
materials and activities for
three (3) years (36 months).
breastmilk substitutes
2. The Milk Code recognizes that infant formula may be a proper and possible
intended for infants and young
substitute for breastmilk in certain instances; but the RIRR provides "exclusive
children up to twenty-four (24)
breastfeeding for infants from 0-6 months" and declares that "there is no
months, shall be allowed,
substitute nor replacement for breastmilk":
because they tend to convey
MILK CODE
RIRR
or give subliminal messages
WHEREAS, in order to ensure that Section 4. Declaration of
or impressions that undermine
safe and adequate nutrition
Principles The following are
breastmilk and breastfeeding
for infants is provided, there is a the underlying principles from
or otherwise exaggerate
need to protect and promote
which the revised rules and
breastmilk substitutes and/or
breastfeeding and to inform the
regulations are premised
replacements, as well as
public about the proper use of
upon:
related products covered
breastmilk substitutes and
a. Exclusive breastfeeding is
within the scope of this Code.
supplements and related
for infants from 0 to six (6)
Section 13. "Total Effect" products through adequate,
months.
Promotion of products within
consistent and objective
b. There is no substitute or
the scope of this Code must
information and appropriate
replacement for breastmilk.
be objective and should not
regulation of the marketing and
equate or make the product
distribution of the said substitutes,
appear to be as good or equal
supplements and related products;
to breastmilk or breastfeeding
3. The Milk Code only regulates and does not impose unreasonable
in the advertising concept. It
requirements for advertising and promotion; RIRR imposes an absolute ban on
must not in any case
such activities for breastmilk substitutes intended for infants from 0-24 months
undermine breastmilk or

118
breastfeeding. The "total
effect" should not directly or
indirectly suggest that buying
their product would produce
better individuals, or resulting
in greater love, intelligence,
ability, harmony or in any
manner bring better health to
the baby or other such
exaggerated and
unsubstantiated claim.
Section 15. Content of
Materials. - The following shall
not be included in advertising,
promotional and marketing
materials:
a. Texts, pictures, illustrations
or information which
discourage or tend to
undermine the benefits or
superiority of breastfeeding or
which idealize the use of
breastmilk substitutes and milk
supplements. In this
connection, no pictures of
babies and children together
with their mothers, fathers,
siblings, grandparents, other
relatives or caregivers (or
yayas) shall be used in any
advertisements for infant
formula and breastmilk
supplements;
b. The term "humanized,"
"maternalized," "close to
mother's milk" or similar words
in describing breastmilk
substitutes or milk
supplements;
c. Pictures or texts that
idealize the use of infant and
milk formula.
Section 16. All health and
nutrition claims for products

within the scope of the Code

are absolutely prohibited. For
this purpose, any phrase or
words that connotes to
increase emotional, intellectual
abilities of the infant and
young child and other like
phrases shall not be allowed.
4. The RIRR imposes additional labeling requirements not found in the Milk Code:
MILK CODE
RIRR
SECTION 10. Containers/Label. Section 26. Content Each

container/label shall contain

(a) Containers and/or labels
such message, in both Filipino
shall be designed to provide the and English languages, and
necessary information about the which message cannot be
appropriate use of the products, readily separated therefrom,
and in such a way as not to
relative the following points:
discourage breastfeeding.
(a) The words or phrase
(b) Each container shall have a "Important Notice" or
clear, conspicuous and easily
"Government Warning" or their
readable and understandable
equivalent;
message in Pilipino or English (b) A statement of the superiority
printed on it, or on a label, which of breastfeeding;
message can not readily
(c) A statement that there is no
become separated from it, and substitute for breastmilk;
which shall include the following (d) A statement that the product
points:
shall be used only on the advice
(i) the words "Important Notice" of a health worker as to the
or their equivalent;
need for its use and the proper
(ii) a statement of the superiority methods of use;
of breastfeeding;
(e) Instructions for appropriate
(iii) a statement that the product prepara-tion, and a warning
shall be used only on the advice against the health hazards of
of a health worker as to the
inappropriate preparation; and
need for its use and the proper (f) The health hazards of
methods of use; and
unnecessary or improper use of
(iv) instructions for appropriate infant formula and other related
preparation, and a warning
products including information
against the health hazards of
that powdered infant formula
inappropriate preparation.
may contain pathogenic
microorganisms and must be
prepared and used
appropriately.

5. The Milk Code allows dissemination of information on infant formula to health

professionals; the RIRR totally prohibits such activity:
MILK CODE
RIRR
SECTION 7. Health Care System. Section 22. No
(b) No facility of the health care
manufacturer, distributor,
system shall be used for the purpose or representatives of
of promoting infant formula or other
products covered by the
products within the scope of this
Code shall be allowed to
Code. This Code does not, however, conduct or be involved
preclude the dissemination of
in any activity on
information to health professionals as breastfeeding promotion,
provided in Section 8(b).
education and production
SECTION 8. Health Workers. of Information, Education
(b) Information provided by
and Communication (IEC)
manufacturers and distributors to
materials on
health professionals regarding
breastfeeding, holding of
products within the scope of this Code or participating as
shall be restricted to scientific and
speakers in classes or
factual matters and such information seminars for women and
shall not imply or create a belief that children activities and to
bottle-feeding is equivalent or superior avoid the use of these
to breastfeeding. It shall also include venues to market their
the information specified in Section
brands or company
5(b).
names.
SECTION 16. All health
and nutrition claims for
products within the scope
of the Code are absolutely
prohibited. For this
purpose, any phrase or
words that connotes to
increase emotional,
intellectual abilities of the
infant and young child and
other like phrases shall not
be allowed.
6. The Milk Code permits milk manufacturers and distributors to extend
assistance in research and continuing education of health professionals; RIRR
absolutely forbids the same.
MILK CODE
RIRR
SECTION 8. Health Workers Section 4. Declaration of Principles
hin the scope of this Code may
The following are the underlying principles
from which the revised rules and regulations
gulations promulgated by the
are premised upon:

119
i. Milk companies, and their
representatives,should not form part of any
policymaking body or entity in relation to the
advancement of breasfeeding.
SECTION 22. No manufacturer, distributor, or
representatives of products covered by the
Code shall be allowed to conduct or be
involved in any activity on breastfeeding
promotion, education and production of
Information, Education and Communication
(IEC) materials on breastfeeding, holding of or
participating as speakers in classes or
seminars for women and children activitiesand
to avoid the use of these venues to market
their brands or company names.
SECTION 32. Primary Responsibility of
Health Workers - It is the primary
responsibility of the health workers to
promote, protect and support breastfeeding
and appropriate infant and young child
feeding. Part of this responsibility is to
continuously update their knowledge and
skills on breastfeeding. No assistance,
support, logistics or training from milk
companies shall be permitted.
7. The Milk Code regulates the giving of donations; RIRR absolutely prohibits it.
MILK CODE
RIRR
SECTION 6. The General Public Section 51. Donations Within the
and Mothers.
Scope of This Code - Donations
(f) Nothing herein contained
of products, materials, defined
shall prevent donations from
and covered under the Milk
manufacturers and distributors Code and these implementing
of products within the scope of rules and regulations, shall be
this Code upon request by or
strictly prohibited.
with the approval of the Ministry Section 52. Other Donations By
of Health.
Milk Companies Not Covered by
this Code. - Donations of
products, equipments, and the
like, not otherwise falling within
the scope of this Code or these
Rules, given by milk companies
and their agents,
representatives, whether in kind

120
or in cash, may only be coursed
through the Inter Agency
Committee (IAC), which shall
determine whether such
donation be accepted or
otherwise.
8. The RIRR provides for administrative sanctions not imposed by the Milk Code.
MILK CODE
RIRR
Section 46. Administrative
Sanctions. The following
administrative sanctions shall be
imposed upon any person,
juridical or natural, found to have
violated the provisions of the
Code and its implementing
Rules and Regulations:
a) 1st violation Warning;
b) 2nd violation Administrative
fine of a minimum of Ten
Thousand (P10,000.00) to Fifty
Thousand (P50,000.00) Pesos,
depending on the gravity and
extent of the violation, including
the recall of the offending
product;
c) 3rd violation Administrative
Fine of a minimum of Sixty
Thousand (P60,000.00) to One
Hundred Fifty Thousand
(P150,000.00) Pesos,
depending on the gravity and
extent of the violation, and in
addition thereto, the recall of the
offending product, and
suspension of the Certificate of
Product Registration (CPR);
d) 4th violation Administrative
Fine of a minimum of Two
Hundred Thousand
(P200,000.00) to Five Hundred
(P500,000.00) Thousand Pesos,
depending on the gravity and
extent of the violation; and in
addition thereto, the recall of the

product, revocation of the CPR,

suspension of the License to
Operate (LTO) for one year;
e) 5th and succeeding repeated
violations Administrative Fine
of One Million (P1,000,000.00)
Pesos, the recall of the
offending product, cancellation
of the CPR, revocation of the
License to Operate (LTO) of the
company concerned, including
the blacklisting of the company
to be furnished the Department
of Budget and Management
(DBM) and the Department of
Trade and Industry (DTI);
f) An additional penalty of Two
Thou-sand Five Hundred
(P2,500.00) Pesos per day shall
be made for every day the
violation continues after having
received the order from the IAC
or other such appropriate body,
notifying and penalizing the
company for the infraction.
For purposes of determining
whether or not there is
"repeated" violation, each
product violation belonging or
owned by a company, including
those of their subsidiaries, are
deemed to be violations of the
concerned milk company and
shall not be based on the
specific violating product alone.
9. The RIRR provides for repeal of existing laws to the contrary.
The Court shall resolve the merits of the allegations of petitioner seriatim.
1. Petitioner is mistaken in its claim that the Milk Code's coverage is limited only to
children 0-12 months old. Section 3 of the Milk Code states:
SECTION 3. Scope of the Code The Code applies to the marketing, and practices
related thereto, of the following products: breastmilk substitutes, including infant formula;
other milk products, foods and beverages, including bottle-fed complementary foods,
when marketed or otherwise represented to be suitable, with or without modification, for

121
use as a partial or total replacement of breastmilk; feeding bottles and teats. It
also applies to their quality and availability, and to information concerning their
use.
Clearly, the coverage of the Milk Code is not dependent on the age of the child
but on the kind of product being marketed to the public. The law treats infant
formula, bottle-fed complementary food, and breastmilk substitute as separate
and distinct product categories.
Section 4(h) of the Milk Code defines infant formula as "a breastmilk substitute x
x x to satisfy the normal nutritional requirements of infants up to between four to
six months of age, and adapted to their physiological characteristics"; while under
Section 4(b), bottle-fed complementary food refers to "any food, whether
manufactured or locally prepared, suitable as a complement to breastmilk or
infant formula, when either becomes insufficient to satisfy the nutritional
requirements of the infant." An infant under Section 4(e) is a person falling within
the age bracket 0-12 months. It is the nourishment of this group of infants or
children aged 0-12 months that is sought to be promoted and protected by the
Milk Code.
But there is another target group. Breastmilk substitute is defined under Section
4(a) as "any food being marketed or otherwise presented as a partial or total
replacement for breastmilk, whether or not suitable for that purpose."This section
conspicuously lacks reference to any particular age-group of children. Hence, the
provision of the Milk Code cannot be considered exclusive for children aged 0-12
months. In other words, breastmilk substitutes may also be intended for young
children more than 12 months of age. Therefore, by regulating breastmilk
substitutes, the Milk Code also intends to protect and promote the nourishment of
children more than 12 months old.
Evidently, as long as what is being marketed falls within the scope of the Milk
Code as provided in Section 3, then it can be subject to regulation pursuant to
said law, even if the product is to be used by children aged over 12 months.
There is, therefore, nothing objectionable with Sections 242 and 5(ff)43 of the
RIRR.
2. It is also incorrect for petitioner to say that the RIRR, unlike the Milk Code,
does not recognize that breastmilk substitutes may be a proper and possible
substitute for breastmilk.
The entirety of the RIRR, not merely truncated portions thereof, must be
considered and construed together. As held in De Luna v. Pascual,44 "[t]he
particular words, clauses and phrases in the Rule should not be studied as
detached and isolated expressions, but the whole and every part thereof must be
considered in fixing the meaning of any of its parts and in order to produce a
harmonious whole."
Section 7 of the RIRR provides that "when medically indicated and only when
necessary, the use of breastmilk substitutes is proper if based on complete and
updated information." Section 8 of the RIRR also states that information and

educational materials should include information on the proper use of infant formula
when the use thereof is needed.
Hence, the RIRR, just like the Milk Code, also recognizes that in certain cases, the use
of breastmilk substitutes may be proper.
3. The Court shall ascertain the merits of allegations 345 and 446 together as they are
interlinked with each other.
To resolve the question of whether the labeling requirements and advertising regulations
under the RIRR are valid, it is important to deal first with the nature, purpose, and depth
of the regulatory powers of the DOH, as defined in general under the 1987 Administrative
Code,47 and as delegated in particular under the Milk Code.
Health is a legitimate subject matter for regulation by the DOH (and certain other
administrative agencies) in exercise of police powers delegated to it. The sheer span of
jurisprudence on that matter precludes the need to further discuss it..48 However, health
information, particularly advertising materials on apparently non-toxic products like
breastmilk substitutes and supplements, is a relatively new area for regulation by the
DOH.49
As early as the 1917 Revised Administrative Code of the Philippine Islands,50 health
information was already within the ambit of the regulatory powers of the predecessor of
DOH.51 Section 938 thereof charged it with the duty to protect the health of the people,
and vested it with such powers as "(g) the dissemination of hygienic information among
the people and especially the inculcation of knowledge as to the proper care of
infantsand the methods of preventing and combating dangerous communicable
diseases."
Seventy years later, the 1987 Administrative Code tasked respondent DOH to carry out
the state policy pronounced under Section 15, Article II of the 1987 Constitution, which is
"to protect and promote the right to health of the people and instill health
consciousness among them."52 To that end, it was granted under Section 3 of the
Administrative Code the power to "(6) propagate health information and educate the
populationon important health, medical and environmental matters which have health
implications."53
When it comes to information regarding nutrition of infants and young children, however,
the Milk Code specifically delegated to the Ministry of Health (hereinafter referred to as
DOH) the power to ensure that there is adequate, consistent and objective information
on breastfeeding and use of breastmilk substitutes, supplements and related products;
and the power to control such information. These are expressly provided for in Sections
12 and 5(a), to wit:
SECTION 12. Implementation and Monitoring
xxxx
(b) The Ministry of Health shall be principally responsible for the implementation and
enforcement of the provisions of this Code. For this purpose, the Ministry of Health shall
have the following powers and functions:
(1) To promulgate such rules and regulations as are necessary or proper for the
implementation of this Code and the accomplishment of its purposes and objectives.

122
xxxx
(4) To exercise such other powers and functions as may be necessary for or
incidental to the attainment of the purposes and objectives of this Code.
SECTION 5. Information and Education
(a) The government shall ensure that objective and consistent information is
provided on infant feeding, for use by families and those involved in the field of
infant nutrition. This responsibility shall cover the planning, provision, design and
dissemination of information, and the control thereof, on infant nutrition.
(Emphasis supplied)
Further, DOH is authorized by the Milk Code to control the content of any
information on breastmilk vis--visbreastmilk substitutes, supplement and related
products, in the following manner:
SECTION 5. x x x
(b) Informational and educational materials, whether written, audio, or visual,
dealing with the feeding of infants and intended to reach pregnant women and
mothers of infants, shall include clear information on all the following points: (1)
the benefits and superiority of breastfeeding; (2) maternal nutrition, and the
preparation for and maintenance of breastfeeding; (3) the negative effect on
breastfeeding of introducing partial bottlefeeding; (4) the difficulty of reversing the
decision not to breastfeed; and (5) where needed, the proper use of infant
formula, whether manufactured industrially or home-prepared. When such
materials contain information about the use of infant formula, they shall include
the social and financial implications of its use; the health hazards of inappropriate
foods or feeding methods; and, in particular, the health hazards of unnecessary
or improper use of infant formula and other breastmilk substitutes. Such
materials shall not use any picture or text which may idealize the use of
breastmilk substitutes.
SECTION 8. Health Workers
xxxx
(b) Information provided by manufacturers and distributors to health
professionals regarding products within the scope of this Code shall be restricted
to scientific and factual matters, and such information shall not imply or create a
belief that bottlefeeding is equivalent or superior to breastfeeding. It shall also
include the information specified in Section 5(b).
SECTION 10. Containers/Label
(a) Containers and/or labels shall be designed to provide the necessary
information about the appropriate use of the products, and in such a way as not
to discourage breastfeeding.
xxxx
(d) The term "humanized," "maternalized" or similar terms shall not be used.
(Emphasis supplied)
The DOH is also authorized to control the purpose of the information and to
whom such information may be disseminated under Sections 6 through 9 of the
Milk Code54 to ensure that the information that would reach pregnant women,

mothers of infants, and health professionals and workers in the health care system is
restricted to scientific and factual matters and shall not imply or create a belief that
bottlefeeding is equivalent or superior to breastfeeding.
It bears emphasis, however, that the DOH's power under the Milk Code
to control information regarding breastmilk vis-a-vis breastmilk substitutes is not
absolute as the power to control does not encompass the power to absolutely prohibit
the advertising, marketing, and promotion of breastmilk substitutes.
The following are the provisions of the Milk Code that unequivocally indicate that the
control over information given to the DOH is not absolute and that absolute prohibition is
not contemplated by the Code:
a) Section 2 which requires adequate information and appropriate marketing and
distribution of breastmilk substitutes, to wit:
SECTION 2. Aim of the Code The aim of the Code is to contribute to the provision of
safe and adequate nutrition for infants by the protection and promotion of breastfeeding
and by ensuring the proper use of breastmilk substitutes and breastmilk supplements
when these are necessary, on the basis of adequate information and through appropriate
marketing and distribution.
b) Section 3 which specifically states that the Code applies to the marketing of and
practices related to breastmilk substitutes, including infant formula, and to information
concerning their use;
c) Section 5(a) which provides that the government shall ensure that objective and
consistent information is provided on infant feeding;
d) Section 5(b) which provides that written, audio or visual informational and educational
materials shall not use any picture or text which may idealize the use of breastmilk
substitutes and should include information on the health hazards of unnecessary or
improper use of said product;
e) Section 6(a) in relation to Section 12(a) which creates and empowers the IAC to
review and examine advertising, promotion, and other marketing materials;
f) Section 8(b) which states that milk companies may provide information to health
professionals but such information should be restricted to factual and scientific matters
and shall not imply or create a belief that bottlefeeding is equivalent or superior to
breastfeeding; and
g) Section 10 which provides that containers or labels should not contain information that
would discourage breastfeeding and idealize the use of infant formula.
It is in this context that the Court now examines the assailed provisions of the RIRR
regarding labeling and advertising.
Sections 1355 on "total effect" and 2656 of Rule VII of the RIRR contain some labeling
requirements, specifically: a) that there be a statement that there is no substitute to
breastmilk; and b) that there be a statement that powdered infant formula may contain
pathogenic microorganisms and must be prepared and used appropriately. Section
1657 of the RIRR prohibits all health and nutrition claims for products within the scope of
the Milk Code, such as claims of increased emotional and intellectual abilities of the
infant and young child.

These requirements and limitations are consistent with the provisions of Section
8 of the Milk Code, to wit:
SECTION 8. Health workers xxxx
(b) Information provided by manufacturers and distributors to health
professionals regarding products within the scope of this Code shall be restricted
to scientific and factual matters, and such informationshall not imply or create a
belief that bottlefeeding is equivalent or superior to breastfeeding. It shall also
include the information specified in Section 5.58 (Emphasis supplied)
and Section 10(d)59 which bars the use on containers and labels of the terms
"humanized," "maternalized," or similar terms.
These provisions of the Milk Code expressly forbid information that would imply
or create a belief that there is any milk product equivalent to breastmilk or which
is humanized or maternalized, as such information would be inconsistent with the
superiority of breastfeeding.
It may be argued that Section 8 of the Milk Code refers only to information given
to health workers regarding breastmilk substitutes, not to containers and labels
thereof. However, such restrictive application of Section 8(b) will result in the
absurd situation in which milk companies and distributors are forbidden to claim
to health workers that their products are substitutes or equivalents of breastmilk,
and yet be allowed to display on the containers and labels of their products the
exact opposite message. That askewed interpretation of the Milk Code is
precisely what Section 5(a) thereof seeks to avoid by mandating that all
information regarding breastmilk vis-a-visbreastmilk substitutes be consistent, at
the same time giving the government control over planning, provision, design,
and dissemination of information on infant feeding.
Thus, Section 26(c) of the RIRR which requires containers and labels to state
that the product offered is not a substitute for breastmilk, is a reasonable means
of enforcing Section 8(b) of the Milk Code and deterring circumvention of the
protection and promotion of breastfeeding as embodied in Section 260 of the Milk
Code.
Section 26(f)61 of the RIRR is an equally reasonable labeling requirement. It
implements Section 5(b) of the Milk Code which reads:
SECTION 5. x x x
xxxx
(b) Informational and educational materials, whether written, audio, or visual,
dealing with the feeding of infants and intended to reach pregnant women and
mothers of infants, shall include clear information on all the following points: x x x
(5) where needed, the proper use of infant formula, whether manufactured
industrially or home-prepared. When such materials contain information about
the use of infant formula, they shall include the social and financial implications of
its use; the health hazards of inappropriate foods or feeding methods; and, in
particular, the health hazards of unnecessary or improper use of infant formula
and other breastmilk substitutes. Such materials shall not use any picture or text

Minister of Health
Minister of Trade and Industry
Minister of Justice
Minister of Social Services and
Development

-------------------------------------------------------------------------

Chairman
Member
Member
Member

123

which
may
idealize
the
use of breastmilk substitutes. (Emphasis supplied)
The label of a product contains information about said product intended for the buyers
thereof. The buyers of breastmilk substitutes are mothers of infants, and Section 26 of
the RIRR merely adds a fair warning about the likelihood of pathogenic microorganisms
being present in infant formula and other related products when these are prepared and
used inappropriately.
Petitioners counsel has admitted during the hearing on June 19, 2007 that formula milk
is prone to contaminations and there is as yet no technology that allows production of
powdered infant formula that eliminates all forms of contamination.62
Ineluctably, the requirement under Section 26(f) of the RIRR for the label to contain the
message regarding health hazards including the possibility of contamination with
pathogenic microorganisms is in accordance with Section 5(b) of the Milk Code.
The authority of DOH to control information regarding breastmilk vis-a-vis breastmilk
substitutes and supplements and related products cannot be questioned. It is its
intervention into the area of advertising, promotion, and marketing that is being assailed
by petitioner.

In furtherance of Section 6(a) of the Milk Code, to wit:

SECTION 6. The General Public and Mothers.
(a) No advertising, promotion or other marketing materials, whether written, audio or
visual, for products within the scope of this Code shall be printed, published, distributed,
exhibited and broadcast unless such materials are duly authorized and approved by an
inter-agency committee created herein pursuant to the applicable standards provided for
in this Code.
the Milk Code invested regulatory authority over advertising, promotional and marketing
materials to an IAC, thus:
SECTION 12. Implementation and Monitoring (a) For purposes of Section 6(a) of this Code, an inter-agency committee composed of
the following members is hereby created:
The members may designate their duly authorized representative to every meeting of the
Committee.
The Committee shall have the following powers and functions:
(1) To review and examine all advertising. promotion or other marketing materials,
whether written, audio or visual, on products within the scope of this Code;
(2) To approve or disapprove, delete objectionable portions from and prohibit the printing,
publication, distribution, exhibition and broadcast of, all advertising promotion or other
marketing materials, whether written, audio or visual, on products within the scope of this
Code;

124
(3) To prescribe the internal and operational procedure for the exercise of its
powers and functions as well as the performance of its duties and
responsibilities; and
(4) To promulgate such rules and regulations as are necessary or proper for the
implementation of Section 6(a) of this Code. x x x (Emphasis supplied)
However, Section 11 of the RIRR, to wit:
SECTION 11. Prohibition No advertising, promotions, sponsorships, or
marketing materials and activities for breastmilk substitutes intended for infants
and young children up to twenty-four (24) months, shall be allowed, because they
tend to convey or give subliminal messages or impressions that undermine
breastmilk and breastfeeding or otherwise exaggerate breastmilk substitutes
and/or replacements, as well as related products covered within the scope of this
Code.
prohibits advertising, promotions, sponsorships or marketing materials and
activities for breastmilk substitutes in line with the RIRRs declaration of principle
under Section 4(f), to wit:
SECTION 4. Declaration of Principles
xxxx
(f) Advertising, promotions, or sponsorships of infant formula, breastmilk
substitutes and other related products are prohibited.
The DOH, through its co-respondents, evidently arrogated to itself not only the
regulatory authority given to the IAC but also imposed absolute prohibition on
advertising, promotion, and marketing.
Yet, oddly enough, Section 12 of the RIRR reiterated the requirement of the Milk
Code in Section 6 thereof for prior approval by IAC of all advertising, marketing
and promotional materials prior to dissemination.
Even respondents, through the OSG, acknowledged the authority of IAC, and
repeatedly insisted, during the oral arguments on June 19, 2007, that the
prohibition under Section 11 is not actually operational, viz:
SOLICITOR GENERAL DEVANADERA:
xxxx
x x x Now, the crux of the matter that is being questioned by Petitioner is whether
or not there is an absolute prohibition on advertising making AO 2006-12
unconstitutional. We maintained that what AO 2006-12 provides is not an
absolute prohibition because Section 11 while it states and it is entitled
prohibition it states that no advertising, promotion, sponsorship or marketing
materials and activities for breast milk substitutes intended for infants and young
children up to 24 months shall be allowed because this is the standard they tend
to convey or give subliminal messages or impression undermine that breastmilk
or breastfeeding x x x.
We have to read Section 11 together with the other Sections because the other
Section, Section 12, provides for the inter agency committee that is empowered
to process and evaluate all the advertising and promotion materials.
xxxx

What AO 2006-12, what it does, it does not prohibit the sale and manufacture, it simply
regulates the advertisement and the promotions of breastfeeding milk substitutes.
xxxx
Now, the prohibition on advertising, Your Honor, must be taken together with the
provision on the Inter-Agency Committee that processes and evaluates because there
may be some information dissemination that are straight forward information
dissemination. What the AO 2006 is trying to prevent is any material that will undermine
the practice of breastfeeding, Your Honor.
xxxx
ASSOCIATE JUSTICE SANTIAGO:
Madam Solicitor General, under the Milk Code, which body has authority or power to
promulgate Rules and Regulations regarding the Advertising, Promotion and Marketing
of Breastmilk Substitutes?
SOLICITOR GENERAL DEVANADERA:
Your Honor, please, it is provided that the Inter-Agency Committee, Your Honor.
xxxx
ASSOCIATE JUSTICE SANTIAGO:
x x x Don't you think that the Department of Health overstepped its rule making authority
when it totally banned advertising and promotion under Section 11 prescribed the total
effect rule as well as the content of materials under Section 13 and 15 of the rules and
regulations?
SOLICITOR GENERAL DEVANADERA:
Your Honor, please, first we would like to stress that there is no total absolute ban.
Second, the Inter-Agency Committee is under the Department of Health, Your Honor.
xxxx
ASSOCIATE JUSTICE NAZARIO:
x x x Did I hear you correctly, Madam Solicitor, that there is no absolute ban on
advertising of breastmilk substitutes in the Revised Rules?
SOLICITOR GENERAL DEVANADERA:
Yes, your Honor.
ASSOCIATE JUSTICE NAZARIO:
But, would you nevertheless agree that there is an absolute ban on advertising of
breastmilk substitutes intended for children two (2) years old and younger?
SOLICITOR GENERAL DEVANADERA:
It's not an absolute ban, Your Honor, because we have the Inter-Agency Committee that
can evaluate some advertising and promotional materials, subject to the standards that
we have stated earlier, which are- they should not undermine breastfeeding, Your Honor.
xxxx
x x x Section 11, while it is titled Prohibition, it must be taken in relation with the other
Sections, particularly 12 and 13 and 15, Your Honor, because it is recognized that the
Inter-Agency Committee has that power to evaluate promotional materials, Your Honor.
ASSOCIATE JUSTICE NAZARIO:

125
So in short, will you please clarify there's no absolute ban on advertisement
regarding milk substitute regarding infants two (2) years below?
SOLICITOR GENERAL DEVANADERA:
We can proudly say that the general rule is that there is a prohibition, however,
we take exceptions and standards have been set. One of which is that, the InterAgency Committee can allow if the advertising and promotions will not undermine
breastmilk and breastfeeding, Your Honor.63
Sections 11 and 4(f) of the RIRR are clearly violative of the Milk Code.
However, although it is the IAC which is authorized to promulgate rules and
regulations for the approval or rejection of advertising, promotional, or other
marketing materials under Section 12(a) of the Milk Code, said provision must be
related to Section 6 thereof which in turn provides that the rules and regulations
must be "pursuant to the applicable standards provided for in this Code." Said
standards are set forth in Sections 5(b), 8(b), and 10 of the Code, which, at the
risk of being repetitious, and for easy reference, are quoted hereunder:
SECTION 5. Information and Education
xxxx
(b) Informational and educational materials, whether written, audio, or visual,
dealing with the feeding of infants and intended to reach pregnant women and
mothers of infants, shall include clear information on all the following points: (1)
the benefits and superiority of breastfeeding; (2) maternal nutrition, and the
preparation for and maintenance of breastfeeding; (3) the negative effect on
breastfeeding of introducing partial bottlefeeding; (4) the difficulty of reversing the
decision not to breastfeed; and (5) where needed, the proper use of infant
formula, whether manufactured industrially or home-prepared. When such
materials contain information about the use of infant formula, they shall include
the social and financial implications of its use; the health hazards of inappropriate
foods of feeding methods; and, in particular, the health hazards of unnecessary
or improper use of infant formula and other breastmilk substitutes. Such
materials shall not use any picture or text which may idealize the use of
breastmilk substitutes.
xxxx
SECTION 8. Health Workers.
xxxx
(b) Information provided by manufacturers and distributors to health
professionals regarding products within the scope of this Code shall be restricted
to scientific and factual matters and such information shall not imply or create a
belief that bottle feeding is equivalent or superior to breastfeeding. It shall also
include the information specified in Section 5(b).
xxxx
SECTION 10. Containers/Label
(a) Containers and/or labels shall be designed to provide the necessary
information about the appropriate use of the products, and in such a way as not
to discourage breastfeeding.

(b) Each container shall have a clear, conspicuous and easily readable and
understandable message in Pilipino or English printed on it, or on a label, which
message can not readily become separated from it, and which shall include the following
points:
(i) the words "Important Notice" or their equivalent;
(ii) a statement of the superiority of breastfeeding;
(iii) a statement that the product shall be used only on the advice of a health worker as to
the need for its use and the proper methods of use; and
(iv) instructions for appropriate preparation, and a warning against the health hazards of
inappropriate preparation.
Section 12(b) of the Milk Code designates the DOH as the principal implementing
agency for the enforcement of the provisions of the Code. In relation to such
responsibility of the DOH, Section 5(a) of the Milk Code states that:
SECTION 5. Information and Education
(a) The government shall ensure that objective and consistent information is provided on
infant feeding, for use by families and those involved in the field of infant nutrition. This
responsibility shall cover the planning, provision, design and dissemination of
information, and the control thereof, on infant nutrition. (Emphasis supplied)
Thus, the DOH has the significant responsibility to translate into operational terms the
standards set forth in Sections 5, 8, and 10 of the Milk Code, by which the IAC shall
screen advertising, promotional, or other marketing materials.
It is pursuant to such responsibility that the DOH correctly provided for Section 13 in the
RIRR which reads as follows:
SECTION 13. "Total Effect" - Promotion of products within the scope of this Code must
be objective and should not equate or make the product appear to be as good or equal to
breastmilk or breastfeeding in the advertising concept. It must not in any case undermine
breastmilk or breastfeeding. The "total effect" should not directly or indirectly suggest that
buying their product would produce better individuals, or resulting in greater love,
intelligence, ability, harmony or in any manner bring better health to the baby or other
such exaggerated and unsubstantiated claim.
Such standards bind the IAC in formulating its rules and regulations on advertising,
promotion, and marketing. Through that single provision, the DOH exercises control over
the information content of advertising, promotional and marketing materials on
breastmilk vis-a-vis breastmilk substitutes, supplements and other related products. It
also sets a viable standard against which the IAC may screen such materials before they
are made public.
In Equi-Asia Placement, Inc. vs. Department of Foreign Affairs,64 the Court held:
x x x [T]his Court had, in the past, accepted as sufficient standards the following: "public
interest," "justice and equity," "public convenience and welfare," and "simplicity, economy
and welfare."65
In this case, correct information as to infant feeding and nutrition is infused with public
interest and welfare.

126
4. With regard to activities for dissemination of information to health
professionals, the Court also finds that there is no inconsistency between the
provisions of the Milk Code and the RIRR. Section 7(b)66 of the Milk Code, in
relation to Section 8(b)67 of the same Code, allows dissemination of
information to health professionals but suchinformation is restricted to scientific
and factual matters.
Contrary to petitioner's claim, Section 22 of the RIRR does not prohibit the giving
of information to health professionals on scientific and factual matters. What it
prohibits is the involvement of the manufacturer and distributor of the products
covered by the Code in activities for the promotion, education and production of
Information, Education and Communication (IEC) materials regarding
breastfeeding that are intended forwomen and children. Said provision cannot be
construed to encompass even the dissemination of information to health
professionals, as restricted by the Milk Code.
5. Next, petitioner alleges that Section 8(e)68 of the Milk Code permits milk
manufacturers and distributors to extend assistance in research and in the
continuing education of health professionals, while Sections 22 and 32 of the
RIRR absolutely forbid the same. Petitioner also assails Section 4(i)69 of the
RIRR prohibiting milk manufacturers' and distributors' participation in any
policymaking body in relation to the advancement of breastfeeding.
Section 4(i) of the RIRR provides that milk companies and their representatives
should not form part of any policymaking body or entity in relation to the
advancement of breastfeeding. The Court finds nothing in said provisions which
contravenes the Milk Code. Note that under Section 12(b) of the Milk Code, it
is the DOH which shall be principally responsible for the implementation and
enforcement of the provisions of said Code. It is entirely up to the DOH to decide
which entities to call upon or allow to be part of policymaking bodies on
breastfeeding. Therefore, the RIRR's prohibition on milk companies participation
in any policymaking body in relation to the advancement of breastfeeding is in
accord with the Milk Code.
Petitioner is also mistaken in arguing that Section 22 of the RIRR prohibits milk
companies from giving reasearch assistance and continuing education to health
professionals. Section 2270 of the RIRR does not pertain to research assistance
to or the continuing education of health professionals; rather, it deals with
breastfeeding promotion and education for women and children. Nothing in
Section 22 of the RIRR prohibits milk companies from giving assistance for
research or continuing education to health professionals; hence, petitioner's
argument against this particular provision must be struck down.
It is Sections 971 and 1072 of the RIRR which govern research assistance. Said
sections of the RIRR provide thatresearch assistance for health workers and
researchers may be allowed upon approval of an ethics committee, and with
certain disclosure requirements imposed on the milk company and on the
recipient of the research award.

The Milk Code endows the DOH with the power to determine how such research or
educational assistance may be given by milk companies or under what conditions health
workers may accept the assistance. Thus, Sections 9 and 10 of the RIRR imposing
limitations on the kind of research done or extent of assistance given by milk companies
are completely in accord with the Milk Code.
Petitioner complains that Section 3273 of the RIRR prohibits milk companies from giving
assistance, support, logistics or training to health workers. This provision is within the
prerogative given to the DOH under Section 8(e)74 of the Milk Code, which provides that
manufacturers and distributors of breastmilk substitutes may assist in researches,
scholarships and the continuing education, of health professionals in accordance with the
rules and regulations promulgated by the Ministry of Health, now DOH.
6. As to the RIRR's prohibition on donations, said provisions are also consistent with the
Milk Code. Section 6(f) of the Milk Code provides that donations may be made by
manufacturers and distributors of breastmilk substitutesupon the request or with the
approval of the DOH. The law does not proscribe the refusal of donations. The Milk Code
leaves it purely to the discretion of the DOH whether to request or accept such
donations. The DOH then appropriately exercised its discretion through Section 5175 of
the RIRR which sets forth its policy not to request or approve donations from
manufacturers and distributors of breastmilk substitutes.
It was within the discretion of the DOH when it provided in Section 52 of the RIRR that
any donation from milk companies not covered by the Code should be coursed through
the IAC which shall determine whether such donation should be accepted or refused. As
reasoned out by respondents, the DOH is not mandated by the Milk Code to accept
donations. For that matter, no person or entity can be forced to accept a donation. There
is, therefore, no real inconsistency between the RIRR and the law because the Milk
Code does not prohibit the DOH from refusing donations.
7. With regard to Section 46 of the RIRR providing for administrative sanctions that are
not found in the Milk Code, the Court upholds petitioner's objection thereto.
Respondent's reliance on Civil Aeronautics Board v. Philippine Air Lines, Inc.76 is
misplaced. The glaring difference in said case and the present case before the Court is
that, in the Civil Aeronautics Board, the Civil Aeronautics Administration (CAA)
was expressly granted by the law (R.A. No. 776) the power to impose fines and civil
penalties, while the Civil Aeronautics Board (CAB) was granted by the same law the
power to review on appeal the order or decision of the CAA and to determine whether to
impose, remit, mitigate, increase or compromise such fine and civil penalties. Thus, the
Court upheld the CAB's Resolution imposing administrative fines.
In a more recent case, Perez v. LPG Refillers Association of the Philippines, Inc.,77 the
Court upheld the Department of Energy (DOE) Circular No. 2000-06-10
implementing Batas Pambansa (B.P.) Blg. 33. The circular provided for fines for the
commission of prohibited acts. The Court found that nothing in the circular contravened
the law because the DOE was expressly authorized by B.P. Blg. 33 and R.A. No. 7638 to
impose fines or penalties.

127
In the present case, neither the Milk Code nor the Revised Administrative Code
grants the DOH the authority to fix or impose administrative fines. Thus, without
any express grant of power to fix or impose such fines, the DOH cannot provide
for those fines in the RIRR. In this regard, the DOH again exceeded its authority
by providing for such fines or sanctions in Section 46 of the RIRR. Said provision
is, therefore, null and void.
The DOH is not left without any means to enforce its rules and regulations.
Section 12(b) (3) of the Milk Code authorizes the DOH to "cause the prosecution
of the violators of this Code and other pertinent laws on products covered by this
Code." Section 13 of the Milk Code provides for the penalties to be imposed on
violators of the provision of the Milk Code or the rules and regulations issued
pursuant to it, to wit:
SECTION 13. Sanctions
(a) Any person who violates the provisions of this Code or the rules and
regulations issued pursuant to this Code shall, upon conviction, be punished by a
penalty of two (2) months to one (1) year imprisonment or a fine of not less than
One Thousand Pesos (P1,000.00) nor more than Thirty Thousand Pesos
(P30,000.00) or both. Should the offense be committed by a juridical person, the
chairman of the Board of Directors, the president, general manager, or the
partners and/or the persons directly responsible therefor, shall be penalized.
(b) Any license, permit or authority issued by any government agency to any
health worker, distributor, manufacturer, or marketing firm or personnel for the
practice of their profession or occupation, or for the pursuit of their business,
may, upon recommendation of the Ministry of Health, be suspended or revoked
in the event of repeated violations of this Code, or of the rules and regulations
issued pursuant to this Code. (Emphasis supplied)
8. Petitioners claim that Section 57 of the RIRR repeals existing laws that are
contrary to the RIRR is frivolous.
Section 57 reads:
SECTION 57. Repealing Clause - All orders, issuances, and rules and
regulations or parts thereof inconsistent with these revised rules and
implementing regulations are hereby repealed or modified accordingly.
Section 57 of the RIRR does not provide for the repeal of laws but only orders,
issuances and rules and regulations. Thus, said provision is valid as it is within
the DOH's rule-making power.
An administrative agency like respondent possesses quasi-legislative or rulemaking power or the power to make rules and regulations which results in
delegated legislation that is within the confines of the granting statute and the
Constitution, and subject to the doctrine of non-delegability and separability of
powers.78 Such express grant of rule-making power necessarily includes the
power to amend, revise, alter, or repeal the same.79 This is to allow
administrative agencies flexibility in formulating and adjusting the details and
manner by which they are to implement the provisions of a law,80 in order to
make it more responsive to the times. Hence, it is a standard provision in

administrative rules that prior issuances of administrative agencies that are inconsistent
therewith are declared repealed or modified.
In fine, only Sections 4(f), 11 and 46 are ultra vires, beyond the authority of the DOH to
promulgate and in contravention of the Milk Code and, therefore, null and void. The rest
of the provisions of the RIRR are in consonance with the Milk Code.
Lastly, petitioner makes a "catch-all" allegation that:
x x x [T]he questioned RIRR sought to be implemented by the Respondents
is unnecessary and oppressive, and is offensive to the due process clause of the
Constitution, insofar as the same is in restraint of trade and because a provision therein
is inadequate to provide the public with a comprehensible basis to determine whether or
not they have committed a violation.81 (Emphasis supplied)
Petitioner refers to Sections 4(f),82 4(i),83 5(w),84 11,85 22,86 32,87 46,88 and 5289 as
the provisions that suppress the trade of milk and, thus, violate the due process clause of
the Constitution.
The framers of the constitution were well aware that trade must be subjected to some
form of regulation for the public good. Public interest must be upheld over business
interests.90 In Pest Management Association of the Philippines v. Fertilizer and Pesticide
Authority,91 it was held thus:
x x x Furthermore, as held in Association of Philippine Coconut Desiccators v. Philippine
Coconut Authority,despite the fact that "our present Constitution enshrines free enterprise
as a policy, it nonetheless reserves to the government the power to intervene whenever
necessary to promote the general welfare." There can be no question that the
unregulated use or proliferation of pesticides would be hazardous to our environment.
Thus, in the aforecited case, the Court declared that "free enterprise does not call for
removal of protective regulations." x x x It must be clearly explained and proven by
competent evidence just exactly how such protective regulation would result in the
restraint of trade. [Emphasis and underscoring supplied]
In this case, petitioner failed to show that the proscription of milk manufacturers
participation in any policymaking body (Section 4(i)), classes and seminars for women
and children (Section 22); the giving of assistance, support and logistics or training
(Section 32); and the giving of donations (Section 52) would unreasonably hamper the
trade of breastmilk substitutes. Petitioner has not established that the proscribed
activities are indispensable to the trade of breastmilk substitutes. Petitioner failed to
demonstrate that the aforementioned provisions of the RIRR are unreasonable and
oppressive for being in restraint of trade.
Petitioner also failed to convince the Court that Section 5(w) of the RIRR is unreasonable
and oppressive. Said section provides for the definition of the term "milk company," to
wit:
SECTION 5 x x x. (w) "Milk Company" shall refer to the owner, manufacturer, distributor
of infant formula, follow-up milk, milk formula, milk supplement, breastmilk substitute or
replacement, or by any other description of such nature, including their representatives
who promote or otherwise advance their commercial interests in marketing those
products;

128
On the other hand, Section 4 of the Milk Code provides:
(d) "Distributor" means a person, corporation or any other entity in the public or
private sector engaged in the business (whether directly or indirectly) of
marketing at the wholesale or retail level a product within the scope of this Code.
A "primary distributor" is a manufacturer's sales agent, representative, national
distributor or broker.
xxxx
(j) "Manufacturer" means a corporation or other entity in the public or private
sector engaged in the business or function (whether directly or indirectly or
through an agent or and entity controlled by or under contract with it) of
manufacturing a products within the scope of this Code.
Notably, the definition in the RIRR merely merged together under the term "milk
company" the entities defined separately under the Milk Code as "distributor" and
"manufacturer." The RIRR also enumerated in Section 5(w) the products
manufactured or distributed by an entity that would qualify it as a "milk company,"
whereas in the Milk Code, what is used is the phrase "products within the scope
of this Code." Those are the only differences between the definitions given in the
Milk Code and the definition as re-stated in the RIRR.
Since all the regulatory provisions under the Milk Code apply equally to both
manufacturers and distributors, the Court sees no harm in the RIRR providing for
just one term to encompass both entities. The definition of "milk company" in the
RIRR and the definitions of "distributor" and "manufacturer" provided for under
the Milk Code are practically the same.
The Court is not convinced that the definition of "milk company" provided in the
RIRR would bring about any change in the treatment or regulation of
"distributors" and "manufacturers" of breastmilk substitutes, as defined under the
Milk Code.
Except Sections 4(f), 11 and 46, the rest of the provisions of the RIRR are in
consonance with the objective, purpose and intent of the Milk Code, constituting
reasonable regulation of an industry which affects public health and welfare and,
as such, the rest of the RIRR do not constitute illegal restraint of trade nor are
they violative of the due process clause of the Constitution.
WHEREFORE, the petition is PARTIALLY GRANTED. Sections 4(f), 11 and 46 of
Administrative Order No. 2006-0012 dated May 12, 2006 are
declared NULL and VOID for being ultra vires. The Department of Health and
respondents are PROHIBITED from implementing said provisions.
The Temporary Restraining Order issued on August 15, 2006 is LIFTED insofar
as the rest of the provisions of Administrative Order No. 2006-0012 is concerned.
SO ORDERED.
Puno, (Chief Justice), Quisumbing, Ynares-Santiago, Sandoval-Gutierrez,
Carpio, Corona, Carpio-Morales, Azcuna, Tinga, Chico-Nazario, Garcia, Velasco,
Jr., Nachura, Reyes, JJ., concur.

Republic of the Philippines

SUPREME COURT
Manila
EN BANC
A.M. No. 93-2-037 SC April 6, 1995
IN RE Emil (Emiliano) P. JURADO Ex Rel.: Philippine Long Distance Telephone
Company (PLDT), per its First Vice-President, Mr. Vicente R. Samson, appellant,
NARVASA, C.J.:
Liability for published statements demonstrably false or misleading, and derogatory of
the courts and individual judges, is what is involved in the proceeding at bar than
which, upon its facts, there is perhaps no more appropriate setting for an inquiry into the
limits of press freedom as it relates to public comment about the courts and their
workings within a constitutional order.
1. Basic Postulates
To resolve the issue raised by those facts, application of fairly elementary and selfevident postulates is all that is needed, these being:
1) that the utterance or publication by a person of falsehood or half-truths, or of slanted
or distorted versions of facts or accusations which he made no bona fide effort
previously to verify, and which he does not or disdains to prove cannot be justified as
a legitimate exercise of the freedom of speech and of the press guaranteed by the
Constitution, and cannot be deemed an activity shielded from sanction by that
constitutional guaranty;
2) that such utterance or publication is also violative of "The Philippine Journalist's Code
of Ethics" which inter alia commands the journalist to "scrupulously report and interpret
the news, taking care not to suppress essential facts nor to distort the truth by improper
omission or emphasis," and makes it his duty "to air the other side and to correct
substantive errors promptly;" 1
3) that such an utterance or publication, when it is offensive to the dignity and reputation
of a Court or of the judge presiding over it or degrades or tends to place the courts in
disrepute and disgrace or otherwise to debase the administration of justice, constitutes
contempt of court and is punishable as such after due proceedings; and
4) that prescinding from the obvious proposition that any aggrieved party may file a
complaint to declare the utterer or writer in contempt, the initiation of appropriate
contempt proceedings against the latter by the court is not only its prerogative but indeed
its duty, imposed by the overmastering need to preserve and protect its authority and the
integrity, independence and dignity of the nation's judicial system.
2. Antecedents
This proceeding treats of Emiliano P. Jurado, a journalist who writes in a newspaper of
general circulation, the "Manila Standard." He describes himself as a columnist, who
"incidentally happens to be a lawyer," remarking that while he values his membership in
the law profession, "such membership is neither a critical nor indispensable adjunct in

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the exercise of his occupation as a newspaperman." 2 His column in the "Manila
Standard" is entitled "Opinion."
Jurado had been writing about alleged improperties and irregularities in the
judiciary over several months (from about October, 1992 to March, 1993). Other
journalists had also been making reports or comments on the same subject. At
the same time, anonymous communications were being extensively circulated,
by hand and through the mail, about alleged venality and corruption in the courts.
And all these were being repeatedly and insistently adverted to by certain sectors
of society.
In light of these abnormal developments, the Chief Justice took an extraordinary
step. He issued Administrative Order No. 11-93 dated January 25, 1993,
"Creating an Ad Hoc Committee to Investigate Reports of Corruption in the
Judiciary," 3 reading as follows:
WHEREAS, the Court's attention has been drawn to the many and persistent
rumors and unverified reports respecting corruption in the judiciary, said rumors
and reports not only having been mentioned by media and in anonymous
communications, but having also been adverted to by certain government
officials and civic leaders.
NOW, THEREFORE, by authority of the Court, an Ad Hoc committee is hereby
constituted composed of Chief Justice Andres R. Narvasa, as Chairman, and
former Justices of the Court, Hon. Lorenzo Relova and Hon. Ameurfina A.
Melencio-Herrera, as Members, which shall seek to ascertain the truth respecting
said reports and statements, and to this end, forthwith interview at closed-door
sessions or otherwise, such persons as may appear to it to have some
knowledge of the matter and who may be appealed to to share that knowledge
with the Court, and otherwise gather such evidence as may be available. The
Committee is hereby authorized to use such facilities and personnel of the court
as may be necessary or convenient in the fulfillment of its assigned mission, and
shall submit its report to the Court within thirty (30) days.
Material to the present inquiry are Jurado's published statements from late 1992
to the middle of February, 1993.
1. In his column of October 21, 1992, he wrote of "(j)udges in a number of
regional trial courts in Metro Manila (who) have become so notorious in their
dealings with litigants and lawyers that they are now called the "Magnificent
Seven."" He stated that "(i)t has come to a point where lawyers and litigants try
their darndest to stay away from these judges. The answer, of course, is
obvious."
2. In his February 3, 1993 column, he adverted to another group, also named
"Magnificent Seven," which, he said, should be distinguished from the first. He
wrote: "When lawyers speak of the "Magnificent Seven" one has to make sure
which group they are referring to. Makati's "Magnificent Seven" are a bunch of
Makati regional trial court judges who fix drug-related cases. The "Magnificent
Seven" in the Supreme Court consists of a group of justices who vote as one." 4

3. Aside from the "Magnificent Seven," he also wrote about a group which he dubbed the
"Dirty Dozen." In his column of October 21, 1992 he said that there are " . . . 12 judges
who have acquired such reputation for graft and corruption that they are collectively
known as the "dirty dozen". These judges, I am told, are not satisfied with accepting
bribes; they actually sell their decisions to the litigants and "solicit" their bids for what is
clearly an auction for the judge's decision."
According to him, the most corrupt judges now are Makati's "Dirty Dozen" judges,
supplanting some of those from Pasay, Pasig and Quezon City; corruption in lower
Courts had been admitted by an Executive Judge in a Metro Manila Regional Trial Court
(column of November 9, 1992); and because the "Dirty Dozen" had given Makati the
reputation of having the most corrupt RTC in the country, multi-nationals and financing
institutions explicitly stipulate in their agreements that litigation in connection with these
contracts may be held anywhere in Metro Manila except in Makati; and lawyers confirm
that Makati Judges, including some persons in the sheriffs office, are the most corrupt,
where before, Pasay and Quezon City had that dubious distinction (column of December
1, 1992).
4. In his November 9, 1992 column, he wrote about "a former appellate justice (who)
"holds office" at a restaurant near the Court of Appeals building. He is known as the
contact man of five CA divisions. Lawyers say that this former jurist really delivers." In his
column of January 29, 1993, he adverted to the same unnamed former Justice as being
"known for fixing cases for five CA divisions (that is what he tells lawyers and litigants) for
a fee. And if the price is right, the lawyer of the litigant paying can even write his own
decision using a CA justice as ponente. This ex-justice holds court at the mezzanine of a
restaurant owned by the wife of a former Marcos cabinet member and which has become
a meeting place for judges, CA justices, practicing lawyers, prosecutors and even
Supreme Court justices. The former CA justice also has his own Chinese contact. After I
exposed this last year, the habitues became scarce. But they are back again, and the exjustice is still-doing brisk business."
5. In his column of March 24, 1993, he made the claim that one can "get a temporary
restraining order from a regional trial court in Metro-Manila by paying the judge anywhere
between P30,000.00 and P50,000.00."
Other columns of Jurado refer to:
a) a police from the South Capital Command . . . (to the effect) that 8 Makati judges
where paid for decisions favoring drug-traffickers and other big-time criminals, naming
the judges and giving detailed accounts of the bribery (January 30, 1993);
b) a bank, later identified by him as the Equitable Banking Corporation (Ermita Branch),
which had "hosted a lunch at its penthouse mainly for some justices, judges, prosecutors
and law practitioners" (January 12, 1993); 5
c) the lady secretary of an RTC Judge in Makati who allegedly makes sure, for a fee of
P10,000.00 or more, depending on how much money is at stake, that a case is raffled off
to a Judge who will be "extremely sympathetic," and can arrange to have the Court issue
attachments or injunctions for a service fee of 1% over and above the regular premium of
the attachment or injunction bond; a Chinese-Filipino businessman who paid this

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"miracle worker" P300,000.00 on top of the regular premium on the
attachment/injunction bond (October 27, 1992);
d) Executive Judge de la Rosa, who "has unilaterally decided to discard the rule
that cases seeking provisional remedies should be raffled off to the judges," thus
violating the rule that no case may be assigned in multi-sala courts without a
raffle (January 28, 1993);
e) the Secretary of the Judicial and Bar Council (JBC), who had supposedly
gotten that body to nominate him to the Court of Appeals; and a son and a
nephew of JBC members, who were also nominated to the Court of Appeals,
contrary to ethics and delicadeza (January l6, 1993; and January 29, 1993);
f) what he denominates "a major determinant of promotion," i.e., having a relative
in the JBC or the Supreme Court, or having a powerful politician as sponsor,
citing specifically, the following nominees to the Court of Appeals Conrado
Vasquez, Jr., son and namesake of the Ombudsman and brother of the head of
the Presidential Management Staff; Rosalio de la Rosa, "nephew of Justice
Relova and cousin of Chief Justice Narvasa;" and the fact that nomination of
some worthy individuals was blocked because they "incurred the ire of the
powers that be," e.g., Judge Maximiano Asuncion, Quezon City RTC, and Raul
Victorino, closely identified with former Senate President Salonga (January 25,
1993).
3. Events Directly Giving Rise
to the Proceeding at Bar
What may be called the seed of the proceeding at bar was sown by the decision
promulgated by this Court on August 27, 1992, in the so-called "controversial
case" of "Philippine Long Distance Telephone Company v. Eastern Telephone
Philippines, Inc. (ETPI)," G.R. No, 94374. In that decision the Court was sharply
divided; the vote was 9 to 4, in favor of the petitioner PLDT. Mr. Justice Hugo E.
Gutierrez, Jr., wrote the opinion for the
majority. 6 A motion for reconsideration of the decision was filed in respondent's
behalf on September 16, 1992, which has recently been resolved.
In connection with this case, G.R. No. 94374, the "Philippine Daily Inquirer" and
one or two other newspapers published, on January 28, 1993, a report of the
purported affidavit of a Mr. David Miles Yerkes, an alleged expert in linguistics.
This gentleman, it appears, had been commissioned by one of the parties in the
case, Eastern Telephone Philippines, Inc. (ETPI), to examine and analyze the
decision of Justice Gutierrez in relation to a few of his prior ponencias and the
writings of one of the lawyers of PLDT, Mr. Eliseo Alampay, to ascertain if the
decision had been written, in whole or in part, by the latter. Yerkes proffered the
conclusion that the Gutierrez decision "looks, reads and sounds like the writing of
the PLDT's counsel," 7
As might be expected, the Yerkes "revelations" spawned more public discussion
and comment about the judiciary and the Supreme Court itself, much of it
unfavorable. There were calls for impeachment of the justices, for resignation of
judges. There were insistent and more widespread reiterations of denunciations

of incompetence and corruption in the judiciary. Another derogatory epithet for judges
was coined and quickly gained currency: "Hoodlums in Robes."
It was at about this time and under these circumstances particularly the furor caused
by the Yerkes opinion that the PLDT decision was authored by a PLDT lawyer that
Jurado wrote in his column on February 8, 1993, an item entitled, "Who will judge the
Justices?" referring among other things to" . . .
(a) report that six justices, their spouses, children and grandchildren (a total of 36
persons) spent a vacation in Hong Kong some time last year and that luxurious hotel
accommodations and all their other expenses were paid by a pubic utility firm . . . and
that the trip . . . was arranged by the travel agency patronized by this public utility firm." 8
This was the event that directly gave rise to the proceeding at bar.
a. Letter and Affidavit of PLDT
For shortly afterwards, on February 10, 1993, Mr. Vicente R. Samson, First Vice
President of the PLDT (Philippine Long Distance Telephone Company), addressed a
letter to the Chief Justice, submitting his sworn statement in confutation of "the item in
the column of Mr. Emil P. Jurado of the Manila Standard on a vacation trip supposedly
taken by six Justices with their families last year," and requesting that the Court "take
such action as may be appropriate." In his affidavit, Samson made the following
averments: 9
xxx xxx xxx
While the name of the public utility which supposedly financed the alleged vacation of the
Justices in Hongkong has not been disclosed in the Jurado column, the publication
thereof, taken in relation to the spate of recent newspaper reports alleging that the
decision of the Supreme Court, penned by Mr. Justice Hugo E. Gutierrez, Jr., in the
pending case involving the PLDT and Eastern Telecommunications Phils., Inc. was
supposedly ghost written by a lawyer of PLDT, gives rise to the innuendo or unfair
inference that Emil Jurado is alluding to PLDT in the said column; and, this in fact was
the impression or perception of those who talked to me and the other officers of the
PLDT after having read the Jurado column;
4. In as much as the PLDT case against Eastern Telecommunications Philippines is still
sub-judice, since the motions for reconsideration filed by the losing litigants therein,
Eastern Telecommunications Philippines, Inc. and NTC are still pending before the Court,
we have tried to refrain from making any public comments on these matters, lest any
statement we make be interpreted to be an attempt on our part to unduly influence the
final decision of the Supreme Court in the above described case. However in the interest
of truth and justice, PLDT is compelled to emphatically and categorically declare that it is
not the public utility firm referred to in the Jurado column and that specifically, it has
never paid for any such trip, hotel or other accommodations for any justice of the
Supreme Court or his family during their vacation, if any, in Hongkong last year. It is not
even aware that any of the justices or their families have made the trip referred to in the
Jurado column;

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5. I further state that neither Atty. Emil P. Jurado nor anyone in his behalf has
ever spoken to me or any other responsible officer of PLDT about the matter
quoted in par. 2 hereof;
6. PLDT further emphatically and categorically denies that it had ever talked to or
made arrangements with any travel agency or any person or entity in connection
with any such alleged trip of the Justices and their families to Hongkong, much
less paid anything therefor to such agencies, fully or in part, in the year 1992 as
referred to in Par. 2 hereinabove;
7. The travel agencies which PLDT patronizes or retains for the trips, hotels or
other accommodations of its officers and employees are:
a. Philway Travel Corporation
M-7 Prince Tower Cond.
Tordesillas St., Salcedo Village
Makati, Metro Manila
b. Citi-World Travel Mart Corp.
Suite 3-4 Ramada Midtown Arcade
M. Adriatico Street
Ermita, Manila.
The records of these travel agencies will bear out the fact that no arrangements
were made by them at the instance of PLDT for the trip referred to in the Jurado
column.
b. Affidavit of Atty. William Veto
The Samson affidavit was followed by another submitted to the Court by Atty.
William Veto, the "in-house counsel of Equitable Banking Corporation since
1958," subscribed and sworn to on February 10, 1993, in relation to another
article of Jurado. 10 Veto deposed that on Tuesday, January 5, 1993 he had
"hosted a lunch party at the Officers' Lounge, 7th Floor of the Equitable Banking
Corporation Building, Ermita Branch . . . upon prior permission . . . obtained;" that
the "expenses for said party were exclusively from my personal funds and the
food was prepared in my house by my wife and served by my house help . . . and
four (4) waiters . . . hired from the nearby Barrio Fiesta Restaurant;" that among
the invited guests "were members of the Supreme Court and Court of Appeals
who . . . were my friends of forty years since our days in law school;" and that the
party was held in the lounge of the bank instead of in "my residence" "unlike in
former years . . . because my birthday happened to fall on a working day and my
friends from the Equitable Banking
Corporation . . . suggested that I hold it there (at the lounge) for their
convenience because my residence is far from down town."
However, this birthday luncheon of Atty. Veto was reported in Jurado's column (in
the Manila Standard issues of January 12 and 28, 1993) as having been "hosted
(by the Equitable Bank) at its penthouse mainly for some justices, judges,
prosecutors and law practitioners. . . ." And upon this premise, Jurado indulged in
the following pontification: "When those in the judiciary fraternize this way, what
chances before the courts do other lawyers, who are not "batang club," have

against others who belong to the fraternity? In the case of prosecutors and fiscals, what
chances do opposing counsels have against those in the fraternity?" (column of January
12, 1993)
c. Information from Ad Hoc Committee
At about this time, too, the Court received information from the Ad Hoc Committee
(created by Administrative Order No. 11-93) to the following effect:
1) that by letter dated February 1, 1993, the Chairman of the Ad Hoc Committee
extended an invitation to Atty. Emiliano Jurado to appear before it "at 2 o'clock in the
afternoon of February 4, 1993 . . . (to) give the committee information that will assist it in
its task," i.e., to definitely and accurately determine the facts as regards the published
rumors and reports of corruption in the judiciary;
2) that despite receipt of this letter by a responsible individual at the business address of
Jurado, the latter failed to appear at the time and place indicated; that instead, in his
column in the issue of Manila Standard of February 4, 1993, Jurado stated that he was
told he was being summoned by theAd Hoc Committee, but "(t)here is really no need to
summon me. The committee can go by the many things I have written in my column
about corruption in the judiciary. Many of these column items have been borne out by
subsequent events."
3) that another letter was sent by the Chairman to Jurado, dated February 5, 1993,
reiterating the Committee's invitation, viz.:
It is regretted that you failed to respond to the invitation of the Ad Hoc Committee to
appear at its session of February 4, 1992. All indications are that you are the person with
the most knowledge about corruption in the judiciary and hence, appear to be best
positioned to assist the Ad HocCommittee in its function of obtaining evidence, or leads,
on the matter. You have, I believe, expressed more than once the laudable desire that
the judiciary rid itself of the incompetents and the misfits in its ranks, and we believe you
will want to help the Court do precisely that, by furnishing the Committee with competent
evidence, testimonial or otherwise. Clearly, the purging process cannot be accomplished
without proof, testimonial or otherwise, as you must no doubt realize, being yourself a
lawyer.
We would like you to know that the Ad Hoc Committee created by Administrative Order
No. 11-93 is simply a fact-finding body. Its function is evidence-gathering. Although
possessed of the authority to maintain and enforce order in its proceedings, and to
compel obedience to its processes, it is not an adjudicative body in the sense that it will
pronounce persons guilty or innocent, or impose sanctions, on the basis of such proofs
as may be presented to it. That function is reserved to the Supreme Court itself, in which
it is lodged by the Constitution and the laws. Thus, at the conclusion of its evidencegathering mission, the Ad Hoc Committee will submit its report and recommendations to
the Court which will then take such action as it deems appropriate.
The Ad Hoc Committee has scheduled hearings on the 11th and 12th of February, 1993.
Mr. Justice Hilario G. Davide, Jr. will preside as Chairman at these hearings since I will
be unable to do so in view of earlier commitments. We reiterate our invitation that you

132
come before the Committee, and you may opt to appear either on the 11th or
12th of February, 1993, at 2 o'clock in the afternoon."
4) that notwithstanding receipt of this second letter by a certain Mr. Gerry Gil of
the Manila Standard, Jurado still failed to appear.
4. Statement of the Case:
Resolutions and Pleadings
a. Resolution of the February 16, 1993
After considering all these circumstances, the Court by Resolution dated
February 16, 1993, ordered:
1) that the matter dealt with in the letter and affidavit of the PLDT herein
mentioned be duly DOCKETED, and hereafter considered and acted upon as an
official Court proceeding for the determination of whether or not the allegations
made by Atty. Emil Jurado herein specified are true;
2) that the Clerk of Court SEND COPIES of the PLDT letter and affidavit, and of
the affidavit of Atty. William Veto to Atty. Emil Jurado, c/o the Manila Standard,
Railroad & 21 Streets, Port Area, Manila; and copies of the same PLDT letter and
affidavit, to Philway Travel Corporation, M-7 Prince Tower Cond., Tordesillas St.,
Salcedo Village, Makati, Metro Manila; and Citi-World Travel Mart Corp., Suite 34 Ramada Midtown Arcade, M. Adriatico Street, Ermita, Manila;
3) that within five (5) days from their receipt of notice of this resolution and of
copies of the PLDT letter and affidavit, the Philway Travel Corporations and the
Citi-World Travel Mart Corporation each FILE A SWORN STATEMENT affirming
or denying the contents of the PLDT affidavit; and
4) that within fifteen (15) days from his receipt of notice of this resolution and of
copies of said PLDT letter and affidavit and of the affidavit of Atty. Veto, Atty. Emil
Jurado FILE A COMMENT on said affidavits as well as the allegations made by
him in his columns, herein specified, in which he shall make known to the Court
the factual or evidentiary bases of said allegations.
b. Jurado's Comment dated
March 1, 1993.
As directed, Jurado filed his comment, dated March 1, 1993.
He explained that he had not "snubbed" the invitation of the Ad Hoc Committee,
it being in fact his desire to cooperate in any investigation on corruption in the
judiciary as this was what "his columns have always wanted to provoke." What
had happened, according to him, was that the first invitation of the Ad
Hoc Committee was routed to his desk at the Manila Standard office on the day
of the hearing itself, when it was already impossible to cancel previous
professional and business appointments; and the second invitation, "if it was ever
received" by his office, was never routed to him; and he had yet to see
it." 11 If the impression had been created that he had indeed "snubbed" the Ad
Hoc Committee, he "sincerely apologizes."
He averred that his columns are self-explanatory and reflect his beliefs, and there
was no need to elaborate further on what he had written. He expressed his firm

belief that justice can be administered only by a judicial system that is itself just and
incorruptible, and the hope that this Court would view his response in this light.
He also made the following specific observations:
1. The affidavit of Antonio Samson of the PLDT dated February 9, 1993 was an assertion
of the affiant's belief and opinion and he (Jurado) would not comment on it except to say
that while Mr. Samson is entitled to his beliefs and opinions, these "bind only him and the
PLDT."
2. Atty. William Veto's affidavit substantially corroborated what he had written in vital
details; hence, further substantiation would be surplusage. In fact, the Supreme Court
had confirmed the story in its press statement quoted by him (Jurado) in his January 30,
1993 column. His column about the Veto party constitutes fair comment on the public
conduct of public officers.
3. The column about Executive Judge Rosalio de la Rosa merely summarized the
position of Judge Teresita Dy-Liaco Flores on the actuations of Judge de la Rosa and
called the attention of the Court thereto, Judge Flores' complaint, a copy of which had
been sent to the Court Administrator, being on meriting its attention.
4. The "factual and evidentiary basis" of his column of January 30, 1993 was the police
report on seven (7) Makati judges authored by Chief Inspector Laciste Jr., of the
Narcotics Branch of the RPIU, South CAPCOM, PNP, addressed to Vice-President
Joseph E. Estrada, a copy of which he had received in the news room of the Manila
Standard. The existence of the report had been affirmed by a reporter of the Manila
Standard, Jun Burgos, when he appeared at the hearing of the Ad HocCommittee on
January 11, 1993.
5. His observations in his columns of January 6 and 29, 1993 regarding the nominations
of relatives in the Judicial and Bar Council echo the public perception, and constitute fair
comment on a matter of great public interest and concern.
6. His columns with respect to the "RTC's Magnificent Seven" (October 20, 1992); the
"RTC-Makati's Dirty Dozen" (October 2, 1992, November 9, 1992, and December 1,
1992); the "Magnificent Seven" in the Supreme Court (February 3,1993); 12 the lady
secretary of an RTC Judge (October 27, 1992); and the former Court of Appeals Justice
"fixing" cases (January 29, 1993) were all based on information given to him in strict
confidence by sources he takes to be highly reliable and credible; and he could not
elaborate on the factual and evidentiary basis of the information without endangering his
sources.
By necessity and custom and usage, he relies as a journalist not only on first-hand
knowledge but also on information from sources he has found by experience to be
trustworthy. He cannot compromise these sources. He invokes Republic Act No. 53, as
amended by R.A. No. 1477, exempting the publisher, editor or reporter of any publication
from revealing the source of published news or information obtained in confidence, and
points out that none of the matters subject of his columns has any bearing on the
security of the state.
c. Resolution of March 2, 1993

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Subsequent to the Resolution of February 16, 1993 and before the filing of
Jurado's comment above mentioned, the Court received the affidavits of the
executive officials of the two travel agencies mentioned in the affidavit of PLDT
Executive Vice-President Vicente R. Samson in relation to the Jurado column
of February 8, 1993: that of Mr. Ermin Garcia, Jr., President of the Citi-World
Travel Mart Corporation, dated February 22, 1993, and that of Mrs. Marissa de la
Paz, General Manager of Philway Travel Corporation, dated February 19, 1993.
Both denied ever having made any travel arrangements for any of the Justices of
the Supreme Court or their families to Hongkong, clearly and categorically
belying the Jurado article.
By Resolution dated March 2, 1993, the Court directed that Jurado be given
copies of these two (2) affidavits and that he submit comment thereon, if desired,
within ten (10) days from receipt thereof.
d. Jurado's Supplemental Comment
with Request for Clarification
In response, Jurado filed a pleading entitled "Supplemental Comment with
Request for Clarification" dated March 15, 1993. In this pleading he alleged that
the sworn statements of Mr. Ermin Garcia, Jr. and Mrs. Marissa de la Paz are
affirmations of matters of their own personal knowledge; that he (Jurado) had no
specific knowledge of "the contents of these, let alone their veracity;" and that the
affidavits "bind no one except the affiants and possibly the PLDT." He also sought
clarification on two points as to the capacity in which he is being cited in these
administrative proceedings whether "as full time journalist or as a member of
the bar," and why he is being singled out, from all his other colleagues in media
who had also written about wrongdoings in the judiciary, and required to
comment in a specific administrative matter before the Court sitting En Banc
so that he might "qualify his comment and/or assert his right and privileges . . . .
e. Resolution of March 18, 1993
Through another Resolution, dated March 18, 1993, the Court directed the Clerk
of Court to inform Jurado that the Resolutions of February 16 and March 2, 1993
had been addressed to him (according to his own depiction) in his capacity as "a
full-time journalist" "who coincidentally happens to be a member of the bar at the
same time," and granted him fifteen (15) days from notice" to qualify his
comment and/or assert his rights and privileges . . . in an appropriate
manifestation or pleading."
f. Jurado's Manifestation
dated March 31, 1993
Again in response, Jurado filed a "Manifestation" under date of March 31, 1993.
He moved for the termination of the proceeding on the following posited
premises:
1. The court has no administrative supervision over him as a member of the
press or over his work as a journalist.
2. The present administrative matter is not a citation for (a) direct contempt as
there is no pending case or proceeding out of which a direct contempt charge

against him may arise, or (b) indirect contempt as no formal charge for the same has
been laid before the court in accordance with Section 3 (Rule 71) of the Rules of Court.
3. His comments would be more relevant and helpful to the Court if taken together with
the other evidence and reports of other journalists gathered before the Ad
Hoc Committee. He perceives no reason why his comments should be singled out and
taken up in a separate administrative proceeding.
It is against this background of the material facts and occurrences that the Court will
determine Jurado's liability, if any, for the above mentioned statements published by him,
as well as "such action as may be appropriate" in the premises, as the PLDT asks.
5. Norms for Proper Exercise of
Press Freedom
a. Constitutional Law Norms
In Zaldivar v. Gonzalez (166 SCRA 316 [1988]), the Court underscored the importance
both of the constitutional guarantee of free speech and the reality that there are
fundamental and equally important public interests which need on occasion to be
balanced against and accommodated with one and the other. There, the Court stressed
the importance of the public interest in the maintenance of the integrity and orderly
functioning of the administration of justice. The Court said: 13
The principal defense of respondent Gonzalez is that he was merely exercising his
constitutional right of free speech. He also invokes the related doctrines of qualified
privileged communications and fair criticism in the public interest.
Respondent Gonzalez is entitled to the constitutional guarantee of free speech. No one
seeks to deny him that right, least of all this Court. What respondent seems unaware of
is that freedom of speech and of expression, like all constitutional freedoms, is not
absolute and that freedom of expression needs on occasion to be adjusted to and
accommodated with the requirements of equally important public interests. One of these
fundamental public interests is the maintenance of the integrity and orderly functioning of
the administration of justice. There is no antinomy between free expression and the
integrity of the system of administering justice. For the protection and maintenance of
freedom of expression itself can be secured only within the context of a functioning and
orderly system of dispensing justice, within the context, in other words, of viable
independent institutions for delivery of justice which are accepted by the general
community. As Mr. Justice Frankfurter put it:
. . . A free press is not to be preferred to an independent judiciary, nor an independent
judiciary to a free press. Neither has primacy over the other; both are indispensable to a
free society.
The freedom of the press in itself presupposes an independent judiciary through which
that freedom may, if necessary, be vindicated. And one of the potent means for assuring
judges their independence is a free press. (Concurring in Pennekamp v. Florida, 328
U.S. 331 at 354-356 [1946]).
Mr. Justice. Malcolm of this Court expressed the same thought in the following terms:
The Organic Act wisely guarantees freedom of speech and press. This constitutional
right must be protected in its fullest extent. The Court has heretofore given evidence of

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its tolerant regard for charges under the Libel Law which come dangerously close
to its violation. We shall continue in this chosen path. The liberty of the citizens
must be preserved in all of its completeness. But license or abuse of liberty of the
press and of the citizens should not be confused with liberty in its true sense. As
important as is the maintenance of an unmuzzled press and the free exercise of
the rights of the citizens is the maintenance of the independence of the Judiciary.
Respect for the Judiciary cannot be had if persons are privileged to scorn a
resolution of the court adopted for good purposes, and if such persons are to be
permitted by subterranean means to diffuse inaccurate accounts of confidential
proceedings to the embarrassment of the parties and the court. (In Re Severino
Lozano and Anastacio Quevedo, 54 Phil. 801 at 807 [1930]).
b. Civil Law Norms
The Civil Code, in its Article 19 lays down the norm for the proper exercise of any
right, constitutional or otherwise, viz.:
Art. 19. Every person must, in the exercise of his rights and in the performance of
his duties, act with justice, give everyone his due, and observe honesty and good
faith.
The provision is reflective of the universally accepted precept of "abuse of rights,"
"one of the most dominant principles which must be deemed always implied in
any system of law." 14 It parallels too "the supreme norms of justice which the
law develops" and which are expressed in three familiar Latin maxims: honeste
vivere, alterum non laedereand jus suum quique tribuere (to live honorably, not to
injure others, and to render to every man his due). 15
Freedom of expression, the right of speech and of the press is, to be sure,
among the most zealously protected rights in the Constitution. But every person
exercising it is, as the Civil Code stresses, obliged "to act with justice, give
everyone his due, and observe honesty and good faith." The constitutional right
of freedom of expression may not be availed of to broadcast lies or half-truths
this would not be "to observe honesty and good faith;" it may not be used to
insult others; destroy their name or reputation or bring them into disrepute. this
would not be "to act with justice" or "give everyone his due."
c. Philippine Journalist's
Code of Ethics
Also relevant to the determination of the propriety of Jurado's acts subject of the
inquiry at bar are the norms laid down in "The Philippine Journalist's Code of
Ethics." The Code was published in the issue of February 11, 1993 of the Manila
Standard, for which Jurado writes, as part of the paper's "Anniversary
Supplement." The first paragraph of the Code, 16 and its corresponding
annotations, read as follows:
1. I shall scrupulously report and interpret the news, taking care not to suppress
essential facts nor to distort the truth by improper omission or emphasis. I
recognize the duty to air the other side and the duty to correct substantive errors
promptly.

1. Scrupulous news gathering and beat coverage is required. Relying exclusively on the
telephone or on what fellow reporters say happened at one's beat is irresponsible.
2. The ethical journalist does not bend the facts to suit his biases or to please
benefactors. He gathers all the facts, forms a hypothesis, verifies it and arrives at an
honest interpretation of what happened.
3. The duty to air the other side means that the journalist must contact the person or
persons against whom accusations are lodged. A court proceeding provides for this
balance by presenting the prosecution and then the defense. A news story or editorial
column that fails to present the other side is like a court that does not hear the side of the
defense.
4. Correcting substantive errors is the mark of mature newspapers like the New York
Times, the International Herald Tribune, and some of Manila's papers.
d. Right to Private Honor
and Reputation
In the present proceeding, there is also involved an acknowledged and important interest
of individual persons: the right to private reputation. Judges, by becoming such, are
commonly and rightly regarded as voluntarily subjecting themselves to norms of conduct
which embody more stringent standards of honesty, integrity, and competence than are
commonly required from private persons. 17 Nevertheless, persons who seek or accept
from appointment to the Judiciary cannot reasonably be regarded as having thereby
forfeited any right whatsoever to private honor and reputation. For so to rule will be
simply, in the generality of cases, to discourage all save those who feel no need to
maintain their self-respect as a human being in society, from becoming judges, with
obviously grievous consequences for the quality of our judges and the quality of the
justice that they will dispense. Thus, the protection of the right of individual persons to
private reputations is also a matter of public interest and must be reckoned with as a
factor in identifying and laying down the norms concerning the exercise of press freedom
and free speech.
Clearly, the public interest involved in freedom of speech and the individual interest of
judges (and for that matter, all other public officials) in the maintenance of private honor
and reputation need to be accommodated one to the other. And the point of adjustment
or accommodation between these two legitimate interest is precisely found in the norm
which requires those who, invoking freedom of speech, publish statements which are
clearly defamatory to identifiable judges or other public officials to exercise bona
fide care in ascertaining the truth of the statements they publish. The norm
does not require that a journalist guarantee the truth of what he says or publishes. But
the norm does prohibit the reckless disregard of private reputation by publishing or
circulating defamatory statements without any bona fide effort to ascertain the truth
thereof. That this norm represents the generally accepted point of balance or adjustment
between the two interests involved is clear from a consideration of both the pertinent civil
law norms and the Code of Ethics adopted by the journalism profession in the
Philippines. 17a
6. Analysis of Jurado Columns

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a. Re "Public Utility Firm"
Now, Jurado's allegation in his column of February 8, 1993 "that six justices,
their spouses, children and grandchildren (a total of 36 persons) spent a vacation
in Hong Kong some time last year and that luxurious hotel accommodations
and all their other expenses were paid by a public utility firm and that the trip
reportedly was arranged by the travel agency patronized by this public utility
firm," supra is in the context of the facts under which it was made easily
and quickly perceived as a transparent accusation that the PLDT had bribed or
"rewarded" six (6) justices for their votes in its favor in the case of "Philippine
Long Distance Telephone Company v. Eastern Telephone Philippines, Inc.
(ETPI)," G.R. No. 94374, 18 by not only paying all their expenses i.e., hotel
accommodations and all other expenses for the trip but also by having one of
its own travel agencies arrange for such a trip.
As already stated, that allegation was condemned as a lie, an outright fabrication,
by the PLDT itself, through one of its responsible officers, Mr. Vicente Samson,
as well as by the heads of the two (2) travel agencies "patronized by it," Ermin
Garcia, Jr. and Marissa de la Paz, supra.
That categorical denial logically and justly placed on Jurado the burden of
proving the truth of his grave accusation, or showing that it had been made
through some honest mistake or error committed despite good faith efforts to
arrive at the truth, or if unable to do either of these things, to offer to atone for the
harm caused.
But the record discloses that Jurado did none of these things. He exerted no
effort whatever to contest or qualify in any manner whatever the emphatic
declaration of PLDT Vice-President Samson that
While the name of the public utility which supposedly financed the alleged
vacation of the Justices in Hongkong has not been disclosed in the Jurado
column, the publication thereof, taken in relation to the spate of recent
newspaper reports alleging that the decision of the Supreme Court, penned by
Mr. Justice Hugo E. Gutierrez, Jr., in the pending case involving the PLDT and
Eastern Telecommunications Phils., Inc. was supposedly ghost written by a
lawyer of PLDT, gives rise to the innuendo or unfair inference that Emil Jurado is
alluding to PLDT in the said column; and, this in fact was the impression or
perception of those who talked to me and the other officers of the PLDT after
having read the Jurado column.
The record shows that he made no effort whatsoever to impugn, modify, clarify or
explain Samson's positive assertion that:
. . . (the PLDT) has never paid for any such trip, hotel or other accommodations
for any justice of the Supreme Court or his family during their vacation, if any, in
Hongkong last year. It is not even aware that any of the justices or their families
have made the trip referred to in the Jurado column;
. . . neither Atty. Emil P. Jurado nor any one in his behalf has ever spoken to me
or any other responsible officer of PLDT about the matter. . .;

. . . PLDT . . . (never) talked to or made arrangements with any travel agency or any
person or entity in connection with any such alleged trip of the Justices and their families
to Hongkong, much less paid anything therefor to such agencies, fully or in part, in the
year 1992 as referred to in Par. 2 hereinabove;
What appears from the record is that without first having made an effort to talk to any one
from the PLDT or the Supreme Court to ascertain the veracity of his serious accusation,
Jurado went ahead and published it.
His explanation for having aired the accusation consists simply of a declaration that
Samson's affidavit, as well as the affidavits of the heads of the two travel agencies
regularly patronized by it, were just assertions of the affiants' belief and opinion; and that
he (Jurado) would not comment on them except to say that while they are entitled to their
beliefs and opinions, these were binding on them only. This is upon its face evasion of
duty of the most cavalier kind; sophistry of the most arrant sort. What is made plain is
that Jurado is in truth unable to challenge any of the averments in the affidavits of PLDT
and its travel agencies, or otherwise substantiate his accusation, and that his is a mere
resort to semantics to justify the unjustifiable. What is made plain is that his accusation is
false, and possesses not even the saving grace of honest error.
If relying on second-hand sources of information is, as the Journalists' Code states,
irresponsible, supra, then indulging in pure speculation or gossip is even more so; and a
failure to "present the other side" is equally reprehensible, being what in law amounts to
a denial of due process.
b. Re Equitable Bank Party
Jurado is also shown by the record to have so slanted his report of the birthday luncheon
given by Atty. William Veto (the "in-house counsel of Equitable Banking Corporation since
1958") as to project a completely false depiction of it. His description of that affair (in the
Manila Standard issues of January 12 and 28, 1993) as having been hosted by the
Equitable Bank "at its penthouse mainly for some justices, judges, prosecutors and law
practitioners . . . , carries the sanctimonious postscript already quoted, putting the
rhetorical question about how such fraternization affects the chances in court of lawyers
outside that charmed circle.
When confronted with Veto's affidavit to the effect that the party was given by him at his
(Veto's) own expense, the food having been prepared by his wife in his house, and
served by his house help and waiters privately hired by him; that he had invited many
persons including friends of long standing, among them justices of the Supreme Court
and the Court of Appeals; and that the party had been held in the Officers' Lounge of
Equitable Bank, instead of his home, as in years past, to suit the convenience of his
guests because his birthday fell on a working day, Jurado could not, or would not deign
to, contradict any of those statements. He merely stated that Veto's affidavit substantially
corroborated what he had written in vital details, which is obviously far from correct.
Most importantly, the record does not show that before he published that story, Jurado
ever got in touch with Veto or anyone in Equitable Bank, Ermita Branch, to determine the
accuracy of what he would later report. If he did, he would quickly have learned that his
sources, whoever or whatever they were, were not to be relied upon. If he did not, he

136
was gravely at fault at the very least for disregarding the Journalist's Code of
Ethics in failing to exertbona fide efforts to verify the accuracy of his
information.
In either case, his publication of the slanted, therefore misleading and false,
report of the affair is censurable. His proffered explanation that the justices
having confirmed their presence at the luncheon, thus corroborating what he had
written in vital details and making further substantiation unnecessary, and that his
report constituted fair comment on the public conduct of public officers, obviously
does not at all explain why a party given by Atty. Vetowas reported by him as one
tendered by Equitable Bank. The only conclusion that may rationally be drawn
from these circumstances is that Jurado, unable to advance any plausible reason
for the conspicuous divergence between what in fact transpired and what he
reported, again resorts to semantics and sophistry to attempt an explanation of
the unexplainable. Paraphrasing the Code of Ethics, he failed to scrupulously
report and interpret the news; on the contrary, his failure or refusal to verify such
essential facts as who really hosted and tendered the luncheon and spent for it,
and his playing up of the Bank's supposed role as such host have resulted in an
improper suppression of those facts and a gross distortion of the truth about
them.
c. Re Other Items
Jurado disregarded the truth again, and in the process vilified the Supreme
Court, in the item in his column of February 3, 1993 already adverted to, 19 and
more fully quoted as follows:
When lawyers speak of the "Magnificent Seven" one has to make sure which
group they are referring to. Makati's "Magnificent Seven" are a bunch of Makati
regional trial court judges who fix drug related cases. The "Magnificent Seven" in
the Supreme Court consists of a group of justices who vote as one."
About the last (italicized) statement there is, as in other accusations of Jurado,
not a shred of proof; and the volumes of the Supreme Court Reports Annotated
(SCRA) in which are reported the decisions of the Supreme Court En Banc for
the year 1992 (January to December) and for January 1993, divulge not a single
non-unanimous decision or resolution where seven (7) justices voted "as one,"
nor any group of decisions or resolutions where the recorded votes would even
suggest the existence of such a cabal.
This is yet another accusation which Jurado is unable to substantiate otherwise
than, as also already pointed out, by invoking unnamed and confidential sources
which he claims he considers highly credible and reliable and which would be
imperiled by elaborating on the information furnished by them. He would justify
reliance on those sources on grounds of necessity, custom and usage and claim
the protection of Republic Act No. 53, as amended by Republic Act No. 1477
from forced, revelation of confidential news sources except when demanded by
the security of the state. 20
Surely it cannot be postulated that the law protects a journalist who deliberately,
prints lies or distorts the truth; or that a newsman may escape liability who

publishes derogatory or defamatory allegations against a person or entity, but recognizes

no obligation bona fide to establish beforehand the factual basis of such imputations and
refuses to submit proof thereof when challenged to do so. It outrages all notions of fair
play and due process, and reduces to uselessness all the injunctions of the Journalists'
Code of Ethics to allow a newsman, with all the potential of his profession to influence
popular belief and shape public opinion, to make shameful and offensive charges
destructive of personal or institutional honor and repute, and when called upon to justify
the same, cavalierly beg off by claiming that to do so would compromise his sources and
demanding acceptance of his word for the reliability of those sources.
Jurado's other writings already detailed here are of the same sort. While it might be
tedious to recount what has already been stated about the nature and content of those
writings, it is necessary to do so briefly in order not only to stress the gravity he makes,
but also to demonstrate that his response to the call for their substantiation has been one
of unvarying intransigence: an advertance to confidential sources with whose reliability
he professes satisfaction and whom fuller disclosure would supposedly compromise.
There can be no doubt of the serious and degrading character not only to the Court of
Appeals, but also to the judiciary in general of his columns of November 9, 1992 and
January 29, 1993 concerning an unnamed former justice of the Court of Appeals who
had allegedly turned "fixer" for five of the Court's divisions and who, for the right price,
could guarantee that a party's lawyer could write his own decision for and in the name of
the ponente; and of his column of March 24, 1993 to the effect that anywhere from
P30,000 to P50,000 could buy a temporary restraining order from a regional trial court in
Manila.
The litany of falsehoods, and charges made without bona fide effort at verification or
substantiation, continues:
(a) Jurado's column of January 30, 1993 about eight (8) Makati judges who were
"handsomely paid" for decisions favoring drug-traffickers and other big-time criminals
was based on nothing more than raw intelligence contained is confidential police report.
It does not appear that any part of that report has been reliably confirmed.
(b) He has refused to offer any substantiation, either before the Ad Hoc Committee or in
this proceeding, for his report of October 27, 1992 concerning an unnamed lady
secretary of a Makati RTC Judge who, besides earning at least P10,000 for making sure
a case is raffled off to a "sympathetic" judge, can also arrange the issuance of
attachments and injunctions for a fee of one (1%) percent over and above usual premium
for the attachment or injunction bond, a fee that in one instance amounted to P300,000.
(c) His report (columns of January 16 and 29, 1993) that the Judicial and Bar Council
acted contrary to ethics and delicadeza in nominating to the Court of Appeals a son and
a nephew of its members is completely untrue. The most cursory review of the records of
the Council will show that since its organization in 1987, there has not been a single
instance of any son or nephew of a member of the Council being nominated to the Court
of Appeals during said member's incumbency; and in this connection, he mistakenly and
carelessly identified RTC Judge Rosalio de la Rosa as the nephew of Justice (and then
Member of the Judicial and Bar Council) Lorenzo Relova when the truth, which he

137
subsequently learned and admitted, was that the person referred to was
Judge Joselito de la Rosa, the son-in-law, not the nephew, of Justice Relova.
Had he bothered to make any further verification, he would have learned that at
all sessions of the Council where the nomination of Judge Joselito de la Rosa
was considered, Justice Relova not only declined to take part in the
deliberations, but actually left the conference room; and he would also have
learned that Judge Rosalio de la Rosa had never been nominated indeed, to
this date, he has not been nominated to the Court of Appeals.
(d) He has recklessly slandered the Judicial and Bar Council by charging that it
has improperly made nominations to the Court of Appeals on considerations
other than of merit or fitness, through the manipulations of the Council's
Secretary, Atty. Daniel Martinez; or because the nominee happens to be a
relative of a member of the Council (e.g., Judge Joselito de la Rosa, initially
identified as Judge Rosalio de la Rosa) or of the Supreme Court (he could name
none so situated); or has powerful political sponsor (referring to RTC Judge
Conrado Vasquez, Jr., son and namesake of the Ombudsman). Acceptance of
the truth of these statements is precluded, not only by the familiar and
established presumption of regularity in the performance of official functions, but
also, and even more conclusively by the records of the Judicial and Bar Council
itself, which attest to the qualifications of Atty. Daniel Martinez, Clerk of Court of
the Supreme Court, Judge Joselito de la Rosa, and Judge Conrado Vasquez, Jr.,
for membership in the Appellate Tribunal;
(e) Equally false is Jurado's report (column of January 25, 1993) that nomination
to the Court of Appeals of some worthy individuals like Quezon City RTC Judge
Maximiano Asuncion, and Atty. Raul Victorino (who was closely identified with
former Senate President Salonga) had been blocked because they had "incurred
the ire of the powers that be," the truth, which could very easily have been
verified, being that a pending administrative case against Judge Asuncion had
stood in the way of his nomination, and since Mr. Victorino had been sponsored
or recommended by then Senate President Salonga himself, the fact that he was
not nominated can hardly be attributed to the hostility or opposition of persons in
positions of power or influence.
(f) Jurado was similarly unfair, untruthful and unfoundedly judgmental in his
reporting about Executive Judge Rosalio de la Rosa of the Manila Regional Trial
Court as:
(1) having been nominated to the Court of Appeals by the Judicial and Bar
Council chiefly, if not only, by reason of being the nephew of Justice Relova and
the cousin of Chief Justice Narvasa, the truth, as already pointed out, being that
Judge Rosalio de la Rosa had never been thus nominated to the Court of
Appeals, the nominee having been Judge Joselito de la Rosa, the son-in-law (not
nephew) of Justice Relova; and
(2) having discarded the rule that cases seeking provisional remedies should be
raffled off to the judges (column of January 28, 1993) and adopted a system of
farming out applications for temporary restraining orders, etc., among all the

branches of the court; here again, Jurado is shown to have written without thinking, and
made statements without verifying the accuracy of his information or seeking the views of
the subject of his pejorative statements; the merest inquiry would have revealed to him
that while Circular No. 7 dated September 23, 1974 requires that no case may be
assigned in multi-sala courts without raffle (for purposes of disposition on the merits),
Administrative Order No. 6, dated June 30, 1975 (Sec. 15, Par. IV), 21 empowers
Executive Judges to act on all applications for provisional remedies (attachments,
injunctions, or temporary restraining orders, receiverships, etc.), or on interlocutory
matters before raffle, in order to "balance the workload among courts and judges, (Sec. l,
par. 2, id.), and exercise such other powers and prerogatives as may in his judgment be
necessary or incidental to the performance of his functions as a Court Administrator"
(Sec. 7, par. 1, id.) these provisions being broad enough, not only to authorize
unilateral action by the Executive Judge himself on provisional remedies and
interlocutory matters even prior to raffle of the main case, but also to delegate the
authority to act thereon to other judges.
Jurado does not explain why: (1) he made no effort to verify the state of the rules on the
matter; (2) he precipitately assumed that the views of Judge Teresita Dy-Liaco Flores,
whose complaint on the subject he claims he merely summarized, were necessarily
correct and the acts of Judge de la Rosa necessarily wrong or improper; and (3) he did
not try to get Judge de la Rosa's side at all.
Common to all these utterances of Jurado is the failure to undertake even the most
cursory verification of their objective truth; the abdication of the journalist's duty to report
and interpret the news with scrupulous fairness; and the breach of the law's injunction
that a person act with justice, give everyone his due and observe honesty and good faith
both in the exercise of his rights and in the performance of his duties.
7. Jurado's Proffered Excuses
and Defenses
The principle of press freedom is invoked by Jurado in justification of these published
writings. That invocation is obviously unavailing in light of the basic postulates and the
established axioms or norms for the proper exercise of press freedom earlier set forth in
this opinion. 22
Jurado next puts in issue this Court's power to cite him for contempt. The issue is quickly
disposed of by adverting to the familiar principle reiterated inter alia in Zaldivar v.
Gonzales: 23
. . . (T)he Supreme Court has inherent power to punish for contempt, to control in the
furtherance of justice the conduct of ministerial officers of the Court including lawyers
and all other persons connected in any manner with a case before the Court (In re Kelly,
35 Phil. 944 [1916]; In re Severino Lozano and Anastacio Quevedo, 54 Phil. 801
(1930]; In re Vicente Pelaez, 44 Phil. 567 [1923]; andIn re Vicente Sotto, 82 Phil. 595
[1949]). The power to punish for contempt is "necessary for its own protection against
improper interference with the due administration of justice," "(i)t is not dependent upon
the complaint of any of the parties litigant" (Halili v. Court of Industrial Relations, 136
SCRA 112 [1985]; Andres v. Cabrera, 127 SCRA 802 [1984]; Montalban v. Canonoy, 38

138
SCRA 1 [1971]; Commissioner of Immigration v. Cloribel, 20 SCRA 1241 [1967];
Herras Teehankee v. Director of Prisons, 76 Phil. 630 [1946]).
Contempt is punishable, even if committed without relation to a pending case.
Philippine jurisprudence parallels a respectable array of English decisions
holding contumacious scurrilous attacks against the courts calculated to bring
them into disrepute, even when made after the trial stage or after the end of the
proceedings. The original doctrine laid down in People vs. Alarcon 24 that
there is no contempt if there is no pending case has been abandoned in
subsequent rulings of this Court which have since adopted the Moran dissent
therein, 25 viz.:
Contempt, by reason of publications relating to court and to court proceedings,
are of two kinds. A publication which tends to impede, obstruct, embarrass or
influence the courts in administering justice in a pending suit or proceeding,
constitutes criminal contempt which is summarily punishable by courts. This is
the rule announced in the cases relied upon by the majority. A publication which
tends to degrade the courts and to destroy public confidence in them or that
which tends to bring them in any way into disrepute, constitutes likewise criminal
contempt, and is equally punishable by courts. In the language of the majority,
what is sought, in the first kind of contempt, to be shielded against the influence
of newspaper comments, is the all-important duty of the courts to administer
justice in the decision of a pending case. In the second kind of contempt, the
punitive hand of justice is extended to vindicate the courts from any act or
conduct calculated to bring them into disfavor or to destroy public confidence in
them. In the first, there is no contempt where there is no action pending, as there
is no decision which might in any be influenced by the newspaper publication. In
the second, the contempt exists, with or without a pending case, as what is
sought to be protected is the court itself and its dignity. (12 Am. Jur. pp. 416-417.)
Courts would lose their utility if public confidence in them is destroyed.
The foregoing disposes of Jurado's other contention that the present
administrative matter is not a citation for direct contempt, there being no pending
case or proceeding out of which a charge of direct contempt against him may
arise; this, even without regard to the fact that the statements made by him about
sojourn in Hongkong of six Justices of the Supreme Court were clearly in relation
to a case involving two (2) public utility companies, then pending in this Court. 26
His theory that there is no formal charge against him is specious. His published
statements about that alleged trip are branded as false in no uncertain terms by
the sworn statement and letter of Vice-President Vicente R. Samson of the
Philippine Long Distance Telephone Company which:
(a) "emphatically and categorically" deny that PLDT had made any arrangements
with any travel agency, or with the two travel agencies it patronized or retained,
or paid anything, on account of such alleged trip;
(b) positively affirm (i) that PLDT was "not even aware that any of the justices or
their families . . . (had) made the trip referred to in the Jurado column," and (ii)

that neither Atty. Emil P. Jurado nor anyone in his behalf has ever spoken to . . . (said Mr.
Samson) or any other responsible officer of PLDT about the matter . . .; and
(c) beseech the Court to "take such action (on the matter) as may be appropriate.
As already stated, the Court, in its Resolution of February 16, 1993:
(a) ordered the subject of Samson's letter and affidavit docketed as an official Court
proceeding to determine the truth of Jurado's allegations about it; and
(b) directed also that Jurado be furnished copies of Atty. William Veto's affidavit on the
luncheon party hosted by him (which Jurado reported as one given by Equitable Bank)
and that Jurado file comment on said affidavits as well as allegations in specified
columns of his. Jurado was also furnished copies of the affidavits later submitted by the
two travel agencies mentioned in Samson's statement, and was required to comment
thereon.
It was thus made clear to him that he was being called to account for his published
statements about the matters referred to, and that action would be taken thereon against
him as "may be appropriate." That that was in fact how he understood it is evident from
his submitted defenses, denying or negativing liability for contempt, direct indirect.
Indeed, as journalist of no little experience and a lawyer to boot, he cannot credibly claim
an inability to understand the nature and import of the present proceedings.
Jurado would also claim that the Court has no administrative supervision over him as a
member of the press or over his work as a journalist, and asks why he is being singled
out, and, by being required to submit to a separate administrative proceeding, treated
differently than his other colleagues in media who were only asked to explain their
reports and comments about wrongdoing in the judiciary to the Ad Hoc Committee. The
answer is that upon all that has so far been said, the Court may hold anyone to answer
for utterances offensive to its dignity, honor or reputation which tend to put it in disrepute,
obstruct the administration of justice, or interfere with the disposition of its business or
the performance of its functions in an orderly manner. Jurado has not been singled out.
What has happened is that there have been brought before the Court, formally and in
due course, sworn statements branding his reports as lies and thus imposing upon him
the alternatives of substantiating those reports or assuming responsibility for their
publication.
Jurado would have the Court clarify in what capacity whether a journalist, or as a
member of the bar he has been cited in these proceeding. Thereby he resurrects the
issue he once raised in a similar earlier proceeding: that he is being called to account as
a lawyer for his statements as a
journalist. 27 This is not the case at all. Upon the doctrines and principles already
inquired into and cited, he is open to sanctions as journalist who has misused and
abused press freedom to put the judiciary in clear and present to the danger of disrepute
and of public obdium and opprobrium, detriment and prejudice of the administration of
justice. That he is at the same time a member of the bar has nothing to do with the
setting in of those sanctions, although it may aggravate liability. At any rate, what was
said about the matter in that earlier case is equally cogent here:

139
Respondent expresses perplexity at being called to account for the publications
in question in his capacity as a member of the bar, not as a journalist. The
distinction is meaningless, since as the matter stands, he has failed to justify his
actuations in either capacity, and there is no question of the Court's authority to
call him to task either as a newsman or as a lawyer. What respondent proposes
is that in considering his actions, the Court judge them only as those of a
member of the press and disregard the fact that he is also a lawyer. But his
actions cannot be put into such neat compartments. In the natural order of things,
a person's acts are determined by, and reflect, the sum total of his knowledge,
training and experience. In the case of respondent in particular the Court will take
judicial notice of the frequent appearance in his regular columns of comments
and observations utilizing legal language and argument, bearing witness to the
fact that in pursuing his craft as a journalist he calls upon his knowledge as a
lawyer to help inform and influence his readers and enhance his credibility. Even
absent this circumstance, respondent cannot honestly assert that in exercising
his profession as journalist he does not somehow, consciously or unconsciously,
draw upon his legal knowledge and training. It is thus not realistic, nor perhaps
even possible, to come to fair, informed and intelligent judgment of respondent's
actuations by divorcing from consideration the fact that he is a lawyer as well as
a newspaperman, even supposing, which is not the case that he may thereby
be found without accountability in this matter.
To repeat, respondent cannot claim absolution even were the Court to lend ear to
his plea that his actions be judged solely as those of a newspaperman
unburdened by the duties and responsibilities peculiar to the law profession of
which he is also a member.
8. The Dissents
The eloquent, well-crafted dissents of Messrs. Justices Puno and Melo that
would invoke freedom of the press to purge Jurado's conduct of any taint of
contempt must now be briefly addressed.
a. Apparent Misapprehension
of Antecedents and Issue
Regrettably, there appears to be some misapprehension not only about the
antecedents directly leading to the proceedings at bar but also the basic issues
involved.
The dissents appear to be of the view, for instance, that it was chiefly Jurado's
failure to appear before the Ad Hoc Committee in response to two (2) letters of
invitation issued to him, that compelled the Court to order the matter to be
docketed on February 16, 1993 and to require respondent Jurado to file his
Comment. This is not the case at all. As is made clear in Sub-Heads 3 and 4 of
this opinion, supra, the direct cause of these proceedings was not Jurado's
refusal to appear and give evidence before the Ad Hoc Committee. The direct
cause was the letters of PLDT and Atty. William Veto, supported by affidavits,
denouncing certain of his stories as false, 28 with the former praying that the
Court take such action as may be appropriate. And it was precisely "the matter

dealt with in the letter and affidavit of the PLDT" that this Court ordered to "be duly
DOCKETED, and hereafter considered and acted upon as an official Court proceeding;"
this, by Resolution dated February 16, 1993; the Court also requiring, in the same
Resolution, "that the Clerk of Court SEND COPIES of the PLDT letter and affidavit, and
of the affidavit of Atty. William Veto to Atty. Emil Jurado . . .," and that Jurado should
comment thereon "as well as (on) the allegations made by him in his columns,
herein specified" because of explicit claims, and indications of the falsity or,
inaccuracy thereof.
There thus also appears to be some misapprehension of the basic issues, at least two of
which are framed in this wise: (1) the right of newsmen to refuse subpoenas, summons,
or "invitations" to appear in administrative investigations," and (2) their right "not to reveal
confidential sources of information under R.A. No. 53, as amended" which are not
really involved here in respect of which it is theorized that the majority opinion will
have an inhibiting effect on newsmen's confidential sources of information, and thereby
abridges the freedom of the press.
(1) No Summons or Subpoena
Ever Issued to Jurado
The fact is that no summons or subpoena was ever issued to Jurado by the Ad
Hoc Committee; nor was the issuance of any such or similar processes, or any punitive
measures for disobedience thereto, intended or even contemplated. Like most witnesses
who gave evidence before the Committee, Jurado was merely invited to appear before it
to give information in aid of its assigned task of ascertaining the truth concerning
persistent rumors and reports about corruption in the judiciary. When he declined to
accept the invitations, the Ad HocCommittee took no action save to inform the Court
thereof; and the Court itself also took no action. There is thus absolutely no occasion to
ascribe to that investigation and the invitation to appear thereat a "chilling effect" on the
by and large "hard-boiled" and self-assured members of the media fraternity. If at all, the
patience and forbearance of the Court, despite the indifference of some of its invitees
and projected witnesses, appear to have generated an attitude on their part bordering on
defiant insolence.
(2) No Blanket Excuse Under RA 53
From Responding to Subpoena
Even assuming that the facts were as presented in the separate opinion, i.e.,
that subpoenae had in fact been issued to and served on Jurado, his unexplained failure
to obey the same would prima facie constitute constructive contempt under Section 3,
Rule 71 of the Rules of Court. It should be obvious that a journalist may not refuse to
appear at all as required by a subpoena on the bare plea that under R.A. No 53, he may
not be compelled to disclose the source of his information. For until he knows what
questions will be put to him as witness for which his presence has been compelled
the relevance of R.A. No. 53 cannot be ascertained. His duty is clear. He must obey
the subpoena. He must appear at the appointed place, date and hour, ready to answer
questions, and he may invoke the protection of the statute only at the appropriate time.
b. The Actual Issue

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The issue therefore had nothing to do with any failure of Jurado's to obey
a subpoena, none ever having been issued to him, and the Ad Hoc Committee
having foreborne to take any action at all as regards his failure to accept its
invitations. The issue, as set out in the opening sentence of this opinion,
essentially concerns "(l)iability for published statements demonstrably false or
misleading, and derogatory of the courts and individual judges."
Jurado is not being called to account for declining to identify the sources of his
news stories, or for refusing to appear and give testimony before the Ad
Hoc Committee. He is not being compelled to guarantee the truth of what he
publishes, but to exercise honest and reasonable efforts to determine the truth of
defamatory statements before publishing them. He is being meted the
punishment appropriate to the publication of stories shown to be false and
defamatory of the judiciary stories that he made no effort whatsoever to verify
and which, after being denounced as lies, he has refused, or is unable, to
substantiate.
c. RA 53 Confers No Immunity from Liability
for False or Defamatory Publications
This opinion neither negates nor seeks to enervate the proposition that a
newsman has a right to keep his sources confidential; that he cannot be
compelled by the courts to disclose them, as provided by R.A. 53, unless the
security of the State demands such revelation. But it does hold that he cannot
invoke such right as a shield against liability for printing stories that are untrue
and derogatory of the courts, or others. The ruling, in other words, is that when
called to account for publications denounced as inaccurate and misleading, the
journalist has the option (a) to demonstrate their truthfulness or accuracy even if
in the process he disclose his sources, or (b) to refuse, on the ground that to do
so would require such disclosure. In the latter event, however, he must be ready
to accept the consequences of publishing untruthful or misleading stories the
truth and accuracy of which he is unwilling or made no bona fide effort to prove;
for R.A. 53, as amended, is quite unequivocal that the right of refusal to disclose
sources is "without prejudice to . . . liability under civil and criminal laws."
R.A. 53 thus confers no immunity from prosecution for libel or for other sanction
under law. It does not declare that the publication of any news report or
information which was "related in confidence" to the journalist is not actionable;
such circumstance (of confidentiality) does not purge, the publication of its
character as defamatory, if indeed it be such, and actionable on that ground. All it
does is give the journalist the right to refuse (or not to be compelled) to reveal the
source of any news report published by him which was revealed to him in
confidence.
A journalist cannot say, e.g.: a person of whose veracity I have no doubt told me
in confidence that Justices X and Y received a bribe of P1M each for their votes
in such and such a case, or that a certain Judge maintains a mistress, and when
called to account for such statements, absolve himself by claiming immunity
under R.A. 53, or invoking press freedom.

d. A Word about "Group Libel"

There is hardly need to belabor the familiar doctrine about group libel and how it has
become the familiar resort of unscrupulous newsmen who can malign any number of
anonymous members of a common profession, calling or persuasion, thereby putting an
entire institution like the judiciary in this case in peril of public contumely and
mistrust without serious risk of being sued for defamation. The preceding discussions
have revealed Jurado's predilection for, if not his normal practice of, refusing to
specifically identify or render identifiable the persons he maligns. Thus, he speaks of the
"Magnificent Seven," by merely referring to undisclosed regional trial court judges in
Makati; the "Magnificent Seven" in the Supreme Court, as some undesignated justices
who supposedly vote as one; the "Dirty Dozen," as unidentified trial judges in Makati and
three other cities. He adverts to an anonymous group of justices and judges for whom a
bank allegedly hosted a party; and six unnamed justices of this Court who reportedly
spent a prepaid vacation in Hong Kong with their families. This resort to generalities and
ambiguities is an old and familiar but reprehensible expedient of newsmongers to avoid
criminal sanctions since the American doctrine of group libel is of restricted application in
this jurisdiction. For want of a definitely identified or satisfactorily identifiable victim, there
is generally no actionable libel, but such a craven publication inevitably succeeds in
putting all the members of the judiciary thus all together referred to under a cloud of
suspicion. A veteran journalist and lawyer of long standing that he is, Jurado could not
have been unaware of the foregoing realities and consequences.
e. Substantiation of News Report
Not Inconsistent with RA 53
It is argued that compelling a journalist to substantiate the news report or information
confidentially revealed to him would necessarily negate or dilute his right to refuse
disclosure of its source. The argument will not stand scrutiny.
A journalist's "source" either exists or is fictitious. If the latter, plainly, the journalist is
entitled to no protection or immunity whatsoever.
If the "source" actually exists, the information furnished is either capable of independent
substantiation, or it is not. If the first, the journalist's duty is clear: ascertain, if not obtain,
the evidence by which the information may be verified before publishing the same; and if
thereafter called to account therefor, present such evidence and in the process afford the
party adversely affected thereby opportunity to dispute the information or show it to be
false.
If the information is not verifiable, and it is derogatory of any third party, then it ought not
to be published for obvious reasons. It would be unfair to the subject of the report, who
would be without means of refuting the imputations against him. And it would afford an
unscrupulous journalist a ready device by which to smear third parties without the
obligation to substantiate his imputations by merely claiming that the information had
been given to him "in confidence".
It is suggested that there is another face to the privileged character of a journalist's
source of information than merely the protection of the journalist, and that it is intended to
protect also the source itself. What clearly is implied is that journalist may not reveal his

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source without the latter's clearance or consent. This totally overlooks the fact
that the object of a derogatory publication has at least an equal right to know the
source thereof and, if indeed traduced, to the opportunity of obtaining just
satisfaction from the traducer.
9. Need for Guidelines
Advertences to lofty principle, however eloquent and enlightening, hardly address
the mundane, but immediate and very pertinent, question of whether a journalist
may put in print unverified information derogatory of the courts and judges and
yet remain immune from liability for contempt for refusing, when called upon, to
demonstrate their truth on the ground of press freedom or by simply claiming that
he need not do so since (or if) it would compel him to disclose the identity of his
source or sources.
The question, too, is whether or not we are prepared to say that a journalist's
obligation to protect his sources of information transcends, and is greater than,
his duty to the truth; and that, accordingly, he has no obligation whatsoever to
verify, or exercise bona fide efforts to verify, the information he is given or obtain
the side of the party adversely affected before he publishes the same.
True, the pre-eminent role of a free press in keeping freedom alive and
democracy in full bloom cannot be overemphasized. But it is debatable if that role
is well and truly filled by a press let loose to print what it will, without reasonable
restraints designed to assure the truth and accuracy of what is published. The
value of information to a free society is in direct proportion to the truth it contains.
That value reduces to little or nothing when it is no longer possible for the public
to distinguish between truth and falsehood in news reports, and the courts are
denied the mechanisms by which to make reasonably sure that only the truth
reaches print.
a. No Constitutional Protection for Deliberately
False or Recklessly Inaccurate Reports
It is worth stressing that false reports about a public official or other person are
not shielded from sanction by the cardinal right to free speech enshrined in the
Constitution. Even the most liberal view of free speech has never countenanced
the publication of falsehoods, specially the persistent and unmitigated
dissemination of patent lies. The U.S. Supreme Court, 29 while asserting that
"(u)nder the First Amendment there is no such thing as a false idea," and that
"(h)owever pernicious an opinion may seem, we depend for its correction not on
the conscience of judges and juries but on the competition of other ideas" (citing
a passage from the first Inaugural Address of Thomas Jefferson), nonetheless
made the firm pronouncement that "there is no constitutional value in false
statements of fact," and "the erroneous statement of fact is not worthy of
constitutional protection (although) . . . nevertheless inevitable in free debate."
"Neither the intentional lie nor the careless error," it said, "materially advances
society's interest in "unhibited, robust, and wide-open" debate on public issues.
New York Times Co. v. Sullivan, 376 US, at 270, 11 L Ed 2d 686, 95 ALR2d 1412.
They belong to that category of utterances which "are no essential part of any

exposition of ideas, and are of such slight social value as a step to the truth that any
benefit that may be derived from them is clearly outweighed by the social interest in
order and morality." Chaplinsky v, new Hampshire, 315 US 568, 572, 86 L Ed 1031, 62 S
Ct 766 (1942).
"The use of calculated falsehood," it was observed in another case, 30 "would put a
different cast on the constitutional question. Although honest utterances, even if
inaccurate, may further the fruitful exercise of the right of free speech, it does not follow
that the lie, knowingly and deliberately published about a public official, should enjoy a
like immunity. . . . (T)he knowingly false statement and the false statement made with
reckless disregard of the truth, do not enjoy constitutional protection."
Similarly, in a 1969 case concerning a patently false accusation made against a public
employee avowedly in fulfillment of a "legal, moral, or social duty," 31 this Court, through
the late Chief Justice Roberto Concepcion, ruled that the guaranty of free speech cannot
be considered as according protection to the disclosure of lies, gossip or rumor, viz.:
. . . Defendant's civil duty was to help the Government clean house and weed out
dishonest, unfit or disloyal officers and employees thereof, where there is reasonable
ground to believe that they fall under this category. He had no legal right, much less duty,
to gossip, or foster the circulation of rumors, or jump at conclusions and more so if they
are gratuitous or groundless. Otherwise, the freedom of speech, which is guaranteed
with a view to strengthening our democratic institutions and promoting the general
welfare, would be a convenient excuse to engage in the vituperation of individuals, for
the attainment of private, selfish and vindictive ends, thereby hampering the operation of
the Government with. administrative investigations of charges preferred without any color
or appearance of truth and with no other probable effect than the harassment of the
officer or employee concerned, to the detriment of public service and public order.
b. No "Chilling Effect"
The fear expressed, and earlier adverted to, that the principles here affirmed would have
a "chilling effect" on media professionals, seems largely unfounded and should be
inconsequential to the greater number of journalists in this country who, by and large, out
of considerations of truth, accuracy, and fair play, have commendably refrained from
ventilating what would otherwise be "sensational" or "high-visibility" stories. In merely
seeking to infuse and perpetuate the same attitude and sense of responsibility in all
journalists, i.e., that there is a need to check out the truth and correctness of information
before publishing it, or that, on the other hand, recklessness and crass sensationalism
should be eschewed, this decision, surely, cannot have such "chilling effect," and no
apprehension that it would deter the determination of truth or the public exposure of
wrong can reasonably be entertained.
The people's right to discover the truth is not advanced by unbridled license in reportage
that would find favor only with extremist liberalism. If it has done nothing else, this case
has made clear the compelling necessity of the guidelines and parameters elsewhere
herein laid down. They are eminently reasonable, and no responsible journalist should
have cause to complain of difficulty in their observance.
10. Afterword

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It seems fitting to close this opinion, with the words of Chief Justice Moran,
whose pronouncements have already been earlier quoted, 32 and are as
germane today as when they were first written more than fifty (50) years ago. 33
It may be said that respect to courts cannot be compelled and that public
confidence should be a tribute to judicial worth, virtue and intelligence. But
compelling respect to courts is one thing and denying the courts the power to
vindicate themselves when outraged is another. I know of no principle of law that
authorizes with impunity a discontended citizen to unleash, by newspaper
publications, the avalanche of his wrath and venom upon courts and judges. If he
believes that a judge is corrupt and that justice has somewhere been perverted,
law and order require that he follow the processes provided by the Constitution
and the statutes by instituting the corresponding proceedings for impeachment or
otherwise. . . .
xxx xxx xxx
It might be suggested that judges who are unjustly attacked have a remedy in an
action for libel. This suggestion has, however, no rational basis in principle. In the
first place, the outrage is not directed to the judge as a private individual but to
the judge as such or to the court as an organ of the administration of justice. In
the second place, public interests will gravely suffer where the judge, as such,
will, from time to time, be pulled down and disrobed of his judicial authority to
face his assailant on equal grounds and prosecute cases in his behalf as a
private individual. The same reasons of public policy which exempt a judge from
civil liability in the exercise of his judicial functions, most fundamental of which is
the policy to confine his time exclusively to the discharge of his public duties,
applies here with equal, if not superior, force (Hamilton v. Williams, 26 Ala. 529;
Busteed v. Parson, 54 Ala. 403; Ex parte McLeod, 120 Fed. 130; Coons v. State,
191 Ind. 580; 134 N. E. 194). . . .
Jurado's actuations, in the context in which they were done, demonstrate gross
irresponsibility, and indifference to factual accuracy and the injury that he might
cause to the name and reputation of those of whom he wrote. They constitute
contempt of court, directly tending as they do to degrade or abase the
administration of justice and the judges engaged in that function. By doing them,
he has placed himself beyond the circle of reputable, decent and responsible
journalists who live by their Code or the "Golden Rule" and who strive at all times
to maintain the prestige and nobility of their calling.
Clearly unrepentant, exhibiting no remorse for the acts and conduct detailed
here, Jurado has maintained a defiant stance. "This is a fight I will not run from,"
he wrote in his column of March 21, 1993; and again, "I will not run away from a
good fight," in his column of March 23, 1993. Such an attitude discourages
leniency, and leaves no choice save the application of sanctions appropriate to
the offense.
WHEREFORE, the Court declares Atty. Emil (Emiliano) P. Jurado guilty of
contempt of court and in accordance with Section 6, Rule 71 of the Rules of
Court, hereby sentences him to pay a fine of one thousand pesos (P1,000,00).

IT IS SO ORDERED.
Feliciano, Bidin, Regalado Davide, Jr., Romero, Bellosillo, Quiason, Mendoza and
Francisco, JJ., concur.
Vitug and Kapunan, JJ., took no part.
THIRD DIVISION
[G.R. No. 150256. March 25, 2004]
CATALINO P. ARAFILES, petitioner, vs. PHILIPPINE JOURNALISTS, INC., ROMY
MORALES, MAX BUAN, JR., and MANUEL C. VILLAREAL, JR.,respondents.
DECISION
CARPIO-MORALES, J.:
Petitioner, Catalino P. Arafiles, seeks a review of the July 31, 2001 Decision[1] of the
Court of Appeals dismissing his complaint for damages against respondents Philippine
Journalists, Inc., Romy Morales, Max Buan, Jr., and Manuel C. Villareal, Jr.
About 2 a.m. on April 14, 1987, while respondent Morales, a reporter of Peoples Journal
Tonight, was at the Western Police District (WPD) Headquarters along United Nations
Avenue, Manila, Emelita Despuig (Emelita), an employee of the National Institute of
Atmospheric Sciences (NIAS), lodged a complaint against petitioner, a NIAS director, for
forcible abduction with rape and forcible abduction with attempted rape before the then
on duty Patrolman Benito Chio at the General Assignments Section of the headquarters.
[2]
In the presence of Morales, Emelita executed a sworn statement[3] narrating the events
surrounding the reported offenses committed against her by petitioner. The pertinent
portions of her sworn statement are reproduced hereunder:
T: Ano ang dahilan at ikaw ay naririto ngayon sa aming tanggapan at nagbibigay ng
isang malaya at kusang loob na salaysay?
A: Para po magsuplong, tungkol sa karumaldumal naginawa sa akin ni Director Catalino
P. Arafiles ng PAG-ASA.
T: Kailan at saan ito nangyari?
A: Noong hong March 14, 1987, diyan ho sa Plaza Miranda ako sapilitan isinakay sa
kotse niya at itinuloy sa Flamingo hotel bandang alas pagitan ng 5:30 at 6:00 ng hapon.
T: Kailan naman ang sumunod na pagtatangka sa puri mo si Direktor Arafiles?
S: Kagabi ho. Bandang alas 9:00 ng gabi.
T: Sa ikaliliwanag ng pagsisiyasat na ito maari bang isalaysay mo sa akin sa isang
maikling talata kung paano nangyari ang ipinagsusumbong mong ito?
S Kagagaling ko lang po sa aking klase sa Feati University noong March 14, 1987,
bandang alas 5:45 ng hapon, humigit kumulang, habang ako ay naghihintay ng
sasakyan pauwi mula sa Plaza Miranda ng may tumigil sa sasakyan sa tabi ko, at bigla
na lang po akong hinaltak ni Direktor Arafiles papasok sa loob ng kotse niya at may
ipina-amoy sa akin na nasa tissue na kulay yellow at bigla na lamang akong naghina at
nahilo. Sabay din ho sa pagpapa-amoy niya sa akin ang pagtutok niya sa akin ng isang
kutsilyo, at sabi sa akin ay huwag daw akong makulit tapos ay pinatakbo na niya ang
kotse niya. Pamaya-maya ay nararamdaman kong karga-karga niya ako pa-akyat sa

143
isang hagdanan. Tapos ibinaba ako sa isang kamang naroroon at akoy unti-unti
niyang hinuhubaran. Pamaya-maya ho ay pinaghahalikan po niya ako at
nararamdaman ko rin ang mga kamay niya sa mga maseselan na parte ng
katawan ko, pero wala akong sapat na lakas para pigilin siya o sumigaw man
lamang. Nagawa niyang makuha ang aking pagka-babae noong gabing iyon at
nararamdaman kong masakit na masakit ang buong katawan ko. Tinakot niya
ako na huwag magsumbong sa mga kapatid ko at sa mga maykapangyarihan at
kung hindi ay papatayin daw ako at tatanggalin pa sa trabaho at pati mga kapatid
ko ay papatayin daw po. Binibigyan ako ng pera pero ayaw kung tanggapin pero
pilit niyang inilagay sa bag ko at ng tingnan ko ay P55.00 lang. Pagkatapos ay
hinila na niya akong pababa at pilit ding pinasakay sa kotse niya at doon ako
pinababa sa isang lugar na maraming dumadaan ng biyaheng Quiapo at
sumakay na lamang ako ng jeep pauwi. Kagabi naman po, bandang alas-9:00 ng
gabi, sa may kanto ng United Nations Ave. at Taft Ave., Ermita, Mla., habang
hinihintay ko ang pinsan ko na umihi lang matapos akong bumili ng gamot ng
tumigil na naman sa tapat ko ang kotse ni Director. Bigla na lamang niya akong
hinila papasok sa kotse sabay tutok sa akin ng kutsilyo at sabi sa akin ay huwag
na raw akong papalag, total ay butas na raw ako. Sa takot ko ay hindi ako
nakakibo at itinuloy din ako sa Flamingo hotel. Ng hinuhubaran na niya ako ay
bigla na lamang nag-buzzer tapos naka-usap niya yong bellboy na nagsabi sa
kanya na may naghahanap daw sa akin o sa amin dalawa na nakakita sa
paghaltak niya sa akin. Ng umakyat sa itaas yong bellboy ay nag-usap sila
sandali tapos nakita ko pinagbibigyan niya ng pera yong bellboy at yong
guwardiya. Tapos ay doon kami bumaba sa likod na sa tingin ko ay fire escape at
nakalabas kami ng hotel tapos doon ako ibinaba sa isang lugar na hindi ko rin
matandaan kong saan at doon na lang ako kumuha ng taxi at nagpahatid ako sa
Pasay City Police ngunit dito rin ako itinuro.[4] (Underscoring supplied)
Following the execution by Emelita of her sworn statement, Patrolman Chio
made the following entry in the Police Blotter which was perused by Morales:
280
11:00 PM
4/13/87 PAT. BENITO CHIO ON DUTY
2:00 AM 4/14/87 Subject Emelita Despuig y Puaso reported and personally came
to this office that she was abducted by a certain Catalino P. Arafiles and alledgely
(sic) rape (sic) last March 14, 1987 in a motel in Ermita. The undersigned made a
referral to Medico-legal for Physical/Genital Exam. B. Chio.[5]
Morales thereupon personally interviewed Emelita for the purpose of reporting
the same in the next issue of Peoples Journal Tonight.[6] By his claim, he, after
the interview, tried to contact Arafiles at the NIAS office to verify Emelitas story
but failed, the office having already closed.[7]
Morales then wrote an account about Emelitas complaint and submitted it to his
editor.[8]
That same day, April 14, 1987, Morales report appeared as headline on Peoples
Journal Tonight reading:

GOVT EXEC RAPES COED

By ROMY MORALES
A PRETTY coed, working as a grant-in-aid scholar at a Manila university and as an office
worker at a government office in Quezon City, was raped by her boss, a government
agency director, last March 15, but afraid to lose her job and of being harmed she chose
to keep her ordeal to herself.
Last night, the government man, a director of the National Institute of Atmospheric
Science, a branch of PAGASA, again abducted the girl after following her around, forcing
her into his car and locking her up in a Malate motel.
This time, however, the girl was not to be raped as easily as the first time, when the man
used chloroform in forcing her into submission.
The girl fought like a tigress, alerting roomboys at the Flamingo Motel at corner Carolina
and Quirino Ave. Perhaps as a ploy, motel personnel called up the room and told the
man some Capcom soldiers were waiting for them outside.
The call saved the girl from being raped the second time around.
Her abductor immediately left the motel, with the girl in tow, and then dropped her off
somewhere in Ermita.
When the man had gone, the girl took a taxi and went straight to the Western Police
District and filed a complaint.
The girl, 20-year-old Emilita Arcillano (not her real name), said she was first raped last
March 15 by her boss whom she identified as a certain Director Catalino Arafiles.
She recalled that while waiting for a ride at Plaza Miranda, Arafiles alighted from his
Volkswagen Beetle, dragged her inside and then pressed a cotton with chloroform on her
mouth and nose.
When she regained consciousness she was already inside the Flamingo Motel, already
raped, she said.
She said Arafiles told her not to report the matter or she would lose her job and she and
her family would be harmed.
When the act was to be repeated last night, Emilita decided to fight. Nanlaban ako at
nagsisigaw at sinabi kong mabuti pang patayin na lang niya ako, Emilita told Pat. Benito
Chio of WPD General Assignments Section.
She said the suspect abducted her at the corner of Taft Ave. and United Nations Ave. at
about 9:15 last night.
When Arafiles was told Capcom soldiers were waiting for them outside the Flamingo
Motel, he allegedly paid P100 each to four roomboys to help him go out through a side
gate.
The police will pick up Arafiles for questioning today.[9]
(Emphasis and underscoring supplied)
About a year following the publication of above-quoted report or on April 13, 1988,
petitioner instituted a complaint before the Regional Trial Court of Quezon City against
respondents for damages[10] arising therefrom.
In his Complaint, docketed as Civil Case No. Q-53399, petitioner alleged that on account
of the grossly malicious and overly sensationalized reporting in the news item prepared

144
by respondent Morales, edited by respondent Buan, Jr., allowed for publication
by respondent Villareal, Jr. as president of Philippine Journalists, Inc., and
published by respondent Philippine Journalists, Inc., aspersions were cast on his
character; his reputation as a director of the NIAS at the Philippine Atmospheric,
Geophysical and Astronomical Services Administration (PAGASA) was
injured; he became the object of public contempt and ridicule as he was depicted
as a sex-crazed stalker and serial rapist; and the news item deferred his
promotion to the position of Deputy Administrator of PAGASA.
In their Answer,[11]respondents prayed for the dismissal of the Complaint, they
alleging that the news item, having been sourced from the Police Blotter which is
an official public document and bolstered by a personal interview of the victim is
therefore privileged and falls within the protective constitutional provision of
freedom of the press . . . . , and by way of Compulsory Counterclaim, they prayed
for the award of moral and exemplary damages plus attorneys fees.
Branch 97 of the Quezon City RTC, noting as follows:
[T]he publication stated that a pretty coed was raped by her boss, and not
qualifying said statement that it was merely a report, with such phrases as
allegedly or reportedly. Furthermore, the article in question continued reporting
as if it were fact and truth the alleged abduction of the same girl by her boss,
identified as Director of the National Institute of Atmospheric Science. The
questioned article did not even hint that it was merely based on interview with the
said girl or that it was reflected in the police blotter, and then it would have been
fair, for the mind of the reader would be offered the other side to speculate on. As
it turned out, the other side, the side of the defamed and libeled had an alibi to
prove the story false, aside from his testimony that proved the inherent
unnaturalness and untruthfulness of the alleged victim of the alleged rape and
abduction,[12]
rendered a Decision[13] of August 13, 1992, in favor of petitioner, disposing as
follows:
In view of the above evidence and the foregoing considerations, this Court
hereby renders judgment in favor of plaintiff and against the above-mentioned
defendants, and orders the latter to pay jointly and severally to the plaintiff the
following amounts: 1.) P1,000,000.00, as nominal damages; 2.) P50,000.00, as
exemplary damages; 3.) P1,000.000.00, as moral damages; 4.) P50,000.00, as
attorneys fees; and 5.) Costs of suit.
SO ORDERED.[14]
Respondents motion for reconsideration[15] of the trial courts decision having
been denied by Resolution[16] of March 2, 1993, they appealed to the Court of
Appeals (CA).
Citing Borjal et al. v. Court of Appeals et al.[17] which held that:
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 be reasonably inferred from the facts.
[18] (Underscoring supplied),
the CA found that herein petitioner was not able to prove by a preponderance of
evidence that [herein respondents] were motivated by a sinister intent to cause harm and
injury to [herein petitioner] . . . Accordingly, by Decision of July 31, 2001, the CA reversed
and set aside the trial courts decision and dismissed petitioners complaint.
[19] Petitioners motion for reconsideration[20] of the appellate courts decision was
denied by Resolution of October 12, 2001,[21] hence, the petition at bar.
The petition revolves around the issue of whether the CA erred in holding that the
publication of the news item was not attended with malice to thus free respondents of
liability for damages.
It bears noting that the complaint petitioner instituted is one for damages under Article 33
of the Civil Code which provides:
Art. 33. In cases of defamation, fraud, and physical injuries, a civil action for damages,
entirely separate and distinct from the criminal action, may be brought by the injured
party. Such civil action shall proceed independently of the criminal prosecution, shall
require only a preponderance of evidence.
Article 33 contemplates a civil action for the recovery of damages that is entirely
unrelated to the purely criminal aspect of the case.[22] A civil action for libel under this
article shall be instituted and prosecuted to final judgment and proved by preponderance
of evidence separately from and entirely independent of the institution, pendency or
result of the criminal action because it is governed by the provisions of the New Civil
Code and not by the Revised Penal Code governing the criminal offense charged and
the civil liability arising therefrom.[23]
The pertinent provisions of the Civil Code, those found in the Chapter on Human
Relations, namely Articles 19 and 21, provide:
Art. 19. Every person must, in the exercise of his rights and in the performance of his
duties, act with justice, give everyone his due, and observe honesty and good faith.
Art. 21. Any person who willfully causes loss or injury to another in a manner that is
contrary to morals, good customs or public policy shall compensate the latter for the
damage.
In actions for damages for libel, it is axiomatic that the published work alleged to contain
libelous material must be examined and viewed as a whole.[24]
The article must be construed as an entirety including the headlines, as they may
enlarge, explain, or restrict or be enlarged, explained or strengthened or restricted by the
context. Whether or not it is libelous, depends upon the scope, spirit and motive of the
publication taken in its entirety. x x x
A publication claimed to be defamatory must be read and construed in the sense in
which the readers to whom it is addressed would ordinarily understand it. So, the whole

145
item, including display lines, should be read and construed together, and its
meaning and signification thus determined.
In order to ascertain the meaning of a published article, the whole of the article
must be considered, each phrase must be construed in the light of the entire
publication x x x The headlines of a newspaper must also be read in connection
with the language which follows.[25]
Petitioner brands the news item as a malicious sensationalization of a patently
embellished and salacious narration of fabricated facts involving rape and
attempted rape incidents. For, so petitioner argues, the police blotter which was
the sole basis for the news item plainly shows that there was only one count of
abduction and rape reported by Emelita.
The entry made by Patrolman Chio in the police blotter which respondent
Morales scrutinized at the WPD headquarters recorded indeed Emelitas
complaint about only a case for abduction with rape which occurred on March 14,
1987. In her above-quoted sworn statement, however, earlier given before the
same Patrolman Chio in the presence of Morales who subsequently interviewed
her, Emelita reported about an abduction with rape incident which occurred on
March 14, 1987 and an abduction incident which occurred on April 13, 1987.
Petitioners anchoring of his complaint for damages on a charge of malicious
sensationalization of fabricated facts thus fails.
The presentation of the news item subject of petitioners complaint may have
been in a sensational manner, but it is not per se illegal.[26]
Respondents could of course have been more circumspect in their choice of
words as the headline and first seven paragraphs of the news item give the
impression that a certain director of the NIAS actually committed the crimes
complained of by Emelita. The succeeding paragraphs (in which petitioner and
complainant Emelita were eventually identified) sufficiently convey to the readers,
however, that the narration of events was only an account of what Emelita had
reported at the police headquarters.
In determining the manner in which a given event should be presented as a news
item and the importance to be attached thereto, newspapers must enjoy a certain
degree of discretion.
Every citizen of course has the right to enjoy a good name and reputation, but we
do not consider that the respondents, under the circumstances of this case, had
violated said right or abused the freedom of the press. The newspapers should
be given such leeway and tolerance as to enable them to courageously and
effectively perform their important role in our democracy. In the preparation of
stories, press reporters and [editors] usually have to race with their deadlines;
and consistently with good faith and reasonable care, they should not be held to
account, to a point of suppression, for honest mistakes or imperfection in the
choice of words.[27] (Underscoring supplied)
In fine, this Court finds that case against respondents has not been sufficiently
established by preponderance of evidence.
WHEREFORE, the petition is hereby DENIED.

SO ORDERED.
Sandoval-Gutierrez, and Corona, JJ., concur.
Vitug, (Chairman), on official leave.

Republic of the Philippines

SUPREME COURT
Manila
THIRD DIVISION
G.R. No. 159751
December 6, 2006
GAUDENCIO E. FERNANDO and RUDY ESTORNINOS, petitioners,
vs.
COURT OF APPEALS, respondent.
DECISION
QUISUMBING, J.:
This petition for review on certiorari assails the Decision1 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
2012 of the Revised Penal Code, as amended by Presidential Decree Nos. 960 and 969,
and sentenced each to imprisonment of four (4) years and one (1) day to six (6) years
of prision correccional, and to pay the fine of P6,000 and cost of suit.
The facts as culled from the records are as follows.
Acting on reports of sale and distribution of pornographic materials, officers of the
Philippine National Police Criminal Investigation and Detection Group in the National
Capital Region (PNP-CIDG NCR) conducted police surveillance on the store bearing the
name of Gaudencio E. Fernando Music Fair (Music Fair). On May 5, 1999, Judge
Perfecto Laguio of the Regional Trial Court of Manila, Branch 19, issued Search Warrant
No. 99-1216 for violation of Article 201 of the Revised Penal Code against petitioner
Gaudencio E. Fernando and a certain Warren Tingchuy. The warrant ordered the search
of Gaudencio E. Fernando Music Fair at 564 Quezon Blvd., corner Zigay Street, Quiapo,
Manila, and the seizure of the following items:
a. Copies of New Rave Magazines with nude obscene pictures;
b. Copies of IOU Penthouse Magazine with nude obscene pictures;
c. Copies of Hustler International Magazine with nude obscene pictures; and

146
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:
That on or about May 5, 1999, in the City of Manila, Philippines, the said
accused, did then and there willfully, unlawfully, feloniously, publicly and jointly
exhibit indecent or immoral acts, scenes or shows at Music Fair, located at 564
Quezon Blvd., corner Zigay [S]t., Quiapo[,] this City[,] by then and there selling
and exhibiting obscene copies of x-rated VHS Tapes, lewd films depicting men
and women having sexual intercourse[,] lewd photographs of nude men and
women in explicating (sic) positions which acts serve no other purpose but to
satisfy the market for lust or pornography to public view.
Contrary to law.4
When arraigned, petitioners and Tingchuy pleaded not guilty to the offense
charged. Thereafter, trial ensued.
The prosecution offered the confiscated materials in evidence and presented the
following witnesses: Police Inspector Rodolfo L. Tababan, SPO4 Rolando
Buenaventura and Barangay Chairperson Socorro Lipana, who were all present
during the raid. After the prosecution presented its evidence, the counsel for the
accused moved for leave of court to file a demurrer to evidence, which the court
granted. On October 5, 2000, the RTC however denied the demurrer to evidence
and scheduled the reception of evidence for the accused. A motion for
reconsideration was likewise denied.
Thereafter, the accused waived their right to present evidence and instead
submitted the case for decision.5
The RTC acquitted Tingchuy for lack of evidence to prove his guilt, but convicted
herein petitioners as follows:
WHEREFORE, premises considered, the Court finds accused GAUDENCIO
FERNANDO and RUDY ESTORNINOS GUILTY beyond reasonable doubt of the
crime charged and are hereby sentenced to suffer the indeterminate penalty of
FOUR (4) YEARS and ONE (1) DAY as minimum to SIX (6) YEARS of prision
correccional as maximum, to pay fine of P6,000.00 each and to pay the cost.
For failure of the prosecution to prove the guilt of accused WARREN TINGCHUY
beyond reasonable doubt, he is hereby ACQUITTED of the crime charged.
The VHS tapes and the nine (9) magazines utilized as evidence in this case are
hereby confiscated in favor of the government.
SO ORDERED.6
Petitioners appealed to the Court of Appeals. But the appellate courtlatter
affirmed in toto the decision of the trial court, as follows,

WHEREFORE, finding no reversible error on the part of the trial court, the decision
appealed from isAFFIRMED 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 courts reason for convicting him, on
a presumption of continuing ownership shown by an expired mayors 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 Fernandos
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 prosecutions evidence.11 . Instead, they
waived their right to present evidence and opted to submitted the case for
decision.HYPERLINK
"http://www.lawphil.net/judjuris/juri2006/dec2006/gr_159751_2006.html"a1 12 The trial
court therefore resolved the case on the basis of prosecutions 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

147
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 arts 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 thatKottinger 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 andPadan y
Alova gave too much latitude for judicial arbitrament, which has permitted ad lib of ideas
and "two-cents worths" among judges as to what is obscene or what is art.24
The Court in Pita also emphasized the difficulty of the question and pointed out how hazy
jurisprudence is on obscenity and how jurisprudence actually failed to settle questions on
the matter. Significantly, the dynamism of human civilization does not help at all. It is
evident that individual tastes develop, adapt to wide-ranging influences, and keep in step
with the rapid advance of civilization.25 It seems futile at this point to formulate a perfect
definition of obscenity that shall apply in all cases.
There is no perfect definition of "obscenity" but the latest word is that of Miller v.
California which established basic guidelines, to wit: (a) whether to the average person,
applying contemporary standards would find the work, taken as a whole, appeals to the
prurient interest; (b) whether the work depicts or describes, in a patently offensive way,
sexual conduct specifically defined by the applicable state law; and (c) whether the work,
taken as a whole, lacks serious literary, artistic, political, or scientific value.26 But, it
would be a serious misreading of Miller to conclude that the trier of facts has the
unbridled discretion in determining what is "patently offensive."27 No one will be subject
to prosecution for the sale or exposure of obscene materials unless these materials
depict or describe patently offensive "hard core" sexual conduct.28 Examples included
(a) patently offensive representations or descriptions of ultimate sexual acts, normal or
perverted, actual or simulated; and (b) patently offensive representations or descriptions
of masturbation, excretory functions, and lewd exhibition of the genitals.29 What remains
clear is that obscenity is an issue proper for judicial determination and should be treated
on a case to case basis and on the judges 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 actsThe exhibition of the sexual act in their
magazines is but a clear and unmitigated obscenity, indecency and an offense to public
morals, inspiringlust 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.

148
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 courts 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.32 The 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 mayors permit
was under his name. Even his bail bond shows that Hhe lives in the same
place.34 Moreover, the mayors permit dated August 8, 1996, shows that he is
the owner/operator of the store.35 While the mayors permit had already expired,
it does not negate the fact that Fernando owned and operated the establishment.
It would be absurd to make his failure to renew his business permit and illegal
operation a shield from prosecution of an unlawful act. Furthermore, when he
preferred not to present contrary evidence, the things which he possessed were
presumptively his.36
Petitioner Estorninos is likewise liable as the store attendant actively engaged in
selling and exhibiting the obscene materials. Prosecution witness Police
Inspector Tababan, who led the PNP-CIDG NCR that conducted the search,

identified him as the store attendant upon whom the search warrant was
served.37 Tababan had no motive for testifying falsely against Estorninos and we uphold
the presumption of regularity in the performance of his duties. Lastly, this Court accords
great respect to and treats with finality the findings of the trial court on the matter of
credibility of witnesses, absent any palpable error or arbitrariness in their findings.38 In
our view, no reversible error was committed by the appellate court as well as the trial
court in finding the herein petitioners guilty as charged.
WHEREFORE, the Decision dated March 21, 2003 and the Resolution dated September
2, 2003, of the Court of Appeals affirming the Decision of the Regional Trial Court of
Manila, Branch 21, in Criminal Case No. 99-176582 are hereby AFFIRMED.
SO ORDERED.
Republic of the Philippines
SUPREME COURT
Manila
EN BANC
G.R. No. L-31687 February 26, 1970
NAVARRO, petitioner,
vs.
CITY MAYOR ANTONIO J. VILLEGAS, respondent.
RESOLUTION
GENTLEMEN:
Quoted hereunder, for your information, is a resolution of this Court of even date:
"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:
That respondent Mayor has not denied nor absolutely refused the permit sought by
petitioner;
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;

149
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 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:
That civil rights and liberties can exist and be preserved only in an order society;
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.

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.

Separate Opinions

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. Taada Jose W. Diokno and Haydee B. Yorac for petitioner.
The Solicitor General for respondent.

VILLAMOR, J., concurring:

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.
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

FERNANDO, C.J.:+.wph!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

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intelligence reports which strongly militate against the advisability of issuing such
permit at this time and at the place applied for." 6 To be more specific, reference
was made to persistent intelligence reports affirm[ing] the plans of
subversive/criminal elements to infiltrate and/or disrupt any assembly or
congregations where a large number of people is expected to
attend." 7 Respondent Mayor suggested, however, in accordance with the
recommendation of the police authorities, that "a permit may be issued for the
rally if it is to be held at the Rizal Coliseum or any other enclosed area where the
safety of the participants themselves and the general public may be ensured." 8
The oral argument was heard on October 25, 1983, the very same day the
answer was filed. The Court then deliberated on the matter. That same afternoon,
a minute resolution was issued by the Court granting the mandatory injunction
prayed for on the ground that there was no showing of the existence of a clear
and present danger of a substantive evil that could justify the denial of a permit.
On this point, the Court was unanimous, but there was a dissent by Justice
Aquino on the ground that the holding of a rally in front of the US Embassy would
be violative of Ordinance No. 7295 of the City of Manila. The last sentence of
such minute resolution reads: "This resolution is without prejudice to a more
extended opinion." 9 Hence this detailed exposition of the Court's stand on the
matter.
1. It is thus clear that the Court is called upon to protect the exercise of the
cognate rights to free speech and peaceful assembly, arising from the denial of a
permit. The Constitution is quite explicit: "No law shall be passed abridging the
freedom of speech, or of the press, or the right of the people peaceably to
assemble and petition the Government for redress of grievances." 10 Free
speech, like free press, may be Identified with the liberty to discuss publicly and
truthfully any matter of public concern without censorship or
punishment. 11 There is to be then no previous restraint on the communication of
views or subsequent liability whether in libel suits, 12 prosecution for
sedition, 13 or action for damages, 14 or contempt proceedings 15 unless there
be a clear and present danger of a substantive evil that [the State] has a right to
prevent." 16 Freedom of assembly connotes the right 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 their-views, even if contrary to the prevailing climate of
opinion. For if the peaceful means of communication cannot be availed of, resort to nonpeaceful 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

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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 plaintiffmunicipality. 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

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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

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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.

Separate Opinions
TEEHANKEE, J., concurring:
The Chief Justice's opinion of the Court reaffirms the doctrine of Primicias vs.
Fugoso 1 that "the right to freedom of speech and to peacefully assemble and
petition the government for redress of grievances are fundamental personal
rights of the people recognized and guaranteed by the constitutions of
democratic countries" and that the city or town mayors are not conferred "the
power to refuse to grant the permit, but only the discretion, in issuing the permit,
to determine or specify the streets or public places where the parade or
procession may pass or the meeting may be held." The most recent graphic
demonstration of what this great right of peaceful assembly and petition for
redress of grievances could accomplish was the civil rights march on Washington
twenty years ago under the late assassinated black leader Martin Luther King, Jr.
(whose birthday has now been declared an American national holiday) which
subpoenaed the conscience of the nation," and awakened the conscience of
millions of previously indifferent Americans and eventually (after many disorders
and riots yet to come) was to put an end to segregation and discrimination
against the American Negro.
The procedure for the securing of such permits for peaceable assembly is
succintly set forth in the summary given by the Court Justice in paragraph 8 of
the Court's opinion, with the injunction that "the presumption must be to incline
the weight of the scales of justice on the side of such rights, enjoying as they do,

precedence and primacy," The exception of the clear and present danger rule, which
alone would warrant a limitation of these fundamental rights, is therein restated in
paragraph 1, thus: "The sole justification for a limitation on the exercise of this right, so
fundamental to the maintenance of democratic institutions, is the danger, of a character
both grave and imminent, of a serious evil to public safety, public morals, public health,
or any other legitimate public interest. "
It bears emphasis that the burden to show the existence of grave and imminent danger
that would justify adverse action on the application lies on the mayor as licensing
authority. There must be objective and convincing, not subjective or conjectural proof of
the existence of such clear and present danger. As stated in our Resolution of October
25, 1983, which granted the mandatory injunction as prayed for, "It is essential for the
validity of a denial of a permit which amounts to a previous restraint or censorship
that the licensing authority does not rely solely on his own appraisal of what public
welfare, peace or safety may require. To justify such a limitation there must be proof of
such weight and sufficiency to satisfy the clear and present danger test. The possibility
that subversives may infiltrate the ranks of the demonstrators is not enough." As stated
by Justice Brandeis in his concurring opinion in Whitney vs. California. 2 t.hqw
Fear of serious injury cannot alone justify suppression of free speech and assembly. Men
feared witches and burned women. It is the function of speech to free men from the
bondage of irrational fears. To justify suppression of free speech there must be
reasonable ground to fear that serious evil will result if free speech is practiced. There
must be reasonable ground to believe that the danger apprehended is imminent. There
must be reasonable ground to believe that the evil to be prevented is a serious one * * *.
Those who won our independence by revolution were not cowards. They did not fear
political change. They did not exalt order at the cost of liberty. * * *
Moreover, even imminent danger cannot justify resort to prohibition of these functions
essential (for) effective democracy, unless the evil apprehended is relatively serious.
Prohibition of free speech and assembly is a measure so stringent that it would be
inappropriate as the means for averting a relatively trivial harm to a society. * * * The fact
that speech is likely to result in some violence or in destruction of property is not enough
to justify its suppression. There must be the probability of serious injury to the state.
Among freemen the deterrents ordinarily to be applied to prevent crimes are education
and punishment for violations of the law, not abridgment of the rights of free speech and
assembly. (Emphasis supplied)
The Court's opinion underscores that the exercise of the right is not to be "abridged on
the plea that it may be exercised in some other place" (paragraph 6), and that "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," (at page 14) The U.S. Supreme
Court's pronouncement in Hague vs. Committee for Industrial Organization 3 cited in
Fugoso is worth repeating: t.hqw
* * * Wherever 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

154
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 * * * 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.
We think the court below was right in holding the ordinance quoted in Note I void
upon its face. It does not make comfort or convenience in the use of streets or
parks the standard of official action. It enables the Director of Safety to refuse a
permit on his mere opinion that such refusal will prevent 'riots, disturbances or
disorderly assemblage. It can thus, as the record discloses, be made
theinstrument of arbitrary suppression of free expression of views on national
affairs for the prohibition of all speaking will undoubtedly 'prevent' such
eventualities. But uncontrolled official suppression of the privilege cannot be
made a substitute for the duty to maintain order in connection with the exercise of
the right. (Emphasis supplied)
Needless to say, the leaders of the peaceable assembly should take all the
necessary measures to ensure a peaceful march and assembly and to avoid the
possibility of infiltrators and troublemakers disrupting the same, concommitantly
with the duty of the police to extend protection to the participants "staying at a
discreet distance, but ever ready and alert to perform their duty." But should any
disorderly conduct or incidents occur, whether provoked or otherwise, it is well to
recall former Chief Justice Ricardo Paras' injunction in his concurring opinion
inFugoso, citing the 1907 case of U.S. vs. Apurado, 4 that such instances of
"disorderly conduct by individual members of a crowd (be not seized) as an
excuse to characterize the assembly as a seditious and tumultuous rising against
the authorities" and render illusory the right of peaceable assembly, thus: t.
hqw
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 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 tumultous rising against
the authorities, 'then the right to assemble and to petition for redress of
grievances would become a delusion and 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. (Emphasis
supplied).
As it turned out, the demonstration was held on October 26, 1983 peaceably and without
any untoward event or evil result, as pledged by the organizers (like at least five previous
peaceful demonstrations in the area). However, even if there had been any incidents of
disorder, this would in no way show the Court's mandatory injunction to have been
wrongfully issued. The salutary desire on the part of respondent to prevent disorder
cannot be pursued by the unjustified denial and suppression of the people's basic rights,
which would thereby turn out to be mere paper rights.
MAKASIAR, J., concurring:
With the justification that in case of conflict, the Philippine Constitution particularly the
Bill of Rights should prevail over the Vienna Convention.
ABAD SANTOS, J., concurring:
To add anything to the learned opinion of the Chief Justice is like bringing coal to
Newcastle, I just want to state for the record that I voted for the issuance ex-parte of a
preliminary mandatory injunction.
PLANA, J., concurring:
On the whole, I concur in the learned views of the distinguished Chief Justice. I would
like however to voice a reservation regarding Ordinance No. 7295 of the City of Manila
which has been invoked by the respondent.
The main opinion yields the implication that a rally or demonstration made within 500 feet
from the chancery of a foreign embassy would be banned for coming within the terms of
the prohibition of the cited Ordinance which was adopted, so it is said, precisely to
implement a treaty obligation of the Philippines under the 1961 Vienna Convention on
Diplomatic Relations.
In my view, without saying that the Ordinance is obnoxious per se to the constitution, it
cannot be validly invoked whenever its application would collide with a constitutionally
guaranteed right such as freedom of assembly and/or expression, as in the case at bar,
regardless of whether the chancery of any foreign embassy is beyond or within 500 feet
from the situs of the rally or demonstration.
AQUINO, J., dissenting:
Voted to dismiss the petition on the ground that the holding of the rally in front of the US
Embassy violates Ordinance No. 7295 of the City of Manila.
Separate Opinions
TEEHANKEE, J., concurring:
The Chief Justice's opinion of the Court reaffirms the doctrine of Primicias vs.
Fugoso 1 that "the right to freedom of speech and to peacefully assemble and petition

155
the government for redress of grievances are fundamental personal rights of the
people recognized and guaranteed by the constitutions of democratic
countries" and that the city or town mayors are not conferred "the power to refuse
to grant the permit, but only the discretion, in issuing the permit, to determine or
specify the streets or public places where the parade or procession may pass or
the meeting may be held." The most recent graphic demonstration of what this
great right of peaceful assembly and petition for redress of grievances could
accomplish was the civil rights march on Washington twenty years ago under the
late assassinated black leader Martin Luther King, Jr. (whose birthday has now
been declared an American national holiday) which subpoenaed the conscience
of the nation," and awakened the conscience of millions of previously indifferent
Americans and eventually (after many disorders and riots yet to come) was to put
an end to segregation and discrimination against the American Negro.
The procedure for the securing of such permits for peaceable assembly is
succintly set forth in the summary given by the Court Justice in paragraph 8 of
the Court's opinion, with the injunction that "the presumption must be to incline
the weight of the scales of justice on the side of such rights, enjoying as they do,
precedence and primacy," The exception of the clear and present danger rule,
which alone would warrant a limitation of these fundamental rights, is therein
restated in paragraph 1, thus: "The sole justification for a limitation on the
exercise of this right, so fundamental to the maintenance of democratic
institutions, is the danger, of a character both grave and imminent, of a serious
evil to public safety, public morals, public health, or any other legitimate public
interest. "
It bears emphasis that the burden to show the existence of grave and imminent
danger that would justify adverse action on the application lies on the mayor as
licensing authority. There must be objective and convincing, not subjective or
conjectural proof of the existence of such clear and present danger. As stated in
our Resolution of October 25, 1983, which granted the mandatory injunction as
prayed for, "It is essential for the validity of a denial of a permit which amounts to
a previous restraint or censorship that the licensing authority does not rely solely
on his own appraisal of what public welfare, peace or safety may require. To
justify such a limitation there must be proof of such weight and sufficiency to
satisfy the clear and present danger test. The possibility that subversives may
infiltrate the ranks of the demonstrators is not enough." As stated by Justice
Brandeis in his concurring opinion in Whitney vs. California. 2 t.hqw
Fear of serious injury cannot alone justify suppression of free speech and
assembly. Men feared witches and burned women. It is the function of speech to
free men from the bondage of irrational fears. To justify suppression of free
speech there must be reasonable ground to fear that serious evil will result if free
speech is practiced. There must be reasonable ground to believe that the danger
apprehended is imminent. There must be reasonable ground to believe that the
evil to be prevented is a serious one * * *.

Those who won our independence by revolution were not cowards. They did not fear
political change. They did not exalt order at the cost of liberty. * * *
Moreover, even imminent danger cannot justify resort to prohibition of these functions
essential (for) effective democracy, unless the evil apprehended is relatively serious.
Prohibition of free speech and assembly is a measure so stringent that it would be
inappropriate as the means for averting a relatively trivial harm to a society. * * * The fact
that speech is likely to result in some violence or in destruction of property is not enough
to justify its suppression. There must be the probability of serious injury to the state.
Among freemen the deterrents ordinarily to be applied to prevent crimes are education
and punishment for violations of the law, not abridgment of the rights of free speech and
assembly. (Emphasis supplied)
The Court's opinion underscores that the exercise of the right is not to be "abridged on
the plea that it may be exercised in some other place" (paragraph 6), and that "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," (at page 14) The U.S. Supreme
Court's pronouncement in Hague vs. Committee for Industrial Organization 3 cited in
Fugoso is worth repeating: t.hqw
* * * Wherever 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 * * *
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.
We think the court below was right in holding the ordinance quoted in Note I void upon its
face. It does not make comfort or convenience in the use of streets or parks the standard
of official action. It enables the Director of Safety to refuse a permit on his mere opinion
that such refusal will prevent 'riots, disturbances or disorderly assemblage. It can thus,
as the record discloses, be made theinstrument of arbitrary suppression of free
expression of views on national affairs for the prohibition of all speaking will undoubtedly
'prevent' such eventualities. But uncontrolled official suppression of the privilege cannot
be made a substitute for the duty to maintain order in connection with the exercise of the
right. (Emphasis supplied)
Needless to say, the leaders of the peaceable assembly should take all the necessary
measures to ensure a peaceful march and assembly and to avoid the possibility of
infiltrators and troublemakers disrupting the same, concommitantly with the duty of the
police to extend protection to the participants "staying at a discreet distance, but ever
ready and alert to perform their duty." But should any disorderly conduct or incidents
occur, whether provoked or otherwise, it is well to recall former Chief Justice Ricardo
Paras' injunction in his concurring opinion inFugoso, citing the 1907 case of U.S. vs.
Apurado, 4 that such instances of "disorderly conduct by individual members of a crowd

156
(be not seized) as an excuse to characterize the assembly as a seditious and
tumultuous rising against the authorities" and render illusory the right of
peaceable assembly, thus: t.hqw
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 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 tumultous rising against
the authorities, 'then the right to assemble and to petition for redress of
grievances would become a delusion and 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.
(Emphasis supplied).
As it turned out, the demonstration was held on October 26, 1983 peaceably and
without any untoward event or evil result, as pledged by the organizers (like at
least five previous peaceful demonstrations in the area). However, even if there
had been any incidents of disorder, this would in no way show the Court's
mandatory injunction to have been wrongfully issued. The salutary desire on the
part of respondent to prevent disorder cannot be pursued by the unjustified
denial and suppression of the people's basic rights, which would thereby turn out
to be mere paper rights.
MAKASIAR, J., concurring:
With the justification that in case of conflict, the Philippine Constitution
particularly the Bill of Rights should prevail over the Vienna Convention.
ABAD SANTOS, J., concurring:
To add anything to the learned opinion of the Chief Justice is like bringing coal to
Newcastle, I just want to state for the record that I voted for the issuance ex-parte
of a preliminary mandatory injunction.
PLANA, J., concurring:
On the whole, I concur in the learned views of the distinguished Chief Justice. I
would like however to voice a reservation regarding Ordinance No. 7295 of the
City of Manila which has been invoked by the respondent.
The main opinion yields the implication that a rally or demonstration made within
500 feet from the chancery of a foreign embassy would be banned for coming
within the terms of the prohibition of the cited Ordinance which was adopted, so it

is said, precisely to implement a treaty obligation of the Philippines under the 1961
Vienna Convention on Diplomatic Relations.
In my view, without saying that the Ordinance is obnoxious per se to the constitution, it
cannot be validly invoked whenever its application would collide with a constitutionally
guaranteed right such as freedom of assembly and/or expression, as in the case at bar,
regardless of whether the chancery of any foreign embassy is beyond or within 500 feet
from the situs of the rally or demonstration.

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

157
Foundation finding petitioners guilty of illegal assembly and suspending them is
sought in this petition.
The facts are not open to dispute. Petitioners were officers of the Supreme
Student Council of respondent University. They sought and were granted by tile
school authorities a permit to hold a meeting from 8:00 A.M. to 12:00 P.M, on
August 27, 1982. Pursuant to such permit, along with other students, they held a
general assembly at the Veterinary Medicine and Animal Science basketball
court (VMAS), the place indicated in such permit, not in the basketball court as
therein stated but at the second floor lobby. At such gathering they manifested in
vehement and vigorous language their opposition to the proposed merger of the
Institute of Animal Science with the Institute of Agriculture. At 10:30 A.M., the
same day, they marched toward the Life Science Building and continued their
rally. It was outside the area covered by their permit. They continued their
demonstration, giving utterance to language severely critical of the University
authorities and using megaphones in the process. There was, as a result,
disturbance of the classes being held. Also, the non-academic employees, within
hearing distance, stopped their work because of the noise created. They were
asked to explain on the same day why they should not be held liable for holding
an illegal assembly. Then on September 9, 1982, they were formed through a
memorandum that they were under preventive suspension for their failure to
explain the holding of an illegal assembly in front of the Life Science Building.
The validity thereof was challenged by petitioners both before the Court of First
Instance of Rizal in a petition for mandamus with damages against private
respondents 2 and before the Ministry of Education, Culture, and Sports. On
October 20, 1982, respondent Ramento, as Director of the National Capital
Region, found petitioners guilty of the charge of having violated par. 146(c) of the
Manual for Private Schools more specifically their holding of an illegal assembly
which was characterized by the violation of the permit granted resulting in the
disturbance of classes and oral defamation. The penalty was suspension for one
academic year. Hence this petition.
On November 16, 1982, this Court issued the following resolution: "Acting on the
urgent ex-parte motion for the immediate issuance of a temporary mandatory
order filed by counsel for petitioners, dated November 12, 1982, the Court
Resolved to ISSUE A TEMPORARY RESTRAINING ORDER enjoining all
respondents or any person or persons acting in their place or stead from
enforcing the order of the Ministry of' Education and Culture dated October 20,
1982 finding the petitioners guilty of the charges against them and suspending
them for one (1) academic year with a stern warning that a commission of
the same or another offense will be dealt with utmost severity, effective as of this
date and continuing until otherwise ordered by this Court, thus allowing them to
enroll, if so minded. 3
Both public and private respondents submitted their comments. Private
respondents prayed for the dismissal of the petition "for lack of factual and legal
basis and likewise [prayed] for the lifting of the temporary restraining order dated

November 16, 1982." 4 Public respondent Ramento, on the other hand, through the
Office of the Solicitor General, prayed for the dismissal of the petition based on the
following conclusion: "Consequently, it is respectfully submitted that respondent Director
of the MECS did not commit any error, much less abused his discretion, when he
affirmed the decision of respondent University finding petitioners guilty of violations of the
provisions of the Manual of Regulations for Private Schools and the Revised Student's
Code of Discipline .and ordering their suspension for one (1) academic school year.
However, since said suspension has not been enforced except only briefly, thereby
enabling petitioners Leonero, Jr., Lucas and Malabanan to finish their courses, and
allowing petitioners Lee and Jalos to continue their schooling, if they so desire, this
proceeding is now moot and academic. 5
With the submission of such comments considered as the answers of public and private
respondents, the case was ready for decision.
This petition may be considered moot and academic if viewed solely from the fact that by
virtue of the temporary restraining order issued by this Court petitioners were allowed to
enroll in the ensuing 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

158
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 placewhere 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." 13 While, 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

159
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 censurecertainly not a suspension-could be the appropriate penalty. Private respondents
could and did take umbrage at the fact that in view of such infraction considering
the places where and the time when the demonstration took place-there was a
disruption of the classes and stoppage of work of the non-academic personnel.
They would not be unjustified then if they did take a much more serious view of
the matter. Even then a one-year period of suspension is much too severe. While
the discretion of both respondent University and respondent Ramento is
recognized, the rule of reason, the dictate of fairness calls for a much lesser
penalty. If the concept of proportionality between the offense connoted and the
sanction imposed is not followed, an element of arbitrariness intrudes. That
would give rise to a due process question. To avoid this constitutional objection, it
is the holding of this Court that a one-week suspension would be punishment
enough.
9. One last matter. The objection was raised that petitioners failed to exhaust
administrative remedies. That is true, but hardly decisive. Here, a purely legal
question is presented. Such being the case, 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.

EN BANC
[G.R. No. 138570. October 10, 2000]
BAYAN (Bagong Alyansang Makabayan), a JUNK VFA MOVEMENT, BISHOP TOMAS
MILLAMENA (Iglesia Filipina Independiente), BISHOP ELMER BOLOCAN (United
Church of Christ of the Phil.), DR. REYNALDO LEGASCA, MD, KILUSANG
MAMBUBUKID NG PILIPINAS, KILUSANG MAYO UNO, GABRIELA, PROLABOR, and
the PUBLIC INTEREST LAW CENTER, petitioners, vs. EXECUTIVE SECRETARY
RONALDO ZAMORA, FOREIGN AFFAIRS SECRETARY DOMINGO SIAZON,
DEFENSE SECRETARY ORLANDO MERCADO, BRIG. GEN. ALEXANDER AGUIRRE,
SENATE PRESIDENT MARCELO FERNAN, SENATOR FRANKLIN DRILON, SENATOR
BLAS OPLE, SENATOR RODOLFO BIAZON, and SENATOR FRANCISCO TATAD,
respondents.
[G.R. No. 138572. October 10, 2000]
PHILIPPINE CONSTITUTION ASSOCIATION, INC.(PHILCONSA), EXEQUIEL B.
GARCIA, AMADOGAT INCIONG, CAMILO L. SABIO, AND RAMON A.
GONZALES, petitioners, vs. HON. RONALDO B. ZAMORA, as Executive Secretary,

160
HON. ORLANDO MERCADO, as Secretary of National Defense, and HON.
DOMINGO L. SIAZON, JR., as Secretary of Foreign Affairs, respondents.
[G.R. No. 138587. October 10, 2000]
TEOFISTO T. GUINGONA, JR., RAUL S. ROCO, and SERGIO R. OSMEA
III, petitioners, vs. JOSEPH E. ESTRADA, RONALDO B. ZAMORA, DOMINGO
L. SIAZON, JR., ORLANDO B. MERCADO, MARCELO B. FERNAN, FRANKLIN
M. DRILON, BLAS F. OPLE and RODOLFO G. BIAZON, respondents.
[G.R. No. 138680. October 10, 2000]
INTEGRATED BAR OF THE PHILIPPINES, Represented by its National
President, Jose Aguila Grapilon, petitioners, vs. JOSEPH EJERCITO ESTRADA,
in his capacity as President, Republic of the Philippines, and HON. DOMINGO
SIAZON, in his capacity as Secretary of Foreign Affairs, respondents.
[G.R. No. 138698. October 10, 2000]
JOVITO R. SALONGA, WIGBERTO TAADA, ZENAIDA QUEZON-AVENCEA,
ROLANDO SIMBULAN, PABLITO V. SANIDAD, MA. SOCORRO I. DIOKNO,
AGAPITO A. AQUINO, JOKER P. ARROYO, FRANCISCO C. RIVERA JR.,
RENE A.V. SAGUISAG, KILOSBAYAN, MOVEMENT OF ATTORNEYS FOR
BROTHERHOOD, INTEGRITY AND NATIONALISM, INC. (MABINI), petitioners,
vs. THE EXECUTIVE SECRETARY, THE SECRETARY OF FOREIGN AFFAIRS,
THE SECRETARY OF NATIONAL DEFENSE, SENATE PRESIDENT MARCELO
B. FERNAN, SENATOR BLAS F. OPLE, SENATOR RODOLFO G. BIAZON, AND
ALL OTHER PERSONS ACTING THEIR CONTROL, SUPERVISION,
DIRECTION, AND INSTRUCTION IN RELATION TO THE VISITING FORCES
AGREEMENT (VFA),respondents.
DECISION
BUENA, J.:
Confronting the Court for resolution in the instant consolidated petitions for
certiorari and prohibition are issues relating to, and borne by, an agreement
forged in the turn of the last century between the Republic of the Philippines and
the United States of America -the Visiting Forces Agreement.
The antecedents unfold.
On March 14, 1947, the Philippines and the United States of America forged a
Military Bases Agreement which formalized, among others, the use of
installations in the Philippine territory by United States military personnel. To
further strengthen their defense and security relationship, the Philippines and the
United States entered into a Mutual Defense Treaty on August 30, 1951. Under
the treaty, the parties agreed to respond to any external armed attack on their
territory, armed forces, public vessels, and aircraft.[1]
In view of the impending expiration of the RP-US Military Bases Agreement in
1991, the Philippines and the United States negotiated for a possible extension
of the military bases agreement. On September 16, 1991, the Philippine Senate
rejected the proposed RP-US Treaty of Friendship, Cooperation and Security
which, in effect, would have extended the presence of US military bases in the
Philippines.[2] With the expiration of the RP-US Military Bases Agreement, the

periodic military exercises conducted between the two countries were held in abeyance.
Notwithstanding, the defense and security relationship between the Philippines and the
United States of America continued pursuant to the Mutual Defense Treaty.
On July 18, 1997, the United States panel, headed by US Defense Deputy Assistant
Secretary for Asia Pacific Kurt Campbell, met with the Philippine panel, headed by
Foreign Affairs Undersecretary Rodolfo Severino Jr., to exchange notes on the
complementing strategic interests of the United States and the Philippines in the AsiaPacific region. Both sides discussed, among other things, the possible elements of the
Visiting Forces Agreement (VFA for brevity). Negotiations by both panels on the VFA led
to a consolidated draft text, which in turn resulted to a final series of conferences and
negotiations[3] that culminated in Manila on January 12 and 13, 1998. Thereafter, then
President Fidel V. Ramos approved the VFA, which was respectively signed by public
respondent Secretary Siazon and Unites States Ambassador Thomas Hubbard on
February 10, 1998.
On October 5, 1998, President Joseph E. Estrada, through respondent Secretary of
Foreign Affairs, ratified the VFA.[4]
On October 6, 1998, the President, acting through respondent Executive Secretary
Ronaldo Zamora, officially transmitted to the Senate of the Philippines,[5] the Instrument
of Ratification, the letter of the President[6] and the VFA, for concurrence pursuant to
Section 21, Article VII of the 1987 Constitution. The Senate, in turn, referred the VFA to
its Committee on Foreign Relations, chaired by Senator Blas F. Ople, and its Committee
on National Defense and Security, chaired by Senator Rodolfo G. Biazon, for their joint
consideration and recommendation. Thereafter, joint public hearings were held by the
two Committees.[7]
On May 3, 1999, the Committees submitted Proposed Senate Resolution No.
443[8] recommending the concurrence of the Senate to the VFA and the creation of a
Legislative Oversight Committee to oversee its implementation. Debates then ensued.
On May 27, 1999, Proposed Senate Resolution No. 443 was approved by the Senate, by
a two-thirds (2/3) vote[9] of its members. Senate Resolution No. 443 was then renumbered as Senate Resolution No. 18.[10]
On June 1, 1999, the VFA officially entered into force after an Exchange of Notes
between respondent Secretary Siazon and United States Ambassador Hubbard.
The VFA, which consists of a Preamble and nine (9) Articles, provides for the mechanism
for regulating the circumstances and conditions under which US Armed Forces and
defense personnel may be present in the Philippines, and is quoted in its full text,
hereunder:
Article I
Definitions
As used in this Agreement, United States personnel means United States military and
civilian personnel temporarily in the Philippines in connection with activities approved by
the Philippine Government.
Within this definition:

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1. The term military personnel refers to military members of the United States
Army, Navy, Marine Corps, Air Force, and Coast Guard.
2. The term civilian personnel refers to individuals who are neither nationals of,
nor ordinary residents in the Philippines and who are employed by the United
States armed forces or who are accompanying the United States armed forces,
such as employees of the American Red Cross and the United Services
Organization.
Article II
Respect for Law
It is the duty of the United States personnel to respect the laws of the Republic
of the Philippines and to abstain from any activity inconsistent with the spirit of
this agreement, and, in particular, from any political activity in the Philippines.
The Government of the United States shall take all measures within its authority
to ensure that this is done.
Article III
Entry and Departure
1. The Government of the Philippines shall facilitate the admission of United
States personnel and their departure from the Philippines in connection with
activities covered by this agreement.
2. United States military personnel shall be exempt from passport and visa
regulations upon entering and departing the Philippines.
3. The following documents only, which shall be presented on demand, shall be
required in respect of United States military personnel who enter the Philippines:
(a) personal identity card issued by the appropriate United States authority
showing full name, date of birth, rank or grade and service number (if any),
branch of service and photograph;
(b) individual or collective document issued by the appropriate United States
authority, authorizing the travel or visit and identifying the individual or group as
United States military personnel; and
(c) the commanding officer of a military aircraft or vessel shall present a
declaration of health, and when required by the cognizant representative of the
Government of the Philippines, shall conduct a quarantine inspection and will
certify that the aircraft or vessel is free from quarantinable diseases. Any
quarantine inspection of United States aircraft or United States vessels or
cargoes thereon shall be conducted by the United States commanding officer in
accordance with the international health regulations as promulgated by the World
Health Organization, and mutually agreed procedures.
4. United States civilian personnel shall be exempt from visa requirements but
shall present, upon demand, valid passports upon entry and departure of the
Philippines.
5. If the Government of the Philippines has requested the removal of any United
States personnel from its territory, the United States authorities shall be
responsible for receiving the person concerned within its own territory or
otherwise disposing of said person outside of the Philippines.

Article IV
Driving and Vehicle Registration
1. Philippine authorities shall accept as valid, without test or fee, a driving permit or
license issued by the appropriate United States authority to United States personnel for
the operation of military or official vehicles.
2. Vehicles owned by the Government of the United States need not be registered, but
shall have appropriate markings.
Article V
Criminal Jurisdiction
1. Subject to the provisions of this article:
(a) Philippine authorities shall have jurisdiction over United States personnel with respect
to offenses committed within the Philippines and punishable under the law of the
Philippines.
(b) United States military authorities shall have the right to exercise within the Philippines
all criminal and disciplinary jurisdiction conferred on them by the military law of the
United States over United States personnel in the Philippines.
2. (a) Philippine authorities exercise exclusive jurisdiction over United States personnel
with respect to offenses, including offenses relating to the security of the Philippines,
punishable under the laws of the Philippines, but not under the laws of the United States.
(b) United States authorities exercise exclusive jurisdiction over United States personnel
with respect to offenses, including offenses relating to the security of the United States,
punishable under the laws of the United States, but not under the laws of the Philippines.
(c) For the purposes of this paragraph and paragraph 3 of this article, an offense relating
to security means:
(1) treason;
(2) sabotage, espionage or violation of any law relating to national defense.
3. In cases where the right to exercise jurisdiction is concurrent, the following rules shall
apply:
(a) Philippine authorities shall have the primary right to exercise jurisdiction over all
offenses committed by United States personnel, except in cases provided for in
paragraphs 1(b), 2 (b), and 3 (b) of this Article.
(b) United States military authorities shall have the primary right to exercise jurisdiction
over United States personnel subject to the military law of the United States in relation to.
(1) offenses solely against the property or security of the United States or offenses solely
against the property or person of United States personnel; and
(2) offenses arising out of any act or omission done in performance of official duty.
(c) The authorities of either government may request the authorities of the other
government to waive their primary right to exercise jurisdiction in a particular case.
(d) Recognizing the responsibility of the United States military authorities to maintain
good order and discipline among their forces, Philippine authorities will, upon request by
the United States, waive their primary right to exercise jurisdiction except in cases of
particular importance to the Philippines. If the Government of the Philippines determines
that the case is of particular importance, it shall communicate such determination to the

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United States authorities within twenty (20) days after the Philippine authorities
receive the United States request.
(e) When the United States military commander determines that an offense
charged by authorities of the Philippines against United states personnel arises
out of an act or omission done in the performance of official duty, the commander
will issue a certificate setting forth such determination. This certificate will be
transmitted to the appropriate authorities of the Philippines and will constitute
sufficient proof of performance of official duty for the purposes of paragraph 3(b)
(2) of this Article. In those cases where the Government of the Philippines
believes the circumstances of the case require a review of the duty certificate,
United States military authorities and Philippine authorities shall consult
immediately. Philippine authorities at the highest levels may also present any
information bearing on its validity. United States military authorities shall take full
account of the Philippine position. Where appropriate, United States military
authorities will take disciplinary or other action against offenders in official duty
cases, and notify the Government of the Philippines of the actions taken.
(f) If the government having the primary right does not exercise jurisdiction, it
shall notify the authorities of the other government as soon as possible.
(g) The authorities of the Philippines and the United States shall notify each other
of the disposition of all cases in which both the authorities of the Philippines and
the United States have the right to exercise jurisdiction.
4. Within the scope of their legal competence, the authorities of the Philippines
and United States shall assist each other in the arrest of United States personnel
in the Philippines and in handling them over to authorities who are to exercise
jurisdiction in accordance with the provisions of this article.
5. United States military authorities shall promptly notify Philippine authorities of
the arrest or detention of United States personnel who are subject of Philippine
primary or exclusive jurisdiction. Philippine authorities shall promptly notify United
States military authorities of the arrest or detention of any United States
personnel.
6. The custody of any United States personnel over whom the Philippines is to
exercise jurisdiction shall immediately reside with United States military
authorities, if they so request, from the commission of the offense until
completion of all judicial proceedings. United States military authorities shall,
upon formal notification by the Philippine authorities and without delay, make
such personnel available to those authorities in time for any investigative or
judicial proceedings relating to the offense with which the person has been
charged in extraordinary cases, the Philippine Government shall present its
position to the United States Government regarding custody, which the United
States Government shall take into full account. In the event Philippine judicial
proceedings are not completed within one year, the United States shall be
relieved of any obligations under this paragraph. The one-year period will not
include the time necessary to appeal. Also, the one-year period will not include
any time during which scheduled trial procedures are delayed because United

States authorities, after timely notification by Philippine authorities to arrange for the
presence of the accused, fail to do so.
7. Within the scope of their legal authority, United States and Philippine authorities shall
assist each other in the carrying out of all necessary investigation into offenses and shall
cooperate in providing for the attendance of witnesses and in the collection and
production of evidence, including seizure and, in proper cases, the delivery of objects
connected with an offense.
8. When United States personnel have been tried in accordance with the provisions of
this Article and have been acquitted or have been convicted and are serving, or have
served their sentence, or have had their sentence remitted or suspended, or have been
pardoned, they may not be tried again for the same offense in the Philippines. Nothing in
this paragraph, however, shall prevent United States military authorities from trying
United States personnel for any violation of rules of discipline arising from the act or
omission which constituted an offense for which they were tried by Philippine authorities.
9. When United States personnel are detained, taken into custody, or prosecuted by
Philippine authorities, they shall be accorded all procedural safeguards established by
the law of the Philippines. At the minimum, United States personnel shall be entitled:
(a) To a prompt and speedy trial;
(b) To be informed in advance of trial of the specific charge or charges made against
them and to have reasonable time to prepare a defense;
(c) To be confronted with witnesses against them and to cross examine such witnesses;
(d) To present evidence in their defense and to have compulsory process for obtaining
witnesses;
(e) To have free and assisted legal representation of their own choice on the same basis
as nationals of the Philippines;
(f) To have the service of a competent interpreter; and
(g) To communicate promptly with and to be visited regularly by United States authorities,
and to have such authorities present at all judicial proceedings. These proceedings shall
be public unless the court, in accordance with Philippine laws, excludes persons who
have no role in the proceedings.
10. The confinement or detention by Philippine authorities of United States personnel
shall be carried out in facilities agreed on by appropriate Philippine and United States
authorities. United States Personnel serving sentences in the Philippines shall have the
right to visits and material assistance.
11. United States personnel shall be subject to trial only in Philippine courts of ordinary
jurisdiction, and shall not be subject to the jurisdiction of Philippine military or religious
courts.
Article VI
Claims
1. Except for contractual arrangements, including United States foreign military sales
letters of offer and acceptance and leases of military equipment, both governments
waive any and all claims against each other for damage, loss or destruction to property

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of each others armed forces or for death or injury to their military and civilian
personnel arising from activities to which this agreement applies.
2. For claims against the United States, other than contractual claims and those
to which paragraph 1 applies, the United States Government, in accordance with
United States law regarding foreign claims, will pay just and reasonable
compensation in settlement of meritorious claims for damage, loss, personal
injury or death, caused by acts or omissions of United States personnel, or
otherwise incident to the non-combat activities of the United States forces.
Article VII
Importation and Exportation
1. United States Government equipment, materials, supplies, and other property
imported into or acquired in the Philippines by or on behalf of the United States
armed forces in connection with activities to which this agreement applies, shall
be free of all Philippine duties, taxes and other similar charges. Title to such
property shall remain with the United States, which may remove such property
from the Philippines at any time, free from export duties, taxes, and other similar
charges. The exemptions provided in this paragraph shall also extend to any
duty, tax, or other similar charges which would otherwise be assessed upon such
property after importation into, or acquisition within, the Philippines. Such
property may be removed from the Philippines, or disposed of therein, provided
that disposition of such property in the Philippines to persons or entities not
entitled to exemption from applicable taxes and duties shall be subject to
payment of such taxes, and duties and prior approval of the Philippine
Government.
2. Reasonable quantities of personal baggage, personal effects, and other
property for the personal use of United States personnel may be imported into
and used in the Philippines free of all duties, taxes and other similar charges
during the period of their temporary stay in the Philippines. Transfers to persons
or entities in the Philippines not entitled to import privileges may only be made
upon prior approval of the appropriate Philippine authorities including payment by
the recipient of applicable duties and taxes imposed in accordance with the laws
of the Philippines. The exportation of such property and of property acquired in
the Philippines by United States personnel shall be free of all Philippine duties,
taxes, and other similar charges.
Article VIII
Movement of Vessels and Aircraft
1. Aircraft operated by or for the United States armed forces may enter the
Philippines upon approval of the Government of the Philippines in accordance
with procedures stipulated in implementing arrangements.
2. Vessels operated by or for the United States armed forces may enter the
Philippines upon approval of the Government of the Philippines. The movement
of vessels shall be in accordance with international custom and practice
governing such vessels, and such agreed implementing arrangements as
necessary.

3. Vehicles, vessels, and aircraft operated by or for the United States armed forces shall
not be subject to the payment of landing or port fees, navigation or over flight charges, or
tolls or other use charges, including light and harbor dues, while in the Philippines.
Aircraft operated by or for the United States armed forces shall observe local air traffic
control regulations while in the Philippines. Vessels owned or operated by the United
States solely on United States Government non-commercial service shall not be subject
to compulsory pilotage at Philippine ports.
Article IX
Duration and Termination
This agreement shall enter into force on the date on which the parties have notified each
other in writing through the diplomatic channel that they have completed their
constitutional requirements for entry into force. This agreement shall remain in force until
the expiration of 180 days from the date on which either party gives the other party notice
in writing that it desires to terminate the agreement.
Via these consolidated[11] petitions for certiorari and prohibition, petitioners - as
legislators, non-governmental organizations, citizens and taxpayers - assail the
constitutionality of the VFA and impute to herein respondents grave abuse of discretion in
ratifying the agreement.
We have simplified the issues raised by the petitioners into the following:
I
Do petitioners have legal standing as concerned citizens, taxpayers, or legislators to
question the constitutionality of the VFA?
II
Is the VFA governed by the provisions of Section 21, Article VII or of Section 25, Article
XVIII of the Constitution?
III
Does the VFA constitute an abdication of Philippine sovereignty?
a. Are Philippine courts deprived of their jurisdiction to hear and try offenses committed
by US military personnel?
b. Is the Supreme Court deprived of its jurisdiction over offenses punishable by reclusion
perpetua or higher?
IV
Does the VFA violate:
a. the equal protection clause under Section 1, Article III of the Constitution?
b. the Prohibition against nuclear weapons under Article II, Section 8?
c. Section 28 (4), Article VI of the Constitution granting the exemption from taxes and
duties for the equipment, materials supplies and other properties imported into or
acquired in the Philippines by, or on behalf, of the US Armed Forces?
LOCUS STANDI
At the outset, respondents challenge petitioners standing to sue, on the ground that the
latter have not shown any interest in the case, and that petitioners failed to substantiate
that they have sustained, or will sustain direct injury as a result of the operation of the

164
VFA.[12] Petitioners, on the other hand, counter that the validity or invalidity of
the VFA is a matter of transcendental importance which justifies their standing.
[13]
A party bringing a suit challenging the constitutionality of a law, act, or statute
must show not only that the law is invalid, but also that he has sustained or in is
in immediate, or imminent danger of sustaining some direct injury as a result of
its enforcement, and not merely that he suffers thereby in some indefinite
way. He must show that he has been, or is about to be, denied some right or
privilege to which he is lawfully entitled, or that he is about to be subjected to
some burdens or penalties by reason of the statute complained of.[14]
In the case before us, petitioners failed to show, to the satisfaction of this Court,
that they have sustained, or are in danger of sustaining any direct injury as a
result of the enforcement of the VFA. As taxpayers, petitioners have not
established that the VFA involves the exercise by Congress of its taxing or
spending powers.[15] On this point, it bears stressing that a taxpayers suit refers
to a case where the act complained of directly involves the illegal disbursement
of public funds derived from taxation.[16] Thus, in Bugnay Const. & Development
Corp. vs. Laron[17], we held:
x x x it is exigent that the taxpayer-plaintiff sufficiently show that he would be
benefited or injured by the judgment or entitled to the avails of the suit as a real
party in interest. Before he can invoke the power of judicial review, he must
specifically prove that he has sufficient interest in preventing the illegal
expenditure of money raised by taxation and that he will sustain a direct injury as
a result of the enforcement of the questioned statute or contract. It is not
sufficient that he has merely a general interest common to all members of the
public.
Clearly, inasmuch as no public funds raised by taxation are involved in this case,
and in the absence of any allegation by petitioners that public funds are being
misspent or illegally expended, petitioners, as taxpayers, have no legal standing
to assail the legality of the VFA.
Similarly, Representatives Wigberto Taada, Agapito Aquino and Joker Arroyo, as
petitioners-legislators, do not possess the requisite locus standi to maintain the
present suit.While this Court, in Phil. Constitution Association vs. Hon. Salvador
Enriquez,[18] sustained the legal standing of a member of the Senate and the
House of Representatives to question the validity of a presidential veto or a
condition imposed on an item in an appropriation bull, we cannot, at this
instance, similarly uphold petitioners standing as members of Congress, in the
absence of a clear showing of any direct injury to their person or to the institution
to which they belong.
Beyond this, the allegations of impairment of legislative power, such as the
delegation of the power of Congress to grant tax exemptions, are more apparent
than real. While it may be true that petitioners pointed to provisions of the VFA
which allegedly impair their legislative powers, petitioners failed however to
sufficiently show that they have in fact suffered direct injury.

In the same vein, petitioner Integrated Bar of the Philippines (IBP) is stripped of standing
in these cases. As aptly observed by the Solicitor General, the IBP lacks the legal
capacity to bring this suit in the absence of a board resolution from its Board of
Governors authorizing its National President to commence the present action.[19]
Notwithstanding, in view of the paramount importance and the constitutional significance
of the issues raised in the petitions, this Court, in the exercise of its sound discretion,
brushes aside the procedural barrier and takes cognizance of the petitions, as we have
done in the early Emergency Powers Cases,[20] where we had occasion to rule:
x x x ordinary citizens and taxpayers were allowed to question the constitutionality of
several executive orders issued by President Quirino although they were involving only
an indirect and general interest shared in common with the public. The Court dismissed
the objection that they were not proper parties and ruled that transcendental importance
to the public of these cases demands that they be settled promptly and definitely,
brushing aside, if we must, technicalities of procedure. We have since then applied the
exception in many other cases. (Association of Small Landowners in the Philippines, Inc.
v. Sec. of Agrarian Reform, 175 SCRA 343). (Underscoring Supplied)
This principle was reiterated in the subsequent cases of Gonzales vs. COMELEC,
[21] Daza vs. Singson,[22] and Basco vs. Phil. Amusement and Gaming Corporation,
[23]where we emphatically held:
Considering however the importance to the public of the case at bar, and in keeping with
the Courts duty, under the 1987 Constitution, to determine whether or not the other
branches of the government have kept themselves within the limits of the Constitution
and the laws and that they have not abused the discretion given to them, the Court has
brushed aside technicalities of procedure and has taken cognizance of this petition. x x
x
Again, in the more recent case of Kilosbayan vs. Guingona, Jr.,[24] thisCourt ruled that in
cases of transcendental importance, the Court may relax the standing requirements and
allow a suit to prosper even where there is no direct injury to the party claiming the right
of judicial review.
Although courts generally avoid having to decide a constitutional question based on the
doctrine of separation of powers, which enjoins upon the departments of the government
a becoming respect for each others acts,[25] this Court nevertheless resolves to take
cognizance of the instant petitions.
APPLICABLE CONSTITUTIONAL PROVISION
One focal point of inquiry in this controversy is the determination of which provision of the
Constitution applies, with regard to the exercise by the senate of its constitutional power
to concur with the VFA. Petitioners argue that Section 25, Article XVIII is applicable
considering that the VFA has for its subject the presence of foreign military troops in the
Philippines. Respondents, on the contrary, maintain that Section 21, Article VII should
apply inasmuch as the VFA is not a basing arrangement but an agreement which
involves merely the temporary visits of United States personnel engaged in joint military
exercises.

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The 1987 Philippine Constitution contains two provisions requiring the
concurrence of the Senate on treaties or international agreements. Section 21,
Article VII, which herein respondents invoke, reads:
No treaty or international agreement shall be valid and effective unless
concurred in by at least two-thirds of all the Members of the Senate.
Section 25, Article XVIII, provides:
After the expiration in 1991 of the Agreement between the Republic of the
Philippines and the United States of America concerning Military Bases, foreign
military bases, troops, or facilities shall not be allowed in the Philippines except
under a treaty duly concurred in by the senate and, when the Congress so
requires, ratified by a majority of the votes cast by the people in a national
referendum held for that purpose, and recognized as a treaty by the other
contracting State.
Section 21, Article VII deals with treatise or international agreements in general,
in which case, the concurrence of at least two-thirds (2/3) of all the Members of
the Senate is required to make the subject treaty, or international agreement,
valid and binding on the part of the Philippines. This provision lays down the
general rule on treatise or international agreements and applies to any form of
treaty with a wide variety of subject matter, such as, but not limited to, extradition
or tax treatise or those economic in nature. All treaties or international
agreements entered into by the Philippines, regardless of subject matter,
coverage, or particular designation or appellation, requires the concurrence of
the Senate to be valid and effective.
In contrast, Section 25, Article XVIII is a special provision that applies to treaties
which involve the presence of foreign military bases, troops or facilities in the
Philippines. Under this provision, the concurrence of the Senate is only one of
the requisites to render compliance with the constitutional requirements and to
consider the agreement binding on the Philippines. Section 25, Article XVIII
further requires that foreign military bases, troops, or facilities may be allowed
in the Philippines only by virtue of a treaty duly concurred in by the Senate,
ratified by a majority of the votes cast in a national referendum held for that
purpose if so required by Congress, and recognized as such by the other
contracting state.
It is our considered view that both constitutional provisions, far from contradicting
each other, actually share some common ground. These constitutional provisions
both embody phrases in the negative and thus, are deemed prohibitory in
mandate and character. In particular, Section 21 opens with the clause No treaty
x x x, and Section 25 contains the phrase shall not be allowed. Additionally, in
both instances, the concurrence of the Senate is indispensable to render the
treaty or international agreement valid and effective.
To our mind, the fact that the President referred the VFA to the Senate under
Section 21, Article VII, and that the Senate extended its concurrence under the
same provision, is immaterial. For in either case, whether under Section 21,
Article VII or Section 25, Article XVIII, the fundamental law is crystalline that the

concurrence of the Senate is mandatory to comply with the strict constitutional

requirements.
On the whole, the VFA is an agreement which defines the treatment of United States
troops and personnel visiting the Philippines. It provides for the guidelines to govern such
visits of military personnel, and further defines the rights of the United States and the
Philippine government in the matter of criminal jurisdiction, movement of vessel and
aircraft, importation and exportation of equipment, materials and supplies.
Undoubtedly, Section 25, Article XVIII, which specifically deals with treaties involving
foreign military bases, troops, or facilities, should apply in the instant case. To a certain
extent and in a limited sense, however, the provisions of section 21, Article VII will find
applicability with regard to the issue and for the sole purpose of determining the number
of votes required to obtain the valid concurrence of the Senate, as will be further
discussed hereunder.
It is a finely-imbedded principle in statutory construction that a special provision or law
prevails over a general one. Lex specialis derogat generali. Thus, where there is in the
same statute a particular enactment and also a general one which, in its most
comprehensive sense, would include what is embraced in the former, the particular
enactment must be operative, and the general enactment must be taken to affect only
such cases within its general language which are not within the provision of the particular
enactment.[26]
In Leveriza vs. Intermediate Appellate Court,[27] we enunciated:
x x x that another basic principle of statutory construction mandates that general
legislation must give way to a special legislation on the same subject, and generally be
so interpreted as to embrace only cases in which the special provisions are not
applicable (Sto. Domingo vs. de los Angeles, 96 SCRA 139), that a specific statute
prevails over a general statute (De Jesus vs. People, 120 SCRA 760) and that where two
statutes are of equal theoretical application to a particular case, the one designed
therefor specially should prevail (Wil Wilhensen Inc. vs. Baluyot, 83 SCRA 38).
Moreover, it is specious to argue that Section 25, Article XVIII is inapplicable to mere
transient agreements for the reason that there is no permanent placing of structure for
the establishment of a military base. On this score, the Constitution makes no distinction
between transient and permanent. Certainly, we find nothing in Section 25, Article
XVIII that requires foreign troops or facilities to be stationed or placed permanently in the
Philippines.
It is a rudiment in legal hermenuetics that when no distinction is made by law, the Court
should not distinguish- Ubi lex non distinguit nec nos distinguire debemos.
In like manner, we do not subscribe to the argument that Section 25, Article XVIII is not
controlling since no foreign military bases, but merely foreign troops and facilities, are
involved in the VFA. Notably, a perusal of said constitutional provision reveals that the
proscription covers foreign military bases, troops, or facilities. Stated differently, this
prohibition is not limited to the entry of troops and facilities without any foreign bases
being established. The clause does not refer to foreign military bases,
troops, or facilities collectively but treats them as separate and independent

166
subjects. The use of comma and the disjunctive word or clearly signifies
disassociation and independence of one thing from the others included in the
enumeration,[28] such that, the provision contemplates three different situations a military treaty the subject of which could be either (a) foreign bases, (b) foreign
troops, or (c) foreign facilities - any of the three standing alone places it under the
coverage of Section 25, Article XVIII.
To this end, the intention of the framers of the Charter, as manifested during the
deliberations of the 1986 Constitutional Commission, is consistent with this
interpretation:
MR. MAAMBONG. I just want to address a question or two to Commissioner
Bernas.
This formulation speaks of three things: foreign military bases, troops or
facilities. My first question is: If the country does enter into such kind of a treaty,
must it cover the three-bases, troops or facilities-or could the treaty entered into
cover only one or two?
FR. BERNAS. Definitely, it can cover only one. Whether it covers only one or it
covers three, the requirement will be the same.
MR. MAAMBONG. In other words, the Philippine government can enter into a
treaty covering not bases but merely troops?
FR. BERNAS. Yes.
MR. MAAMBONG. I cannot find any reason why the government can enter into a
treaty covering only troops.
FR. BERNAS. Why not? Probably if we stretch our imagination a little bit more,
we will find some. We just want to cover everything.[29] (Underscoring Supplied)
Moreover, military bases established within the territory of another state is no
longer viable because of the alternatives offered by new means and weapons of
warfare such as nuclear weapons, guided missiles as well as huge sea vessels
that can stay afloat in the sea even for months and years without returning to
their home country. These military warships are actually used as substitutes for a
land-home base not only of military aircraft but also of military personnel and
facilities. Besides, vessels are mobile as compared to a land-based military
headquarters.
At this juncture, we shall then resolve the issue of whether or not the
requirements of Section 25 were complied with when the Senate gave its
concurrence to the VFA.
Section 25, Article XVIII disallows foreign military bases, troops, or facilities in the
country, unless the following conditions are sufficiently met, viz: (a) it must be
under a treaty; (b) the treaty must be duly concurred in by the Senate and, when
so required by congress, ratified by a majority of the votes cast by the people in a
national referendum; and (c)recognized as a treaty by the other contracting state.
There is no dispute as to the presence of the first two requisites in the case of the
VFA. The concurrence handed by the Senate through Resolution No. 18 is in
accordance with the provisions of the Constitution, whether under the general
requirement in Section 21, Article VII, or the specific mandate mentioned in

Section 25, Article XVIII, the provision in the latter article requiring ratification by a
majority of the votes cast in a national referendum being unnecessary since Congress
has not required it.
As to the matter of voting, Section 21, Article VII particularly requires that a treaty or
international agreement, to be valid and effective, must be concurred in by at least twothirds of all the members of the Senate. On the other hand, Section 25, Article XVIII
simply provides that the treaty be duly concurred in by the Senate.
Applying the foregoing constitutional provisions, a two-thirds vote of all the members of
the Senate is clearly required so that the concurrence contemplated by law may be
validly obtained and deemed present. While it is true that Section 25, Article XVIII
requires, among other things, that the treaty-the VFA, in the instant case-be duly
concurred in by the Senate, it is very true however that said provision must be related
and viewed in light of the clear mandate embodied in Section 21, Article VII, which in
more specific terms, requires that the concurrence of a treaty, or international agreement,
be made by a two -thirds vote of all the members of the Senate. Indeed, Section 25,
Article XVIII must not be treated in isolation to section 21, Article, VII.
As noted, the concurrence requirement under Section 25, Article XVIII must be
construed in relation to the provisions of Section 21, Article VII. In a more particular
language, the concurrence of the Senate contemplated under Section 25, Article XVIII
means that at least two-thirds of all the members of the Senate favorably vote to concur
with the treaty-the VFA in the instant case.
Under these circumstances, the charter provides that the Senate shall be composed of
twenty-four (24) Senators.[30] Without a tinge of doubt, two-thirds (2/3) of this figure, or
not less than sixteen (16) members, favorably acting on the proposal is an
unquestionable compliance with the requisite number of votes mentioned in Section 21
of Article VII. The fact that there were actually twenty-three (23) incumbent Senators at
the time the voting was made,[31] will not alter in any significant way the circumstance
that more than two-thirds of the members of the Senate concurred with the proposed
VFA, even if the two-thirds vote requirement is based on this figure of actual members
(23). In this regard, the fundamental law is clear that two-thirds of the 24 Senators, or at
least 16 favorable votes, suffice so as to render compliance with the strict constitutional
mandate of giving concurrence to the subject treaty.
Having resolved that the first two requisites prescribed in Section 25, Article XVIII are
present, we shall now pass upon and delve on the requirement that the VFA should be
recognized as a treaty by the United States of America.
Petitioners content that the phrase recognized as a treaty, embodied in section 25,
Article XVIII, means that the VFA should have the advice and consent of the United
States Senate pursuant to its own constitutional process, and that it should not be
considered merely an executive agreement by the United States.
In opposition, respondents argue that the letter of United States Ambassador Hubbard
stating that the VFA is binding on the United States Government is conclusive, on the
point that the VFA is recognized as a treaty by the United States of America. According to

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respondents, the VFA, to be binding, must only be accepted as a treaty by the
United States.
This Court is of the firm view that the phrase recognized as a treaty means that
the other contracting party accepts or acknowledges the agreement as a treaty.
[32] To require the other contracting state, the United States of America in this
case, to submit the VFA to the United States Senate for concurrence pursuant to
its Constitution,[33] is to accord strict meaning to the phrase.
Well-entrenched is the principle that the words used in the Constitution are to be
given their ordinary meaning except where technical terms are employed, in
which case the significance thus attached to them prevails. Its language should
be understood in the sense they have in common use.[34]
Moreover, it is inconsequential whether the United States treats the VFA only as
an executive agreement because, under international law, an executive
agreement is as binding as a treaty.[35] To be sure, as long as the VFA
possesses the elements of an agreement under international law, the said
agreement is to be taken equally as a treaty.
A treaty, as defined by the Vienna Convention on the Law of Treaties, is an
international instrument concluded between States in written form and governed
by international law, whether embodied in a single instrument or in two or more
related instruments, and whatever its particular designation.[36] There are many
other terms used for a treaty or international agreement, some of which are: act,
protocol, agreement, compromis d arbitrage, concordat, convention, declaration,
exchange of notes, pact, statute, charter and modus vivendi. All writers, from
Hugo Grotius onward, have pointed out that the names or titles of international
agreements included under the general term treaty have little or no legal
significance. Certain terms are useful, but they furnish little more than mere
description.[37]
Article 2(2) of the Vienna Convention provides that the provisions of paragraph 1
regarding the use of terms in the present Convention are without prejudice to the
use of those terms, or to the meanings which may be given to them in the
internal law of the State.
Thus, in international law, there is no difference between treaties and executive
agreements in their binding effect upon states concerned, as long as the
negotiating functionaries have remained within their powers.[38] International law
continues to make no distinction between treaties and executive agreements:
they are equally binding obligations upon nations.[39]
In our jurisdiction, we have recognized the binding effect of executive
agreements even without the concurrence of the Senate or
Congress. In Commissioner of Customs vs. Eastern Sea Trading,[40] we had
occasion to pronounce:
x x x the right of the Executive to enter into binding agreements without the
necessity of subsequent congressional approval has been confirmed by long
usage. From the earliest days of our history we have entered into executive
agreements covering such subjects as commercial and consular relations, most-

favored-nation rights, patent rights, trademark and copyright protection, postal and
navigation arrangements and the settlement of claims. The validity of these has never
been seriously questioned by our courts.
x x x x x x x x x
Furthermore, the United States Supreme Court has expressly recognized the validity
and constitutionality of executive agreements entered into without Senate approval. (39
Columbia Law Review, pp. 753-754) (See, also, U.S. vs. Curtis Wright Export
Corporation, 299 U.S. 304, 81 L. ed. 255; U.S. vs. Belmont, 301 U.S. 324, 81 L. ed.
1134; U.S. vs. Pink, 315 U.S. 203, 86 L. ed. 796; Ozanicvs. U.S. 188 F. 2d. 288; Yale
Law Journal, Vol. 15 pp. 1905-1906; California Law Review, Vol. 25, pp. 670-675; Hyde
on International Law [revised Edition], Vol. 2, pp. 1405, 1416-1418; willoughby on the
U.S. Constitution Law, Vol. I [2d ed.], pp. 537-540; Moore, International Law Digest, Vol.
V, pp. 210-218; Hackworth, International Law Digest, Vol. V, pp. 390-407). (Italics
Supplied) (Emphasis Ours)
The deliberations of the Constitutional Commission which drafted the 1987 Constitution
is enlightening and highly-instructive:
MR. MAAMBONG. Of course it goes without saying that as far as ratification of the other
state is concerned, that is entirely their concern under their own laws.
FR. BERNAS. Yes, but we will accept whatever they say. If they say that we have done
everything to make it a treaty, then as far as we are concerned, we will accept it as a
treaty.[41]
The records reveal that the United States Government, through Ambassador Thomas C.
Hubbard, has stated that the United States government has fully committed to living up
to the terms of the VFA.[42] For as long as the united States of America accepts or
acknowledges the VFA as a treaty, and binds itself further to comply with its obligations
under the treaty, there is indeed marked compliance with the mandate of the
Constitution.
Worth stressing too, is that the ratification, by the President, of the VFA and the
concurrence of the Senate should be taken as a clear an unequivocal expression of our
nations consent to be bound by said treaty, with the concomitant duty to uphold the
obligations and responsibilities embodied thereunder.
Ratification is generally held to be an executive act, undertaken by the head of the state
or of the government, as the case may be, through which the formal acceptance of the
treaty is proclaimed.[43] A State may provide in its domestic legislation the process of
ratification of a treaty. The consent of the State to be bound by a treaty is expressed by
ratification when: (a) the treaty provides for such ratification, (b) it is otherwise
established that the negotiating States agreed that ratification should be required, (c) the
representative of the State has signed the treaty subject to ratification, or (d) the intention
of the State to sign the treaty subject to ratification appears from the full powers of its
representative, or was expressed during the negotiation.[44]
In our jurisdiction, the power to ratify is vested in the President and not, as commonly
believed, in the legislature. The role of the Senate is limited only to giving or withholding
its consent, or concurrence, to the ratification.[45]

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With the ratification of the VFA, which is equivalent to final acceptance, and with
the exchange of notes between the Philippines and the United States of America,
it now becomes obligatory and incumbent on our part, under the principles of
international law, to be bound by the terms of the agreement. Thus, no less than
Section 2, Article II of the Constitution,[46] declares that the Philippines adopts
the generally accepted principles of international law as part of the law of the
land and adheres to the policy of peace, equality, justice, freedom, cooperation
and amity with all nations.
As a member of the family of nations, the Philippines agrees to be bound by
generally accepted rules for the conduct of its international relations. While the
international obligation devolves upon the state and not upon any particular
branch, institution, or individual member of its government, the Philippines is
nonetheless responsible for violations committed by any branch or subdivision of
its government or any official thereof. As an integral part of the community of
nations, we are responsible to assure that our government, Constitution and laws
will carry out our international obligation.[47] Hence, we cannot readily plead the
Constitution as a convenient excuse for non-compliance with our obligations,
duties and responsibilities under international law.
Beyond this, Article 13 of the Declaration of Rights and Duties of States adopted
by the International Law Commission in 1949 provides: Every State has the duty
to carry out in good faith its obligations arising from treaties and other sources of
international law, and it may not invoke provisions in its constitution or its laws as
an excuse for failure to perform this duty.[48]
Equally important is Article 26 of the convention which provides that Every treaty
in force is binding upon the parties to it and must be performed by them in good
faith. This is known as the principle of pacta sunt servanda which preserves the
sanctity of treaties and have been one of the most fundamental principles of
positive international law, supported by the jurisprudence of international
tribunals.[49]
NO GRAVE ABUSE OF DISCRETION
In the instant controversy, the President, in effect, is heavily faulted for exercising
a power and performing a task conferred upon him by the Constitution-the power
to enter into and ratify treaties. Through the expediency of Rule 65 of the Rules
of Court, petitioners in these consolidated cases impute grave abuse of
discretion on the part of the chief Executive in ratifying the VFA, and referring the
same to the Senate pursuant to the provisions of Section 21, Article VII of the
Constitution.
On this particular matter, grave abuse of discretion implies such capricious and
whimsical exercise of judgment as is equivalent to lack of jurisdiction, or, when
the power is exercised in an arbitrary or despotic manner by reason of passion or
personal hostility, and it must be so patent and gross as to amount to an evasion
of positive duty enjoined or to act at all in contemplation of law.[50]
By constitutional fiat and by the intrinsic nature of his office, the President, as
head of State, is the sole organ and authority in the external affairs of the

country. In many ways, the President is the chief architect of the nations foreign policy;
his dominance in the field of foreign relations is (then) conceded.[51] Wielding vast
powers an influence, his conduct in the external affairs of the nation, as Jefferson
describes, is executive altogether."[52]
As regards the power to enter into treaties or international agreements, the Constitution
vests the same in the President, subject only to the concurrence of at least two-thirds
vote of all the members of the Senate. In this light, the negotiation of the VFA and the
subsequent ratification of the agreement are exclusive acts which pertain solely to the
President, in the lawful exercise of his vast executive and diplomatic powers granted him
no less than by the fundamental law itself. Into the field of negotiation the Senate cannot
intrude, and Congress itself is powerless to invade it.[53] Consequently, the acts or
judgment calls of the President involving the VFA-specifically the acts of ratification and
entering into a treaty and those necessary or incidental to the exercise of such principal
acts - squarely fall within the sphere of his constitutional powers and thus, may not be
validly struck down, much less calibrated by this Court, in the absence of clear showing
of grave abuse of power or discretion.
It is the Courts considered view that the President, in ratifying the VFA and in submitting
the same to the Senate for concurrence, acted within the confines and limits of the
powers vested in him by the Constitution. It is of no moment that the President, in the
exercise of his wide latitude of discretion and in the honest belief that the VFA falls within
the ambit of Section 21, Article VII of the Constitution, referred the VFA to the Senate for
concurrence under the aforementioned provision. Certainly, no abuse of discretion, much
less a grave, patent and whimsical abuse of judgment, may be imputed to the President
in his act of ratifying the VFA and referring the same to the Senate for the purpose of
complying with the concurrence requirement embodied in the fundamental law. In doing
so, the President merely performed a constitutional task and exercised a prerogative that
chiefly pertains to the functions of his office. Even if he erred in submitting the VFA to the
Senate for concurrence under the provisions of Section 21 of Article VII, instead of
Section 25 of Article XVIII of the Constitution, still, the President may not be faulted or
scarred, much less be adjudged guilty of committing an abuse of discretion in some
patent, gross, and capricious manner.
For while it is conceded that Article VIII, Section 1, of the Constitution has broadened the
scope of judicial inquiry into areas normally left to the political departments to decide,
such as those relating to national security, it has not altogether done away with political
questions such as those which arise in the field of foreign relations.[54] The High
Tribunals function, as sanctioned by Article VIII, Section 1, is merely (to) check whether
or not the governmental branch or agency has gone beyond the constitutional limits of its
jurisdiction, not that it erred or has a different view. In the absence of a showing (of)
grave abuse of discretion amounting to lack of jurisdiction, there is no occasion for the
Court to exercise its corrective powerIt has no power to look into what it thinks is
apparent error.[55]
As to the power to concur with treaties, the constitution lodges the same with the Senate
alone. Thus, once the Senate[56] performs that power, or exercises its prerogative within

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the boundaries prescribed by the Constitution, the concurrence cannot, in like
manner, be viewed to constitute an abuse of power, much less grave abuse
thereof. Corollarily, the Senate, in the exercise of its discretion and acting within
the limits of such power, may not be similarly faulted for having simply performed
a task conferred and sanctioned by no less than the fundamental law.
For the role of the Senate in relation to treaties is essentially legislative in
character;[57] the Senate, as an independent body possessed of its own erudite
mind, has the prerogative to either accept or reject the proposed agreement, and
whatever action it takes in the exercise of its wide latitude of discretion, pertains
to the wisdom rather than the legality of the act. In this sense, the Senate
partakes a principal, yet delicate, role in keeping the principles of separation of
powers and of checks and balances alive and vigilantly ensures that these
cherished rudiments remain true to their form in a democratic government such
as ours. The Constitution thus animates, through this treaty-concurring power of
the Senate, a healthy system of checks and balances indispensable toward our
nations pursuit of political maturity and growth. True enough, rudimentary is the
principle that matters pertaining to the wisdom of a legislative act are beyond the
ambit and province of the courts to inquire.
In fine, absent any clear showing of grave abuse of discretion on the part of
respondents, this Court- as the final arbiter of legal controversies and staunch
sentinel of the rights of the people - is then without power to conduct an incursion
and meddle with such affairs purely executive and legislative in character and
nature. For the Constitution no less, maps out the distinct boundaries and limits
the metes and bounds within which each of the three political branches of
government may exercise the powers exclusively and essentially conferred to it
by law.
WHEREFORE, in light of the foregoing disquisitions, the instant petitions are
hereby DISMISSED.
SO ORDERED.