These personalities have
FRANCISCO CHAVEZ VS, RAUL GONZALES IN HIS CAPACITY AS THE
SECRETARY OF THE DEPARTMENT OF JUSTICE; AND NATIONAL
TELECOMMUNICATIONS COMMISSION
FEB 15, 2008A. Precis
In this jurisdiction, it is established that freedom of the press is crucial and so
inextricably woven into the right to free speech and free expression, that any
attempt to restrict it must be met with an examination so critical that only a
danger that is clear and present would be allowed to curtail it.
Indeed, we have not wavered in the duty to uphold this cherished
freedom. We have struck down laws and issuances meant to curtail this right,
as in Adiong v. COMELEC,[1] Burgos v. Chief of Staff,[2] Social Weather Stations
v. COMELEC,[3] and Bayan v. Executive Secretary Ermita.[4] When on its face, it
is clear that a governmental act is nothing more than a naked means to prevent
the free exercise of speech, it must be nullified.
B. The Facts
1. The case originates from events that occurred a year after the 2004
national and local elections. On June 5, 2005, Press Secretary
Ignacio Bunye told reporters that the opposition was planning to
destabilize the administration by releasing an audiotape of a mobile
phone conversation allegedly between the President of the
Philippines, Gloria Macapagal Arroyo, and a high-ranking official of
the Commission on Elections (COMELEC). The conversation was
audiotaped allegedly through wire-tapping.[5] Later, in
a Malacaang press briefing, Secretary Bunye produced two versions
of the tape, one supposedly the complete version, and the other, a
spliced, doctored or altered version, which would suggest that the
President had instructed the COMELEC official to manipulate the
election results in the Presidents favor. [6] It seems that Secretary
Bunye admitted that the voice was that of President Arroyo, but
subsequently made a retraction. [7]
2. On June 7, 2005, former counsel of deposed President Joseph
Estrada, Atty. Alan Paguia, subsequently released an alleged
authentic tape recording of the wiretap. Included in the tapes were
purported conversations of the President, the First Gentleman Jose
Miguel Arroyo, COMELEC Commissioner Garcillano, and the late
Senator Barbers.[8]
3. On June 8, 2005, respondent Department of Justice (DOJ) Secretary
Raul Gonzales warned reporters that those who had copies of the
compact disc (CD) and those broadcasting or publishing its contents
could be held liable under the Anti-Wiretapping Act. These persons
included Secretary Bunye and Atty. Paguia. He also stated that
persons possessing or airing said tapes were committing a
continuing offense, subject to arrest by anybody who had personal
knowledge if the crime was committed or was being committed in
their presence.[9]
4. On June 9, 2005, in another press briefing, Secretary Gonzales
ordered the National Bureau of Investigation (NBI) to go after media
organizations found to have caused the spread, the playing and the
printing of the contents of a tape of an alleged wiretapped
conversation involving the President about fixing votes in the 2004
national elections. Gonzales said that he was going to start
with Inq7.net, a joint venture between the Philippine Daily Inquirer
and 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
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.
admitted that the taped conversations are products of illegal wiretapping
operations.
Considering that these taped conversations have not been duly
authenticated nor could it be said at this time that the tapes contain an
accurate or truthful representation of what was recorded therein, it is the
position of the [NTC] that the continuous airing or broadcast of the said
taped conversations by radio and television stations is a continuing
violation of the Anti-Wiretapping Law and the conditions of the Provisional
Authority and/or Certificate of Authority issued to these radio and television
stations. It has been subsequently established that the said tapes are false
and/or fraudulent after a prosecution or appropriate investigation, the
concerned radio and television companies are hereby warned that their
broadcast/airing of such false information and/or willful
misrepresentation shall be just cause for the suspension, revocation
and/or cancellation of the licenses or authorizations issued to the
said companies.
In addition to the above, the [NTC] reiterates the pertinent NTC circulars
on program standards to be observed by radio and television
stations. NTC Memorandum Circular 111-12-85 explicitly states, among
others, that all radio broadcasting and television stations shall, during any
broadcast or telecast, cut off from the air the speech, play, act or scene or
other matters being broadcast or telecast the tendency thereof is to
disseminate false information or such other willful misrepresentation, or to
propose and/or incite treason, rebellion or sedition. The foregoing directive
had been reiterated by NTC Memorandum Circular No. 22-89, which, in
addition thereto, prohibited radio, broadcasting and television stations from
using their stations to broadcast or telecast any speech, language or
scene disseminating false information or willful misrepresentation, or
inciting, encouraging or assisting in subversive or treasonable acts.
The [NTC] will not hesitate, after observing the requirements of due
process, to apply with full force the provisions of said Circulars and
their accompanying sanctions on erring radio and television stations
and their owners/operators.
6. On June 14, 2005, NTC held a dialogue with the Board of Directors
of the Kapisanan ng mga Brodkaster sa Pilipinas (KBP). NTC
allegedly assured the KBP that the press release did not violate the
constitutional freedom of speech, of expression, and of the press,
and the right to information. Accordingly, NTC and KBP issued
a Joint Press Statement which states, among others, that: [12]
NTC respects and will not hinder freedom of the press and the
right to information on matters of public concern. KBP & its
members have always been committed to the exercise of press
freedom with high sense of responsibility and discerning
judgment of fairness and honesty.
NTC did not issue any MC [Memorandum Circular] or Order
constituting a restraint of press freedom or censorship. The
NTC further denies and does not intend to limit or restrict
the interview of members of the opposition or free
expression of views.
What is being asked by NTC is that the exercise of press
freedom [be] done responsibly.
KBP has program standards that KBP members will observe in
the treatment of news and public affairs programs. These
include verification of sources, non-airing of materials that
would constitute inciting to sedition and/or rebellion.
The KBP Codes also require that no false
statement or willful misrepresentation is
made in the treatment of news or
commentaries.
The supposed wiretapped tapes should be treated
with sensitivity and handled responsibly
giving due consideration to the process being
undertaken to verify and validate the
authenticity and actual content of the same.
C. The Petition
Petitioner Chavez filed a petition under Rule 65 of the Rules of Court
against respondents Secretary Gonzales and the NTC, praying for the issuance
of the writs of certiorari and prohibition, as extraordinary legal remedies, to
annul void proceedings, and to prevent the unlawful, unconstitutional and
oppressive exercise of authority by the respondents.[13]
Alleging that the acts of respondents are violations of the freedom on
expression and of the press, and the right of the people to information on
matters of public concern,[14] petitioner specifically asked this Court:
 [F]or [the] nullification of acts, issuances, and orders of
respondents committed or made since June 6, 2005 until
the present that curtail the publics rights to freedom of
expression and of the press, and to information on
matters of public concern specifically in relation to
information regarding the controversial taped conversion
of President Arroyo and for prohibition of the further
commission of such acts, and making of such issuances,
and orders by respondents. [15]
Respondents[16] denied that the acts transgress the Constitution, and
questioned petitioners legal standing to file the petition. Among the arguments
they raised as to the validity of the fair warning issued by respondent NTC, is
that broadcast media enjoy lesser constitutional guarantees compared to print
media, and the warning was issued pursuant to the NTCs mandate to regulate
the telecommunications industry. [17] It was also stressed that most of the
[television] and radio stations continue, even to this date, to air the tapes, but of
late within the parameters agreed upon between the NTC and KBP. [18]
D. THE PROCEDURAL THRESHOLD: LEGAL STANDING
To be sure, the circumstances of this case make the constitutional
challenge peculiar. Petitioner, who is not a member of the broadcast media,
prays that we strike down the acts and statements made by respondents as
violations of the right to free speech, free expression and a free press. For
another, the recipients of the press statements have not come forwardneither
intervening nor joining petitioner in this action. Indeed, as a group, they issued a
joint statement with respondent NTC that does not complain about restraints on
freedom of the press.
It would seem, then, that petitioner has not met the requisite legal
standing, having failed to allege such a personal stake in the outcome of the
controversy as to assure that concrete adverseness which sharpens the
presentation of issues upon which the Court so largely depends for illumination
of difficult constitutional questions. [19]
But as early as half a century ago, we have already held that where serious
constitutional questions are involved, the transcendental importance to the
public of these cases demands that they be settled promptly and definitely,
brushing aside if we must, technicalities of procedure. [20] Subsequently, this
Court has repeatedly and consistently refused to wield procedural barriers as
impediments to its addressing and resolving serious legal questions that greatly
impact on public interest,[21] in keeping with the Court's duty under the 1987
Constitution to determine whether or not other branches of government have
kept themselves within the limits of the Constitution and the laws and that they
have not abused the discretion given to them.
Thus, in line with the liberal policy of this Court on locus standi when a case
involves an issue of overarching significance to our society, [22] we therefore
brush aside technicalities of procedure and take cognizance of this
petition,[23] seeing as it involves a challenge to the most exalted of all the civil
rights, the freedom of expression. The petition raises other issues like the
extent of the right to information of the public. It is fundamental, however,
that we need not address all issues but only the most decisive one which
in the case at bar is whether the acts of the respondents abridge freedom
of speech and of the press.
But aside from the primordial issue of determining whether free
speech and freedom of the press have been infringed, the case at bar also
gives this Court the opportunity: (1) to distill the essence of freedom of
speech and of the press now beclouded by the vagaries of motherhood
statements; (2) to clarify the types of speeches and their differing
restraints allowed by law; (3) to discuss the core concepts of prior
restraint, content-neutral and content-based regulations and their
constitutional standard of review; (4) to examine the historical difference
in the treatment of restraints between print and broadcast media and
stress the standard of review governing both; and (5) to call attention to
the ongoing blurring of the lines of distinction between print and
broadcast media.
E. RE-EXAMINING THE LAW ON FREEDOM OF SPEECH,
OF EXPRESSION AND OF THE PRESS
No law shall be passed abridging the freedom of speech,
of expression, or of the press, or the right of the people
peaceably to assemble and petition the government for
redress of grievances.[24]
Freedom of expression has gained recognition as a fundamental
principle of every democratic government, and given a preferred right that
stands on a higher level than substantive economic freedom or other
liberties. The cognate rights codified by Article III, Section 4 of the Constitution,
copied almost verbatim from the First Amendment of the U.S. Bill of
Rights,[25] were considered the necessary consequence of republican
institutions and the complement of free speech.[26] This preferred status of free
speech has also been codified at the international level, its recognition now
enshrined in international law as a customary norm that binds all nations.[27]
In the Philippines, the primacy and high esteem accorded freedom of
expression is a fundamental postulate of our constitutional system. [28] This right
was elevated to constitutional status in the 1935, the 1973 and the 1987
Constitutions, reflecting our own lesson of history, both political and legal, that
freedom of speech is an indispensable condition for nearly every other form of
freedom.[29] Moreover, our history shows that the struggle to protect the
freedom of speech, expression and the press was, at bottom, the struggle for
the indispensable preconditions for the exercise of other freedoms.[30] For it is
only when the people have unbridled access to information and the press that
they will be capable of rendering enlightened judgments. In the oft-quoted
words of Thomas Jefferson, we cannot both be free and ignorant.
E.1. ABSTRACTION OF FREE SPEECH
Surrounding the freedom of speech clause are various concepts that
we have adopted as part and parcel of our own Bill of Rights provision on this
basic freedom.[31] What is embraced under this provision was discussed
exhaustively by the Court in Gonzales v. Commission on Elections, [32] in which
it was held:
At the very least, free speech and free press may be
identified with the liberty to discuss publicly and
truthfully any matter of public interest without
censorship and punishment. There is to be no previous
restraint on the communication of views or subsequent
liability whether in libel suits, prosecution for sedition,
or action for damages, or contempt proceedings unless
there be a clear and present danger of substantive evil
that Congress has a right to prevent. [33]
Gonzales further explained that the vital need of a constitutional
democracy for freedom of expression is undeniable, whether as a means of
assuring individual self-fulfillment; of attaining the truth; of assuring participation
by the people in social, including political, decision-making; and of maintaining
the balance between stability and change.[34] As early as the 1920s, the trend
as reflected in Philippine and American decisions was to recognize the broadest
scope and assure the widest latitude for this constitutional guarantee. The trend
represents a profound commitment to the principle that debate on public issue
should be uninhibited, robust, and wide-open. [35]
Freedom of speech and of the press means something more than
the right to approve existing political beliefs or economic arrangements, to lend
support to official measures, and to take refuge in the existing climate of opinion
on any matter of public consequence.[36] When atrophied, the right becomes
meaningless.[37] The right belongs as well -- if not more to those who question,
who do not conform, who differ.[38] The ideas that may be expressed under this
freedom are confined not only to those that are conventional or acceptable to
the majority. To be truly meaningful, freedom of speech and of the pressshould
allow and even encourage the articulation of the unorthodox view, though it be
hostile to or derided by others; or though such view induces a condition of
unrest, creates dissatisfaction with conditions as they are, or even stirs people
to anger.[39] To paraphrase Justice Holmes, it is freedom for the thought that we
hate, no less than for the thought that agrees with us. [40]
The scope of freedom of expression is so broad that it extends protection to
nearly all forms of communication. It protects speech, print and assembly
regarding secular as well as political causes, and is not confined to any
particular field of human interest. The protection covers myriad matters of public
interest or concern embracing all issues, about which information is needed or
appropriate, so as to enable members of society to cope with the exigencies of
their period. The constitutional protection assures the broadest possible
exercise of free speech and free press for religious, political, economic,
scientific, news, or informational ends, inasmuch as the Constitution's basic
guarantee of freedom to advocate ideas is not confined to the expression of
ideas that are conventional or shared by a majority.
The constitutional protection is not limited to the exposition of ideas.
The protection afforded free speech extends to speech or publications that are
entertaining as well as instructive or informative.Specifically, in Eastern
Broadcasting Corporation (DYRE) v. Dans,[41] this Court stated that all forms of
media, whether print or broadcast, are entitled to the broad protection of the
clause on freedom of speech and of expression.
While all forms of communication are entitled to the broad protection
of freedom of expression clause, the freedom of film, television and radio
broadcasting is somewhat lesser in scope than the freedom accorded to
newspapers and other print media, as will be subsequently discussed.
E.2. DIFFERENTIATION: THE LIMITS & RESTRAINTS OF FREE SPEECH
From the language of the specific constitutional provision, it would appear that
the right to free speech and a free press is not susceptible of any limitation. But
the realities of life in a complex society preclude a literal interpretation of the
provision prohibiting the passage of a law that would abridge such freedom. For
freedom of expression is not an absolute, [42] nor is it an unbridled license that
gives immunity for every possible use of language and prevents the punishment
of those who abuse this freedom.
Thus, all speech are not treated the same. Some types of speech may be
subjected to some regulation by the State under its pervasive police power, in
order that it may not be injurious to the equal right of others or those of the
community or society.[43] The difference in treatment is expected because the
relevant interests of one type of speech, e.g., political speech, may vary from
those of another, e.g., obscene speech. Distinctions have therefore been made
in the treatment, analysis, and evaluation of the permissible scope of
restrictions on various categories of speech. [44] We have ruled, for example,
that in our jurisdiction slander or libel, lewd and obscene speech, as well as
fighting words are not entitled to constitutional protection and may be
penalized.[45]
Moreover, the techniques of reviewing alleged restrictions on speech
(overbreadth, vagueness, and so on) have been applied differently to each
category, either consciously or unconsciously. [46] A study of free speech
jurisprudencewhether here or abroadwill reveal that courts have developed
different tests as to specific types or categories of speech in
concrete situations; i.e., subversive speech; obscene speech; the speech of the
broadcast media and of the traditional print media; libelous speech; speech
affecting associational rights; speech before hostile audiences; symbolic
speech; speech that affects the right to a fair trial; and speech associated with
rights of assembly and petition. [47]
Generally, restraints on freedom of speech and expression are
evaluated by either or a combination of three tests, i.e., (a) the dangerous
tendency doctrine which 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, 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 thatthey will bring about the substantive
evils that Congress has a right to prevent. It is a question of proximity and
degree.[68]
The regulation which restricts the speech content must also serve an important
or substantial government interest, which is unrelated to the suppression of free
expression. [69]

Also, the incidental restriction on speech must be no greater than what is
essential to the furtherance of that interest. [70] A restriction that is so broad that
it encompasses more than what is required to satisfy the governmental interest
will be invalidated. [71] The regulation, therefore, must be reasonable and
narrowly drawn to fit the regulatory purpose, with the least restrictive means
undertaken. [72]
Thus, when the prior restraint partakes of a content-neutral regulation, it is
subjected to an intermediate review. A content-based
regulation,[73] however, bears a heavy presumption of invalidity and is
measured against the clear and present danger rule. The latter will pass
constitutional muster only if justified by a compelling reason, and the restrictions
imposed are neither overbroad nor vague. [74]
Applying the foregoing, it is clear that the challenged acts in the case at bar
need to be subjected to the clear and present danger rule, as they
are content-based restrictions. The acts of respondents focused solely on but
one objecta specific content fixed as these were on the alleged taped
conversations between the President and a COMELEC official. Undoubtedly
these did not merely provide regulations as to the time, place or manner of the
dissemination of speech or expression.
E.5. Dichotomy of Free Press: Print v. Broadcast Media
Finally, comes respondents argument that the challenged act is valid
on the ground that broadcast media enjoys free speech rights that are lesser in
scope to that of print media. We next explore and test the validity of this
argument, insofar as it has been invoked to validate a content-based restriction
on broadcast media.
The regimes presently in place for each type of media differ
from one other. Contrasted with the regime in respect of books, newspapers,
magazines and traditional printed matter, broadcasting, film and video have
been subjected to regulatory schemes.
The dichotomy between print and broadcast media traces its origins
in the United States. There, broadcast radio and television have been held to
have limited First 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 reasonswhy
broadcast media stands apart from print media are: (a) the scarcity of the
frequencies by which the medium operates [i.e., airwaves are physically limited
while print medium may be limitless]; [77] (b) its pervasiveness as a medium; and
(c) its unique accessibility to children.[78] Because cases involving broadcast
media need not follow precisely the same approach that [U.S. courts] have
applied to other media, nor go so far as to demand that such regulations serve
compelling government interests,[79] they are decided on whether the
governmental restriction is narrowly tailored to further a substantial
governmental interest,[80] or the intermediate test.
As pointed out by respondents, Philippine jurisprudence has also
echoed a differentiation in treatment between broadcast and print
media. Nevertheless, a review of Philippine case law on broadcast media
will show thatas we have deviated with the American conception of the
Bill of Rights[81] we likewise did not adopt en masse the U.S. conception
of free speech as it relates to broadcast media, particularly as to which test
would govern content-based prior restraints.
Our cases show two distinct features of this dichotomy. First, the
difference in treatment, in the main, is in the regulatory scheme applied to
broadcast media that is not imposed on traditional print media, and narrowly
confined to unprotected speech (e.g., obscenity, pornography, seditious and
inciting speech), or is based on a compelling government interest that also has
constitutional protection, such as national security or the electoral process.
Second, regardless of the regulatory schemes that broadcast media
is subjected to, the Court has consistently held that the clear and present
danger test applies to content-based restrictions on media, without making a
distinction as to traditional print or broadcast media.
(6) The freedom to comment on public affairs is essential to the vitality of a
The distinction between broadcast and traditional print media was
first enunciated in Eastern Broadcasting Corporation (DYRE) v.
Dans,[82] wherein it was held that [a]ll forms of media, whether print or
broadcast, are entitled to the broad protection of the freedom of speech and
expression clause. The test for limitations on freedom of expression continues
to be the clear and present danger rule[83]
Dans was a case filed to compel the reopening of a radio station which
had been summarily closed on grounds of national security. Although the issue
had become moot and academic because the owners were no longer interested
to reopen, the Court still proceeded to do an analysis of the case and made
formulations to serve as guidelines for all inferior courts and bodies exercising
quasi-judicial functions. Particularly, the Court made a detailed exposition as to
what needs be considered in cases involving broadcast media. Thus:[84]
xxx xxx xxx
(3) All forms of media, whether print or broadcast, are entitled to the broad
protection of the freedom of speech and expression clause. The test for
limitations on freedom of expression continues to be the clear and
present danger rule, that words are used in such circumstances and are of
such a nature as to create a clear and present danger that they will bring
about the substantive evils that the lawmaker has a right to prevent, In
his Constitution of the Philippines (2nd Edition, pp. 569-570) Chief Justice
Enrique M. Fernando cites at least nine of our decisions which apply the
test. More recently, the clear and present danger test was applied in J.B.L.
Reyes in behalf of the Anti-Bases Coalition v. Bagatsing. (4) The clear and
present danger test, however, does not lend itself to a simplistic and all
embracing interpretation applicable to all utterances in all forums.
Broadcasting has to be licensed. Airwave frequencies have to be allocated
among qualified users. A broadcast corporation cannot simply appropriate a
certain frequency without regard for government regulation or for the rights
of others.
All forms of communication are entitled to the broad protection of the
freedom of expression clause. Necessarily, however, the freedom of
television and radio broadcasting is somewhat lesser in scope than the
freedom accorded to newspaper and print media.
The American Court in Federal Communications Commission v. Pacifica
Foundation (438 U.S. 726), confronted with a patently offensive and
indecent regular radio program, explained why radio broadcasting, more
than other forms of communications, receives the most limited protection
from the free expression clause. First, broadcast media have established a
uniquely pervasive presence in the lives of all citizens, Material presented
over the airwaves confronts the citizen, not only in public, but in the privacy
of his home. Second, broadcasting is uniquely accessible to children.
Bookstores and motion picture theaters may be prohibited from making
certain material available to children, but the same selectivity cannot be
done in radio or television, where the listener or viewer is constantly tuning
in and out.
Similar considerations apply in the area of national security.
The broadcast media have also established a uniquely pervasive presence
in the lives of all Filipinos. Newspapers and current books are found only in
metropolitan areas and in the poblaciones of municipalities accessible to fast
and regular transportation. Even here, there are low income masses who
find the cost of books, newspapers, and magazines beyond their humble
means. Basic needs like food and shelter perforce enjoy high priorities.
On the other hand, the transistor radio is found everywhere. The television
set is also becoming universal. Their message may be simultaneously
received by a national or regional audience of listeners including the
indifferent or unwilling who happen to be within reach of a blaring radio or
television set. The materials broadcast over the airwaves reach every
person of every age, persons of varying susceptibilities to persuasion,
persons of different I.Q.s and mental capabilities, persons whose reactions
to inflammatory or offensive speech would be difficult to monitor or predict.
The impact of the vibrant speech is forceful and immediate. Unlike readers
of the printed work, the radio audience has lesser opportunity to cogitate
analyze, and reject the utterance.
(5) The clear and present danger test, therefore, must take the particular
circumstances of broadcast media into account. The supervision of radio
stations-whether by government or through self-regulation by the industry
itself calls for thoughtful, intelligent and sophisticated handling.
The government has a right to be protected against broadcasts which incite
the listeners to violently overthrow it. Radio and television may not be used
to organize a rebellion or to signal the start of widespread uprising. At the
same time, the people have a right to be informed. Radio and television
would have little reason for existence if broadcasts are limited to bland,
obsequious, or pleasantly entertaining utterances. Since they are the most
convenient and popular means of disseminating varying views on public
issues, they also deserve special protection.
representative democracy. In the 1918 case of United States v. Bustos (37
Phil. 731) this Court was already stressing that.
The interest of society and the maintenance of good government demand a
full discussion of public affairs. Complete liberty to comment on the conduct
of public men is a scalpel in the case of free speech. The sharp incision of its
probe relieves the abscesses of officialdom. Men in public life may suffer
under a hostile and an unjust accusation; the wound can be assuaged with
the balm of a clear conscience. A public officer must not be too thin-skinned
with reference to comment upon his official acts. Only thus can the
intelligence and dignity of the individual be exalted.
(7) Broadcast stations deserve the special protection given to all forms of
media by the due process and freedom of expression clauses of the
Constitution. [Citations omitted]
 It is interesting to note that the Court in Dans adopted the arguments found in
U.S. jurisprudence to justify differentiation of treatment (i.e., the scarcity,
pervasiveness and accessibility to children), but only after categorically
declaring that the test for limitations on freedom of expression continues
to be the clear and present danger rule, for all forms of media, whether
print or broadcast. Indeed, a close reading of the above-quoted provisions
would show that the differentiation that the Court in Dans referred to was
narrowly restricted to what is otherwise deemed as unprotected speech (e.g.,
obscenity, national security, seditious and inciting speech), or to validate a
licensing or regulatory scheme necessary to allocate the limited broadcast
frequencies, which is absent in print media. Thus, when this Court declared
in Dans that the freedom given to broadcast media was somewhat lesser in
scope than the freedom accorded to newspaper and print media, it was not as
to what test should be applied, but the context by which requirements of
licensing, allocation of airwaves, and application of norms to unprotected
speech. [85]
In the same year that the Dans case was decided, it was reiterated in Gonzales
v. Katigbak,[86] that the test to determine free expression challenges was the
clear and present danger, again without distinguishing the
media.[87] Katigbak, strictly speaking, does not treat of broadcast media but
motion pictures. Although the issue involved obscenity standards as applied to
movies,[88] the Court concluded its decision with the following obiter dictum that
a less liberal approach would be used to resolve obscenity issues in television
as opposed to motion pictures:
All that remains to be said is that the ruling is to be
limited to the concept of obscenity applicable to motion
pictures. It is the consensus of this Court that where
television is concerned, a less liberal approach calls for
observance. This is so because unlike motion pictures
where the patrons have to pay their way, television
reaches every home where there is a set. Children
then will likely be among the avid viewers of the
programs therein shown..It cannot be denied though
that the State as parens patriae is called upon to
manifest an attitude of caring for the welfare of the
young.
More recently, in resolving a case involving the conduct of exit polls and
dissemination of the results by a broadcast company, we reiterated that the
clear and present danger rule is the test we unquestionably adhere to issues
that involve freedoms of speech and of the press.[89]
This is not to suggest, however, that the clear and present danger rule has
been applied to all cases that involve the broadcast media. The rule applies
to all media, including broadcast, but only when the challenged act is a content-
based regulation that infringes on free speech, expression and the
press. Indeed, in Osmena v. COMELEC,[90] which also involved broadcast
media, the Court refused to apply the clear and present danger rule to a
COMELEC regulation of time and manner of advertising of political
advertisements because the challenged restriction was content-neutral.[91] And
in a case involving due process and equal protection issues, the Court
in Telecommunications and Broadcast Attorneys of the Philippines v.
COMELEC[92] treated a restriction imposed on a broadcast media as a
reasonable condition for the grant of the medias franchise, without going into
which test would apply.
That broadcast media is subject to a regulatory regime absent in print media is
observed also in other jurisdictions, where the statutory regimes in place over
broadcast media include elements of licensing, regulation by administrative
bodies, and censorship. As explained by a British author:
The reasons behind treating broadcast and films differently from the print media differ
in a number of respects, but have a common historical basis. The stricter system of
controls seems to have been adopted in answer to the view that owing to
their particular impact on audiences, films, videos and broadcasting require a system
of prior restraints, whereas it is now accepted that books and other printed media do
not. These media are viewed as beneficial to the public in a number of respects, but
are also seen as possible sources of harm.[93]
Parenthetically, these justifications are now the subject of debate. Historically,
the scarcity of frequencies was thought to provide a rationale. However, cable
and satellite television have enormously increased the number of actual and
potential channels. Digital technology will further increase the number of
channels available. But still, the argument persists that broadcasting is the most
influential means of communication, since it comes into the home, and so much
time is spent watching television. Since it has a unique impact on people and
affects children in a way that the print media normally does not, that regulation
is said to be necessary in order to preserve pluralism. It has been argued
further that a significant main threat to free expressionin terms of
diversitycomes not from government, but from private corporate
bodies. These developments show a need for a reexamination of the traditional
notions of the scope and extent of broadcast media regulation. [94]
The emergence of digital technology -- which has led to the convergence of
broadcasting, telecommunications and the computer industry -- has likewise led
to the question of whether the regulatory model for broadcasting will continue to
be appropriate in the converged environment.[95] Internet, for example, remains
largely unregulated, yet the Internet and the broadcast media share
similarities, [96] and the rationales used to support broadcast regulation apply
equally to the Internet.[97] Thus, it has been argued that courts, legislative
bodies and the government agencies regulating media must agree to regulate
both, regulate neither or develop a new regulatory framework and rationale to
justify the differential treatment. [98]
F. The Case At Bar
Having settled the applicable standard to content-based restrictions on
broadcast media, let us go to its application to the case at bar. To
recapitulate, a 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 the Press Secretary obfuscate the identity of the voices in the
tape recording. Secondly, the integrity of the taped conversation is also
suspect. The Press Secretary showed to the public two versions, one supposed
to be a complete version and the other, an altered version. Thirdly, the
evidence of the respondents on the whos and the hows of the wiretapping act is
ambivalent, especially considering the tapes different versions. The identity of
the wire-tappers, the manner of its commission and other related and relevant
proofs are some of the invisibles of this case. Fourthly, given all these
unsettled facets of the tape, it is even arguable whether its airing would violate
the anti-wiretapping law.
We rule that not every violation of a law will justify straitjacketing the
exercise of freedom of speech and of the press. Our laws are of different
kinds and doubtless, some of them provide norms of conduct which even if
violated have only an adverse effect on a persons private comfort but does not
endanger national security. There are laws of great significance but their
violation, by itself and without more, cannot support suppression of free
speech and free press. In fine, violation of law is just a factor, a vital one to
be sure, which should be weighed in adjudging whether to restrain freedom of
speech and of the press. The totality of the injurious effects of the violation to
private and public interest must be calibrated in light of the preferred status
accorded by the Constitution and by related international covenants protecting
freedom of speech and of the press. In calling for a careful and calibrated
measurement of the circumference of all these factors to determine compliance
with the clear and present danger test, the Court should not be
misinterpreted as devaluing violations of law. By all
means, violations of law should be vigorously prosecuted by the
State for they breed their own evil consequence. But to repeat, the need to
prevent their violation cannot per se trump the exercise of
free speech and free press, a preferred right whose breach can
lead to greater evils. For this failure of the respondents alone to offer proof to
satisfy the clear and present danger test, the Court has no option but to uphold
the exercise of free speech and free press. There is no showing that the feared
violation of the anti-wiretapping law clearly endangers the national security of
the State.
This is not all the faultline in the stance of the respondents. We slide to the
issue of whether the mere press statements of the Secretary of Justice and of
the NTC in question constitute a form of content-based prior restraint that has
transgressed the Constitution. In resolving this issue, we hold
that it is not decisive that the press statements made by respondents were
not reduced in or followed up with formal orders or circulars. It is
sufficient that the press statements were made by respondents while in
the exercise of their official functions. Undoubtedly, respondent Gonzales
made his statements as Secretary of Justice, while the NTC issued its
statement as the regulatory body of media. Any act done, such as a speech
uttered, for and on behalf of the government in an official capacity is
covered by the rule on prior restraint. The concept of an act does not limit
itself to acts already converted to a formal order or official
circular. Otherwise, the non formalization of an act into an official order or
circular will result in the easy circumvention of the prohibition on prior
restraint. The press statements at bar are acts that should be struck down as
they constitute impermissible forms of prior restraints on the right to free speech
and press.
There is enough evidence of chilling effect of the complained acts
on record. The warnings given to media came from no less the NTC, a
regulatory agency that can cancel the Certificate of Authority of the radio and
broadcast media. They also came from the Secretary of Justice, the alter ego of
the Executive, who wields the awesome power to prosecute those perceived to
be violating the laws of the land.After the warnings, the KBP inexplicably
joined the NTC in issuing an ambivalent Joint Press Statement. After the
warnings, petitioner Chavez was left alone to fight this battle for freedom of
speech and of the press. This silence on the sidelines on the part of some
media practitioners is too deafening to be the subject of misinterpretation.
The constitutional imperative for us to strike down unconstitutional acts should
always be exercised with care and in light of the distinct facts of each case. For
there are no hard and fast rules when it comes to slippery constitutional
questions, and the limits and construct of relative freedoms are never set in
stone. Issues revolving on their construct must be decided on a case to case
basis, always based on the peculiar shapes and shadows of each case. But in
cases where the challenged acts are patent invasions of a constitutionally
protected right, we should be swift in striking them down as nullities per se. A
blow too soon struck for freedom is preferred than a blow too late.
In VIEW WHEREOF, the petition is GRANTED. The writs of certiorari and
prohibition are hereby issued, nullifying the official statements made by
respondents on June 8, and 11, 2005 warning the media on airing the alleged
wiretapped conversation between the President and other personalities, for
constituting unconstitutional prior restraint on the exercise of freedom of speech
and of the press SO ORDERED.
G.R. No. 203335 February 11, 2014
JOSE JESUS M. DISINI, JR., ROWENA S. DISINI, LIANNE IVY P. MEDINA,
JANETTE TORAL and ERNESTO SONIDO, JR., Petitioners,
vs.
THE SECRETARY OF JUSTICE, THE SECRETARY OF THE DEPARTMENT
OF THE INTERIOR AND LOCAL GOVERNMENT, THE EXECUTIVE
DIRECTOR OF THE INFORMATION AND COMMUNICATIONS
TECHNOLOGY OFFICE, THE CHIEF OF THE PHILIPPINE NATIONAL
POLICE and THE DIRECTOR OF THE NATIONAL BUREAU OF
INVESTIGATION, Respondents.
x-----------------------x
G.R. No. 203299
LOUIS "BAROK" C. BIRAOGO, Petitioner,
vs.
NATIONAL BUREAU OF INVESTIGATION and PHILIPPINE NATIONAL
POLICE, Respondents.
x-----------------------x
G.R. No. 203306
ALAB NG MAMAMAHAYAG (ALAM), HUKUMAN NG MAMAMAYAN
MOVEMENT, INC., JERRY S. YAP, BERTENI "TOTO" CAUSING, HERNANI
Q. CUARE, PERCY LAPID, TRACY CABRERA, RONALDO E. RENTA,
CIRILO P. SABARRE, JR., DERVIN CASTRO, ET AL., Petitioners,
vs.
OFFICE OF THE PRESIDENT, represented by President Benigno Simeon
Aquino III, SENATE OF THE PHILIPPINES, and HOUSE OF
REPRESENTATIVES, Respondents.
x-----------------------x
G.R. No. 203359
SENATOR TEOFISTO DL GUINGONA III, Petitioner,
vs.
EXECUTIVE SECRETARY, THE SECRETARY OF JUSTICE, THE
SECRETARY OF THE DEPARTMENT OF INTERIOR AND LOCAL
GOVERNMENT, THE CHIEF OF THE PHILIPPINE NATIONAL POLICE, and
DIRECTOR OF THE NATIONAL BUREAU OF
INVESTIGATION, Respondents.
x-----------------------x
G.R. No. 203378
ALEXANDER ADONIS, ELLEN TORDESILLAS, MA. GISELA ORDENES-
CASCOLAN, H. HARRY L. ROQUE, JR., ROMEL R. BAGARES, and
GILBERT T. ANDRES, Petitioners,
vs.
THE EXECUTIVE SECRETARY, THE DEPARTMENT OF BUDGET AND
MANAGEMENT, THE DEPARTMENT OF JUSTICE, THE DEPARTMENT OF
THE INTERIOR AND LOCAL GOVERNMENT, THE NATIONAL BUREAU OF
INVESTIGATION, THE PHILIPPINE NATIONAL POLICE, AND THE
INFORMATION AND COMMUNICATIONS TECHNOLOGY OFFICE-
DEPARTMENT OF SCIENCE AND TECHNOLOGY, Respondents.
x-----------------------x
G.R. No. 203391
HON. RAYMOND V. PALATINO, HON. ANTONIO TINIO, VENCER MARI
CRISOSTOMO OF ANAKBAYAN, MA. KATHERINE ELONA OF THE
PHILIPPINE COLLEGIAN, ISABELLE THERESE BAGUISI OF THE
NATIONAL UNION OF STUDENTS OF THE PHILIPPINES, ET
AL., Petitioners,
vs.
PAQUITO N. OCHOA, JR., in his capacity as Executive Secretary and alter-
ego of President Benigno Simeon Aquino III, LEILA DE LIMA in her
capacity as Secretary of Justice, Respondents.
x-----------------------x
G.R. No. 203407
BAGONG ALYANSANG MAKABAYAN SECRETARY GENERAL RENATO
M. REYES, JR., National Artist BIENVENIDO L. LUMBERA, Chairperson of
Concerned Artists of the Philippines, ELMER C. LABOG, Chairperson of
Kilusang Mayo Uno, CRISTINA E. PALABAY, Secretary General of
Karapatan, FERDINAND R. GAITE, Chairperson of COURAGE, JOEL B.
MAGLUNSOD, Vice President of Anakpawis Party-List, LANA R. LINABAN,
Secretary General Gabriela Women's Party, ADOLFO ARES P.
GUTIERREZ, and JULIUS GARCIA MATIBAG, Petitioners,
vs.
BENIGNO SIMEON C. AQUINO III, President of the Republic of the
Philippines, PAQUITO N. OCHOA, JR., Executive Secretary, SENATE OF
THE PHILIPPINES, represented by SENATE PRESIDENT JUAN PONCE
ENRILE, HOUSE OF REPRESENTATIVES, represented by SPEAKER
FELICIANO BELMONTE, JR., LEILA DE LIMA, Secretary of the Department
of Justice, LOUIS NAPOLEON C. CASAMBRE, Executive Director of the
Information and Communications Technology Office, NONNATUS
CAESAR R. ROJAS, Director of the National Bureau of Investigation,
D/GEN. NICANOR A. BARTOLOME, Chief of the Philippine National Police,
MANUEL A. ROXAS II, Secretary of the Department of the Interior and
Local Government, Respondents.
x-----------------------x
G.R. No. 203440
MELENCIO S. STA. MARIA, SEDFREY M. CANDELARIA, AMPARITA STA.
MARIA, RAY PAOLO J. SANTIAGO, GILBERT V. SEMBRANO, and RYAN
JEREMIAH D. QUAN (all of the Ateneo Human Rights Center),Petitioners,
vs.
HONORABLE PAQUITO OCHOA in his capacity as Executive Secretary,
HONORABLE LEILA DE LIMA in her capacity as Secretary of Justice,
HONORABLE MANUEL ROXAS in his capacity as Secretary of the
Department of Interior and Local Government, The CHIEF of the Philippine
National Police, The DIRECTOR of the National Bureau of Investigation (all
of the Executive Department of Government), Respondents.
x-----------------------x
G.R. No. 203453
NATIONAL UNION OF JOURNALISTS OF THE PHILIPPINES (NUJP),
PHILIPPINE PRESS INSTITUTE (PPI), CENTER FOR MEDIA FREEDOM
AND RESPONSIBILITY, ROWENA CARRANZA PARAAN, MELINDA
QUINTOS-DE JESUS, JOSEPH ALWYN ALBURO, ARIEL SEBELLINO AND
THE PETITIONERS IN THE e-PETITION http://www.nujp.org/no-to-
ra10175/, Petitioners,
vs.
THE EXECUTIVE SECRETARY, THE SECRETARY OF JUSTICE, THE
SECRETARY OF THE INTERIOR AND LOCAL GOVERNMENT, THE
SECRETARY OF BUDGET AND MANAGEMENT, THE DIRECTOR
GENERAL OF THE PHILIPPINE NATIONAL POLICE, THE DIRECTOR OF
THE NATIONAL BUREAU OF INVESTIGATION, THE CYBERCRIME
INVESTIGATION AND COORDINATING CENTER, AND ALL AGENCIES
AND INSTRUMENTALITIES OF GOVERNMENT AND ALL PERSONS
ACTING UNDER THEIR INSTRUCTIONS, ORDERS, DIRECTION IN
RELATION TO THE IMPLEMENTATION OF REPUBLIC ACT NO.
10175, Respondents.
x-----------------------x
G.R. No. 203454
PAUL CORNELIUS T. CASTILLO & RYAN D. ANDRES, Petitioners,
vs.
THE HON. SECRETARY OF JUSTICE THE HON. SECRETARY OF
INTERIOR AND LOCAL GOVERNMENT,Respondents.
x-----------------------x
G.R. No. 203469
ANTHONY IAN M. CRUZ; MARCELO R. LANDICHO; BENJAMIN NOEL A.
ESPINA; MARCK RONALD C. RIMORIN; JULIUS D. ROCAS; OLIVER
RICHARD V. ROBILLO; AARON ERICK A. LOZADA; GERARD ADRIAN P.
MAGNAYE; JOSE REGINALD A. RAMOS; MA. ROSARIO T. JUAN;
BRENDALYN P. RAMIREZ; MAUREEN A. HERMITANIO; KRISTINE JOY S.
REMENTILLA; MARICEL O. GRAY; JULIUS IVAN F. CABIGON; BENRALPH
S. YU; CEBU BLOGGERS SOCIETY, INC. PRESIDENT RUBEN B. LICERA,
JR; and PINOY EXPAT/OFW BLOG AWARDS, INC. COORDINATOR
PEDRO E. RAHON; Petitioners,
vs.
HIS EXCELLENCY BENIGNO S. AQUINO III, in his capacity as President of
the Republic of the Philippines; SENATE OF THE PHILIPPINES,
represented by HON. JUAN PONCE ENRILE, in his capacity as Senate
President; HOUSE OF REPRESENTATIVES, represented by FELICIANO R.
BELMONTE, JR., in his capacity as Speaker of the House of
Representatives; HON. PAQUITO N. OCHOA, JR., in his capacity as
Executive Secretary; HON. LEILA M. DE LIMA, in her capacity as Secretary
of Justice; HON. LOUIS NAPOLEON C. CASAMBRE, in his capacity as
Executive Director, Information and Communications Technology Office;
HON. NONNATUS CAESAR R. ROJAS, in his capacity as Director, National
Bureau of Investigation; and P/DGEN. NICANOR A. BARTOLOME, in his
capacity as Chief, Philippine National Police, Respondents.
x-----------------------x
G.R. No. 203501
PHILIPPINE BAR ASSOCIATION, INC., Petitioner,
vs.
HIS EXCELLENCY BENIGNO S. AQUINO III, in his official capacity as
President of the Republic of the Philippines; HON. PAQUITO N. OCHOA,
JR., in his official capacity as Executive Secretary; HON. LEILA M. DE
LIMA, in her official capacity as Secretary of Justice; LOUIS NAPOLEON
C. CASAMBRE, in his official capacity as Executive Director, Information
and Communications Technology Office; NONNATUS CAESAR R. ROJAS,
in his official capacity as Director of the National Bureau of Investigation;
and DIRECTOR GENERAL NICANOR A. BARTOLOME, in his official
capacity as Chief of the Philippine National Police,Respondents.
x-----------------------x
G.R. No. 203509
BAYAN MUNA REPRESENTATIVE NERI J. COLMENARES, Petitioner,
vs.
THE EXECUTIVE SECRETARY PAQUITO OCHOA, JR., Respondent.
x-----------------------x
G.R. No. 203515
NATIONAL PRESS CLUB OF THE PHILIPPINES, INC. represented by
BENNY D. ANTIPORDA in his capacity as President and in his personal
capacity, Petitioner,
vs.
OFFICE OF THE PRESIDENT, PRES. BENIGNO SIMEON AQUINO III,
DEPARTMENT OF JUSTICE, DEPARTMENT OF INTERIOR AND LOCAL
GOVERNMENT, PHILIPPINE NATIONAL POLICE, NATIONAL BUREAU OF
INVESTIGATION, DEPARTMENT OF BUDGET AND MANAGEMENT AND
ALL OTHER GOVERNMENT INSTRUMENTALITIES WHO HAVE HANDS IN
THE PASSAGE AND/OR IMPLEMENTATION OF REPUBLIC ACT
10175, Respondents.
x-----------------------x
G.R. No. 203518
PHILIPPINE INTERNET FREEDOM ALLIANCE, composed of DAKILA-
PHILIPPINE COLLECTIVE FOR MODERN HEROISM, represented by Leni
Velasco, PARTIDO LAKAS NG MASA, represented by Cesar S. Melencio,
FRANCIS EUSTON R. ACERO, MARLON ANTHONY ROMASANTA
TONSON, TEODORO A. CASIO, NOEMI LARDIZABAL-DADO, IMELDA
ORALES, JAMES MATTHEW B. MIRAFLOR, JUAN G.M. RAGRAGIO,
MARIA FATIMA A. VILLENA, MEDARDO M. MANRIQUE, JR., LAUREN
DADO, MARCO VITTORIA TOBIAS SUMAYAO, IRENE CHIA, ERASTUS
NOEL T. DELIZO, CRISTINA SARAH E. OSORIO, ROMEO FACTOLERIN,
NAOMI L. TUPAS, KENNETH KENG, ANA ALEXANDRA C.
CASTRO, Petitioners,
vs.
THE EXECUTIVE SECRETARY, THE SECRETARY OF JUSTICE, THE
SECRETARY OF INTERIOR AND LOCAL GOVERNMENT, THE
SECRETARY OF SCIENCE AND TECHNOLOGY, THE EXECUTIVE
DIRECTOR OF THE INFORMATION TECHNOLOGY OFFICE, THE
DIRECTOR OF THE NATIONAL BUREAU OF INVESTIGATION, THE CHIEF,
PHILIPPINE NATIONAL POLICE, THE HEAD OF THE DOJ OFFICE OF
CYBERCRIME, and THE OTHER MEMBERS OF THE CYBERCRIME
INVESTIGATION AND COORDINATING CENTER, Respondents.
DECISION
ABAD, J.:
These consolidated petitions seek to declare several provisions of Republic Act
(R.A.) 10175, the Cybercrime Prevention Act of 2012, unconstitutional and void.
The Facts and the Case
The cybercrime law aims to regulate access to and use of the cyberspace.
Using his laptop or computer, a person can connect to the internet, a system
that links him to other computers and enable him, among other things, to:
1. Access virtual libraries and encyclopedias for all kinds of
information that he needs for research, study, amusement,
upliftment, or pure curiosity;
2. Post billboard-like notices or messages, including pictures and
videos, for the general public or for special audiences like
associates, classmates, or friends and read postings from them;
3. Advertise and promote goods or services and make purchases
and payments;
4. Inquire and do business with institutional entities like government
agencies, banks, stock exchanges, trade houses, credit card
companies, public utilities, hospitals, and schools; and
5. Communicate in writing or by voice with any person through his e-
mail address or telephone.
This is cyberspace, a system that accommodates millions and billions of
simultaneous and ongoing individual accesses to and uses of the internet. The
cyberspace is a boon to the need of the current generation for greater
information and facility of communication. But all is not well with the system
since it could not filter out a number of persons of ill will who would want to use
cyberspace technology for mischiefs and crimes. One of them can, for instance,
avail himself of the system to unjustly ruin the reputation of another or bully the
latter by posting defamatory statements against him that people can read.
And because linking with the internet opens up a user to communications from
others, the ill-motivated can use the cyberspace for committing theft by hacking
into or surreptitiously accessing his bank account or credit card or defrauding
him through false representations. The wicked can use the cyberspace, too, for
illicit trafficking in sex or for exposing to pornography guileless children who
have access to the internet. For this reason, the government has a legitimate
right to regulate the use of cyberspace and contain and punish wrongdoings.
Notably, there are also those who would want, like vandals, to wreak or cause
havoc to the computer systems and networks of indispensable or highly useful
institutions as well as to the laptop or computer programs and memories of
innocent individuals. They accomplish this by sending electronic viruses or
virtual dynamites that destroy those computer systems, networks, programs,
and memories. The government certainly has the duty and the right to prevent
these tomfooleries from happening and punish their perpetrators, hence the
Cybercrime Prevention Act.
But petitioners claim that the means adopted by the cybercrime law for
regulating undesirable cyberspace activities violate certain of their constitutional
rights. The government of course asserts that the law merely seeks to
reasonably put order into cyberspace activities, punish wrongdoings, and
prevent hurtful attacks on the system.
Pending hearing and adjudication of the issues presented in these cases, on
February 5, 2013 the Court extended the original 120-day temporary restraining
order (TRO) that it earlier issued on October 9, 2012, enjoining respondent
government agencies from implementing the cybercrime law until further orders.
The Issues Presented
Petitioners challenge the constitutionality of the following provisions of the
cybercrime law that regard certain acts as crimes and impose penalties for their
commission as well as provisions that would enable the government to track
down and penalize violators. These provisions are:
a. Section 4(a)(1) on Illegal Access;
b. Section 4(a)(3) on Data Interference;
c. Section 4(a)(6) on Cyber-squatting;
d. Section 4(b)(3) on Identity Theft;
e. Section 4(c)(1) on Cybersex;
f. Section 4(c)(2) on Child Pornography;
g. Section 4(c)(3) on Unsolicited Commercial Communications;
h. Section 4(c)(4) on Libel;
i. Section 5 on Aiding or Abetting and Attempt in the Commission of
Cybercrimes;
j. Section 6 on the Penalty of One Degree Higher;
k. Section 7 on the Prosecution under both the Revised Penal Code
(RPC) and R.A. 10175;
l. Section 8 on Penalties;
m. Section 12 on Real-Time Collection of Traffic Data;
n. Section 13 on Preservation of Computer Data;
o. Section 14 on Disclosure of Computer Data;
p. Section 15 on Search, Seizure and Examination of Computer
Data;
q. Section 17 on Destruction of Computer Data;
r. Section 19 on Restricting or Blocking Access to Computer Data;
s. Section 20 on Obstruction of Justice;
t. Section 24 on Cybercrime Investigation and Coordinating Center
(CICC); and
u. Section 26(a) on CICCs Powers and Functions.
Some petitioners also raise the constitutionality of related Articles 353, 354,
361, and 362 of the RPC on the crime of libel.
The Rulings of the Court
Section 4(a)(1)
Section 4(a)(1) provides:
Section 4. Cybercrime Offenses. The following acts constitute the offense of
cybercrime punishable under this Act:
(a) Offenses against the confidentiality, integrity and availability of computer
data and systems:
(1) Illegal Access. The access to the whole or any part of a computer system
without right.
Petitioners contend that Section 4(a)(1) fails to meet the strict scrutiny standard
required of laws that interfere with the fundamental rights of the people and
should thus be struck down.
The Court has in a way found the strict scrutiny standard, an American
constitutional construct,1 useful in determining the constitutionality of laws that
tend to target a class of things or persons. According to this standard, a
legislative classification that impermissibly interferes with the exercise of
fundamental right or operates to the peculiar class disadvantage of a suspect
class is presumed unconstitutional. The burden is on the government to prove
that the classification is necessary to achieve a compelling state interest and
that it is the least restrictive means to protect such interest.2 Later, the strict
scrutiny standard was used to assess the validity of laws dealing with the
regulation of speech, gender, or race as well as other fundamental rights, as
expansion from its earlier applications to equal protection.3
In the cases before it, the Court finds nothing in Section 4(a)(1) that calls for the
application of the strict scrutiny standard since no fundamental freedom, like
speech, is involved in punishing what is essentially a condemnable act
accessing the computer system of another without right. It is a universally
condemned conduct.4
Petitioners of course fear that this section will jeopardize the work of ethical
hackers, professionals who employ tools and techniques used by criminal
hackers but would neither damage the target systems nor steal information.
Ethical hackers evaluate the target systems security and report back to the
owners the vulnerabilities they found in it and give instructions for how these
can be remedied. Ethical hackers are the equivalent of independent auditors
who come into an organization to verify its bookkeeping records.5
Besides, a clients engagement of an ethical hacker requires an agreement
between them as to the extent of the search, the methods to be used, and the
systems to be tested. This is referred to as the "get out of jail free card."6Since
the ethical hacker does his job with prior permission from the client, such
permission would insulate him from the coverage of Section 4(a)(1).
Section 4(a)(3) of the Cybercrime Law
Section 4(a)(3) provides:
Section 4. Cybercrime Offenses. The following acts constitute the offense of
cybercrime punishable under this Act:
(a) Offenses against the confidentiality, integrity and availability of computer
data and systems:
xxxx
(3) Data Interference. The intentional or reckless alteration, damaging,
deletion or deterioration of computer data, electronic document, or electronic
data message, without right, including the introduction or transmission of
viruses.
Petitioners claim that Section 4(a)(3) suffers from overbreadth in that, while it
seeks to discourage data interference, it intrudes into the area of protected
speech and expression, creating a chilling and deterrent effect on these
guaranteed freedoms.
Under the overbreadth doctrine, a proper governmental purpose,
constitutionally subject to state regulation, may not be achieved by means that
unnecessarily sweep its subject broadly, thereby invading the area of protected
freedoms.7 But Section 4(a)(3) does not encroach on these freedoms at all. It
simply punishes what essentially is a form of vandalism,8 the act of willfully
destroying without right the things that belong to others, in this case their
computer data, electronic document, or electronic data message. Such act has
no connection to guaranteed freedoms. There is no freedom to destroy other
peoples computer systems and private documents.
All penal laws, like the cybercrime law, have of course an inherent chilling
effect, an in terrorem effect9 or the fear of possible prosecution that hangs on
the heads of citizens who are minded to step beyond the boundaries of what is
proper. But to prevent the State from legislating criminal laws because they
instill such kind of fear is to render the state powerless in addressing and
penalizing socially harmful conduct.10 Here, the chilling effect that results in
paralysis is an illusion since Section 4(a)(3) clearly describes the evil that it
seeks to punish and creates no tendency to intimidate the free exercise of ones
constitutional rights.
Besides, the overbreadth challenge places on petitioners the heavy burden of
proving that under no set of circumstances will Section 4(a)(3) be
valid.11 Petitioner has failed to discharge this burden.
Section 4(a)(6) of the Cybercrime Law
Section 4(a)(6) provides:
Section 4. Cybercrime Offenses. The following acts constitute the offense of
cybercrime punishable under this Act:
(a) Offenses against the confidentiality, integrity and availability of computer
data and systems:
xxxx
(6) Cyber-squatting. The acquisition of domain name over the internet in bad
faith to profit, mislead, destroy the reputation, and deprive others from
registering the same, if such a domain name is:
(i) Similar, identical, or confusingly similar to an existing trademark
registered with the appropriate government agency at the time of the
domain name registration;
(ii) Identical or in any way similar with the name of a person other
than the registrant, in case of a personal name; and
(iii) Acquired without right or with intellectual property interests in it.
Petitioners claim that Section 4(a)(6) or cyber-squatting violates the equal
protection clause12 in that, not being narrowly tailored, it will cause a user using
his real name to suffer the same fate as those who use aliases or take the
name of another in satire, parody, or any other literary device. For example,
supposing there exists a well known billionaire-philanthropist named "Julio
Gandolfo," the law would punish for cyber-squatting both the person who
registers such name because he claims it to be his pseudo-name and another
who registers the name because it happens to be his real name. Petitioners
claim that, considering the substantial distinction between the two, the law
should recognize the difference.
But there is no real difference whether he uses "Julio Gandolfo" which happens
to be his real name or use it as a pseudo-name for it is the evil purpose for
which he uses the name that the law condemns. The law is reasonable in
penalizing him for acquiring the domain name in bad faith to profit, mislead,
destroy reputation, or deprive others who are not ill-motivated of the rightful
opportunity of registering the same. The challenge to the constitutionality of
Section 4(a)(6) on ground of denial of equal protection is baseless.
Section 4(b)(3) of the Cybercrime Law
Section 4(b)(3) provides:
Section 4. Cybercrime Offenses. The following acts constitute the offense of
cybercrime punishable under this Act:
xxxx
b) Computer-related Offenses:
xxxx
(3) Computer-related Identity Theft. The intentional acquisition, use, misuse,
transfer, possession, alteration, or deletion of identifying information belonging
to another, whether natural or juridical, without right: Provided: that if no
damage has yet been caused, the penalty imposable shall be one (1) degree
lower.
Petitioners claim that Section 4(b)(3) violates the constitutional rights to due
process and to privacy and correspondence, and transgresses the freedom of
the press.
The right to privacy, or the right to be let alone, was institutionalized in the 1987
Constitution as a facet of the right protected by the guarantee against
unreasonable searches and seizures.13 But the Court acknowledged its
existence as early as 1968 in Morfe v. Mutuc,14 it ruled that the right to privacy
exists independently of its identification with liberty; it is in itself fully deserving
of constitutional protection.
Relevant to any discussion of the right to privacy is the concept known as the
"Zones of Privacy." The Court explained in "In the Matter of the Petition for
Issuance of Writ of Habeas Corpus of Sabio v. Senator Gordon"15 the relevance
of these zones to the right to privacy:
Zones of privacy are recognized and protected in our laws. Within these zones,
any form of intrusion is impermissible unless excused by law and in accordance
with customary legal process. The meticulous regard we accord to these zones
arises not only from our conviction that the right to privacy is a "constitutional
right" and "the right most valued by civilized men," but also from our adherence
to the Universal Declaration of Human Rights which mandates that, "no one
shall be subjected to arbitrary interference with his privacy" and "everyone has
the right to the protection of the law against such interference or attacks."
Two constitutional guarantees create these zones of privacy: (a) the right
against unreasonable searches16 and seizures, which is the basis of the right to
be let alone, and (b) the right to privacy of communication and
correspondence.17 In assessing the challenge that the State has impermissibly
intruded into these zones of privacy, a court must determine whether a person
has exhibited a reasonable expectation of privacy and, if so, whether that
expectation has been violated by unreasonable government intrusion.18
The usual identifying information regarding a person includes his name, his
citizenship, his residence address, his contact number, his place and date of
birth, the name of his spouse if any, his occupation, and similar data.19 The law
punishes those who acquire or use such identifying information without right,
implicitly to cause damage. Petitioners simply fail to show how government
effort to curb computer-related identity theft violates the right to privacy and
correspondence as well as the right to due process of law.
Also, the charge of invalidity of this section based on the overbreadth doctrine
will not hold water since the specific conducts proscribed do not intrude into
guaranteed freedoms like speech. Clearly, what this section regulates are
specific actions: the acquisition, use, misuse or deletion of personal identifying
data of another. There is no fundamental right to acquire anothers personal
data.
Further, petitioners fear that Section 4(b)(3) violates the freedom of the press in
that journalists would be hindered from accessing the unrestricted user account
of a person in the news to secure information about him that could be
published. But this is not the essence of identity theft that the law seeks to
prohibit and punish. Evidently, the theft of identity information must be intended
for an illegitimate purpose. Moreover, acquiring and disseminating information
made public by the user himself cannot be regarded as a form of theft.
The Court has defined intent to gain as an internal act which can be established
through the overt acts of the offender, and it may be presumed from the furtive
taking of useful property pertaining to another, unless special circumstances
reveal a different intent on the part of the perpetrator.20 As such, the press,
whether in quest of news reporting or social investigation, has nothing to fear
since a special circumstance is present to negate intent to gain which is
required by this Section.
Section 4(c)(1) of the Cybercrime Law
Section 4(c)(1) provides:
Sec. 4. Cybercrime Offenses. The following acts constitute the offense of
cybercrime punishable under this Act:
xxxx
(c) Content-related Offenses:
(1) Cybersex. The willful engagement, maintenance, control, or operation,
directly or indirectly, of any lascivious exhibition of sexual organs or sexual
activity, with the aid of a computer system, for favor or consideration.
Petitioners claim that the above violates the freedom of expression clause of
the Constitution.21 They express fear that private communications of sexual
character between husband and wife or consenting adults, which are not
regarded as crimes under the penal code, would now be regarded as crimes
when done "for favor" in cyberspace. In common usage, the term "favor"
includes "gracious kindness," "a special privilege or right granted or conceded,"
or "a token of love (as a ribbon) usually worn conspicuously."22 This meaning
given to the term "favor" embraces socially tolerated trysts. The law as written
would invite law enforcement agencies into the bedrooms of married couples or
consenting individuals.
But the deliberations of the Bicameral Committee of Congress on this section of
the Cybercrime Prevention Act give a proper perspective on the issue. These
deliberations show a lack of intent to penalize a "private showing x x x between
and among two private persons x x x although that may be a form of obscenity
to some."23 The understanding of those who drew up the cybercrime law is that
the element of "engaging in a business" is necessary to constitute the illegal
cybersex.24 The Act actually seeks to punish cyber prostitution, white slave
trade, and pornography for favor and consideration. This includes interactive
prostitution and pornography, i.e., by webcam.25
The subject of Section 4(c)(1)lascivious exhibition of sexual organs or sexual
activityis not novel. Article 201 of the RPC punishes "obscene publications
and exhibitions and indecent shows." The Anti-Trafficking in Persons Act of
2003 penalizes those who "maintain or hire a person to engage in prostitution or
pornography."26 The law defines prostitution as any act, transaction, scheme, or
design involving the use of a person by another, for sexual intercourse or
lascivious conduct in exchange for money, profit, or any other consideration.27
The case of Nogales v. People28 shows the extent to which the State can
regulate materials that serve no other purpose than satisfy the market for
violence, lust, or pornography.29 The Court weighed the property rights of
individuals against the public welfare. Private property, if containing
pornographic materials, may be forfeited and destroyed. Likewise, engaging in
sexual acts privately through internet connection, perceived by some as a right,
has to be balanced with the mandate of the State to eradicate white slavery and
the exploitation of women.
In any event, consenting adults are protected by the wealth of jurisprudence
delineating the bounds of obscenity.30The Court will not declare Section 4(c)(1)
unconstitutional where it stands a construction that makes it apply only to
persons engaged in the business of maintaining, controlling, or operating,
directly or indirectly, the lascivious exhibition of sexual organs or sexual activity
with the aid of a computer system as Congress has intended.
Section 4(c)(2) of the Cybercrime Law
Section 4(c)(2) provides:
Sec. 4. Cybercrime Offenses. The following acts constitute the offense of
cybercrime punishable under this Act:
xxxx
(c) Content-related Offenses:
xxxx
(2) Child Pornography. The unlawful or prohibited acts defined and
punishable by Republic Act No. 9775 or the Anti-Child Pornography Act of
2009, committed through a computer system: Provided, That the penalty to be
imposed shall be (1) one degree higher than that provided for in Republic Act
No. 9775.
It seems that the above merely expands the scope of the Anti-Child
Pornography Act of 200931 (ACPA) to cover identical activities in cyberspace. In
theory, nothing prevents the government from invoking the ACPA when
prosecuting persons who commit child pornography using a computer system.
Actually, ACPAs definition of child pornography already embraces the use of
"electronic, mechanical, digital, optical, magnetic or any other means." Notably,
no one has questioned this ACPA provision.
Of course, the law makes the penalty higher by one degree when the crime is
committed in cyberspace. But no one can complain since the intensity or
duration of penalty is a legislative prerogative and there is rational basis for
such higher penalty.32 The potential for uncontrolled proliferation of a particular
piece of child pornography when uploaded in the cyberspace is incalculable.
Petitioners point out that the provision of ACPA that makes it unlawful for any
person to "produce, direct, manufacture or create any form of child
pornography"33 clearly relates to the prosecution of persons who aid and abet
the core offenses that ACPA seeks to punish.34 Petitioners are wary that a
person who merely doodles on paper and imagines a sexual abuse of a 16-
year-old is not criminally liable for producing child pornography but one who
formulates the idea on his laptop would be. Further, if the author bounces off his
ideas on Twitter, anyone who replies to the tweet could be considered aiding
and abetting a cybercrime.
The question of aiding and abetting the offense by simply commenting on it will
be discussed elsewhere below. For now the Court must hold that the
constitutionality of Section 4(c)(2) is not successfully challenged.
Section 4(c)(3) of the Cybercrime Law
Section 4(c)(3) provides:
Sec. 4. Cybercrime Offenses. The following acts constitute the offense of
cybercrime punishable under this Act:
xxxx
(c) Content-related Offenses:
xxxx
(3) Unsolicited Commercial Communications. The transmission of commercial
electronic communication with the use of computer system which seeks to
advertise, sell, or offer for sale products and services are prohibited unless:
(i) There is prior affirmative consent from the recipient; or
(ii) The primary intent of the communication is for service and/or
administrative announcements from the sender to its existing users,
subscribers or customers; or
(iii) The following conditions are present:
(aa) The commercial electronic communication contains a
simple, valid, and reliable way for the recipient to reject
receipt of further commercial electronic messages (opt-
out) from the same source;
(bb) The commercial electronic communication does not
purposely disguise the source of the electronic message;
and
(cc) The commercial electronic communication does not
purposely include misleading information in any part of the
message in order to induce the recipients to read the
message.
The above penalizes the transmission of unsolicited commercial
communications, also known as "spam." The term "spam" surfaced in early
internet chat rooms and interactive fantasy games. One who repeats the same
sentence or comment was said to be making a "spam." The term referred to a
Monty Pythons Flying Circus scene in which actors would keep saying "Spam,
Spam, Spam, and Spam" when reading options from a menu.35
The Government, represented by the Solicitor General, points out that
unsolicited commercial communications or spams are a nuisance that wastes
the storage and network capacities of internet service providers, reduces the
efficiency of commerce and technology, and interferes with the owners
peaceful enjoyment of his property. Transmitting spams amounts to trespass to
ones privacy since the person sending out spams enters the recipients domain
without prior permission. The OSG contends that commercial speech enjoys
less protection in law.
But, firstly, the government presents no basis for holding that unsolicited
electronic ads reduce the "efficiency of computers." Secondly, people, before
the arrival of the age of computers, have already been receiving such
unsolicited ads by mail. These have never been outlawed as nuisance since
people might have interest in such ads. What matters is that the recipient has
the option of not opening or reading these mail ads. That is true with spams.
Their recipients always have the option to delete or not to read them.
To prohibit the transmission of unsolicited ads would deny a person the right to
read his emails, even unsolicited commercial ads addressed to him.
Commercial speech is a separate category of speech which is not accorded the
same level of protection as that given to other constitutionally guaranteed forms
of expression but is nonetheless entitled to protection.36 The State cannot rob
him of this right without violating the constitutionally guaranteed freedom of
expression. Unsolicited advertisements are legitimate forms of expression.
Articles 353, 354, and 355 of the Penal Code
Section 4(c)(4) of the Cyber Crime Law
Petitioners dispute the constitutionality of both the penal code provisions on
libel as well as Section 4(c)(4) of the Cybercrime Prevention Act on cyberlibel.
The RPC provisions on libel read:
Art. 353. Definition of libel. A libel is public and malicious imputation of a
crime, or of a vice or defect, real or imaginary, or any act, omission, condition,
status, or circumstance tending to cause the dishonor, discredit, or contempt of
a natural or juridical person, or to blacken the memory of one who is dead.
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.
Art. 355. Libel means by writings or similar means. A libel committed by
means of writing, printing, lithography, engraving, radio, phonograph, painting,
theatrical exhibition, cinematographic exhibition, or any similar means, shall be
punished by prision correccional in its minimum and medium periods or a fine
ranging from 200 to 6,000 pesos, or both, in addition to the civil action which
may be brought by the offended party.
The libel provision of the cybercrime law, on the other hand, merely
incorporates to form part of it the provisions of the RPC on libel. Thus Section
4(c)(4) reads:
Sec. 4. Cybercrime Offenses. The following acts constitute the offense of
cybercrime punishable under this Act:
xxxx
(c) Content-related Offenses:
xxxx
(4) Libel. The unlawful or prohibited acts of libel as defined in Article 355 of
the Revised Penal Code, as amended, committed through a computer system
or any other similar means which may be devised in the future.
Petitioners lament that libel provisions of the penal code37 and, in effect, the
libel provisions of the cybercrime law carry with them the requirement of
"presumed malice" even when the latest jurisprudence already replaces it with
the higher standard of "actual malice" as a basis for conviction.38 Petitioners
argue that inferring "presumed malice" from the accuseds defamatory
statement by virtue of Article 354 of the penal code infringes on his
constitutionally guaranteed freedom of expression.
Petitioners would go further. They contend that the laws on libel should be
stricken down as unconstitutional for otherwise good jurisprudence requiring
"actual malice" could easily be overturned as the Court has done in Fermin v.
People39 even where the offended parties happened to be public figures.
The elements of libel are: (a) the allegation of a discreditable act or condition
concerning another; (b) publication of the charge; (c) identity of the person
defamed; and (d) existence of malice.40
There is "actual malice" or malice in fact41 when the offender makes the
defamatory statement with the knowledge that it is false or with reckless
disregard of whether it was false or not.42 The reckless disregard standard used
here requires a high degree of awareness of probable falsity. There must be
sufficient evidence to permit the conclusion that the accused in fact entertained
serious doubts as to the truth of the statement he published. Gross or even
extreme negligence is not sufficient to establish actual malice.43
The prosecution bears the burden of proving the presence of actual malice in
instances where such element is required to establish guilt. The defense of
absence of actual malice, even when the statement turns out to be false, is
available where the offended party is a public official or a public figure, as in the
cases of Vasquez (a barangay official) and Borjal (the Executive Director, First
National Conference on Land Transportation). Since the penal code and
implicitly, the cybercrime law, mainly target libel against private persons, the
Court recognizes that these laws imply a stricter standard of "malice" to convict
the author of a defamatory statement where the offended party is a public
figure. Societys interest and the maintenance of good government demand a
full discussion of public affairs.44
Parenthetically, the Court cannot accept the proposition that its ruling in Fermin
disregarded the higher standard of actual malice or malice in fact when it found
Cristinelli Fermin guilty of committing libel against complainants who were
public figures. Actually, the Court found the presence of malice in fact in that
case. Thus:
It can be gleaned from her testimony that petitioner had the motive to make
defamatory imputations against complainants. Thus, petitioner cannot, by
simply making a general denial, convince us that there was no malice on her
part. Verily, not only was there malice in law, the article being malicious in itself,
but there was also malice in fact, as there was motive to talk ill against
complainants during the electoral campaign. (Emphasis ours)
Indeed, the Court took into account the relatively wide leeway given to
utterances against public figures in the above case, cinema and television
personalities, when it modified the penalty of imprisonment to just a fine of
6,000.00.
But, where the offended party is a private individual, the prosecution need not
prove the presence of malice. The law explicitly presumes its existence (malice
in law) from the defamatory character of the assailed statement.45 For his
defense, the accused must show that he has a justifiable reason for the
defamatory statement even if it was in fact true.46
Petitioners peddle the view that both the penal code and the Cybercrime
Prevention Act violate the countrys obligations under the International
Covenant of Civil and Political Rights (ICCPR). They point out that in Adonis v.
Republic of the Philippines,47 the United Nations Human Rights Committee
(UNHRC) cited its General Comment 34 to the effect that penal defamation
laws should include the defense of truth.
But General Comment 34 does not say that the truth of the defamatory
statement should constitute an all-encompassing defense. As it happens,
Article 361 recognizes truth as a defense but under the condition that the
accused has been prompted in making the statement by good motives and for
justifiable ends. Thus:
Art. 361. Proof of the truth. In every criminal prosecution for libel, the truth
may be given in evidence to the court and if it appears that the matter charged
as libelous is true, and, moreover, that it was published with good motives and
for justifiable ends, the defendants shall be acquitted.
Proof of the truth of an imputation of an act or omission not constituting a crime
shall not be admitted, unless the imputation shall have been made against
Government employees with respect to facts related to the discharge of their
official duties.
In such cases if the defendant proves the truth of the imputation made by him,
he shall be acquitted.
Besides, the UNHRC did not actually enjoin the Philippines, as petitioners urge,
to decriminalize libel. It simply suggested that defamation laws be crafted with
care to ensure that they do not stifle freedom of expression.48Indeed, the
ICCPR states that although everyone should enjoy freedom of expression, its
exercise carries with it special duties and responsibilities. Free speech is not
absolute. It is subject to certain restrictions, as may be necessary and as may
be provided by law.49
The Court agrees with the Solicitor General that libel is not a constitutionally
protected speech and that the government has an obligation to protect private
individuals from defamation. Indeed, cyberlibel is actually not a new crime since
Article 353, in relation to Article 355 of the penal code, already punishes it. In
effect, Section 4(c)(4) above merely affirms that online defamation constitutes
"similar means" for committing libel.
But the Courts acquiescence goes only insofar as the cybercrime law penalizes
the author of the libelous statement or article. Cyberlibel brings with it certain
intricacies, unheard of when the penal code provisions on libel were enacted.
The culture associated with internet media is distinct from that of print.
The internet is characterized as encouraging a freewheeling, anything-goes
writing style.50 In a sense, they are a world apart in terms of quickness of the
readers reaction to defamatory statements posted in cyberspace, facilitated by
one-click reply options offered by the networking site as well as by the speed
with which such reactions are disseminated down the line to other internet
users. Whether these reactions to defamatory statement posted on the internet
constitute aiding and abetting libel, acts that Section 5 of the cybercrime law
punishes, is another matter that the Court will deal with next in relation to
Section 5 of the law.
Section 5 of the Cybercrime Law
Section 5 provides:
Sec. 5. Other Offenses. The following acts shall also constitute an offense:
(a) Aiding or Abetting in the Commission of Cybercrime. Any
person who willfully abets or aids in the commission of any of the
offenses enumerated in this Act shall be held liable.
(b) Attempt in the Commission of Cybercrime. Any person who
willfully attempts to commit any of the offenses enumerated in this
Act shall be held liable.
Petitioners assail the constitutionality of Section 5 that renders criminally liable
any person who willfully abets or aids in the commission or attempts to commit
any of the offenses enumerated as cybercrimes. It suffers from overbreadth,
creating a chilling and deterrent effect on protected expression.
The Solicitor General contends, however, that the current body of jurisprudence
and laws on aiding and abetting sufficiently protects the freedom of expression
of "netizens," the multitude that avail themselves of the services of the internet.
He points out that existing laws and jurisprudence sufficiently delineate the
meaning of "aiding or abetting" a crime as to protect the innocent. The Solicitor
General argues that plain, ordinary, and common usage is at times sufficient to
guide law enforcement agencies in enforcing the law.51 The legislature is not
required to define every single word contained in the laws they craft.
Aiding or abetting has of course well-defined meaning and application in
existing laws. When a person aids or abets another in destroying a
forest,52 smuggling merchandise into the country,53 or interfering in the peaceful
picketing of laborers,54 his action is essentially physical and so is susceptible to
easy assessment as criminal in character. These forms of aiding or abetting
lend themselves to the tests of common sense and human experience.
But, when it comes to certain cybercrimes, the waters are muddier and the line
of sight is somewhat blurred. The idea of "aiding or abetting" wrongdoings
online threatens the heretofore popular and unchallenged dogmas of
cyberspace use.
According to the 2011 Southeast Asia Digital Consumer Report, 33% of
Filipinos have accessed the internet within a year, translating to about 31 million
users.55 Based on a recent survey, the Philippines ranks 6th in the top 10 most
engaged countries for social networking.56 Social networking sites build social
relations among people who, for example, share interests, activities,
backgrounds, or real-life connections.57
Two of the most popular of these sites are Facebook and Twitter. As of late
2012, 1.2 billion people with shared interests use Facebook to get in
touch.58 Users register at this site, create a personal profile or an open book of
who they are, add other users as friends, and exchange messages, including
automatic notifications when they update their profile.59 A user can post a
statement, a photo, or a video on Facebook, which can be made visible to
anyone, depending on the users privacy settings.
If the post is made available to the public, meaning to everyone and not only to
his friends, anyone on Facebook can react to the posting, clicking any of
several buttons of preferences on the programs screen such as "Like,"
"Comment," or "Share." "Like" signifies that the reader likes the posting while
"Comment" enables him to post online his feelings or views about the same,
such as "This is great!" When a Facebook user "Shares" a posting, the original
"posting" will appear on his own Facebook profile, consequently making it
visible to his down-line Facebook Friends.
Twitter, on the other hand, is an internet social networking and microblogging
service that enables its users to send and read short text-based messages of
up to 140 characters. These are known as "Tweets." Microblogging is the
practice of posting small pieces of digital contentwhich could be in the form of
text, pictures, links, short videos, or other mediaon the internet. Instead of
friends, a Twitter user has "Followers," those who subscribe to this particular
users posts, enabling them to read the same, and "Following," those whom this
particular user is subscribed to, enabling him to read their posts. Like
Facebook, a Twitter user can make his tweets available only to his Followers, or
to the general public. If a post is available to the public, any Twitter user can
"Retweet" a given posting. Retweeting is just reposting or republishing another
persons tweet without the need of copying and pasting it.
In the cyberworld, there are many actors: a) the blogger who originates the
assailed statement; b) the blog service provider like Yahoo; c) the internet
service provider like PLDT, Smart, Globe, or Sun; d) the internet caf that may
have provided the computer used for posting the blog; e) the person who
makes a favorable comment on the blog; and f) the person who posts a link to
the blog site.60 Now, suppose Maria (a blogger) maintains a blog on
WordPress.com (blog service provider). She needs the internet to access her
blog so she subscribes to Sun Broadband (Internet Service Provider).
One day, Maria posts on her internet account the statement that a certain
married public official has an illicit affair with a movie star. Linda, one of Marias
friends who sees this post, comments online, "Yes, this is so true! They are so
immoral." Marias original post is then multiplied by her friends and the latters
friends, and down the line to friends of friends almost ad infinitum. Nena, who is
a stranger to both Maria and Linda, comes across this blog, finds it interesting
and so shares the link to this apparently defamatory blog on her Twitter
account. Nenas "Followers" then "Retweet" the link to that blog site.
Pamela, a Twitter user, stumbles upon a random persons "Retweet" of Nenas
original tweet and posts this on her Facebook account. Immediately, Pamelas
Facebook Friends start Liking and making Comments on the assailed posting.
A lot of them even press the Share button, resulting in the further spread of the
original posting into tens, hundreds, thousands, and greater postings.
The question is: are online postings such as "Liking" an openly defamatory
statement, "Commenting" on it, or "Sharing" it with others, to be regarded as
"aiding or abetting?" In libel in the physical world, if Nestor places on the office
bulletin board a small poster that says, "Armand is a thief!," he could certainly
be charged with libel. If Roger, seeing the poster, writes on it, "I like this!," that
could not be libel since he did not author the poster. If Arthur, passing by and
noticing the poster, writes on it, "Correct!," would that be libel? No, for he merely
expresses agreement with the statement on the poster. He still is not its author.
Besides, it is not clear if aiding or abetting libel in the physical world is a crime.
But suppose Nestor posts the blog, "Armand is a thief!" on a social networking
site. Would a reader and his Friends or Followers, availing themselves of any of
the "Like," "Comment," and "Share" reactions, be guilty of aiding or abetting
libel? And, in the complex world of cyberspace expressions of thoughts, when
will one be liable for aiding or abetting cybercrimes? Where is the venue of the
crime?
Except for the original author of the assailed statement, the rest (those who
pressed Like, Comment and Share) are essentially knee-jerk sentiments of
readers who may think little or haphazardly of their response to the original
posting. Will they be liable for aiding or abetting? And, considering the inherent
impossibility of joining hundreds or thousands of responding "Friends" or
"Followers" in the criminal charge to be filed in court, who will make a choice as
to who should go to jail for the outbreak of the challenged posting?
The old parameters for enforcing the traditional form of libel would be a square
peg in a round hole when applied to cyberspace libel. Unless the legislature
crafts a cyber libel law that takes into account its unique circumstances and
culture, such law will tend to create a chilling effect on the millions that use this
new medium of communication in violation of their constitutionally-guaranteed
right to freedom of expression.
The United States Supreme Court faced the same issue in Reno v. American
Civil Liberties Union,61 a case involving the constitutionality of the
Communications Decency Act of 1996. The law prohibited (1) the knowing
transmission, by means of a telecommunications device, of
"obscene or indecent" communications to any recipient under 18 years of age;
and (2) the knowing use of an interactive computer service to send to a specific
person or persons under 18 years of age or to display in a manner available to
a person under 18 years of age communications that, in context, depict or
describe, in terms "patently offensive" as measured by contemporary
community standards, sexual or excretory activities or organs.
Those who challenged the Act claim that the law violated the First
Amendments guarantee of freedom of speech for being overbroad. The U.S.
Supreme Court agreed and ruled:
The vagueness of the Communications Decency Act of 1996 (CDA), 47
U.S.C.S. 223, is a matter of special concern for two reasons. First, the CDA is
a content-based regulation of speech. The vagueness of such a regulation
raises special U.S. Const. amend. I concerns because of its obvious chilling
effect on free speech. Second, the CDA is a criminal statute. In addition to the
opprobrium and stigma of a criminal conviction, the CDA threatens violators
with penalties including up to two years in prison for each act of violation. The
severity of criminal sanctions may well cause speakers to remain silent rather
than communicate even arguably unlawful words, ideas, and images. As a
practical matter, this increased deterrent effect, coupled with the risk of
discriminatory enforcement of vague regulations, poses greater U.S. Const.
amend. I concerns than those implicated by certain civil regulations.
xxxx
The Communications Decency Act of 1996 (CDA), 47 U.S.C.S. 223, presents
a great threat of censoring speech that, in fact, falls outside the statute's scope.
Given the vague contours of the coverage of the statute, it unquestionably
silences some speakers whose messages would be entitled to constitutional
protection. That danger provides further reason for insisting that the statute not
be overly broad. The CDAs burden on protected speech cannot be justified if it
could be avoided by a more carefully drafted statute. (Emphasis ours)
Libel in the cyberspace can of course stain a persons image with just one click
of the mouse. Scurrilous statements can spread and travel fast across the globe
like bad news. Moreover, cyberlibel often goes hand in hand with cyberbullying
that oppresses the victim, his relatives, and friends, evoking from mild to
disastrous reactions. Still, a governmental purpose, which seeks to regulate the
use of this cyberspace communication technology to protect a persons
reputation and peace of mind, cannot adopt means that will unnecessarily and
broadly sweep, invading the area of protected freedoms.62
If such means are adopted, self-inhibition borne of fear of what sinister
predicaments await internet users will suppress otherwise robust discussion of
public issues. Democracy will be threatened and with it, all liberties. Penal laws
should provide reasonably clear guidelines for law enforcement officials and
triers of facts to prevent arbitrary and discriminatory enforcement.63 The terms
"aiding or abetting" constitute broad sweep that generates chilling effect on
those who express themselves through cyberspace posts, comments, and other
messages.64 Hence, Section 5 of the cybercrime law that punishes "aiding or
abetting" libel on the cyberspace is a nullity.
When a penal statute encroaches upon the freedom of speech, a facial
challenge grounded on the void-for-vagueness doctrine is acceptable. The
inapplicability of the doctrine must be carefully delineated. As Justice Antonio T.
Carpio explained in his dissent in Romualdez v. Commission on
Elections,65 "we must view these statements of the Court on the inapplicability
of the overbreadth and vagueness doctrines to penal statutes as appropriate
only insofar as these doctrines are used to mount facial challenges to penal
statutes not involving free speech."
In an "as applied" challenge, the petitioner who claims a violation of his
constitutional right can raise any constitutional ground absence of due
process, lack of fair notice, lack of ascertainable standards, overbreadth, or
vagueness. Here, one can challenge the constitutionality of a statute only if he
asserts a violation of his own rights. It prohibits one from assailing the
constitutionality of the statute based solely on the violation of the rights of third
persons not before the court. This rule is also known as the prohibition against
third-party standing.66
But this rule admits of exceptions. A petitioner may for instance mount a "facial"
challenge to the constitutionality of a statute even if he claims no violation of his
own rights under the assailed statute where it involves free speech on grounds
of overbreadth or vagueness of the statute.
The rationale for this exception is to counter the "chilling effect" on protected
speech that comes from statutes violating free speech. A person who does not
know whether his speech constitutes a crime under an overbroad or vague law
may simply restrain himself from speaking in order to avoid being charged of a
crime. The overbroad or vague law thus chills him into silence.67
As already stated, the cyberspace is an incomparable, pervasive medium of
communication. It is inevitable that any government threat of punishment
regarding certain uses of the medium creates a chilling effect on the
constitutionally-protected freedom of expression of the great masses that use it.
In this case, the particularly complex web of interaction on social media
websites would give law enforcers such latitude that they could arbitrarily or
selectively enforce the law.
Who is to decide when to prosecute persons who boost the visibility of a posting
on the internet by liking it? Netizens are not given "fair notice" or warning as to
what is criminal conduct and what is lawful conduct. When a case is filed, how
will the court ascertain whether or not one netizens comment aided and
abetted a cybercrime while another comment did not?
Of course, if the "Comment" does not merely react to the original posting but
creates an altogether new defamatory story against Armand like "He beats his
wife and children," then that should be considered an original posting published
on the internet. Both the penal code and the cybercrime law clearly punish
authors of defamatory publications. Make no mistake, libel destroys reputations
that society values. Allowed to cascade in the internet, it will destroy
relationships and, under certain circumstances, will generate enmity and
tension between social or economic groups, races, or religions, exacerbating
existing tension in their relationships.
In regard to the crime that targets child pornography, when "Google procures,
stores, and indexes child pornography and facilitates the completion of
transactions involving the dissemination of child pornography," does this make
Google and its users aiders and abettors in the commission of child
pornography crimes?68 Byars highlights a feature in the American law on child
pornography that the Cybercrimes law lacksthe exemption of a provider or
notably a plain user of interactive computer service from civil liability for child
pornography as follows:
No provider or user of an interactive computer service shall be treated as the
publisher or speaker of any information provided by another information content
provider and cannot be held civilly liable for any action voluntarily taken in good
faith to restrict access to or availability of material that the provider or user
considers to be obscene...whether or not such material is constitutionally
protected.69
When a person replies to a Tweet containing child pornography, he effectively
republishes it whether wittingly or unwittingly. Does this make him a willing
accomplice to the distribution of child pornography? When a user downloads
the Facebook mobile application, the user may give consent to Facebook to
access his contact details. In this way, certain information is forwarded to third
parties and unsolicited commercial communication could be disseminated on
the basis of this information.70 As the source of this information, is the user
aiding the distribution of this communication? The legislature needs to address
this clearly to relieve users of annoying fear of possible criminal prosecution.
Section 5 with respect to Section 4(c)(4) is unconstitutional. Its vagueness
raises apprehension on the part of internet users because of its obvious chilling
effect on the freedom of expression, especially since the crime of aiding or
abetting ensnares all the actors in the cyberspace front in a fuzzy way. What is
more, as the petitioners point out, formal crimes such as libel are not
punishable unless consummated.71 In the absence of legislation tracing the
interaction of netizens and their level of responsibility such as in other countries,
Section 5, in relation to Section 4(c)(4) on Libel, Section 4(c)(3) on Unsolicited
Commercial Communications, and Section 4(c)(2) on Child Pornography,
cannot stand scrutiny.
But the crime of aiding or abetting the commission of cybercrimes under
Section 5 should be permitted to apply to Section 4(a)(1) on Illegal Access,
Section 4(a)(2) on Illegal Interception, Section 4(a)(3) on Data Interference,
Section 4(a)(4) on System Interference, Section 4(a)(5) on Misuse of Devices,
Section 4(a)(6) on Cyber-squatting, Section 4(b)(1) on Computer-related
Forgery, Section 4(b)(2) on Computer-related Fraud, Section 4(b)(3) on
Computer-related Identity Theft, and Section 4(c)(1) on Cybersex. None of
these offenses borders on the exercise of the freedom of expression.
The crime of willfully attempting to commit any of these offenses is for the same
reason not objectionable. A hacker may for instance have done all that is
necessary to illegally access another partys computer system but the security
employed by the systems lawful owner could frustrate his effort. Another
hacker may have gained access to usernames and passwords of others but fail
to use these because the system supervisor is alerted.72 If Section 5 that
punishes any person who willfully attempts to commit this specific offense is not
upheld, the owner of the username and password could not file a complaint
against him for attempted hacking. But this is not right. The hacker should not
be freed from liability simply because of the vigilance of a lawful owner or his
supervisor.
Petitioners of course claim that Section 5 lacks positive limits and could cover
the innocent.73 While this may be true with respect to cybercrimes that tend to
sneak past the area of free expression, any attempt to commit the other acts
specified in Section 4(a)(1), Section 4(a)(2), Section 4(a)(3), Section 4(a)(4),
Section 4(a)(5), Section 4(a)(6), Section 4(b)(1), Section 4(b)(2), Section
4(b)(3), and Section 4(c)(1) as well as the actors aiding and abetting the
commission of such acts can be identified with some reasonable certainty
through adroit tracking of their works. Absent concrete proof of the same, the
innocent will of course be spared.
Section 6 of the Cybercrime Law
Section 6 provides:
Sec. 6. All crimes defined and penalized by the Revised Penal Code, as
amended, and special laws, if committed by, through and with the use of
information and communications technologies shall be covered by the relevant
provisions of this Act: Provided, That the penalty to be imposed shall be one (1)
degree higher than that provided for by the Revised Penal Code, as amended,
and special laws, as the case may be.
Section 6 merely makes commission of existing crimes through the internet a
qualifying circumstance. As the Solicitor General points out, there exists a
substantial distinction between crimes committed through the use of information
and communications technology and similar crimes committed using other
means. In using the technology in question, the offender often evades
identification and is able to reach far more victims or cause greater harm. The
distinction, therefore, creates a basis for higher penalties for cybercrimes.
Section 7 of the Cybercrime Law
Section 7 provides:
Sec. 7. Liability under Other Laws. A prosecution under this Act shall be
without prejudice to any liability for violation of any provision of the Revised
Penal Code, as amended, or special laws.
The Solicitor General points out that Section 7 merely expresses the settled
doctrine that a single set of acts may be prosecuted and penalized
simultaneously under two laws, a special law and the Revised Penal Code.
When two different laws define two crimes, prior jeopardy as to one does not
bar prosecution of the other although both offenses arise from the same fact, if
each crime involves some important act which is not an essential element of the
other.74 With the exception of the crimes of online libel and online child
pornography, the Court would rather leave the determination of the correct
application of Section 7 to actual cases.
Online libel is different. There should be no question that if the published
material on print, said to be libelous, is again posted online or vice versa, that
identical material cannot be the subject of two separate libels. The two
offenses, one a violation of Article 353 of the Revised Penal Code and the other
a violation of Section 4(c)(4) of R.A. 10175 involve essentially the same
elements and are in fact one and the same offense. Indeed, the OSG itself
claims that online libel under Section 4(c)(4) is not a new crime but is one
already punished under Article 353. Section 4(c)(4) merely establishes the
computer system as another means of publication.75 Charging the offender
under both laws would be a blatant violation of the proscription against double
jeopardy.76
The same is true with child pornography committed online. Section 4(c)(2)
merely expands the ACPAs scope so as to include identical activities in
cyberspace. As previously discussed, ACPAs definition of child pornography in
fact already covers the use of "electronic, mechanical, digital, optical, magnetic
or any other means." Thus, charging the offender under both Section 4(c)(2)
and ACPA would likewise be tantamount to a violation of the constitutional
prohibition against double jeopardy.
Section 8 of the Cybercrime Law
Section 8 provides:
Sec. 8. Penalties. Any person found guilty of any of the punishable acts
enumerated in Sections 4(a) and 4(b) of this Act shall be punished with
imprisonment of prision mayor or a fine of at least Two hundred thousand pesos
(Ph200,000.00) up to a maximum amount commensurate to the damage
incurred or both.
Any person found guilty of the punishable act under Section 4(a)(5) shall be
punished with imprisonment of prision mayor or a fine of not more than Five
hundred thousand pesos (Ph500,000.00) or both.
If punishable acts in Section 4(a) are committed against critical infrastructure,
the penalty of reclusion temporal or a fine of at least Five hundred thousand
pesos (Ph500,000.00) up to maximum amount commensurate to the damage
incurred or both, shall be imposed.
Any person found guilty of any of the punishable acts enumerated in Section
4(c)(1) of this Act shall be punished with imprisonment of prision mayor or a fine
of at least Two hundred thousand pesos (Ph200,000.00) but not exceeding
One million pesos (Ph1,000,000.00) or both.
Any person found guilty of any of the punishable acts enumerated in Section
4(c)(2) of this Act shall be punished with the penalties as enumerated in
Republic Act No. 9775 or the "Anti-Child Pornography Act of 2009:" Provided,
That the penalty to be imposed shall be one (1) degree higher than that
provided for in Republic Act No. 9775, if committed through a computer system.
Any person found guilty of any of the punishable acts enumerated in Section
4(c)(3) shall be punished with imprisonment of arresto mayor or a fine of at
least Fifty thousand pesos (Ph50,000.00) but not exceeding Two hundred fifty
thousand pesos (Ph250,000.00) or both.
Any person found guilty of any of the punishable acts enumerated in Section 5
shall be punished with imprisonment one (1) degree lower than that of the
prescribed penalty for the offense or a fine of at least One hundred thousand
pesos (Ph100,000.00) but not exceeding Five hundred thousand pesos
(Ph500,000.00) or both.
Section 8 provides for the penalties for the following crimes: Sections 4(a) on
Offenses Against the Confidentiality, Integrity and Availability of Computer Data
and Systems; 4(b) on Computer-related Offenses; 4(a)(5) on Misuse of
Devices; when the crime punishable under 4(a) is committed against critical
infrastructure; 4(c)(1) on Cybersex; 4(c)(2) on Child Pornography; 4(c)(3) on
Unsolicited Commercial Communications; and Section 5 on Aiding or Abetting,
and Attempt in the Commission of Cybercrime.
The matter of fixing penalties for the commission of crimes is as a rule a
legislative prerogative. Here the legislature prescribed a measure of severe
penalties for what it regards as deleterious cybercrimes. They appear
proportionate to the evil sought to be punished. The power to determine
penalties for offenses is not diluted or improperly wielded simply because at
some prior time the act or omission was but an element of another offense or
might just have been connected with another crime.77 Judges and magistrates
can only interpret and apply them and have no authority to modify or revise their
range as determined by the legislative department.
The courts should not encroach on this prerogative of the lawmaking body.78
Section 12 of the Cybercrime Law
Section 12 provides:
Sec. 12. Real-Time Collection of Traffic Data. Law enforcement authorities,
with due cause, shall be authorized to collect or record by technical or
electronic means traffic data in real-time associated with specified
communications transmitted by means of a computer system.
Traffic data refer only to the communications origin, destination, route, time,
date, size, duration, or type of underlying service, but not content, nor identities.
All other data to be collected or seized or disclosed will require a court warrant.
Service providers are required to cooperate and assist law enforcement
authorities in the collection or recording of the above-stated information.
The court warrant required under this section shall only be issued or granted
upon written application and the examination under oath or affirmation of the
applicant and the witnesses he may produce and the showing: (1) that there are
reasonable grounds to believe that any of the crimes enumerated hereinabove
has been committed, or is being committed, or is about to be committed; (2)
that there are reasonable grounds to believe that evidence that will be obtained
is essential to the conviction of any person for, or to the solution of, or to the
prevention of, any such crimes; and (3) that there are no other means readily
available for obtaining such evidence.
Petitioners assail the grant to law enforcement agencies of the power to collect
or record traffic data in real time as tending to curtail civil liberties or provide
opportunities for official abuse. They claim that data showing where digital
messages come from, what kind they are, and where they are destined need
not be incriminating to their senders or recipients before they are to be
protected. Petitioners invoke the right of every individual to privacy and to be
protected from government snooping into the messages or information that they
send to one another.
The first question is whether or not Section 12 has a proper governmental
purpose since a law may require the disclosure of matters normally considered
private but then only upon showing that such requirement has a rational relation
to the purpose of the law,79 that there is a compelling State interest behind the
law, and that the provision itself is narrowly drawn.80 In assessing regulations
affecting privacy rights, courts should balance the legitimate concerns of the
State against constitutional guarantees.81
Undoubtedly, the State has a compelling interest in enacting the cybercrime law
for there is a need to put order to the tremendous activities in cyberspace for
public good.82 To do this, it is within the realm of reason that the government
should be able to monitor traffic data to enhance its ability to combat all sorts of
cybercrimes.
Chapter IV of the cybercrime law, of which the collection or recording of traffic
data is a part, aims to provide law enforcement authorities with the power they
need for spotting, preventing, and investigating crimes committed in
cyberspace. Crime-fighting is a state business. Indeed, as Chief Justice Sereno
points out, the Budapest Convention on Cybercrimes requires signatory
countries to adopt legislative measures to empower state authorities to collect
or record "traffic data, in real time, associated with specified
communications."83 And this is precisely what Section 12 does. It empowers law
enforcement agencies in this country to collect or record such data.
But is not evidence of yesterdays traffic data, like the scene of the crime after it
has been committed, adequate for fighting cybercrimes and, therefore, real-time
data is superfluous for that purpose? Evidently, it is not. Those who commit the
crimes of accessing a computer system without right,84 transmitting
viruses,85 lasciviously exhibiting sexual organs or sexual activity for favor or
consideration;86 and producing child pornography87 could easily evade detection
and prosecution by simply moving the physical location of their computers or
laptops from day to day. In this digital age, the wicked can commit cybercrimes
from virtually anywhere: from internet cafs, from kindred places that provide
free internet services, and from unregistered mobile internet connectors.
Criminals using cellphones under pre-paid arrangements and with unregistered
SIM cards do not have listed addresses and can neither be located nor
identified. There are many ways the cyber criminals can quickly erase their
tracks. Those who peddle child pornography could use relays of computers to
mislead law enforcement authorities regarding their places of operations.
Evidently, it is only real-time traffic data collection or recording and a
subsequent recourse to court-issued search and seizure warrant that can
succeed in ferreting them out.
Petitioners of course point out that the provisions of Section 12 are too broad
and do not provide ample safeguards against crossing legal boundaries and
invading the peoples right to privacy. The concern is understandable. Indeed,
the Court recognizes in Morfe v. Mutuc88 that certain constitutional guarantees
work together to create zones of privacy wherein governmental powers may not
intrude, and that there exists an independent constitutional right of privacy.
Such right to be left alone has been regarded as the beginning of all
freedoms.89
But that right is not unqualified. In Whalen v. Roe,90 the United States Supreme
Court classified privacy into two categories: decisional privacy and informational
privacy. Decisional privacy involves the right to independence in making certain
important decisions, while informational privacy refers to the interest in avoiding
disclosure of personal matters. It is the latter rightthe right to informational
privacythat those who oppose government collection or recording of traffic
data in real-time seek to protect.
Informational privacy has two aspects: the right not to have private information
disclosed, and the right to live freely without surveillance and intrusion.91 In
determining whether or not a matter is entitled to the right to privacy, this Court
has laid down a two-fold test. The first is a subjective test, where one claiming
the right must have an actual or legitimate expectation of privacy over a certain
matter. The second is an objective test, where his or her expectation of privacy
must be one society is prepared to accept as objectively reasonable.92
Since the validity of the cybercrime law is being challenged, not in relation to its
application to a particular person or group, petitioners challenge to Section 12
applies to all information and communications technology (ICT) users, meaning
the large segment of the population who use all sorts of electronic devices to
communicate with one another. Consequently, the expectation of privacy is to
be measured from the general publics point of view. Without reasonable
expectation of privacy, the right to it would have no basis in fact.
As the Solicitor General points out, an ordinary ICT user who courses his
communication through a service provider, must of necessity disclose to the
latter, a third person, the traffic data needed for connecting him to the recipient
ICT user. For example, an ICT user who writes a text message intended for
another ICT user must furnish his service provider with his cellphone number
and the cellphone number of his recipient, accompanying the message sent. It
is this information that creates the traffic data. Transmitting communications is
akin to putting a letter in an envelope properly addressed, sealing it closed, and
sending it through the postal service. Those who post letters have no
expectations that no one will read the information appearing outside the
envelope.
Computer datamessages of all kindstravel across the internet in packets
and in a way that may be likened to parcels of letters or things that are sent
through the posts. When data is sent from any one source, the content is
broken up into packets and around each of these packets is a wrapper or
header. This header contains the traffic data: information that tells computers
where the packet originated, what kind of data is in the packet (SMS, voice call,
video, internet chat messages, email, online browsing data, etc.), where the
packet is going, and how the packet fits together with other packets.93 The
difference is that traffic data sent through the internet at times across the ocean
do not disclose the actual names and addresses (residential or office) of the
sender and the recipient, only their coded internet protocol (IP) addresses. The
packets travel from one computer system to another where their contents are
pieced back together.
Section 12 does not permit law enforcement authorities to look into the contents
of the messages and uncover the identities of the sender and the recipient.
For example, when one calls to speak to another through his cellphone, the
service providers communications system will put his voice message into
packets and send them to the other persons cellphone where they are refitted
together and heard. The latters spoken reply is sent to the caller in the same
way. To be connected by the service provider, the sender reveals his cellphone
number to the service provider when he puts his call through. He also reveals
the cellphone number to the person he calls. The other ways of communicating
electronically follow the same basic pattern.
In Smith v. Maryland,94 cited by the Solicitor General, the United States
Supreme Court reasoned that telephone users in the 70s must realize that they
necessarily convey phone numbers to the telephone company in order to
complete a call. That Court ruled that even if there is an expectation that phone
numbers one dials should remain private, such expectation is not one that
society is prepared to recognize as reasonable.
In much the same way, ICT users must know that they cannot communicate or
exchange data with one another over cyberspace except through some service
providers to whom they must submit certain traffic data that are needed for a
successful cyberspace communication. The conveyance of this data takes them
out of the private sphere, making the expectation to privacy in regard to them
an expectation that society is not prepared to recognize as reasonable.
The Court, however, agrees with Justices Carpio and Brion that when
seemingly random bits of traffic data are gathered in bulk, pooled together, and
analyzed, they reveal patterns of activities which can then be used to create
profiles of the persons under surveillance. With enough traffic data, analysts
may be able to determine a persons close associations, religious views,
political affiliations, even sexual preferences. Such information is likely beyond
what the public may expect to be disclosed, and clearly falls within matters
protected by the right to privacy. But has the procedure that Section 12 of the
law provides been drawn narrowly enough to protect individual rights?
Section 12 empowers law enforcement authorities, "with due cause," to collect
or record by technical or electronic means traffic data in real-time. Petitioners
point out that the phrase "due cause" has no precedent in law or jurisprudence
and that whether there is due cause or not is left to the discretion of the police.
Replying to this, the Solicitor General asserts that Congress is not required to
define the meaning of every word it uses in drafting the law.
Indeed, courts are able to save vague provisions of law through statutory
construction. But the cybercrime law, dealing with a novel situation, fails to hint
at the meaning it intends for the phrase "due cause." The Solicitor General
suggests that "due cause" should mean "just reason or motive" and "adherence
to a lawful procedure." But the Court cannot draw this meaning since Section 12
does not even bother to relate the collection of data to the probable commission
of a particular crime. It just says, "with due cause," thus justifying a general
gathering of data. It is akin to the use of a general search warrant that the
Constitution prohibits.
Due cause is also not descriptive of the purpose for which data collection will be
used. Will the law enforcement agencies use the traffic data to identify the
perpetrator of a cyber attack? Or will it be used to build up a case against an
identified suspect? Can the data be used to prevent cybercrimes from
happening?
The authority that Section 12 gives law enforcement agencies is too sweeping
and lacks restraint. While it says that traffic data collection should not disclose
identities or content data, such restraint is but an illusion. Admittedly, nothing
can prevent law enforcement agencies holding these data in their hands from
looking into the identity of their sender or receiver and what the data contains.
This will unnecessarily expose the citizenry to leaked information or, worse, to
extortion from certain bad elements in these agencies.
Section 12, of course, limits the collection of traffic data to those "associated
with specified communications." But this supposed limitation is no limitation at
all since, evidently, it is the law enforcement agencies that would specify the
target communications. The power is virtually limitless, enabling law
enforcement authorities to engage in "fishing expedition," choosing whatever
specified communication they want. This evidently threatens the right of
individuals to privacy.
The Solicitor General points out that Section 12 needs to authorize collection of
traffic data "in real time" because it is not possible to get a court warrant that
would authorize the search of what is akin to a "moving vehicle." But
warrantless search is associated with a police officers determination of
probable cause that a crime has been committed, that there is no opportunity
for getting a warrant, and that unless the search is immediately carried out, the
thing to be searched stands to be removed. These preconditions are not
provided in Section 12.
The Solicitor General is honest enough to admit that Section 12 provides
minimal protection to internet users and that the procedure envisioned by the
law could be better served by providing for more robust safeguards. His bare
assurance that law enforcement authorities will not abuse the provisions of
Section 12 is of course not enough. The grant of the power to track cyberspace
communications in real time and determine their sources and destinations must
be narrowly drawn to preclude abuses.95
Petitioners also ask that the Court strike down Section 12 for being violative of
the void-for-vagueness doctrine and the overbreadth doctrine. These doctrines
however, have been consistently held by this Court to apply only to free speech
cases. But Section 12 on its own neither regulates nor punishes any type of
speech. Therefore, such analysis is unnecessary.
This Court is mindful that advances in technology allow the government and
kindred institutions to monitor individuals and place them under surveillance in
ways that have previously been impractical or even impossible. "All the forces
of a technological age x x x operate to narrow the area of privacy and facilitate
intrusions into it. In modern terms, the capacity to maintain and support this
enclave of private life marks the difference between a democratic and a
totalitarian society."96 The Court must ensure that laws seeking to take
advantage of these technologies be written with specificity and definiteness as
to ensure respect for the rights that the Constitution guarantees.
Section 13 of the Cybercrime Law
Section 13 provides:
Sec. 13. Preservation of Computer Data. The integrity of traffic data and
subscriber information relating to communication services provided by a service
provider shall be preserved for a minimum period of six (6) months from the
date of the transaction. Content data shall be similarly preserved for six (6)
months from the date of receipt of the order from law enforcement authorities
requiring its preservation.
Law enforcement authorities may order a one-time extension for another six (6)
months: Provided, That once computer data preserved, transmitted or stored by
a service provider is used as evidence in a case, the mere furnishing to such
service provider of the transmittal document to the Office of the Prosecutor shall
be deemed a notification to preserve the computer data until the termination of
the case.
The service provider ordered to preserve computer data shall keep confidential
the order and its compliance.
Petitioners in G.R. 20339197 claim that Section 13 constitutes an undue
deprivation of the right to property. They liken the data preservation order that
law enforcement authorities are to issue as a form of garnishment of personal
property in civil forfeiture proceedings. Such order prevents internet users from
accessing and disposing of traffic data that essentially belong to them.
No doubt, the contents of materials sent or received through the internet belong
to their authors or recipients and are to be considered private communications.
But it is not clear that a service provider has an obligation to indefinitely keep a
copy of the same as they pass its system for the benefit of users. By virtue of
Section 13, however, the law now requires service providers to keep traffic data
and subscriber information relating to communication services for at least six
months from the date of the transaction and those relating to content data for at
least six months from receipt of the order for their preservation.
Actually, the user ought to have kept a copy of that data when it crossed his
computer if he was so minded. The service provider has never assumed
responsibility for their loss or deletion while in its keep.
At any rate, as the Solicitor General correctly points out, the data that service
providers preserve on orders of law enforcement authorities are not made
inaccessible to users by reason of the issuance of such orders. The process of
preserving data will not unduly hamper the normal transmission or use of the
same.
Section 14 of the Cybercrime Law
Section 14 provides:
Sec. 14. Disclosure of Computer Data. Law enforcement authorities, upon
securing a court warrant, shall issue an order requiring any person or service
provider to disclose or submit subscribers information, traffic data or relevant
data in his/its possession or control within seventy-two (72) hours from receipt
of the order in relation to a valid complaint officially docketed and assigned for
investigation and the disclosure is necessary and relevant for the purpose of
investigation.
The process envisioned in Section 14 is being likened to the issuance of a
subpoena. Petitioners objection is that the issuance of subpoenas is a judicial
function. But it is well-settled that the power to issue subpoenas is not
exclusively a judicial function. Executive agencies have the power to issue
subpoena as an adjunct of their investigatory powers.98
Besides, what Section 14 envisions is merely the enforcement of a duly issued
court warrant, a function usually lodged in the hands of law enforcers to enable
them to carry out their executive functions. The prescribed procedure for
disclosure would not constitute an unlawful search or seizure nor would it
violate the privacy of communications and correspondence. Disclosure can be
made only after judicial intervention.
Section 15 of the Cybercrime Law
Section 15 provides:
Sec. 15. Search, Seizure and Examination of Computer Data. Where a
search and seizure warrant is properly issued, the law enforcement authorities
shall likewise have the following powers and duties.
Within the time period specified in the warrant, to conduct interception, as
defined in this Act, and:
(a) To secure a computer system or a computer data storage
medium;
(b) To make and retain a copy of those computer data secured;
(c) To maintain the integrity of the relevant stored computer data;
(d) To conduct forensic analysis or examination of the computer data
storage medium; and
(e) To render inaccessible or remove those computer data in the
accessed computer or computer and communications network.
Pursuant thereof, the law enforcement authorities may order any person who
has knowledge about the functioning of the computer system and the measures
to protect and preserve the computer data therein to provide, as is reasonable,
the necessary information, to enable the undertaking of the search, seizure and
examination.
Law enforcement authorities may request for an extension of time to complete
the examination of the computer data storage medium and to make a return
thereon but in no case for a period longer than thirty (30) days from date of
approval by the court.
Petitioners challenge Section 15 on the assumption that it will supplant
established search and seizure procedures. On its face, however, Section 15
merely enumerates the duties of law enforcement authorities that would ensure
the proper collection, preservation, and use of computer system or data that
have been seized by virtue of a court warrant. The exercise of these duties do
not pose any threat on the rights of the person from whom they were taken.
Section 15 does not appear to supersede existing search and seizure rules but
merely supplements them.
Section 17 of the Cybercrime Law
Section 17 provides:
Sec. 17. Destruction of Computer Data. Upon expiration of the periods as
provided in Sections 13 and 15, service providers and law enforcement
authorities, as the case may be, shall immediately and completely destroy the
computer data subject of a preservation and examination.
Section 17 would have the computer data, previous subject of preservation or
examination, destroyed or deleted upon the lapse of the prescribed period. The
Solicitor General justifies this as necessary to clear up the service providers
storage systems and prevent overload. It would also ensure that investigations
are quickly concluded.
Petitioners claim that such destruction of computer data subject of previous
preservation or examination violates the users right against deprivation of
property without due process of law. But, as already stated, it is unclear that the
user has a demandable right to require the service provider to have that copy of
the data saved indefinitely for him in its storage system. If he wanted them
preserved, he should have saved them in his computer when he generated the
data or received it. He could also request the service provider for a copy before
it is deleted.
Section 19 of the Cybercrime Law
Section 19 empowers the Department of Justice to restrict or block access to
computer data:
Sec. 19. Restricting or Blocking Access to Computer Data. When a computer
data is prima facie found to be in violation of the provisions of this Act, the DOJ
shall issue an order to restrict or block access to such computer data.
Petitioners contest Section 19 in that it stifles freedom of expression and
violates the right against unreasonable searches and seizures. The Solicitor
General concedes that this provision may be unconstitutional. But since laws
enjoy a presumption of constitutionality, the Court must satisfy itself that Section
19 indeed violates the freedom and right mentioned.
Computer data99 may refer to entire programs or lines of code, including
malware, as well as files that contain texts, images, audio, or video recordings.
Without having to go into a lengthy discussion of property rights in the digital
space, it is indisputable that computer data, produced or created by their writers
or authors may constitute personal property. Consequently, they are protected
from unreasonable searches and seizures, whether while stored in their
personal computers or in the service providers systems.
Section 2, Article III of the 1987 Constitution provides that the right to be secure
in ones papers and effects against unreasonable searches and seizures of
whatever nature and for any purpose shall be inviolable. Further, it states that
no search warrant shall issue except upon probable cause to be determined
personally by the judge. Here, the Government, in effect, seizes and places the
computer data under its control and disposition without a warrant. The
Department of Justice order cannot substitute for judicial search warrant.
The content of the computer data can also constitute speech. In such a case,
Section 19 operates as a restriction on the freedom of expression over
cyberspace. Certainly not all forms of speech are protected. Legislature may,
within constitutional bounds, declare certain kinds of expression as illegal. But
for an executive officer to seize content alleged to be unprotected without any
judicial warrant, it is not enough for him to be of the opinion that such content
violates some law, for to do so would make him judge, jury, and executioner all
rolled into one.100
Not only does Section 19 preclude any judicial intervention, but it also
disregards jurisprudential guidelines established to determine the validity of
restrictions on speech. Restraints on free speech are generally evaluated on
one of or a combination of three tests: the dangerous tendency doctrine, the
balancing of interest test, and the clear and present danger rule.101 Section 19,
however, merely requires that the data to be blocked be found prima facie in
violation of any provision of the cybercrime law. Taking Section 6 into
consideration, this can actually be made to apply in relation to any penal
provision. It does not take into consideration any of the three tests mentioned
above.
The Court is therefore compelled to strike down Section 19 for being violative of
the constitutional guarantees to freedom of expression and against
unreasonable searches and seizures.
Section 20 of the Cybercrime Law
Section 20 provides:
Sec. 20. Noncompliance. Failure to comply with the provisions of Chapter IV
hereof specifically the orders from law enforcement authorities shall be
punished as a violation of Presidential Decree No. 1829 with imprisonment of
prision correctional in its maximum period or a fine of One hundred thousand
pesos (Php100,000.00) or both, for each and every noncompliance with an
order issued by law enforcement authorities.
Petitioners challenge Section 20, alleging that it is a bill of attainder. The
argument is that the mere failure to comply constitutes a legislative finding of
guilt, without regard to situations where non-compliance would be reasonable or
valid.
But since the non-compliance would be punished as a violation of Presidential
Decree (P.D.) 1829,102 Section 20 necessarily incorporates elements of the
offense which are defined therein. If Congress had intended for Section 20 to
constitute an offense in and of itself, it would not have had to make reference to
any other statue or provision.
P.D. 1829 states:
Section 1. The penalty of prision correccional in its maximum period, or a fine
ranging from 1,000 to 6,000 pesos, or both, shall be imposed upon any person
who knowingly or willfully obstructs, impedes, frustrates or delays the
apprehension of suspects and the investigation and prosecution of criminal
cases by committing any of the following acts:
x x x.
Thus, the act of non-compliance, for it to be punishable, must still be done
"knowingly or willfully." There must still be a judicial determination of guilt,
during which, as the Solicitor General assumes, defense and justifications for
non-compliance may be raised. Thus, Section 20 is valid insofar as it applies to
the provisions of Chapter IV which are not struck down by the Court.
Sections 24 and 26(a) of the Cybercrime Law
Sections 24 and 26(a) provide:
Sec. 24. Cybercrime Investigation and Coordinating Center. There is hereby
created, within thirty (30) days from the effectivity of this Act, an inter-agency
body to be known as the Cybercrime Investigation and Coordinating Center
(CICC), under the administrative supervision of the Office of the President, for
policy coordination among concerned agencies and for the formulation and
enforcement of the national cybersecurity plan.
Sec. 26. Powers and Functions. The CICC shall have the following powers
and functions:
(a) To formulate a national cybersecurity plan and extend immediate assistance
of real time commission of cybercrime offenses through a computer emergency
response team (CERT); x x x.
Petitioners mainly contend that Congress invalidly delegated its power when it
gave the Cybercrime Investigation and Coordinating Center (CICC) the power
to formulate a national cybersecurity plan without any sufficient standards or
parameters for it to follow.
In order to determine whether there is undue delegation of legislative power, the
Court has adopted two tests: the completeness test and the sufficient standard
test. Under the first test, the law must be complete in all its terms and conditions
when it leaves the legislature such that when it reaches the delegate, the only
thing he will have to do is to enforce it.1avvphi1 The second test mandates
adequate guidelines or limitations in the law to determine the boundaries of the
delegates authority and prevent the delegation from running riot.103
Here, the cybercrime law is complete in itself when it directed the CICC to
formulate and implement a national cybersecurity plan. Also, contrary to the
position of the petitioners, the law gave sufficient standards for the CICC to
follow when it provided a definition of cybersecurity.
Cybersecurity refers to the collection of tools, policies, risk management
approaches, actions, training, best practices, assurance and technologies that
can be used to protect cyber environment and organization and users
assets.104 This definition serves as the parameters within which CICC should
work in formulating the cybersecurity plan.
Further, the formulation of the cybersecurity plan is consistent with the policy of
the law to "prevent and combat such [cyber] offenses by facilitating their
detection, investigation, and prosecution at both the domestic and international
levels, and by providing arrangements for fast and reliable international
cooperation."105 This policy is clearly adopted in the interest of law and order,
which has been considered as sufficient standard.106 Hence, Sections 24 and
26(a) are likewise valid.
WHEREFORE, the Court DECLARES:
1. VOID for being UNCONSTITUTIONAL:
a. Section 4(c)(3) of Republic Act 10175 that penalizes posting of
unsolicited commercial communications;
b. Section 12 that authorizes the collection or recording of traffic data in
real-time; and
c. Section 19 of the same Act that authorizes the Department of Justice to
restrict or block access to suspected Computer Data.
2. VALID and CONSTITUTIONAL:
a. Section 4(a)(1) that penalizes accessing a computer system without
right;
b. Section 4(a)(3) that penalizes data interference, including transmission of
viruses;
c. Section 4(a)(6) that penalizes cyber-squatting or acquiring domain name
over the internet in bad faith to the prejudice of others;
d. Section 4(b)(3) that penalizes identity theft or the use or misuse of
identifying information belonging to another;
e. Section 4(c)(1) that penalizes cybersex or the lascivious exhibition of
sexual organs or sexual activity for favor or consideration;
f. Section 4(c)(2) that penalizes the production of child pornography;
g. Section 6 that imposes penalties one degree higher when crimes defined
under the Revised Penal Code are committed with the use of information
and communications technologies;
h. Section 8 that prescribes the penalties for cybercrimes;
i. Section 13 that permits law enforcement authorities to require service
providers to preserve traffic data and subscriber information as well as
specified content data for six months;
j. Section 14 that authorizes the disclosure of computer data under a court-
issued warrant;
k. Section 15 that authorizes the search,
seizure, and examination of computer data
under a court-issued warrant;
l. Section 17 that authorizes the destruction of previously preserved
computer data after the expiration of the prescribed holding periods;
m. Section 20 that penalizes obstruction of justice in relation to cybercrime
investigations;
n. Section 24 that establishes a Cybercrime Investigation and Coordinating
Center (CICC);
o. Section 26(a) that defines the CICCs Powers and Functions; and
p. Articles 353, 354, 361, and 362 of the Revised Penal Code that
penalizes libel.
Further, the Court DECLARES:
1. Section 4(c)(4) that penalizes online libel as VALID and
CONSTITUTIONAL with respect to the original author of the post;
but VOID and UNCONSTITUTIONAL with respect to others who
simply receive the post and react to it; and
2. Section 5 that penalizes aiding or abetting and attempt in the
commission of cybercrimes as VA L I D and CONSTITUTIONAL only
in relation to Section 4(a)(1) on Illegal Access, Section 4(a)(2) on
Illegal Interception, Section 4(a)(3) on Data Interference, Section
4(a)(4) on System
Interference, Section 4(a)(5) on Misuse of Devices, Section 4(a)(6) on Cyber-
squatting, Section 4(b)(1) on Computer-related Forgery, Section 4(b)(2) on
Computer-related Fraud, Section 4(b)(3) on Computer-related Identity Theft,
and Section 4(c)(1) on Cybersex; but VOID and UNCONSTITUTIONAL with
respect to Sections 4(c)(2) on Child Pornography, 4(c)(3) on Unsolicited
Commercial Communications, and 4(c)(4) on online Libel.1wphi1
Lastly, the Court RESOLVES to LEAVE THE DETERMINATION of the correct
application of Section 7 that authorizes prosecution of the offender under both
the Revised Penal Code and Republic Act 10175 to actual cases, WITH THE
EXCEPTION of the crimes of:
1. Online libel as to which, charging the offender under both Section
4(c)(4) of Republic Act 10175 and Article 353 of the Revised Penal
Code constitutes a violation of the proscription against double
jeopardy; as well as
2. Child pornography committed online as to which, charging the
offender under both Section 4(c)(2) of Republic Act 10175 and
Republic Act 9775 or the Anti-Child Pornography Act of 2009 also
constitutes a violation of the same proscription, and, in respect to
these, is VOID and UNCONSTITUTIONAL. SO ORDERED.
[G.R. No. 132231. March 31, 1998]
EMILIO M. R. OSMEA and PABLO P. GARCIA, petitioners, vs. THE
COMMISSION ON ELECTIONS, respondent.
This is a petition for prohibition, seeking a reexamination of the validity of
11(b) of R.A. No. 6646, the Electoral Reforms Law of 1987, which prohibits
mass media from selling or giving free of charge print space or air time for
campaign or other political purposes, except to the Commission on
Elections.[1] Petitioners are candidates for public office in the forthcoming
elections. Petitioner Emilio M. R. Osmea is candidate for President of the
Philippines, while petitioner Pablo P. Garcia is governor of Cebu Province,
seeking reelection. They contend that events after the ruling in National Press
Club v. Commission on Elections[2] have called into question the validity of the
very premises of that [decision].[3]
There Is No Case or Controversy to Decide,
Only an Academic Discussion to Hold
NPC v. COMELEC upheld the validity of 11(b) of
R.A. No. 6646 against claims that it abridged freedom of speech and of the
press.[4] In urging a reexamination of that ruling, petitioners claim that
experience in the last five years since the decision in that case has shown the
undesirable effects of the law because the ban on political advertising has not
only failed to level the playing field, [but] actually worked to the grave
disadvantage of the poor candidate[s][5] by depriving them of a medium which
they can afford to pay for while their more affluent rivals can always resort to
other means of reaching voters like airplanes, boats, rallies, parades, and
handbills.
No empirical data have been presented by petitioners to back up their
claim, however. Argumentation is made at the theoretical and not the practical
level. Unable to show the experience and subsequent events which they claim
invalidate the major premise of our prior decision, petitioners now say there is
no need for empirical data to determine whether the political ad ban offends the
Constitution or not.[6] Instead they make arguments from which it is clear that
their disagreement is with the opinion of the Court on the constitutionality of
11(b) of R.A. No. 6646 and that what they seek is a reargument on the same
issue already decided in that case. What is more, some of the arguments were
already considered and rejected in the NPC case.[7]
Indeed, petitioners do not complain of any harm suffered as a result of
the operation of the law. They do not complain that they have in any way been
disadvantaged as a result of the ban on media advertising. Their contention
that, contrary to the holding in NPC, 11(b) works to the disadvantage of
candidates who do not have enough resources to wage a campaign outside of
mass media can hardly apply to them. Their financial ability to sustain a long
drawn-out campaign, using means other than the mass media to communicate
with voters, cannot be doubted. If at all, it is candidates like intervenor Roger
Panotes, who is running for mayor of Daet, Camarines Norte, who can complain
against 11(b) of R.A. No. 6646. But Panotes is for the law which, he says, has
to some extent, reduced the advantages of moneyed politicians and parties
over their rivals who are similarly situated as ROGER PANOTES. He claims
that the elimination of this substantial advantage is one reason why ROGER
PANOTES and others similarly situated have dared to seek an elective position
this coming elections.[8]
What petitioners seek is not the adjudication of a case but simply the
holding of an academic exercise. And since a majority of the present Court is
unpersuaded that its decision in NPC is founded in error, it will suffice for
present purposes simply to reaffirm the ruling in that case. Stare decisis et non
quieta movere. This is what makes the present case different from the
overruling decisions[9] invoked by petitioners.
Nevertheless, we have undertaken to revisit the decision in NPC v.
COMELEC in order to clarify our own understanding of its reach and set forth a
theory of freedom of speech.
No Ad Ban, Only a Substitution of
COMELEC Space and COMELEC
Time for the Advertising Page and
Commercials in Mass Media
The term political ad ban, when used to describe 11(b)
of R.A. No. 6646, is misleading, for even as 11(b) prohibits the sale or donation
of print space and air time to political candidates, it mandates the COMELEC to
procure and itself allocate to the candidates space and time in the media. There
is no suppression of political ads but only a regulation of the time and manner of
advertising.
Thus, 11(b) states:
Prohibited Forms of Election Propaganda. In addition to the forms
of election propaganda prohibited in Section 85 of Batas
Pambansa Blg. 881, it shall be unlawful:
....
(b) for any newspapers, 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 Section 90 and 92 of Batas Pambansa Blg. 881. Any mass
media columnist, commentator, announcer or personality who is a
candidate for any elective public office shall take a leave of
absence from his work as such during the campaign period.
On the other hand, the Omnibus Election Code provisions referred to in
11(b) read:
SEC. 90. Comelec space. - The 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 by the
Commission among all candidates within the area in which the
newspaper is circulated. (Sec. 45, 1978 EC).
SEC. 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. (Sec. 46,
1978 EC)
The laws concern is not with the message or content of the ad but with
ensuring media equality between candidates with deep pockets, as Justice
Feliciano called them in his opinion of the Court in NPC, and those with less
resources.[10] The law is part of a package of electoral reforms adopted in
1987. Actually, similar effort was made in 1970 to equalize the opportunity of
candidates to advertise themselves and their programs of government by
requiring the COMELEC to have a COMELEC space in newspapers,
magazines, and periodicals and prohibiting candidates to advertise outside
such space, unless the names of all the other candidates in the district in which
the candidate is running are mentioned with equal prominence. The validity of
the law was challenged in Badoy, Jr. v. COMELEC.[11] The voting was equally
divided (5-5), however, with the result that the validity of the law was deemed
upheld.
There is a difference in kind and in severity between restrictions such as
those imposed by the election law provisions in question in this case and those
found to be unconstitutional in the cases cited by both petitioners and the
Solicitor General, who has taken the side of petitioners. In Adiong v.
COMELEC[12] the Court struck down a regulation of the COMELEC which
prohibited the use of campaign decals and stickers on mobile units,allowing
their location only in the COMELEC common poster area or billboard, at the
campaign headquarters of the candidate or his political party, or at his
residence. The Court found the restriction so broad that it encompasses even
the citizens private property, which in this case is a privately-owned car.[13] Nor
was there a substantial governmental interest justifying the restriction.
[T]he constitutional objective to give a rich candidate and a poor
candidate equal opportunity to inform the electorate as regards
their candidacies, mandated by Article II, Section 26 and Article
XIII, Section 1 in relation to Article IX(c) Section 4 of the
Constitution, is not impaired by posting decals and stickers on cars
and other private vehicles. Compared to the paramount interest of
the State in guaranteeing freedom of expression, any financial
considerations behind the regulation are of marginal
significance.[14]
Mutuc v. COMELEC[15] is of a piece with Adiong. An order of the
COMELEC prohibiting the playing of taped campaign jingles through sound
systems mounted on mobile units was held to be an invalid prior restraint
without any apparent governmental interest to promote, as the restriction did
not simply regulate time, place or manner but imposed an absolute ban on the
use of the jingles. The prohibition was actually content-based and was for that
reason bad as a prior restraint on speech, as inhibiting as prohibiting the
candidate himself to use the loudspeaker. So is a ban against newspaper
columnists expressing opinion on an issue in a plebiscite a content restriction
which, unless justified by compelling reason, is unconstitutional.[16]
Here, on the other hand, there is no total ban on political ads, much less
restriction on the content of the speech. Given the fact that print space and air
time can be controlled or dominated by rich candidates to the disadvantage of
poor candidates, there is a substantial or legitimate governmental interest
justifying exercise of the regulatory power of the COMELEC under Art. IX-C, 4
of the Constitution, which 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.
The provisions in question involve no suppression of political ads. They
only prohibit the sale or donation of print space and air time to candidates but
require the COMELEC instead to procure space and time in the mass media for
allocation, free of charge, to the candidates. In effect, during the election period,
the COMELEC takes over the advertising page of newspapers or the
commercial time of radio and TV stations and allocates these to the candidates.
Nor can the validity of the COMELEC take-over for such temporary
period be doubted.[17] In Pruneyard Shopping Center v. Robbins,[18] it was held
that a court order compelling a private shopping center to permit use of a corner
of its courtyard for the purpose of distributing pamphlets or soliciting signatures
for a petition opposing a UN resolution was valid. The order neither
unreasonably impaired the value or use of private property nor violated the
owners right not to be compelled to express support for any viewpoint since it
can always disavow any connection with the message.
On the other hand, the validity of regulations of time, place and manner,
under well-defined standards, is well-nigh beyond question.[19] What is involved
here is simply regulation of this nature. Instead of leaving candidates to
advertise freely in the mass media, the law provides for allocation, by the
COMELEC, of print space and air time to give all candidates equal time and
space for the purpose of ensuring free, orderly, honest, peaceful, and credible
elections.
In Gonzales v. COMELEC,[20] the Court sustained the validity of a
provision of R.A. No. 4880 which in part reads:
SEC. 50-B. Limitation upon the period of Election Campaign or
Partisan Political Activity. - It is unlawful for any person whether or
 not a voter or candidate, or for any group, or association of
persons, whether or not a political party or political committee, to
engage in an election campaign or partisan political activity except
during the period of one hundred twenty days immediately
preceding an election involving a public office voted for at large and
ninety days immediately preceding an election for any other
elective public office.
The term Candidate refers to any person aspiring for or seeking an
elective public office, regardless of whether or not said person has
already filed his certificate of candidacy or has been nominated by
any political party as its candidate.
The term Election Campaign or Partisan Political Activity refers to
acts designed to have a candidate elected or not or promote the
candidacy of a person or persons to a public office which shall
include:
(a) Forming Organizations, Associations, Clubs,
Committees or other groups of persons for the purpose
of soliciting votes and/or undertaking any campaign or
propaganda for or against a party or candidate;
(b) Holding political conventions, caucuses,
conferences, meetings, rallies, parades, or other similar
assemblies, for the purpose of soliciting votes and/or
undertaking any campaign or propaganda for or against
a candidate or party; . . .
In Valmonte v. COMELEC,[21] on the other hand, the Court upheld the
validity of a COMELEC resolution prohibiting members of citizen groups or
associations from entering any polling place except to vote. Indeed, 261(k) of
the Omnibus Election Code makes it unlawful for anyone to solicit votes in the
polling place and within a radius of 30 meters thereof.
These decisions come down to this: the State can prohibit
campaigning outside a certain period as well as campaigning within a certain
place. For unlimited expenditure for political advertising in the mass media
skews the political process and subverts democratic self-government. What is
bad is if the law prohibits campaigning by certain candidates because of the
views expressed in the ad. Content regulation cannot be done in the absence of
any compelling reason.
Law Narrowly Drawn to Fit
Regulatory Purpose
The main purpose of 11(b) is regulatory. Any restriction on
speech is only incidental, and it is no more than is necessary to achieve its
purpose of promoting equality of opportunity in the use of mass media for
political advertising. The restriction on speech, as pointed out in NPC, is limited
both as to time and as to scope.
Petitioners and the dissenters make little of this on the ground that the
regulation, which they call a ban, would be useless any other time than the
election period. Petitioners state: [I]n testing the reasonableness of a ban on
mountain-skiing, one cannot conclude that it is limited because it is enforced
only during the winter season.[22] What makes the regulation reasonable is
precisely that it applies only to the election period. Its enforcement outside the
period would make it unreasonable. More importantly, it should be noted that a
ban on mountain skiing would be passive in nature. It is like the statutory cap on
campaign expenditures, but is so unlike the real nature of 11(b), as already
explained.
Petitioners likewise deny that 11(b) is limited in scope, as they make
another quaint argument:
A candidate may court media to report and comment on his person
and his programs, and media in the exercise of their discretion just
might. It does not, however, follow that a candidates freedom of
expression is thereby enhanced, or less abridged. If Pedro is not
allowed to speak, but Juan may speak of what Pedro wishes to
say, the curtailment of Pedros freedom of expression cannot be
said to be any less limited, just because Juan has the freedom to
speak.[23]
The premise of this argument is that 11(b) imposes a ban on media
political advertising. What petitioners seem to miss is that the prohibition
against paid or sponsored political advertising is only half of the regulatory
framework, the other half being the mandate of the COMELEC to procure print
space and air time so that these can be allocated free of charge to the
candidates.
Reform of the Marketplace of Ideas,
Not Permissible?
Petitioners argue that the reasoning of NPC is flawed,
because it rests on a misconception that Art. IX-C, 4 mandates the absolute
equality of all candidates regardless of financial status, when what this provision
speaks of is equality of opportunity. In support of this claim, petitioners quote
the following from the opinion of the Court written by Justice Feliciano:
The objective which animates Section 11(b) is the equalizing, as far
as practicable, the situations of rich and poor candidates by
preventing the former from enjoying the undue advantage offered
by huge campaign war chests.[24]
The Court meant equalizing media access, as the following sentences
which were omitted clearly show:
Section 11(b) prohibits the sale or donation of print space and air
time for campaign or other political purposes except to the
Commission on Elections (Comelec). Upon the other hand,
Sections 90 and 92 of the Omnibus Election Code require the
Comelec to procure Comelec space in newspapers of general
circulation in every province or city and Comelec time on radio and
television stations. Further, the Comelec is statutorily commanded
to allocate Comelec space and Comelec time on a free of charge,
equal and impartial basis among all candidates within the area
served by the newspaper or radio and television station involved.[25]
On the other hand, the dissent of Justice Romero in the present case, in
batting for an uninhibited market place of ideas, quotes the following
from Buckley v. Valeo:
[T]he concept that the government may restrict the speech of some
elements in our society in order to enhance the relative voice of the
others is wholly foreign to the First Amendment which was
designed to secure the widest possible dissemination of
information from diverse and antagonistic sources and to assure
unfettered interchange of ideas for the bringing about of political
and social changes desired by the people.[26]
But do we really believe in that? That statement was made to justify
striking down a limit on campaign expenditure on the theory that money is
speech. Do those who endorse the view that government may not restrict the
speech of some in order to enhance the relative voice of others also think that
the campaign expenditure limitation found in our election laws[27] is
unconstitutional? How about the principle of one person, one vote,[28]is this not
based on the political equality of voters? Voting after all is speech. We speak of
it as the voice of the people - even of God. The notion that the government may
restrict the speech of some in order to enhance the relative voice of others may
be foreign to the American Constitution. It is not to the Philippine Constitution,
being in fact an animating principle of that document.
Indeed, Art. IX-C, 4 is not the only provision in the Constitution mandating
political equality. Art. XIII, 1 requires Congress to give the highest priority to the
enactment of measures designed to reduce political inequalities, while Art. II, 26
declares as a fundamental principle of our government equal access to
opportunities for public service. Access to public office will be denied to poor
candidates if they cannot even have access to mass media in order to reach the
electorate. What fortress principle trumps or overrides these provisions for
political equality?
Unless the idealism and hopes which fired the imagination of those who
framed the Constitution now appear dim to us, how can the electoral reforms
adopted by them to implement the Constitution, of which 11(b) of R.A. No.
6646, in relation to 90 and 92 are part, be considered infringements on freedom
of speech? That the framers contemplated regulation of political propaganda
similar to 11(b) is clear from the following portion of the sponsorship speech of
Commissioner Vicente B. Foz:
MR. FOZ. . . . Regarding the regulation by the Commission of the
enjoyment or utilization of 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, there is a provision that during the election
period, the Commission may regulate, among other things, the
rates, reasonable free space, and time allotments for public
information campaigns and forums among candidates for the
purpose of ensuring free, orderly, honest and peaceful
elections. This has to do with the media of communication or
information.[29]
On the Claim that the Reforms
Have Been Ineffectual
Petitioners contend that 11(b) is not a reasonable means for achieving
the purpose for which it was enacted. They claim that instead of levelling the
playing field as far as the use of mass media for political campaign is
concerned, 11(b) has abolished it. They further claim that 11(b) does not
prevent rich candidates from using their superior resources to the disadvantage
of poor candidates.
 All this is of course mere allegation. As stated in the beginning, what
petitioners claim to be the nations experience with the law is merely
argumentation against its validity. The claim will not bear analysis,
however.Assuming that rich candidates can spend for parades, rallies,
motorcades, airplanes and the like in order to campaign while poor candidates
can only afford political ads, the gap between the two will not necessarily be
reduced by allowing unlimited mass media advertising because rich candidates
can spend for other propaganda in addition to mass media
advertising. Moreover, it is not true that 11(b) has abolished the playing
field. What it has done, as already stated, is merely to regulate its use through
COMELEC-sponsored advertising in place of advertisements paid for by
candidates or donated by their supporters.
It is finally argued that COMELEC Space and COMELEC Time are
ineffectual. It is claimed that people hardly read or watch or listen to
them. Again, this is a factual assertion without any empirical basis to support
it.What is more, it is an assertion concerning the adequacy or necessity of the
law which should be addressed to Congress. Well-settled is the rule that the
choice of remedies for an admitted social malady requiring government action
belongs to Congress. The remedy prescribed by it, unless clearly shown to be
repugnant to fundamental law, must be respected.[30] As shown in this case,
11(b) of R.A. 6646 is a permissible restriction on the freedom of speech, of
expression and of the press.
Dissenting, Justice Panganiban argues that advertising is the most
effective means of reaching voters. He adverts to a manifestation of the
COMELEC lawyer that the Commission is not procuring [Comelec Space] by
virtue of the effects of the decision of this Honorable Court in the case of
Philippine Press Institute (PPI) vs. Comelec, 244 SCRA 272.[31]
To be sure, this Court did not hold in PPI v. COMELEC that it should not
procure newspaper space for allocation to candidates. What it ruled is that the
COMELEC cannot procure print space without paying just
compensation. Whether by its manifestation the COMELEC meant it is not
going to buy print space or only that it will not require newspapers to donate
free of charge print space is not clear from the manifestation. It is to be
presumed that the COMELEC, in accordance with its mandate under 11(b) of
R.A. No. 6646 and 90 of the Omnibus Election Code, will procure print space
for allocation to candidates, paying just compensation to newspapers providing
print space.
In any event, the validity of a law cannot be made to depend on the
faithful compliance of those charged with its enforcement but by appropriate
constitutional provisions. There is a remedy for such lapse if it should
happen. In addition, there is the COMELEC Time during which candidates may
advertise themselves. Resolution No. 2983-A of the COMELEC provides:
SEC. 2. Grant of Comelec Time. Every radio broadcasting and
television station operating under franchise shall grant the
Commission, upon payment of just compensation, at least thirty
(30) minutes of prime time daily, to be known as Comelec Time,
effective February 10, 1998 for candidates for President, Vice-
President and Senators, and effective March 27, 1998, for
candidates for local elective offices, until May 9, 1998.(Emphasis
added)
Failure of Legislative Remedy Bespeaks
of More than Congressional Inaction
The fact is that efforts have been made to secure the amendment or
even repeal of 11(b) of R.A. No. 6646. No less than five bills[32] were filed in the
Senate in the last session of Congress for this purpose, but they all failed of
passage. Petitioners claim it was because Congress adjourned without acting
on them. But that is just the point. Congress obviously did not see it fit to act on
the bills before it adjourned.
We thus have a situation in which an act of Congress was found by this
Court to be valid so that those opposed to the statute resorted to the legislative
department. The latter reconsidered the question but after doing so apparently
found no reason for amending the statute and therefore did not pass any of the
bills filed to amend or repeal the statute. Must this Court now grant what
Congress denied to them? The legislative silence here certainly bespeaks of
more than inaction.
Test for Content-Neutral Restrictions[33]
In Adiong v. COMELEC[34] this Court quoted the following from the
decision of the U.S. Supreme Court in a case sustaining a Los Angeles City
ordinance which prohibited the posting of campaign signs on public property:
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 incident
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])[35]
This test was actually formulated in United States v. OBrien.[36] It is an
appropriate test for restrictions on speech which, like 11(b), are content-
neutral. Unlike content-based restrictions, they are not imposed because of the
content of the speech. For this reason, content-neutral restrictions are tests
demanding standards. For example, a rule such as that involved in Sanidad v.
COMELEC,[37] prohibiting columnists, commentators, and announcers from
campaigning either for or against an issue in a plebiscite must have a
compelling reason to support it, or it will not pass muster under strict
scrutiny. These restrictions, it will be seen, are censorial and therefore they
bear a heavy presumption of constitutional invalidity. In addition, they will be
tested for possible overbreadth and vagueness.
It is apparent that these doctrines have no application to content-neutral
regulations which, like 11(b), are not concerned with the content of the
speech. These regulations need only a substantial governmental interest to
support them.[38] A deferential standard of review will suffice to test their validity.
Justice Panganibans dissent invokes the clear-and-present-danger test
and argues that media ads do not partake of the real substantive evil that the
state has a right to prevent and that justifies the curtailment of the peoples
cardinal right to choose their means of expression and of access to information.
The clear-and-present-danger test is not, however, a sovereign remedy for all
free speech problems. As has been pointed out by a thoughtful student of
constitutional law, it was originally formulated for the criminal law and only later
appropriated for free speech cases. For the criminal law is necessarily
concerned with the line at which innocent preparation ends and a guilty
conspiracy or attempt begins.[39] Clearly, it is inappropriate as a test for
determining the constitutional validity of laws which, like 11(b) of R.A. No. 6646,
are not concerned with the content of political ads but only with their
incidents. To apply the clear-and-present-danger test to such regulatory
measures would be like using a sledgehammer to drive a nail when a regular
hammer is all that is needed.
The reason for this difference in the level of justification for the restriction
of speech is that content-based restrictions distort public debate, have improper
motivation, and are usually imposed because of fear of how people will react to
a particular speech. No such reasons underlie content-neutral regulations, like
regulations of time, place and manner of holding public assemblies under B.P.
Blg. 880, the Public Assembly Act of 1985. Applying the OBrien test in this
case, we find that 11(b) of R.A. No. 6646 is a valid exercise of the power of the
State to regulate media of communication or information for the purpose of
ensuring equal opportunity, time and space for political campaigns; that the
regulation is unrelated to the suppression of speech; that any restriction on
freedom of expression is only incidental and no more than is necessary to
achieve the purpose of promoting equality.
________________
The Court is just as profoundly aware as anyone else that discussion of
public issues and debate on the qualifications of candidates in an election are
essential to the proper functioning of the government established by our
Constitution. But it is precisely with this awareness that we think democratic
efforts at reform should be seen for what they are: genuine efforts to enhance
the political process rather than infringements on freedom of expression. The
statutory provision involved in this case is part of the reform measures adopted
in 1987 in the aftermath of EDSA. A reform-minded Congress passed bills
which were consolidated into what is now R.A No. 6646 with near
unanimity. The House of Representatives, of which petitioner Pablo P. Garcia
was a distinguished member, voted 96 to 1 (Rep. Eduardo Pilapil) in favor,
while the Senate approved it 19-0. [40]
In his recent book, The Irony of Free Speech, Owen Fiss speaks of a
truth that is full of irony and contradiction: that the state can be both an enemy
and a friend of speech; that it can do terrible things to undermine democracy
but some wonderful things to enhance it as well.[41] We hold R.A. No. 6646,
11(b) to be such a democracy-enhancing measure. For Holmess marketplace
of ideas can prove to be nothing but a romantic illusion if the electoral process
is badly skewed, if not corrupted, by the unbridled use of money for campaign
propaganda. The petition is DISMISSED.SO ORDERED.
[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.
Petitioner, Social Weather Stations, Inc. (SWS), is a private non-stock,
non-profit social research institution conducting surveys in various fields,
including economics, politics, demography, and social development, and
thereafter processing, analyzing, and publicly reporting the results thereof. On
the other hand, petitioner Kamahalan Publishing Corporation publishes the
Manila Standard, a newspaper of general circulation, which features
newsworthy items of information including election surveys.
Petitioners brought this action for prohibition to enjoin the Commission on
Elections from enforcing 5.4 of R.A. No. 9006 (Fair Election Act), which
provides:
Surveys affecting national candidates shall not be published fifteen (15) days
before an election and surveys affecting local candidates shall not be published
seven (7) days before an election.
The term election surveys is defined in 5.1 of the law as follows:
Election surveys refer to the measurement of opinions and perceptions of the
voters as regards a candidates popularity, qualifications, platforms or a matter
of public discussion in relation to the election, including voters preference for
candidates or publicly discussed issues during the campaign period (hereafter
referred to as Survey).
To implement 5.4, Resolution 3636, 24(h), dated March 1, 2001, of the
COMELEC enjoins
Surveys affecting national candidates shall not be published fifteen (15) days
before an election and surveys affecting local candidates shall not be published
seven (7) days before an election.
Petitioner SWS states that it wishes to conduct an election survey
throughout the period of the elections both at the national and local levels and
release to the media the results of such survey as well as publish them directly.
Petitioner Kamahalan Publishing Corporation, on the other hand, states that it
intends to publish election survey results up to the last day of the elections on
May 14, 2001.
Petitioners argue that the restriction on the publication of election survey
results constitutes a prior restraint on the exercise of freedom of speech without
any clear and present danger to justify such restraint. They claim that SWS and
other pollsters conducted and published the results of surveys prior to the 1992,
1995, and 1998 elections up to as close as two days before the election day
without causing confusion among the voters and that there is neither empirical
nor historical evidence to support the conclusion that there is an immediate and
inevitable danger to the voting process posed by election surveys. They point
out that no similar restriction is imposed on politicians from explaining their
opinion or on newspapers or broadcast media from writing and publishing
articles concerning political issues up to the day of the election. Consequently,
they contend that there is no reason for ordinary voters to be denied access to
the results of election surveys which are relatively objective.
Respondent Commission on Elections justifies the restrictions in 5.4 of
R.A. No. 9006 as necessary to prevent the manipulation and corruption of the
electoral process by unscrupulous and erroneous surveys just before the
election. It contends that (1) the prohibition on the publication of election survey
results during the period proscribed by law bears a rational connection to the
objective of the law, i.e., the prevention of the debasement of the electoral
process resulting frommanipulated surveys, bandwagon effect, and absence of
reply; (2) it is narrowly tailored to meet the evils sought to be prevented; and (3)
the impairment of freedom of expression is minimal, the restriction being limited
both in duration, i.e., the last 15 days before the national election and the last 7
days before a local election, and in scope as it does not prohibit election survey
results but only require timeliness. Respondent claims that in National Press
Club v. COMELEC,[1] a total ban on political advertisements, with candidates
being merely allocated broadcast time during the so-called COMELEC space or
COMELEC hour, was upheld by this Court. In contrast, according to
respondent, it states that the prohibition in 5.4 of R.A. No. 9006 is much more
limited.
For reasons hereunder given, we hold that 5.4 of R.A. No. 9006
constitutes an unconstitutional abridgment of freedom of speech, expression,
and the press.
To be sure, 5.4 lays a prior restraint on freedom of speech, expression,
and the press by prohibiting the publication of election survey results affecting
candidates within the prescribed periods of fifteen (15) days immediately
preceding a national election and seven (7) days before a local election.
Because of the preferred status of the constitutional rights of speech,
expression, and the press, such a measure is vitiated by a weighty presumption
of invalidity.[2] Indeed, any system of prior restraints of expression comes to this
Court bearing a heavy presumption against its constitutional validity. . . . The
Government thus carries a heavy burden of showing justification for the
enforcement of such restraint.[3] There is thus a reversal of the normal
presumption of validity that inheres in every legislation.
Nor may it be argued that because of Art. IX-C, 4 of the Constitution,
which gives the COMELEC supervisory power to regulate the enjoyment or
utilization of franchise for the operation of media of communication, no
presumption of invalidity attaches to a measure like 5.4. For as we have pointed
out in sustaining the ban on media political advertisements, the grant of power
to the COMELEC under Art. IX-C, 4 is limited to ensuring equal opportunity,
time, space, and the right to reply as well as uniform and reasonable rates of
charges for the use of such media facilities for public information campaigns
and forums among candidates.[4] This Court stated:
The technical effect of Article IX (C) (4) of the Constitution may be seen to be
that no presumption of invalidity arises in respect of exercises of supervisory or
regulatory authority on the part of the Comelec for the purpose of securing
equal opportunity among candidates for political office, although such
supervision or regulation may result in some limitation of the rights of free
speech and free press.[5]
MR. JUSTICE KAPUNAN dissents. He rejects as inappropriate the test of
clear and present danger for determining the validity of 5.4. Indeed, as has
been pointed out in Osmea v. COMELEC,[6] this test was originally formulated
for the criminal law and only later appropriated for free speech cases. Hence,
while it may be useful for determining the validity of laws dealing with inciting to
sedition or incendiary speech, it may not be adequate for such regulations as
the one in question. For such a test is concerned with questions of the gravity
and imminence of the danger as basis for curtailing free speech, which is not
the case of 5.4 and similar regulations.
Instead, MR. JUSTICE KAPUNAN purports to engage in a form of
balancing by weighing and balancing the circumstances to determine whether
public interest [in free, orderly, honest, peaceful and credible elections] is
served by the regulation of the free enjoyment of the rights (page 7). After
canvassing the reasons for the prohibition, i.e., to prevent last-minute pressure
on voters, the creation of bandwagon effect to favor candidates, misinformation,
the junking of weak and losing candidates by their parties, and the form of
election cheating called dagdag-bawas and invoking the States power to
supervise media of information during the election period (pages 11-16), the
dissenting opinion simply concludes:
Viewed in the light of the legitimate and significant objectives of Section 5.4, it
may be seen that its limiting impact on the rights of free speech and of the
press is not unduly repressive or unreasonable. Indeed, it is a mere restriction,
not an absolute prohibition, on the publication of election surveys. It is limited in
duration; it applies only during the period when the voters are presumably
contemplating whom they should elect and when they are most susceptible to
such unwarranted persuasion. These surveys may be published thereafter.
(Pages 17-18)
The dissent does not, however, show why, on balance, these
considerations should outweigh the value of freedom of expression. Instead,
reliance is placed on Art. IX-C, 4. As already stated, the purpose of Art. IX-C, 4
is to ensure equal opportunity, time, and space and the right of reply, including
reasonable, equal rates therefor for public information campaigns and forums
among candidates. Hence the validity of the ban on media advertising. It is
noteworthy that R.A. No. 9006, 14 has lifted the ban and now allows candidates
to advertise their candidacies in print and broadcast media. Indeed, to sustain
the ban on the publication of survey results would sanction the censorship of all
speaking by candidates in an election on the ground that the usual bombasts
and hyperbolic claims made during the campaigns can confuse voters and thus
debase the electoral process.
In sum, the dissent has engaged only in a balancing at the margin. This
form of ad hoc balancing predictably results in sustaining the challenged
legislation and leaves freedom of speech, expression, and the press with little
protection. For anyone who can bring a plausible justification forward can easily
show a rational connection between the statute and a legitimate governmental
purpose. In contrast, the balancing of interest undertaken by then Justice
Castro in Gonzales v.COMELEC,[7] from which the dissent in this case takes its
cue, was a strong one resulting in his conclusion that 50-B of R.A. No. 4880,
which limited the period of election campaign and partisan political activity, was
an unconstitutional abridgment of freedom of expression.
Nor can the ban on election surveys be justified on the ground that there
are other countries 78, according to the Solicitor General, while the dissent cites
28 which similarly impose restrictions on the publication of election surveys. At
best this survey is inconclusive. It is noteworthy that in the United States no
restriction on the publication of election survey results exists. It cannot be
argued that this is because the United States is a mature democracy. Neither
are there laws imposing an embargo on survey results, even for a limited
period, in other countries. As pointed out by petitioners, the United Kingdom,
Austria, Belgium, Denmark, Estonia, Finland, Iceland, Ireland, Latvia, Malta,
Macedonia, the Netherlands, Norway, Sweden, and Ukraine, some of which are
no older nor more mature than the Philippines in political development, do not
restrict the publication of election survey results.
What test should then be employed to determine the constitutional
validity of 5.4? The United States Supreme Court, through Chief Justice
Warren, held in United States v. OBrien:
 [A] government regulation is sufficiently justified [1] if it is within the
constitutional power of the Government; [2] if it furthers an important or
substantial governmental interest; [3] if the governmental interest is
unrelated to the suppression of free expression; and [4] if the incidental
restriction on alleged First Amendment freedoms [of speech, expression
and press] is no greater than is essential to the furtherance of that
interest.[8]
This is so far the most influential test for distinguishing content-based
from content-neutral regulations and is said to have become canonical in the
review of such laws.[9] It is noteworthy that the OBrien test has been applied by
this Court in at least two cases.[10]
Under this test, even if a law furthers an important or substantial
governmental interest, it should be invalidated if such governmental interest is
not unrelated to the suppression of free expression. Moreover, even if the
purpose is unrelated to the suppression of free speech, the law should
nevertheless be invalidated if the restriction on freedom of expression is greater
than is necessary to achieve the governmental purpose in question.
Our inquiry should accordingly focus on these two considerations as
applied to 5.4.
First. Sec. 5.4 fails to meet criterion [3] of the OBrien test because the
causal connection of expression to the asserted governmental interest makes
such interest not unrelated to the suppression of free expression. By prohibiting
the publication of election survey results because of the possibility that such
publication might undermine the integrity of the election, 5.4 actually
suppresses a whole class of expression, while allowing the expression of
opinion concerning the same subject matter by newspaper columnists, radio
and TV commentators, armchair theorists, and other opinion makers. In effect,
5.4 shows a bias for a particular subject matter, if not viewpoint, by preferring
personal opinion to statistical results. The constitutional guarantee of freedom
of expression means that the government has no power to restrict expression
because of its message, its ideas, its subject matter, or its content. [11] The
inhibition of speech should be upheld only if the expression falls within one of
the few unprotected categories dealt with in Chaplinsky v. New
Hampshire,[12] thus:
There are certain well-defined and narrowly limited classes of speech, the
prevention and punishment of which have never been thought to raise any
Constitutional problem. These include the lewd and obscene, the profane, the
libelous, and the insulting or fighting words those which by their very utterance
inflict injury or tend to incite an immediate breach of the peace. [S]uch
utterances are no essential part of any exposition of ideas, and are of such
slight social value as a step to truth that any benefit that may be derived from
them is clearly outweighed by the social interest in order and morality.
Nor is there justification for the prior restraint which 5.4 lays on protected
speech. In Near v. Minnesota,[13] it was held:
[The] protection even as to previous restraint is not absolutely unlimited. But the
limitation has been recognized only in exceptional cases. . . . No one would
question but that a government might prevent actual obstruction to its recruiting
service or the publication of the sailing dates of transports or the number and
location of troops. On similar grounds, the primary requirements of decency
may be enforced against obscene publications. The security of the community
life may be protected against incitements to acts of violence and the overthrow
by force of orderly government . . . .
Thus, contrary to the claim of the Solicitor General, the prohibition
imposed by 5.4 cannot be justified on the ground that it is only for a limited
period and is only incidental. The prohibition may be for a limited time, but the
curtailment of the right of expression is direct, absolute, and substantial. It
constitutes a total suppression of a category of speech and is not made less so
because it is only for a period of fifteen (15) days immediately before a national
election and seven (7) days immediately before a local election.
This sufficiently distinguishes 5.4 from R.A. No. 6646, 11(b), which this
Court found to be valid in National Press Club v. COMELEC[14] and Osmea
v. COMELEC.[15] For the ban imposed by R.A. No. 6646, 11(b) is not only
authorized by a specific constitutional provision,[16] but it also provided an
alternative so that, as this Court pointed out in Osmea, there was actually no
ban but only a substitution of media advertisements by the COMELEC space
and COMELEC hour.
Second. Even if the governmental interest sought to be promoted is
unrelated to the suppression of speech and the resulting restriction of free
expression is only incidental, 5.4 nonetheless fails to meet criterion [4] of
the OBrien test, namely, that the restriction be not greater than is necessary to
further the governmental interest. As already stated, 5.4 aims at the prevention
of last-minute pressure on voters, the creation of bandwagon effect, junking of
weak or losing candidates, and resort to the form of election cheating called
dagdag-bawas. Praiseworthy as these aims of the regulation might be, they
cannot be attained at the sacrifice of the fundamental right of expression, when
such aim can be more narrowly pursued by punishing unlawful acts, rather
than speech because of apprehension that such speech creates the danger of
such evils. Thus, under the Administrative Code of 1987,[17] the COMELEC is
given the power:
To stop any illegal activity, or confiscate, tear down, and stop any unlawful,
libelous, misleading or false election propaganda, after due notice and hearing.
This is surely a less restrictive means than the prohibition contained in
5.4. Pursuant to this power of the COMELEC, it can confiscate bogus survey
results calculated to mislead voters. Candidates can have their own surveys
conducted. No right of reply can be invoked by others. No principle of equality is
involved. It is a free market to which each candidate brings his ideas. As for the
purpose of the law to prevent bandwagon effects, it is doubtful whether the
Government can deal with this natural-enough tendency of some voters. Some
voters want to be identified with the winners. Some are susceptible to the herd
mentality. Can these be legitimately prohibited by suppressing the publication of
survey results which are a form of expression? It has been held that [mere]
legislative preferences or beliefs respecting matters of public convenience may
well support regulation directed at other personal activities, but be insufficient to
justify such as diminishes the exercise of rights so vital to the maintenance of
democratic institutions.[18]
To summarize then, we hold that 5.4 is invalid because (1) it imposes a
prior restraint on the freedom of expression, (2) it is a direct and total
suppression of a category of expression even though such suppression is only
for a limited period, and (3) the governmental interest sought to be promoted
can be achieved by means other than the suppression of freedom of
expression.
On the other hand, the COMELEC contends that under Art. IX-A, 7 of the
Constitution, its decisions, orders, or resolutions may be reviewed by this Court
only by certiorari. The flaws in this argument is that it assumes that its
Resolution 3636, dated March 1, 2001 is a decision, order, or resolution within
the meaning of Art. IX-A, 7. Indeed, counsel for COMELEC maintains that
Resolution 3636 was rendered by the Commission. However, the Resolution
does not purport to adjudicate the right of any party. It is not an exercise by the
COMELEC of its adjudicatory power to settle the claims of parties. To the
contrary, Resolution 3636 clearly states that it is promulgated to implement the
provisions of R.A. No. 9006.Hence, there is no basis for the COMELECs claim
that this petition for prohibition is inappropriate. Prohibition has been found
appropriate for testing the constitutionality of various election laws, rules, and
regulations.[19]
WHEREFORE, the petition for prohibition is GRANTED and 5.4 of R.A.
No. 9006 and 24(h) of COMELEC Resolution 3636, dated March 1, 2001, are
declared unconstitutional. SO ORDERED.
G.R. No. 205357, September 02, 2014
GMA NETWORK, INC., Petitioner, v. COMMISSION ON ELECTIONS,
RESPONDENT. SENATOR ALAN PETER COMPAERO S.
CAYETANO, Petitioner-Intervenor.
G.R. NO. 205374
ABC DEVELOPMENT CORPORATION, Petitioner, v. COMMISSION ON
ELECTIONS, Respondent.
G.R. NO. 205592
MANILA BROADCASTING COMPANY, INC. AND NEWSOUNDS
BROADCASTING NETWORK, INC., Petitioner, v. COMMISSION ON
ELECTIONS, Respondent.
G.R. NO. 205852
KAPISANAN NG MGA BRODKASTER NG PILIPINAS (KBP) AND ABS-CBN
CORPORATION, Petitioners, v. COMMISSION ON ELECTIONS, Respondent.
G.R. NO. 206360
RADIO MINDANAO NETWORK, INC., Petitioner, v. COMMISSION ON
ELECTIONS, Respondent.
The clash of rights demands a delicate balancing of interests approach which
is a fundamental postulate of constitutional law.1
Once again the Court is asked to draw a carefully drawn balance in the
incessant conflicts between rights and regulations, liberties and limitations, and
competing demands of the different segments of society. Here, we are
confronted with the need to strike a workable and viable equilibrium between a
constitutional mandate to maintain free, orderly, honest, peaceful and credible
elections, together with the aim of ensuring equal opportunity, time and space,
and the right to reply, including reasonable, equal rates therefor, for public
information campaigns and forums among candidates,2 on one hand, and the
imperatives of a republican and democratic state,3 together with its guaranteed
rights of suffrage,4freedom of speech and of the press,5 and the peoples right
to information,6 on the other.
In a nutshell, the present petitions may be seen as in search of the answer to
the question how does the Charter of a republican and democratic State
achieve a viable and acceptable balance between liberty, without which,
government becomes an unbearable tyrant, and authority, without which,
society becomes an intolerable and dangerous arrangement?
Assailed in these petitions are certain regulations promulgated by the
Commission on Elections (COMELEC) relative to the conduct of the 2013
national and local elections dealing with political advertisements. Specifically,
the petitions question the constitutionality of the limitations placed on aggregate
airtime allowed to candidates and political parties, as well as the requirements
incident thereto, such as the need to report the same, and the sanctions
imposed for violations.
The five (5) petitions before the Court put in issue the alleged unconstitutionality
of Section 9 (a) of COMELEC Resolution No. 9615 (Resolution) limiting the
broadcast and radio advertisements of candidates and political parties for
national election positions to an aggregate total of one hundred twenty (120)
minutes and one hundred eighty (180) minutes, respectively. They contend that
such restrictive regulation on allowable broadcast time violates freedom of the
press, impairs the peoples right to suffrage as well as their right to information
relative to the exercise of their right to choose who to elect during the
forthcoming elections.
The heart of the controversy revolves upon the proper interpretation of the
limitation on the number of minutes that candidates may use for television and
radio advertisements, as provided in Section 6 of Republic Act No. 9006 (R.A.
No. 9006), otherwise known as the Fair Election Act. Pertinent portions of said
provision state, thus:ChanRoblesVirtualawlibrary
Sec. 6. Equal Access to Media Time and Space. - All registered parties and
bona fide candidates shall have equal access to media time and space. The
following guidelines may be amplified on by the COMELEC:
x x x x
6.2 (a) Each bona fide candidate or registered political party for a nationally
elective office shall be entitled to not more than one hundred twenty (120)
minutes of television advertisement and one hundred eighty (180) minutes of
radio advertisement whether by purchase or donation.
b. Each bona fide candidate or registered political party for a locally elective
office shall be entitled to not more than sixty (60) minutes of television
advertisement and ninety (90) minutes of radio advertisement whether by
purchase or donation.
For this purpose, the COMELEC shall require any broadcast station or entity to
submit to the COMELEC a copy of its broadcast logs and certificates of
performance for the review and verification of the frequency, date, time and
duration of advertisements broadcast for any candidate or political party.
During the previous elections of May 14, 2007 and May 10, 2010, COMELEC
issued Resolutions implementing and interpreting Section 6 of R.A. No. 9006,
regarding airtime limitations, to mean that a candidate is entitled to the
aforestated number of minutes per station.7 For the May 2013 elections,
however, respondent COMELEC promulgated Resolution No. 9615 dated
January 15, 2013, changing the interpretation of said candidates' and political
parties' airtime limitation for political campaigns or advertisements from a per
station basis, to a total aggregate basis.
Petitioners ABS-CBN Corporation (ABS-CBN), ABC Development Corporation
(ABC), GMA Network, Incorporated (GMA), Manila Broadcasting Company, Inc.
(MBC), Newsounds Broadcasting Network, Inc. (NBN), and Radio Mindanao
Network, Inc. (RMN) are owners/operators of radio and television networks in
the Philippines, while petitioner Kapisanan ng mga Brodkaster ng Pilipinas
(KBP) is the national organization of broadcasting companies in the Philippines
representing operators of radio and television stations and said stations
themselves. They sent their respective letters to the COMELEC questioning
the provisions of the aforementioned Resolution, thus, the COMELEC held
public hearings. Thereafter, on February 1, 2013, respondent issued
Resolution No. 9631 amending provisions of Resolution No.
9615. Nevertheless, petitioners still found the provisions objectionable and
oppressive, hence, the present petitions.
All of the petitioners assail the following provisions of the
Resolution:ChanRoblesVirtualawlibrary
a) Section 7 (d),8 which provides for a penalty of suspension or revocation of an
offender's franchise or permit, imposes criminal liability against broadcasting
entities and their officers in the event they sell airtime in excess of the size,
duration, or frequency authorized in the new rules;
b) Section 9 (a),9 which provides for an aggregate total airtime
instead of the previous per station airtime for political campaigns or
advertisements, and also required prior COMELEC approval for candidates'
television and radio guestings and appearances; and
c) Section 14,10 which provides for a candidate's right to reply.
In addition, petitioner ABC also questions Section 1 (4)11 thereof, which defines
the term political advertisement or election propaganda, while petitioner
GMA further assails Section 35,12 which states that any violation of said Rules
shall constitute an election offense.
On March 15, 2013, Senator Alan Peter S. Cayetano (Petitioner-Intervenor)
filed a Motion for Leave to Intervene and to File and Admit the Petition-in-
Intervention, which was granted by the Court per its Resolution dated March 19,
2013. Petitioner-Intervenor also assails Section 9 (a) of the Resolution changing
the interpretation of candidates' and political parties' airtime limitation for
political campaigns or advertisements from a per station basis, to a total
aggregate basis.
Petitioners allege that Resolutions No. 9615 and 9631, amending the earlier
Resolution, are unconstitutional and issued without jurisdiction or with grave
abuse of discretion amounting to lack or excess of jurisdiction, for the reasons
set forth hereunder.
Petitioners posit that Section 9 (a) of the assailed Resolution provides for a very
restrictive aggregate airtime limit and a vague meaning for a proper
computation of aggregate total airtime, and violates the equal protection
guarantee, thereby defeating the intent and purpose of R.A. No. 9006.
Petitioners contend that Section 9 (a), which imposes a notice requirement, is
vague and infringes on the constitutionally protected freedom of speech, of the
press and of expression, and on the right of people to be informed on matters of
public concern
Also, Section 9 (a) is a cruel and oppressive regulation as it imposes an
unreasonable and almost impossible burden on broadcast mass media of
monitoring a candidate's or political party's aggregate airtime, otherwise, it may
incur administrative and criminal liability.
Further, petitioners claim that Section 7 (d) is null and void for unlawfully
criminalizing acts not prohibited and penalized as criminal offenses by R.A. No.
9006.
Section 14 of Resolution No. 9615, providing for a candidate's or political party's
right to reply, is likewise assailed to be unconstitutional for being an improper
exercise of the COMELEC's regulatory powers; for constituting prior restraint
and infringing petitioners' freedom of expression, speech and the press; and for
being violative of the equal protection guarantee.
In addition to the foregoing, petitioner GMA further argues that the Resolution
was promulgated without public consultations, in violation of petitioners' right to
due process. Petitioner ABC also avers that the Resolution's definition of the
terms political advertisement and election propaganda suffers from
overbreadth, thereby producing a chilling effect, constituting prior restraint.
On the other hand, respondent posits in its Comment and Opposition13 dated
March 8, 2013, that the petition should be denied based on the following
reasons:ChanRoblesVirtualawlibrary
Respondent contends that the remedies of certiorari and prohibition are not
available to petitioners, because the writ of certiorari is only available against
the COMELEC's adjudicatory or quasi-judicial powers, while the writ of
prohibition only lies against the exercise of judicial, quasi-judicial or ministerial
functions. Said writs do not lie against the COMELECs administrative or rule-
making powers.
Respondent likewise alleges that petitioners do not have locus standi, as the
constitutional rights and freedoms they enumerate are not personal to them,
rather, they belong to candidates, political parties and the Filipino electorate in
general, as the limitations are imposed on candidates, not on media outlets. It
argues that petitioners' alleged risk of exposure to criminal liability is insufficient
to give them legal standing as said fear of injury is highly speculative and
contingent on a future act.
Respondent then parries petitioners' attack on the alleged infirmities of the
Resolution's provisions.
Respondent maintains that the per candidate rule or total aggregate airtime limit
is in accordance with R.A. No. 9006 as this would truly give life to the
constitutional objective to equalize access to media during elections. It sees
this as a more effective way of levelling the playing field between
candidates/political parties with enormous resources and those without
much. Moreover, the Comelecs issuance of the assailed Resolution is
pursuant to Section 4, Article IX (C) of the Constitution which vests on the
Comelec the power to supervise and regulate, during election periods,
transportation and other public utilities, as well as mass media, to
wit:ChanRoblesVirtualawlibrary
Sec. 4. The Commission may, during the election period, supervise or regulate
the enjoyment or utilization of all franchises or permits for the operation of
transportation and other public utilities, media of communication or information,
all grants, special privileges, or concessions granted by the Government or any
subdivision, agency, or instrumentality thereof, including any government-
owned or controlled corporation or its subsidiary. Such supervision or
regulation shall aim to ensure equal opportunity, and 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.
This being the case, then the Resolutions cannot be said to have been issued
with grave abuse of discretion amounting to lack of jurisdiction.
Next, respondent claims that the provisions are not vague because the assailed
Resolutions have given clear and adequate mechanisms to protect broadcast
stations from potential liability arising from a candidate's or party's violation of
airtime limits by putting in the proviso that the station may require buyer to
warrant under oath that such purchase [of airtime] is not in excess of size,
duration or frequency authorized by law or these rules. Furthermore, words
should be understood in the sense that they have in common usage, and
should be given their ordinary meaning. Thus, in the provision for the right to
reply, charges against candidates or parties must be understood in the
ordinary sense, referring to accusations or criticisms.
Respondent also sees no prior restraint in the provisions requiring notice to the
Comelec for appearances or guestings of candidates in bona fide news
broadcasts. It points out that the fact that notice may be given 24 hours after
first broadcast only proves that the mechanism is for monitoring purposes only,
not for censorship. Further, respondent argues, that for there to be prior
restraint, official governmental restrictions on the press or other forms of
expression must be done in advance of actual publication or
dissemination. Moreover, petitioners are only required to inform the Comelec of
candidates'/parties' guestings, but there is no regulation as to the content of the
news or the expressions in news interviews or news
documentaries. Respondent then emphasized that the Supreme Court has
held that freedom of speech and the press may be limited in light of the duty of
the Comelec to ensure equal access to opportunities for public service.
With regard to the right to reply provision, respondent also does not consider it
as restrictive of the airing of bona fide news broadcasts. More importantly, it
stressed, the right to reply is enshrined in the Constitution, and the assailed
Resolutions provide that said right can only be had after going through
administrative due process. The provision was also merely lifted from Section
10 of R.A. No. 9006, hence, petitioner ABC is actually attacking the
constitutionality of R.A. No. 9006, which cannot be done through a collateral
attack.
Next, respondent counters that there is no merit to ABC's claim that the
Resolutions' definition of political advertisement or election propaganda On substantive issues, GMA first argues that the questioned Resolutions are
suffers from overbreadth, as the extent or scope of what falls under said terms
is clearly stated in Section 1 (4) of Resolution No. 9615.
It is also respondent's view that the nationwide aggregate total airtime does not
violate the equal protection clause, because it does not make any substantial
distinctions between national and regional and/or local broadcast stations, and
even without the aggregate total airtime rule, candidates and parties are likely
to be more inclined to advertise in national broadcast stations.
Respondent likewise sees no merit in petitioners' claim that the Resolutions
amount to taking of private property without just compensation. Respondent
emphasizes that radio and television broadcasting companies do not own the
airwaves and frequencies through which they transmit broadcast signals; they
are merely given the temporary privilege to use the same. Since they are
merely enjoying a privilege, the same may be reasonably burdened with some
form of public service, in this case, to provide candidates with the opportunity to
reply to charges aired against them.
Lastly, respondent contends that the public consultation requirement does not
apply to constitutional commissions such as the Comelec, pursuant to Section
1, Chapter I, Book VII of the Administrative Code of 1987. Indeed, Section 9,
Chapter II, Book VII of said Code provides, thus:ChanRoblesVirtualawlibrary
Section 9. Public Participation. - (1) If not otherwise required by law, an agency
shall, as far as practicable, publish or circulate notices of proposed rules and
afford interested parties the opportunity to submit their views prior to the
adoption of any rule.
However, Section 1, Chapter 1, Book VII of said Code clearly
provides:ChanRoblesVirtualawlibrary
Section 1. Scope. - This Book shall be applicable to all agencies as defined in
the next succeeding section, except the Congress, the Judiciary, the
Constitutional Commissions, military establishments in all matters relating
exclusively to Armed Forces personnel, the Board of Pardons and Parole, and
state universities and colleges.
Nevertheless, even if public participation is not required, respondent still
conducted a meeting with representatives of the KBP and various media outfits
on December 26, 2012, almost a month before the issuance of Resolution No.
9615.
On April 2, 2013, petitioner GMA filed its Reply,14 where it advanced the
following counter-arguments:ChanRoblesVirtualawlibrary
According to GMA, a petition for certiorari is the proper remedy to question the
herein assailed Resolutions, which should be considered as a decision, order
or ruling of the Commission as mentioned in Section 1, Rule 37 of the
COMELEC Rules of Procedure which provides:ChanRoblesVirtualawlibrary
Section 1. Petition for Certiorari; and Time to File. - Unless otherwise provided
by law, or by any specific provisions in these Rules, any decision, order or
ruling of the Commission may be brought to the Supreme Court on certiorari by
the aggrieved party within thirty (30) days from its promulgation.
GMA further stressed that this case involves national interest, and the urgency
of the matter justifies its resort to the remedy of a petition for certiorari.
Therefore, GMA disagrees with the COMELEC's position that the proper
remedy is a petition for declaratory relief because such action only asks the
court to make a proper interpretation of the rights of parties under a statute or
regulation. Such a petition does not nullify the assailed statute or regulation, or
grant injunctive relief, which petitioners are praying for in their petition. Thus,
GMA maintains that a petition for certiorari is the proper remedy.
GMA further denies that it is making a collateral attack on the Fair Election Act,
as it is not attacking said law. GMA points out that it has stated in its petition
that the law in fact allows the sale or donation of airtime for political
advertisements and does not impose criminal liability against radio and
television stations. What it is assailing is the COMELEC's erroneous
interpretation of the law's provisions by declaring such sale and/or donation of
airtime unlawful, which is contrary to the purpose of the Fair Election Act.
GMA then claims that it has legal standing to bring the present suit
because:ChanRoblesVirtualawlibrary
x x x First, it has personally suffered a threatened injury in the form of risk of
criminal liability because of the alleged unconstitutional and unlawful conduct of
respondent COMELEC in expanding what was provided for in R.A. No.
9006. Second, the injury is traceable to the challenged action of respondent
COMELEC, that is, the issuance of the assailed Resolutions. Third, the injury is
likely to be redressed by the remedy sought in petitioner GMA's Petition, among
others, for the Honorable Court to nullify the challenged pertinent provisions of
the assailed Resolutions.15cralawred
contrary to the objective and purpose of the Fair Election Act. It points out that
the Fair Election Act even repealed the political ad ban found in the earlier law,
R.A. No. 6646. The Fair Election Act also speaks of equal opportunity and
equal access, but said law never mentioned equalizing the economic station
of the rich and the poor, as a declared policy. Furthermore, in its opinion, the
supposed correlation between candidates' expenditures for TV ads and actually
winning the elections, is a mere illusion, as there are other various factors
responsible for a candidate's winning the election. GMA then cites portions of
the deliberations of the Bicameral Conference Committee on the bills that led to
the enactment of the Fair Election Act, and alleges that this shows the
legislative intent that airtime allocation should be on a per station basis. Thus,
GMA claims it was arbitrary and a grave abuse of discretion for the COMELEC
to issue the present Resolutions imposing airtime limitations on an aggregate
total basis.
It is likewise insisted by GMA that the assailed Resolutions impose an
unconstitutional burden on them, because their failure to strictly monitor the
duration of total airtime that each candidate has purchased even from other
stations would expose their officials to criminal liability and risk losing the
station's good reputation and goodwill, as well as its franchise. It argues that
the wordings of the Resolutions belie the COMELEC's claim that petitioners
would only incur liability if they knowingly sell airtime beyond the limits
imposed by the Resolutions, because the element of knowledge is clearly
absent from the provisions thereof. This makes the provisions have the nature
of malum prohibitum.
Next, GMA also says that the application of the aggregate airtime limit
constitutes prior restraint and is unconstitutional, opining that [t]he reviewing
power of respondent COMELEC and its sole judgment of a news event as a
political advertisement are so pervasive under the assailed Resolutions, and
provoke the distastes or chilling effect of prior restraint16 as even a legitimate
exercise of a constitutional right might expose it to legal sanction. Thus, the
governmental interest of leveling the playing field between rich and poor
candidates cannot justify the restriction on the freedoms of expression, speech
and of the press.
On the issue of lack of prior public participation, GMA cites Section 82 of the
Omnibus Election Code, pertinent portions of which provide,
thus:ChanRoblesVirtualawlibrary
Section 82. Lawful election propaganda. - Lawful election propaganda shall
include:
xxxx
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.
There having been no prior public consultation held, GMA contends that the
COMELEC is guilty of depriving petitioners of its right to due process of law.
GMA then concludes that it is also entitled to a temporary restraining order,
because the implementation of the Resolutions in question will cause grave and
irreparable damage to it by disrupting and emasculating its mandate to provide
television and radio services to the public, and by exposing it to the risk of
incurring criminal and administrative liability by requiring it to perform the
impossible task of surveillance and monitoring, or the broadcasts of other radio
and television stations.
Thereafter, on April 4, 2013, the COMELEC, through the Office of the Solicitor
General (OSG), filed a Supplemental Comment and Opposition17 where it
further expounded on the legislative intent behind the Fair Election Act, also
quoting portions of the deliberations of the Bicameral Conference Committee,
allegedly adopting the Senate Bill version setting the computation of airtime
limits on a per candidate, not per station, basis. Thus, as enacted into law, the
wordings of Section 6 of the Fair Election Act shows that the airtime limit is
imposed on a per candidate basis, rather than on a per station
basis. Furthermore, the COMELEC states that petitioner-intervenor Senator
Cayetano is wrong in arguing that there should be empirical data to support the
need to change the computation of airtime limits from a per station basis to a
per candidate basis, because nothing in law obligates the COMELEC to support
its Resolutions with empirical data, as said airtime limit was a policy decision
dictated by the legislature itself, which had the necessary empirical and other
data upon which to base said policy decision.
The COMELEC then points out that Section 2 (7),18 Article IX (C) of the
Constitution empowers it to recommend to Congress effective measures to
minimize election spending and in furtherance of such constitutional power, the
COMELEC issued the questioned Resolutions, in faithful implementation of the
legislative intent and objectives of the Fair Election Act.
The COMELEC also dismisses Senator Cayetano's fears that unauthorized or
inadvertent inclusion of his name, initial, image, brand, logo, insignia and/or
symbol in tandem advertisements will be charged against his airtime limits by
pointing out that what will be counted against a candidate's airtime and
expenditures are those advertisements that have been paid for or donated to
them to which the candidate has given consent.
With regard to the attack that the total aggregate airtime limit constitutes prior
restraint or undue abridgement of the freedom of speech and expression, the
COMELEC counters that the Resolutions enjoy constitutional and
congressional imprimatur. It is the Constitution itself that imposes the restriction
on the freedoms of speech and expression, during election period, to promote
an important and significant governmental interest, which is to equalize, as far
as practicable, the situation of rich and poor candidates by preventing the
former from enjoying the undue advantage offered by huge campaign 'war
chests.'19cralawred
Lastly, the COMELEC also emphasizes that there is no impairment of the
people's right to information on matters of public concern, because in this case,
the COMELEC is not withholding access to any public record.
On April 16, 2013, this Court issued a Temporary Restraining Order20 (TRO) in
view of the urgency involved and to prevent irreparable injury that may be
caused to the petitioners if respondent COMELEC is not enjoined from
implementing Resolution No. 9615.
On April 19, 2013 respondent filed an Urgent Motion to Lift Temporary
Restraining Order and Motion for Early Resolution of the Consolidated
Petitions.21cralawred
On May 8, 2013, petitioners ABS-CBN and the KBP filed its
Opposition/Comment22 to the said Motion. Not long after, ABC followed suit
and filed its own Opposition to the Motion23 filed by the respondent.
In the interim, respondent filed a Second Supplemental Comment and
Opposition24 dated April 8, 2013.
In the Second Supplemental Comment and Opposition, respondent delved on
points which were not previously discussed in its earlier Comment and
Supplemental Comment, particularly those raised in the petition filed by
petitioner ABS-CBN and KBP.
Respondent maintains that certiorari in not the proper remedy to question the
Constitutionality of the assailed Resolutions and that petitioners ABS-CBN and
KBP have no locus standi to file the present petition.
Respondent posits that contrary to the contention of petitioners, the legislative
history of R.A. No. 9006 conclusively shows that congress intended the airtime
limits to be computed on a per candidate and not on a per station basis. In
addition, the legal duty of monitoring lies with the COMELEC. Broadcast
stations are merely required to submit certain documents to aid the COMELEC
in ensuring that candidates are not sold airtime in excess of the allowed limits.
Also, as discussed in the earlier Comment, the prior notice requirement is a
mechanism designed to inform the COMELEC of the appearances or guesting
of candidates in bona fide news broadcasts. It is for monitoring purposes only,
not censorship. It does not control the subject matter of news broadcasts in
anyway. Neither does it prevent media outlets from covering candidates in
news interviews, news events, and news documentaries, nor prevent the
candidates from appearing thereon.
As for the right to reply, respondent insists that the right to reply provision
cannot be considered a prior restraint on the freedoms of expression, speech
and the press, as it does not in any way restrict the airing of bona fide new
broadcasts. Media entities are free to report any news event, even if it should
turn out to be unfavourable to a candidate or party. The assailed Resolutions
merely give the candidate or party the right to reply to such charges published
or aired against them in news broadcasts.
Moreover, respondent contends that the imposition of the penalty of suspension
and revocation of franchise or permit for the sale or donation of airtime beyond
the allowable limits is sanctioned by the Omnibus Election Code.
Meanwhile, RMN filed its Petition on April 8, 2013. On June 4, 2013, the Court
issued a Resolution25consolidating the case with the rest of the petitions and
requiring respondent to comment thereon.
On October 10, 2013, respondent filed its Third Supplemental Comment and
Opposition.26 Therein, respondent stated that the petition filed by RMN repeats
the issues that were raised in the previous petitions. Respondent, likewise,
reiterated its arguments that certiorari in not the proper remedy to question the
assailed resolutions and that RMN has no locus standi to file the present
petition. Respondent maintains that the arguments raised by RMN, like those
raised by the other petitioners are without merit and that RMN is not entitled to
the injunctive relief sought.
The petition is partly meritorious.
At the outset, although the subject of the present petitions are Resolutions
promulgated by the COMELEC relative to the conduct of the 2013 national and
local elections, nevertheless the issues raised by the petitioners have not been
rendered moot and academic by the conclusion of the 2013
elections. Considering that the matters elevated to the Court for resolution are
susceptible to repetition in the conduct of future electoral exercises, these
issues will be resolved in the present action.
PROCEDURAL ASPECTS
Matters of procedure and technicalities normally take a backseat when issues
of substantial and transcendental importance are presented before the Court.
So the Court does again in this particular case.
Proper Remedy
Respondent claims that certiorari and prohibition are not the proper remedies
that petitioners have taken to question the assailed Resolutions of the Comelec.
Technically, respondent may have a point. However, considering the very
important and pivotal issues raised, and the limited time, such technicality
should not deter the Court from having to make the final and definitive
pronouncement that everyone else depends for enlightenment and guidance.
[T]his Court has in the past seen fit to step in and resolve petitions despite their
being the subject of an improper remedy, in view of the public importance of the
issues raised therein.27cralawred
It has been in the past, we do so again.
Locus Standi
Every time a constitutional issue is brought before the Court, the issue of locus
standi is raised to question the personality of the parties invoking the Courts
jurisdiction. The Court has routinely made reference to a liberalized stance
when it comes to petitions raising issues of transcendental importance to the
country. Invariably, after some discussions, the Court would eventually grant
standing.28cralawred
In this particular case, respondent also questions the standing of the petitioners.
We rule for the petitioners. For petitioner-intervenor Senator Cayetano, he
undoubtedly has standing since he is a candidate whose ability to reach out to
the electorate is impacted by the assailed Resolutions.
For the broadcast companies, they similarly have the standing in view of the
direct injury they may suffer relative to their ability to carry out their tasks of
disseminating information because of the burdens imposed on them.
Nevertheless, even in regard to the broadcast companies invoking the injury
that may be caused to their customers or the public those who buy
advertisements and the people who rely on their broadcasts what the Court
said in White Light Corporation v. City of Manila29 may dispose of the question.
In that case, there was an issue as to whether owners of establishments
offering wash-up rates may have the requisite standing on behalf of their
patrons equal protection claims relative to an ordinance of the City of Manila
which prohibited short-time or wash-up accommodation in motels and similar
establishments. The Court essentially condensed the issue in this manner:
[T]he crux of the matter is whether or not these establishments have the
requisite standing to plead for protection of their patrons equal protection
rights.30 The Court then went on to hold:ChanRoblesVirtualawlibrary
Standing or locus standi is the ability of a party to demonstrate to the court
sufficient connection to and harm from the law or action challenged to support
that partys participation in the case. More importantly, the doctrine of standing
is built on the principle of separation of powers, sparing as it does unnecessary
interference or invalidation by the judicial branch of the actions rendered by its
co-equal branches of government.
The requirement of standing is a core component of the judicial system derived
directly from the Constitution. The constitutional component of standing doctrine
incorporates concepts which concededly are not susceptible of precise
definition. In this jurisdiction, the extancy of a direct and personal interest
presents the most obvious cause, as well as the standard test for a petitioners
standing. In a similar vein, the United States Supreme Court reviewed and
elaborated on the meaning of the three constitutional standing requirements of
injury, causation, and redressability in Allen v. Wright.
Nonetheless, the general rules on standing admit of several exceptions such as
the overbreadth doctrine, taxpayer suits, third party standing and, especially in
the Philippines, the doctrine of transcendental importance.
For this particular set of facts, the concept of third party standing as an
exception and the overbreadth doctrine are appropriate. x x x
xxxx
American jurisprudence is replete with examples where parties-in-interest were
allowed standing to advocate or invoke the fundamental due process or equal
protection claims of other persons or classes of persons injured by state action.
xxx
xxxx
Assuming arguendo that petitioners do not have a relationship with their patrons
for the former to assert the rights of the latter, the overbreadth doctrine comes
into play. In overbreadth analysis, challengers to government action are in
effect permitted to raise the rights of third parties. Generally applied to statutes
infringing on the freedom of speech, the overbreadth doctrine applies when a
statute needlessly restrains even constitutionally guaranteed rights. In this
case, the petitioners claim that the Ordinance makes a sweeping intrusion into
the right to liberty of their clients. We can see that based on the allegations in
the petition, the Ordinance suffers from overbreadth.
We thus recognize that the petitioners have a right to assert the constitutional
rights of their clients to patronize their establishments for a wash-rate time
frame.31
If in regard to commercial undertakings, the owners may have the right to assert
a constitutional right of their clients, with more reason should establishments
which publish and broadcast have the standing to assert the constitutional
freedom of speech of candidates and of the right to information of the public,
not to speak of their own freedom of the press. So, we uphold the standing of
petitioners on that basis.
SUBSTANTIVE ASPECTS
Aggregate Time Limits
COMELEC Resolution No. 9615 introduced a radical departure from the
previous COMELEC resolutions relative to the airtime limitations on political
advertisements. This essentially consists in computing the airtime on
an aggregate basis involving all the media of broadcast communications
compared to the past where it was done on a per station basis. Thus, it
becomes immediately obvious that there was effected a drastic reduction of the
allowable minutes within which candidates and political parties would be able to
campaign through the air. The question is accordingly whether this is within the
power of the Comelec to do or not. The Court holds that it is not within the
power of the Comelec to do so.
a. Past elections and airtime limits
The authority of the COMELEC to impose airtime limits directly flows from the
Fair Election Act (R.A. No. 9006 [2001])32 one hundred (120) minutes of
television advertisement and one-hundred eighty (180) minutes for radio
advertisement. For the 2004 elections, the respondent COMELEC promulgated
Resolution No. 652033 implementing the airtime limits by applying said limitation
on a per stationbasis.34 Such manner of determining airtime limits was likewise
adopted for the 2007 elections, through Resolution No. 7767.35 In the 2010
elections, under Resolution No. 8758,36 the same was again adopted. But for
the 2013 elections, the COMELEC, through Resolution No. 9615, as amended
by Resolution No. 9631, chose to aggregate the total broadcast time among
the different broadcast media, thus:ChanRoblesVirtualawlibrary
Section 9. Requirements and/or Limitations on the Use of Election Propaganda
through Mass Media. All parties and bona fide candidates shall have equal
access to media time and space for their election propaganda during the
campaign period subject to the following requirements and/or
limitations:ChanRoblesVirtualawlibrary
a. Broadcast Election Propaganda
The duration of an air time that a candidate, or party may use for their
broadcast advertisements or election propaganda shall be, as follows:
For Not more than an aggregate total of one hundred
Candidates/Registered (120) minutes of television advertising, whether
Political parties for a appearing on national, regional, or local, free or cable
National Elective television, and one hundred eighty (180) minutes of
Position radio advertising, whether airing on national,
regional, or local radio, whether by purchase or
donation
For Not more than an aggregate total of sixty (60)
Candidates/Registered minutes of television advertising, whether appearing
Political parties for a Localon national, regional, or local, free or cable television,
Elective Position and ninety (90) minutes of radio advertising, whether
airing on national, regional, or local radio, whether by
purchase or donation.
In cases where two or more candidates or parties whose names, initials,
images, brands, logos, insignias, color motifs, symbols, or forms of graphical
representations are displayed, exhibited, used, or mentioned together in the
broadcast election propaganda or advertisements, the length of time during
which they appear or are being mentioned or promoted will be counted against
the airtime limits allotted for the said candidates or parties and the cost of the
said advertisement will likewise be considered as their expenditures, regardless
of whoever paid for the advertisements or to whom the said advertisements
were donated.
Corollarily, petitioner-intervenor, Senator Cayetano, alleges:
6.15. The change in the implementation of Section 6 of R.A. 9006 was
undertaken by respondent Comelec without consultation with the candidates for
the 2013 elections, affected parties such as media organizations, as well as the
general public. Worse, said change was put into effect without explaining the
basis therefor and without showing any data in support of such change.
Respondent Comelec merely maintained that such action is meant to level the
playing field between the moneyed candidates and those who dont have
enough resources, without particularizing the empirical data upon which such a
sweeping statement was based. This was evident in the public hearing held on
31 January 2013 where petitioner GMA, thru counsel, explained that no
empirical data on the excesses or abuses of broadcast media were brought to
the attention of the public by respondent Comelec, or even stated in the
Comelec Resolution No. 9615. Thus
xxxx
Chairman Brillantes
So if we can regulate and amplify, we may amplify meaning we can expand if
we want to. But the authority of the Commission is if we do not want to amplify
and we think that the 120 or 180 is okay we cannot be compelled to amplify. We
think that 120 or 180 is okay, is enough.
Atty. Lucila
But with due respect Your Honor, I think the basis of the resolution is found in
the law and the law has been enterpreted (sic) before in 2010 to be 120 per
station, so why the change, your Honor?
Chairman Brillantes
No, the change is not there, the right to amplify is with the Commission on
Elections. Nobody can encroach in our right to amplify. Now, if in 2010 the
Commission felt that per station or per network is the rule then that is the
prerogative of the Commission then they could amplify it to expand it. If the
current Commission feels that 120 is enough for the particular medium like TV
and 180 for radio, that is our prerogative. How can you encroach and what is
unconstitutional about it?
Atty. Lucila
We are not questioning the authority of the Honorable Commission to regulate
Your Honor, we are just raising our concern on the manner of regulation
because as it is right now, there is a changing mode or sentiments of the
Commission and the public has the right to know, was there rampant
overspending on political ads in 2010, we were not informed Your Honor. Was
there abuse of the media in 2010, we were not informed Your Honor. So we
would like to know what is the basis of the sudden change in this
limitation, Your Honor. . And law must have a consistent interpretation that
[is]our position, Your Honor.
Chairman Brillantes
But my initial interpretation, this is personal to this representation counsel, is
that if the Constitution allows us to regulate and then it gives us the prerogative
to amplify then the prerogative to amplify you should leave this to the discretion
of the Commission. Which means if previous Commissions felt that expanding it
should be part of our authority that was a valid exercise if we reduce it to what
is provided for by law which is 120-180 per medium, TV, radio, that is also
within the law and that is still within our prerogative as provided for by the
Constitution. If you say we have to expose the candidates to the public then I
think the reaction should come, the negative reaction should come from the
candidates not from the media, unless you have some interest to protect
directly. Is there any interest on the part of the media to expand it?
Atty. Lucila
Well, our interest Your Honor is to participate in this election Your Honor and
we have been constantly (sic) as the resolution says and even in the part
involved because you will be getting some affirmative action time coming from
the media itself and Comelec time coming from the media itself. So we could
like to be both involved in the whole process of the exercise of the freedom of
suffrage Your Honor.
Chairman Brillantes
Yes, but the very essence of the Constitutional provision as well as the
provision of 9006 is actually to level the playing field. That should be the
paramount consideration. If we allow everybody to make use of all their time
and all radio time and TV time then there will be practically unlimited use of the
mass media....
Atty. Lucila
Was there in 2010 Your Honor, was there any data to support that there was an
unlimited and abuse of a (sic) political ads in the mass media that became the
basis of this change in interpretation Your Honor? We would like to know about
it Your Honor.
Chairman Brillantes
What do you think there was no abuse in 2010?
Atty. Lucila
As far as the network is concern, there was none Your Honor.
Chairman Brillantes
There was none......
Atty. Lucila
Im sorry, Your Honor...
Chairman Brillantes
Yes, there was no abuse, okay, but there was some advantage given to those
who took... who had the more moneyed candidates took advantage of it.
Atty. Lucila
But that is the fact in life, Your Honor there are poor candidates, there are rich
candidates. No amount of law or regulation can even level the playing filed
(sic) as far as the economic station in life of the candidates are concern (sic)
our Honor.38
Given the foregoing observations about what happened during the hearing,
Petitioner-Intervenor went on to allege that:ChanRoblesVirtualawlibrary
6.16. Without any empirical data upon which to base the regulatory measures in
Section 9 (a), respondent Comelec arbitrarily changed the rule from per
station basis to aggregate airtime basis. Indeed, no credence should be
given to the cliched explanation of respondent Comelec (i.e. leveling the playing
field) in its published statements which in itself is a mere reiteration of the
rationale for the enactment of the political ad ban of Republic Act No. 6646, and
which has likewise been foisted when said political ad ban was lifted by R.A.
9006.39
From the foregoing, it does appear that the Comelec did not have any other
basis for coming up with a new manner of determining allowable time limits
except its own idea as to what should be the maximum number of minutes
based on its exercise of discretion as to how to level the playing field. The same
could be encapsulized in the remark of the Comelec Chairman that if the
Constitution allows us to regulate and then it gives us the prerogative to
amplify then the prerogative to amplify you should leave this to the discretion
of the Commission.40cralawred
The Court could not agree with what appears as a nonchalant exercise of
discretion, as expounded anon.
COMELEC is duty bound to come up
with reasonable basis for changing the
interpretation and implementation of
the airtime limits
There is no question that the COMELEC is the office constitutionally and
statutorily authorized to enforce election laws but it cannot exercise its powers
without limitations or reasonable basis. It could not simply adopt measures or
regulations just because it feels that it is the right thing to do, in so far as it
might be concerned. It does have discretion, but such discretion is something
that must be exercised within the bounds and intent of the law. The COMELEC
is not free to simply change the rules especially if it has consistently interpreted
a legal provision in a particular manner in the past. If ever it has to change the
rules, the same must be properly explained with sufficient basis.
Based on the transcripts of the hearing conducted by the COMELEC after it had
already promulgated the Resolution, the respondent did not fully explain or
justify the change in computing the airtime allowed candidates and political
parties, except to make reference to the need to level the playing field. If the
per station basis was deemed enough to comply with that objective in the
past, why should it now be suddenly inadequate? And, the short answer to that
from the respondent, in a manner which smacks of overbearing exercise of
discretion, is that it is within the discretion of the COMELEC. As quoted in the
transcript, the right to amplify is with the COMELEC. Nobody can encroach in
our right to amplify. Now, if in 2010 the Commission felt that per station or per
network is the rule then that is the prerogative of the Commission then they
could amplify it to expand it. If the current Commission feels that 120 is enough
for the particular medium like TV and 180 for radio, that is our prerogative. How
can you encroach and what is unconstitutional about it?41cralawred
There is something basically wrong with that manner of explaining changes in
administrative rules. For one, it does not really provide a good basis for change.
For another, those affected by such rules must be given a better explanation
why the previous rules are no longer good enough. As the Court has said in one
case:ChanRoblesVirtualawlibrary
While stability in the law, particularly in the business field, is desirable, there is
no demand that the NTC slavishly follow precedent. However, we think it
essential, for the sake of clarity and intellectual honesty, that if an administrative
agency decides inconsistently with previous action, that it explain thoroughly
why a different result is warranted, or if need be, why the previous standards
should no longer apply or should be overturned. Such explanation is warranted
in order to sufficiently establish a decision as having rational basis. Any
inconsistent decision lacking thorough, ratiocination in support may be struck
down as being arbitrary. And any decision with absolutely nothing to support it
is a nullity.42
What the COMELEC came up with does not measure up to that level of
requirement and accountability which elevates administrative rules to the level
of respectability and acceptability. Those governed by administrative
regulations are entitled to a reasonable and rational basis for any changes in
those rules by which they are supposed to live by, especially if there is a radical
departure from the previous ones.
The COMELEC went beyond the
authority granted it by the law in
adopting aggregate basis in the
determination of allowable airtime
The law, which is the basis of the regulation subject of these petitions,
pertinently provides:ChanRoblesVirtualawlibrary
6.2. (a) Each bona fide candidate or registered political party for a nationally
elective office shall be entitled to not more than one hundred twenty (120)
minutes of television advertisement and one hundred eighty (180) minutes of
radio advertisement whether by purchase or donation.
(b) Each bona fide candidate or registered political party for a locally elective
office shall be entitled to not more than sixty (60) minutes of television
advertisement and ninety (90) minutes of radio advertisement whether by
purchase or donation; x x x
The law, on its face, does not justify a conclusion that the maximum allowable
airtime should be based on the totality of possible broadcast in all television or
radio stations. Senator Cayetano has called our attention to the legislative intent
relative to the airtime allowed that it should be on a per station
basis.43cralawred
This is further buttressed by the fact that the Fair Election Act (R.A. No. 9006)
actually repealed the previous provision, Section 11(b) of Republic Act No.
6646,44 which prohibited direct political advertisements the so-called political
ad ban. If under the previous law, no candidate was allowed to directly buy or
procure on his own his broadcast or print campaign advertisements, and that he
must get it through the COMELEC Time or COMELEC Space, R.A. No. 9006
relieved him or her from that restriction and allowed him or her to broadcast
time or print space subject to the limitations set out in the law. Congress, in
enacting R.A. No. 9006, felt that the previous law was not an effective and
efficient way of giving voice to the people. Noting the debilitating effects of the
previous law on the right of suffrage and Philippine democracy, Congress
decided to repeal such rule by enacting the Fair Election Act.
In regard to the enactment of the new law, taken in the context of the restrictive
nature of the previous law, the sponsorship speech of Senator Raul Roco is
enlightening:ChanRoblesVirtualawlibrary
The bill seeks to repeal Section 85 of the Omnibus Election Code and Sections
10 and 11 of RA 6646. In view of the importance of their appeal in connection
with the thrusts of the bill, I hereby quote these sections in
full:ChanRoblesVirtualawlibrary

SEC. 85. Prohibited forms of election propaganda. It shall be
unlawful:ChanRoblesVirtualawlibrary
(a) To print, publish, post or distribute any poster, pamphlet, circular, handbill,
or printed matter urging voters to vote for or against any candidate unless they
hear the names and addresses of the printed and payor as required in Section
84 hereof;
(b) To erect, put up, make use of, attach, float or display any billboard,
tinplate-poster, balloons and the like, of whatever size, shape, form or kind,
advertising for or against any candidate or political party;
(c) To purchase, manufacture, request, distribute or accept electoral
propaganda gadgets, such as pens, lighters, fans of whatever nature,
flashlights, athletic goods or materials, wallets, shirts, hats, bandannas,
matches, cigarettes and the like, except that campaign supporters
accompanying a candidate shall be allowed to wear hats and/or shirts or T-
shirts advertising a candidate;
(d) To show or display publicly any advertisement or propaganda for or
against any candidate by means of cinematography, audio-visual units or other
screen projections except telecasts which may be allowed as hereinafter
provided; and
(e) For any radio broadcasting or television station to sell or give free of
charge airtime for campaign and other political purposes except as authorized
in this Code under the rules and regulations promulgated by the Commission
pursuant thereto;
Any prohibited election propaganda gadget or advertisement shall be stopped,
confiscated or torn down by the representative of the Commission upon specific
authority of the Commission.
SEC. 10. Common Poster Areas. The Commission shall designate common
poster areas in strategic public places such as markets, barangay centers and
the like wherein candidates can post, display or exhibit election propaganda to
announce or further their candidacy.
Whenever feasible common billboards may be installed by the Commission
and/or non-partisan private or civic organizations which the Commission may
authorize whenever available, after due notice and hearing, in strategic areas
where it may readily be seen or read, with the heaviest pedestrian and/or
vehicular traffic in the city or municipality.
The space in such common poster areas or billboards shall be allocated free of
charge, if feasible, equitably and impartially among the candidates in the
province, city or municipality.
SEC. 11. 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 common poster areas and/or billboards provided in the immediately
preceding section, at the candidates 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) feet and not exceeding three
(3) feet by eight (8) 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; and
(b) For any newspapers, radio broadcasting or television station, or other
mass media, or any person making use of the mass media to sell or give for
free of charge print space or air time for campaign or other political purposes
except to the Commission as provided under Section 90 and 92 of Batas
Pambansa Blg. 881. Any mass media columnist, commentator, announcer or
personality who is a candidate for any elective public office shall take a leave of
absence from his work as such during the campaign.
The repeal of the provision on the Common Poster Area implements the strong
recommendations of the Commission on Elections during the hearings. It also
seeks to apply the doctrine enunciated by the Supreme Court in the case of Blo
Umpar Adiong vs. Commission on Elections, 207 SCRA 712, 31 March
1992. Here a unanimous Supreme Court ruled: The COMELECs prohibition
on the 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.
For the foregoing reasons, we commend to our colleagues the early passage of
Senate Bill No. 1742. In so doing, we move one step towards further ensuring
free, orderly, honest, peaceful and credible elections as mandated by the
Constitution.45
Given the foregoing background, it is therefore ineluctable to conclude that
Congress intended to provide a more expansive and liberal means by which the
candidates, political parties, citizens and other stake holders in the periodic
electoral exercise may be given a chance to fully explain and expound on their
candidacies and platforms of governance, and for the electorate to be given a
chance to know better the personalities behind the candidates. In this regard,
the media is also given a very important part in that undertaking of providing the
means by which the political exercise becomes an interactive process. All of
these would be undermined and frustrated with the kind of regulation that the
respondent came up with.
The respondent gave its own understanding of the import of the legislative
deliberations on the adoption of R.A. No. 9006 as
follows:ChanRoblesVirtualawlibrary
The legislative history of R.A. 9006 clearly shows that Congress intended to
impose the per candidate or political party aggregate total airtime limits on
political advertisements and election propaganda. This is evidenced by the
dropping of the per day per station language embodied in both versions of the
House of Representatives and Senate bills in favour of the each candidate
and not more than limitations now found in Section 6 of R.A. 9006.
The pertinent portions of House Bill No. 9000 and Senate Bill No. 1742 read as
follows:ChanRoblesVirtualawlibrary
House Bill No. 9000:
SEC. 4. Section 86 of the same Batas is hereby amended to read as follows:
Sec. 86. Regulation of Election Propaganda Through Mass Media.
xxx xxx xxx
A) The total airtime available to the candidate and political party, whether
by purchase or by donation, shall be limited to five (5) minutes per day in each
television, cable television and radio stations during the applicable
campaign period.
Senate Bill No. 1742:
SEC. 5. Equal Access to Media Space and Time. All registered parties and
bona fide candidates shall have equal access to media space and time. The
following guidelines may be amplified by the COMELEC.
xxx xxx xxx
2. The total airtime available for each registered party and bona fide
candidate whether by purchase or donation shall not exceed a total of one (1)
minute per day per television or radio station. (Emphasis supplied.)
As Section 6 of R.A. 9006 is presently worded, it can be clearly seen that the
legislature intended the aggregate airtime limits to be computed on per
candidate or party basis. Otherwise, if the legislature intended the computation
to be on per station basis, it could have left the original per day per station
formulation.46
The Court does not agree. It cannot bring itself to read the changes in the bill as
disclosing an intent that the COMELEC wants this Court to put on the final
language of the law. If anything, the change in language meant that the
computation must not be based on a per day basis for each television or radio
station. The same could not therefore lend itself to an understanding that the
total allowable time is to be done on an aggregate basis for all television or
radio stations.
Clearly, the respondent in this instance went beyond its legal mandate when it
provided for rules beyond what was contemplated by the law it is supposed to
implement. As we held in Lokin, Jr. v. Commission on Elections:47cralawred
The COMELEC, despite its role as the implementing arm of the Government in
the enforcement and administration of all laws and regulations relative to the
conduct of an election, has neither the authority nor the license to expand,
extend, or add anything to the law it seeks to implement thereby. The IRRs the
COMELEC issued for that purpose should always be in accord with the law to
be implemented, and should not override, supplant, or modify the law. It is basic
that the IRRs should remain consistent with the law they intend to carry out.
Indeed, administrative IRRs adopted by a particular department of the
Government under legislative authority must be in harmony with the provisions
of the law, and should be for the sole purpose of carrying the laws general
provisions into effect. The law itself cannot be expanded by such IRRs,
because an administrative agency cannot amend an act of Congress.48
In the case of Lokin, Jr., the COMELECs explanation that the Resolution then
in question did not add anything but merely reworded and rephrased the
statutory provision did not persuade the Court. With more reason here since the
COMELEC not only reworded or rephrased the statutory provision it
practically replaced it with its own idea of what the law should be, a matter that
certainly is not within its authority. As the Court said in Villegas v.
Subido:49cralawred
One last word. Nothing is better settled in the law than that a public official
exercises power, not rights. The government itself is merely an agency through
which the will of the state is expressed and enforced. Its officers therefore are
likewise agents entrusted with the responsibility of discharging its functions. As
such there is no presumption that they are empowered to act. There must be a
delegation of such authority, either express or implied. In the absence of a valid
grant, they are devoid of power. What they do suffers from a fatal infirmity. That
principle cannot be sufficiently stressed. In the appropriate language of Chief
Justice Hughes: It must be conceded that departmental zeal may not be
permitted to outrun the authority conferred by statute. Neither the high dignity
of the office nor the righteousness of the motive then is an acceptable
substitute. Otherwise the rule of law becomes a myth. Such an eventuality, we
must take all pains to avoid.50
So it was then. So does the rule still remains the same.
Section 9 (a) of COMELEC Resolution
No. 9615 on airtime limits also goes
against the constitutional guaranty of
freedom of expression, of speech
and of the press
The guaranty of freedom to speak is useless without the ability to communicate
and disseminate what is said. And where there is a need to reach a large
audience, the need to access the means and media for such dissemination
becomes critical. This is where the press and broadcast media come along. At
the same time, the right to speak and to reach out would not be meaningful if it
is just a token ability to be heard by a few. It must be coupled with substantially
reasonable means by which the communicator and the audience could
effectively interact. Section 9 (a) of COMELEC Resolution No. 9615, with its
adoption of the aggregate-based airtime limits unreasonably restricts the
guaranteed freedom of speech and of the press.
Political speech is one of the most important expressions protected by the
Fundamental Law. [F]reedom of speech, of expression, and of the press are at
the core of civil liberties and have to be protected at all costs for the sake of
democracy.51 Accordingly, the same must remain unfettered unless otherwise
justified by a compelling state interest.
In regard to limitations on political speech relative to other state interests, an
American case observed:ChanRoblesVirtualawlibrary
A restriction on the amount of money a person or group can spend on political
communication during a campaign necessarily reduces the quantity of
expression by restricting the number of issues discussed, the depth of their
exploration, and the size of the audience reached. This is because virtually
every means of communicating ideas in todays mass society requires the
expenditure of money. The distribution of the humblest handbill or leaflet entails
printing, paper, and circulation costs. Speeches and rallies generally
necessitate hiring a hall and publicizing the event. The electorates increasing
dependence on television, radio, and other mass media for news and
information has made these expensive modes of communication indispensable
instruments of effective political speech.
The expenditure limitations contained in the Act represent substantial, rather
than merely theoretical restraints on the quantity and diversity of political
speech. The $1,000 ceiling on spending relative to a clearly identified
candidate, 18 U.S.C. 608(e)(1) (1970 ed., Supp. IV), would appear to
exclude all citizens and groups except candidates, political parties, and the
institutional press from any significant use of the most effective modes of
communication. Although the Acts limitations on expenditures by campaign
organizations and political parties provide substantially greater room for
discussion and debate, they would have required restrictions in the scope of a
number of past congressional and Presidential campaigns and would operate to
constrain campaigning by candidates who raise sums in excess of the spending
ceiling.52
Section 9 (a) of COMELEC Resolution No. 9615 comes up with what is
challenged as being an unreasonable basis for determining the allowable air
time that candidates and political parties may avail of. Petitioner GMA came up
with its analysis of the practical effects of such a
regulation:ChanRoblesVirtualawlibrary
5.8. Given the reduction of a candidates airtime minutes in the New Rules,
petitioner GMA estimates that a national candidate will only have 120 minutes
to utilize for his political advertisements in television during the whole campaign
period of 88 days, or will only have 81.81 seconds per day TV exposure
allotment. If he chooses to place his political advertisements in the 3 major TV
networks in equal allocation, he will only have 27.27 seconds of airtime per
network per day. This barely translates to 1 advertisement spot on a 30-
second spot basis in television.
5.9. With a 20-hour programming per day and considering the limits of a
stations coverage, it will be difficult for 1 advertising spot to make a sensible
and feasible communication to the public, or in political propaganda, to make
known [a candidates] qualifications and stand on public issues.
5.10 If a candidate loads all of his 81.81 seconds per day in one network, this
will translate to barely three 30-second advertising spots in television on a daily
basis using the same assumptions above.
5.11 Based on the data from the 2012 Nielsen TV audience measurement in
Mega Manila, the commercial advertisements in television are viewed by
only 39.2% of the average total day household audience if such advertisements
are placed with petitioner GMA, the leading television network nationwide and
in Mega Manila. In effect, under the restrictive aggregate airtime limits in the
New Rules, the three 30-second political advertisements of a candidate in
petitioner GMA will only be communicated to barely 40% of the viewing
audience, not even the voting population, but only in Mega Manila, which is
defined by AGB Nielsen Philippines to cover Metro Manila and certain urban
areas in the provinces of Bulacan, Cavite, Laguna, Rizal, Batangas and
Pampanga. Consequently, given the voting population distribution and the
drastically reduced supply of airtime as a result of the New Rules aggregate
airtime limits, a national candidate will be forced to use all of his airtime for
political advertisements in television only in urban areas such as Mega Manila
as a political campaign tool to achieve maximum exposure.
5.12 To be sure, the people outside of Mega Manila or other urban areas
deserve to be informed of the candidates in the national elections, and the said
candidates also enjoy the right to be voted upon by these informed populace.53
The Court agrees. The assailed rule on aggregate-based airtime limits is
unreasonable and arbitrary as it unduly restricts and constrains the ability of
candidates and political parties to reach out and communicate with the people.
Here, the adverted reason for imposing the aggregate-based airtime limits
leveling the playing field does not constitute a compelling state interest which
would justify such a substantial restriction on the freedom of candidates and
political parties to communicate their ideas, philosophies, platforms and
programs of government. And, this is specially so in the absence of a clear-cut
basis for the imposition of such a prohibitive measure. In this particular
instance, what the COMELEC has done is analogous to letting a bird fly after
one has clipped its wings.
It is also particularly unreasonable and whimsical to adopt the aggregate-based
time limits on broadcast time when we consider that the Philippines is not only
composed of so many islands. There are also a lot of languages and dialects
spoken among the citizens across the country. Accordingly, for a national
candidate to really reach out to as many of the electorates as possible, then it
might also be necessary that he conveys his message through his
advertisements in languages and dialects that the people may more readily
understand and relate to. To add all of these airtimes in different dialects would
greatly hamper the ability of such candidate to express himself a form of
suppression of his political speech.
Respondent itself states that [t]elevision is arguably the most cost-effective
medium of dissemination. Even a slight increase in television exposure can
significantly boost a candidate's popularity, name recall and electability.54 If that
be so, then drastically curtailing the ability of a candidate to effectively reach out
to the electorate would unjustifiably curtail his freedom to speak as a means of
connecting with the people.
Finally on this matter, it is pertinent to quote what Justice Black wrote in his
concurring opinion in the landmark Pentagon Papers case: In the First
Amendment, the Founding Fathers gave the free press the protection it must
have to fulfill its essential role in our democracy. The press was to serve the
governed, not the governors. The Government's power to censor the press was
abolished so that the press would remain forever free to censure the
Government. The press was protected so that it could bare the secrets of
government and inform the people. Only a free and unrestrained press can
effectively expose deception in government.55cralawred
In the ultimate analysis, when the press is silenced, or otherwise muffled in its
undertaking of acting as a sounding board, the people ultimately would be the
victims.
Section 9 (a) of Resolution 9615 is
violative of the peoples
right to suffrage
Fundamental to the idea of a democratic and republican state is the right of the
people to determine their own destiny through the choice of leaders they may
have in government. Thus, the primordial importance of suffrage and the
concomitant right of the people to be adequately informed for the intelligent
exercise of such birthright. It was said that:ChanRoblesVirtualawlibrary
x x x As long as popular government is an end to be achieved and safeguarded,
suffrage, whatever may be the modality and form devised, must continue to be
the means by which the great reservoir of power must be emptied into the
receptacular agencies wrought by the people through their Constitution in the
interest of good government and the common weal. Republicanism, in so far as
it implies the adoption of a representative type of government, necessarily
points to the enfranchised citizen as a particle of popular sovereignty and as the
ultimate source of the established authority. He has a voice in his Government
and whenever possible it is the solemn duty of the judiciary, when called upon
to act in justifiable cases, to give it efficacy and not to stifle or frustrate it. This,
fundamentally, is the reason for the rule that ballots should be read and
appreciated, if not with utmost, with reasonable, liberality. x x x56
It has also been said that [c]ompetition in ideas and governmental policies is at
the core of our electoral process and of the First Amendment
freedoms.57 Candidates and political parties need adequate breathing space
including the means to disseminate their ideas. This could not be reasonably
addressed by the very restrictive manner by which the respondent implemented
the time limits in regard to political advertisements in the broadcast media.
Resolution No. 9615 needs
prior hearing before adoption
The COMELEC promulgated Resolution No. 9615 on January 15, 2013 then
came up with a public hearing on January 31, 2013 to explain what it had done,
particularly on the aggregate-based air time limits. This circumstance also
renders the new regulation, particularly on the adoption of the aggregate-
based airtime limit, questionable. It must not be overlooked that the new
Resolution introduced a radical change in the manner in which the rules on
airtime for political advertisements are to be reckoned. As such there is a need
for adequate and effective means by which they may be adopted, disseminated
and implemented. In this regard, it is not enough that they be published or
explained after they have been adopted.
While it is true that the COMELEC is an independent office and not a mere
administrative agency under the Executive Department, rules which apply to the
latter must also be deemed to similarly apply to the former, not as a matter of
administrative convenience but as a dictate of due process. And this assumes
greater significance considering the important and pivotal role that the
COMELEC plays in the life of the nation. Thus, whatever might have been said
in Commissioner of Internal Revenue v. Court of Appeals,58 should also
apply mutatis mutandis to the COMELEC when it comes to promulgating rules
and regulations which adversely affect, or impose a heavy and substantial
burden on, the citizenry in a matter that implicates the very nature of
government we have adopted:ChanRoblesVirtualawlibrary
It should be understandable that when an administrative rule is merely
interpretative in nature, its applicability needs nothing further than its bare
issuance for it gives no real consequence more than what the law itself has
already prescribed. When, upon the other hand, the administrative rule goes
beyond merely providing for the means that can facilitate or render least
cumbersome the implementation of the law but substantially adds to or
increases the burden of those governed, it behooves the agency to accord at
least to those directly affected a chance to be heard, and thereafter to be duly
informed, before that new issuance is given the force and effect of law.
A reading of RMC 3793, particularly considering the circumstances under
which it has been issued, convinces us that the circular cannot be viewed
simply as a corrective measure (revoking in the process the previous holdings
of past Commissioners) or merely as construing Section 142(c)(1) of the NIRC,
as amended, but has, in fact and most importantly, been made in order to place
Hope Luxury, Premium More and Champion within the classification GMA in reaching said figures, as Annex H.
of locally manufactured cigarettes bearing foreign brands and to thereby have
them covered by RA 7654. Specifically, the new law would have its amendatory
provisions applied to locally manufactured cigarettes which at the time of its
effectivity were not so classified as bearing foreign brands. x x x In so doing, the
BIR not simply interpreted the law; verily, it legislated under its quasi-legislative
authority. The due observance of the requirements of notice, of hearing, and of
publication should not have been then ignored.59
For failing to conduct prior hearing before coming up with Resolution No. 9615,
said Resolution, specifically in regard to the new rule on aggregate airtime is
declared defective and ineffectual.
Resolution No. 9615 does not impose
an unreasonable burden on the
broadcast industry
It is a basic postulate of due process, specifically in relation to its substantive
component, that any governmental rule or regulation must be reasonable in its
operations and its impositions. Any restrictions, as well as sanctions, must be
reasonably related to the purpose or objective of the government in a manner
that would not work unnecessary and unjustifiable burdens on the citizenry.
Petitioner GMA assails certain requirements imposed on broadcast stations as
unreasonable. It explained:ChanRoblesVirtualawlibrary
5.40 Petitioner GMA currently operates and monitors 21 FM and AM radio
stations nationwide and 8 originating television stations (including its main
transmitter in Quezon City) which are authorized to dechain national programs
for airing and insertion of local content and advertisements.
5.41 In light of the New Rules wherein a candidates airtime minutes are applied
on an aggregate basis and considering that said Rules declare it unlawful in
Section 7(d) thereof for a radio, television station or other mass media to sell or
give for free airtime to a candidate in excess of that allowed by law or by said
New Rules:ChanRoblesVirtualawlibrary
Section 7. Prohibited Forms of Election Propaganda During the campaign
period, it is unlawful:ChanRoblesVirtualawlibrary
xxx xxx xxx
(d) for any newspaper or publication, radio, television or cable 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
election propaganda purposes to any candidate or party in excess of the
size, duration or frequency authorized by law or these rules;
xxx xxx xxx
(Emphasis supplied)
petitioner GMA submits that compliance with the New Rules in order to avoid
administrative or criminal liability would be unfair, cruel and oppressive.
x x x x.
5.43 In the present situation wherein airtime minutes shall be shared by all
television and radio stations, broadcast mass media organizations would surely
encounter insurmountable difficulties in monitoring the airtime minutes spent by
the numerous candidates for various elective positions, in real time.
5.44 An inquiry with the National Telecommunications Commission (NTC) bears
out that there are 372 television stations and 398 AM and 800 FM radio stations
nationwide as of June 2012. In addition, there are 1,113 cable TV providers
authorized by the NTC to operate within the country as of the said date.
5.45 Given such numbers of broadcast entities and the necessity to monitor
political advertisements pursuant to the New Rules, petitioner GMA estimates
that monitoring television broadcasts of all authorized television station would
involve 7,440 manhours per day. To aggravate matters, since a candidate may
also spend his/her broadcasting minutes on cable TV,
additional 281,040 manhours per day would have to be spent in monitoring the
various channels carried by cable TV throughout the Philippines. As far as
radio broadcasts (both AM and FM stations) are concerned,
around 23,960 manhours per day would have to be devoted by petitioner GMA
to obtain an accurate and timely determination of a political candidates
remaining airtime minutes. During the campaign period, petitioner GMA would
have to spend an estimated 27,494,720 manhours in monitoring the election
campaign commercials of the different candidates in the country.
5.46 In order to carry-out the obligations imposed by the New Rules, petitioner
GMA further estimates that it would need to engage and train 39,055 additional
persons on an eight-hour shift, and assign them all over the country to perform
the required monitoring of radio, television and cable TV broadcasts. In
addition, it would likewise need to allot radio, television, recording equipment
and computers, as well as telecommunications equipment, for this surveillance
and monitoring exercise, thus imputing additional costs to the
company. Attached herewith are the computations explaining how the afore-
said figures were derived and the conservative assumptions made by petitioner
5.47 Needless to say, such time, manpower requirements, expense and effort
would have to be replicated by each and every radio station to ensure that they
have properly monitored around 33 national and more than 40,000 local
candidates airtime minutes and thus, prevent any risk of administrative and
criminal liability.60
The Court cannot agree with the contentions of GMA. The apprehensions of the
petitioner appear more to be the result of a misappreciation of the real import of
the regulation rather than a real and present threat to its broadcast activities.
The Court is more in agreement with the respondent when it explained
that:ChanRoblesVirtualawlibrary
The legal duty of monitoring lies with the Comelec. Broadcast stations are
merely required to submit certain documents to aid the Comelec in ensuring
that candidates are not sold airtime in excess of the allowed limits. These
documents include: (1) certified true copies of broadcast logs, certificates of
performance, and certificates of acceptance, or other analogous record on
specified dates (Section 9[d]3, Resolution No. 9615, in relation to Section 6.2,
R.A. 9006; and (2) copies of all contract for advertising, promoting or opposing
any political party or the candidacy of any person for public office within five (5)
days after its signing (Section 6.3, R.A. 9006).
*****
[T]here is absolutely no duty on the broadcast stations to do monitoring, much
less monitoring in real time. GMA grossly exaggerates when it claims that the
non-existent duty would require them to hire and train an astounding additional
39,055 personnel working on eight-hour shifts all over the country.61
The Court holds, accordingly, that, contrary to petitioners contention, the
Reporting Requirement for the Comelecs monitoring is reasonable.
Further, it is apropos to note that, pursuant to Resolution No. 9631,62 the
respondent revised the third paragraph of Section 9 (a). As revised, the
provision now reads:ChanRoblesVirtualawlibrary
Appearance or guesting by a candidate on any bona fide newscast, bona
fide news interview, bona fide news documentary, if the appearance of the
candidate is incidental to the presentation of the subject or subjects covered by
the news documentary, or on-the-spot coverage of bona fide news events,
including but not limited to events sanctioned by the Commission on Elections,
political conventions, and similar activities, shall not be deemed to be broadcast
election propaganda within the meaning of this provision. For purposes of
monitoring by the COMELEC and ensuring that parties and candidates
were afforded equal opportunities to promote their candidacy, the media
entity shall give prior notice to the COMELEC, through the appropriate
Regional Election Director (RED), or in the case of the National Capital
Region (NCR), the Education and Information Department (EID). If such
prior notice is not feasible or practicable, the notice shall be sent within
twenty-four (24) hours from the first broadcast or publication. Nothing in
the foregoing sentence shall be construed as relieving broadcasters, in
connection with the presentation of newscasts, news interviews, news
documentaries, and on-the-spot coverage of news events, from the obligation
imposed upon them under Sections 10 and 14 of these Rules. 63
Further, the petitioner in G.R. No. 205374 assails the constitutionality of such
monitoring requirement, contending, among others, that it constitutes prior
restraint. The Court finds otherwise. Such a requirement is a reasonable means
adopted by the COMELEC to ensure that parties and candidates are afforded
equal opportunities to promote their respective candidacies. Unlike the
restrictive aggregate-based airtime limits, the directive to give prior notice is not
unduly burdensome and unreasonable, much less could it be characterized as
prior restraint since there is no restriction on dissemination of information before
broadcast.
Additionally, it is relevant to point out that in the original Resolution No. 9615,
the paragraph in issue was worded in this wise:ChanRoblesVirtualawlibrary
Appearance or guesting by a candidate on any bona fide newscast, bona fide
news interview, bona fide news documentary, if the appearance of the
candidate is incidental to the presentation of the subject or subjects covered by
the news documentary, or on-the-spot coverage of bona fide news events,
including but not limited to events sanctioned by the Commission on Elections,
political conventions, and similar activities, shall not be deemed to be broadcast
election propaganda within the meaning of this provision. To determine
whether the appearance or guesting in a program is bona fide, the
broadcast stations or entities must show that (1) prior approval of the
Commission was secured; and (2) candidates and parties were afforded
equal opportunities to promote their candidacy. Nothing in the foregoing
sentence shall be construed as relieving broadcasters, in connection with the
presentation of newscasts, news interviews, news documentaries, and on-the-
spot coverage of news events, from the obligation imposed upon them under
Sections 10 and 14 of these Rules. 64
Comparing the original with the revised paragraph, one could readily appreciate
what the COMELEC had done to modify the requirement from prior approval
to prior notice. While the former may be suggestive of a censorial tone, thus
inviting a charge of prior restraint, the latter is more in the nature of a content-
neutral regulation designed to assist the poll body to undertake its job of
ensuring fair elections without having to undertake any chore of approving or
disapproving certain expressions.
Also, the right to reply provision is reasonable
In the same way that the Court finds the prior notice requirement as not
constitutionally infirm, it similarly concludes that the right to reply provision is
reasonable and consistent with the constitutional mandate.
Section 14 of Resolution No. 9615, as revised by Resolution No. 9631,
provides:ChanRoblesVirtualawlibrary
SECTION 14. Right to Reply. All registered political parties, party-list groups
or coalitions and bona fide candidates shall have the right to reply to charges
published or aired against them. The reply shall be given publicity by the
newspaper, television, and/or radio station which first printed or aired the
charges with the same prominence or in the same page or section or in the
same time slot as the first statement.
Registered political parties, party-list groups or coalitions and bona
fide candidates may invoke the right to reply by submitting within a non-
extendible period of forty-eight hours from first broadcast or publication, a
formal verified claim against the media outlet to the COMELEC, through the
appropriate RED. The claim shall include a detailed enumeration of the
circumstances and occurrences which warrant the invocation of the right to
reply and must be accompanied by supporting evidence, such a copy of the
publication or recording of the television or radio broadcast, as the case may
be. If the supporting evidence is not yet available due to circumstances beyond
the power of the claimant, the latter shall supplement his claim as soon as the
supporting evidence becomes available, without delay on the part of the
claimant. The claimant must likewise furnish a copy of the verified claim and its
attachments to the media outlet concerned prior to the filing of the claim with
the COMELEC.
The COMELEC, through the RED, shall view the verified claim within forty-eight
(48) hours from receipt thereof, including supporting evidence, and if
circumstances warrant, give notice to the media outlet involved for appropriate
action, which shall, within forty-eight (48) hours, submit its comment, answer or
response to the RED, explaining the action it has taken to address the
claim. The media outlet must likewise furnish a copy of the said comment,
answer or response to the claimant invoking the right to reply.
Should the claimant insist that his/her right to reply was not addressed, he/she
may file the appropriate petition and/or complaint before the Commission on
Elections or its field offices, which shall be endorsed to the Clerk of Court.
The attack on the validity of the right to reply provision is primarily anchored
on the alleged ground of prior restraint, specifically in so far as such a
requirement may have a chilling effect on speech or of the freedom of the
press.
Petitioner ABC states, inter alia:
5.145. A conscious and detailed consideration of the interplay of the relevant
interests the constitutional mandate granting candidates the right to reply and
the inviolability of the constitutional freedom of expression, speech, and the
press will show that the Right to Reply, as provided for in the Assailed
Resolution, is an impermissible restraint on these fundamental freedoms.
5.146. An evaluation of the factors set forth in Soriano (for the balancing of
interests test) with respect to the present controversy will show that the
Constitution does not tilt the balance in favor of the Right to Reply provision in
the Assailed Resolution and the supposed governmental interest it attempts to
further.65
The Constitution itself provides as part of the means to ensure free, orderly,
honest, fair and credible elections, a task addressed to the COMELEC to
provide for a right to reply.66 Given that express constitutional mandate, it could
be seen that the Fundamental Law itself has weighed in on the balance to be
struck between the freedom of the press and the right to reply. Accordingly, one
is not merely to see the equation as purely between the press and the right to
reply. Instead, the constitutionally-mandated desiderata of free, orderly, honest,
peaceful, and credible elections would necessarily have to be factored in trying
to see where the balance lies between press and the demands of a right-to-
reply.
Moreover, as already discussed by the Court in Telecommunications and
Broadcast Attorneys of the Philippines, Inc. v. Commission on
Elections.67cralawred
In truth, radio and television broadcasting companies, which are given
franchises, do not own the airwaves and frequencies through which they
transmit broadcast signals and images. They are merely given the temporary
privilege of using them. Since a franchise is a mere privilege, the exercise of the
privilege may reasonably be burdened with the performance by the grantee of
some form of public service. x x x68
Relevant to this aspect are these passages from an American Supreme Court
decision with regard to broadcasting, right to reply requirements, and the
limitations on speech:ChanRoblesVirtualawlibrary
We have long recognized that each medium of expression presents special
First Amendment problems. Joseph Burstyn, Inc. v. Wilson, 343 U.S. 495,
502-503, 96 L Ed 1098, 72 S Ct 777. And of all forms of communication, it is
broadcasting that has received the most limited First Amendment
protection. Thus, although other speakers cannot be licensed except under
laws that carefully define and narrow official discretion, a broadcaster may be
deprived of his license and his forum if the Commission decides that such an
action would serve the public interest, convenience, and necessity. Similarly,
although the First Amendment protects newspaper publishers from being
required to print the replies of those whom they criticize, Miami Herald
Publishing Co. v. Tornillo, 418 U.S. 241, 41 L Ed 2d 730, 94 S Ct 2831, it
affords no such protection to broadcasters; on the contrary, they must
give free time to the victims of their criticism. Red Lion Broadcasting Co. v.
FCC, 395 U.S. 367, 23 L Ed 2d 371, 89 S Ct 1794.
The reasons for these distinctions are complex, but two have relevance to the
present case. First, the broadcast media have established a uniquely pervasive
presence in the lives of all Americans. Patently offensive, indecent material
presented over the airwaves confronts the citizen not only in public, but also in
the privacy of the home, where the individual's right to be left alone plainly
outweighs the First Amendment rights of an intruder. Rowan v. Post Office
Dept., 397 U.S. 728, 25 L Ed 2d 736, 90 S Ct 1484. Because the broadcast
audience is constantly tuning in and out, prior warnings cannot completely
protect the listener or viewer from unexpected program content. To say that one
may avoid further offense by turning off the radio when he hears indecent
language is like saying that the remedy for an assault is to run away after the
first blow. One may hang up on an indecent phone call, but that option does not
give the caller a constitutional immunity or avoid a harm that has already taken
place.
Second, broadcasting is uniquely accessible to children, even those too young
to read. Although Cohen's written message might have been incomprehensible
to a first grader, Pacifica's broadcast could have enlarged a child's vocabulary
in an instant. Other forms of offensive expression may be withheld from the
young without restricting the expression at its source. Bookstores and motion
picture theaters, for example, may be prohibited from making indecent material
available to children. We held in Ginsberg v. New York, 390 U.S. 629, that the
government's interest in the well-being of its youth and in supporting parents'
claim to authority in their own household justified the regulation of otherwise
protected expression. The ease with which children may obtain access to
broadcast material, coupled with the concerns recognized in Ginsberg, amply
justify special treatment of indecent broadcasting.69
Given the foregoing considerations, the traditional notions of preferring speech
and the press over so many other values of society do not readily lend itself to
this particular matter. Instead, additional weight should be accorded on the
constitutional directive to afford a right to reply. If there was no such mandate,
then the submissions of petitioners may more easily commend themselves for
this Courts acceptance. But as noted above, this is not the case. Their
arguments simplistically provide minimal importance to that constitutional
command to the point of marginalizing its importance in the equation.
In fine, when it comes to election and the exercise of freedom of speech, of
expression and of the press, the latter must be properly viewed in context as
being necessarily made to accommodate the imperatives of fairness by giving
teeth and substance to the right to reply requirement.
WHEREFORE, premises considered, the petitions are PARTIALLY GRANTED,
Section 9 (a) of Resolution No. 9615, as amended by Resolution No. 9631, is
declared UNCONSTITUTIONAL and, therefore, NULL and VOID. The
constitutionality of the remaining provisions of Resolution No. 9615, as
amended by Resolution No. 9631, is upheld and remain in full force and effect.
In view of this Decision, the Temporary Restraining Order issued by the Court
on April 16, 2013 is hereby made PERMANENT. SO ORDERED.
G.R. No. 205728 January 21, 2015
THE DIOCESE OF BACOLOD, REPRESENTED BY THE MOST REV.
BISHOP VICENTE M. NAVARRA and THE BISHOP HIMSELF IN HIS
PERSONAL CAPACITY, Petitioners,
vs.
COMMISSION ON ELECTIONS AND THE ELECTION OFFICER OF
BACOLOD CITY, ATTY. MAVIL V. MAJARUCON, Respondents.
"The Philippines is a democratic and republican State. Sovereignty resides in
the people and all government authority emanates from them." Article II,
Section 1, Constitution
All governmental authority emanates from our people. No unreasonable
restrictions of the fundamental and preferred right to expression of the
electorate during political contests no matter how seemingly benign will be
tolerated.
This case defines the extent that our people may shape the debates during
elections. It is significant and of first impression. We are asked to decide
whether the Commission on Elections (COMELEC) has the competence to limit
expressions made by the citizens who are not candidates during
elections.
Before us is a special civil action for certiorari and prohibition with application
for preliminary injunction and temporary restraining order1 under Rule 65 of the
Rules of Court seeking to nullify COMELECs Notice to Remove Campaign
Materials2 dated February 22, 2013 and letter3 issued on February 27, 2013.
The facts are not disputed.
On February 21, 2013, petitioners posted two (2) tarpaulins within a private
compound housing the San Sebastian Cathedral of Bacolod. Each tarpaulin
was approximately six feet (6') by ten feet (10') in size. They were posted on the
front walls of the cathedral within public view. The first tarpaulin contains the
message "IBASURA RH Law" referring to the Reproductive Health Law of 2012
or Republic Act No. 10354. The second tarpaulin is the subject of the present
case.4 This tarpaulin contains the heading "Conscience Vote" and lists
candidates as either "(Anti-RH) Team Buhay" with a check mark, or "(Pro-RH)
Team Patay" with an "X" mark.5 The electoral candidates were classified
according to their vote on the adoption of Republic Act No. 10354, otherwise
known as the RH Law.6Those who voted for the passing of the law were
classified by petitioners as comprising "Team Patay," while those who voted
against it form "Team Buhay":7
TEAM BUHAY TEAM PATAY
Estrada, JV Angara, Juan Edgardo
Honasan, Gregorio Casio, Teddy
Magsaysay, Mitos Cayetano, Alan Peter
Pimentel, Koko Enrile, Jackie
Trillanes, Antonio Escudero, Francis
Villar, Cynthia Hontiveros, Risa
Party List Buhay Legarda, Loren
Party List Ang Pamilya Party List Gabriela
Party List Akbayan
Party List Bayan Muna
Party List Anak Pawis
During oral arguments, respondents conceded that the tarpaulin was neither
sponsored nor paid for by any candidate. Petitioners also conceded that the
tarpaulin contains names ofcandidates for the 2013 elections, but not of
politicians who helped in the passage of the RH Law but were not candidates
for that election.
On February 22, 2013, respondent Atty. Mavil V. Majarucon, in her capacity as
Election Officer of Bacolod City, issued a Notice to Remove Campaign
Materials8 addressed to petitioner Most Rev. Bishop Vicente M. Navarra. The
election officer ordered the tarpaulins removal within three (3) days from receipt
for being oversized. COMELEC Resolution No. 9615 provides for the size
requirement of two feet (2) by three feet (3).9
On February 25, 2013, petitioners replied10 requesting, among others, that (1)
petitioner Bishop be given a definite ruling by COMELEC Law Department
regarding the tarpaulin; and (2) pending this opinion and the availment of legal
remedies, the tarpaulin be allowed to remain.11
On February 27, 2013, COMELEC Law Department issued a letter12 ordering
the immediate removal of the tarpaulin; otherwise, it will be constrained to file
an election offense against petitioners. The letter of COMELEC Law
Department was silenton the remedies available to petitioners. The letter
provides as follows:
Dear Bishop Navarra:
It has reached this Office that our Election Officer for this City, Atty. Mavil
Majarucon, had already given you notice on February 22, 2013 as regards the
election propaganda material posted on the church vicinity promoting for or
against the candidates and party-list groups with the following names and
messages, particularly described as follows:
Material size : six feet (6) by ten feet (10)
Description : FULL COLOR TARPAULIN
Image of : SEE ATTACHED PICTURES
Message : CONSCIENCE VOTE (ANTI RH) TEAM
BUHAY; (PRO RH) TEAM PATAY
Location : POSTED ON THE CHURCH VICINITY
OF THE DIOCESE OF BACOLOD CITY
The three (3) day notice expired on February 25, 2013.
Considering that the above-mentioned material is found to be in violation of
Comelec Resolution No. 9615 promulgated on January 15, 2013 particularly on
the size (even with the subsequent division of the said tarpaulin into two), as the
lawful size for election propaganda material is only two feet (2) by three feet
(3), please order/cause the immediate removal of said election propaganda
material, otherwise, we shall be constrained to file an election offense case
against you.
We pray that the Catholic Church will be the first institution to help the
Commission on Elections inensuring the conduct of peaceful, orderly, honest
and credible elections.
Thank you and God Bless!
[signed]
ATTY. ESMERALDA AMORA-LADRA
Director IV13
Concerned about the imminent threatof prosecution for their exercise of free
speech, petitioners initiated this case through this petition for certiorari and
prohibition with application for preliminary injunction and temporary restraining
order.14 They question respondents notice dated February 22, 2013 and letter
issued on February 27, 2013. They pray that: (1) the petition be given due
course; (2) a temporary restraining order (TRO) and/or a writ of preliminary
injunction be issued restraining respondents from further proceeding in
enforcing their orders for the removal of the Team Patay tarpaulin; and (3) after
notice and hearing, a decision be rendered declaring the questioned orders of
respondents as unconstitutional and void, and permanently restraining
respondents from enforcing them or any other similar order.15
After due deliberation, this court, on March 5, 2013, issued a temporary
restraining order enjoining respondents from enforcing the assailed notice and
letter, and set oral arguments on March 19, 2013.16
On March 13, 2013, respondents filed their comment17 arguing that (1) a
petition for certiorari and prohibition under Rule 65 of the Rules of Court filed
before this court is not the proper remedy to question the notice and letter of
respondents; and (2) the tarpaulin is an election propaganda subject to
regulation by COMELEC pursuant to its mandate under Article IX-C, Section 4
of the Constitution. Hence, respondents claim that the issuances ordering its
removal for being oversized are valid and constitutional.18
During the hearing held on March 19, 2013, the parties were directed to file
their respective memoranda within 10 days or by April 1, 2013, taking into
consideration the intervening holidays.19
The issues, which also served as guide for the oral arguments, are:20
I.
WHETHER THE 22 FEBRUARY 2013 NOTICE/ORDER BY ELECTION
OFFICER MAJARUCON AND THE 27 FEBRUARY 2013 ORDER BY THE
COMELEC LAW DEPARTMENT ARE CONSIDERED JUDGMENTS/FINAL
ORDERS/RESOLUTIONS OF THE COMELEC WHICH WOULD WARRANT A
REVIEW OF THIS COURT VIA RULE 65 PETITION[;]
A. WHETHER PETITIONERS VIOLATED THE
HIERARCHY OF COURTS DOCTRINE AND
JURISPRUDENTIAL RULES GOVERNING APPEALS
FROM COMELEC DECISIONS;
B. ASSUMING ARGUENDO THAT THE
AFOREMENTIONED ORDERS ARE NOT CONSIDERED
JUDGMENTS/FINAL ORDERS/RESOLUTIONS OF THE
COMELEC, WHETHER THERE ARE EXCEPTIONAL
CIRCUMSTANCES WHICH WOULD ALLOW THIS
COURT TO TAKE COGNIZANCE OF THE CASE[;]
II.
WHETHER IT IS RELEVANT TODETERMINE WHETHER THE TARPAULINS
ARE "POLITICAL ADVERTISEMENT" OR "ELECTION PROPAGANDA"
CONSIDERING THAT PETITIONER IS NOT A POLITICAL CANDIDATE[;]
III.
WHETHER THE TARPAULINS ARE A FORM OR EXPRESSION
(PROTECTED SPEECH), OR ELECTION PROPAGANDA/POLITICAL
ADVERTISEMENT[;]
A. ASSUMING ARGUENDO THAT THE TARPAULINS
ARE A FORM OF EXPRESSION, WHETHER THE
COMELEC POSSESSES THE AUTHORITY TO
REGULATE THE SAME[;]
B. WHETHER THIS FORM OF EXPRESSION MAY BE
REGULATED[;]
IV.
WHETHER THE 22 FEBRUARY 2013 NOTICE/ ORDER BY ELECTION
OFFICER MAJARUCON AND THE 27 FEBRUARY 2013 ORDER BY THE
COMELEC LAW DEPARTMENT VIOLATES THE PRINCIPLE OF
SEPARATION OF CHURCH AND STATE[;] [AND]
V.
WHETHER THE ACTION OF THE PETITIONERS IN POSTING ITS
TARPAULIN VIOLATES THE CONSTITUTIONAL PRINCIPLE OF
SEPARATION OF CHURCH AND STATE.
I
PROCEDURAL ISSUES
I.A
This courts jurisdiction over COMELEC cases
Respondents ask that this petition be dismissed on the ground that the notice
and letter are not final orders, decisions, rulings, or judgments of the COMELEC
En Banc issued in the exercise of its adjudicatory powers, reviewable via Rule
64 of the Rules of Court.21
Rule 64 is not the exclusive remedy for all acts of the COMELEC. Rule 65 is
applicable especially to raise objections relating to a grave abuse of discretion
resulting in the ouster of jurisdiction.22 As a special civil action, there must also
be a showing that there be no plain, speedy, and adequate remedy in the
ordinary course of the law.
Respondents contend that the assailed notice and letter are not subject to
review by this court, whose power to review is "limited only to final decisions,
rulings and orders of the COMELEC En Banc rendered in the exercise of its
adjudicatory or quasi-judicial power."23 Instead, respondents claim that the
assailed notice and letter are reviewable only by COMELEC itself pursuant to
Article IX-C, Section 2(3) of the Constitution24 on COMELECs power to decide
all questions affecting elections.25 Respondents invoke the cases of Ambil, Jr. v.
COMELEC,26 Repol v. COMELEC,27 Soriano, Jr. v. COMELEC,28 Blanco v.
COMELEC,29 and Cayetano v. COMELEC,30 to illustrate how
judicialintervention is limited to final decisions, orders, rulings and judgments of
the COMELEC En Banc.31
These cases are not applicable.
In Ambil, Jr. v. COMELEC, the losing party in the gubernatorial race of Eastern
Samar filed the election protest.32 At issue was the validity of the promulgation
of a COMELEC Division resolution.33 No motion for reconsideration was filed to
raise this issue before the COMELEC En Banc. This court declared that it did
not have jurisdiction and clarified:
We have interpreted [Section 7, Article IX-A of the Constitution]34 to mean final
orders, rulings and decisionsof the COMELEC rendered in the exercise of its
adjudicatory or quasi-judicial powers." This decision must be a final decision or
resolution of the Comelec en banc, not of a division, certainly not an
interlocutory order of a division.The Supreme Court has no power to review
viacertiorari, an interlocutory order or even a final resolution of a Division of the
Commission on Elections.35 (Emphasis in the original, citations omitted)
However, in the next case cited by respondents, Repol v. COMELEC, this court
provided exceptions to this general rule. Repolwas another election protest
case, involving the mayoralty elections in Pagsanghan, Samar.36 This time, the
case was brought to this court because the COMELEC First Division issued a
status quo ante order against the Regional Trial Court executing its decision
pending appeal.37 This courts ponencia discussed the general rule enunciated
in Ambil, Jr. that it cannot take jurisdiction to review interlocutory orders of a
COMELEC Division.38However, consistent with ABS-CBN Broadcasting
Corporation v. COMELEC,39 it clarified the exception:
This Court, however, has ruled in the past that this procedural requirement [of
filing a motion for reconsideration] may be glossed over to prevent miscarriage
of justice, when the issue involves the principle of social justice or the protection
of labor, when the decision or resolution sought to be set aside is a nullity, or
when the need for relief is extremely urgent and certiorari is the only adequate
and speedy remedy available.40
Based on ABS-CBN, this court could review orders and decisions of COMELEC
in electoral contests despite not being reviewed by the COMELEC En
Banc, if:
1) It will prevent the miscarriage of justice;
2) The issue involves a principle of social justice;
3) The issue involves the protection of labor;
4) The decision or resolution sought tobe set aside is a nullity; or
5) The need for relief is extremely urgent and certiorari is the only
adequate and speedy remedy available.
Ultimately, this court took jurisdiction in Repoland decided that the status quo
anteorder issued by the COMELEC Division was unconstitutional.
Respondents also cite Soriano, Jr. v. COMELEC.This case was also an election
protest case involving candidates for the city council of Muntinlupa
City.41 Petitioners in Soriano, Jr.filed before this court a petition for certiorari
against an interlocutory order of the COMELEC First
Division.42 While the petition was pending in this court, the COMELEC First
Division dismissed the main election protest case.43 Sorianoapplied the general
rule that only final orders should be questioned with this court. The ponencia for
this court, however, acknowledged the exceptions to the general rule in ABS-
CBN.44
Blanco v. COMELEC, another case cited by respondents, was a disqualification
case of one of the mayoralty candidates of Meycauayan, Bulacan.45 The
COMELEC Second Division ruled that petitioner could not qualify for the 2007
elections due to the findings in an administrative case that he engaged in vote
buying in the 1995 elections.46No motion for reconsideration was filed before
the COMELEC En Banc. This court, however, took cognizance of this case
applying one of the exceptions in ABS-CBN: The assailed resolution was a
nullity.47
Finally, respondents cited Cayetano v. COMELEC, a recent election protest
case involving the mayoralty candidates of Taguig City.48 Petitioner assailed a
resolution of the COMELEC denying her motion for reconsideration to dismiss
the election protest petition for lack of form and substance. 49 This court clarified
the general rule and refused to take cognizance of the review of the COMELEC
order. While recognizing the exceptions in ABS-CBN, this court ruled that these
exceptions did not apply.50
Ambil, Jr., Repol, Soriano, Jr., Blanco, and Cayetano cited by respondents do
not operate as precedents to oust this court from taking jurisdiction over this
case. All these cases cited involve election protests or disqualification cases
filed by the losing candidate against the winning candidate.
In the present case, petitioners are not candidates seeking for public office.
Their petition is filed to assert their fundamental right to expression.
Furthermore, all these cases cited by respondents pertained to COMELECs
exercise of its adjudicatory or quasi-judicial power. This case pertains to acts of
COMELEC in the implementation of its regulatory powers. When it issued the
notice and letter, the COMELEC was allegedly enforcingelection laws.
I.B
Rule 65, grave abuse of discretion,
and limitations on political speech
The main subject of thiscase is an alleged constitutional violation: the
infringement on speech and the "chilling effect" caused by respondent
COMELECs notice and letter.
Petitioners allege that respondents committed grave abuse of discretion
amounting to lack or excess of jurisdiction in issuing the notice51 dated February
22,2013 and letter52 dated February 27, 2013 ordering the removal of the
tarpaulin.53 It is their position that these infringe on their fundamental right to
freedom of expression and violate the principle of separation of church and
state and, thus, are unconstitutional.54
The jurisdiction of this court over the subject matter is determined from the
allegations in the petition. Subject matter jurisdiction is defined as the authority
"to hear and determine cases of the general class to which the proceedings in
question belong and is conferred by the sovereign authority which organizes the
court and defines its powers."55Definitely, the subject matter in this case is
different from the cases cited by respondents.
Nothing less than the electorates political speech will be affected by the
restrictions imposed by COMELEC. Political speech is motivated by the desire
to be heard and understood, to move people to action. It is concerned with the
sovereign right to change the contours of power whether through the election of
representatives in a republican government or the revision of the basic text of
the Constitution. The zeal with which we protect this kind of speech does not
depend on our evaluation of the cogency of the message. Neither do we assess
whether we should protect speech based on the motives of COMELEC. We
evaluate restrictions on freedom of expression from their effects. We protect
both speech and medium because the quality of this freedom in practice will
define the quality of deliberation in our democratic society.
COMELECs notice and letter affect preferred speech. Respondents acts are
capable of repetition. Under the conditions in which it was issued and in view of
the novelty of this case,it could result in a "chilling effect" that would affect other
citizens who want their voices heard on issues during the elections. Other
citizens who wish to express their views regarding the election and other related
issues may choose not to, for fear of reprisal or sanction by the COMELEC.
Direct resort to this court is allowed to avoid such proscribed conditions. Rule
65 is also the procedural platform for raising grave abuse of discretion.
Both parties point to constitutional provisions on jurisdiction. For petitioners, it
referred to this courts expanded exercise of certiorari as provided by the
Constitution as follows:
Judicial power includes the duty of the courts of justice to settle actual
controversies involving rights which are legally demandable and enforceable,
and to determine whether ornot there has been a grave abuse of discretion
amounting to lack or excess of jurisdiction on the part of any branch or
instrumentality of the Government.56(Emphasis supplied)
On the other hand, respondents relied on its constitutional mandate to decide
all questions affectingelections. Article IX-C, Section 2(3) of the Constitution,
provides:
Sec. 2. The Commission on Elections shall exercise the following powers and
functions:
....
(3) Decide, except those involving the right to vote, all questions affecting
elections, including determination of the number and location of polling places,
appointment of election officials and inspectors, and registration of voters.
Respondents reliance on this provision is misplaced.
We are not confronted here with the question of whether the COMELEC, in its
exercise of jurisdiction, gravely abused it. We are confronted with the question
as to whether the COMELEC had any jurisdiction at all with its acts threatening
imminent criminal action effectively abridging meaningful political speech.
It is clear that the subject matter of the controversy is the effect of COMELECs
notice and letter on free speech. This does not fall under Article IX-C, Section
2(3) of the Constitution. The use of the word "affecting" in this provision cannot
be interpreted to mean that COMELEC has the exclusive power to decide any
and allquestions that arise during elections. COMELECs constitutional
competencies during elections should not operate to divest this court of its own
jurisdiction.
The more relevant provision for jurisdiction in this case is Article VIII, Section
5(1) of the Constitution.This provision provides for this courts original
jurisdiction over petitions for certiorari and prohibition. This should be read
alongside the expanded jurisdiction of the court in Article VIII, Section 1 of the
Constitution.
Certainly, a breach of the fundamental right of expression by COMELEC is
grave abuse of discretion. Thus, the constitutionality of the notice and letter
coming from COMELEC is within this courts power to review.
During elections, we have the power and the duty to correct any grave abuse of
discretion or any act tainted with unconstitutionality on the part of any
government branch or instrumentality. This includes actions by the COMELEC.
Furthermore, it is this courts constitutional mandate to protect the people
against governments infringement of their fundamental rights. This
constitutional mandate out weighs the jurisdiction vested with the COMELEC.
It will, thus, be manifest injustice if the court does not take jurisdiction over this
case.
I.C
Hierarchy of courts
This brings us to the issue of whether petitioners violated the doctrine of
hierarchy of courts in directly filing their petition before this court.
Respondents contend that petitioners failure to file the proper suit with a lower
court of concurrent jurisdiction is sufficient ground for the dismissal of their
petition.57 They add that observation of the hierarchy of courts is compulsory,
citing Heirs of Bertuldo Hinog v. Melicor.58 While respondents claim that while
there are exceptions to the general rule on hierarchy of courts, none of these
are present in this case.59
On the other hand, petitioners cite Fortich v. Corona60 on this courts
discretionary power to take cognizance of a petition filed directly to it if
warranted by "compelling reasons, or [by] the nature and importance of the
issues raised. . . ."61 Petitioners submit that there are "exceptional and
compelling reasons to justify a direct resort [with] this Court."62
In Baez, Jr. v. Concepcion,63 we explained the necessity of the application of
the hierarchy of courts:
The Court must enjoin the observance of the policy on the hierarchy of courts,
and now affirms that the policy is not to be ignored without serious
consequences. The strictness of the policy is designed to shield the Court from
having to deal with causes that are also well within the competence of the lower
courts, and thus leave time to the Court to deal with the more fundamental and
more essential tasks that the Constitution has assigned to it. The Court may act
on petitions for the extraordinary writs of certiorari, prohibition and mandamus
only when absolutely necessary or when serious and important reasons exist to
justify an exception to the policy.64
In Baez, we also elaborated on the reasons why lower courts are allowed to
issue writs of certiorari, prohibition, and mandamus, citing Vergara v. Suelto:65
The Supreme Court is a court of lastresort, and must so remain if it is to
satisfactorily perform the functions assigned to it by the fundamental charter
and immemorial tradition. It cannot and should not be burdened with the task of
dealing with causes in the first instance. Its original jurisdiction to issue the so-
called extraordinary writs should be exercised only where absolutely necessary
or where serious and important reasons exist therefore. Hence, that jurisdiction
should generally be exercised relative to actions or proceedings before the
Court of Appeals, or before constitutional or other tribunals, bodies or agencies
whose acts for some reason or another are not controllable by the Court of
Appeals. Where the issuance of an extraordinary writ is also within the
competence of the Court of Appeals or a Regional Trial Court, it is in either of
these courts that the specific action for the writs procurement must be
presented. This is and should continue to be the policy in this regard, a policy
that courts and lawyers must strictly observe.66 (Emphasis omitted)
The doctrine that requires respect for the hierarchy of courts was created by
this court to ensure that every level of the judiciary performs its designated roles
in an effective and efficient manner. Trial courts do not only determine the facts
from the evaluation of the evidence presented before them. They are likewise
competent to determine issues of law which may include the validity of an
ordinance, statute, or even an executive issuance in relation to the
Constitution.67 To effectively perform these functions, they are territorially
organized into regions and then into branches. Their writs generally reach
within those territorial boundaries. Necessarily, they mostly perform the all-
important task of inferring the facts from the evidence as these are physically
presented before them. In many instances, the facts occur within their territorial
jurisdiction, which properly present the actual case that makes ripe a
determination of the constitutionality of such action. The consequences, of
course, would be national in scope. There are, however, some cases where
resort to courts at their level would not be practical considering their decisions
could still be appealed before the higher courts, such as the Court of Appeals.
The Court of Appeals is primarily designed as an appellate court that reviews
the determination of facts and law made by the trial courts. It is collegiate in
nature. This nature ensures more standpoints in the review of the actions of the
trial court. But the Court of Appeals also has original jurisdiction over most
special civil actions. Unlike the trial courts, its writs can have a nationwide
scope. It is competent to determine facts and, ideally, should act on
constitutional issues thatmay not necessarily be novel unless there are factual
questions to determine.
This court, on the other hand, leads the judiciary by breaking new ground or
further reiterating in the light of new circumstances or in the light of some
confusions of bench or bar existing precedents. Rather than a court of first
instance or as a repetition of the actions of the Court of Appeals, this court
promulgates these doctrinal devices in order that it truly performs that role.
In other words, the Supreme Courts role to interpret the Constitution and act in
order to protect constitutional rights when these become exigent should not be
emasculated by the doctrine in respect of the hierarchy of courts. That has
never been the purpose of such doctrine.
Thus, the doctrine of hierarchy of courts is not an iron-clad rule.68 This court has
"full discretionary power to take cognizance and assume jurisdiction [over]
special civil actions for certiorari . . .filed directly with it for exceptionally
compelling reasons69 or if warranted by the nature of the issues clearly and
specifically raised in the petition."70 As correctly pointed out by petitioners,71 we
have provided exceptions to this doctrine:
First, a direct resort to this court is allowed when there are genuine issues of
constitutionality that must be addressed at the most immediate time. A direct
resort to this court includes availing of the remedies of certiorari and prohibition
toassail the constitutionality of actions of both legislative and executive
branches of the government.72
In this case, the assailed issuances of respondents prejudice not only
petitioners right to freedom of expression in the present case, but also of others
in future similar cases. The case before this court involves an active effort on
the part of the electorate to reform the political landscape. This has become a
rare occasion when private citizens actively engage the public in political
discourse. To quote an eminent political theorist:
[T]he theory of freedom of expression involves more than a technique for
arriving at better social judgments through democratic procedures. It
comprehends a vision of society, a faith and a whole way of life. The theory
grew out of an age that was awakened and invigorated by the idea of new
society in which man's mind was free, his fate determined by his own powers of
reason, and his prospects of creating a rational and enlightened civilization
virtually unlimited. It is put forward as a prescription for attaining a creative,
progressive, exciting and intellectually robust community. It contemplates a
mode of life that, through encouraging toleration, skepticism, reason and
initiative, will allow man to realize his full potentialities.It spurns the alternative
of a society that is tyrannical, conformist, irrational and stagnant.73
In a democracy, the citizens right tofreely participate in the exchange of ideas
in furtherance of political decision-making is recognized. It deserves the highest
protection the courts may provide, as public participation in nation-building isa
fundamental principle in our Constitution. As such, their right to engage in free
expression of ideas must be given immediate protection by this court.
A second exception is when the issuesinvolved are of transcendental
importance.74 In these cases, the imminence and clarity of the threat to
fundamental constitutional rights outweigh the necessity for prudence. The
doctrine relating to constitutional issues of transcendental importance prevents
courts from the paralysis of procedural niceties when clearly faced with the
need for substantial protection.
In the case before this court, there is a clear threat to the paramount right of
freedom of speech and freedom of expression which warrants invocation of
relief from this court. The principles laid down in this decision will likely influence
the discourse of freedom of speech in the future, especially in the context of
elections. The right to suffrage not only includes the right to vote for ones
chosen candidate, but also the right to vocalize that choice to the public in
general, in the hope of influencing their votes. It may be said that in an election
year, the right to vote necessarily includes the right to free speech and
expression. The protection of these fundamental constitutional rights, therefore,
allows for the immediate resort to this court.
Third, cases of first impression75 warrant a direct resort to this court. In cases of
first impression, no jurisprudence yet exists that will guide the lower courts on
this matter. In Government of the United States v. Purganan,76 this court took
cognizance of the case as a matter of first impression that may guide the lower
courts:
In the interest of justice and to settle once and for all the important issue of bail
in extradition proceedings, we deem it best to take cognizance of the present
case. Such proceedings constitute a matter of first impression over which there
is, as yet, no local jurisprudence to guide lower courts.77
This court finds that this is indeed a case of first impression involving as it does
the issue of whether the right of suffrage includes the right of freedom of
expression. This is a question which this court has yet to provide substantial
answers to, through jurisprudence. Thus, direct resort to this court is allowed.
Fourth, the constitutional issues raisedare better decided by this court. In Drilon
v. Lim,78 this court held that:
. . . it will be prudent for such courts, if only out of a becoming modesty, to defer
to the higher judgmentof this Court in the consideration of its validity, which is
better determined after a thorough deliberation by a collegiate body and with
the concurrence of the majority of those who participated in its
discussion.79 (Citation omitted)
In this case, it is this court, with its constitutionally enshrined judicial power, that
can rule with finality on whether COMELEC committed grave abuse of
discretion or performed acts contrary to the Constitution through the assailed
issuances.
Fifth, the time element presented in this case cannot be ignored. This case was
filed during the 2013 election period. Although the elections have already been
concluded, future cases may be filed that necessitate urgency in its resolution.
Exigency in certain situations would qualify as an exception for direct resort to
this court.
Sixth, the filed petition reviews the act of a constitutional organ. COMELEC is a
constitutional body. In Albano v. Arranz,80 cited by petitioners, this court held
that "[i]t is easy to realize the chaos that would ensue if the Court of First
Instance ofeach and every province were [to] arrogate itself the power to
disregard, suspend, or contradict any order of the Commission on Elections:
that constitutional body would be speedily reduced to impotence."81
In this case, if petitioners sought to annul the actions of COMELEC through
pursuing remedies with the lower courts, any ruling on their part would not have
been binding for other citizens whom respondents may place in the same
situation. Besides, thiscourt affords great respect to the Constitution and the
powers and duties imposed upon COMELEC. Hence, a ruling by this court
would be in the best interest of respondents, in order that their actions may be
guided accordingly in the future.
Seventh, petitioners rightly claim that they had no other plain, speedy, and
adequate remedy in the ordinary course of law that could free them from the
injurious effects of respondents acts in violation of their right to freedom of
expression.
In this case, the repercussions of the assailed issuances on this basic right
constitute an exceptionally compelling reason to justify the direct resort to this
court. The lack of other sufficient remedies in the course of law alone is
sufficient ground to allow direct resort to this court.
Eighth, the petition includes questionsthat are "dictated by public welfare and
the advancement of public policy, or demanded by the broader interest of
justice, or the orders complained of were found to be patent nullities, or the
appeal was consideredas clearly an inappropriate remedy."82 In the past,
questions similar to these which this court ruled on immediately despite the
doctrine of hierarchy of courts included citizens right to bear
arms,83 government contracts involving modernization of voters registration
lists,84 and the status and existence of a public office.85
This case also poses a question of similar, if not greater import. Hence, a direct
action to this court is permitted.
It is not, however, necessary that all of these exceptions must occur at the
same time to justify a direct resort to this court. While generally, the hierarchy of
courts is respected, the present case falls under the recognized exceptions and,
as such, may be resolved by this court directly.
I.D
The concept of a political question
Respondents argue further that the size limitation and its reasonableness is a
political question, hence not within the ambit of this courts power of review.
They cite Justice Vitugs separate opinion in Osmea v. COMELEC86 to support
their position:
It might be worth mentioning that Section 26, Article II, of the Constitution also
states that the "State shall guarantee equal access to opportunities for public
service, and prohibit political dynasties as may be defined by law." I see neither
Article IX (C)(4) nor Section 26, Article II, of the Constitution to be all that
adversarial or irreconcilably inconsistent with the right of free expression. In any
event, the latter, being one of general application, must yield to the specific
demands of the Constitution. The freedom of expression concededly holds, it is
true, a vantage point in hierarchy of constitutionally-enshrined rights but, like all
fundamental rights, it is not without limitations.
The case is not about a fight between the "rich" and the "poor" or between the
"powerful" and the "weak" in our society but it is to me a genuine attempt on the
part of Congress and the Commission on Elections to ensure that all candidates
are given an equal chance to media coverage and thereby be equally perceived
as giving real life to the candidates right of free expression rather than being
viewed as an undue restriction of that freedom. The wisdom in the enactment of
the law, i.e., that which the legislature deems to be best in giving life to the
Constitutional mandate, is not for the Court to question; it is a matter that lies
beyond the normal prerogatives of the Court to pass upon.87
This separate opinion is cogent for the purpose it was said. But it is not in point
in this case.
The present petition does not involve a dispute between the rich and poor, or
the powerful and weak, on their equal opportunities for media coverage of
candidates and their right to freedom of expression. This case concerns the
right of petitioners, who are non-candidates, to post the tarpaulin in their private
property, asan exercise of their right of free expression. Despite the invocation
of the political question doctrine by respondents, this court is not proscribed
from deciding on the merits of this case.
In Taada v. Cuenco,88 this court previously elaborated on the concept of what
constitutes a political question:
What is generally meant, when it is said that a question is political, and not
judicial, is that it is a matter which is to be exercised by the people in their
primary political capacity, or that it has been specifically delegated to some
other department or particular officer of the government, withdiscretionary
power to act.89 (Emphasis omitted)
It is not for this court to rehearse and re-enact political debates on what the text
of the law should be. In political forums, particularly the legislature, the creation
of the textof the law is based on a general discussion of factual circumstances,
broadly construed in order to allow for general application by the executive
branch. Thus, the creation of the law is not limited by particular and specific
facts that affect the rights of certain individuals, per se.
Courts, on the other hand, rule on adversarial positions based on existing facts
established on a specific case-to-case basis, where parties affected by the legal
provision seek the courts understanding of the law.
The complementary nature of the political and judicial branches of government
is essential in order to ensure that the rights of the general public are upheld at
all times. In order to preserve this balance, branches of government must afford
due respectand deference for the duties and functions constitutionally
delegated to the other. Courts cannot rush to invalidate a law or rule. Prudence
dictates that we are careful not to veto political acts unless we can craft doctrine
narrowly tailored to the circumstances of the case.
The case before this court does not call for the exercise of prudence or
modesty. There is no political question. It can be acted upon by this court
through the expanded jurisdiction granted to this court through Article VIII,
Section 1 of the Constitution.
A political question arises in constitutional issues relating to the powers or
competence of different agencies and departments of the executive or those of
the legislature. The political question doctrine is used as a defense when the
petition asks this court to nullify certain acts that are exclusively within the
domain of their respective competencies, as provided by the Constitution or the
law. In such situation, presumptively, this court should act with deference. It will
decline to void an act unless the exercise of that power was so capricious and
arbitrary so as to amount to grave abuse of discretion.
The concept of a political question, however, never precludes judicial review
when the act of a constitutional organ infringes upon a fundamental individual or
collective right. Even assuming arguendo that the COMELEC did have the
discretion to choose the manner of regulation of the tarpaulin in question, it
cannot do so by abridging the fundamental right to expression.
Marcos v. Manglapus90 limited the use of the political question doctrine:
When political questions are involved, the Constitution limits the determination
to whether or not there has been a grave abuse of discretion amounting to lack
or excess of jurisdiction on the part of the official whose action is being
questioned. If grave abuse is not established, the Court will not substitute its
judgment for that of the official concerned and decide a matter which by its
nature or by law is for the latter alone to decide.91
How this court has chosen to address the political question doctrine has
undergone an evolution since the timethat it had been first invoked in Marcos v.
Manglapus. Increasingly, this court has taken the historical and social context of
the case and the relevance of pronouncements of carefully and narrowly
tailored constitutional doctrines. This trend was followed in cases such as Daza
v. Singson92 and Coseteng v. Mitra Jr.93
Daza and Coseteng involved a question as to the application of Article VI,
Section 18 of the 1987 Constitution involving the removal of petitioners from the
Commission on Appointments. In times past, this would have involved a quint
essentially political question as it related to the dominance of political parties in
Congress. However, in these cases, this court exercised its power of judicial
review noting that the requirement of interpreting the constitutional provision
involved the legality and not the wisdom of a manner by which a constitutional
duty or power was exercised. This approach was again reiterated in Defensor
Santiago v. Guingona, Jr.94
In Integrated Bar of the Philippines v. Zamora,95 this court declared again that
the possible existence ofa political question did not bar an examination of
whether the exercise of discretion was done with grave abuse of discretion. In
that case, this court ruled on the question of whether there was grave abuse of
discretion in the Presidents use of his power to call out the armed forces to
prevent and suppress lawless violence.
In Estrada v. Desierto,96 this court ruled that the legal question as to whether a
former President resigned was not a political question even if the consequences
would be to ascertain the political legitimacy of a successor President.
Many constitutional cases arise from political crises. The actors in such crises
may use the resolution of constitutional issues as leverage. But the expanded
jurisdiction of this court now mandates a duty for it to exercise its power of
judicial review expanding on principles that may avert catastrophe or resolve
social conflict.
This courts understanding of the political question has not been static or
unbending. In Llamas v. Executive Secretary Oscar Orbos,97 this court held:
While it is true that courts cannot inquire into the manner in which the
President's discretionary powers are exercised or into the wisdom for its
exercise, it is also a settled rule that when the issue involved concerns the
validity of such discretionary powers or whether said powers are within the
limits prescribed by the Constitution, We will not decline to exercise our power
of judicial review. And such review does not constitute a modification or
correction of the act of the President, nor does it constitute interference with the
functions of the President.98
The concept of judicial power in relation to the concept of the political question
was discussed most extensively in Francisco v. HRET.99 In this case, the House
of Representatives arguedthat the question of the validity of the second
impeachment complaint that was filed against former Chief Justice Hilario
Davide was a political question beyond the ambit of this court. Former Chief
Justice Reynato Puno elaborated on this concept in his concurring and
dissenting opinion:
To be sure, the force to impugn the jurisdiction of this Court becomes more
feeble in light of the new Constitution which expanded the definition of judicial
power as including "the duty of the courts of justice to settle actual
controversies involving rights which are legally demandable and enforceable,
and to determine whether or not there has been a grave abuse of discretion
amounting to lack or excess of jurisdiction on the part of any branch or
instrumentality of the Government." As well observed by retired Justice Isagani
Cruz, this expanded definition of judicial power considerably constricted the
scope of political question. He opined that the language luminously suggests
that this duty (and power) is available even against the executive and legislative
departments including the President and the Congress, in the exercise of their
discretionary powers.100 (Emphasis in the original, citations omitted)
Francisco also provides the cases which show the evolution of the political
question, as applied in the following cases:
In Marcos v. Manglapus, this Court, speaking through Madame Justice Irene
Cortes, held: The present Constitution limits resort to the political question
doctrine and broadens the scope of judicial inquiry into areas which the
Court,under previous constitutions, would have normally left to the political
departments to decide. x x x
In Bengzon v. Senate Blue Ribbon Committee, through Justice Teodoro Padilla,
this Court declared:
The "allocation of constitutional boundaries" is a task that this Court must
perform under the Constitution. Moreover, as held in a recent case, "(t)he
political question doctrine neither interposes an obstacle to judicial
determination of the rival claims. The jurisdiction to delimit constitutional
boundaries has been given to this Court. It cannot abdicate that obligation
mandated by the 1987 Constitution, although said provision by no means does
away with the applicability of the principle in appropriate cases." (Emphasis and
italics supplied)
And in Daza v. Singson, speaking through Justice Isagani Cruz, this Court
ruled:
In the case now before us, the jurisdictional objection becomes even less
tenable and decisive. The reason is that, even if we were to assume that the
issue presented before us was political in nature, we would still not be
precluded from resolving it under the expanded jurisdiction conferred upon us
that now covers, in proper cases, even the political question.x x x (Emphasis
and italics supplied.)
....
In our jurisdiction, the determination of whether an issue involves a truly political
and non-justiciable question lies in the answer to the question of whether there
are constitutionally imposed limits on powers or functions conferred upon
political bodies. If there are, then our courts are duty-bound to examine whether
the branch or instrumentality of the government properly acted within such
limits.101 (Citations omitted)
As stated in Francisco, a political question will not be considered justiciable if
there are no constitutionally imposed limits on powers or functions conferred
upon political bodies. Hence, the existence of constitutionally imposed limits
justifies subjecting the official actions of the body to the scrutiny and review of
this court.
In this case, the Bill of Rights gives the utmost deference to the right to free
speech. Any instance that this right may be abridged demands judicial scrutiny.
It does not fall squarely into any doubt that a political question brings.
I.E
Exhaustion of administrative remedies
Respondents allege that petitioners violated the principle of exhaustion of
administrative remedies. Respondents insist that petitioners should have first
brought the matter to the COMELEC En Banc or any of its divisions.102
Respondents point out that petitioners failed to comply with the requirement in
Rule 65 that "there is no appeal, or any plain, speedy, and adequate remedy in
the ordinary course of law."103 They add that the proper venue to assail the
validity of the assailed issuances was in the course of an administrative hearing
to be conducted by COMELEC.104 In the event that an election offense is filed
against petitioners for posting the tarpaulin, they claim that petitioners should
resort to the remedies prescribed in Rule 34 of the COMELEC Rules of
Procedure.105
The argument on exhaustion of administrative remedies is not proper in this
case.
Despite the alleged non-exhaustion of administrative remedies, it is clear that
the controversy is already ripe for adjudication. Ripeness is the "prerequisite
that something had by then been accomplished or performed by either branch
[or in this case, organ of government] before a court may come into the
picture."106
Petitioners exercise of their rightto speech, given the message and their
medium, had understandable relevance especially during the elections.
COMELECs letter threatening the filing of the election offense against
petitioners is already an actionable infringement of this right. The impending
threat of criminal litigation is enough to curtail petitioners speech.
In the context of this case, exhaustion of their administrative remedies as
COMELEC suggested in their pleadings prolongs the violation of their freedom
of speech.
Political speech enjoys preferred protection within our constitutional order. In
Chavez v. Gonzales,107 Justice Carpio in a separate opinion emphasized: "[i]f
everthere is a hierarchy of protected expressions, political expression would
occupy the highest rank, and among different kinds of political expression, the
subject of fair and honest elections would be at the top."108 Sovereignty resides
in the people.109 Political speech is a direct exercise of the sovereignty. The
principle of exhaustion of administrative remedies yields in order to protect this
fundamental right.
Even assuming that the principle of exhaustion of administrative remedies is
applicable, the current controversy is within the exceptions to the principle. In
Chua v. Ang,110 this court held:
On the other hand, prior exhaustion of administrative remedies may be
dispensed with and judicial action may be validly resorted to immediately: (a)
when there is a violation of due process; (b) when the issue involved is purely a
legal question; (c) when the administrative action is patently illegal amounting to
lack or excess of jurisdiction; (d) when there is estoppel on the part ofthe
administrative agency concerned; (e) when there is irreparable injury; (f) when
the respondent is a department secretary whose acts as analter ego of the
President bear the implied and assumed approval of the latter; (g) when to
require exhaustion of administrative remedies would be unreasonable; (h) when
it would amount to a nullification of a claim; (i) when the subject matter is a
private land in land case proceedings; (j) whenthe rule does not provide a plain,
speedy and adequate remedy; or (k) when there are circumstances indicating
the urgency of judicial intervention."111 (Emphasis supplied, citation omitted)
The circumstances emphasized are squarely applicable with the present case.
First, petitioners allegethat the assailed issuances violated their right to freedom
of expression and the principle of separation of church and state. This is a
purely legal question. Second, the circumstances of the present case indicate
the urgency of judicial intervention considering the issue then on the RH Law as
well as the upcoming elections. Thus, to require the exhaustion of
administrative remedies in this case would be unreasonable.
Time and again, we have held that this court "has the power to relax or suspend
the rules or to except a case from their operation when compelling reasons so
warrant, or whenthe purpose of justice requires it, [and when] [w]hat constitutes
[as] good and sufficient cause that will merit suspension of the rules is
discretionary upon the court".112Certainly, this case of first impression where
COMELEC has threatenedto prosecute private parties who seek to participate
in the elections by calling attention to issues they want debated by the publicin
the manner they feel would be effective is one of those cases.
II
SUBSTANTIVE ISSUES
II.A
COMELEC had no legal basis to regulate expressions made by private citizens
Respondents cite the Constitution, laws, and jurisprudence to support their
position that they had the power to regulate the tarpaulin.113 However, all of
these provisions pertain to candidates and political parties. Petitioners are not
candidates. Neither do theybelong to any political party. COMELEC does not
have the authority to regulate the enjoyment of the preferred right to freedom of
expression exercised by a non-candidate in this case.
II.A.1
First, respondents cite Article IX-C, Section 4 of the Constitution, which
provides:
Section 4. The Commission may,during the election period, supervise or
regulate the enjoyment or utilization of all franchises or permits for the operation
of transportation and other public utilities, media of communication or
information, all grants, special privileges, or concessions granted by the
Government or any subdivision, agency, or instrumentality thereof, including
any government-owned or controlled corporation or its subsidiary. Such
supervision or regulation shall aim to ensure equal opportunity, time, and
space, and the right to reply, including reasonable, equal rates therefor, for
public information campaigns and forums among candidates in connection with
the objective of holding free, orderly, honest, peaceful, and credible
elections.114 (Emphasis supplied)
Sanidad v. COMELEC115 involved the rules promulgated by COMELEC during
the plebiscite for the creation of the Cordillera Autonomous
116
Region. Columnist Pablito V. Sanidad questioned the provision prohibiting
journalists from covering plebiscite issues on the day before and on plebiscite
day.117 Sanidad argued that the prohibition was a violation of the "constitutional
guarantees of the freedom of expression and of the press. . . ."118 We held that
the "evil sought to be prevented by this provision is the possibility that a
franchise holder may favor or give any undue advantage to a candidate in terms
of advertising space or radio or television time."119 This court found that "[m]edia
practitioners exercising their freedom of expression during plebiscite periods
are neither the franchise holders nor the candidates[,]"120 thus, their right to
expression during this period may not be regulated by COMELEC.121
Similar to the media, petitioners in the case at bar are neither franchise holders
nor candidates. II.A.2
Respondents likewise cite Article IX-C, Section 2(7) of the Constitution as
follows:122
Sec. 2. The Commission on Elections shall exercise the following powers and
functions:
....
(7) Recommend to the Congress effective measures to minimize election
spending, including limitation of places where propaganda materials shall be
posted, and to prevent and penalize all forms of election frauds, offenses,
malpractices, and nuisance candidates. (Emphasis supplied) Based on the
enumeration made on actsthat may be penalized, it will be inferred that this
provision only affects candidates.
Petitioners assail the "Notice to Remove Campaign Materials" issued by
COMELEC. This was followed bythe assailed letter regarding the "election
propaganda material posted on the church vicinity promoting for or against the
candidates and party-list groups. . . ."123
Section 9 of the Fair Election Act124 on the posting of campaign materials only
mentions "parties" and "candidates":
Sec. 9. Posting of Campaign Materials. - The COMELEC may authorize political
parties and party-list groups to erect common poster areas for their candidates
in not more than ten (10) public places such as plazas, markets, barangay
centers and the like, wherein candidates can post, display or exhibit election
propaganda: Provided, That the size ofthe poster areas shall not exceed twelve
(12) by sixteen (16) feet or its equivalent. Independent candidates with no
political parties may likewise be authorized to erect common poster areas in not
more than ten (10) public places, the size of which shall not exceed four (4) by
six (6) feet or its equivalent. Candidates may post any lawful propaganda
material in private places with the consent of the owner thereof, and in public
places or property which shall be allocated equitably and impartially among the
candidates. (Emphasis supplied)
Similarly, Section 17 of COMELEC Resolution No. 9615, the rules and
regulations implementing the Fair Election Act, provides as follows:
SECTION 17. Posting of Campaign Materials. - Parties and candidates may
post any lawful campaign material in:
a. Authorized common poster areasin public places subject to the
requirements and/or limitations set forth in the next following section;
and
b. Private places provided it has the consent of the owner thereof.
The posting of campaign materials in public places outside of the designated
common poster areas and those enumerated under Section 7 (g) of these
Rules and the like is prohibited. Persons posting the same shall be liable
together with the candidates and other persons who caused the posting. It will
be presumed that the candidates and parties caused the posting of campaign
materials outside the common poster areas if they do not remove the same
within three (3) days from notice which shall be issued by the Election Officer of
the city or municipality where the unlawful election propaganda are posted or
displayed.
Members of the PNP and other law enforcement agencies called upon by the
Election Officeror other officials of the COMELEC shall apprehend the violators
caught in the act, and file the appropriate charges against them. (Emphasis
supplied)
Respondents considered the tarpaulin as a campaign material in their
issuances. The above provisions regulating the posting of campaign materials
only apply to candidates and political parties, and petitioners are neither of the
two.
Section 3 of Republic Act No. 9006on "Lawful Election Propaganda" also states
that these are "allowed for all registered political parties, national, regional,
sectoral parties or organizations participating under the party-list elections and
for all bona fide candidates seeking national and local elective positions subject
to the limitation on authorized expenses of candidates and political parties. . . ."
Section 6 of COMELEC Resolution No. 9615 provides for a similar wording.
These provisions show that election propaganda refers to matter done by or on
behalf of and in coordination with candidates and political parties. Some level of
coordination with the candidates and political parties for whom the election In this case, the tarpaulin contains speech on a matter of public concern, that is,
propaganda are released would ensure that these candidates and political a statement of either appreciation or criticism on votes made in the passing of
parties maintain within the authorized expenses limitation. the RH law. Thus, petitioners invoke their right to freedom of expression.

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

National Press Club involved the prohibition on the sale and donation of space
and time for political advertisements, limiting political advertisements to
COMELEC-designated space and time. This case was brought by
representatives of mass media and two candidates for office in the 1992
elections. They argued that the prohibition on the sale and donation of space
and time for political advertisements is tantamount to censorship, which
necessarily infringes on the freedom of speech of the candidates.128
Petitioners contend that the assailed notice and letter for the removal of the
tarpaulin violate their fundamental right to freedom of expression.
On the other hand, respondents contend that the tarpaulin is an election
propaganda subject to their regulation pursuant to their mandate under Article
IX-C, Section 4 of the Constitution. Thus, the assailed notice and letter ordering
itsremoval for being oversized are valid and constitutional.131

This court upheld the constitutionality of the COMELEC prohibition in National II.B.1
Press Club. However, this case does not apply as most of the petitioners were
electoral candidates, unlike petitioners in the instant case. Moreover, the
Fundamental to the consideration of this issue is Article III, Section 4 of the
subject matter of National Press Club, Section 11(b) of Republic Act No.
Constitution:
6646,129 only refers to a particular kind of media such as newspapers, radio
broadcasting, or television.130 Justice Feliciano emphasized that the provision
did not infringe upon the right of reporters or broadcasters to air their Section 4. No law shall be passed abridging the freedom of speech, of
commentaries and opinions regarding the candidates, their qualifications, and expression, or of the press, or the right of the people peaceably to assemble
program for government. Compared to Sanidadwherein the columnists lost their and petition the government for redress of grievances.132
ability to give their commentary on the issues involving the plebiscite, National
Press Clubdoes not involve the same infringement.
No law. . .

In the case at bar, petitioners lost their ability to give a commentary on the
candidates for the 2013 national elections because of the COMELEC notice While it is true that the present petition assails not a law but an opinion by the
and letter. It was not merelya regulation on the campaigns of candidates vying COMELEC Law Department, this court has applied Article III, Section 4 of the
for public office. Thus, National Press Clubdoes not apply to this case. Constitution even to governmental acts.

Finally, Section 79 of Batas Pambansa Blg. 881, otherwise known as the
Omnibus Election Code, defines an"election campaign" as follows:
....
(b) The term "election campaign" or "partisan political activity" refers to an act
designed to promote the election or defeat of a particular candidate or
candidates to a public office which shall include:
In Primicias v. Fugoso,133 respondent Mayor applied by analogy Section 1119
of the Revised Ordinances of 1927 of Manila for the public meeting and
assembly organized by petitioner Primicias.134 Section 1119 requires a Mayors
permit for the use of streets and public places for purposes such as athletic
games, sports, or celebration of national holidays.135 What was questioned was
not a law but the Mayors refusal to issue a permit for the holding of petitioners
public meeting.136 Nevertheless, this court recognized the constitutional right to
freedom of speech, to peaceful assembly and to petition for redress of
grievances, albeit not absolute,137 and the petition for mandamus to compel
respondent Mayor to issue the permit was granted.138

(1) Forming organizations, associations, clubs, committees or other

In ABS-CBN v. COMELEC, what was assailed was not a law but COMELEC En
groups of persons for the purpose of soliciting votes and/or
Banc Resolution No. 98-1419 where the COMELEC resolved to approve the
undertaking any campaign for or against a candidate;
issuance of a restraining order to stop ABS-CBN from conducting exit
surveys.139 The right to freedom of expression was similarly upheld in this case
(2) Holding political caucuses, conferences, meetings, rallies, and, consequently, the assailed resolution was nullified and set aside.140
parades, or other similar assemblies, for the purpose of soliciting
votes and/or undertaking any campaign or propaganda for or against
. . . shall be passed abridging. . .
a candidate;

All regulations will have an impact directly or indirectly on expression. The

(3) Making speeches, announcements or commentaries, or holding
prohibition against the abridgment of speech should not mean an absolute
interviews for or against the election of any candidate for public
prohibition against regulation. The primary and incidental burden on speech
office;
must be weighed against a compelling state interest clearly allowed in the
Constitution. The test depends on the relevant theory of speech implicit in the
(4) Publishing or distributing campaign literature or materials kind of society framed by our Constitution.
designed to support or oppose the election of any candidate; or
. . . of expression. . .
(5) Directly or indirectly soliciting votes, pledges or support for or
against a candidate.
Our Constitution has also explicitly included the freedom of expression,
separate and in addition to the freedom of speech and of the press provided in
The foregoing enumerated acts ifperformed for the purpose of enhancing the the US Constitution. The word "expression" was added in the 1987 Constitution
chances of aspirants for nomination for candidacy to a public office by a political by Commissioner Brocka for having a wider scope:
party, aggroupment, or coalition of parties shall not be considered as election
campaign or partisan election activity. Public expressions or opinions or
MR. BROCKA: This is a very minor amendment, Mr. Presiding Officer. On
discussions of probable issues in a forthcoming electionor on attributes of or
Section 9, page 2, line 29, it says: "No law shall be passed abridging the
criticisms against probable candidates proposed to be nominated in a
freedom of speech." I would like to recommend to the Committee the change of
forthcoming political party convention shall not be construed as part of any
the word "speech" to EXPRESSION; or if not, add the words AND
election campaign or partisan political activity contemplated under this Article.
EXPRESSION after the word "speech," because it is more expansive, it has a
(Emphasis supplied)
wider scope, and it would refer to means of expression other than speech.

True, there is no mention whether election campaign is limited only to the

THE PRESIDING OFFICER (Mr.Bengzon): What does the Committee say?
candidates and political parties themselves. The focus of the definition is that
the act must be "designed to promote the election or defeat of a particular
candidate or candidates to a public office." FR. BERNAS: "Expression" is more broad than speech. We accept it.
MR. BROCKA: Thank you.
THE PRESIDING OFFICER (Mr.Bengzon): Is it accepted?
FR. BERNAS: Yes.
THE PRESIDING OFFICER (Mr.Bengzon): Is there any objection? (Silence)
The Chair hears none; the amendment is approved.
FR. BERNAS: So, that provision will now read: "No law shall be passed
abridging the freedom of speech, expression or of the press . . . ."141 Speech
may be said to be inextricably linked to freedom itself as "[t]he right to think is
the beginning of freedom, and speech must be protected from the government
because speech is the beginning of thought."142
II.B.2
Communication is an essential outcome of protected speech.143 Communication
exists when "(1) a speaker, seeking to signal others, uses conventional actions
because he orshe reasonably believes that such actions will be taken by the
audience in the manner intended; and (2) the audience so takes the
actions."144 "[I]n communicative action[,] the hearer may respond to the claims
by . . . either accepting the speech acts claims or opposing them with criticism
or requests for justification."145
Speech is not limited to vocal communication. "[C]onduct is treated as a form of
speech sometimes referred to as symbolic speech[,]"146 such that "when
speech and nonspeech elements are combined in the same course of Third, larger spaces allow for more messages. Larger spaces, therefore, may
conduct, the communicative element of the conduct may be sufficient to bring translate to more opportunities to amplify, explain, and argue points which the
into play the [right to freedom of expression]."147
The right to freedom of expression, thus, applies to the entire continuum of
speech from utterances made to conduct enacted, and even to inaction itself as
a symbolic manner of communication.
In Ebralinag v. The Division Superintendent of Schools of Cebu,148 students
who were members of the religious sect Jehovahs Witnesses were to be
expelled from school for refusing to salute the flag, sing the national anthem,
and recite the patriotic pledge.149 In his concurring opinion, Justice Cruz
discussed how the salute is a symbolic manner of communication and a valid
form of expression.150 He adds that freedom of speech includes even the right
to be silent:
Freedom of speech includes the right to be silent. Aptly has it been said that the
Bill of Rights that guarantees to the individual the liberty to utter what is in his
mind also guarantees to him the liberty not to utter what is not in his mind. The
salute is a symbolic manner of communication that conveys its messageas
clearly as the written or spoken word. As a valid form of expression, it cannot be
compelled any more than it can be prohibited in the face of valid religious
objections like those raised in this petition. To impose it on the petitioners is to
deny them the right not to speak when their religion bids them to be silent. This
coercion of conscience has no place in the free society.
The democratic system provides for the accommodation of diverse ideas,
including the unconventional and even the bizarre or eccentric. The will of the
majority prevails, but it cannot regiment thought by prescribing the recitation by
rote of its opinions or proscribing the assertion of unorthodox or unpopular
views as inthis case. The conscientious objections of the petitioners, no less
than the impatience of those who disagree with them, are protected by the
Constitution. The State cannot make the individual speak when the soul within
rebels.151
Even before freedom "of expression" was included in Article III, Section 4 of the
present Constitution,this court has applied its precedent version to expressions
other than verbal utterances.
In the 1985 case of Gonzalez v. Chairman Katigbak,152 petitioners objected to
the classification of the motion picture "Kapit sa Patalim" as "For Adults Only."
They contend that the classification "is without legal and factual basis and is
exercised as impermissible restraint of artistic expression."153 This court
recognized that "[m]otion pictures are important both as a medium for the
communication of ideas and the expression of the artistic impulse."154 It adds
that "every writer,actor, or producer, no matter what medium of expression he
may use, should be freed from the censor."155 This court found that "[the
Boards] perception of what constitutes obscenity appears to be unduly
restrictive."156 However, the petition was dismissed solely on the ground that
there were not enough votes for a ruling of grave abuse of discretion in the
classification made by the Board.157
II.B.3
Size does matter
The form of expression is just as important as the information conveyed that it
forms part of the expression. The present case is in point.
It is easy to discern why size matters.
First, it enhances efficiency in communication. A larger tarpaulin allows larger
fonts which make it easier to view its messages from greater distances.
Furthermore, a larger tarpaulin makes it easier for passengers inside moving
vehicles to read its content. Compared with the pedestrians, the passengers
inside moving vehicles have lesser time to view the content of a tarpaulin. The
larger the fonts and images, the greater the probability that it will catch their
attention and, thus, the greater the possibility that they will understand its
message.
Second, the size of the tarpaulin may underscore the importance of the
message to the reader. From an ordinary persons perspective, those who post
their messages in larger fonts care more about their message than those who
carry their messages in smaller media. The perceived importance given by the
speakers, in this case petitioners, to their cause is also part of the message.
The effectivity of communication sometimes relies on the emphasis put by the
speakers and onthe credibility of the speakers themselves. Certainly, larger
segments of the public may tend to be more convinced of the point made by
authoritative figures when they make the effort to emphasize their messages.
speakers might want to communicate. Rather than simply placing the names
and images of political candidates and an expression of support, larger spaces
can allow for brief but memorable presentations of the candidates platforms for
governance. Larger spaces allow for more precise inceptions of ideas, catalyze
reactions to advocacies, and contribute more to a more educated and reasoned
electorate. A more educated electorate will increase the possibilities of both
good governance and accountability in our government.
These points become more salient when it is the electorate, not the candidates
or the political parties, that speaks. Too often, the terms of public discussion
during elections are framed and kept hostage by brief and catchy but
meaningless sound bites extolling the character of the candidate. Worse,
elections sideline political arguments and privilege the endorsement by
celebrities. Rather than provide obstacles to their speech, government should in
fact encourage it. Between the candidates and the electorate, the latter have
the better incentive to demand discussion of the more important issues.
Between the candidates and the electorate, the former have better incentives to
avoid difficult political standpoints and instead focus on appearances and empty
promises.
Large tarpaulins, therefore, are not analogous to time and place.158 They are
fundamentally part of expression protected under Article III, Section 4 of the
Constitution.
II.B.4
There are several theories and schools of thought that strengthen the need to
protect the basic right to freedom of expression.
First, this relates to the right ofthe people to participate in public affairs,
including the right to criticize government actions.
Proponents of the political theory on "deliberative democracy" submit that
"substantial, open, [and] ethical dialogue isa critical, and indeed defining,
feature of a good polity."159 This theory may be considered broad, but it
definitely "includes [a] collective decision making with the participation of all who
will beaffected by the decision."160 It anchors on the principle that the
cornerstone of every democracy is that sovereignty resides in the people.161 To
ensure order in running the states affairs, sovereign powers were delegated
and individuals would be elected or nominated in key government positions to
represent the people. On this note, the theory on deliberative democracy may
evolve to the right of the people to make government accountable. Necessarily,
this includes the right of the people to criticize acts made pursuant to
governmental functions.
Speech that promotes dialogue on publicaffairs, or airs out grievances and
political discontent, should thus be protected and encouraged.
Borrowing the words of Justice Brandeis, "it is hazardous to discourage thought,
hope and imagination; that fear breeds repression; that repression breeds hate;
that hate menaces stable government; that the path of safety lies in the
opportunity to discuss freely supposed grievances and proposed remedies."162
In this jurisdiction, this court held that "[t]he interest of society and the
maintenance of good government demand a full discussion of public
affairs."163 This court has, thus, adopted the principle that "debate on public
issues should be uninhibited, robust,and wide open . . . [including even]
unpleasantly sharp attacks on government and public officials."164
Second, free speech should be encouraged under the concept of a market
place of ideas. This theory was articulated by Justice Holmes in that "the
ultimate good desired is better reached by [the] free trade in ideas:"165
When men have realized that time has upset many fighting faiths, they may
come to believe even more than they believe the very foundations of their own
conduct that the ultimate good desired is better reached by free trade in ideas -
that the best test of truth is the power of the thought to get itself accepted in the
competition of the market, and that truth is the only ground upon which their
wishes safely can be carried out.166
The way it works, the exposure to the ideas of others allows one to "consider,
test, and develop their own conclusions."167 A free, open, and dynamic market
place of ideas is constantly shaping new ones. This promotes both stability and
change where recurring points may crystallize and weak ones may develop. Of
course, free speech is more than the right to approve existing political beliefs
and economic arrangements as it includes, "[t]o paraphrase Justice Holmes,
[the] freedom for the thought that we hate, no less than for the thought that
agrees with us."168 In fact, free speech may "best serve its high purpose when it
induces a condition of unrest, creates dissatisfaction with conditions as they
are, or even stirs people to anger."169 It is in this context that we should guard
against any curtailment of the peoples right to participate in the free trade of
ideas.
Third, free speech involves self-expression that enhances human dignity. This
right is "a means of assuring individual self-fulfillment,"170 among others. In
Philippine Blooming Mills Employees Organization v. Philippine Blooming Mills
Co., Inc,171 this court discussed as follows:
The rights of free expression, free assembly and petition, are not only civil rights
but also political rights essential to man's enjoyment of his life, to his happiness
and to his full and complete fulfillment.Thru these freedoms the citizens can
participate not merely in the periodic establishment of the government through
their suffrage but also in the administration of public affairs as well as in the
discipline of abusive public officers. The citizen is accorded these rights so that
he can appeal to the appropriate governmental officers or agencies for redress
and protection as well as for the imposition of the lawful sanctions on erring
public officers and employees.172 (Emphasis supplied)
Fourth, expression is a marker for group identity. For one, "[v]oluntary
associations perform [an] important democratic role [in providing] forums for the
development of civil skills, for deliberation, and for the formation of identity and
community spirit[,] [and] are largely immune from [any] governmental
interference."173 They also "provide a buffer between individuals and the state -
a free space for the development of individual personality, distinct group
identity, and dissident ideas - and a potential source of opposition to the
state."174 Free speech must be protected as the vehicle to find those who have
similar and shared values and ideals, to join together and forward common
goals.
Fifth, the Bill of Rights, free speech included, is supposed to "protect individuals
and minorities against majoritarian abuses perpetrated through [the] framework
[of democratic governance]."175 Federalist framers led by James Madison were
concerned about two potentially vulnerable groups: "the citizenry at large -
majorities - who might be tyrannized or plundered by despotic federal
officials"176 and the minorities who may be oppressed by "dominant factions of
the electorate [that] capture [the] government for their own selfish
ends[.]"177 According to Madison, "[i]t is of great importance in a republic not
only to guard the society against the oppression of its rulers, but to guard one
part of the society against the injustice of the other part."178 We should strive to
ensure that free speech is protected especially in light of any potential
oppression against those who find themselves in the fringes on public issues.
Lastly, free speech must be protected under the safety valve theory.179 This
provides that "nonviolent manifestations of dissent reduce the likelihood of
violence[.]"180 "[A] dam about to burst . . . resulting in the banking up of a
menacing flood of sullen anger behind the walls of restriction"181 has been used
to describe the effect of repressing nonviolent outlets.182 In order to avoid this
situation and prevent people from resorting to violence, there is a need for
peaceful methods in making passionate dissent. This includes "free expression
and political participation"183 in that they can "vote for candidates who share
their views, petition their legislatures to [make or] change laws, . . . distribute
literature alerting other citizens of their concerns[,]"184 and conduct peaceful
rallies and other similar acts.185 Free speech must, thus, be protected as a
peaceful means of achieving ones goal, considering the possibility that
repression of nonviolent dissent may spill over to violent means just to drive a
point.
II.B.5
Every citizens expression with political consequences enjoys a high degree of
protection. Respondents argue that the tarpaulinis election propaganda, being
petitioners way of endorsing candidates who voted against the RH Law and
rejecting those who voted for it.186 As such, it is subject to regulation by
COMELEC under its constitutional mandate.187 Election propaganda is defined
under Section 1(4) of COMELEC Resolution No. 9615 as follows: SECTION 1.
Definitions . . .
....
4. The term "political advertisement" or "election propaganda" refers to any
matter broadcasted, published, printed, displayed or exhibited, in any medium,
which contain the name, image, logo, brand, insignia, color motif, initials, and
other symbol or graphic representation that is capable of being associated with
a candidate or party, and is intended to draw the attention of the public or a
segment thereof to promote or oppose, directly or indirectly, the election of the
said candidate or candidates to a public office. In broadcast media, political
advertisements may take the form of spots, appearances on TV shows and
radio programs, live or taped announcements, teasers, and other forms of
advertising messages or announcements used by commercial advertisers.
Political advertising includes matters, not falling within the scope of personal
opinion, that appear on any Internet website, including, but not limited to, social
networks, blogging sites, and micro-blogging sites, in return for consideration,
or otherwise capable of pecuniary estimation.
On the other hand, petitioners invoke their "constitutional right to communicate
their opinions, views and beliefs about issues and candidates."188 They argue
that the tarpaulin was their statement of approval and appreciation of the
named public officials act of voting against the RH Law, and their criticism
toward those who voted in its favor.189It was "part of their advocacy campaign
against the RH Law,"190 which was not paid for by any candidate or political
party.191 Thus, "the questioned orders which . . . effectively restrain[ed] and
curtail[ed] [their] freedom of expression should be declared unconstitutional and
void."192
This court has held free speech and other intellectual freedoms as "highly
ranked in our scheme of constitutional values."193 These rights enjoy
precedence and primacy.194 In Philippine Blooming Mills, this court discussed
the preferred position occupied by freedom of expression:
Property and property rights can belost thru prescription; but human rights are
imprescriptible. If human rights are extinguished by the passage of time, then
the Bill of Rights is a useless attempt to limit the power of government and
ceases to be an efficacious shield against the tyranny of officials, of majorities,
ofthe influential and powerful, and of oligarchs - political, economic or
otherwise.
In the hierarchy of civil liberties, the rights of free expression and of assembly
occupy a preferred position as they are essential to the preservation and vitality
of our civil and political institutions; and such priority "gives these liberties the
sanctity and the sanction not permitting dubious intrusions."195 (Citations
omitted)
This primordial right calls for utmost respect, more so "when what may be
curtailed is the dissemination of information to make more meaningful the
equally vital right of suffrage."196 A similar idea appeared in our jurisprudence as
early as 1969, which was Justice Barredos concurring and dissenting opinion in
Gonzales v. COMELEC:197
I like to reiterate over and over, for it seems this is the fundamental point others
miss, that genuine democracy thrives only where the power and right of the
people toelect the men to whom they would entrust the privilege to run the
affairs of the state exist. In the language of the declaration of principles of our
Constitution, "The Philippines is a republican state. Sovereignty resides in the
people and all government authority emanates from them" (Section 1, Article II).
Translating this declaration into actuality, the Philippines is a republic because
and solely because the people in it can be governed only by officials whom they
themselves have placed in office by their votes. And in it is on this cornerstone
that I hold it tobe self-evident that when the freedoms of speech, press and
peaceful assembly and redress of grievances are being exercised in relation to
suffrage or asa means to enjoy the inalienable right of the qualified citizen to
vote, they are absolute and timeless. If our democracy and republicanism are to
be worthwhile, the conduct of public affairs by our officials must be allowed to
suffer incessant and unabating scrutiny, favorable or unfavorable, everyday and
at all times. Every holder of power in our government must be ready to undergo
exposure any moment of the day or night, from January to December every
year, as it is only in this way that he can rightfully gain the confidence of the
people. I have no patience for those who would regard public dissection of the
establishment as an attribute to be indulged by the people only at certain
periods of time. I consider the freedoms of speech, press and peaceful
assembly and redress of grievances, when exercised in the name of suffrage,
as the very means by which the right itself to vote can only be properly
enjoyed.It stands to reason therefore, that suffrage itself would be next to
useless if these liberties cannot be untrammelled [sic] whether as to degree or
time.198 (Emphasis supplied)
Not all speech are treated the same. In Chavez v. Gonzales, this court
discussed that some types of speech may be subject to regulation:
Some types of speech may be subjected to some regulation by the State under
its pervasive police power, in order that it may not be injurious to the equal right
of others or those of the community or society. The difference in treatment is
expected because the relevant interests of one type of speech, e.g., political
speech, may vary from those of another, e.g., obscene speech.
Distinctionshave therefore been made in the treatment, analysis, and evaluation
ofthe permissible scope of restrictions on various categories of speech. We
have ruled, for example, that in our jurisdiction slander or libel, lewd and
obscene speech, as well as "fighting words" are not entitled to constitutional
protection and may be penalized.199 (Citations omitted)
We distinguish between politicaland commercial speech. Political speech refers
to speech "both intended and received as a contribution to public deliberation
about some issue,"200 "foster[ing] informed and civicminded deliberation."201 On
the other hand, commercial speech has been defined as speech that does "no
more than propose a commercial transaction."202 The expression resulting from
the content of the tarpaulin is, however, definitely political speech. In Justice
Brions dissenting opinion, he discussed that "[t]he content of the tarpaulin, as
well as the timing of its posting, makes it subject of the regulations in RA 9006
and Comelec Resolution No. 9615."203 He adds that "[w]hile indeed the RH
issue, by itself,is not an electoralmatter, the slant that the petitioners gave the
issue converted the non-election issue into a live election one hence, Team
Buhay and Team Patay and the plea to support one and oppose the other."204
While the tarpaulin may influence the success or failure of the named
candidates and political parties, this does not necessarily mean it is election
propaganda. The tarpaulin was not paid for or posted "in return for
consideration" by any candidate, political party, or party-list group.
The second paragraph of Section 1(4) of COMELEC Resolution No. 9615, or
the rules and regulations implementing Republic Act No. 9006 as an aid to
interpret the law insofar as the facts of this case requires, states:
4. The term "political advertisement" or "election propaganda" refers to any
matter broadcasted, published, printed, displayed or exhibited, in any medium,
which contain the name, image, logo, brand, insignia, color motif, initials, and
other symbol or graphic representation that is capable of being associated with
a candidate or party, and is intended to draw the attention of the public or a
segment thereof to promote or oppose, directly or indirectly, the election of the
said candidate or candidates to a public office. In broadcast media, political
advertisements may take the form of spots, appearances on TV shows and
radio programs, live or taped announcements, teasers, and other forms of
advertising messages or announcements used by commercial advertisers.
Political advertising includes matters, not falling within the scope of personal
opinion, that appear on any Internet website, including, but not limited to, social
networks, blogging sites, and micro-blogging sites, in return for consideration,
or otherwise capable of pecuniary estimation. (Emphasis supplied)
It is clear that this paragraph suggests that personal opinions are not included,
while sponsored messages are covered.
Thus, the last paragraph of Section 1(1) of COMELEC Resolution No. 9615
states:
SECTION 1. Definitions - As used in this Resolution:
1. The term "election campaign" or "partisan political activity" refers to an act
designed to promote the election or defeat of a particular candidate or
candidates to a public office, and shall include any of the following:
....
Personal opinions, views, and preferences for candidates, contained in blogs
shall not be considered acts of election campaigning or partisan politicalactivity
unless expressed by government officials in the Executive Department, the
Legislative Department, the Judiciary, the Constitutional Commissions, and
members of the Civil Service.
In any event, this case does not refer to speech in cyberspace, and its effects
and parameters should be deemed narrowly tailored only in relation to the facts
and issues in this case. It also appears that such wording in COMELEC
Resolution No. 9615 does not similarly appear in Republic Act No. 9006, the
law it implements.
We should interpret in this manner because of the value of political speech.
As early as 1918, in United States v. Bustos,205 this court recognized the need
for full discussion of public affairs. We acknowledged that free speech includes
the right to criticize the conduct of public men:
The interest of society and the maintenance of good government demand a full
discussion of public affairs. Complete liberty to comment on the conduct of
public men is a scalpel in the case of free speech. The sharp incision of its
probe relieves the abscesses of official dom. Men in public life may suffer under
a hostile and an unjust accusation; the wound can be assuaged with the balm
of a clear conscience. A public officer must not be too thin-skinned with
reference to comment upon his official acts. Only thus can the intelligence and
dignity of the individual be exalted.206
Subsequent jurisprudence developed the right to petition the government for
redress of grievances, allowing for criticism, save for some exceptions.207 In the
1951 case of Espuelas v. People,208 this court noted every citizens privilege to
criticize his or her government, provided it is "specific and therefore
constructive, reasoned or tempered, and not a contemptuous condemnation of
the entire government set-up."209
The 1927 case of People v. Titular210 involved an alleged violation of the
Election Law provision "penaliz[ing] the anonymous criticism of a candidate by
means of posters or circulars."211 This court explained that it is the posters
anonymous character that is being penalized.212 The ponente adds that he
would "dislike very muchto see this decision made the vehicle for the
suppression of public opinion."213
In 1983, Reyes v. Bagatsing214 discussed the importance of allowing individuals
to vent their views. According to this court, "[i]ts value may lie in the fact that
there may be something worth hearing from the dissenter [and] [t]hat is to
ensurea true ferment of ideas."215
Allowing citizens to air grievances and speak constructive criticisms against
their government contributes to every societys goal for development. It puts
forward matters that may be changed for the better and ideas that may be
deliberated on to attain that purpose. Necessarily, it also makes the government
accountable for acts that violate constitutionally protected rights.
In 1998, Osmea v. COMELEC found Section 11(b) of Republic Act No. 6646,
which prohibits mass media from selling print space and air time for campaign
except to the COMELEC, to be a democracy-enhancing measure.216This court
mentioned how "discussion of public issues and debate on the qualifications of
candidates in an election are essential to the proper functioning of the
government established by our Constitution."217
As pointed out by petitioners, "speech serves one of its greatest public
purposes in the context of elections when the free exercise thereof informs the
people what the issues are, and who are supporting what issues."218 At the
heart of democracy is every advocates right to make known what the people
need to know,219 while the meaningful exercise of ones right of suffrage
includes the right of every voter to know what they need to know in order to
make their choice.
Thus, in Adiong v. COMELEC,220 this court discussed the importance of debate
on public issues, and the freedom of expression especially in relation to
information that ensures the meaningful exercise of the right of suffrage:
We have adopted the principle that debate on public issues should be
uninhibited, robust, and wide open and that it may well include vehement,
caustic and sometimes unpleasantly sharp attacks on government and public
officials. Too many restrictions will deny to people the robust, uninhibited, and
wide open debate, the generating of interest essential if our elections will truly
be free, clean and honest.
We have also ruled that the preferred freedom of expression calls all the more
for the utmost respect when what may be curtailed is the dissemination of
information to make more meaningful the equally vital right of
suffrage.221(Emphasis supplied, citations omitted)
Speech with political consequences isat the core of the freedom of expression
and must be protected by this court.
Justice Brion pointed out that freedomof expression "is not the god of rights to
which all other rights and even government protection of state interest must
bow."222
The right to freedom of expression isindeed not absolute. Even some forms of
protected speech are still subjectto some restrictions. The degree of restriction
may depend on whether the regulation is content-based or content-
neutral.223 Content-based regulations can either be based on the viewpoint of
the speaker or the subject of the expression.
II.B.6
Content-based regulation
COMELEC contends that the order for removal of the tarpaulin is a content-
neutral regulation. The order was made simply because petitioners failed to
comply with the maximum size limitation for lawful election propaganda. 224
On the other hand, petitioners argue that the present size regulation is content-
based as it applies only to political speech and not to other forms of speech
such as commercial speech.225 "[A]ssuming arguendo that the size restriction
sought to be applied . . . is a mere time, place, and manner regulation, its still
unconstitutional for lack of a clear and reasonable nexus with a constitutionally
sanctioned objective."226
The regulation may reasonably be considered as either content-neutral or
content-based.227 Regardless, the disposition of this case will be the same.
Generally, compared with other forms of speech, the proposed speech is
content-based.
As pointed out by petitioners, the interpretation of COMELEC contained in the
questioned order applies only to posters and tarpaulins that may affect the
elections because they deliver opinions that shape both their choices. It does
not cover, for instance, commercial speech.
Worse, COMELEC does not point to a definite view of what kind of expression
of non-candidates will be adjudged as "election paraphernalia." There are no
existing bright lines to categorize speech as election-related and those that are
not. This is especially true when citizens will want to use their resources to be
able to raise public issues that should be tackled by the candidates as what has
happened in this case. COMELECs discretion to limit speech in this case is
fundamentally unbridled.
Size limitations during elections hit ata core part of expression. The content of
the tarpaulin is not easily divorced from the size of its medium.
Content-based regulation bears a heavy presumption of invalidity, and this court
has used the clear and present danger rule as measure.228 Thus, in Chavez v.
Gonzales:
A content-based regulation, however, bears a heavy presumption of invalidity
and is measured against the clear and present danger rule. The latter will pass
constitutional muster only if justified by a compelling reason, and the restrictions
imposedare neither overbroad nor vague.229 (Citations omitted)
Under this rule, "the evil consequences sought to be prevented must be
substantive, extremely serious and the degree of imminence extremely
high."230 "Only when the challenged act has overcome the clear and present
danger rule will it pass constitutional muster, with the government having the
burden of overcoming the presumed unconstitutionality."231
Even with the clear and present danger test, respondents failed to justify the
regulation. There is no compelling and substantial state interest endangered by
the posting of the tarpaulinas to justify curtailment of the right of freedom of
expression. There is no reason for the state to minimize the right of non-
candidate petitioners to post the tarpaulin in their private property. The size of
the tarpaulin does not affect anyone elses constitutional rights.
Content-based restraint or censorship refers to restrictions "based on the
subject matter of the utterance or speech."232 In contrast, content-neutral
regulation includes controls merely on the incidents of the speech such as time,
place, or manner of the speech.233
This court has attempted to define "content-neutral" restraints starting with the
1948 case of Primicias v. Fugoso.234The ordinance in this case was construed
to grant the Mayor discretion only to determine the public places that may be
used for the procession ormeeting, but not the power to refuse the issuance of
a permit for such procession or meeting.235 This court explained that free
speech and peaceful assembly are "not absolute for it may be so regulated that
it shall not beinjurious to the equal enjoyment of others having equal rights, nor
injurious to the rights of the community or society."236
The earlier case of Calalang v. Williams237 involved the National Traffic
Commission resolution that prohibited the passing of animal-drawn vehicles
along certain roads at specific hours.238 This court similarly discussed police
power in that the assailed rules carry outthe legislative policy that "aims to
promote safe transit upon and avoid obstructions on national roads, in the
interest and convenience of the public."239
As early as 1907, United States v. Apurado240 recognized that "more or less
disorder will mark the public assembly of the people to protest against
grievances whether real or imaginary, because on such occasions feeling is
always wrought to a high pitch of excitement. . . ."241 It is with this backdrop that
the state is justified in imposing restrictions on incidental matters as time, place,
and manner of the speech.
In the landmark case of Reyes v. Bagatsing, this court summarized the steps
that permit applicants must follow which include informing the licensing
authority ahead of time as regards the date, public place, and time of the
assembly.242 This would afford the public official time to inform applicants if
there would be valid objections, provided that the clear and present danger test
is the standard used for his decision and the applicants are given the
opportunity to be heard.243 This ruling was practically codified in Batas
Pambansa No. 880, otherwise known as the Public Assembly Act of 1985.
Subsequent jurisprudence have upheld Batas Pambansa No. 880 as a valid
content-neutral regulation. In the 2006 case of Bayan v. Ermita,244 this court
discussed how Batas Pambansa No. 880 does not prohibit assemblies but
simply regulates their time, place, and manner.245 In 2010, this court found in
Integrated Bar of the Philippines v. Atienza246 that respondent Mayor Atienza
committed grave abuse of discretion when he modified the rally permit by
changing the venue from Mendiola Bridge to Plaza Miranda without first
affording petitioners the opportunity to be heard.247
We reiterate that the regulation involved at bar is content-based. The tarpaulin
content is not easily divorced from the size of its medium.
II.B.7
Justice Carpio and Justice Perlas-Bernabe suggest that the provisions imposing
a size limit for tarpaulins are content-neutral regulations as these "restrict the
mannerby which speech is relayed but not the content of what is conveyed."248
If we apply the test for content-neutral regulation, the questioned acts of
COMELEC will not pass the three requirements for evaluating such restraints
on freedom of speech.249 "When the speech restraints take the form of a
content-neutral regulation, only a substantial governmental interest is required
for its validity,"250 and it is subject only to the intermediate approach.251
This intermediate approach is based on the test that we have prescribed in
several cases.252 A content-neutral government regulation is sufficiently
justified:
[1] if it is within the constitutional power of the Government; [2] if it furthers an
important or substantial governmental interest; [3] if the governmental interest is
unrelated to the suppression of free expression; and [4] if the incident restriction
on alleged [freedom of speech & expression] is no greater than is essential to
the furtherance of that interest.253
On the first requisite, it is not within the constitutional powers of the COMELEC
to regulate the tarpaulin. As discussed earlier, this is protected speech by
petitioners who are non-candidates. On the second requirement, not only must
the governmental interest be important or substantial, it must also be
compelling as to justify the restrictions made.
Compelling governmental interest would include constitutionally declared
principles. We have held, for example, that "the welfare of children and the
States mandate to protect and care for them, as parens patriae,254 constitute a
substantial and compelling government interest in regulating . . . utterances in
TV broadcast."255
Respondent invokes its constitutional mandate to ensure equal opportunity for
public information campaigns among candidates in connection with the holding
of a free, orderly, honest, peaceful, and credible election.256
Justice Brion in his dissenting opinion discussed that "[s]ize limits to posters are
necessary to ensure equality of public information campaigns among
candidates, as allowing posters with different sizes gives candidates and their
supporters the incentive to post larger posters[,] [and] [t]his places candidates
with more money and/or with deep-pocket supporters at an undue advantage
against candidates with more humble financial capabilities."257
First, Adiong v. COMELEC has held that this interest is "not as important as the
right of [a private citizen] to freely express his choice and exercise his right of
free speech."258 In any case, faced with both rights to freedom of speech and
equality, a prudent course would be to "try to resolve the tension in a way that
protects the right of participation."259
Second, the pertinent election lawsrelated to private property only require that
the private property owners consent be obtained when posting election
propaganda in the property.260 This is consistent with the fundamental right
against deprivation of property without due process of law.261 The present facts
do not involve such posting of election propaganda absent consent from the
property owner. Thus, this regulation does not apply in this case.
Respondents likewise cite the Constitution262
on their authority to recommend
effective measures to minimize election spending. Specifically, Article IX-C,
Section 2(7) provides:
Sec. 2. The Commission on Elections shall exercise the following powers and
functions:
....
(7) Recommend to the Congress effective measures to minimize election
spending, including limitation of places where propaganda materials shall be
posted, and to prevent and penalize all forms of election frauds, offenses,
malpractices, and nuisance candidates. (Emphasis supplied) This does not
qualify as a compelling and substantial government interest to justify regulation
of the preferred right to freedom of expression.
The assailed issuances for the removal of the tarpaulin are based on the two
feet (2) by three feet (3) size limitation under Section 6(c) of COMELEC
Resolution No. 9615. This resolution implements the Fair Election Act that
provides for the same size limitation.263
This court held in Adiong v. COMELEC that "[c]ompared to the paramount
interest of the State in guaranteeing freedom of expression, any financial
considerations behind the regulation are of marginal significance."264 In fact,
speech with political consequences, as in this case, should be encouraged and
not curtailed. As petitioners pointed out, the size limitation will not serve the
objective of minimizing election spending considering there is no limit on the
number of tarpaulins that may be posted.265
The third requisite is likewise lacking. We look not only at the legislative intent
or motive in imposing the restriction, but more so at the effects of such
restriction, if implemented. The restriction must not be narrowly tailored to
achieve the purpose. It must be demonstrable. It must allow alternative avenues
for the actor to make speech.
In this case, the size regulation is not unrelated to the suppression of speech.
Limiting the maximum sizeof the tarpaulin would render ineffective petitioners
message and violate their right to exercise freedom of expression.
The COMELECs act of requiring the removal of the tarpaulin has the effect of
dissuading expressions with political consequences. These should be
encouraged, more so when exercised to make more meaningful the equally
important right to suffrage.
The restriction in the present case does not pass even the lower test of
intermediate scrutiny for content-neutral regulations.
The action of the COMELEC in thiscase is a strong deterrent to further speech
by the electorate. Given the stature of petitioners and their message, there are
indicators that this will cause a "chilling effect" on robust discussion during
elections.
The form of expression is just as important as the message itself. In the words
of Marshall McLuhan, "the medium is the message."266 McLuhans colleague
and mentor Harold Innis has earlier asserted that "the materials on which words
were written down have often counted for more than the words themselves."267
III
Freedom of expression and equality
III.A
The possibility of abuse
Of course, candidates and political parties do solicit the help of private
individuals for the endorsement of their electoral campaigns.
On the one extreme, this can take illicit forms such as when endorsement
materials in the form of tarpaulins, posters, or media advertisements are made
ostensibly by "friends" but in reality are really paid for by the candidate or
political party. This skirts the constitutional value that provides for equal
opportunities for all candidates.
However, as agreed by the parties during the oral arguments in this case, this is
not the situation that confronts us. In such cases, it will simply be a matter for
investigation and proof of fraud on the part of the COMELEC.
The guarantee of freedom of expression to individuals without any relationship
to any political candidate should not be held hostage by the possibility of abuse
by those seeking to be elected. It is true that there can be underhanded, covert,
or illicit dealings so as to hide the candidates real levels of expenditures.
However, labelling all expressions of private parties that tend to have an effect
on the debate in the elections as election paraphernalia would be too broad a
remedy that can stifle genuine speech like in this case. Instead, to address this
evil, better and more effective enforcement will be the least restrictive means to
the fundamental freedom.
On the other extreme, moved by the credentials and the message of a
candidate, others will spend their own resources in order to lend support for the
campaigns. This may be without agreement between the speaker and the
candidate or his or her political party. In lieu of donating funds to the campaign,
they will instead use their resources directly in a way that the candidate or
political party would have doneso. This may effectively skirt the constitutional
and statutory limits of campaign spending.
Again, this is not the situation in this case.
The message of petitioners in thiscase will certainly not be what candidates and
political parties will carry in their election posters or media ads. The message of
petitioner, taken as a whole, is an advocacy of a social issue that it deeply
believes. Through rhetorical devices, it communicates the desire of Diocese
that the positions of those who run for a political position on this social issue be
determinative of how the public will vote. It primarily advocates a stand on a
social issue; only secondarily even almost incidentally will cause the
election or non-election of a candidate.
The twin tarpaulins consist of satire of political parties. Satire is a "literary form
that employs such devices as sarcasm, irony and ridicule to deride prevailing
vices or follies,"268 and this may target any individual or group in society, private
and government alike. It seeks to effectively communicate a greater purpose,
often used for "political and social criticism"269 "because it tears down facades,
deflates stuffed shirts, and unmasks hypocrisy. . . . Nothing is more thoroughly
democratic than to have the high-and-mighty lampooned and
spoofed."270 Northrop Frye, wellknown in this literary field, claimed that satire
had two defining features: "one is wit or humor founded on fantasy or a sense of
the grotesque and absurd, the other is an object of attack."271 Thus, satire
frequently uses exaggeration, analogy, and other rhetorical devices.
The tarpaulins exaggerate. Surely, "Team Patay" does not refer to a list of dead
individuals nor could the Archbishop of the Diocese of Bacolod have intended it
to mean that the entire plan of the candidates in his list was to cause death
intentionally. The tarpaulin caricatures political parties and parodies the
intention of those in the list. Furthermore, the list of "Team Patay" is juxtaposed
with the list of "Team Buhay" that further emphasizes the theme of its author:
Reproductive health is an important marker for the church of petitioners to
endorse.
The messages in the tarpaulins are different from the usual messages of
candidates. Election paraphernalia from candidates and political parties are
more declarative and descriptive and contain no sophisticated literary allusion
to any social objective. Thus, they usually simply exhort the public to vote for a
person with a brief description of the attributes of the candidate. For example
"Vote for [x], Sipag at Tiyaga," "Vote for [y], Mr. Palengke," or "Vote for [z], Iba
kami sa Makati."
This courts construction of the guarantee of freedom of expression has always
been wary of censorship or subsequent punishment that entails evaluation of
the speakers viewpoint or the content of ones speech. This is especially true
when the expression involved has political consequences. In this case, it hopes
to affect the type of deliberation that happens during elections. A becoming
humility on the part of any human institution no matter how endowed with the
secular ability to decide legal controversies with finality entails that we are not
the keepers of all wisdom.
Humanitys lack of omniscience, even acting collectively, provides space for the
weakest dissent. Tolerance has always been a libertarian virtue whose version
is embedded in our Billof Rights. There are occasional heretics of yesterday
that have become our visionaries. Heterodoxies have always given us pause.
The unforgiving but insistent nuance that the majority surely and comfortably
disregards provides us with the checks upon reality that may soon evolve into
creative solutions to grave social problems. This is the utilitarian version. It
could also be that it is just part of human necessity to evolve through being able
to express or communicate.
However, the Constitution we interpret is not a theoretical document. It contains
other provisions which, taken together with the guarantee of free expression,
enhances each others value. Among these are the provisions that
acknowledge the idea of equality. In shaping doctrine construing these
constitutional values, this court needs to exercise extraordinary prudence and
produce narrowly tailored guidance fit to the facts as given so as not to
unwittingly cause the undesired effect of diluting freedoms as exercised in
reality and, thus, render them meaningless.
III.B.
Speech and equality:
Some considerations We first establish that there are two paradigms of free
speech that separate at the point of giving priority to equality vis--vis liberty.272
In an equality-based approach, "politically disadvantaged speech prevails over
regulation[,] but regulation promoting political equality prevails over
speech."273 This view allows the government leeway to redistribute or equalize
speaking power, such as protecting, even implicitly subsidizing, unpopular or
dissenting voices often systematically subdued within societys ideological
ladder.274 This view acknowledges that there are dominant political actors who,
through authority, power, resources, identity, or status, have capabilities that
may drown out the messages of others. This is especially true in a developing
or emerging economy that is part of the majoritarian world like ours.
The question of libertarian tolerance
This balance between equality and the ability to express so as to find ones
authentic self or to participate in the self determination of ones communities is
not new only to law. It has always been a philosophical problematique.
In his seminal work, Repressive Tolerance, philosopher and social theorist
Herbert Marcuse recognized how institutionalized inequality exists as a
background limitation, rendering freedoms exercised within such limitation as
merely "protect[ing] the already established machinery of discrimination."275 In
his view, any improvement "in the normal course of events" within an unequal
society, without subversion, only strengthens existing interests of those in
power and control.276
In other words, abstract guarantees of fundamental rights like freedom of
expression may become meaningless if not taken in a real context. This
tendency to tackle rights in the abstract compromises liberties. In his words:
Liberty is self-determination, autonomythis is almost a tautology, but a
tautology which results from a whole series of synthetic judgments. It stipulates
the ability to determine ones own life: to be able to determine what to do and
what not to do, what to suffer and what not. But the subject of this autonomy is
never the contingent, private individual as that which he actually is or happens
to be; it is rather the individual as a human being who is capable of being free
with the others. And the problem of making possible such a harmony between
every individual liberty and the other is not that of finding a compromise
between competitors, or between freedom and law, between general and
individual interest, common and private welfare in an established society, but of
creating the society in which man is no longer enslaved by institutions which
vitiate self-determination from the beginning. In other words, freedom is still to
be created even for the freest of the existing societies.277 (Emphasis in the
original)
Marcuse suggests that the democratic argument with all opinions presented
to and deliberated by the people "implies a necessary condition, namely, that
the people must be capable of deliberating and choosing on the basis of
knowledge, that they must have access to authentic information, and that, on
this basis, their evaluation must be the result of autonomous thought."278 He
submits that "[d]ifferent opinions and philosophies can no longer compete
peacefully for adherence and persuasion on rational grounds: the marketplace
of ideas is organized and delimited by those who determine the national and
the individual interest."279 A slant toward left manifests from his belief that "there
is a natural right of resistance for oppressed and overpowered minorities to
use extralegal means if the legal ones have proved to be
inadequate."280 Marcuse, thus, stands for an equality that breaks away and
transcends from established hierarchies, power structures, and indoctrinations.
The tolerance of libertarian society he refers to as "repressive tolerance."
Legal scholars
The 20th century also bears witness to strong support from legal scholars for
"stringent protections of expressive liberty,"281 especially by political
egalitarians. Considerations such as "expressive, deliberative, and informational
interests,"282 costs or the price of expression, and background facts, when
taken together, produce bases for a system of stringent protections for
expressive liberties.283
Many legal scholars discuss the interest and value of expressive liberties.
Justice Brandeis proposed that "public discussion is a political duty."284 Cass
Sustein placed political speech on the upper tier of his twotier model for
freedom of expression, thus, warranting stringent protection.285 He defined
political speech as "both intended and received as a contribution to public
deliberation about some issue."286
But this is usually related also tofair access to opportunities for such
liberties.287 Fair access to opportunity is suggested to mean substantive
equality and not mere formal equalitysince "favorable conditions for realizing the
expressive interest will include some assurance of the resources required for
expression and some guarantee that efforts to express views on matters of
common concern will not be drowned out by the speech of betterendowed
citizens."288 Justice Brandeis solution is to "remedy the harms of speech with
more speech."289 This view moves away from playing down the danger as
merely exaggerated, toward "tak[ing] the costs seriously and embrac[ing]
expression as the preferred strategy for addressing them."290 However, in some
cases, the idea of more speech may not be enough. Professor Laurence Tribe
observed the need for context and "the specification of substantive values
before [equality] has full meaning."291 Professor Catherine A. MacKinnon adds
that "equality continues to be viewed in a formal rather than a substantive
sense."292 Thus, more speech can only mean more speech from the few who
are dominant rather than those who are not.
Our jurisprudence
This court has tackled these issues.
Osmea v. COMELEC affirmed National Press Club v. COMELEC on the
validity of Section 11(b) ofthe Electoral Reforms Law of 1987.293 This section
"prohibits mass media from selling or giving free of charge print space or air
time for campaign or other political purposes, except to the Commission on
Elections."294 This court explained that this provision only regulates the time and
manner of advertising in order to ensure media equality among
candidates.295 This court grounded this measure on constitutional provisions
mandating political equality:296 Article IX-C, Section 4
Section 4. The Commission may, during the election period, supervise or
regulate the enjoyment or utilization of all franchises or permits for the operation
of transportation and other public utilities, media of communication or
information, all grants, special privileges, or concessions granted by the
Government or any subdivision, agency, or instrumentality thereof, including
any government-owned or controlled corporation or its subsidiary. Such
supervision or regulation shall aim to ensure equal opportunity, time, and
space, and the right to reply, including reasonable, equal rates therefor, for
public information campaigns and forums among candidates in connection with
the objective of holding free, orderly, honest, peaceful, and credible elections.
(Emphasis supplied)
Article XIII, Section 1
Section 1. The Congress shall give highest priorityto the enactment of
measures that protect and enhance the right of all the people to human dignity,
reducesocial, economic, and political inequalities, and remove cultural
inequities by equitably diffusing wealth and political power for the common
good.
To this end, the State shall regulate the acquisition, ownership, use, and
disposition of property and its increments. (Emphasis supplied)
Article II, Section 26
Section 26. The State shall guarantee equal access to opportunities for public
service, and prohibit political dynasties as may be defined by law. (Emphasis
supplied)
Thus, in these cases, we have acknowledged the Constitutions guarantee for
more substantive expressive freedoms that take equality of opportunities into
consideration during elections.
The other view
However, there is also the other view. This is that considerations of equality of
opportunity or equality inthe ability of citizens as speakers should not have a
bearing in free speech doctrine. Under this view, "members of the public are
trusted to make their own individual evaluations of speech, and government is
forbidden to intervene for paternalistic or redistributive reasons . . . [thus,] ideas
are best left to a freely competitive ideological market."297 This is consistent with
the libertarian suspicion on the use of viewpoint as well as content to evaluate
the constitutional validity or invalidity of speech.
The textual basis of this view is that the constitutional provision uses negative
rather than affirmative language. It uses speech as its subject and not
speakers.298 Consequently, the Constitution protects free speech per se,
indifferent to the types, status, or associations of its speakers.299 Pursuant to
this, "government must leave speakers and listeners in the private order to their
own devices in sorting out the relative influence of speech."300
Justice Romeros dissenting opinion in Osmea v. COMELEC formulates this
view that freedom of speech includes "not only the right to express ones views,
but also other cognate rights relevant to the free communication [of] ideas, not
excluding the right to be informed on matters of public concern."301 She adds:
And since so many imponderables may affect the outcome of elections
qualifications of voters and candidates, education, means of transportation,
health, public discussion, private animosities, the weather, the threshold of a
voters resistance to pressure the utmost ventilation of opinion of men and
issues, through assembly, association and organizations, both by the candidate
and the voter, becomes a sine qua non for elections to truly reflect the will of the
electorate.302 (Emphasis supplied)
Justice Romeros dissenting opinion cited an American case, if only to
emphasize free speech primacy such that"courts, as a rule are wary to impose
greater restrictions as to any attempt to curtail speeches with political
content,"303 thus:
the concept that the government may restrict the speech of some elements in
our society in order to enhance the relative voice of the others is wholly foreign
to the First Amendment which was designed to "secure the widest possible
dissemination of information from diverse and antagonistic sources" and "to
assure unfettered interchange of ideas for the bringing about of political and
social changes desired by the people."304
This echoes Justice Oliver Wendell Holmes submission "that the market place
of ideas is still the best alternative to censorship."305
Parenthetically and just to provide the whole detail of the argument, the majority
of the US Supreme Court in the campaign expenditures case of Buckley v.
Valeo "condemned restrictions (even if content-neutral) on expressive liberty
imposed in the name of enhanc[ing] the relative voice of others and thereby
equaliz[ing] access to the political arena."306 The majority did not use the
equality-based paradigm.
One flaw of campaign expenditurelimits is that "any limit placed on the amount
which a person can speak, which takes out of his exclusive judgment the
decision of when enough is enough, deprives him of his free speech."307
Another flaw is how "[a]ny quantitative limitation on political campaigning
inherently constricts the sum of public information and runs counter to our
profound national commitment that debate on public issues should be
uninhibited, robust, and wide-open."308
In fact, "[c]onstraining those who have funds or have been able to raise funds
does not ease the plight of those without funds in the first place . . . [and] even if
ones main concern isslowing the increase in political costs, it may be more
effective torely on market forces toachieve that result than on active legal
intervention."309 According to Herbert Alexander, "[t]o oppose limitations is not
necessarily to argue that the skys the limit [because in] any campaign there are
saturation levels and a point where spending no longer pays off in votes per
dollar."310
III. C.
When private speech amounts
to election paraphernalia
The scope of the guarantee of free expression takes into consideration the
constitutional respect for human potentiality and the effect of speech. It
valorizes the ability of human beings to express and their necessity to relate.
On the other hand, a complete guarantee must also take into consideration the
effects it will have in a deliberative democracy. Skewed distribution of resources
as well as the cultural hegemony of the majority may have the effect of
drowning out the speech and the messages of those in the minority. In a sense,
social inequality does have its effect on the exercise and effect of the guarantee
of free speech. Those who have more will have better access to media that
reaches a wider audience than those who have less. Those who espouse the
more popular ideas will have better reception than the subversive and the
dissenters of society.To be really heard and understood, the marginalized view
normally undergoes its own degree of struggle.
The traditional view has been to tolerate the viewpoint of the speaker and the
content of his or her expression. This view, thus, restricts laws or regulation that
allows public officials to make judgments of the value of such viewpoint or
message content. This should still be the principal approach.
However, the requirements of the Constitution regarding equality in opportunity
must provide limits to some expression during electoral campaigns.
Thus clearly, regulation of speech in the context of electoral campaigns made
by candidates or the members of their political parties or their political parties
may be regulated as to time, place, and manner. This is the effect of our rulings
in Osmea v. COMELEC and National Press Club v. COMELEC.
Regulation of speech in the context of electoral campaigns made by persons
who are not candidates or who do not speak as members of a political party
which are, taken as a whole, principally advocacies of a social issue that the
public must consider during elections is unconstitutional. Such regulation is
inconsistent with the guarantee of according the fullest possible range of
opinions coming from the electorate including those that can catalyze candid,
uninhibited, and robust debate in the criteria for the choice of a candidate.
This does not mean that there cannot be a specie of speech by a private citizen
which will not amount toan election paraphernalia to be validly regulated by law.
Regulation of election paraphernalia will still be constitutionally valid if it reaches
into speech of persons who are not candidates or who do not speak as
members of a political party if they are not candidates, only if what is regulated
is declarative speech that, taken as a whole, has for its principal object the
endorsement of a candidate only. The regulation (a) should be provided by law,
(b) reasonable, (c) narrowly tailored to meet the objective of enhancing the
opportunity of all candidates to be heard and considering the primacy of the
guarantee of free expression, and (d) demonstrably the least restrictive means
to achieve that object. The regulation must only be with respect to the time,
place, and manner of the rendition of the message. In no situation may the
speech be prohibited or censored onthe basis of its content. For this purpose, it
will notmatter whether the speech is made with or on private property.
This is not the situation, however, in this case for two reasons. First, as
discussed, the principal message in the twin tarpaulins of petitioners consists of
a social advocacy.
Second, as pointed out in the concurring opinion of Justice Antonio Carpio, the
present law Section 3.3 of Republic Act No. 9006 and Section 6(c) of
COMELEC Resolution No. 9615 if applied to this case, will not pass the test
of reasonability. A fixed size for election posters or tarpaulins without any
relation to the distance from the intended average audience will be arbitrary. At
certain distances, posters measuring 2 by 3 feet could no longer be read by the
general public and, hence, would render speech meaningless. It will amount to
the abridgement of speech with political consequences.
IV
Right to property
Other than the right to freedom of expression311 and the meaningful exercise of
the right to suffrage,312 the present case also involves ones right to property.313
Respondents argue that it is the right of the state to prevent the circumvention
of regulations relating to election propaganda by applying such regulations to
private individuals.314 Certainly, any provision or regulation can be
circumvented. But we are not confronted with this possibility. Respondents
agree that the tarpaulin in question belongs to petitioners. Respondents have
also agreed, during the oral arguments, that petitioners were neither
commissioned nor paid by any candidate or political party to post the material
on their walls.
Even though the tarpaulin is readily seen by the public, the tarpaulin remains
the private property of petitioners. Their right to use their property is likewise
protected by the Constitution.
In Philippine Communications Satellite Corporation v. Alcuaz:315
Any regulation, therefore, which operates as an effective confiscation of private
property or constitutes an arbitrary or unreasonable infringement of property
rights is void, because it is repugnant to the constitutional guaranties of due
process and equal protection of the laws.316 (Citation omitted)
This court in Adiong held that a restriction that regulates where decals and
stickers should be posted is "so broad that it encompasses even the citizens
private property."317 Consequently, it violates Article III, Section 1 of the
Constitution which provides thatno person shall be deprived of his property
without due process of law. This court explained:
Property is more than the mere thing which a person owns, it includes the right
to acquire, use, and dispose of it; and the Constitution, in the 14th Amendment,
protects these essential attributes.
Property is more than the mere thing which a person owns. It is elementary that
it includes the right to acquire, use, and dispose of it. The Constitution protects
these essential attributes of property. Holden v. Hardy, 169 U.S. 366, 391, 41 L.
ed. 780, 790, 18 Sup. Ct. Rep. 383. Property consists of the free use,
enjoyment, and disposal of a persons acquisitions without control or diminution
save by the law of the land. 1 Cooleys Bl. Com. 127. (Buchanan v. Warley 245
US 60 [1917])318
This court ruled that the regulation in Adiong violates private property rights:
The right to property may be subject to a greater degree of regulation but when
this right is joined by a "liberty" interest, the burden of justification on the part of
the Government must be exceptionally convincing and irrefutable. The burden
is not met in this case.
Section 11 of Rep. Act 6646 is so encompassing and invasive that it prohibits
the posting or display of election propaganda in any place, whether public or
private, except inthe common poster areas sanctioned by COMELEC. This
means that a private person cannot post his own crudely prepared personal
poster on his own front dooror on a post in his yard. While the COMELEC will
certainly never require the absurd, there are no limits to what overzealous and
partisan police officers, armed with a copy of the statute or regulation, may
do.319 Respondents ordered petitioners, who are private citizens, to remove the
tarpaulin from their own property. The absurdity of the situation is in itself an
indication of the unconstitutionality of COMELECs interpretation of its powers.
Freedom of expression can be intimately related with the right to property.
There may be no expression when there is no place where the expression may
be made. COMELECs infringement upon petitioners property rights as in the
present case also reaches out to infringement on their fundamental right to
speech.
Respondents have not demonstrated thatthe present state interest they seek to
promote justifies the intrusion into petitioners property rights. Election laws and
regulations must be reasonable. It must also acknowledge a private individuals
right to exercise property rights. Otherwise, the due process clause will be
violated.
COMELEC Resolution No. 9615 and the Fair Election Act intend to prevent the
posting of election propaganda in private property without the consent of the
owners of such private property. COMELEC has incorrectly implemented these
regulations. Consistent with our ruling in Adiong, we find that the act of
respondents in seeking to restrain petitioners from posting the tarpaulin in their
own private property is an impermissible encroachments on the right to
property.
V the RH Law does not, by itself, bring the expression within the ambit of religious
Tarpaulin and its message are not religious speech
We proceed to the last issues pertaining to whether the COMELEC in issuing
the questioned notice and letter violated the right of petitioners to the free
exercise of their religion.
At the outset, the Constitution mandates the separation of church and
state.320 This takes many forms. Article III, Section 5 of the Constitution, for
instance provides:
Section 5. No law shall be made respecting an establishment of religion, or
prohibiting the free exercise thereof. The free exercise and enjoyment of
religious profession and worship, without discrimination or preference, shall
forever be allowed. Noreligious test shall be required for the exercise of civil or
political rights.
There are two aspects of this provision.321 The first is the none stablishment
clause.322 Second is the free exercise and enjoyment of religious profession
and worship.323
The second aspect is atissue in this case.
Clearly, not all acts done by those who are priests, bishops, ustadz, imams, or
any other religious make such act immune from any secular regulation.324 The
religious also have a secular existence. They exist within a society that is
regulated by law.
The Bishop of Bacolod caused the posting of the tarpaulin. But not all acts of a
bishop amounts to religious expression. This notwithstanding petitioners claim
that "the views and position of the petitioners, the Bishop and the Diocese of
Bacolod, on the RH Bill is inextricably connected to its Catholic dogma, faith,
and moral teachings. . . ."325
The difficulty that often presents itself in these cases stems from the reality that
every act can be motivated by moral, ethical, and religious considerations. In
terms of their effect on the corporeal world, these acts range from belief, to
expressions of these faiths, to religious ceremonies, and then to acts of a
secular character that may, from the point of view of others who do not share
the same faith or may not subscribe to any religion, may not have any religious
bearing.
Definitely, the characterizations ofthe religious of their acts are not conclusive
on this court. Certainly, our powers of adjudication cannot be blinded by bare
claims that acts are religious in nature.
Petitioners erroneously relied on the case of Ebralinag v. The Division
Superintendent of Schools of Cebu326 in claiming that the court "emphatically"
held that the adherents ofa particular religion shall be the ones to determine
whether a particular matter shall be considered ecclesiastical in nature.327 This
court in Ebralinagexempted Jehovahs Witnesses from participating in the flag
ceremony "out of respect for their religious beliefs, [no matter how] "bizarre"
those beliefsmay seem to others."328 This court found a balance between the
assertion of a religious practice and the compelling necessities of a secular
command. It was an early attempt at accommodation of religious beliefs.
In Estrada v. Escritor,329 this court adopted a policy of benevolent neutrality:
With religion looked upon with benevolence and not hostility, benevolent
neutrality allows accommodation of religion under certain circumstances.
Accommodations are government policies that take religion specifically
intoaccount not to promote the governments favored form of religion, but to
allow individuals and groups to exercise their religion without hindrance. Their
purpose or effect therefore is to remove a burden on, or facilitate the exercise
of, a persons or institutions religion. As Justice Brennan explained, the
"government [may] take religion into account . . . to exempt, when possible,
from generally applicable governmental regulation individuals whose religious
beliefs and practices would otherwise thereby be infringed, or to create without
state involvement an atmosphere in which voluntary religious exercise may
flourish."330
This court also discussed the Lemon test in that case, such that a regulation is
constitutional when: (1) it has a secular legislative purpose; (2) it neither
advances nor inhibits religion; and (3) it does not foster an excessive
entanglement with religion.331
As aptly argued by COMELEC, however, the tarpaulin, on its face, "does not
convey any religious doctrine of the Catholic church."332 That the position of the
Catholic church appears to coincide with the message of the tarpaulin regarding
speech. On the contrary, the tarpaulin clearly refers to candidates classified
under "Team Patay" and "Team Buhay" according to their respective votes on
the RH Law.
The same may be said of petitioners reliance on papal encyclicals to support
their claim that the expression onthe tarpaulin is an ecclesiastical matter. With
all due respect to the Catholic faithful, the church doctrines relied upon by
petitioners are not binding upon this court. The position of the Catholic religion
in the Philippines as regards the RH Law does not suffice to qualify the posting
by one of its members of a tarpaulin as religious speech solely on such basis.
The enumeration of candidates on the face of the tarpaulin precludes any
doubtas to its nature as speech with political consequences and not religious
speech.
Furthermore, the definition of an "ecclesiastical affair" in Austria v. National
Labor Relations Commission333 cited by petitioners finds no application in the
present case. The posting of the tarpaulin does not fall within the category of
matters that are beyond the jurisdiction of civil courts as enumerated in the
Austriacase such as "proceedings for excommunication, ordinations of religious
ministers, administration of sacraments and other activities withattached
religious significance."334
A FINAL NOTE
We maintain sympathies for the COMELEC in attempting to do what it thought
was its duty in this case. However, it was misdirected.
COMELECs general role includes a mandate to ensure equal opportunities and
reduce spending among candidates and their registered political parties. It is
not to regulate or limit the speech of the electorate as it strives to participate
inthe electoral exercise.
The tarpaulin in question may be viewed as producing a caricature of those who
are running for public office.Their message may be construed generalizations of
very complex individuals and party-list organizations.
They are classified into black and white: as belonging to "Team Patay" or
"Team Buhay."
But this caricature, though not agreeable to some, is still protected speech.
That petitioners chose to categorize them as purveyors of death or of life on the
basis of a single issue and a complex piece of legislation at that can
easily be interpreted as anattempt to stereo type the candidates and party-list
organizations. Not all may agree to the way their thoughts were expressed, as
in fact there are other Catholic dioceses that chose not to follow the example of
petitioners.
Some may have thought that there should be more room to consider being
more broad-minded and non-judgmental. Some may have expected that the
authors would give more space to practice forgiveness and humility.
But, the Bill of Rights enumerated in our Constitution is an enumeration of our
fundamental liberties. It is not a detailed code that prescribes good conduct. It
provides space for all to be guided by their conscience, not only in the act that
they do to others but also in judgment of the acts of others.
Freedom for the thought we can disagree with can be wielded not only by those
in the minority. This can often be expressed by dominant institutions, even
religious ones. That they made their point dramatically and in a large way does
not necessarily mean that their statements are true, or that they have basis, or
that they have been expressed in good taste.
Embedded in the tarpaulin, however, are opinions expressed by petitioners. It is
a specie of expression protected by our fundamental law. It is an expression
designed to invite attention, cause debate, and hopefully, persuade. It may be
motivated by the interpretation of petitioners of their ecclesiastical duty, but their
parishioners actions will have very real secular consequences. Certainly,
provocative messages do matter for the elections.
What is involved in this case is the most sacred of speech forms: expression by
the electorate that tends to rouse the public to debate contemporary issues.
This is not speechby candidates or political parties to entice votes. It is a portion
of the electorate telling candidates the conditions for their election. It is the
substantive content of the right to suffrage.
This. is a form of speech hopeful of a quality of democracy that we should all
deserve. It is protected as a fundamental and primordial right by our
Constitution. The expression in the medium chosen by petitioners deserves our
protection.
WHEREFORE, the instant petition is GRANTED. The temporary restraining
order previously issued is hereby made permanent. The act of the COMELEC
in issuing the assailed notice dated February 22, 2013 and letter dated
February 27, 2013 is declared unconstitutional. SO ORDERED.
G.R. No. 206020, April 14, 2015
1-UNITED TRANSPORT KOALISYON (1-UTAK), Petitioner, v. COMMISSION
ON ELECTIONS, Respondent.
The right to participate in electoral processes is a basic and fundamental right in
any democracy. It includes not only the right to vote, but also the right to urge
others to vote for a particular candidate. The right to express one's preference
for a candidate is likewise part of the fundamental right to free speech. Thus,
any governmental restriction on the right to convince others to vote for a
candidate carries with it a heavy presumption of invalidity.
This is a petition for certiorari1 under Rule 64 and Rule 65 of the Rules of Court
filed by 1-United Transport Koalisyon (petitioner), a party-list organization,
assailing Section 7(g) items (5) and (6), in relation to Section 7(f), of Resolution
No. 96152 of the Commission on Elections (COMELEC).
The Facts
On February 12, 2001, Republic Act (R.A.) No. 9006, otherwise known as the
"Fair Elections Act", was passed. Section 9 thereof provides:
Sec. 9. Posting of Campaign Materials. - The COMELEC may authorize political
parties and party-list groups to erect common poster areas for their candidates
in not more than ten (10) public places such as plazas, markets, barangay
centers and the like, wherein candidates can post, display or exhibit election
propaganda: Provided that the size of the poster areas shall not exceed twelve
(12) by sixteen (16) feet or its equivalent.
Independent candidates with no political parties may likewise be authorized to
erect common poster areas in not more than ten (10) public places, the size of
which shall not exceed four (4) by six (6) feet or its equivalent.
Candidates may post any lawful propaganda material in private places with the
consent of the owner thereof, and in public places or property which shall be
allocated equitably and impartially among the candidates.
On January 15, 2013, the COMELEC promulgated Resolution No. 9615, which
provided for the rules implementing R.A. No. 9006 in connection with the May
13, 2013 national and local elections and subsequent elections. Section 7
thereof, which enumerates the prohibited forms of election propaganda,
pertinently provides:
SEC. 7. Prohibited Forms of Election Propaganda. - During the campaign
period, it is unlawful:
xxxx
(f) To post, display or exhibit any election campaign or propaganda material
outside of authorized common poster areas, in public places, or in private
properties without the consent of the owner thereof.
(g) Public places referred to in the previous subsection (f) include any of the
following:
xxxx
5. Public utility vehicles such as buses, jeepneys, trains, taxi cabs, ferries,
pedicabs and tricycles, whether motorized or not;
6. Within the premises of public transport terminals, such as bus terminals,
airports, seaports, docks, piers, train stations, and the like.
The violation of items [5 and 6] under subsection (g) shall be a cause for the
revocation of the public utility franchise and will make the owner and/or operator
of the transportation service and/or terminal liable for an election offense under
Section 9 of Republic Act No. 9006 as implemented by Section 18 (n) of these
Rules.3
In its letter4 dated January 30, 2013, the petitioner, through its president,
Melencio F. Vargas, sought clarification from the COMELEC as regards the
application of Resolution No. 9615, particularly Section 7(g) items (5) and (6), in
relation to Section 7(f), vis-a-vis privately owned public utility vehicles (PUVs)
and transport terminals. The petitioner explained that the prohibition stated in
the aforementioned provisions impedes the right to free speech of the private
owners of PUVs and transport terminals. The petitioner then requested the
COMELEC to reconsider the implementation of the assailed provisions and
allow private owners of PUVs and transport terminals to post election campaign
materials on their vehicles and transport terminals.
On February 5, 2013, the COMELEC en banc issued Minute Resolution No. 13-
0214,5 which denied the petitioner's request to reconsider the implementation of
Section 7(g) items (5) and (6), in relation to Section 7(f), of Resolution No.
9615. The COMELEC en banc, adopting the recommendation of Commissioner
Christian Robert S. Lim, opined that:
From the foregoing, x x x the primary fact in consideration here is actually
whether 1 -UTAK or any other [PUV] owners in the same position do in fact
possess a franchise and/or certificate of public convenience and operate
as a public utility. If it does not, then the ruling in Adiong applies squarely. If it
does, then its operations, pursuant to Section 4, Article IX-C of the Constitution,
will be placed directly under the supervision and regulation of the Commission
for the duration of the election period so as to ensure equality of opportunity,
time, and space for all candidates in the placement of political advertisements.
Having placed their property for use by the general public and having secured a
license or permit to do so, 1-UTAK and other PUV owners, as well as transport
terminal owners, cannot now complain that their property is subject to regulation
by the State. Securing a franchise or a certificate of public convenience in their
favor does not exempt them from the burdens imposed by the Constitution,
Republic Act No. 9006 x x x, and other related statutes. It must be stressed that
the Constitution itself, under Section 6, Article XII, commands that the use of
property bears a social function and all economic agents shall contribute
to the common good; and there is no higher Common good than that as
espoused in R.A. No. 9006 - the equalization of opportunities for all candidates
for political office during elections - a policy which Res. No. 9615 merely
implements.
As required in Adiong, and in compliance with the O'Brien standards, the
prohibition furthers two important and substantial governmental interests -
equalizing opportunity, time, and space for all candidates, and putting to a stop
excessive campaign spending. The regulation bears a clear and reasonable
nexus with these Constitutionally- and statutorily-sanctioned objectives, and the
infringement of freedom is merely incidental and limited as to time. The
Commission has not taken away all avenues of expression available to PUV
and transport terminal owners. They may express their political preferences
elsewhere.
The exact purpose for placing political advertisements on a PUV or in transport
terminals is exactly because it is public and can be seen by all; and although
it is true that private vehicles ply the same route as public vehicles, the
exposure of a [PUV] servicing the general, riding public is much more compared
to private vehicles. Categorizing PUVs and transport terminals as 'public
places' under Section 7 (f) of Reso. No. 9615 is therefore logical. The same
reasoning for limiting political advertisements in print media, in radio, and in
television therefore holds true for political advertisements in PUVs and transport
terminals.6
Hence, the instant petition.
Arguments of the Petitioner
The petitioner maintains that Section 7(g) items (5) and (6), in relation to
Section 7(f), of Resolution No. 9615 violate the right to free speech of the
owners of PUVs and transport terminals; that the prohibition curtails their ideas
of who should be voted by the public. The petitioner also claims that there is no
substantial public interest threatened by the posting of political advertisements
on PUVs and transport terminals to warrant the prohibition imposed by the
COMELEC. Further, the petitioner posits that the ownership of the PUVs per se,
as well as the transport terminals, remains private and, hence, the owners
thereof could not be prohibited by the COMELEC from expressing their political
opinion lest their property rights be unduly intruded upon.
Further, assuming that substantial public interest exists in the said prohibition
imposed under Resolution No. 9615, the petitioner claims that the curtailment of
the right to free speech of the owners of PUVs and transport terminals is much
greater than is necessary to achieve the desired governmental purpose, i.e.,
ensuring equality of opportunity to all candidates in elective office.
Arguments of COMELEC
On the other hand, the COMELEC posits that privately-owned PUVs and
transport terminals are public spaces that are subject to its regulation. It
explains that under the Constitution, the COMELEC has the power to enforce
and administer all laws and regulations relative to the conduct of an election,
including the power to regulate the enjoyment or utilization of all franchises and
permits for the operation of transportation utilities.
The COMELEC points out that PUVs and private transport terminals hold a
captive audience - the commuters, who have no choice but be subjected to the
blare of political propaganda. Thus, the COMELEC avers, it is within its
constitutional authority to prevent privately-owned PUVs and transport terminals
from concurrently serving campaign materials to the captive audience that they
transport.
The COMELEC further claims that Resolution No. 9615 is a valid content-
neutral regulation and, thus, does not impinge on the constitutional right to
freedom of speech. It avers that the assailed regulation is within the
constitutional power of the COMELEC pursuant to Section 4, Article IX-C of the
Constitution. The COMELEC alleges that the regulation simply aims to ensure
equal campaign opportunity, time, and space for all candidates - an important
and substantial governmental interest, which is totally unrelated to the
suppression of free expression; that any restriction on free speech is merely
incidental and is no greater than is essential to the furtherance of the said
governmental interest.
The Issue
The petitioner presents the following issues for the Court's resolution:
I. [WHETHER] RESOLUTION NO. 9615 VIOLATES THE RIGHT TO FREE
SPEECH OF THE OWNERS OF [PUVs] AND TRANSPORT TERMINALS.
II. [WHETHER] RESOLUTION NO. 9615 IS VOID AS A RESTRAINT TO FREE
SPEECH AND EXPRESSION FOR FAILURE TO SATISFY THE O'BRIEN
TEST.
III. [WHETHER] THE CONSTITUTIONAL OBJECTIVE TO GIVE AN EQUAL
OPPORTUNITY TO INFORM THE ELECTORATE IS NOT IMPAIRED BY
POSTING POLITICAL ADVERTISEMENTS ON PUVs AND TRANSPORT
TERMINALS.
IV. [WHETHER] THE OWNERSHIP OF FACILITIES IS DIFFERENT AND
INDEPENDENT FROM THE FRANCHISE OR OPERATION OF THE PUBLIC
UTILITY, THE FORMER BEING BEYOND THE POWER OF REGULATION BY
THE COMELEC.7
In sum, the issue presented for the Court's resolution is whether Section 7(g)
items (5) and (6), in relation to Section 7(f), of Resolution No. 9615, which
prohibits the posting of any election campaign or propaganda material, inter
alia, in PUVs and public transport terminals are valid regulations.
Ruling of the Court
The petition is meritorious.
Resolution No. 9615, which was promulgated pursuant to Section 4, Article IX-
C of the Constitution and the provisions of R.A. No. 9006, lays down the
administrative rules relative to the COMELEC's exercise of its supervisory and
regulatory powers over all franchises and permits for the operation of
transportation and other public utilities, media of communication or information,
and all grants, special privileges, or concessions granted by the Government.
Like any other administrative regulations, Resolution No. 9615, or any part
thereof, must not run counter to the Constitution. It is basic that if a law or an
administrative rule violates any norm of the Constitution, that issuance is null
and void and has no effect. The Constitution is the basic law to which all laws
must conform; no act shall be valid if it conflicts with the Constitution. 8 In this
regard, an administrative regulation, even if it purports to advance a legitimate
governmental interest, may not be permitted to run roughshod over the
cherished rights of the people enshrined in the Constitution.
Section 7(g) items (5) and (6), in
relation to Section 7(f), of Resolution No.
9615 are prior restraints on speech.
Free speech may be identified with the liberty to discuss publicly and truthfully
any matter of public concern without prior restraint or censorship and
subsequent punishment.9 Prior restraint refers to official governmental
restrictions on the press or other forms of expression in advance of actual
publication or dissemination. 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.10 Any system of prior restraints of expression comes
to this Court bearing a heavy presumption against its validity.11
Section 7(g) items (5) and (6), in relation to Section 7(f), of Resolution No. 9615
unduly infringe on the fundamental right of the people to freedom of speech.
Central to the prohibition is the freedom of individuals, i.e., the owners of PUVs
and private transport terminals, to express their preference, through the posting
of election campaign material in their property, and convince others to agree
with them.
Pursuant to the assailed provisions of Resolution No. 9615, posting an election
campaign material during an election period in PUVs and transport terminals
carries with it the penalty of revocation of the public utility franchise and shall
make the owner thereof liable for an election offense.
The prohibition constitutes a clear prior restraint on the right to free expression
of the owners of PUVs and transport terminals. As a result of the prohibition,
owners of PUVs and transport terminals are forcefully and effectively inhibited
from expressing their preferences under the pain of indictment for an election
offense and the revocation of their franchise or permit to operate.
It is now deeply embedded in our jurisprudence that freedom of speech and of
the press enjoys a preferred status in our hierarchy of rights. The rationale is
that the preservation of other rights depends on how well we protect our
freedom of speech and of the press.12 It has been our constant holding that this
preferred freedom calls all the more for utmost respect when what may be
curtailed is the dissemination of information to make more meaningful the
equally vital right of suffrage.13
Thus, in Adiong v. COMELEC,14 the Court struck down the COMELEC's
prohibition against the posting of decals and stickers on "mobile places." The
Court ratiocinated that:
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 newspaper or radio and
television stations and commentators or columnists as long as these are not
correctly paid-for advertisements or purchased opinions with less reason can
we sanction the prohibition against a sincere manifestation of support
and a proclamation of belief by an individual person who pastes a sticker
or decal on his private property.15 (Emphases ours)
The assailed prohibition on posting
election campaign materials is an
invalid content-neutral regulation
repugnant to the free speech clause.
The COMELEC claims that while Section 7(g) items (5) and (6) of Resolution
No. 9615 may incidentally restrict the right to free speech of owners of PUVs
and transport terminals, the same is nevertheless constitutionally permissible
since it is a valid content-neutral regulation. The Court does not agree.
A content-neutral regulation, i.e., which is merely concerned with the incidents
of the speech, or one that merely controls the time, place or manner, and under
well-defined standards,16 is constitutionally permissible, even if it restricts the
right to free speech, provided that the following requisites concur: first, the
government regulation is within the constitutional power of the
Government; second, it furthers an important or substantial governmental
interest; third, the governmental interest is unrelated to the suppression of free
expression; and fourth, the incidental restriction on freedom of expression is no
greater than is essential to the furtherance of that interest.17
Section 7(g) items (5) and (6) of Resolution No. 9615 are content-neutral
regulations since they merely control the place where election campaign
materials may be posted. However, the prohibition is still repugnant to the free
speech clause as it fails to satisfy all of the requisites for a valid content-neutral
regulation.
It is conceded that Resolution No. 9615, including the herein assailed
provisions, furthers an important and substantial governmental interest, i.e.,
ensuring equal opportunity, time and space among candidates aimed at the
holding of free, orderly, honest, peaceful, and credible elections. It is further
conceded that the governmental interest in imposing the said prohibition is
unrelated to the suppression of free expression. However, Section 7(g) items
(5) and (6), in relation to Section 7(f), of Resolution No. 9615, are not within the
constitutionally delegated power of the COMELEC under Section 4, Article IX-C
of the Constitution. Also, there is absolutely no necessity to restrict the right to
free speech of the owners of PUVs and transport terminals.
The COMELEC may only regulate
the franchise or permit to operate and
not the ownership per se of PUVs
and transport terminals.
The prohibition under Section 7(g) items (5) and (6), in relation to Section 7(f),
of Resolution No. 9615 is not within the COMELEC's constitutionally delegated
power of supervision or regulation. It is not disputed that the COMELEC has the
power to supervise or regulate the enjoyment or utilization of all franchises or
permits for the operation of transportation utilities during an election period.
Section 4, Article IX-C of the Constitution, thus provides:
Section 4. The Commission may, during the election period, supervise or
regulate the enjoyment or utilization of all franchises or permits for the operation
of transportation and other public utilities, media of communication or
information, all grants, special privileges, or concessions granted by the
Government or any subdivision, agency, or instrumentality thereof, including
any government-owned or controlled corporation or its subsidiary. Such
supervision or regulation shall aim to ensure equal opportunity, time, and
space, and the right to reply, including reasonable, equal rates therefor, for
public information campaigns and forums among candidates in connection with
the objective of holding free, orderly, honest, peaceful, and credible elections.
Nevertheless, the constitutional grant of supervisory and regulatory powers to
the COMELEC over franchises and permits to operate, though seemingly
unrestrained, has its limits. Notwithstanding the ostensibly broad supervisory
and regulatory powers granted to the COMELEC during an election period
under Section 4, Article IX-C of the Constitution, the Court had previously set
out the limitations thereon. In Adiong, the Court, while recognizing that the
COMELEC has supervisory power vis-a-vis the conduct and manner of
elections under Section 4, Article IX-C of the Constitution, nevertheless held
that such supervisory power does not extend to the very freedom of an
individual to express his preference of candidates in an election by placing
election campaign stickers on his vehicle.
In National Press Club v. COMELEC,18 while the Court upheld the
constitutionality of a prohibition on the selling or giving free of charge, except to
the COMELEC, of advertising space and commercial time during an election
period, it was emphasized that the grant of supervisory and regulatory powers
to the COMELEC under Section 4, Article IX-C of the Constitution, is limited to
ensuring equal opportunity, time, space, and the right to reply among
candidates.
Further, in Social Weather Stations, Inc. v. COMELEC,19 the Court,
notwithstanding the grant of supervisory and regulatory powers to the
COMELEC under Section 4, Article IX-C of the Constitution, declared
unconstitutional a regulation prohibiting the release of election surveys prior to
the election since it "actually suppresses a whole class of expression, while
allowing the expression of opinion concerning the same subject matter by
newspaper columnists, radio and [television (TV)] commentators, armchair
theorists, and other opinion makers."20
In the instant case, the Court further delineates the constitutional grant of
supervisory and regulatory powers to the COMELEC during an election period.
As worded, Section 4, Article IX-C of the Constitution only grants COMELEC
supervisory and regulatory powers over the enjoyment or utilization "of all
franchises or permits for the operation," inter alia, of transportation and other
public utilities. The COMELEC's constitutionally delegated powers of
supervision and regulation do not extend to the ownership per se of PUVs and
transport terminals, but only to the franchise or permit to operate the same.
There is a marked difference between the franchise or permit to operate
transportation for the use of the public and the ownership per se of the vehicles
used for public transport. Thus, in Tatad v. Garcia, Jr.,21 the Court explained
that:
What private respondent owns are the rail tracks, rolling stocks like the
coaches, rail stations, terminals and the power plant, not a public utility. While a
franchise is needed to operate these facilities to serve the public, they do not by
themselves constitute a public utility. What constitutes a public utility is not their
ownership but their use to serve the public x x x.
The Constitution, in no uncertain terms, requires a franchise for the operation of
a public utility. However, it does not require a franchise before one can own the
facilities needed to operate a public utility so long as it does not operate them to
serve the public.
xxxx
In law, there is a clear distinction between the "operation" of a public
utility and the ownership of the facilities and equipment used to serve the
public.
xxxx
The right to operate a public utility may exist independently and
separately from the ownership of the facilities thereof. One can own said
facilities without operating them as a public utility, or conversely, one may
operate a public utility without owning the facilities used to serve the
public. The devotion of property to serve the public may be done by the owner
or by the person in control thereof who may not necessarily be the owner
thereof.
This dichotomy between the operation of a public utility and the ownership of
the facilities used to serve the public can be very well appreciated when we
consider the transportation industry. Enfranchised airline and shipping
companies may lease their aircraft and vessels instead of owning them
themselves.22 (Emphases ours)
The franchise or permit to operate transportation utilities is a privilege granted
to certain persons to engage in the business of transporting people or goods; it
does not refer to the ownership of the vehicleper se. Ownership is a relation in
private law by virtue of which a thing pertaining to one person is completely
subjected to his will in everything not prohibited by public law or the
concurrence with the rights of another.23 Thus, the owner of a thing has the right
to enjoy and dispose of a thing, without other limitations than those established
by law.24
One such limitation established by law, as regards PUVs, is the franchise or
permit to operate. However, a franchise or permit to operate a PUV is a
limitation only on certain aspects of the ownership of the vehicle pertinent to the
franchise or permit granted, but not on the totality of the rights of the owner over
the vehicle. Otherwise stated, a restriction on the franchise or permit to operate
transportation utilities is necessarily a limitation on ownership, but a limitation
on the rights of ownership over the PUV is not necessarily a regulation on the
franchise or permit to operate the same.
A franchise or permit to operate transportation utilities pertains to
considerations affecting the operation of the PUV as such, e.g., safety of the
passengers, routes or zones of operation, maintenance of the vehicle, of
reasonable fares, rates, and other charges, or, in certain cases,
nationality.25 Thus, a government issuance, which purports to regulate a
franchise or permit to operate PUVs, must pertain to the considerations
affecting its operation as such. Otherwise, it becomes a regulation or
supervision not on the franchise or permit to operate, but on the very ownership
of the vehicle used for public transport.
The expression of ideas or opinion of an owner of a PUV, through the posting of
election campaign materials on the vehicle, does not affect considerations
pertinent to the operation of the PUV. Surely, posting a decal expressing
support for a certain candidate in an election will not in any manner affect the
operation of the PUV as such. Regulating the expression of ideas or opinion in
a PUV, through the posting of an election campaign material thereon, is not a
regulation of the franchise or permit to operate, but a regulation on the very
ownership of the vehicle.
The dichotomy between the regulation of the franchise or permit to operate of a
PUV and that of the very ownership thereof is better exemplified in the case of
commercial advertisements posted on the vehicle. A prohibition on the posting
of commercial advertisements on a PUV is considered a regulation on the
ownership of the vehicle per se; the restriction on the enjoyment of the
ownership of the vehicle does not have any relation to its operation as a PUV.
On the other hand, prohibitions on the posting of commercial advertisements on
windows of buses, because it hinders police authorities from seeing whether the
passengers inside are safe, is a regulation on the franchise or permit to
operate. It has a direct relation to the operation of the vehicle as a PUV, i.e., the
safety of the passengers.
In the same manner, the COMELEC does not have the constitutional power to
regulate public transport terminals owned by private persons. The ownership of
transport terminals, even if made available for use by the public commuters,
likewise remains private. Although owners of public transport terminals may be
required by local governments to obtain permits in order to operate, the permit
only pertains to circumstances affecting the operation of the transport terminal
as such. The regulation of such permit to operate should similarly be limited to
circumstances affecting the operation of the transport terminal. A regulation of
public transport terminals based on extraneous circumstances, such as
prohibiting the posting of election campaign materials thereon, amounts to
regulating the ownership of the transport terminal and not merely the permit to
operate the same.
Accordingly, Section 7(g) items (5) and (6) of Resolution No. 9615 are not
within the constitutionally delegated power of the COMELEC to supervise or
regulate the franchise or permit to operate of transportation utilities. The posting
of election campaign material on vehicles used for public transport or on
transport terminals is not only a form of political expression, but also an act of
ownership - it has nothing to do with the franchise or permit to operate the PUV
or transport terminal.
The rulings in National Press Club
and Osmena v. COMELEC26
find no application to this case.
The COMELEC pointed out that the issue presented in the instant case is akin
to the Court's rulings in National Press Club and Osmea. It explained that in
both cases, the Court sustained Section II(b) of R.A. No. 6646 or the Electoral
Reforms Law of 1997, which prohibits newspapers, radio broadcasting or TV
stations, and other mass media from selling or giving print space or airtime for
campaign or other political purposes, except to the COMELEC, during the
election campaign. The COMELEC averred that if the legislature can empower
it to impose an advertising ban on mass media, it could likewise empower it to
impose a similar ban on PUVs and transport terminals.
The Court does not agree.
The restriction imposed under Section ll(b) of R.A. No. 6646 has a direct
relation to the enjoyment and utilization of the franchise or permit to operate of
newspapers, radio broadcasting and TV stations, and other mass media, which
the COMELEC has the power to regulate pursuant to Section 4, Article IX-C of
the Constitution. The print space or airtime is an integral part of the franchise or
permit to operate of mass media utilities. Thus, the restriction under Section
ll(b) of R.A. No. 6646 is within the confines of the constitutionally delegated
power of the COMELEC under Section 4, Article IX-C of the Constitution.
On the other hand, the prohibition on the posting of election campaign materials
under Section 7(g) items (5) and (6) of Resolution No. 9615, as already
explained, does not have any relation to the franchise or permit of PUVs and
transport terminals to operate as such and, hence, is beyond the power of the
COMELEC under Section 4, Article IX-C of the Constitution.
The restriction on free speech of
owners of PUVs and transport
terminals is not necessary to
further the stated governmental
interest.
Section 7(g) items (5) and (6) of Resolution No. 9615 likewise failed to satisfy
the fourth requisite of a valid content-neutral regulation, i.e., the incidental
restriction on freedom of expression is no greater than is essential to the
furtherance of that interest. There is absolutely no necessity to restrict the right
of the owners of PUVs and transport terminals to free speech to further the
governmental interest. While ensuring equality of time, space, and opportunity
to candidates is an important and substantial governmental interest and is
essential to the conduct of an orderly election, this lofty aim may be
achieved sans any intrusion on the fundamental right of expression.
First, while Resolution No. 9615 was promulgated by the COMELEC to
implement the provisions of R.A. No. 9006, the prohibition on posting of election
campaign materials on PUVs and transport terminals was not provided for
therein.
Second, there are more than sufficient provisions in our present election laws
that would ensure equal time, space, and opportunity to candidates in elections.
Section 6 of R.A. No. 9006 mandates that "all registered parties and bona fide
candidates shall have equal access to media time and space" and outlines the
guidelines to be observed in the implementation thereof, viz:
Section 6. Equal Access to Media Time and Space. - All registered parties and
bona fide candidates shall have equal access to media time and space. The
following guidelines may be amplified on by the COMELEC:
6.1 Print advertisements shall not exceed one-fourth (1/4) page in broadsheet
and one-half (1/2) page in tabloids thrice a week per newspaper, magazine or
other publications, during the campaign period.
6.2 a. Each bona fide candidate or registered political party for a nationally
elective office shall be entitled to not more than one hundred twenty (120)
minutes of television advertisement and one hundred eighty (180) minutes of
radio advertisement whether by purchase or donation.
b. Each bona fide candidate or registered political party for a locally elective
office shall be entitled to not more than sixty (60) minutes of television
advertisement and ninety (90) minutes of radio advertisement whether by
purchase or donation.
For this purpose, the COMELEC shall require any broadcast station or entity to
submit to the COMELEC a copy of its broadcast logs and certificates of
performance for the review and verification of the frequency, date, time and
duration of advertisements broadcast for any candidate or political party.
6.3 All mass media entities shall furnish the COMELEC with a copy of all
contracts for advertising, promoting or opposing any political party or the
candidacy of any person for public office within five (5) days after its signing. In
every case, it shall be signed by the donor, the candidate concerned or by the
duly authorized representative of the political party.
6.4 No franchise or permit to operate a radio or television station shall be
granted or issued, suspended or cancelled during the election period. In all
instances, the COMELEC shall supervise the use and employment of press,
radio and television facilities insofar as the placement of political
advertisements is concerned to ensure that candidates are given equal
opportunities under equal circumstances to make known their qualifications and
their stand on public issues within the limits set forth in the Omnibus Election
Code and Republic Act No. 7166 on election spending.
The COMELEC shall ensure that radio or television or cable television
broadcasting entities shall not allow the scheduling of any program or permit
any sponsor to manifestly favor or oppose any candidate or political party by
unduly or repeatedly referring to or including said candidate and/or political
party in such program respecting, however, in all instances the right of said
broadcast entities to air accounts of significant news or news worthy events and
views on matters of public interest.
6.5 All members of media, television, radio or print, shall scrupulously report
and interpret the news, taking care not to suppress essential facts nor to distort
the truth by omission or improper emphasis. They shall recognize the duty to air
the other side and the duty to correct substantive errors promptly.
6.6 Any mass media columnist, commentator, announcer, reporter, on-air
correspondent or personality who is a candidate for any elective public office or
is a campaign volunteer for or employed or retained in any capacity by any
candidate or political party shall be deemed resigned, if so required by their
employer, or shall take a leave of absence from his/her work as such during the
campaign period: Provided, That any media practitioner who is an official of a
political party or a member of the campaign staff of a candidate or political party
shall not use his/her time or space to favor any candidate or political party.
6.7 No movie, cinematograph or documentary portraying the life or biography of
a candidate shall be publicly exhibited in a theater, television station or any
public forum during the campaign period.
6.8 No movie, cinematograph or documentary portrayed by an actor or media
personality who is himself a candidate shall likewise be publicly exhibited in a
theater or any public forum during the campaign period.
Section 9 of R.A. No. 9006 authorizes political parties and party-list groups and
independent candidates to erect common poster areas and candidates to post
lawful election campaign materials in private places, with the consent of the
owner thereof, and in public places or property, which are allocated equitably
and impartially.
Further, Section 1327 of R.A. No. 716628 provides for the authorized expenses
of registered political parties and candidates for every voter; it affords
candidates equal opportunity in their election campaign by regulating the
amount that should be spent for each voter. Likewise, Section 1429 of R.A. No.
7166 requires all candidates and treasurers of registered political parties to
submit a statement of all contributions and expenditures in connection with the
election. Section 14 is a post-audit measure that aims to ensure that the
candidates did not overspend in their election campaign, thereby enforcing the
grant of equal opportunity to candidates under Section 13.
A strict implementation of the foregoing provisions of law would suffice to
achieve the governmental interest of ensuring equal time, space, and
opportunity for candidates in elections. There is thus no necessity of still
curtailing the right to free speech of the owners of PUVs and transport terminals
by prohibiting them from posting election campaign materials on their
properties.
Section 7(g) items (5) and (6) of
Resolution No. 9615 are not justified under
the captive-audience doctrine.
The COMELEC further points out that PUVs and transport terminals hold a
"captive audience" - commuters who have no choice but be subjected to the
blare of political propaganda. The COMELEC further claims that while owners
of privately owned PUVs and transport terminals have a right to express their
views to those who wish to listen, they have no right to force their message
upon an audience incapable of declining to receive it.
The COMELEC's claim is untenable.
The captive-audience doctrine states that when a listener cannot, as a practical
matter, escape from intrusive speech, the speech can be restricted. 30 The
"captive-audience" doctrine recognizes that a listener has a right not to be
exposed to an unwanted message in circumstances in which the
communication cannot be avoided.31
A regulation based on the captive-audience doctrine is in the guise of
censorship, which undertakes selectively to shield the public from some kinds of
speech on the ground that they are more offensive than others. Such selective
restrictions have been upheld only when the speaker intrudes on the privacy of
the home or the degree of captivity makes it either impossible or impractical for
the unwilling viewer or auditor to avoid exposure.32
In Consolidated Edison Co. v. Public Service Commission,33 the Supreme Court
of the United States of America (U.S. Supreme Court) struck down the order of
New York Public Service Commission, which prohibits public utility companies
from including inserts in monthly bills discussing controversial issues of public
policy. The U.S. Supreme Court held that "[t]he prohibition cannot be justified as
being necessary to avoid forcing appellant's views on a captive audience, since
customers may escape exposure to objectionable material simply by throwing
the bill insert into a wastebasket."34
Jacksonville,35
Similarly, in Erznoznik v. City of the U.S. Supreme Court nullified
a city ordinance, which made it a public nuisance and a punishable offense for
a drive-in movie theater to exhibit films containing nudity, when the screen is
visible from a public street or place. The U.S. Supreme Court opined that the
degree of captivity is not so great as to make it impracticable for an unwilling
viewer to avoid exposure, thus:
The Jacksonville ordinance discriminates among movies solely on the basis of
content. Its effect is to deter drive-in theaters from showing movies containing
any nudity, however innocent or even educational. This discrimination cannot
be justified as a means of preventing significant intrusions on privacy. The
ordinance seeks only to keep these films from being seen from public streets
and places where the offended viewer readily can avert his eyes. In short, the
screen of a drive-in theater is not "so obtrusive as to make it impossible
for an unwilling individual to avoid exposure to it." x x x Thus, we conclude
that the limited privacy interest of persons on the public streets cannot justify
this censorship of otherwise protected speech on the basis of its
content.36(Emphasis ours)
Thus, a government regulation based on the captive-audience doctrine may not
be justified if the supposed "captive audience" may avoid exposure to the
otherwise intrusive speech. The prohibition under Section 7(g) items (5) and (6)
of Resolution No. 9615 is not justified under the captive-audience doctrine; the
commuters are not forced or compelled to read the election campaign materials
posted on PUVs and transport terminals. Nor are they incapable of declining to
receive the messages contained in the posted election campaign materials
since they may simply avert their eyes if they find the same unbearably
intrusive.
The COMELEC, in insisting that it has the right to restrict the posting of election
campaign materials on PUVs and transport terminals, cites Lehman v. City of
Shaker Heights,37 a case decided by the U.S. Supreme Court. In Lehman, a
policy of the city government, which prohibits political advertisements on
government-run buses, was upheld by the U.S. Supreme Court. The U.S.
Supreme Court held that the advertising space on the buses was not a public
forum, pointing out that advertisement space on government-run buses,
"although incidental to the provision of public transportation, is a part of
commercial venture."38 In the same way that other commercial ventures need
not accept every proffer of advertising from the general public, the city's transit
system has the discretion on the type of advertising that may be displayed on
its vehicles.
Concurring in the judgment, Justice Douglas opined that while Lehman, a
candidate for state office who sought to avail himself of advertising space on
government-run buses, "clearly has a right to express his views to those who
wish to listen, he has no right to force his message upon an audience incapable
of declining to receive it."39 Justice Douglas concluded: "the right of the
commuters to be free from forced intrusions on their privacy precludes the city
from transforming its vehicles of public transportation into forums for the
dissemination of ideas upon this captive audience."40
The COMELEC's reliance on Lehman is utterly misplaced.
In Lehman, the political advertisement was intended for PUVs owned by the city
government; the city government, as owner of the buses, had the right to decide
which type of advertisements would be placed on its buses. The U.S. Supreme
Court gave primacy to the city government's exercise of its managerial
decision, viz:
Revenue earned from long-term commercial advertising could be jeopardized
by a requirement that short-term candidacy or issue-oriented advertisements be
displayed on car cards. Users would be subjected to the blare of political
propaganda. There could be lurking doubts about favoritism, and sticky
administrative problems might arise in parceling out limited space to eager
politicians. In these circumstances, the managerial decision to limit car
card space to innocuous and less controversial commercial and service-
oriented advertising does not rise to the dignity of First Amendment
violation. Were we to hold to the contrary, display cases in public hospitals,
libraries, office buildings, military compounds, and other public facilities
immediately would become Hyde Parks open to every would be pamphleteer
and politician. This the Constitution does not require.41 (Emphasis ours)
Lehman actually upholds the freedom of the owner of the utility vehicles, i.e.,
the city government, in choosing the types of advertisements that would be
placed on its properties. In stark contrast, Section 7(g) items (5) and (6) of
Resolution No. 9615 curtail the choice of the owners of PUVs and transport
terminals on the advertisements that may be posted on their properties.
Also, the city government in Lehman had the right, nay the duty, to refuse
political advertisements on their buses. Considering that what were involved
were facilities owned by the city government, impartiality, or the appearance
thereof, was a necessity. In the instant case, the ownership of PUVs and
transport terminals remains private; there exists no valid reason to suppress
their political views by proscribing the posting of election campaign materials on
their properties.
Prohibiting owners of PUVs and transport
terminals from posting election campaign
materials violates the equal protection
clause.
Section 7(g) items (5) and (6) of Resolution No. 9615 do not only run afoul of
the free speech clause, but also of the equal protection clause. One of the basic
principles on which this government was founded is that of the equality of right,
which is embodied in Section 1, Article III of the 1987 Constitution.42 "Equal
protection requires that all persons or things similarly situated should be treated
alike, both as to rights conferred and responsibilities imposed. Similar subjects,
in other words, should not be treated differently, so as to give undue favor to
some and unjustly discriminate against others."43
"The equal protection clause is aimed at all official state actions, not just those
of the legislature. Its inhibitions cover all the departments of the government
including the political and executive departments, and extend to all actions of a
state denying equal protection of the laws, through whatever agency or
whatever guise is taken."44
Nevertheless, the guaranty of equal protection of the laws is not a guaranty of
equality in the application of the laws to all citizens of the state. Equality of
operation of statutes does not mean their indiscriminate operation on persons
merely as such, but on persons according to the circumstances surrounding
them. It guarantees equality, not identity of rights. The Constitution does not
require that things, which are different in fact, be treated in law as though they
were the same. The equal protection clause does not forbid discrimination as to
things that are different.45
In order that there can be valid classification so that a discriminatory
governmental act may pass the constitutional norm of equal protection, it is
necessary that the four requisites of valid classification be complied with,
namely: (1) it must be based upon substantial distinctions; (2) it must be
germane to the purposes of the law; (3) it must not be limited to existing
conditions only; and (4) it must apply equally to all members of the class. 46 x ------------------------------------------------- x

It is conceded that the classification under Section 7(g) items (5) and (6) of JESS DEL PRADO, WILSON
Resolution No. 9615 is not limited to existing conditions and applies equally to FORTALEZA, LEODY DE GUZMAN,
the members of the purported class. However, the classification remains PEDRO PINLAC, CARMELITA
MORANTE, RASTI DELIZO, PAUL
constitutionally impermissible since it is not based on substantial distinction and
BANGAY, MARIE JO OCAMPO,
is not germane to the purpose of the law. LILIA DELA CRUZ, CRISTETA
RAMOS, ADELAIDA RAMOS,
A distinction exists between PUVs and transport terminals and private vehicles MARY GRACE GONZALES, MICHAEL
and other properties in that the former, to be considered as such, needs to TORRES, RENDO SABUSAP,
secure from the government either a franchise or a permit to operate. PRECIOUS BALUTE, ROXANNE
Nevertheless, as pointed out earlier, the prohibition imposed under Section 7(g) MAGBOO, ERNIE BAUTISTA,
items (5) and (6) of Resolution No. 9615 regulates the ownership per se of the JOSEPH DE JESUS, MARGARITA
PUV and transport terminals; the prohibition does not in any manner affect the ESCOBER, DJOANNALYN JANIER,
franchise or permit to operate of the PUV and transport terminals. MAGDALENA SELLOTE, MANNY
QUIAZON, ERICSON DIZON,
As regards ownership, there is no substantial distinction between owners of NENITA CRUZAT, LEONARDO
PUVs and transport terminals and owners of private vehicles and other DE LOS REYES, PEDRITO
properties. As already explained, the ownership of PUVs and transport FADRIGON,
Petitioners,
terminals, though made available for use by the public, remains private. If
owners of private vehicles and other properties are allowed to express their
political ideas and opinion by posting election campaign materials on their - versus - G.R. No. 169848
properties, there is no cogent reason to deny the same preferred right to
owners of PUVs and transport terminals. In terms of ownership, the distinction
between owners of PUVs and transport terminals and owners of private EDUARDO ERMITA, in his Present:
vehicles and properties is merely superficial. Superficial differences do not official capacity as The Executive
make for a valid classification.47 Secretary and in his personal PANGANIBAN, C.J.,
capacity, ANGELO REYES, in his PUNO,*
The fact that PUVs and transport terminals are made available for use by the official capacity as Secretary of QUISUMBING,
public is likewise not substantial justification to set them apart from private the Interior and Local Governments, YNARES-SANTIAGO,
vehicles and other properties. Admittedly, any election campaign material that ARTURO LOMIBAO, in his SANDOVAL-GUTIERREZ,
would be posted on PUVs and transport terminals would be seen by many official capacity as the Chief, CARPIO,
people. However, election campaign materials posted on private vehicles and Philippine National Police, VIDAL AUSTRIA-MARTINEZ,
QUEROL, in his official capacity CORONA,
other places frequented by the public, e.g., commercial establishments, would
as the Chief, National Capital CARPIO MORALES,
also be seen by many people. Thus, there is no reason to single out owners of Regional Police Office (NCRPO), CALLEJO, SR.,
PUVs and transport terminals in the prohibition against posting of election PEDRO BULAONG, in his official AZCUNA,
campaign materials. capacity as the Chief, Manila TINGA,
Police District (MPD) AND ALL CHICO-NAZARIO,**
Further, classifying owners of PUVs and transport terminals apart from owners OTHER PUBLIC OFFICERS GARCIA, and
of private vehicles and other properties bears no relation to the stated purpose AND PRIVATE INDIVIDUALS VELASCO, JJ.
of Section 7(g) items (5) and (6) of Resolution No. 9615, i.e., to provide equal ACTING UNDER THEIR CONTROL,
time, space and opportunity to candidates in elections. To stress, PUVs and SUPERVISION AND INSTRUCTIONS, Promulgated:
transport terminals are private properties. Indeed, the nexus between the Respondents.
restriction on the freedom of expression of owners of PUVs and transport April 25, 2006
terminals and the government's interest in ensuring equal time, space, and x -------------------------------------------------- x
opportunity for candidates in elections was not established by the COMELEC. KILUSANG MAYO UNO, represented
by its Chairperson ELMER C. LABOG
In sum, Section 7(g) items (5) and (6), in relation to Section 7(f), of Resolution and Secretary General JOEL
No. 9615 violate the free speech clause; they are content-neutral regulations, MAGLUNSOD, NATIONAL
which are not within the constitutional power of the COMELEC issue and are FEDERATION OF LABOR
not necessary to further the objective of ensuring equal time, space and UNIONS-KILUSANG MAYO UNO G.R. No. 169881
opportunity to the candidates. They are not only repugnant to the free speech (NAFLU-KMU), represented by its
clause, but are also violative of the equal protection clause, as there is National President, JOSELITO V.
no substantial distinction between owners of PUVs and transport terminals and USTAREZ, ANTONIO C. PASCUAL,
owners of private vehicles and other properties. SALVADOR T. CARRANZA, GILDA
SUMILANG, FRANCISCO
On a final note, it bears stressing that the freedom to advertise one's political LASTRELLA, and ROQUE M. TAN,
candidacy is clearly a significant part of our freedom of expression. A restriction Petitioners,
on this freedom without rhyme or reason is a violation of the most valuable - versus -
feature of the democratic way of life.48
THE HONORABLE EXECUTIVE
WHEREFORE, in light of the foregoing disquisitions, the instant petition is SECRETARY, PNP DIRECTOR
hereby GRANTED. Section 7(g) items (5) and (6), in relation to Section 7(f), of GENRAL ARTURO LOMIBAO,
Resolution No. 9615 issued by the Commission on Elections are hereby HONORABLE MAYOR LITO
declared NULL and VOID for being repugnant to Sections 1 and 4, Article III of ATIENZA, and PNP MPD CHIEF
the 1987 Constitution. SO ORDERED. SUPT. PEDRO BULAONG,
Respondents.

KILUSANG MAGBUBUKID Petitioners come in three groups.

NG PILIPINAS (KMP),
GABRIELA, Fr. Jose Dizon,
Renato Constantino, Jr., Froyel The first petitioners, Bayan, et al., in G.R. No. 169838,[1] allege that they are
Yaneza, and Fahima Tajar, citizens and taxpayers of the Philippines and that their rights as organizations
Petitioners, and individuals were violated when the rally they participated in on October 6,
2005 was violently dispersed by policemen implementing Batas Pambansa
- versus - G.R. No. 169838 (B.P.) No. 880.

EDUARDO ERMITA, in his

The second group consists of 26 individual petitioners, Jess del Prado, et al.,
capacity as Executive Secretary, in G.R. No. 169848,[2] who allege that they were injured, arrested and detained
Manila City Mayor LITO when a peaceful mass action they held on September 26, 2005 was preempted
ATIENZA, Chief of the Philippine and violently dispersed by the police. They further assert that on October 5,
National Police, Gen. ARTURO 2005, a group they participated in marched to Malacaang to protest issuances
M. LOMIBAO, NCRPO Chief of the Palace which, they claim, put the country under an undeclared martial
Maj. Gen. VIDAL QUEROL, rule, and the protest was likewise dispersed violently and many among them
and Western Police District Chief were arrested and suffered injuries.
Gen. PEDRO BULAONG,
Respondents.
The third group, Kilusang Mayo Uno (KMU), et al., petitioners in G.R. No.
169881,[3] allege that they conduct peaceful mass actions and that their rights
as organizations and those of their individual members as citizens, specifically
the right to peaceful assembly, are affected by Batas Pambansa No. 880 and
the policy of Calibrated Preemptive Response (CPR) being followed to
implement it.
KMU, et al., claim that on October 4, 2005, a rally KMU co-sponsored was to
be conducted at the Mendiola bridge but police blocked them along C.M. Recto
and Lepanto Streets and forcibly dispersed them, causing injuries to several of
their members. They further allege that on October 6, 2005, a multi-sectoral
rally which KMU also co-sponsored was scheduled to proceed along Espaa
Avenue in front of the University of Santo Tomas and going towards Mendiola
bridge. Police officers blocked them along Morayta Street and prevented them
from proceeding further. They were then forcibly dispersed, causing injuries on
one of them.[4] Three other rallyists were arrested.
All petitioners assail Batas Pambansa No. 880, some of them in toto and others
only Sections 4, 5, 6, 12, 13(a), and 14(a), as well as the policy of CPR. They
seek to stop violent dispersals of rallies under the no permit, no rally policy and
the CPR policy recently announced.
B.P. No. 880, The Public Assembly Act of 1985, provides:
Batas Pambansa Blg. 880
AN ACT ENSURING THE FREE EXERCISE BY THE
PEOPLE OF THEIR RIGHT PEACEABLY TO
ASSEMBLE AND PETITION THE
GOVERNMENT [AND] FOR OTHER
PURPOSES
Be it enacted by the Batasang Pambansa in session
assembled:
SECTION 1. Title. This Act shall be known as The Public
Assembly Act of 1985.
SEC. 2. Declaration of policy. The constitutional right of the people
peaceably to assemble and petition the government for redress of
grievances is essential and vital to the strength and stability of the
State. To this end, the State shall ensure the free exercise of such
right without prejudice to the rights of others to life, liberty and equal
protection of the law.
SEC. 3. Definition of terms. For purposes of this Act:
(a) Public assembly means any rally, demonstration,
march, parade, procession or any other form of mass or concerted
action held in a public place for the purpose of presenting a lawful
cause; or expressing an opinion to the general public on any
particular issue; or protesting or influencing any state of affairs
whether political, economic or social; or petitioning the government
for redress of grievances.
The processions, rallies, parades, demonstrations, public meetings
and assemblages for religious purposes shall be governed by local
ordinances; Provided, however, That the declaration of policy as
provided in Section 2 of this Act shall be faithfully observed.
The definition herein contained shall not include picketing and other
concerted action in strike areas by workers and employees resulting
from a labor dispute as defined by the Labor Code, its implementing
rules and regulations, and by the Batas Pambansa Bilang 227.
(b) Public place shall include any highway, boulevard, avenue, road,
street, bridge or other thoroughfare, park, plaza, square, and/or any
open space of public ownership where the people are allowed
access.
(c) Maximum tolerance means the highest degree of restraint that
the military, police and other peace keeping authorities shall
observe during a public assembly or in the dispersal of the same.
(d) Modification of a permit shall include the change of the place
and time of the public assembly, rerouting of the parade or street
march, the volume of loud-speakers or sound system and similar
changes.
SEC. 4. Permit when required and when not required. A written
permit shall be required for any person or persons to organize and
hold a public assembly in a public place. However, no permit shall
be required if the public assembly shall be done or made in a
freedom park duly established by law or ordinance or in private
property, in which case only the consent of the owner or the one
entitled to its legal possession is required, or in the campus of a
government-owned and operated educational institution which shall
be subject to the rules and regulations of said educational
institution. Political meetings or rallies held during any election
campaign period as provided for by law are not covered by this Act.
SEC. 5. Application requirements. All applications for a permit shall
comply with the following guidelines:
(a) The applications shall be in writing and shall
include the names of the leaders or organizers; the purpose of such
public assembly; the date, time and duration thereof, and place or
streets to be used for the intended activity; and the probable
number of persons participating, the transport and the public
address systems to be used.
(b) The application shall incorporate the duty
and responsibility of the applicant under Section 8 hereof.
(c) The application shall be filed with the office
of the mayor of the city or municipality in whose jurisdiction the
intended activity is to be held, at least five (5) working days before
the scheduled public assembly.
(d) Upon receipt of the application, which must
be duly acknowledged in writing, the office of the city or municipal
mayor shall cause the same to immediately be posted at a
conspicuous place in the city or municipal building.
SEC. 6. Action to be taken on the application.
(a) It shall be the duty of the mayor or any
official acting in his behalf to issue or grant a permit unless there is
clear and convincing evidence that the public assembly will create a
clear and present danger to public order, public safety, public
convenience, public morals or public health.
(b) The mayor or any official acting in his behalf
shall act on the application within two (2) working days from the
date the application was filed, failing which, the permit shall be
deemed granted. Should for any reason the mayor or any official
acting in his behalf refuse to accept the application for a permit, said
application shall be posted by the applicant on the premises of the
office of the mayor and shall be deemed to have been filed.
(c) If the mayor is of the view that there is imminent and
grave danger of a substantive evil warranting the denial or modification of
the permit, he shall immediately inform the applicant who must be heard on
the matter.
(d) The action on the permit shall be in writing
and served on the applica[nt] within twenty-four hours.
(e) If the mayor or any official acting in his behalf
denies the application or modifies the terms thereof in his permit, the
applicant may contest the decision in an appropriate court of law.
(f) In case suit is brought before the
Metropolitan Trial Court, the Municipal Trial Court, the Municipal
Circuit Trial Court, the Regional Trial Court, or the Intermediate
Appellate court, its decisions may be appealed to the appropriate
court within forty-eight (48) hours after receipt of the same. No
appeal bond and record on appeal shall be required. A decision
granting such permit or modifying it in terms satisfactory to the
applicant shall be immediately executory.
(g) All cases filed in court under this section shall
be decided within twenty-four (24) hours from date of filing. Cases
filed hereunder shall be immediately endorsed to the executive judge
for disposition or, in his absence, to the next in rank.
(h) In all cases, any decision may be appealed
to the Supreme Court.
(i) Telegraphic appeals to be
followed by formal appeals are hereby allowed.
SEC. 7. Use of Public throroughfare. Should the proposed
public assembly involve the use, for an appreciable length of time, of
any public highway, boulevard, avenue, road or street, the mayor or
any official acting in his behalf may, to prevent grave public
inconvenience, designate the route thereof which is convenient to
the participants or reroute the vehicular traffic to another direction so
that there will be no serious or undue interference with the free flow
of commerce and trade.
SEC. 8. Responsibility of applicant. It shall be the duty
and responsibility of the leaders and organizers of a public assembly
to take all reasonable measures and steps to the end that the
intended public assembly shall be conducted peacefully in
accordance with the terms of the permit. These shall include but not
be limited to the following:

(a) To inform the participants of their
responsibility under the permit;
(b) To police the ranks of the demonstrators in
order to prevent non-demonstrators from disrupting the lawful
activities of the public assembly;
(c) To confer with local government officials concerned and
law enforcers to the end that the public assembly may be held peacefully;
(d) To see to it that the public assembly
undertaken shall not go beyond the time stated in the permit; and
(e) To take positive steps that demonstrators do not molest
any person or do any act unduly interfering with the rights of other persons not
participating in the public assembly.
SEC. 9. Non-interference by law enforcement authorities. Law
enforcement agencies shall not interfere with the holding of a public
assembly. However, to adequately ensure public safety, a law enforcement
contingent under the command of a responsible police officer may be detailed
and stationed in a place at least one hundred (100) meters away from the area
of activity ready to maintain peace and order at all times.
SEC. 10. Police assistance when requested. It shall be imperative
for law enforcement agencies, when their assistance is requested by the
leaders or organizers, to perform their duties always mindful that their
responsibility to provide proper protection to those exercising their right
peaceably to assemble and the freedom of expression is primordial. Towards
this end, law enforcement agencies shall observe the following guidelines:
(a) Members of the law enforcement contingent who deal
with the demonstrators shall be in complete uniform with their nameplates and
units to which they belong displayed prominently on the front and dorsal parts
of their uniform and must observe the policy of maximum tolerance as herein
defined;
(b) The members of the law enforcement contingent shall
not carry any kind of firearms but may be equipped with baton or riot sticks,
shields, crash helmets with visor, gas masks, boots or ankle high shoes with
shin guards;
(c) Tear gas, smoke grenades, water cannons, or any similar anti-
riot device shall not be used unless the public assembly is attended
by actual violence or serious threats of violence, or deliberate
destruction of property.
SEC. 11. Dispersal of public assembly with permit. No public assembly with
a permit shall be dispersed. However, when an assembly becomes
violent, the police may disperse such public assembly as follows:
(a) At the first sign of impending violence, the ranking officer of the
law enforcement contingent shall call the attention of the leaders of
the public assembly and ask the latter to prevent any possible
disturbance;
(b) If actual violence starts to a point where rocks or other harmful
objects from the participants are thrown at the police or at the non-
participants, or at any property causing damage to such property,
the ranking officer of the law enforcement contingent shall audibly
warn the participants that if the disturbance persists, the public
assembly will be dispersed;
(c) If the violence or disturbance prevailing as stated in the
preceding subparagraph should not stop or abate, the ranking
officer of the law enforcement contingent shall audibly issue a
warning to the participants of the public assembly, and after
allowing a reasonable period of time to lapse, shall immediately
order it to forthwith disperse;
(d) No arrest of any leader, organizer or participant shall also be
made during the public assembly unless he violates during the
assembly a law, statute, ordinance or any provision of this
Act. Such arrest shall be governed by Article 125 of the Revised
Penal Code, as amended;
(e) Isolated acts or incidents of disorder or breach of the peace
during the public assembly shall not constitute a ground for
dispersal.
SEC. 12. Dispersal of public assembly without permit. When the public
assembly is held without a permit where a permit is required, the
said public assembly may be peacefully dispersed.
SEC. 13. Prohibited acts. The following shall constitute violations of the Act:
(a) The holding of any public assembly as
defined in this Act by any leader or organizer without having first
secured that written permit where a permit is required from the
office concerned, or the use of such permit for such purposes in any
place other than those set out in said permit: Provided, however,
That no person can be punished or held criminally liable for
participating in or attending an otherwise peaceful assembly;
(b) Arbitrary and unjustified denial or
modification of a permit in violation of the provisions of this Act by
the mayor or any other official acting in his behalf;
(c) The unjustified and arbitrary refusal to
accept or acknowledge receipt of the application for a permit by the
mayor or any official acting in his behalf;
(d) Obstructing, impeding, disrupting or
otherwise denying the exercise of the right to peaceful assembly;
(e) The unnecessary firing of firearms by a
member of any law enforcement agency or any person to disperse
the public assembly;
(f) Acts in violation of Section 10 hereof;
(g) Acts described hereunder if committed
within one hundred (100) meters from the area of activity of the
public assembly or on the occasion thereof:
1. the carrying of a deadly or offensive
weapon or device such as firearm, pillbox,
bomb, and the like;
2. the carrying of a bladed weapon and
the like;
3. the malicious burning of any object in
the streets or thoroughfares;
4. the carrying of firearms by members of
the law enforcement unit;
5. the interfering with or intentionally
disturbing the holding of a public assembly
by the use of a motor vehicle, its horns and
loud sound systems.
SEC. 14. Penalties. Any person found guilty and
convicted of any of the prohibited acts defined in the immediately
preceding section shall be punished as follows:
(a) violation of subparagraph (a) shall be
punished by imprisonment of one month and one day to six
months;
(b) violations of subparagraphs (b), (c), (d),
(e), (f), and item 4, subparagraph (g) shall be punished by
imprisonment of six months and one day to six years;
(c) violation of item 1, subparagraph (g) shall
be punished by imprisonment of six months and one day to six
years without prejudice to prosecution under Presidential Decree
No. 1866;
(d) violations of item 2, item 3, or item 5 of
subparagraph (g) shall be punished by imprisonment of one day
to thirty days.
SEC. 15. Freedom parks. Every city and municipality in
the country shall within six months after the effectivity of this Act
establish or designate at least one suitable freedom park or mall
in their respective jurisdictions which, as far as practicable, shall
be centrally located within the poblacion where demonstrations
and meetings may be held at any time without the need of any
prior permit.
In the cities and municipalities of Metropolitan Manila, the
respective mayors shall establish the freedom parks within the
period of six months from the effectivity this Act.
SEC. 16. Constitutionality. Should any provision of this Act be
declared invalid or unconstitutional, the validity or constitutionality
of the other provisions shall not be affected thereby.
SEC. 17. Repealing clause. All laws, decrees, letters of
instructions, resolutions, orders, ordinances or parts thereof which
are inconsistent with the provisions of this Act are hereby
repealed, amended, or modified accordingly.
SEC. 18. Effectivity. This Act shall take effect upon its approval.
 Approved, October 22, 1985.
CPR, on the other hand, is a policy set forth in a press release by Malacaang
dated September 21, 2005, shown in Annex A to the Petition in G.R. No.
169848, thus:
Malacaang Official
Manila, Philippines NEWS
Release No. 2 September 21, 2005
STATEMENT OF EXECUTIVE SECRETARY EDUARDO
ERMITA
On Unlawful Mass Actions
In view of intelligence reports pointing to credible plans of
anti-government groups to inflame the political situation,
sow disorder and incite people against the duly
constituted authorities, we have instructed the PNP as
well as the local government units to strictly enforce a no
permit, no rally policy, disperse groups that run afoul of
this standard and arrest all persons violating the laws of
the land as well as ordinances on the proper conduct of
mass actions and demonstrations.
The rule of calibrated preemptive response is now in
force, in lieu of maximum tolerance. The authorities will
not stand aside while those with ill intent are herding a
witting or unwitting mass of people and inciting them into
actions that are inimical to public order, and the peace of
mind of the national community.
Unlawful mass actions will be dispersed. The majority of
law-abiding citizens have the right to be protected by a
vigilant and proactive government.
We appeal to the detractors of the government to engage
in lawful and peaceful conduct befitting of a democratic
society.
The Presidents call for unity and reconciliation stands,
based on the rule of law.
Petitioners Bayan, et al., contend that Batas Pambansa No. 880 is clearly a
violation of the Constitution and the International Covenant on Civil and Political
Rights and other human rights treaties of which the Philippines is a signatory.[5]
They argue that B.P. No. 880 requires a permit before one can stage a public
assembly regardless of the presence or absence of a clear and present
danger. It also curtails the choice of venue and is thus repugnant to the freedom
of expression clause as the time and place of a public assembly form part of the
message for which the expression is sought. Furthermore, it is not content-
neutral as it does not apply to mass actions in support of the government. The
words lawful cause, opinion, protesting or influencing suggest the exposition of
some cause not espoused by the government. Also, the phrase maximum
tolerance shows that the law applies to assemblies against the government
because they are being tolerated. As a content-based legislation, it cannot pass
the strict scrutiny test.
Petitioners Jess del Prado, et al., in turn, argue that B.P. No. 880 is
unconstitutional as it is a curtailment of the right to peacefully assemble and
petition for redress of grievances because it puts a condition for the valid
exercise of that right. It also characterizes public assemblies without a permit as
illegal and penalizes them and allows their dispersal. Thus, its provisions are
not mere regulations but are actually prohibitions.
Furthermore, the law delegates powers to the Mayor without providing clear
standards. The two standards stated in the laws (clear and present danger and
imminent and grave danger) are inconsistent.
Regarding the CPR policy, it is void for being an ultra vires act that alters the
standard of maximum tolerance set forth in B.P. No. 880, aside from being void
for being vague and for lack of publication.
Finally, petitioners KMU, et al., argue that the Constitution sets no limits on the
right to assembly and therefore B.P. No. 880 cannot put the prior requirement of
securing a permit. And even assuming that the legislature can set limits to this
right, the limits provided are unreasonable: First, allowing the Mayor to deny the
permit on clear and convincing evidence of a clear and present danger is too
comprehensive.Second, the five-day requirement to apply for a permit is too
long as certain events require instant public assembly, otherwise interest on the
issue would possibly wane.
As to the CPR policy, they argue that it is preemptive, that the government
takes action even before the rallyists can perform their act, and that no law,
ordinance or executive order supports the policy.Furthermore, it contravenes
the maximum tolerance policy of B.P. No. 880 and violates the Constitution as it
causes a chilling effect on the exercise by the people of the right to peaceably
assemble.
Respondents in G.R. No. 169838 are Eduardo Ermita, as Executive
Secretary, Manila City Mayor Lito Atienza, Chief, of the Philippine National
Police (PNP) Gen. Arturo Lomibao, National Capital Region Police Office
(NCRPO) Chief, PNP Maj. Gen. Vidal Querol, and Manila Police District (MPD)
Chief Gen. Pedro Bulaong.
Respondents in G.R. No. 169848 are Eduardo Ermita as Executive Secretary
and in his personal capacity; Angelo Reyes, as Secretary of the Interior and
Local Governments; Arturo Lomibao, as Chief Vidal Querol, as Chief,
NCRPO; Pedro Bulaong, as Chief, MPD, and all other public officers and
private individuals acting under their control, supervision and instruction.
Respondents in G.R. No. 169881 are the Honorable Executive Secretary,
PNP Director General Arturo Lomibao, the Honorable Mayor Joselito
Atienza, and PNP MPD Chief Pedro Bulaong.
Respondents argue that:
1. Petitioners have no standing because they have not
presented evidence that they had been injured, arrested or detained because of
the CPR, and that those arrested stand to be charged with violating Batas
Pambansa [No.] 880 and other offenses.
2. Neither B.P. No. 880 nor CPR is void on its
face. Petitioners cannot honestly claim that the time, place and manner
regulation embodied in B.P. No. 880 violates the three-pronged test for such a
measure, to wit: (a) B.P. No. 880 is content-neutral, i.e., it has no reference to
content of regulated speech; (b) B.P. No. 880 is narrowly tailored to serve a
significant governmental interest, i.e., the interest cannot be equally well served
by a means that is less intrusive of free speech interests; and (c) B.P. No. 880
leaves open alternative channels for communication of the information.[6]
3. B.P. No. 880 is content-neutral as seen from the text of
the law. Section 5 requires the statement of the public assemblys time, place
and manner of conduct. It entails traffic re-routing to prevent grave public
inconvenience and serious or undue interference in the free flow of commerce
and trade. Furthermore, nothing in B.P. No. 880 authorizes the denial of a
permit on the basis of a rallys program content or the statements of the
speakers therein, except under the constitutional precept of the clear and
present danger test. The status of B.P. No. 880 as a content-neutral regulation
has been recognized in Osmea v. Comelec.[7]
4. Adiong v. Comelec[8] held that B.P. No. 880 is a content-
neutral regulation of the time, place and manner of holding public assemblies
and the law passes the test for such regulation, namely, these regulations need
only a substantial governmental interest to support them.
5. Sangalang v. Intermediate Appellate Court[9] held that a
local chief executive has the authority to exercise police power to meet the
demands of the common good in terms of traffic decongestion and public
convenience. Furthermore, the discretion given to the mayor is narrowly
circumscribed by Sections 5 (d), and 6 (a), (b), (c), (d), (e), 13 and 15 of the
law.
6. The standards set forth in the law are not
inconsistent. Clear and convincing evidence that the public assembly will create
a clear and present danger to public order, public safety, public convenience,
public morals or public health and imminent and grave danger of a substantive
evil both express the meaning of the clear and present danger test.[10]
7. CPR is simply the responsible and judicious use of
means allowed by existing laws and ordinances to protect public interest and
restore public order. Thus, it is not accurate to call it a new rule but rather it is a
more pro-active and dynamic enforcement of existing laws, regulations and
ordinances to prevent chaos in the streets. It does not replace the rule of
maximum tolerance in B.P. No. 880.
Respondent Mayor Joselito Atienza, for his part, submitted in his
Comment that the petition in G.R. No. 169838 should be dismissed on the
ground that Republic Act No. 7160 gives the Mayor power to deny a permit
independently of B.P. No. 880; that his denials of permits were under the clear
and present danger rule as there was a clamor to stop rallies that disrupt the
economy and to protect the lives of other people; that J. B. L. Reyes v.
Bagatsing,[11] Primicias v. Fugoso,[12] and Jacinto v. CA,[13] have affirmed the
constitutionality of requiring a permit; that the permit is for the use of a public
place and not for the exercise of rights; and that B.P. No. 880 is not a content-
based regulation because it covers all rallies.
The petitions were ordered consolidated on February 14, 2006. After
the submission of all the Comments, the Court set the cases for oral arguments
on April 4, 2006,[14] stating the principal issues, as follows:
 1. On the constitutionality of Batas Pambansa
No. 880, specifically Sections 4, 5, 6, 12 13(a)
and 14(a) thereof, and Republic Act No. 7160:
(a) Are these content-neutral or
content-based regulations?
(b) Are they void on grounds of
overbreadth or vagueness?
(c) Do they constitute prior restraint?
(d) Are they undue delegations of
powers to Mayors?
(e) Do they violate international
human rights treaties and the
Universal Declaration of Human
Rights?
2. On the constitutionality and legality of the
policy of Calibrated Preemptive Response
(CPR):
(a) Is the policy void on its face or
due to vagueness?
(b) Is it void for lack of publication?
(c) Is the policy of CPR void as
applied to the rallies of September
26 and October 4, 5 and 6, 2005?
During the course of the oral arguments, the following developments
took place and were approved and/or noted by the Court:
1. Petitioners, in the interest of a speedy resolution of the
petitions, withdrew the portions of their petitions raising factual issues,
particularly those raising the issue of whether B.P. No. 880 and/or CPR is void
as applied to the rallies of September 20, October 4, 5 and 6, 2005.
2. The Solicitor General agreed with the observation of the
Chief Justice that CPR should no longer be used as a legal term inasmuch as,
according to respondents, it was merely a catchword intended to clarify what
was thought to be a misunderstanding of the maximum tolerance policy set
forth in B.P. No. 880 and that, as stated in the affidavit executed by Executive
Secretary Eduardo Ermita and submitted to the Ombudsman, it does not
replace B.P. No. 880 and the maximum tolerance policy embodied in that law.
The Court will now proceed to address the principal issues, taking
into account the foregoing developments.
Petitioners standing cannot be seriously challenged. Their right as
citizens to engage in peaceful assembly and exercise the right of petition, as
guaranteed by the Constitution, is directly affected by B.P. No. 880 which
requires a permit for all who would publicly assemble in the nations streets and
parks. They have, in fact, purposely engaged in public assemblies without the
required permits to press their claim that no such permit can be validly required
without violating the Constitutional guarantee. Respondents, on the other hand,
have challenged such action as contrary to law and dispersed the public
assemblies held without the permit.
Section 4 of Article III of the Constitution provides:
SEC. 4. No law shall be passed abridging the
freedom of speech, of expression, or of the press, or the
right of the people peaceably to assemble and petition the
government for redress of grievances.
The first point to mark is that the right to peaceably assemble and
petition for redress of grievances is, together with freedom of speech, of
expression, and of the press, a right that enjoys primacy in the realm of
constitutional protection. For these rights constitute the very basis of a
functional democratic polity, without which all the other rights would be
meaningless and unprotected. As stated in Jacinto v. CA,[15] the Court, as early
as the onset of this century, in U.S. v. Apurado,[16] already upheld the right to
assembly and petition, as follows:
There is no question as to the petitioners rights
to peaceful assembly to petition the government for a
redress of grievances and, for that matter, to organize or
form associations for purposes not contrary to law, as well
as to engage in peaceful concerted activities. These rights
are guaranteed by no less than the Constitution,
particularly Sections 4 and 8 of the Bill of Rights, Section
2(5) of Article IX, and Section 3 of Article XIII.
Jurisprudence abounds with hallowed pronouncements
defending and promoting the peoples exercise of these
rights. As early as the onset of this century, this Court
in U.S. vs. Apurado, already upheld the right to assembly
and petition and even went as far as to acknowledge:
It is rather to be expected that more or less
disorder will mark the public assembly of the people to
protest against grievances whether real or imaginary,
because on such occasions feeling is always wrought to a
high pitch of excitement, and the greater, the grievance
and the more intense the feeling, the less perfect, as a
rule will be the disciplinary control of the leaders over their
irresponsible followers. But if the prosecution be permitted
to seize upon every instance of such disorderly conduct
by individual members of a crowd as an excuse to
characterize the assembly as a seditious and tumultuous
rising against the authorities, then the right to assemble
and to petition for redress of grievances would become a
delusion and a snare and the attempt to exercise it on the
most righteous occasion and in the most peaceable
manner would expose all those who took part therein to
the severest and most unmerited punishment, if the
purposes which they sought to attain did not happen to be
pleasing to the prosecuting authorities. If instances of
disorderly conduct occur on such occasions, the guilty
individuals should be sought out and punished therefor,
but the utmost discretion must be exercised in drawing the
line between disorderly and seditious conduct and
between an essentially peaceable assembly and a
tumultuous uprising.
Again, in Primicias v. Fugoso,[17] the Court likewise sustained the
primacy of freedom of speech and to assembly and petition over comfort and
convenience in the use of streets and parks.
Next, however, it must be remembered that the right, while
sacrosanct, is not absolute. In Primicias, this Court said:
The right to freedom of speech, and to
peacefully assemble and petition the government for
redress of grievances, are fundamental personal rights of
the people recognized and guaranteed by the
constitutions of democratic countries. But it is a settled
principle growing out of the nature of well-ordered civil
societies that the exercise of those rights is not absolute
for it may be so regulated that it shall not be injurious to
the equal enjoyment of others having equal rights, nor
injurious to the rights of the community or society. The
power to regulate the exercise of such and other
constitutional rights is termed the sovereign police power,
which is the power to prescribe regulations, to promote
the health, morals, peace, education, good order or
safety, and general welfare of the people. This sovereign
police power is exercised by the government through its
legislative branch by the enactment of laws regulating
those and other constitutional and civil rights, and it may
be delegated to political subdivisions, such as towns,
municipalities and cities by authorizing their legislative
bodies called municipal and city councils to enact
ordinances for the purpose.[18]
Reyes v. Bagatsing[19] further expounded on the right and its limits,
as follows:
1. It is thus clear that the Court is called upon
to protect the exercise of the cognate rights to free speech
and peaceful assembly, arising from the denial of a
permit. The Constitution is quite explicit: No law shall be
passed abridging the freedom of speech, or of the press,
or the right of the people peaceably to assemble and
petition the Government for redress of grievances. Free
speech, like free press, may be identified with the liberty
to discuss publicly and truthfully any matter of public
concern without censorship or punishment. There is to be
then no previous restraint on the communication of views
or subsequent liability whether in libel suits, prosecution
for sedition, or action for damages, or contempt
proceedings unless there be a clear and present danger
of a substantive evil that [the State] has a right to
prevent. Freedom of assembly connotes the right of the
people to meet peaceably for consultation and discussion
of matters of public concern. It is entitled to be accorded
the utmost deference and respect. It is not to be limited,
much less denied, except on a showing, as is the case
with freedom of expression, of a clear and present danger
of a substantive evil that the state has a right to
prevent. Even prior to the 1935 Constitution, Justice
Malcolm had occasion to stress that it is a necessary
consequence of our republican institutions and
complements the right of free speech. To paraphrase the
opinion of Justice Rutledge, speaking for the majority of
the American Supreme Court in Thomas v. Collins, it was
not by accident or coincidence that the rights to freedom
of speech and of the press were coupled in a single
guarantee with the rights of the people peaceably to
assemble and to petition the government for redress of
grievances. All these rights, while not identical, are
inseparable. In every case, therefore, where there is a
limitation placed on the exercise of this right, the judiciary
is called upon to examine the effects of the challenged
governmental actuation. The sole justification for a
limitation on the exercise of this right, so fundamental to
the maintenance of democratic institutions, is the danger,
of a character both grave and imminent, of a serious evil
to public safety, public morals, public health, or any other
legitimate public interest.
2. Nowhere is the rationale that underlies the freedom of
expression and peaceable assembly better expressed
than in this excerpt from an opinion of Justice
Frankfurter: It must never be forgotten, however, that the
Bill of Rights was the child of the Enlightenment. Back of
the guaranty of free speech lay faith in the power of an
appeal to reason by all the peaceful means for gaining
access to the mind. It was in order to avert force and
explosions due to restrictions upon rational modes of
communication that the guaranty of free speech was
given a generous scope. But utterance in a context of
violence can lose its significance as an appeal to reason
and become part of an instrument of force. Such
utterance was not meant to be sheltered by the
Constitution. What was rightfully stressed is the
abandonment of reason, the utterance, whether verbal or
printed, being in a context of violence. It must always be
remembered that this right likewise provides for a safety
valve, allowing parties the opportunity to give vent to their
views, even if contrary to the prevailing climate of
opinion. For if the peaceful means of communication
cannot be availed of, resort to non-peaceful means may
be the only alternative. Nor is this the sole reason for the
expression of dissent. It means more than just the right to
be heard of the person who feels aggrieved or who is
dissatisfied with things as they are. Its value may lie in the
fact that there may be something worth hearing from the
dissenter. That is to ensure a true ferment of ideas. There
are, of course, well-defined limits.What is guaranteed is
peaceable assembly. One may not advocate disorder in
the name of protest, much less preach rebellion under the
cloak of dissent. The Constitution frowns on disorder or
tumult attending a rally or assembly.Resort to force is
ruled out and outbreaks of violence to be avoided. The
utmost calm though is not required. As pointed out in an
early Philippine case, penned in 1907 to be
precise, United States v. Apurado: It is rather to be
expected that more or less disorder will mark the public
assembly of the people to protest against grievances
whether real or imaginary, because on such occasions
feeling is always wrought to a high pitch of excitement,
and the greater the grievance and the more intense the
feeling, the less perfect, as a rule, will be the disciplinary
control of the leaders over their irresponsible followers. It
bears repeating that for the constitutional right to be
invoked, riotous conduct, injury to property, and acts of
vandalism must be avoided. To give free rein to ones
destructive urges is to call for condemnation. It is to make
a mockery of the high estate occupied by intellectual
liberty in our scheme of values.
There can be no legal objection, absent the existence of a
clear and present danger of a substantive evil, on the
choice of Luneta as the place where the peace rally would
start. The Philippines is committed to the view expressed
in the plurality opinion, of 1939 vintage, of Justice Roberts
in Hague v. CIO: Whenever the title of streets and parks
may rest, they have immemorially been held in trust for
the use of the public and, time out of mind, have been
used for purposes of assembly, communicating thoughts
between citizens, and discussing public questions. Such
use of the streets and public places has, from ancient
times, been a part of the privileges, immunities, rights and
liberties of citizens. The privilege of a citizen of the United
States to use the streets and parks for communication of
views on national questions may be regulated in the
interest of all; it is not absolute, but relative, and must be
exercised in subordination to the general comfort and
convenience, and in consonance with peace and good
order; but must not, in the guise of regulation, be abridged
or denied. The above excerpt was quoted with approval in
Primicias v. Fugoso. Primicias made explicit what was
implicit in Municipality of Cavite v. Rojas, a 1915 decision,
where this Court categorically affirmed that plazas or
parks and streets are outside the commerce of man and
thus nullified a contract that leased Plaza Soledad of
plaintiff-municipality. Reference was made to such plaza
being a promenade for public use, which certainly is not
the only purpose that it could serve. To repeat, there can
be no valid reason why a permit should not be granted for
the proposed march and rally starting from a public park
that is the Luneta.
4. Neither can there be any valid objection to
the use of the streets to the gates of the US embassy,
hardly two blocks away at the Roxas Boulevard. Primicias
v. Fugoso has resolved any lurking doubt on the matter. In
holding that the then Mayor Fugoso of the City of Manila
should grant a permit for a public meeting at Plaza
Miranda in Quiapo, this Court categorically declared: Our
conclusion finds support in the decision in the case of
Willis Cox v. State of New Hampshire, 312 U.S., 569. In
that case, the statute of New Hampshire P.L. chap. 145,
section 2, providing that no parade or procession upon
any ground abutting thereon, shall be permitted unless a
special license therefor shall first be obtained from the
selectmen of the town or from licensing committee, was
construed by the Supreme Court of New Hampshire as
not conferring upon the licensing board unfettered
discretion to refuse to grant the license, and held
valid. And the Supreme Court of the United States, in its
decision (1941) penned by Chief Justice Hughes affirming
the judgment of the State Supreme Court, held that a
statute requiring persons using the public streets for a
parade or procession to procure a special license therefor
from the local authorities is not an unconstitutional
abridgment of the rights of assembly or of freedom of
speech and press, where, as the statute is construed by
the state courts, the licensing authorities are strictly
limited, in the issuance of licenses, to a consideration of
the time, place, and manner of the parade or procession,
with a view to conserving the public convenience and of
affording an opportunity to provide proper policing, and
are not invested with arbitrary discretion to issue or refuse
license, * * *. Nor should the point made by Chief Justice
Hughes in a subsequent portion of the opinion be ignored:
Civil liberties, as guaranteed by the Constitution, imply the
existence of an organized society maintaining public order
without which liberty itself would be lost in the excesses of
unrestricted abuses. The authority of a municipality to
impose regulations in order to assure the safety and
convenience of the people in the use of public highways
has never been regarded as inconsistent with civil liberties
but rather as one of the means of safeguarding the good
order upon which they ultimately depend. The control of
travel on the streets of cities is the most familiar
illustration of this recognition of social need. Where a
restriction of the use of highways in that relation is
designed to promote the public convenience in the
interest of all, it cannot be disregarded by the attempted
exercise of some civil right which in other circumstances
would be entitled to protection.
xxx
6. x x x The principle under American doctrines was given
utterance by Chief Justice Hughes in these words: The
question, if the rights of free speech and peaceable
assembly are to be preserved, is not as to the auspices
under which the meeting is held but as to its purpose; not
as to the relations of the speakers, but whether their
utterances transcend the bounds of the freedom of
speech which the Constitution protects. There could be
danger to public peace and safety if such a gathering
were marked by turbulence. That would deprive it of its
peaceful character. Even then, only the guilty parties
should be held accountable. It is true that the licensing
official, here respondent Mayor, is not devoid of discretion
in determining whether or not a permit would be
granted. It is not, however, unfettered discretion. While
prudence requires that there be a realistic appraisal not of
what may possibly occur but of what may probably occur,
given all the relevant circumstances, still the assumption
especially so where the assembly is scheduled for a
specific public place is that the permit must be for the
assembly being held there. The exercise of such a right,
in the language of Justice Roberts, speaking for the
American Supreme Court, is not to be abridged on the
plea that it may be exercised in some other place.
xxx
8. By way of a summary. The applicants for a permit to
hold an assembly should inform the licensing authority of
 the date, the public place where and the time when it will be heard on the which, the permit shall be deemed granted. Should
take place. If it were a private place, only the consent of matter. Thereafter, for any reason the mayor or any official acting in his
the owner or the one entitled to its legal possession is his decision, behalf refuse to accept the application for a permit,
required. Such application should be filed well ahead in whether favorable said application shall be posted by the applicant on
time to enable the public official concerned to appraise or adverse, must the premises of the office of the mayor and shall be
whether there may be valid objections to the grant of the be transmitted to deemed to have been filed.
permit or to its grant but at another public place. It is an them at the earliest (c) If the mayor is of the view that there is
indispensable condition to such refusal or modification opportunity. Thus if imminent and grave danger of a substantive evil
that the clear and present danger test be the standard for so minded, they warranting the denial or modification of the permit,
the decision reached. If he is of the view that there is such can have recourse he shall immediately inform the applicant who must
an imminent and grave danger of a substantive evil, the to the proper be heard on the matter.
applicants must be heard on the matter. Thereafter, his judicial authority. (d) The action on the permit shall be in writing
decision, whether favorable or adverse, must be and served on the applica[nt] within twenty-four
transmitted to them at the earliest opportunity. Thus if so hours.
minded, they can have recourse to the proper judicial (e) If the mayor or any official acting in his
authority. Free speech and peaceable assembly, along behalf denies the application or modifies the terms
with the other intellectual freedoms, are highly ranked in thereof in his permit, the applicant may contest the
our scheme of constitutional values. It cannot be too decision in an appropriate court of law.
strongly stressed that on the judiciary, -- even more so (f) In case suit is brought before the
than on the other departments rests the grave and Metropolitan Trial Court, the Municipal Trial Court,
delicate responsibility of assuring respect for and the Municipal Circuit Trial Court, the Regional Trial
deference to such preferred rights. No verbal formula, no Court, or the Intermediate Appellate Court, its
sanctifying phrase can, of course, dispense with what has decisions may be appealed to the appropriate court
been so felicitiously termed by Justice Holmes as the within forty-eight (48) hours after receipt of the
sovereign prerogative of judgment. Nonetheless, the same. No appeal bond and record on appeal shall
presumption must be to incline the weight of the scales of be required. A decision granting such permit or
justice on the side of such rights, enjoying as they do modifying it in terms satisfactory to the applicant
precedence and primacy. x x x. shall be immediately executory.
(g) All cases filed in court under this section
shall be decided within twenty-four (24) hours from
B.P. No. 880 was enacted after this Court rendered its decision in Reyes. date of filing. Cases filed hereunder shall be
immediately endorsed to the executive judge for
The provisions of B.P. No. 880 practically codify the ruling in Reyes: disposition or, in his absence, to the next in rank.
(h) In all cases, any decision may be appealed
to the Supreme Court.
Reyes v. B.P. No. 880 (i) Telegraphic appeals to be followed by formal
Bagatsing appeals are hereby allowed.
(G.R. No. L-
65366, November
9, 1983, SEC. 4. Permit when required and when not
125 SCRA 553, required.-- A written permit shall be required for any It is very clear, therefore, that B.P. No. 880 is not an absolute ban of public
569) person or persons to organize and hold a public assemblies but a restriction that simply regulates the time, place and manner of
assembly in a public place. However, no permit the assemblies. This was adverted to in Osmea v. Comelec,[20] where the Court
8. By way of a shall be required if the public assembly shall be referred to it as a content-neutral regulation of the time, place, and manner of
summary. The done or made in a freedom park duly established holding public assemblies.[21]
applicants for a by law or ordinance or in private property, in which
permit to hold an case only the consent of the owner or the one A fair and impartial reading of B.P. No. 880 thus readily shows that it refers
assembly should entitled to its legal possession is required, or in the to all kinds of public assemblies[22] that would use public places. The reference
inform the licensing campus of a government-owned and operated to lawful cause does not make it content-based because assemblies really have
authority of the educational institution which shall be subject to the to be for lawful causes, otherwise they would not be peaceable and entitled to
date, the public rules and regulations of said educational institution. protection. Neither are the words opinion, protesting and influencing in the
place where and Political meetings or rallies held during any election definition of public assembly content based, since they can refer to any
the time when it will campaign period as provided for by law are not subject. The words petitioning the government for redress of grievances come
take place. If it covered by this Act. from the wording of the Constitution, so its use cannot be avoided. Finally,
were a private SEC. 5. Application requirements.-- All maximum tolerance is for the protection and benefit of all rallyists and is
place, only the applications for a permit shall comply with the independent of the content of the expressions in the rally.
consent of the following guidelines:
owner or the one (a) The applications shall be in writing and shall Furthermore, the permit can only be denied on the ground of clear and present
entitled to its legal include the names of the leaders or organizers; the danger to public order, public safety, public convenience, public morals or
possession is purpose of such public assembly; the date, time public health. This is a recognized exception to the exercise of the right even
required. Such and duration thereof, and place or streets to be under the Universal Declaration of Human Rights and the International
application should used for the intended activity; and the probable Covenant on Civil and Political Rights, thus:
be filed well ahead number of persons participating, the transport and
in time to enable the public address systems to be used.
the public official (b) The application shall incorporate the duty Universal Declaration of Human Rights
concerned to and responsibility of applicant under Section 8
appraise whether hereof. Article 20
there may be valid (c) The application shall be filed with the office
objections to the of the mayor of the city or municipality in whose 1. Everyone has the right to freedom
grant of the permit jurisdiction the intended activity is to be held, at of peaceful assembly and association.
or to its grant but at least five (5) working days before the scheduled
another public public assembly. xxx
place. It is an (d) Upon receipt of the application, which must
indispensable be duly acknowledged in writing, the office of the Article 29
condition to such city or municipal mayor shall cause the same to
refusal or immediately be posted at a conspicuous place in 1. Everyone has duties to the community in
modification that the city or municipal building. which alone the free and full development of his
the clear and personality is possible.
present danger test SEC. 6. Action to be taken on the application.
be the standard for (a) It shall be the duty of the mayor or any 2. In the exercise of his rights and freedoms,
the decision official acting in his behalf to issue or grant a permit everyone shall be subject only to such limitations as are
reached. If he is of unless there is clear and convincing evidence that determined by law solely for the purpose of securing due
the view that there the public assembly will create a clear and present recognition and respect for the rights and freedoms of
is such an danger to public order, public safety, public others and of meeting the just requirements of morality,
imminent and convenience, public morals or public health. public order and the general welfare in a democratic
grave danger of a (b) The mayor or any official acting in his behalf society.
substantive evil, shall act on the application within two (2) working
the applicants must days from the date the application was filed, failing
 3. These rights and freedoms may in no case
be exercised contrary to the purposes and principles of
the United Nations.
The International Covenant on Civil and Political Rights
Article 19.
1. Everyone shall have the right to hold
opinions without interference.
2. Everyone shall have the right to
freedom of expression; this right shall include freedom to
seek, receive and impart information and ideas of all
kinds, regardless of frontiers, either orally, in writing or in
print, in the form of art, or through any other media of his
choice.
3. The exercise of the rights
provided for in paragraph 2 of this article carries with it
special duties and responsibilities. It may therefore be
subject to certain restrictions, but these shall only be such
as are provided by law and are necessary:
(a) For respect of the rights or
reputations of others;
(b) For the protection of national
security or of public order (ordre
public), or of public health or morals.
Contrary to petitioners claim, the law is very clear and is nowhere vague in its
provisions. Public does not have to be defined. Its ordinary meaning is well-
known. Websters Dictionary defines it, thus:[23]
public, n, x x x 2a: an organized body of people
x x x 3: a group of people distinguished by common
interests or characteristics x x x.
Not every expression of opinion is a public assembly. The law refers to rally,
demonstration, march, parade, procession or any other form of mass or
concerted action held in a public place. So it does not cover any and all kinds of
gatherings.
Neither is the law overbroad. It regulates the exercise of the right to peaceful
assembly and petition only to the extent needed to avoid a clear and present
danger of the substantive evils Congress has the right to prevent.
There is, likewise, no prior restraint, since the content of the speech
is not relevant to the regulation.
As to the delegation of powers to the mayor, the law provides a precise and
sufficient standard the clear and present danger test stated in Sec. 6(a). The
reference to imminent and grave danger of a substantive evil in Sec. 6(c)
substantially means the same thing and is not an inconsistent standard. As to
whether respondent Mayor has the same power independently under Republic
Act No. 7160[24] is thus not necessary to resolve in these proceedings, and was
not pursued by the parties in their arguments.
Finally, for those who cannot wait, Section 15 of the law provides for
an alternative forum through the creation of freedom parks where no prior
permit is needed for peaceful assembly and petition at any time:
SEC. 15. Freedom parks. Every city and
municipality in the country shall within six months after the
effectivity of this Act establish or designate at least one
suitable freedom park or mall in their respective
jurisdictions which, as far as practicable, shall be centrally
located within the poblacion where demonstrations and
meetings may be held at any time without the need of any
prior permit.
In the cities and municipalities of Metropolitan Manila, the
respective mayors shall establish the freedom parks
within the period of six months from the effectivity this Act.
This brings up the point, however, of compliance with this provision.
The Solicitor General stated during the oral arguments that, to his knowledge,
only Cebu City has declared a freedom park Fuente Osmea.
That of Manila, the Sunken Gardens, has since been converted into a golf
course, he added.
If this is so, the degree of observance of B.P. No. 880s mandate that
every city and municipality set aside a freedom park within six months from its
effectivity in 1985, or 20 years ago, would be pathetic and regrettable. The
matter appears to have been taken for granted amidst the swell of freedom that
rose from the peaceful revolution of 1986.
Considering that the existence of such freedom parks is an essential
part of the laws system of regulation of the peoples exercise of their right to
peacefully assemble and petition, the Court is constrained to rule that after thirty
(30) days from the finality of this Decision, no prior permit may be required for
the exercise of such right in any public park or plaza of a city or municipality
until that city or municipality shall have complied with Section 15 of the law. For
without such alternative forum, to deny the permit would in effect be to deny the
right. Advance notices should, however, be given to the authorities to ensure
proper coordination and orderly proceedings.
The Court now comes to the matter of the CPR. As stated earlier, the
Solicitor General has conceded that the use of the term should now be
discontinued, since it does not mean anything other than the maximum
tolerance policy set forth in B.P. No. 880. This is stated in the Affidavit of
respondent Executive Secretary Eduardo Ermita, submitted by the Solicitor
General, thus:
14. The truth of the matter is the policy of calibrated preemptive
response is in consonance with the legal definition of maximum tolerance
under Section 3 (c) of B.P. Blg. 880, which is the highest degree of
restraint that the military, police and other peacekeeping authorities shall
observe during a public assembly or in the dispersal of the
same. Unfortunately, however, the phrase maximum tolerance has
acquired a different meaning over the years.Many have taken it to mean
inaction on the part of law enforcers even in the face of mayhem and
serious threats to public order. More so, other felt that they need not
bother secure a permit when holding rallies thinking this would be
tolerated. Clearly, the popular connotation of maximum tolerance has
departed from its real essence under B.P. Blg. 880.
15. It should be emphasized that the policy of
maximum tolerance is provided under the same law which requires all
pubic assemblies to have a permit, which allows the dispersal of rallies
without a permit, and which recognizes certain instances when water
cannons may be used. This could only mean that maximum tolerance is
not in conflict with a no permit, no rally policy or with the dispersal and use
of water cannons under certain circumstances for indeed, the maximum
amount of tolerance required is dependent on how peaceful or unruly a
mass action is. Our law enforcers should calibrate their response based on
the circumstances on the ground with the view to preempting the outbreak
of violence.
16. Thus, when I stated that calibrated
preemptive response is being enforced in lieu of maximum
tolerance I clearly was not referring to its legal definition but
to the distorted and much abused definition that it has now
acquired. I only wanted to disabuse the minds of the public
from the notion that law enforcers would shirk their
responsibility of keeping the peace even when confronted
with dangerously threatening behavior. I wanted to send a
message that we would no longer be lax in enforcing the law
but would henceforth follow it to the letter. Thus I said, we
have instructed the PNP as well as the local government units
to strictly enforce a no permit, no rally policy . . . arrest all
persons violating the laws of the land . . . unlawful mass
actions will be dispersed. None of these is at loggerheads
with the letter and spirit of Batas Pambansa Blg. 880. It is thus
absurd for complainants to even claim that I ordered my co-
respondents to violate any law.[25]
At any rate, the Court rules that in view of the maximum tolerance
mandated by B.P. No. 880, CPR serves no valid purpose if it means the same
thing as maximum tolerance and is illegal if it means something
else. Accordingly, what is to be followed is and should be that mandated by the
law itself, namely, maximum tolerance, which specifically means the following:
SEC. 3. Definition of terms. For purposes of
this Act:
xxx
(c) Maximum tolerance means the highest degree of restraint that
the military, police and other peace keeping authorities shall
observe during a public assembly or in the dispersal of the same.
xxx
SEC. 9. Non-interference by law enforcement authorities.
Law enforcement agencies shall not interfere with the holding of a
public assembly. However, to adequately ensure public safety, a law
enforcement contingent under the command of a responsible police
officer
may be detailed and stationed in a place at least one hundred (100)
meters away from the area of activity ready to maintain peace and
order at all times.

SEC. 10. Police assistance when requested. It shall be
imperative for law enforcement agencies, when their assistance is
requested by the leaders or organizers, to perform their duties always
mindful that their responsibility to provide proper protection to those
exercising their right peaceably to assemble and the freedom of
expression is primordial. Towards this end, law enforcement agencies
shall observe the following guidelines:
(a) Members of the law enforcement contingent who deal
with the demonstrators shall be in complete uniform with their
nameplates and units to which they belong displayed prominently on
the front and dorsal parts of their uniform and must observe the
policy of maximum tolerance as herein defined;
(b) The members of the law enforcement contingent shall
not carry any kind of firearms but may be equipped with baton or riot
sticks, shields, crash helmets with visor, gas masks, boots or ankle
high shoes with shin guards;
(c) Tear gas, smoke grenades, water cannons, or any
similar anti-riot device shall not be used unless the public assembly
is attended by actual violence or serious threats of violence, or
deliberate destruction of property.
Sec. 11. Dispersal of public assembly with
permit. No public assembly with a permit shall be
dispersed. However, when an assembly becomes violent,
the police may disperse such public assembly as follows:
(a) At the first sign of impending violence, the
ranking officer of the law enforcement contingent shall call
the attention of the leaders of the public assembly and ask
the latter to prevent any possible disturbance;
(b) If actual violence starts to a point where rocks or
other harmful objects from the participants are thrown at the police
or at the non-participants, or at any property causing damage to
such property, the ranking officer of the law enforcement contingent
shall audibly warn the participants that if the disturbance persists,
the public assembly will be dispersed;
(c) If the violence or disturbance prevailing as stated in the
preceding subparagraph should not stop or abate, the ranking officer of the law
enforcement contingent shall audibly issue a warning to the participants of the
public assembly, and after allowing a reasonable period of time to lapse, shall
immediately order it to forthwith disperse;
(d) No arrest of any leader, organizer or participant shall also be
made during the public assembly unless he violates during the assembly a law,
statute, ordinance or any provision of this Act. Such arrest shall be governed
by Article 125 of the Revised Penal Code, as amended;
(d) Isolated acts or incidents of disorder or breach of the
peace during the public assembly shall not constitute a ground for dispersal.
xxx
SEC. 12. Dispersal of public assembly without permit. When the
public assembly is held without a permit where a permit is required, the said
public assembly may be peacefully dispersed.
SEC. 13. Prohibited acts. The following shall constitute violations of
the Act:
(e) Obstructing, impeding, disrupting or otherwise denying
the exercise of the right to peaceful assembly;
(f) The unnecessary firing of firearms by a member of any
law enforcement agency or any person to disperse the public assembly;
(g) Acts described hereunder if committed within one hundred (100)
meters from the area of activity of the public assembly or on the occasion
thereof:
xxx
4. the carrying of firearms by
members of the law
enforcement unit;
5. the interfering with or intentionally
disturbing the holding of
a public assembly by the
use of a motor vehicle, its
horns and loud sound
systems.
Furthermore, there is need to address the situation adverted to by
petitioners where mayors do not act on applications for a permit and when the
police demand a permit and the rallyists could not produce one, the rally is
immediately dispersed. In such a situation, as a necessary consequence and
part of maximum tolerance, rallyists who can show the police an application
duly filed on a given date can, after two days from said date, rally in accordance
with their application without the need to show a permit, the grant of the permit
being then presumed under the law, and it will be the burden of the authorities
to show that there has been a denial of the application, in which case the rally
may be peacefully dispersed following the procedure of maximum tolerance
prescribed by the law.
In sum, this Court reiterates its basic policy of upholding the
fundamental rights of our people, especially freedom of expression and freedom
of assembly. In several policy addresses, Chief Justice Artemio V. Panganiban
has repeatedly vowed to uphold the liberty of our people and to nurture their
prosperity. He said that in cases involving liberty, the scales of justice should
weigh heavily against the government and in favor of the poor, the oppressed,
the marginalized, the dispossessed and the weak. Indeed, laws and actions that
restrict fundamental rights come to the courts with a heavy presumption against
their validity. These laws and actions are subjected to heightened scrutiny.[26]
For this reason, the so-called calibrated preemptive response policy
has no place in our legal firmament and must be struck down as a darkness
that shrouds freedom. It merely confuses our people and is used by some
police agents to justify abuses. On the other hand, B.P. No. 880 cannot be
condemned as unconstitutional; it does not curtail or unduly restrict freedoms; it
merely regulates the use of public places as to the time, place and manner of
assemblies. Far from being insidious, maximum tolerance is for the benefit of
rallyists, not the government. The delegation to the mayors of the power to
issue rally permits is valid because it is subject to the constitutionally-sound
clear and present danger standard.
In this Decision, the Court goes even one step further in
safeguarding liberty by giving local governments a deadline of 30 days within
which to designate specific freedom parks as provided under B.P. No. 880. If,
after that period, no such parks are so identified in accordance with Section 15
of the law, all public parks and plazas of the municipality or city concerned shall
in effect be deemed freedom parks; no prior permit of whatever kind shall be
required to hold an assembly therein. The only requirement will be written
notices to the police and the mayors office to allow proper coordination and
orderly activities.
WHEREFORE, the petitions are GRANTED in part, and
respondents, more particularly the Secretary of the Interior and Local
Governments, are DIRECTED to take all necessary steps for the immediate
compliance with Section 15 of Batas Pambansa No. 880 through the
establishment or designation of at least one suitable freedom park or plaza in
every city and municipality of the country. After thirty (30) days from the finality
of this Decision, subject to the giving of advance notices, no prior permit shall
be required to exercise the right to peaceably assemble and petition in the
public parks or plazas of a city or municipality that has not yet complied with
Section 15 of the law. Furthermore, Calibrated Preemptive Response (CPR),
insofar as it would purport to differ from or be in lieu of maximum tolerance,
is NULL and VOID and respondents are ENJOINED to REFRAIN from using it
and to STRICTLY OBSERVE the requirements of maximum tolerance. The
petitions are DISMISSED in all other respects, and
the CONSTITUTIONALITY of Batas Pambansa No. 880 is SUSTAINED. No
costs SO ORDERED.
INTEGRATED BAR OF THE G.R. No. 175241
PHILIPPINES represented by its
National President, Jose Anselmo I. Present:
Cadiz, H. HARRY L. ROQUE, and JOEL
RUIZ BUTUYAN, PUNO, C.J., Chairperson,
Petitioners, CARPIO MORALES,
LEONARDO-DE CASTRO,
BERSAMIN, and
- versus - VILLARAMA, JR., JJ.
HONORABLE MANILA MAYOR JOSE
LITO ATIENZA,
Respondent. Promulgated:
February 24, 2010
x - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -x
Petitioners Integrated Bar of the Philippines[1] (IBP) and lawyers H. Harry L.
Roque and Joel R. Butuyan appeal the June 28, 2006 Decision[2] and the
October 26, 2006 Resolution[3] of the Court of Appeals that found no grave
abuse of discretion on the part of respondent Jose Lito Atienza, the then mayor
of Manila, in granting a permit to rally in a venue other than the one applied for
by the IBP.
On June 15, 2006, the IBP, through its then National President Jose Anselmo
Cadiz (Cadiz), filed with the Office of the City Mayor of Manila a letter
application[4] for a permit to rally at the foot of Mendiola Bridge on June 22,
2006 from 2:30 p.m. to 5:30 p.m. to be participated in by IBP officers and
members, law students and multi-sectoral organizations.
Respondent issued a permit[5] dated June 16, 2006 allowing the IBP to stage a
rally on given date but indicated therein Plaza Miranda as the venue, instead
of Mendiola Bridge, which permit the IBP received on June 19, 2006.
Aggrieved, petitioners filed on June 21, 2006 before the Court of Appeals a
petition for certiorari docketed as CA-G.R. SP No. 94949.[6] The petition having
been unresolved within 24 hours from its filing, petitioners filed before this
Court on June 22, 2006 a petition for certiorari docketed as G.R. No. 172951
which assailed the appellate courts inaction or refusal to resolve the petition
within the period provided under the Public Assembly Act of 1985.[7]
The Court, by Resolutions of July 26, 2006, August 30, 2006 and
November 20, 2006, respectively, denied the petition for being moot and
academic, denied the relief that the petition be heard on the merits in view of
the pendency of CA-G.R. SP No. 94949, and denied the motion for
reconsideration.
The rally pushed through on June 22, 2006 at Mendiola Bridge,
after Cadiz discussed with P/Supt. Arturo Paglinawan whose contingent from
the Manila Police District (MPD) earlier barred petitioners from proceeding
thereto. Petitioners allege that the participants voluntarily dispersed after the
peaceful conduct of the program.
The MPD thereupon instituted on June 26, 2006 a criminal action,[8]
docketed
as I.S. No. 06I-12501, against Cadiz for violating the Public Assembly Act in
staging a rally at a venue not indicated in the permit, to which
charge Cadiz filed a Counter-Affidavit of August 3, 2006.
In the meantime, the appellate court ruled, in CA-G.R. SP No. 94949, by the
first assailed issuance, that the petition became moot and lacked merit. The
appellate court also denied petitioners motion for reconsideration by the
second assailed issuance.
Hence, the filing of the present petition for review on certiorari, to which
respondent filed his Comment of November 18, 2008 which merited petitioners
Reply of October 2, 2009.
The main issue is whether the appellate court erred in holding that the
modification of the venue in IBPs rally permit does not constitute grave abuse
of discretion.
Petitioners assert that the partial grant of the application runs
contrary to the Pubic Assembly Act and violates their constitutional right to
freedom of expression and public assembly.
The Court shall first resolve the preliminary issue of mootness.
Undoubtedly, the petition filed with the appellate court on June 21,
2006 became moot upon the passing of the date of the rally on June 22, 2006.
A moot and academic case is one that ceases to present a justiciable
controversy by virtue of supervening events, so that a declaration thereon
would be of no practical use or value. Generally, courts decline jurisdiction
over such case or dismiss it on ground of mootness. However, even in cases
where supervening events had made the cases moot, this Court did not
hesitate to resolve the legal or constitutional issues raised to formulate
controlling principles to guide the bench, bar and public. Moreover, as an
exception to the rule on mootness, courts will decide a question otherwise
moot if it is capable of repetition, yet evading review.[9]
In the present case, the question of the legality of a modification of a permit to
rally will arise each time the terms of an intended rally are altered by the
concerned official, yet it evades review, owing to the limited time in processing
the application where the shortest allowable period is five days prior to the
assembly. The susceptibility of recurrence compels the Court to definitively
resolve the issue at hand.
Respecting petitioners argument that the issues presented in CA-G.R. SP No.
94949 pose a prejudicial question to the criminal case against Cadiz, the Court
finds it improper to resolve the same in the present case.
Under the Rules,[10] the existence of a prejudicial question is a ground in a
petition to suspend proceedings in a criminal action. Since suspension of the
proceedings in the criminal action may be made only upon petition and not at
the instance of the judge or the investigating prosecutor,[11] the latter cannot
take cognizance of a claim of prejudicial question without a petition to suspend
being filed. Since a petition to suspend can be filed only in the criminal
action,[12] the determination of the pendency of a prejudicial question should be
made at the first instance in the criminal action, and not before this Court in an
appeal from the civil action.
In proceeding to resolve the petition on the merits, the appellate court found no
grave abuse of discretion on the part of respondent because the Public
Assembly Act does not categorically require respondent to specify in writing
the imminent and grave danger of a substantive evil which warrants the denial
or modification of the permit and merely mandates that the action taken shall
be in writing and shall be served on respondent within 24 hours. The appellate
court went on to hold that respondent is authorized to regulate the exercise of
the freedom of expression and of public assembly which are not absolute, and
that the challenged permit is consistent with Plaza Mirandas designation as a
freedom park where protest rallies are allowed without permit.
The Court finds for petitioners.
Section 6 of the Public Assembly Act reads:
Section 6. Action to be taken on the application -
(a) It shall be the duty of the mayor or any official acting in his behalf to issue
or grant a permit unless there is clear and convincing evidence that the
public assembly will create a clear and present danger to public order, public
safety, public convenience, public morals or public health.
(b) The mayor or any official acting in his behalf shall act on the application
within two (2) working days from the date the application was filed, failing
which, the permit shall be deemed granted. Should for any reason the mayor
or any official acting in his behalf refuse to accept the application for a
permit, said application shall be posted by the applicant on the premises of
the office of the mayor and shall be deemed to have been filed.
(c) If the mayor is of the view that there is imminent and grave danger of a
substantive evil warranting the denial or modification of the permit, he shall
immediately inform the applicant who must be heard on the matter.
(d) The action on the permit shall be in writing and served on the application
[sic] within twenty-four hours.
(e) If the mayor or any official acting in his behalf denies the application or
modifies the terms thereof in his permit, the applicant may contest the
decision in an appropriate court of law.
(f) In case suit is brought before the Metropolitan Trial Court, the Municipal
Trial Court, the Municipal Circuit Trial Court, the Regional Trial Court, or the
Intermediate Appellate Court, its decisions may be appealed to the
appropriate court within forty-eight (48) hours after receipt of the same. No
appeal bond and record on appeal shall be required. A decision granting
such permit or modifying it in terms satisfactory to the applicant shall, be
immediately executory.
(g) All cases filed in court under this Section shall be decided within twenty-
four (24) hours from date of filing. Cases filed hereunder shall be
immediately endorsed to the executive judge for disposition or, in his
absence, to the next in rank.
(h) In all cases, any decision may be appealed to the Supreme Court.
(i) Telegraphic appeals to be followed by formal appeals are hereby allowed.
(underscoring supplied)
In Bayan, Karapatan, Kilusang Magbubukid ng Pilipinas (KMP) v.
Ermita,[13] the Court reiterated:
x x x Freedom of assembly connotes the right of the people to meet
peaceably for consultation and discussion of matters of public concern.
It is entitled to be accorded the utmost deference and respect. It is not
to be limited, much less denied, except on a showing, as is the
case with freedom of expression, of a clear and present danger of a
substantive evil that the state has a right to prevent. Even prior to
the 1935 Constitution, Justice Malcolm had occasion to stress that it is a
necessary consequence of our republican institutions and complements
the right of free speech. To paraphrase the opinion of Justice Rutledge,
speaking for the majority of the American Supreme Court in Thomas v.
Collins, it was not by accident or coincidence that the rights to freedom
of speech and of the press were coupled in a single guarantee with the
rights of the people peaceably to assemble and to petition the
government for redress of grievances. All these rights, while not
identical, are inseparable. In every case, therefore, where there is a
limitation placed on the exercise of this right, the judiciary is called upon
to examine the effects of the challenged governmental actuation. The
sole justification for a limitation on the exercise of this right, so
fundamental to the maintenance of democratic institutions, is the
danger, of a character both grave and imminent, of a serious evil to
public safety, public morals, public health, or any other legitimate
public interest.[14] (emphasis supplied)
The Court in Bayan stated that the provisions of the Public Assembly Act of
1985 practically codified the 1983 ruling in Reyes v. Bagatsing.[15] In
juxtaposing Sections 4 to 6 of the Public Assembly Act with the pertinent
portion of the Reyes case, the Court elucidated as follows:
 x x x [The public official concerned shall] appraise whether there
may be valid objections to the grant of the permit or to its grant but
at another public place. It is an indispensable condition to such
refusal or modification that the clear and present danger test be the
standard for the decision reached. If he is of the view that there is
such an imminent and grave danger of a substantive evil, the
applicants must be heard on the matter. Thereafter, his decision,
whether favorable or adverse, must be transmitted to them at the
earliest opportunity. Thus if so minded, they can have recourse to
the proper judicial authority.[16] (italics and underscoring supplied)
In modifying the permit outright, respondent gravely abused his discretion
when he did not immediately inform the IBP who should have been heard first
on the matter of his perceived imminent and grave danger of a substantive evil
that may warrant the changing of the venue. The opportunity to be heard
precedes the action on the permit, since the applicant may directly go to court
after an unfavorable action on the permit.
Respondent failed to indicate how he had arrived at modifying the terms of the
permit against the standard of a clear and present danger test which, it bears
repeating, is an indispensable condition to such modification. Nothing in the
issued permit adverts to an imminent and grave danger of a substantive evil,
which blank denial or modification would, when granted imprimatur as the
appellate court would have it, render illusory any judicial scrutiny thereof.
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.[17] (emphasis and
underscoring supplied)
Notably, respondent failed to indicate in his Comment any basis or explanation
for his action. It smacks of whim and caprice for respondent to just impose a
change of venue for an assembly that was slated for a specific public place. It
is thus reversible error for the appellate court not to have found
such grave abuse of discretion and, under specific statutory
provision, not to have modified the permit in terms satisfactory to the
applicant.[18]
WHEREFORE, the assailed Decision and Resolution of the Court of Appeals
in CA-G.R. SP No. 94949 are REVERSED. The Court DECLARES that
respondent committed grave abuse of discretion in modifying the rally permit
issued on June 16, 2006 insofar as it altered the venue
from Mendiola Bridge to Plaza Miranda. SO ORDERED.
A.M. No. 10-10-4-SC March 8, 2011
RE: LETTER OF THE UP LAW FACULTY ENTITLED "RESTORING
INTEGRITY: A STATEMENT BY THE FACULTY OF THE UNIVERSITY OF
THE PHILIPPINES COLLEGE OF LAW ON THE ALLEGATIONS OF
PLAGIARISM AND MISREPRESENTATION IN THE SUPREME COURT".:
For disposition of the Court are the various submissions of the 37 respondent
law professors1 in response to the Resolution dated October 19, 2010 (the
Show Cause Resolution), directing them to show cause why they should not be
disciplined as members of the Bar for violation of specific provisions of the
Code of Professional Responsibility enumerated therein.
At the outset, it must be stressed that the Show Cause Resolution clearly
dockets this as an administrative matter, not a special civil action for indirect
contempt under Rule 71 of the Rules of Court, contrary to the dissenting opinion
of Associate Justice Maria Lourdes P. A. Sereno (Justice Sereno) to the said
October 19, 2010 Show Cause Resolution. Neither is this a disciplinary
proceeding grounded on an allegedly irregularly concluded finding of indirect
contempt as intimated by Associate Justice Conchita Carpio Morales (Justice
Morales) in her dissenting opinions to both the October 19, 2010 Show Cause
Resolution and the present decision.
With the nature of this case as purely a bar disciplinary proceeding firmly in
mind, the Court finds that with the exception of one respondent whose
compliance was adequate and another who manifested he was not a member
of the Philippine Bar, the submitted explanations, being mere denials and/or
tangential to the issues at hand, are decidedly unsatisfactory. The proffered
defenses even more urgently behoove this Court to call the attention of
respondent law professors, who are members of the Bar, to the relationship of
their duties as such under the Code of Professional Responsibility to their civil
rights as citizens and academics in our free and democratic republic.
The provisions of the Code of Professional Responsibility involved in this case
are as follows:
CANON 1 A lawyer shall uphold the constitution, obey the laws of the land
and promote respect for law and legal processes.
RULE 1.02 - A lawyer shall not counsel or abet activities aimed at defiance of
the law or at lessening confidence in the legal system.
CANON 10 - A lawyer owes candor, fairness and good faith to the court.
Rule 10.01 - A lawyer shall not do any falsehood, nor consent to the doing of
any in court; nor shall he mislead, or allow the Court to be misled by any
artifice.
Rule 10.02 - A lawyer shall not knowingly misquote or misrepresent the
contents of paper, the language or the argument of opposing counsel, or the
text of a decision or authority, or knowingly cite as law a provision already
rendered inoperative by repeal or amendment, or assert as a fact that which
has not been proved.
Rule 10.03 - A lawyer shall observe the rules of procedure and shall not misuse
them to defeat the ends of justice.
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.
RULE 11.05 A lawyer shall submit grievances against a Judge to the proper
authorities only.
CANON 13 A lawyer shall rely upon the merits of his cause and refrain from
any impropriety which tends to influence, or gives the appearance of influencing
the court.
Established jurisprudence will undeniably support our view that when lawyers
speak their minds, they must ever be mindful of their sworn oath to observe
ethical standards of their profession, and in particular, avoid foul and abusive
language to condemn the Supreme Court, or any court for that matter, for a
decision it has rendered, especially during the pendency of a motion for such
decisions reconsideration. The accusation of plagiarism against a member of
this Court is not the real issue here but rather this plagiarism issue has been
used to deflect everyones attention from the actual concern of this Court to
determine by respondents explanations whether or not respondent members of
the Bar have crossed the line of decency and acceptable professional conduct
and speech and violated the Rules of Court through improper intervention or
interference as third parties to a pending case. Preliminarily, it should be
stressed that it was respondents themselves who called upon the Supreme
Court to act on their Statement,2 which they formally submitted, through Dean
Marvic M.V.F. Leonen (Dean Leonen), for the Courts proper disposition.
Considering the defenses of freedom of speech and academic freedom invoked
by the respondents, it is worth discussing here that the legal reasoning used in
the past by this Court to rule that freedom of expression is not a defense in
administrative cases against lawyers for using intemperate speech in open
court or in court submissions can similarly be applied to respondents invocation
of academic freedom. Indeed, it is precisely because respondents are not
merely lawyers but lawyers who teach law and mould the minds of young
aspiring attorneys that respondents own non-observance of the Code of
Professional Responsibility, even if purportedly motivated by the purest of
intentions, cannot be ignored nor glossed over by this Court.
To fully appreciate the grave repercussions of respondents actuations, it is
apropos to revisit the factual antecedents of this case.
BACKGROUND OF THE CASE
Antecedent Facts and Proceedings
On April 28, 2010, the ponencia of Associate Justice Mariano del Castillo
(Justice Del Castillo) in Vinuya, et al. v. Executive Secretary (G.R. No. 162230)
was promulgated. On May 31, 2010, the counsel3 for Vinuya, et al. (the "Malaya
Lolas"), filed a Motion for Reconsideration of the Vinuya decision, raising solely
the following grounds:
 I. Our own constitutional and jurisprudential histories reject this
Honorable Courts (sic) assertion that the Executives foreign policy
prerogatives are virtually unlimited; precisely, under the relevant
jurisprudence and constitutional provisions, such prerogatives are
proscribed by international human rights and humanitarian
standards, including those provided for in the relevant international
conventions of which the Philippines is a party.4
II. This Honorable Court has confused diplomatic protection with the
broader, if fundamental, responsibility of states to protect the human
rights of its citizens especially where the rights asserted are
subject of erga omnes obligations and pertain to jus cogens norms.5
On July 19, 2010,6 counsel for the Malaya Lolas, Attys. H. Harry L. Roque, Jr.
(Atty. Roque) and Romel Regalado Bagares (Atty. Bagares), filed a
Supplemental Motion for Reconsideration in G.R. No. 162230, where they
posited for the first time their charge of plagiarism as one of the grounds for
reconsideration of the Vinuya decision. Among other arguments, Attys. Roque
and Bagares asserted that:
I.
IN THE FIRST PLACE, IT IS HIGHLY IMPROPER FOR THIS HONORABLE
COURTS JUDGMENT OF APRIL 28, 2010 TO PLAGIARIZE AT LEAST
THREE SOURCES AN ARTICLE PUBLISHED IN 2009 IN THE YALE LAW
JOURNAL OF INTERNATIONAL LAW, A BOOK PUBLISHED BY THE
CAMBRIDGE UNIVERSITY PRESS IN 2005 AND AN ARTICLE PUBLISHED
IN 2006 IN THE CASE WESTERN RESERVE JOURNAL OF INTERNATIONAL
LAW AND MAKE IT APPEAR THAT THESE SOURCES SUPPORT THE
JUDGMENTS ARGUMENTS FOR DISMISSING THE INSTANT PETITION
WHEN IN TRUTH, THE PLAGIARIZED SOURCES EVEN MAKE A STRONG
CASE FOR THE PETITIONS CLAIMS.7
They also claimed that "[i]n this controversy, the evidence bears out the fact not
only of extensive plagiarism but of (sic) also of twisting the true intents of the
plagiarized sources by the ponencia to suit the arguments of the assailed
Judgment for denying the Petition."8
According to Attys. Roque and Bagares, the works allegedly plagiarized in the
Vinuya decision were namely: (1) Evan J. Criddle and Evan Fox-Decents
article "A Fiduciary Theory of Jus Cogens;"9 (2) Christian J. Tams book
Enforcing Erga Omnes Obligations in International Law;10 and (3) Mark Ellis
article "Breaking the Silence: On Rape as an International Crime."11
On the same day as the filing of the Supplemental Motion for Reconsideration
on July 19, 2010, journalists Aries C. Rufo and Purple S. Romero posted an
article, entitled "SC justice plagiarized parts of ruling on comfort women," on the
Newsbreak website.12 The same article appeared on the GMA News TV
website also on July 19, 2010.13
On July 22, 2010, Atty. Roques column, entitled "Plagiarized and Twisted,"
appeared in the Manila Standard Today.14 In the said column, Atty. Roque
claimed that Prof. Evan Criddle, one of the authors purportedly not properly
acknowledged in the Vinuya decision, confirmed that his work, co-authored with
Prof. Evan Fox-Decent, had been plagiarized. Atty. Roque quoted Prof.
Criddles response to the post by Julian Ku regarding the news report15 on the
alleged plagiarism in the international law blog, Opinio Juris. Prof. Criddle
responded to Kus blog entry in this wise:
The newspapers16 [plagiarism] claims are based on a motion for
reconsideration filed yesterday with the Philippine Supreme Court yesterday.
The motion is available here:
http://harryroque.com/2010/07/18/supplemental-motion-alleging-plagiarism-in-
the-supreme-court/
The motion suggests that the Courts decision contains thirty-four sentences
and citations that are identical to sentences and citations in my 2009 YJIL
article (co-authored with Evan Fox-Decent). Professor Fox-Decent and I were
unaware of the petitioners [plagiarism] allegations until after the motion was
filed today.
Speaking for myself, the most troubling aspect of the courts jus cogens
discussion is that it implies that the prohibitions against crimes against
humanity, sexual slavery, and torture are not jus cogens norms. Our article
emphatically asserts the opposite. The Supreme Courts decision is available
here: http://sc.judiciary.gov.ph/jurisprudence/2010/april2010/162230.htm17
On even date, July 22, 2010, Justice Del Castillo wrote to his colleagues on the
Court in reply to the charge of plagiarism contained in the Supplemental Motion
for Reconsideration.18
In a letter dated July 23, 2010, another purportedly plagiarized author in the
Vinuya decision, Dr. Mark Ellis, wrote the Court, to wit:
Your Honours:
I write concerning a most delicate issue that has come to my attention in the
last few days.
Much as I regret to raise this matter before your esteemed Court, I am
compelled, as a question of the integrity of my work as an academic and as an
advocate of human rights and humanitarian law, to take exception to the
possible unauthorized use of my law review article on rape as an international
crime in your esteemed Courts Judgment in the case of Vinuya et al. v.
Executive Secretary et al. (G.R. No. 162230, Judgment of 28 April 2010).
My attention was called to the Judgment and the issue of possible plagiarism by
the Philippine chapter of the Southeast Asia Media Legal Defence Initiative
(SEAMLDI),19 an affiliate of the London-based Media Legal Defence Initiative
(MLDI), where I sit as trustee.
In particular, I am concerned about a large part of the extensive discussion in
footnote 65, pp. 27-28, of the said Judgment of your esteemed Court. I am also
concerned that your esteemed Court may have misread the arguments I made
in the article and employed them for cross purposes. This would be ironic since
the article was written precisely to argue for the appropriate legal remedy for
victims of war crimes, genocide, and crimes against humanity.
I believe a full copy of my article as published in the Case Western Reserve
Journal of International Law in 2006 has been made available to your esteemed
Court. I trust that your esteemed Court will take the time to carefully study the
arguments I made in the article.
I would appreciate receiving a response from your esteemed Court as to the
issues raised by this letter.
With respect,
(Sgd.)
Dr. Mark Ellis20
In Memorandum Order No. 35-2010 issued on July 27, 2010, the Court formed
the Committee on Ethics and Ethical Standards (the Ethics Committee)
pursuant to Section 13, Rule 2 of the Internal Rules of the Supreme Court. In an
En Banc Resolution also dated July 27, 2010, the Court referred the July 22,
2010 letter of Justice Del Castillo to the Ethics Committee. The matter was
subsequently docketed as A.M. No. 10-7-17-SC.
On August 2, 2010, the Ethics Committee required Attys. Roque and Bagares
to comment on the letter of Justice Del Castillo.21
On August 9, 2010, a statement dated July 27, 2010, entitled "Restoring
Integrity: A Statement by the Faculty of the University of the Philippines College
of Law on the Allegations of Plagiarism and Misrepresentation in the Supreme
Court" (the Statement), was posted in Newsbreaks website22 and on Atty.
Roques blog.23 A report regarding the statement also appeared on various on-
line news sites, such as the GMA News TV24 and the Sun Star25 sites, on the
same date. The statement was likewise posted at the University of the
Philippines College of Laws bulletin board allegedly on August 10, 201026 and
at said colleges website.27
On August 11, 2010, Dean Leonen submitted a copy of the Statement of the
University of the Philippines College of Law Faculty (UP Law faculty) to the
Court, through Chief Justice Renato C. Corona (Chief Justice Corona). The
cover letter dated August 10, 2010 of Dean Leonen read:
The Honorable
Supreme Court of the Republic of the Philippines
Through: Hon. Renato C. Corona
Chief Justice
Subject: Statement of faculty
from the UP College of Law

on the Plagiarism in the case of
Vinuya v Executive Secretary
Your Honors:
We attach for your information and proper disposition a statement signed by
thirty[-]eight (38)28members of the faculty of the UP College of Law. We hope
that its points could be considered by the Supreme Court en banc.
Respectfully,
(Sgd.)
Marvic M.V.F. Leonen
Dean and Professor of Law
(Emphases supplied.)
The copy of the Statement attached to the above-quoted letter did not contain
the actual signatures of the alleged signatories but only stated the names of 37
UP Law professors with the notation (SGD.) appearing beside each name. For
convenient reference, the text of the UP Law faculty Statement is reproduced
here:
RESTORING INTEGRITY
A STATEMENT BY THE FACULTY OF
THE UNIVERSITY OF THE PHILIPPINES COLLEGE OF LAW
ON THE ALLEGATIONS OF PLAGIARISM AND MISREPRESENTATION
IN THE SUPREME COURT
An extraordinary act of injustice has again been committed against the brave
Filipinas who had suffered abuse during a time of war. After they courageously
came out with their very personal stories of abuse and suffering as "comfort
women", waited for almost two decades for any meaningful relief from their own
government as well as from the government of Japan, got their hopes up for a
semblance of judicial recourse in the case of Vinuya v. Executive Secretary,
G.R. No. 162230 (28 April 2010), they only had these hopes crushed by a
singularly reprehensible act of dishonesty and misrepresentation by the Highest
Court of the land.
It is within this frame that the Faculty of the University of the Philippines College
of Law views the charge that an Associate Justice of the Supreme Court
committed plagiarism and misrepresentation in Vinuya v. Executive Secretary.
The plagiarism and misrepresentation are not only affronts to the individual
scholars whose work have been appropriated without correct attribution, but
also a serious threat to the integrity and credibility of the Philippine Judicial
System.
In common parlance, plagiarism is the appropriation and misrepresentation of
another persons work as ones own. In the field of writing, it is cheating at best,
and stealing at worst. It constitutes a taking of someone elses ideas and
expressions, including all the effort and creativity that went into committing such
ideas and expressions into writing, and then making it appear that such ideas
and expressions were originally created by the taker. It is dishonesty, pure and
simple. A judicial system that allows plagiarism in any form is one that allows
dishonesty. Since all judicial decisions form part of the law of the land, to allow
plagiarism in the Supreme Court is to allow the production of laws by dishonest
means. Evidently, this is a complete perversion and falsification of the ends of
justice.
A comparison of the Vinuya decision and the original source material shows
that the ponente merely copied select portions of other legal writers works and
interspersed them into the decision as if they were his own, original work. Under
the circumstances, however, because the Decision has been promulgated by
the Court, the Decision now becomes the Courts and no longer just the
ponentes. Thus the Court also bears the responsibility for the Decision. In the
absence of any mention of the original writers names and the publications from
which they came, the thing speaks for itself.
So far there have been unsatisfactory responses from the ponente of this case
and the spokesman of the Court.
It is argued, for example, that the inclusion of the footnotes from the original
articles is a reference to the primary sources relied upon. This cursory
explanation is not acceptable, because the original authors writings and the
effort they put into finding and summarizing those primary sources are precisely
the subject of plagiarism. The inclusion of the footnotes together with portions of
their writings in fact aggravates, instead of mitigates, the plagiarism since it
provides additional evidence of a deliberate intention to appropriate the original
authors work of organizing and analyzing those primary sources.
It is also argued that the Members of the Court cannot be expected to be
familiar with all legal and scholarly journals. This is also not acceptable,
because personal unfamiliarity with sources all the more demands correct and
careful attribution and citation of the material relied upon. It is a matter of
diligence and competence expected of all Magistrates of the Highest Court of
the Land.
But a far more serious matter is the objection of the original writers, Professors
Evan Criddle and Evan Fox-Descent, that the High Court actually misrepresents
the conclusions of their work entitled "A Fiduciary Theory of Jus Cogens," the
main source of the plagiarized text. In this article they argue that the
classification of the crimes of rape, torture, and sexual slavery as crimes
against humanity have attained the status of jus cogens, making it obligatory
upon the State to seek remedies on behalf of its aggrieved citizens. Yet, the
Vinuya decision uses parts of the same article to arrive at the contrary
conclusion. This exacerbates the intellectual dishonesty of copying works
without attribution by transforming it into an act of intellectual fraud by copying
works in order to mislead and deceive.
The case is a potential landmark decision in International Law, because it deals
with State liability and responsibility for personal injury and damage suffered in
a time of war, and the role of the injured parties home States in the pursuit of
remedies against such injury or damage. National courts rarely have such
opportunities to make an international impact. That the petitioners were Filipino
"comfort women" who suffered from horrific abuse during the Second World
War made it incumbent on the Court of last resort to afford them every
solicitude. But instead of acting with urgency on this case, the Court delayed its
resolution for almost seven years, oblivious to the deaths of many of the
petitioners seeking justice from the Court. When it dismissed the Vinuya petition
based on misrepresented and plagiarized materials, the Court decided this case
based on polluted sources. By so doing, the Supreme Court added insult to
injury by failing to actually exercise its "power to urge and exhort the Executive
Department to take up the claims of the Vinuya petitioners. Its callous
disposition, coupled with false sympathy and nonchalance, belies a more
alarming lack of concern for even the most basic values of decency and
respect. The reputation of the Philippine Supreme Court and the standing of the
Philippine legal profession before other Judiciaries and legal systems are truly
at stake.
The High Court cannot accommodate less than absolute honesty in its
decisions and cannot accept excuses for failure to attain the highest standards
of conduct imposed upon all members of the Bench and Bar because these
undermine the very foundation of its authority and power in a democratic
society. Given the Courts recent history and the controversy that surrounded it,
it cannot allow the charges of such clear and obvious plagiarism to pass without
sanction as this would only further erode faith and confidence in the judicial
system. And in light of the significance of this decision to the quest for justice
not only of Filipino women, but of women elsewhere in the world who have
suffered the horrors of sexual abuse and exploitation in times of war, the
Court cannot coldly deny relief and justice to the petitioners on the basis of
pilfered and misinterpreted texts.
The Court cannot regain its credibility and maintain its moral authority without
ensuring that its own conduct, whether collectively or through its Members, is
beyond reproach. This necessarily includes ensuring that not only the content,
but also the processes of preparing and writing its own decisions, are credible
and beyond question. The Vinuya Decision must be conscientiously reviewed
and not casually cast aside, if not for the purpose of sanction, then at least for
the purpose of reflection and guidance. It is an absolutely essential step toward
the establishment of a higher standard of professional care and practical
scholarship in the Bench and Bar, which are critical to improving the system of
administration of justice in the Philippines. It is also a very crucial step in
ensuring the position of the Supreme Court as the Final Arbiter of all
controversies: a position that requires competence and integrity completely
above any and all reproach, in accordance with the exacting demands of
judicial and professional ethics.
With these considerations, and bearing in mind the solemn duties and trust
reposed upon them as teachers in the profession of Law, it is the opinion of the
Faculty of the University of the Philippine College of Law that:
(1) The plagiarism committed in the case of Vinuya v. Executive
Secretary is unacceptable, unethical and in breach of the high standards of
moral conduct and judicial and professional competence expected of the
Supreme Court;
(2) Such a fundamental breach endangers the integrity
and credibility of the entire Supreme Court and
undermines the foundations of the Philippine judicial
system by allowing implicitly the decision of cases and the
 establishment of legal precedents through dubious
means;
(3) The same breach and consequent disposition of the Vinuya case does
violence to the primordial function of the Supreme Court as the ultimate dispenser
of justice to all those who have been left without legal or equitable recourse, such
as the petitioners therein;
(4) In light of the extremely serious and far-reaching nature of the dishonesty and
to save the honor and dignity of the Supreme Court as an institution, it is
necessary for the ponente of Vinuya v. Executive Secretary to resign his position,
without prejudice to any other sanctions that the Court may consider appropriate;
(5) The Supreme Court must take this opportunity to review the manner by which
it conducts research, prepares drafts, reaches and finalizes decisions in order to
prevent a recurrence of similar acts, and to provide clear and concise guidance to
the Bench and Bar to ensure only the highest quality of legal research and writing
in pleadings, practice, and adjudication.
Malcolm Hall, University of the Philippines College of Law, Quezon City, 27 July
2010.
Meanwhile, in a letter dated August 18, 2010, Prof. Christian J. Tams made
known his sentiments on the alleged plagiarism issue to the Court.30 We quote
Prof. Tams letter here:
Glasgow, 18 August 2010
Vinuya, et al. v. Executive Secretary et al. (G.R. No. 162230)
Hon. Renato C. Corona, Chief Justice
Your Excellency,
My name is Christian J. Tams, and I am a professor of international law at the
University of Glasgow. I am writing to you in relation to the use of one of my
publications in the above-mentioned judgment of your Honourable Court.
The relevant passage of the judgment is to be found on p. 30 of your Courts
Judgment, in the section addressing the concept of obligations erga omnes. As
the table annexed to this letter shows, the relevant sentences were taken
almost word by word from the introductory chapter of my book Enforcing
Obligations Erga Omnes in International Law (Cambridge University Press
2005). I note that there is a generic reference to my work in footnote 69 of the
Judgment, but as this is in relation to a citation from another author (Bruno
Simma) rather than with respect to the substantive passages reproduced in the
Judgment, I do not think it can be considered an appropriate form of
referencing.
I am particularly concerned that my work should have been used to support the
Judgments cautious approach to the erga omnes concept. In fact, a most
cursory reading shows that my books central thesis is precisely the opposite:
namely that the erga omnes concept has been widely accepted and has a firm
place in contemporary international law. Hence the introductory chapter notes
that "[t]he present study attempts to demystify aspects of the very mysterious
concept and thereby to facilitate its implementation" (p. 5). In the same vein, the
concluding section notes that "the preceding chapters show that the concept is
now a part of the reality of international law, established in the jurisprudence of
courts and the practice of States" (p. 309).
With due respect to your Honourable Court, I am at a loss to see how my work
should have been cited to support as it seemingly has the opposite
approach. More generally, I am concerned at the way in which your Honourable
Courts Judgment has drawn on scholarly work without properly acknowledging
it.
On both aspects, I would appreciate a prompt response from your Honourable
Court.
I remain
Sincerely yours
(Sgd.)
Christian J. Tams31
In the course of the submission of Atty. Roque and Atty. Bagares exhibits
during the August 26, 2010 hearing in the ethics case against Justice Del
Castillo, the Ethics Committee noted that Exhibit "J" (a copy of the Restoring
Integrity Statement) was not signed but merely reflected the names of certain
faculty members with the letters (SGD.) beside the names. Thus, the Ethics
Committee directed Atty. Roque to present the signed copy of the said
Statement within three days from the August 26 hearing.32
It was upon compliance with this directive that the Ethics Committee was given
a copy of the signed UP Law Faculty Statement that showed on the signature
pages the names of the full roster of the UP Law Faculty, 81 faculty members in
all. Indubitable from the actual signed copy of the Statement was that only 37 of
the 81 faculty members appeared to have signed the same. However, the 37
actual signatories to the Statement did not include former Supreme Court
Associate Justice Vicente V. Mendoza (Justice Mendoza) as represented in the
previous copies of the Statement submitted by Dean Leonen and Atty. Roque. It
also appeared that Atty. Miguel R. Armovit (Atty. Armovit) signed the Statement
although his name was not included among the signatories in the previous
copies submitted to the Court. Thus, the total number of ostensible signatories
to the Statement remained at 37.
The Ethics Committee referred this matter to the Court en banc since the same
Statement, having been formally submitted by Dean Leonen on August 11,
2010, was already under consideration by the Court.33
In a Resolution dated October 19, 2010, the Court en banc made the following
observations regarding the UP Law Faculty Statement:
Notably, while the statement was meant to reflect the educators opinion on the
allegations of plagiarism against Justice Del Castillo, they treated such
allegation not only as an established fact, but a truth. In particular, they
expressed dissatisfaction over Justice Del Castillos explanation on how he
cited the primary sources of the quoted portions and yet arrived at a contrary
conclusion to those of the authors of the articles supposedly plagiarized.
Beyond this, however, the statement bore certain remarks which raise concern
for the Court. The opening sentence alone is a grim preamble to the institutional
attack that lay ahead. It reads:
An extraordinary act of injustice has again been committed against the brave
Filipinas who had suffered abuse during a time of war.
The first paragraph concludes with a reference to the decision in Vinuya v.
Executive Secretary as a reprehensible act of dishonesty and misrepresentation
by the Highest Court of the land. x x x.
The insult to the members of the Court was aggravated by imputations of
deliberately delaying the resolution of the said case, its dismissal on the basis
of "polluted sources," the Courts alleged indifference to the cause of petitioners
[in the Vinuya case], as well as the supposed alarming lack of concern of the
members of the Court for even the most basic values of decency and
respect.34 x x x. (Underscoring ours.)
In the same Resolution, the Court went on to state that:
While most agree that the right to criticize the judiciary is critical to maintaining
a free and democratic society, there is also a general consensus that healthy
criticism only goes so far. Many types of criticism leveled at the judiciary cross
the line to become harmful and irresponsible attacks. These potentially
devastating attacks and unjust criticism can threaten the independence of the
judiciary. The court must "insist on being permitted to proceed to the disposition
of its business in an orderly manner, free from outside interference obstructive
of its functions and tending to embarrass the administration of justice."
The Court could hardly perceive any reasonable purpose for the facultys less
than objective comments except to discredit the April 28, 2010 Decision in the
Vinuya case and undermine the Courts honesty, integrity and competence in
addressing the motion for its reconsideration. As if the case on the comfort
womens claims is not controversial enough, the UP Law faculty would fan the
flames and invite resentment against a resolution that would not reverse the
said decision. This runs contrary to their obligation as law professors and
officers of the Court to be the first to uphold the dignity and authority of this
Court, to which they owe fidelity according to the oath they have taken as
attorneys, and not to promote distrust in the administration of justice.35 x x x.
(Citations omitted; emphases and underscoring supplied.)
Thus, the Court directed Attys. Marvic M.V.F. Leonen, Froilan M. Bacungan,
Pacifico A. Agabin, Merlin M. Magallona, Salvador T. Carlota, Carmelo V.
Sison, Patricia R.P. Salvador Daway, Dante B. Gatmaytan, Theodore O. Te,
Florin T. Hilbay, Jay L. Batongbacal, Evelyn (Leo) D. Battad, Gwen G. De Vera,
Solomon F. Lumba, Rommel J. Casis, Jose Gerardo A. Alampay, Miguel R.
Armovit, Arthur P. Autea, Rosa Maria J. Bautista, Mark R. Bocobo, Dan P.
Calica, Tristan A. Catindig, Sandra Marie O. Coronel, Rosario O. Gallo,
Concepcion L. Jardeleza, Antonio G.M. La Via, Carina C. Laforteza, Jose C.
Laureta, Owen J. Lynch, Rodolfo Noel S. Quimbo, Antonio M. Santos, Gmeleen
Faye B. Tomboc, Nicholas Felix L. Ty, Evalyn G. Ursua, Raul T. Vasquez,
Susan D. Villanueva and Dina D. Lucenario to show cause, within ten (10) days
from receipt of the copy of the Resolution, why they should not be disciplined as
members of the Bar for violation of Canons 1,36 11 and 13 and Rules 1.02 and
11.05 of the Code of Professional Responsibility.37
Dean Leonen was likewise directed to show cause within the same period why
he should not be disciplinarily dealt with for violation of Canon 10, Rules 10.01,
10.02 and 10.03 for submitting through his letter dated August 10, 2010, during
the pendency of G.R. No. 162230 and of the investigation before the Ethics
Committee, for the consideration of the Court en banc, a dummy which is not a
true and faithful reproduction of the UP Law Faculty Statement.38
In the same Resolution, the present controversy was docketed as a regular
administrative matter.
Summaries of the Pleadings Filed by Respondents in Response to the October
19, 2010 Show Cause Resolution
On November 19, 2010, within the extension for filing granted by the Court,
respondents filed the following pleadings:
(1) Compliance dated November 18, 2010 by counsels for 35 of the
37 respondents, excluding Prof. Owen Lynch and Prof. Raul T.
Vasquez, in relation to the charge of violation of Canons 1, 11 and
13 and Rules 1.02 and 11.05 of the Code of Professional
Responsibility;
(2) Compliance and Reservation dated November 18, 2010 by Prof.
Rosa Maria T. Juan-Bautista in relation to the same charge in par.
(1);
(3) Compliance dated November 19, 2010 by counsel for Prof. Raul
T. Vasquez in relation to the same charge in par. (1);
(4) Compliance dated November 19, 2010 by counsels for Dean
Leonen, in relation to the charge of violation of Canon 10, Rules
10.01, 10.02 and 10.03; and
(5) Manifestation dated November 19, 2010 by counsel for Prof.
Owen Lynch.
Common Compliance of 35 Respondents (Excluding Prof. Owen Lynch and
Prof. Raul Vasquez)
Thirty-five (35) of the respondent UP Law professors filed on November 19,
2010 a common compliance which was signed by their respective counsels (the
Common Compliance). In the "Preface" of said Common Compliance,
respondents stressed that "[they] issued the Restoring Integrity Statement in the
discharge of the solemn duties and trust reposed upon them as teachers in the
profession of law, and as members of the Bar to speak out on a matter of
public concern and one that is of vital interest to them."39 They likewise alleged
that "they acted with the purest of intentions" and pointed out that "none of them
was involved either as party or counsel"40 in the Vinuya case. Further,
respondents "note with concern" that the Show Cause Resolutions findings and
conclusions were "a prejudgment that respondents indeed are in contempt,
have breached their obligations as law professors and officers of the Court, and
have violated Canons [1], 11 and 13 and Rules 1.02 and 11.05 of the Code of
Professional Responsibility."41
By way of explanation, the respondents emphasized the following points:
(a) Respondents alleged noble intentions
In response to the charges of failure to observe due respect to legal
processes42 and the courts43 and of tending to influence, or giving the
appearance of influencing the Court44 in the issuance of their Statement,
respondents assert that their intention was not to malign the Court but rather to
defend its integrity and credibility and to ensure continued confidence in the
legal system. Their noble motive was purportedly evidenced by the portion of
their Statement "focusing on constructive action."45 Respondents call in the
Statement for the Court "to provide clear and concise guidance to the Bench
and Bar to ensure only the highest quality of legal research and writing in
adjudication," was reputedly "in keeping with strictures enjoining lawyers to
participate in the development of the legal system by initiating or supporting
efforts in law reform and in the improvement of the administration of justice"
(under Canon 4 of the Code of Professional Responsibility) and to "promote
respect for the law and legal processes" (under Canon 1, id.).46 Furthermore, as
academics, they allegedly have a "special interest and duty to vigilantly guard
against plagiarism and misrepresentation because these unwelcome
occurrences have a profound impact in the academe, especially in our law
schools."47
Respondents further "[called] on this Court not to misconstrue the Restoring
Integrity Statement as an institutional attack x x x on the basis of its first and
ninth paragraphs."48 They further clarified that at the time the Statement was
allegedly drafted and agreed upon, it appeared to them the Court "was not
going to take any action on the grave and startling allegations of plagiarism and
misrepresentation."49 According to respondents, the bases for their belief were
(i) the news article published on July 21, 2010 in the Philippine Daily Inquirer
wherein Court Administrator Jose Midas P. Marquez was reported to have said
that Chief Justice Corona would not order an inquiry into the matter;50 and (ii)
the July 22, 2010 letter of Justice Del Castillo which they claimed "did nothing
but to downplay the gravity of the plagiarism and misrepresentation
charges."51 Respondents claimed that it was their perception of the Courts
indifference to the dangers posed by the plagiarism allegations against Justice
Del Castillo that impelled them to urgently take a public stand on the issue.
(b) The "correctness" of respondents position that Justice Del
Castillo committed plagiarism and should be held accountable in
accordance with the standards of academic writing
A significant portion of the Common Compliance is devoted to a discussion of
the merits of respondents charge of plagiarism against Justice Del Castillo.
Relying on University of the Philippines Board of Regents v. Court of
Appeals52 and foreign materials and jurisprudence, respondents essentially
argue that their position regarding the plagiarism charge against Justice Del
Castillo is the correct view and that they are therefore justified in issuing their
Restoring Integrity Statement. Attachments to the Common Compliance
included, among others: (i) the letter dated October 28, 2010 of Peter B.
Payoyo, LL.M, Ph.D.,53 sent to Chief Justice Corona through Justice Sereno,
alleging that the Vinuya decision likewise lifted without proper attribution the
text from a legal article by Mariana Salazar Albornoz that appeared in the
Anuario Mexicano De Derecho Internacional and from an International Court
of Justice decision; and (ii) a 2008 Human Rights Law Review Article entitled
"Sexual Orientation, Gender Identity and International Human Rights Law" by
Michael OFlaherty and John Fisher, in support of their charge that Justice
Del Castillo also lifted passages from said article without proper attribution,
but this time, in his ponencia in Ang Ladlad LGBT Party v. Commission on
Elections.54
(c) Respondents belief that they are being "singled out" by the Court
when others have likewise spoken on the "plagiarism issue"
In the Common Compliance, respondents likewise asserted that "the
plagiarism and misrepresentation allegations are legitimate public
issues."55 They identified various published reports and opinions, in
agreement with and in opposition to the stance of respondents, on the issue
of plagiarism, specifically:
(i) Newsbreak report on July 19, 2010 by Aries Rufo and Purple Romero;56
(ii) Column of Ramon Tulfo which appeared in the Philippine Daily Inquirer on
July 24, 2010;57
(iii) Editorial of the Philippine Daily Inquirer published on July 25, 2010;58
(iv) Letter dated July 22, 2010 of Justice Del Castillo published in the
Philippine Star on July 30, 2010;59
(v) Column of Former Intellectual Property Office Director General Adrian
Cristobal, Jr. published in the Business Mirror on August 5, 2010;60
(vi) Column of Former Chief Justice Artemio Panganiban published in the
Philippine Daily Inquirer on August 8, 2010;61
(vii) News report regarding Senator Francis Pangilinans call for the
resignation of Justice Del Castillo published in the Daily Tribune and the
Manila Standard Today on July 31, 2010;62
(viii) News reports regarding the statement of Dean Cesar Villanueva of the
Ateneo de Manila University School of Law on the calls for the resignation of
Justice Del Castillo published in The Manila Bulletin, the Philippine Star and
the Business Mirror on August 11, 2010;63
 (ix) News report on expressions of support for Justice Del Castillo from a
former dean of the Pamantasan ng Lungsod ng Maynila, the Philippine
Constitutional Association, the Judges Association of Bulacan and the
Integrated Bar of the Philippines Bulacan Chapter published in the
Philippine Star on August 16, 2010;64 and
(x) Letter of the Dean of the Liceo de Cagayan University College of Law
published in the Philippine Daily Inquirer on August 10, 2010.65
In view of the foregoing, respondents alleged that this Court has
singled them out for sanctions and the charge in the Show Cause
Resolution dated October 19, 2010 that they may have violated
specific canons of the Code of Professional Responsibility is unfair
and without basis.
(d) Freedom of expression
In paragraphs 28 to 30 of the Common Compliance, respondents
briefly discussed their position that in issuing their Statement, "they
should be seen as not only to be performing their duties as members
of the Bar, officers of the court, and teachers of law, but also as
citizens of a democracy who are constitutionally protected in the
exercise of free speech."66 In support of this contention, they cited
United States v. Bustos,67In re: Atty. Vicente Raul Almacen, 68 and In
the Matter of Petition for Declaratory Relief Re: Constitutionality of
Republic Act 4880, Gonzales v. Commission on Elections.69
(e) Academic freedom
In paragraphs 31 to 34 of the Common Compliance, respondents asserted that
their Statement was also issued in the exercise of their academic freedom as
teachers in an institution of higher learning. They relied on Section 5 of the
University of the Philippines Charter of 2008 which provided that "[t]he national
university has the right and responsibility to exercise academic freedom." They
likewise adverted to Garcia v. The Faculty Admission Committee, Loyola
School of Theology70 which they claimed recognized the extent and breadth of
such freedom as to encourage a free and healthy discussion and
communication of a faculty members field of study without fear of reprisal. It is
respondents view that had they remained silent on the plagiarism issue in the
Vinuya decision they would have "compromised [their] integrity and credibility
as teachers; [their silence] would have created a culture and generation of
students, professionals, even lawyers, who would lack the competence and
discipline for research and pleading; or, worse, [that] their silence would have
communicated to the public that plagiarism and misrepresentation are
inconsequential matters and that intellectual integrity has no bearing or
relevance to ones conduct."71
In closing, respondents Common Compliance exhorted this Court to consider
the following portion of the dissenting opinion of Justice George A. Malcolm in
Salcedo v. Hernandez,72 to wit:
Respect for the courts can better be obtained by following a calm and impartial
course from the bench than by an attempt to compel respect for the judiciary by
chastising a lawyer for a too vigorous or injudicious exposition of his side of a
case. The Philippines needs lawyers of independent thought and courageous
bearing, jealous of the interests of their clients and unafraid of any court, high or
low, and the courts will do well tolerantly to overlook occasional intemperate
language soon to be regretted by the lawyer which affects in no way the
outcome of a case.73
On the matter of the reliefs to which respondents believe they are entitled, the
Common Compliance stated, thus:
WHEREFORE:
A. Respondents, as citizens of a democracy, professors of law,
members of the Bar and officers of the Court, respectfully pray that:
1. the foregoing be noted; and
2. the Court reconsider and reverse its adverse findings in
the Show Cause Resolution, including its conclusions that
respondents have: [a] breached their "obligation as law
professors and officers of the Court to be the first to
uphold the dignity and authority of this Court, and not
to promote distrust in the administration of justice;" and [b]
committed "violations of Canons 10, 11, and 13 and Rules
1.02 and 11.05 of the Code of Professional
Responsibility."
B. In the event the Honorable Court declines to grant the foregoing
prayer, respondents respectfully pray, in the alternative, and in
assertion of their due process rights, that before final judgment be
rendered:
1. the Show Cause Resolution be set for hearing;
2. respondents be given a fair and full opportunity to
refute and/or address the findings and conclusions of fact
in the Show Cause Resolution (including especially the
finding and conclusion of a lack of malicious intent), and in
that connection, that appropriate procedures and
schedules for hearing be adopted and defined that will
allow them the full and fair opportunity to require the
production of and to present testimonial, documentary,
and object evidence bearing on the plagiarism and
misrepresentation issues in Vinuya v. Executive Secretary
(G.R. No. 162230, April 28, 2010) and In the Matter of the
Charges of Plagiarism, etc. Against Associate Justice
Mariano C. Del Castillo (A.M. No. 10-7-17-SC); and
3. respondents be given fair and full access to the
transcripts, records, drafts, reports and submissions in or
relating to, and accorded the opportunity to cross-examine
the witnesses who were or could have been called in In
The Matter of the Charges of Plagiarism, etc. Against
Associate Justice Mariano C. Del Castillo (A.M. No. 10-7-
17-SC).74
Compliance and Reservation of Prof. Rosa Maria T. Juan-Bautista
Although already included in the Common Compliance, Prof. Rosa Maria T.
Juan-Bautista (Prof. Juan-Bautista) filed a separate Compliance and
Reservation (the Bautista Compliance), wherein she adopted the allegations in
the Common Compliance with some additional averments.
Prof. Juan-Bautista reiterated that her due process rights allegedly entitled her
to challenge the findings and conclusions in the Show Cause Resolution.
Furthermore, "[i]f the Restoring Integrity Statement can be considered indirect
contempt, under Section 3 of Rule 71 of the Rules of Court, such may be
punished only after charge and hearing."75
Prof. Juan-Bautista stressed that respondents signed the Statement "in good
faith and with the best intentions to protect the Supreme Court by asking one
member to resign."76 For her part, Prof. Juan-Bautista intimated that her deep
disappointment and sadness for the plight of the Malaya Lolas were what
motivated her to sign the Statement.
On the point of academic freedom, Prof. Juan-Bautista cited
jurisprudence77 which in her view highlighted that academic freedom is
constitutionally guaranteed to institutions of higher learning such that schools
have the freedom to determine for themselves who may teach, what may be
taught, how lessons shall be taught and who may be admitted to study and that
courts have no authority to interfere in the schools exercise of discretion in
these matters in the absence of grave abuse of discretion. She claims the Court
has encroached on the academic freedom of the University of the Philippines
and other universities on their right to determine how lessons shall be taught.
Lastly, Prof. Juan-Bautista asserted that the Statement was an exercise of
respondents constitutional right to freedom of expression that can only be
curtailed when there is grave and imminent danger to public safety, public
morale, public health or other legitimate public interest.78
Compliance of Prof. Raul T. Vasquez
On November 19, 2010, Prof. Raul T. Vasquez (Prof. Vasquez) filed a separate
Compliance by registered mail (the Vasquez Compliance). In said Compliance,
Prof. Vasquez narrated the circumstances surrounding his signing of the
Statement. He alleged that the Vinuya decision was a topic of conversation
among the UP Law faculty early in the first semester (of academic year 2010-
11) because it reportedly contained citations not properly attributed to the
sources; that he was shown a copy of the Statement by a clerk of the Office of
the Dean on his way to his class; and that, agreeing in principle with the main
theme advanced by the Statement, he signed the same in utmost good faith.79
In response to the directive from this Court to explain why he should not be
disciplined as a member of the Bar under the Show Cause Resolution, Prof.
Vasquez also took the position that a lawyer has the right, like all citizens in a
democratic society, to comment on acts of public officers. He invited the
attention of the Court to the following authorities: (a) In re: Vicente Sotto;80 (b) In
re: Atty. Vicente Raul Almacen;81 and (c) a discussion appearing in American
Jurisprudence (AmJur) 2d.82 He claims that he "never had any intention to
unduly influence, nor entertained any illusion that he could or should influence,
[the Court] in its disposition of the Vinuya case"83 and that "attacking the
integrity of [the Court] was the farthest thing on respondents mind when he
signed the Statement."84Unlike his colleagues, who wish to impress upon this
Court the purported homogeneity of the views on what constitutes plagiarism,
Prof. Vasquez stated in his Compliance that:
13. Before this Honorable Court rendered its Decision dated 12 October 2010,
some espoused the view that willful and deliberate intent to commit plagiarism
is an essential element of the same. Others, like respondent, were of the
opinion that plagiarism is committed regardless of the intent of the perpetrator,
the way it has always been viewed in the academe. This uncertainty made the
issue a fair topic for academic discussion in the College. Now, this Honorable
Court has ruled that plagiarism presupposes deliberate intent to steal anothers
work and to pass it off as ones own. 85 (Emphases supplied.)
Also in contrast to his colleagues, Prof. Vasquez was willing to concede that he
"might have been remiss in correctly assessing the effects of such language [in
the Statement] and could have been more careful."86 He ends his discussion
with a respectful submission that with his explanation, he has faithfully complied
with the Show Cause Resolution and that the Court will rule that he had not in
any manner violated his oath as a lawyer and officer of the Court.
Separate Compliance of Dean Leonen regarding the charge of violation of
Canon 10 in relation to his submission of a "dummy" of the UP Law Faculty
Statement to this Court
In his Compliance, Dean Leonen claimed that there were three drafts/versions
of the UP Law Faculty Statement, which he described as follows:
"Restoring Integrity I" which bears the entire roster of the faculty
of the UP College of Law in its signing pages, and the actual
signatures of the thirty-seven (37) faculty members subject of the
Show Cause Resolution. A copy was filed with the Honorable Court
by Roque and Butuyan on 31 August 2010 in A.M. No. 10-7-17-SC.
"Restoring Integrity II" which does not bear any actual physical
signature, but which reflects as signatories the names of thirty-seven
(37) members of the faculty with the notation "(SGD.)". A copy of
Restoring Integrity II was publicly and physically posted in the UP
College of Law on 10 August 2010. Another copy of Restoring
Integrity II was also officially received by the Honorable Court from
the Dean of the UP College of Law on 11 August 2010, almost three
weeks before the filing of Restoring Integrity I.
"Restoring Integrity III" which is a reprinting of Restoring Integrity
II, and which presently serves as the official file copy of the Deans
Office in the UP College of Law that may be signed by other faculty
members who still wish to. It bears the actual signatures of the thirty-
seven original signatories to Restoring Integrity I above their printed
names and the notation "(SGD.") and, in addition, the actual
signatures of eight (8) other members of the faculty above their
handwritten or typewritten names.87
For purposes of this discussion, only Restoring Integrity I and Restoring
Integrity II are relevant since what Dean Leonen has been directed to explain
are the discrepancies in the signature pages of these two documents. Restoring
Integrity III was never submitted to this Court.
On how Restoring Integrity I and Restoring Integrity II were prepared and came
about, Dean Leonen alleged, thus:
2.2 On 27 July 2010, sensing the emergence of a relatively broad
agreement in the faculty on a draft statement, Dean Leonen
instructed his staff to print the draft and circulate it among the faculty
members so that those who wished to may sign. For this purpose,
the staff encoded the law faculty roster to serve as the printed drafts
signing pages. Thus did the first printed draft of the Restoring
Integrity Statement, Restoring Integrity I, come into being.
2.3. As of 27 July 2010, the date of the Restoring Integrity
Statement, Dean Leonen was unaware that a Motion for
Reconsideration of the Honorable Courts Decision in Vinuya vs.
Executive Secretary (G.R. No. 162230, 28 April 2010) had already
been filed, or that the Honorable Court was in the process of
convening its Committee on Ethics and Ethical Standards in A.M.
No. 10-7-17-SC.
2.4. Dean Leonens staff then circulated Restoring Integrity I among
the members of the faculty. Some faculty members visited the
Deans Office to sign the document or had it brought to their
classrooms in the College of Law, or to their offices or residences.
Still other faculty members who, for one reason or another, were
unable to sign Restoring Integrity I at that time, nevertheless
conveyed to Dean Leonen their assurances that they would sign as
soon as they could manage.
2.5. Sometime in the second week of August, judging that Restoring
Integrity I had been circulated long enough, Dean Leonen instructed
his staff to reproduce the statement in a style and manner
appropriate for posting in the College of Law. Following his own
established practice in relation to significant public issuances, he
directed them to reformat the signing pages so that only the names
of those who signed the first printed draft would appear, together
with the corresponding "(SGD.)" note following each name.
Restoring Integrity II thus came into being.88
According to Dean Leonen, the "practice of eliminating blanks opposite or
above the names of non-signatories in the final draft of significant public
issuances, is meant not so much for aesthetic considerations as to secure the
integrity of such documents."89 He likewise claimed that "[p]osting statements
with blanks would be an open invitation to vandals and pranksters."90
With respect to the inclusion of Justice Mendozas name as among the
signatories in Restoring Integrity II when in fact he did not sign Restoring
Integrity I, Dean Leonen attributed the mistake to a miscommunication involving
his administrative officer. In his Compliance, he narrated that:
2.7. Upon being presented with a draft of Restoring Integrity II with
the reformatted signing pages, Dean Leonen noticed the inclusion of
the name of Justice Mendoza among the "(SGD.)" signatories. As
Justice Mendoza was not among those who had physically signed
Restoring Integrity I when it was previously circulated, Dean Leonen
called the attention of his staff to the inclusion of the Justices name
among the "(SGD.)" signatories in Restoring Integrity II.
2.8. Dean Leonen was told by his administrative officer that she had
spoken to Justice Mendoza over the phone on Friday, 06 August
2010. According to her, Justice Mendoza had authorized the dean to
sign the Restoring Integrity Statement for him as he agreed
fundamentally with its contents. Also according to her, Justice
Mendoza was unable at that time to sign the Restoring Integrity
Statement himself as he was leaving for the United States the
following week. It would later turn out that this account was not
entirely accurate.91(Underscoring and italics supplied.)
Dean Leonen claimed that he "had no reason to doubt his administrative officer,
however, and so placed full reliance on her account"92 as "[t]here were indeed
other faculty members who had also authorized the Dean to indicate that they
were signatories, even though they were at that time unable to affix their
signatures physically to the document."93
However, after receiving the Show Cause Resolution, Dean Leonen and his
staff reviewed the circumstances surrounding their effort to secure Justice
Mendozas signature. It would turn out that this was what actually transpired:
2.22.1. On Friday, 06 August 2010, when the deans staff talked to
Justice Mendoza on the phone, he [Justice Mendoza] indeed initially
agreed to sign the Restoring Integrity Statement as he fundamentally
agreed with its contents. However, Justice Mendoza did not exactly
say that he authorized the dean to sign the Restoring Integrity
Statement. Rather, he inquired if he could authorize the dean to sign
it for him as he was about to leave for the United States. The deans
staff informed him that they would, at any rate, still try to bring the
Restoring Integrity Statement to him.
2.22.2. Due to some administrative difficulties, Justice Mendoza was
unable to sign the Restoring Integrity Statement before he left for the
U.S. the following week.
2.22.3. The staff was able to bring Restoring Integrity III to Justice
Mendoza when he went to the College to teach on 24 September
2010, a day after his arrival from the U.S. This time, Justice
Mendoza declined to sign.94
According to the Dean:
2.23. It was only at this time that Dean Leonen realized the true import of the
call he received from Justice Mendoza in late September. Indeed, Justice
Mendoza confirmed that by the time the hard copy of the Restoring Integrity
Statement was brought to him shortly after his arrival from the U.S., he declined
to sign it because it had already become controversial. At that time, he
predicted that the Court would take some form of action against the faculty. By
then, and under those circumstances, he wanted to show due deference to the
Honorable Court, being a former Associate Justice and not wishing to unduly
aggravate the situation by signing the Statement.95 (Emphases supplied.)
With respect to the omission of Atty. Armovits name in the signature page of
Restoring Integrity II when he was one of the signatories of Restoring Integrity I
and the erroneous description in Dean Leonens August 10, 2010 letter that the
version of the Statement submitted to the Court was signed by 38 members of
the UP Law Faculty, it was explained in the Compliance that:
Respondent Atty. Miguel Armovit physically signed Restoring Integrity I when it
was circulated to him. However, his name was inadvertently left out by Dean
Leonens staff in the reformatting of the signing pages in Restoring Integrity II.
The dean assumed that his name was still included in the reformatted signing
pages, and so mentioned in his cover note to Chief Justice Corona that 38
members of the law faculty signed (the original 37 plus Justice Mendoza.)96
Dean Leonen argues that he should not be deemed to have submitted a
dummy of the Statement that was not a true and faithful reproduction of the
same. He emphasized that the main body of the Statement was unchanged in
all its three versions and only the signature pages were not the same. This
purportedly is merely "reflective of [the Statements] essential nature as a live
public manifesto meant to continuously draw adherents to its message, its
signatory portion is necessarily evolving and dynamic x x x many other printings
of [the Statement] may be made in the future, each one reflecting the same text
but with more and more signatories."97 Adverting to criminal law by analogy,
Dean Leonen claims that "this is not an instance where it has been made to
appear in a document that a person has participated in an act when the latter
did not in fact so participate"98 for he "did not misrepresent which members of
the faculty of the UP College of Law had agreed with the Restoring Integrity
Statement proper and/or had expressed their desire to be signatories thereto."99
In this regard, Dean Leonen believes that he had not committed any violation of
Canon 10 or Rules 10.01 and 10.02 for he did not mislead nor misrepresent to
the Court the contents of the Statement or the identities of the UP Law faculty
members who agreed with, or expressed their desire to be signatories to, the
Statement. He also asserts that he did not commit any violation of Rule 10.03
as he "coursed [the Statement] through the appropriate channels by
transmitting the same to Honorable Chief Justice Corona for the latters
information and proper disposition with the hope that its points would be duly
considered by the Honorable Court en banc."100 Citing Rudecon Management
Corporation v. Camacho,101 Dean Leonen posits that the required quantum of
proof has not been met in this case and that no dubious character or motivation
for the act complained of existed to warrant an administrative sanction for
violation of the standard of honesty provided for by the Code of Professional
Responsibility.102
Dean Leonen ends his Compliance with an enumeration of nearly identical
reliefs as the Common Compliance, including the prayers for a hearing and for
access to the records, evidence and witnesses allegedly relevant not only in
this case but also in A.M. No. 10-7-17-SC, the ethical investigation involving
Justice Del Castillo.
Manifestation of Prof. Owen Lynch (Lynch Manifestation)
For his part, Prof. Owen Lynch (Prof. Lynch) manifests to this Court that he is
not a member of the Philippine bar; but he is a member of the bar of the State
of Minnesota. He alleges that he first taught as a visiting professor at the UP
College of Law in 1981 to 1988 and returned in the same capacity in 2010. He
further alleges that "[h]e subscribes to the principle, espoused by this Court and
the Supreme Court of the United States, that [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 government
and public officials."103 In signing the Statement, he believes that "the right to
speak means the right to speak effectively."104 Citing the dissenting opinions in
Manila Public School Teachers Association v. Laguio, Jr.,105 Prof. Lynch argued
that "[f]or speech to be effective, it must be forceful enough to make the
intended recipients listen"106 and "[t]he quality of education would deteriorate in
an atmosphere of repression, when the very teachers who are supposed to
provide an example of courage and self-assertiveness to their pupils can speak
only in timorous whispers."107 Relying on the doctrine in In the Matter of Petition
for Declaratory Relief Re: Constitutionality of Republic Act 4880, Gonzales v.
Commission on Elections,108Prof. Lynch believed that the Statement did not
pose any danger, clear or present, of any substantive evil so as to remove it
from the protective mantle of the Bill of Rights (i.e., referring to the constitutional
guarantee on free speech).109 He also stated that he "has read the Compliance
of the other respondents to the Show Cause Resolution" and that "he signed
the Restoring Integrity Statement for the same reasons they did."110
ISSUES
Based on the Show Cause Resolution and a perusal of the submissions of
respondents, the material issues to be resolved in this case are as follows:
1.) Does the Show Cause Resolution deny respondents their freedom of
expression?
2.) Does the Show Cause Resolution violate respondents academic freedom
as law professors?
3.) Do the submissions of respondents satisfactorily explain why they should
not be disciplined as Members of the Bar under Canons 1, 11, and 13 and
Rules 1.02 and 11.05 of the Code of Professional Responsibility?
4.) Does the separate Compliance of Dean Leonen satisfactorily explain why he
should not be disciplined as a Member of the Bar under Canon 10, Rules 10.01,
10.02 and 10.03?
5.) Are respondents entitled to have the Show Cause Resolution set for hearing
and in relation to such hearing, are respondents entitled to require the
production or presentation of evidence bearing on the plagiarism and
misrepresentation issues in the Vinuya case (G.R. No. 162230) and the ethics
case against Justice Del Castillo (A.M. No. 10-7-17-SC) and to have access to
the records and transcripts of, and the witnesses and evidence presented, or
could have been presented, in the ethics case against Justice Del Castillo (A.M.
No. 10-7-17-SC)?
DISCUSSION
The Show Cause Resolution does not deny respondents their freedom of
expression.
It is respondents collective claim that the Court, with the issuance of the Show
Cause Resolution, has interfered with respondents constitutionally mandated
right to free speech and expression. It appears that the underlying assumption
behind respondents assertion is the misconception that this Court is denying
them the right to criticize the Courts decisions and actions, and that this Court
seeks to "silence" respondent law professors dissenting view on what they
characterize as a "legitimate public issue."
This is far from the truth. A reading of the Show Cause Resolution will plainly
show that it was neither the fact that respondents had criticized a decision of
the Court nor that they had charged one of its members of plagiarism that
motivated the said Resolution. It was the manner of the criticism and the
contumacious language by which respondents, who are not parties nor
counsels in the Vinuya case, have expressed their opinion in favor of the
petitioners in the said pending case for the "proper disposition" and
consideration of the Court that gave rise to said Resolution. The Show Cause
Resolution painstakingly enumerated the statements that the Court considered
excessive and uncalled for under the circumstances surrounding the issuance,
publication, and later submission to this Court of the UP Law facultys Restoring
Integrity Statement.
To reiterate, it was not the circumstance that respondents expressed a belief
that Justice Del Castillo was guilty of plagiarism but rather their expression of
that belief as "not only as an established fact, but a truth"111 when it was "[o]f
public knowledge [that there was] an ongoing investigation precisely to
determine the truth of such allegations."112 It was also pointed out in the Show
Cause Resolution that there was a pending motion for reconsideration of the
Vinuya decision.113 The Show Cause Resolution made no objections to the
portions of the Restoring Integrity Statement that respondents claimed to be
"constructive" but only asked respondents to explain those portions of the said
Statement that by no stretch of the imagination could be considered as fair or
constructive, to wit:
Beyond this, however, the statement bore certain remarks which raise concern
for the Court. The opening sentence alone is a grim preamble to the institutional
attack that lay ahead. It reads:
An extraordinary act of injustice has again been committed against the brave
Filipinas who had suffered abuse during a time of war.
The first paragraph concludes with a reference to the decision in Vinuya v.
Executive Secretary as a reprehensible act of dishonesty and misrepresentation
by the Highest Court of the land. x x x.
The insult to the members of the Court was aggravated by imputations of
deliberately delaying the resolution of the said case, its dismissal on the basis
of "polluted sources," the Courts alleged indifference to the cause of petitioners
[in the Vinuya case], as well as the supposed alarming lack of concern of the
members of the Court for even the most basic values of decency and
respect.114 x x x. (Underscoring ours.)
To be sure, the Show Cause Resolution itself recognized respondents freedom
of expression when it stated that:
While most agree that the right to criticize the judiciary is critical to maintaining
a free and democratic society, there is also a general consensus that healthy
criticism only goes so far. Many types of criticism leveled at the judiciary cross
the line to become harmful and irresponsible attacks. These potentially
devastating attacks and unjust criticism can threaten the independence of the
judiciary. The court must "insist on being permitted to proceed to the disposition
of its business in an orderly manner, free from outside interference obstructive
of its functions and tending to embarrass the administration of justice."
The Court could hardly perceive any reasonable purpose for the facultys less
than objective comments except to discredit the April 28, 2010 Decision in the
Vinuya case and undermine the Courts honesty, integrity and competence in
addressing the motion for its reconsideration. As if the case on the comfort
womens claims is not controversial enough, the UP Law faculty would fan the
flames and invite resentment against a resolution that would not reverse the
said decision. This runs contrary to their obligation as law professors and
officers of the Court to be the first to uphold the dignity and authority of this
Court, to which they owe fidelity according to the oath they have taken as
attorneys, and not to promote distrust in the administration of justice. 115 x x x.
(Citations omitted; emphases and underscoring supplied.)
Indeed, in a long line of cases, including those cited in respondents
submissions, this Court has held that the right to criticize the courts and judicial
officers must be balanced against the equally primordial concern that the
independence of the Judiciary be protected from due influence or interference.
In cases where the critics are not only citizens but members of the Bar,
jurisprudence has repeatedly affirmed the authority of this Court to discipline
lawyers whose statements regarding the courts and fellow lawyers, whether
judicial or extrajudicial, have exceeded the limits of fair comment and common
decency.
As early as the 1935 case of Salcedo v. Hernandez,116 the Court found Atty.
Vicente J. Francisco both guilty of contempt and liable administratively for the
following paragraph in his second motion for reconsideration:
We should like frankly and respectfully to make it of record that the resolution of
this court, denying our motion for reconsideration, is absolutely erroneous and
constitutes an outrage to the rights of the petitioner Felipe Salcedo and a
mockery of the popular will expressed at the polls in the municipality of Tiaong,
Tayabas. We wish to exhaust all the means within our power in order that this
error may be corrected by the very court which has committed it, because we
should not want that some citizen, particularly some voter of the municipality of
Tiaong, Tayabas, resort to the press publicly to denounce, as he has a right to
do, the judicial outrage of which the herein petitioner has been the victim, and
because it is our utmost desire to safeguard the prestige of this honorable court
and of each and every member thereof in the eyes of the public. But, at the
same time we wish to state sincerely that erroneous decisions like these, which
the affected party and his thousands of voters will necessarily consider unjust,
increase the proselytes of 'sakdalism' and make the public lose confidence in
the administration of justice.117 (Emphases supplied.)
The highlighted phrases were considered by the Court as neither justified nor
necessary and further held that:
[I]n order to call the attention of the court in a special way to the essential points
relied upon in his argument and to emphasize the force thereof, the many
reasons stated in his said motion were sufficient and the phrases in question
were superfluous. In order to appeal to reason and justice, it is highly improper
and amiss to make trouble and resort to threats, as Attorney Vicente J.
Francisco has done, because both means are annoying and good practice can
never sanction them by reason of their natural tendency to disturb and hinder
the free exercise of a serene and impartial judgment, particularly in judicial
matters, in the consideration of questions submitted for resolution.
There is no question that said paragraph of Attorney Vicente J. Francisco's
motion contains a more or less veiled threat to the court because it is insinuated
therein, after the author shows the course which the voters of Tiaong should
follow in case he fails in his attempt, that they will resort to the press for the
purpose of denouncing, what he claims to be a judicial outrage of which his
client has been the victim; and because he states in a threatening manner with
the intention of predisposing the mind of the reader against the court, thus
creating an atmosphere of prejudices against it in order to make it odious in the
public eye, that decisions of the nature of that referred to in his motion promote
distrust in the administration of justice and increase the proselytes of sakdalism,
a movement with seditious and revolutionary tendencies the activities of which,
as is of public knowledge, occurred in this country a few days ago. This cannot
mean otherwise than contempt of the dignity of the court and disrespect of the
authority thereof on the part of Attorney Vicente J. Francisco, because he
presumes that the court is so devoid of the sense of justice that, if he did not
resort to intimidation, it would maintain its error notwithstanding the fact that it
may be proven, with good reasons, that it has acted erroneously.118 (Emphases
supplied.)
Significantly, Salcedo is the decision from which respondents culled their quote
from the minority view of Justice Malcolm. Moreover, Salcedo concerned
statements made in a pleading filed by a counsel in a case, unlike the
respondents here, who are neither parties nor counsels in the Vinuya case and
therefore, do not have any standing at all to interfere in the Vinuya case.
Instead of supporting respondents theory, Salcedo is authority for the following
principle:
As a member of the bar and an officer of this court, Attorney Vicente J.
Francisco, as any attorney, is in duty bound to uphold its dignity and authority
and to defend its integrity, not only because it has conferred upon him the high
privilege, not a right (Malcolm, Legal Ethics, 158 and 160), of being what he
now is: a priest of justice (In re Thatcher, 80 Ohio St. Rep., 492, 669), but
also because in so doing, he neither creates nor promotes distrust in the
administration of justice, and prevents anybody from harboring and encouraging
discontent which, in many cases, is the source of disorder, thus undermining
the foundation upon which rests that bulwark called judicial power to which
those who are aggrieved turn for protection and relief.119 (Emphases supplied.)
Thus, the lawyer in Salcedo was fined and reprimanded for his injudicious
statements in his pleading, by accusing the Court of "erroneous ruling." Here,
the respondents Statement goes way beyond merely ascribing error to the
Court.
Other cases cited by respondents likewise espouse rulings contrary to their
position. In re: Atty. Vicente Raul Almacen,120 cited in the Common Compliance
and the Vasquez Compliance, was an instance where the Court indefinitely
suspended a member of the Bar for filing and releasing to the press a "Petition
to Surrender Lawyers Certificate of Title" in protest of what he claimed was a
great injustice to his client committed by the Supreme Court. In the decision, the
petition was described, thus:
He indicts this Court, in his own phrase, as a tribunal "peopled by men who are
calloused to our pleas for justice, who ignore without reasons their own
applicable decisions and commit culpable violations of the Constitution with
impunity." His client's he continues, who was deeply aggrieved by this Court's
"unjust judgment," has become "one of the sacrificial victims before the altar of
hypocrisy." In the same breath that he alludes to the classic symbol of justice,
he ridicules the members of this Court, saying "that justice as administered by
the present members of the Supreme Court is not only blind, but also deaf and
dumb." He then vows to argue the cause of his client "in the people's forum," so
that "the people may know of the silent injustices committed by this Court," and
that "whatever mistakes, wrongs and injustices that were committed must never
be repeated." He ends his petition with a prayer that
"x x x a resolution issue ordering the Clerk of Court to receive the certificate of
the undersigned attorney and counsellor-at-law IN TRUST with reservation that
at any time in the future and in the event we regain our faith and confidence, we
may retrieve our title to assume the practice of the noblest profession."121
It is true that in Almacen the Court extensively discussed foreign jurisprudence
on the principle that a lawyer, just like any citizen, has the right to criticize and
comment upon actuations of public officers, including judicial authority.
However, the real doctrine in Almacen is that such criticism of the courts,
whether done in court or outside of it, must conform to standards of fairness
and propriety. This case engaged in an even more extensive discussion of the
legal authorities sustaining this view.1awphi1 To quote from that decision:
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.
For, membership in the Bar imposes upon a person obligations and duties
which are not mere flux and ferment. His investiture into the legal profession
places upon his shoulders no burden more basic, more exacting and more
imperative than that of respectful behavior toward the courts. He vows solemnly
to conduct himself "with all good fidelity x x x to the courts;" and the Rules of
Court constantly remind him "to observe and maintain the respect due to courts
of justice and judicial officers." The first canon of legal ethics enjoins him "to
maintain towards the courts a respectful attitude, not for the sake of the
temporary incumbent of the judicial office, but for the maintenance of its
supreme importance."
As Mr. Justice Field puts it:
"x x x the obligation which attorneys impliedly assume, if they do not by express
declaration take upon themselves, when they are admitted to the Bar, is not
merely to be obedient to the Constitution and laws, but to maintain at all times
the respect due to courts of justice and judicial officers. This obligation is not
discharged by merely observing the rules of courteous demeanor in open court,
but includes abstaining out of court from all insulting language and offensive
conduct toward judges personally for their judicial acts." (Bradley, v. Fisher, 20
Law. 4d. 647, 652)
The lawyer's duty to render respectful subordination to the courts is essential to
the orderly administration of justice. Hence, in the assertion of their clients'
rights, lawyers even those gifted with superior intellect are enjoined to rein
up their tempers.
"The counsel in any case may or may not be an abler or more learned lawyer
than the judge, and it may tax his patience and temper to submit to rulings
which he regards as incorrect, but discipline and self-respect are as necessary
to the orderly administration of justice as they are to the effectiveness of an
army. The decisions of the judge must be obeyed, because he is the tribunal
appointed to decide, and the bar should at all times be the foremost in
rendering respectful submission." (In Re Scouten, 40 Atl. 481)
xxxx
In his relations with the courts, a lawyer may not divide his personality so as to
be an attorney at one time and a mere citizen at another. Thus, statements
made by an attorney in private conversations or communications or in the
course of a political campaign, if couched in insulting language as to bring into
scorn and disrepute the administration of justice, may subject the attorney to
disciplinary action.122 (Emphases and underscoring supplied.)
In a similar vein, In re: Vicente Sotto,123 cited in the Vasquez Compliance,
observed that:
[T]his Court, in In re Kelly, held the following:
The publication of a criticism of a party or of the court to a pending cause,
respecting the same, has always been considered as misbehavior, tending to
obstruct the administration of justice, and subjects such persons to contempt
proceedings. Parties have a constitutional right to have their causes tried fairly
in court, by an impartial tribunal, uninfluenced by publications or public clamor.
Every citizen has a profound personal interest in the enforcement of the
fundamental right to have justice administered by the courts, under the
protection and forms of law, free from outside coercion or interference. x x x.
Mere criticism or comment on the correctness or wrongness, soundness or
unsoundness of the decision of the court in a pending case made in good faith
may be tolerated; because if well founded it may enlighten the court and
contribute to the correction of an error if committed; but if it is not well taken and
obviously erroneous, it should, in no way, influence the court in reversing or
modifying its decision. x x x.
xxxx
To hurl the false charge that this Court has been for the last years committing
deliberately "so many blunders and injustices," that is to say, that it has been
deciding in favor of one party knowing that the law and justice is on the part of
the adverse party and not on the one in whose favor the decision was rendered,
in many cases decided during the last years, would tend necessarily to
undermine the confidence of the people in the honesty and integrity of the
members of this Court, and consequently to lower or degrade the administration
of justice by this Court. The Supreme Court of the Philippines is, under the
Constitution, the last bulwark to which the Filipino people may repair to obtain
relief for their grievances or protection of their rights when these are trampled
upon, and if the people lose their confidence in the honesty and integrity of the
members of this Court and believe that they cannot expect justice therefrom,
they might be driven to take the law into their own hands, and disorder and
perhaps chaos might be the result. As a member of the bar and an officer of the
courts Atty. Vicente Sotto, like any other, is in duty bound to uphold the dignity
and authority of this Court, to which he owes fidelity according to the oath he
has taken as such attorney, and not to promote distrust in the administration of
justice. Respect to the courts guarantees the stability of other institutions, which
without such guaranty would be resting on a very shaky
foundation.124 (Emphases and underscoring supplied.)
That the doctrinal pronouncements in these early cases are still good law can
be easily gleaned even from more recent jurisprudence.
In Choa v. Chiongson,125 the Court administratively disciplined a lawyer,
through the imposition of a fine, for making malicious and unfounded criticisms
of a judge in the guise of an administrative complaint and held, thus:
As an officer of the court and its indispensable partner in the sacred task of
administering justice, graver responsibility is imposed upon a lawyer than any
other to uphold the integrity of the courts and to show respect to its officers.
This does not mean, however, that a lawyer cannot criticize a judge. As we
stated in Tiongco vs. Hon. Aguilar:
It does not, however, follow that just because a lawyer is an officer of the court,
he cannot criticize the courts. That is his right as a citizen, and it is even his
duty as an officer of the court to avail of such right. Thus, in In Re: Almacen (31
SCRA 562, 579-580 [1970]), this Court explicitly declared:
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 to a scrutiny into
the official conduct of the judges, which would not expose him to legal
animadversion as a citizen." (Case of Austin, 28 Am Dec. 657, 665).
xxxx
Nevertheless, such a right is not without limit. For, as this Court warned in
Almacen:
But it is a 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.
xxxx
Elsewise stated, the right to criticize, which is guaranteed by the freedom of
speech and of expression in the Bill of Rights of the Constitution, must be
exercised responsibly, for every right carries with it a corresponding
obligation. Freedom is not freedom from responsibility, but freedom with
responsibility. x x x.
xxxx
Proscribed then are, inter alia, the use of unnecessary language which
jeopardizes high esteem in courts, creates or promotes distrust in judicial
administration (Rheem, supra), or tends necessarily to undermine the
confidence of people in the integrity of the members of this Court and to
degrade the administration of justice by this Court (In re: Sotto, 82 Phil. 595
[1949]); or of offensive and abusive language (In re: Rafael Climaco, 55 SCRA
107 [1974]); or abrasive and offensive language (Yangson vs. Salandanan, 68
SCRA 42 [1975]; or of disrespectful, offensive, manifestly baseless, and
malicious statements in pleadings or in a letter addressed to the judge (Baja vs.
Macandog, 158 SCRA [1988], citing the resolution of 19 January 1988 in Phil.
Public Schools Teachers Association vs. Quisumbing, G.R. No. 76180, and
Ceniza vs. Sebastian, 130 SCRA 295 [1984]); or of disparaging, intemperate,
and uncalled-for remarks (Sangalang vs. Intermediate Appellate Court, 177
SCRA 87 [1989]).
Any criticism against a judge made in the guise of an administrative complaint
which is clearly unfounded and impelled by ulterior motive will not excuse the
lawyer responsible therefor under his duty of fidelity to his client. x x
x.126 (Emphases and underscoring supplied.)
In Saberon v. Larong,127 where this Court found respondent lawyer guilty of
simple misconduct for using intemperate language in his pleadings and
imposed a fine upon him, we had the occasion to state:
The Code of Professional Responsibility mandates:
CANON 8 - A lawyer shall conduct himself with courtesy, fairness and candor
toward his professional colleagues, and shall avoid harassing tactics against
opposing counsel.
Rule 8.01 - A lawyer shall not, in his professional dealings, use language which
is abusive, offensive or otherwise improper.
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.
Rule 11.03 - A lawyer shall abstain from scandalous, offensive or
menacing language or behavior before the Courts.
To be sure, the adversarial nature of our legal system has tempted members of
the bar to use strong language in pursuit of their duty to advance the interests
of their clients.
However, while a lawyer is entitled to present his case with vigor and
courage, such enthusiasm does not justify the use of offensive and
abusive language. Language abounds with countless possibilities for one
to be emphatic but respectful, convincing but not derogatory, illuminating
but not offensive.
On many occasions, the Court has reminded members of the Bar to
abstain from all offensive personalityand to advance no fact prejudicial to the
honor or reputation of a party or witness, unless required by the justice of the
cause with which he is charged. In keeping with the dignity of the legal
profession, a lawyers language even in his pleadings must be dignified.128
Verily, the accusatory and vilifying nature of certain portions of the Statement
exceeded the limits of fair comment and cannot be deemed as protected free
speech. Even In the Matter of Petition for Declaratory Relief Re:
Constitutionality of Republic Act 4880, Gonzales v. Commission on
Elections,129 relied upon by respondents in the Common Compliance, held that:
From the language of the specific constitutional provision, it would appear that
the right is not susceptible of any limitation. No law may be passed abridging
the freedom of speech and of the press. The realities of life in a complex society
preclude however a literal interpretation. Freedom of expression is not an
absolute. It would be too much to insist that at all times and under all
circumstances it should remain unfettered and unrestrained. There are other
societal values that press for recognition. x x x.130 (Emphasis supplied.)
One such societal value that presses for recognition in the case at bar is the
threat to judicial independence and the orderly administration of justice that
immoderate, reckless and unfair attacks on judicial decisions and institutions
pose. This Court held as much in Zaldivar v. Sandiganbayan and
Gonzales,131 where we indefinitely suspended a lawyer from the practice of
law for issuing to the media statements grossly disrespectful towards the Court
in relation to a pending case, to wit:
Respondent Gonzales 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 interest. 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. x x x.132 (Emphases supplied.)
For this reason, the Court cannot uphold the view of some respondents133 that
the Statement presents no grave or imminent danger to a legitimate public
interest.
The Show Cause Resolution does not interfere with respondents academic
freedom.
It is not contested that respondents herein are, by law and jurisprudence,
guaranteed academic freedom and undisputably, they are free to determine
what they will teach their students and how they will teach. We must point out
that there is nothing in the Show Cause Resolution that dictates upon
respondents the subject matter they can teach and the manner of their
instruction. Moreover, it is not inconsistent with the principle of academic
freedom for this Court to subject lawyers who teach law to disciplinary action for
contumacious conduct and speech, coupled with undue intervention in favor of
a party in a pending case, without observing proper procedure, even if
purportedly done in their capacity as teachers.
A novel issue involved in the present controversy, for it has not been passed
upon in any previous case before this Court, is the question of whether lawyers
who are also law professors can invoke academic freedom as a defense in an
administrative proceeding for intemperate statements tending to pressure the
Court or influence the outcome of a case or degrade the courts.
Applying by analogy the Courts past treatment of the "free speech" defense in
other bar discipline cases, academic freedom cannot be successfully invoked
by respondents in this case. The implicit ruling in the jurisprudence discussed
above is that the constitutional right to freedom of expression of members of the
Bar may be circumscribed by their ethical duties as lawyers to give due respect
to the courts and to uphold the publics faith in the legal profession and the
justice system. To our mind, the reason that freedom of expression may be so
delimited in the case of lawyers applies with greater force to the academic
freedom of law professors.
It would do well for the Court to remind respondents that, in view of the broad
definition in Cayetano v. Monsod,134lawyers when they teach law are
considered engaged in the practice of law. Unlike professors in other disciplines
and more than lawyers who do not teach law, respondents are bound by their
oath to uphold the ethical standards of the legal profession. Thus, their actions
as law professors must be measured against the same canons of professional
responsibility applicable to acts of members of the Bar as the fact of their being
law professors is inextricably entwined with the fact that they are lawyers.
Even if the Court was willing to accept respondents proposition in the Common
Compliance that their issuance of the Statement was in keeping with their duty
to "participate in the development of the legal system by initiating or supporting
efforts in law reform and in the improvement of the administration of justice"
under Canon 4 of the Code of Professional Responsibility, we cannot agree that
they have fulfilled that same duty in keeping with the demands of Canons 1, 11
and 13 to give due respect to legal processes and the courts, and to avoid
conduct that tends to influence the courts. Members of the Bar cannot be
selective regarding which canons to abide by given particular situations. With
more reason that law professors are not allowed this indulgence, since they are
expected to provide their students exemplars of the Code of Professional
Responsibility as a whole and not just their preferred portions thereof.
The Courts rulings on the submissions regarding the charge of violation of
Canons 1, 11 and 13.
Having disposed of respondents main arguments of freedom of expression and
academic freedom, the Court considers here the other averments in their
submissions.
With respect to good faith, respondents allegations presented two main ideas:
(a) the validity of their position regarding the plagiarism charge against Justice
Del Castillo, and (b) their pure motive to spur this Court to take the correct
action on said issue.
The Court has already clarified that it is not the expression of respondents
staunch belief that Justice Del Castillo has committed a misconduct that the
majority of this Court has found so unbecoming in the Show Cause Resolution.
No matter how firm a lawyers conviction in the righteousness of his cause there
is simply no excuse for denigrating the courts and engaging in public behavior
that tends to put the courts and the legal profession into disrepute. This
doctrine, which we have repeatedly upheld in such cases as Salcedo, In re
Almacen and Saberong, should be applied in this case with more reason, as the
respondents, not parties to the Vinuya case, denounced the Court and urged it
to change its decision therein, in a public statement using contumacious
language, which with temerity they subsequently submitted to the Court for
"proper disposition."
That humiliating the Court into reconsidering the Vinuya Decision in favor of the
Malaya Lolas was one of the objectives of the Statement could be seen in the
following paragraphs from the same:
And in light of the significance of this decision to the quest for justice not only of
Filipino women, but of women elsewhere in the world who have suffered the
horrors of sexual abuse and exploitation in times of war, the Court cannot coldly
deny relief and justice to the petitioners on the basis of pilfered and
misinterpreted texts.
xxxx
(3) The same breach and consequent disposition of the Vinuya case does
violence to the primordial function of the Supreme Court as the ultimate
dispenser of justice to all those who have been left without legal or equitable
recourse, such as the petitioners therein.135 (Emphases and underscoring
supplied.)
Whether or not respondents views regarding the plagiarism issue in
the Vinuya case had valid basis was wholly immaterial to their liability for
contumacious speech and conduct. These are two separate matters to be
properly threshed out in separate proceedings. The Court considers it highly
inappropriate, if not tantamount to dissembling, the discussion devoted in one of
the compliances arguing the guilt of Justice Del Castillo. In the Common
Compliance, respondents even go so far as to attach documentary evidence to
support the plagiarism charges against Justice Del Castillo in the present
controversy. The ethics case of Justice Del Castillo (A.M. No. 10-7-17-SC), with
the filing of a motion for reconsideration, was still pending at the time of the
filing of respondents submissions in this administrative case. As respondents
themselves admit, they are neither parties nor counsels in the ethics case
against Justice Del Castillo. Notwithstanding their professed overriding interest
in said ethics case, it is not proper procedure for respondents to bring up their
plagiarism arguments here especially when it has no bearing on their own
administrative case.
Still on motive, it is also proposed that the choice of language in the Statement
was intended for effective speech; that speech must be "forceful enough to
make the intended recipients listen."136 One wonders what sort of effect
respondents were hoping for in branding this Court as, among others, callous,
dishonest and lacking in concern for the basic values of decency and respect.
The Court fails to see how it can ennoble the profession if we allow respondents
to send a signal to their students that the only way to effectively plead their
cases and persuade others to their point of view is to be offensive.
This brings to our mind the letters of Dr. Ellis and Prof. Tams which were
deliberately quoted in full in the narration of background facts to illustrate the
sharp contrast between the civil tenor of these letters and the antagonistic
irreverence of the Statement. In truth, these foreign authors are the ones who
would expectedly be affected by any perception of misuse of their works.
Notwithstanding that they are beyond the disciplinary reach of this Court, they
still obviously took pains to convey their objections in a deferential and scholarly
manner. It is unfathomable to the Court why respondents could not do the
same. These foreign authors letters underscore the universality of the tenet
that legal professionals must deal with each other in good faith and due respect.
The mark of the true intellectual is one who can express his opinions logically
and soberly without resort to exaggerated rhetoric and unproductive
recriminations.
As for the claim that the respondents noble intention is to spur the Court to take
"constructive action" on the plagiarism issue, the Court has some doubts as to
its veracity. For if the Statement was primarily meant for this Courts
consideration, why was the same published and reported in the media first
before it was submitted to this Court? It is more plausible that the Statement
was prepared for consumption by the general public and designed to capture
media attention as part of the effort to generate interest in the most
controversial ground in the Supplemental Motion for Reconsideration filed in the
Vinuya case by Atty. Roque, who is respondents colleague on the UP Law
faculty.
In this regard, the Court finds that there was indeed a lack of observance of
fidelity and due respect to the Court, particularly when respondents knew fully
well that the matter of plagiarism in the Vinuya decision and the merits of the
Vinuya decision itself, at the time of the Statements issuance, were still both
sub judice or pending final disposition of the Court. These facts have been
widely publicized. On this point, respondents allege that at the time the
Statement was first drafted on July 27, 2010, they did not know of the
constitution of the Ethics Committee and they had issued the Statement under
the belief that this Court intended to take no action on the ethics charge against
Justice Del Castillo. Still, there was a significant lapse of time from the drafting
and printing of the Statement on July 27, 2010 and its publication and
submission to this Court in early August when the Ethics Committee had
already been convened. If it is true that the respondents outrage was fueled by
their perception of indifference on the part of the Court then, when it became
known that the Court did intend to take action, there was nothing to prevent
respondents from recalibrating the Statement to take this supervening event
into account in the interest of fairness.
Speaking of the publicity this case has generated, we likewise find no merit in
the respondents reliance on various news reports and commentaries in the
print media and the internet as proof that they are being unfairly "singled out."
On the contrary, these same annexes to the Common Compliance show that it
is not enough for one to criticize the Court to warrant the institution of
disciplinary137 or contempt138 action. This Court takes into account the nature of
the criticism and weighs the possible repercussions of the same on the
Judiciary. When the criticism comes from persons outside the profession who
may not have a full grasp of legal issues or from individuals whose personal or
other interests in making the criticism are obvious, the Court may perhaps
tolerate or ignore them. However, when law professors are the ones who
appear to have lost sight of the boundaries of fair commentary and worse,
would justify the same as an exercise of civil liberties, this Court cannot remain
silent for such silence would have a grave implication on legal education in our
country.
With respect to the 35 respondents named in the Common Compliance,
considering that this appears to be the first time these respondents have been
involved in disciplinary proceedings of this sort, the Court is willing to give them
the benefit of the doubt that they were for the most part well-intentioned in the
issuance of the Statement. However, it is established in jurisprudence that
where the excessive and contumacious language used is plain and undeniable,
then good intent can only be mitigating. As this Court expounded in Salcedo:
In his defense, Attorney Vicente J. Francisco states that it was not his intention
to offend the court or to be recreant to the respect thereto but, unfortunately,
there are his phrases which need no further comment. Furthermore, it is a well
settled rule in all places where the same conditions and practice as those in this
jurisdiction obtain, that want of intention is no excuse from liability (13 C. J., 45).
Neither is the fact that the phrases employed are justified by the facts a valid
defense:
"Where the matter is abusive or insulting, evidence that the language used was
justified by the facts is not admissible as a defense. Respect for the judicial
office should always be observed and enforced." (In re Stewart, 118 La., 827;
43 S., 455.) Said lack or want of intention constitutes at most an extenuation of
liability in this case, taking into consideration Attorney Vicente J. Francisco's
state of mind, according to him when he prepared said motion. This court is
disposed to make such concession. However, in order to avoid a recurrence
thereof and to prevent others, by following the bad example, from taking the
same course, this court considers it imperative to treat the case of said attorney
with the justice it deserves.139 (Emphases supplied.)
Thus, the 35 respondents named in the Common Compliance should,
notwithstanding their claim of good faith, be reminded of their lawyerly duty,
under Canons 1, 11 and 13, to give due respect to the courts and to refrain from
intemperate and offensive language tending to influence the Court on pending
matters or to denigrate the courts and the administration of justice.
With respect to Prof. Vasquez, the Court favorably notes the differences in his
Compliance compared to his colleagues. In our view, he was the only one
among the respondents who showed true candor and sincere deference to the
Court. He was able to give a straightforward account of how he came to sign
the Statement. He was candid enough to state that his agreement to the
Statement was in principle and that the reason plagiarism was a "fair topic of
discussion" among the UP Law faculty prior to the promulgation of the October
12, 2010 Decision in A.M. No. 10-7-17-SC was the uncertainty brought about by
a division of opinion on whether or not willful or deliberate intent was an
element of plagiarism. He was likewise willing to acknowledge that he may have
been remiss in failing to assess the effect of the language of the Statement and
could have used more care. He did all this without having to retract his position
on the plagiarism issue, without demands for undeserved reliefs (as will be
discussed below) and without baseless insinuations of deprivation of due
process or of prejudgment. This is all that this Court expected from
respondents, not for them to sacrifice their principles but only that they
recognize that they themselves may have committed some ethical lapse in this
affair. We commend Prof. Vaquez for showing that at least one of the
respondents can grasp the true import of the Show Cause Resolution involving
them. For these reasons, the Court finds Prof. Vasquezs Compliance
satisfactory.
As for Prof. Lynch, in view of his Manifestation that he is a member of the Bar of
the State of Minnesota and, therefore, not under the disciplinary authority of this
Court, he should be excused from these proceedings. However, he should be
reminded that while he is engaged as a professor in a Philippine law school he
should strive to be a model of responsible and professional conduct to his
students even without the threat of sanction from this Court. For even if one is
not bound by the Code of Professional Responsibility for members of the
Philippine Bar, civility and respect among legal professionals of any nationality
should be aspired for under universal standards of decency and fairness.
The Courts ruling on Dean Leonens Compliance regarding the charge of
violation of Canon 10.
To recall, the Show Cause Resolution directed Dean Leonen to show cause
why he should not be disciplinary dealt with for violation of Canon 10, Rules
10.01, 10.02 and 10.03 and for submitting a "dummy" that was not a true and
faithful reproduction of the signed Statement.
In his Compliance, Dean Leonen essentially denies that Restoring Integrity
II was not a true and faithful reproduction of the actual signed copy, Restoring
Integrity I, because looking at the text or the body, there were no differences
between the two. He attempts to downplay the discrepancies in the signature
pages of the two versions of the Statement (i.e., Restoring Integrity
I and Restoring Integrity II) by claiming that it is but expected in "live" public
manifestos with dynamic and evolving pages as more and more signatories add
their imprimatur thereto. He likewise stresses that he is not administratively
liable because he did not misrepresent the members of the UP Law faculty who
"had agreed with the Restoring Integrity Statement proper and/or who had
expressed their desire to be signatories thereto."140
To begin with, the Court cannot subscribe to Dean Leonens implied view that
the signatures in the Statement are not as significant as its contents. Live public
manifesto or not, the Statement was formally submitted to this Court at a
specific point in time and it should reflect accurately its signatories at that point.
The value of the Statement as a UP Law Faculty Statement lies precisely in the
identities of the persons who have signed it, since the Statements persuasive
authority mainly depends on the reputation and stature of the persons who have
endorsed the same. Indeed, it is apparent from respondents explanations that
their own belief in the "importance" of their positions as UP law professors
prompted them to publicly speak out on the matter of the plagiarism issue in the
Vinuya case.
Further, in our assessment, the true cause of Dean Leonens predicament is the
fact that he did not from the beginning submit the signed copy, Restoring
Integrity I, to this Court on August 11, 2010 and, instead, submitted Restoring
Integrity II with its retyped or "reformatted" signature pages. It would turn out,
according to Dean Leonens account, that there were errors in the retyping of
the signature pages due to lapses of his unnamed staff. First, an unnamed
administrative officer in the deans office gave the dean inaccurate information
that led him to allow the inclusion of Justice Mendoza as among the signatories
of Restoring Integrity II. Second, an unnamed staff also failed to type the name
of Atty. Armovit when encoding the signature pages of Restoring Integrity II
when in fact he had signed Restoring Integrity I.
The Court can understand why for purposes of posting on a bulletin board or a
website a signed document may have to be reformatted and signatures may be
indicated by the notation (SGD). This is not unusual. We are willing to accept
that the reformatting of documents meant for posting to eliminate blanks is
necessitated by vandalism concerns.
However, what is unusual is the submission to a court, especially this Court, of
a signed document for the Courts consideration that did not contain the actual
signatures of its authors. In most cases, it is the original signed document that
is transmitted to the Court or at the very least a photocopy of the actual signed
document. Dean Leonen has not offered any explanation why he deviated from
this practice with his submission to the Court of Restoring Integrity II on August
11, 2010. There was nothing to prevent the dean from submitting Restoring
Integrity I to this Court even with its blanks and unsigned portions. Dean
Leonen cannot claim fears of vandalism with respect to court submissions for
court employees are accountable for the care of documents and records that
may come into their custody. Yet, Dean Leonen deliberately chose to submit to
this Court the facsimile that did not contain the actual signatures and his silence
on the reason therefor is in itself a display of lack of candor.
Still, a careful reading of Dean Leonens explanations yield the answer. In the
course of his explanation of his willingness to accept his administrative officers
claim that Justice Mendoza agreed to be indicated as a signatory, Dean Leonen
admits in a footnote that other professors had likewise only authorized him to
indicate them as signatories and had not in fact signed the Statement. Thus, at
around the time Restoring Integrity II was printed, posted and submitted to this
Court, at least one purported signatory thereto had not actually signed the
same. Contrary to Dean Leonens proposition, that is precisely tantamount to
making it appear to this Court that a person or persons participated in an act
when such person or persons did not.
We are surprised that someone like Dean Leonen, with his reputation for
perfection and stringent standards of intellectual honesty, could proffer the
explanation that there was no misrepresentation when he allowed at least one
person to be indicated as having actually signed the Statement when all he had
was a verbal communication of an intent to sign. In the case of Justice
Mendoza, what he had was only hearsay information that the former intended to
sign the Statement. If Dean Leonen was truly determined to observe candor
and truthfulness in his dealings with the Court, we see no reason why he could
not have waited until all the professors who indicated their desire to sign the
Statement had in fact signed before transmitting the Statement to the Court as
a duly signed document. If it was truly impossible to secure some signatures,
such as that of Justice Mendoza who had to leave for abroad, then Dean
Leonen should have just resigned himself to the signatures that he was able to
secure.
We cannot imagine what urgent concern there was that he could not wait for
actual signatures before submission of the Statement to this Court. As
respondents all asserted, they were neither parties to nor counsels in the
Vinuya case and the ethics case against Justice Del Castillo. The Statement
was neither a pleading with a deadline nor a required submission to the Court;
rather, it was a voluntary submission that Dean Leonen could do at any time.
In sum, the Court likewise finds Dean Leonens Compliance unsatisfactory.
However, the Court is willing to ascribe these isolated lapses in judgment of
Dean Leonen to his misplaced zeal in pursuit of his objectives. In due
consideration of Dean Leonens professed good intentions, the Court deems it
sufficient to admonish Dean Leonen for failing to observe full candor and
honesty in his dealings with the Court as required under Canon 10.
Respondents requests for a hearing, for production/presentation of evidence
bearing on the plagiarism and misrepresentation issues in G.R. No. 162230 and
A.M. No. 10-7-17-SC, and for access to the records of A.M. No. 10-7-17-SC are
unmeritorious.
In the Common Compliance, respondents named therein asked for alternative
reliefs should the Court find their Compliance unsatisfactory, that is, that the
Show Cause Resolution be set for hearing and for that purpose, they be
allowed to require the production or presentation of witnesses and evidence
bearing on the plagiarism and misrepresentation issues in the Vinuya case
(G.R. No. 162230) and the plagiarism case against Justice Del Castillo (A.M.
No. 10-7-17-SC) and to have access to the records of, and evidence that were
presented or may be presented in the ethics case against Justice Del Castillo.
The prayer for a hearing and for access to the records of A.M. No. 10-7-17-SC
was substantially echoed in Dean Leonens separate Compliance. In Prof.
Juan-Bautistas Compliance, she similarly expressed the sentiment that "[i]f the
Restoring Integrity Statement can be considered indirect contempt, under
Section 3 of Rule 71 of the Rules of Court, such may be punished only after
charge and hearing."141 It is this group of respondents premise that these
reliefs are necessary for them to be accorded full due process.
The Court finds this contention unmeritorious.
Firstly, it would appear that the confusion as to the necessity of a hearing in this
case springs largely from its characterization as a special civil action for indirect
contempt in the Dissenting Opinion of Justice Sereno (to the October 19, 2010
Show Cause Resolution) and her reliance therein on the majoritys purported
failure to follow the procedure in Rule 71 of the Rules of Court as her main
ground for opposition to the Show Cause Resolution.
However, once and for all, it should be clarified that this is not an indirect
contempt proceeding and Rule 71 (which requires a hearing) has no application
to this case. As explicitly ordered in the Show Cause Resolution this case was
docketed as an administrative matter.
The rule that is relevant to this controversy is Rule 139-B, Section 13, on
disciplinary proceedings initiated motu proprio by the Supreme Court, to wit:
SEC. 13. Supreme Court Investigators.In proceedings initiated motu
proprio by the Supreme Court or in other proceedings when the interest of
justice so requires, the Supreme Court may refer the case for investigation to
the Solicitor General or to any officer of the Supreme Court or judge of a lower
court, in which case the investigation shall proceed in the same manner
provided in sections 6 to 11 hereof, save that the review of the report of
investigation shall be conducted directly by the Supreme Court. (Emphasis
supplied.)
From the foregoing provision, it cannot be denied that a formal investigation,
through a referral to the specified officers, is merely discretionary, not
mandatory on the Court. Furthermore, it is only if the Court deems such an
investigation necessary that the procedure in Sections 6 to 11 of Rule 139-A will
be followed.
As respondents are fully aware, in general, administrative proceedings do not
require a trial type hearing. We have held that:
The essence of due process is simply an opportunity to be heard or, as applied
to administrative proceedings, an opportunity to explain one's side or an
opportunity to seek a reconsideration of the action or ruling complained of.
What the law prohibits is absolute absence of the opportunity to be heard,
hence, a party cannot feign denial of due process where he had been afforded
the opportunity to present his side. A formal or trial type hearing is not at all
times and in all instances essential to due process, the requirements of which
are satisfied where the parties are afforded fair and reasonable opportunity to
explain their side of the controversy.142 (Emphases supplied.)
In relation to bar discipline cases, we have had the occasion to rule in Pena v.
Aparicio143 that:
Disciplinary proceedings against lawyers are sui generis. Neither purely civil nor
purely criminal, they do not involve a trial of an action or a suit, but is rather an
investigation 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 plaintiff 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 actuations 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. In such
posture, there can thus be no occasion to speak of a complainant or a
prosecutor.144 (Emphases supplied.)
In Query of Atty. Karen M. Silverio-Buffe, Former Clerk of Court Br. 81,
Romblon On the Prohibition from Engaging in the Private Practice of
Law,145 we further observed that:
[I]n several cases, the Court has disciplined lawyers without further inquiry or
resort to any formal investigation where the facts on record sufficiently provided
the basis for the determination of their administrative liability.
In Prudential Bank v. Castro, the Court disbarred a lawyer without need of any
further investigation after considering his actions based on records showing his
unethical misconduct; the misconduct not only cast dishonor on the image of
both the Bench and the Bar, but was also inimical to public interest and welfare.
In this regard, the Court took judicial notice of several cases handled by the
errant lawyer and his cohorts that revealed their modus operandi in
circumventing the payment of the proper judicial fees for the astronomical sums
they claimed in their cases. The Court held that those cases sufficiently
provided the basis for the determination of respondents' administrative liability,
without need for further inquiry into the matter under the principle of res ipsa
loquitur.
Also on the basis of this principle, we ruled in Richards v. Asoy, that no
evidentiary hearing is required before the respondent may be disciplined for
professional misconduct already established by the facts on record.
xxxx
These cases clearly show that the absence of any formal charge against and/or
formal investigation of an errant lawyer do not preclude the Court from
immediately exercising its disciplining authority, as long as the errant lawyer or
judge has been given the opportunity to be heard. As we stated earlier, Atty.
Buffe has been afforded the opportunity to be heard on the present matter
through her letter-query and Manifestation filed before this Court.146(Emphases
supplied.)
Under the rules and jurisprudence, respondents clearly had no right to a
hearing and their reservation of a right they do not have has no effect on these
proceedings. Neither have they shown in their pleadings any justification for this
Court to call for a hearing in this instance. They have not specifically stated
what relevant evidence, documentary or testimonial, they intend to present in
their defense that will necessitate a formal hearing.
Instead, it would appear that they intend to present records, evidence, and
witnesses bearing on the plagiarism and misrepresentation issues in
the Vinuya case and in A.M. No. 10-7-17-SC on the assumption that the
findings of this Court which were the bases of the Show Cause Resolution were
made in A.M. No. 10-7-17-SC, or were related to the conclusions of the Court in
the Decision in that case. This is the primary reason for their request for access
to the records and evidence presented in A.M. No. 10-7-17-SC.
This assumption on the part of respondents is erroneous. To illustrate, the only
incident in A.M. No. 10-7-17-SC that is relevant to the case at bar is the fact
that the submission of the actual signed copy of the Statement (or Restoring
Integrity I, as Dean Leonen referred to it) happened there. Apart from that fact,
it bears repeating that the proceedings in A.M. No. 10-7-17-SC, the ethics case
against Justice Del Castillo, is a separate and independent matter from this
case.
To find the bases of the statements of the Court in the Show Cause Resolution
that the respondents issued a Statement with language that the Court deems
objectionable during the pendency of the Vinuya case and the ethics case
against Justice Del Castillo, respondents need to go no further than the four
corners of the Statement itself, its various versions, news reports/columns
(many of which respondents themselves supplied to this Court in their Common
Compliance) and internet sources that are already of public knowledge.
Considering that what respondents are chiefly required to explain are the
language of the Statement and the circumstances surrounding the drafting,
printing, signing, dissemination, etc., of its various versions, the Court does not
see how any witness or evidence in the ethics case of Justice Del Castillo could
possibly shed light on these facts. To be sure, these facts are within the
knowledge of respondents and if there is any evidence on these matters the
same would be in their possession.
We find it significant that in Dean Leonens Compliance he narrated how as
early as September 2010, i.e., before the Decision of this Court in the ethics
case of Justice Del Castillo on October 12, 2010 and before the October 19,
2010 Show Cause Resolution, retired Supreme Court Justice Vicente V.
Mendoza, after being shown a copy of the Statement upon his return from
abroad, predicted that the Court would take some form of action on the
Statement. By simply reading a hard copy of the Statement, a reasonable
person, even one who "fundamentally agreed" with the Statements principles,
could foresee the possibility of court action on the same on an implicit
recognition that the Statement, as worded, is not a matter this Court should
simply let pass. This belies respondents claim that it is necessary for them to
refer to any record or evidence in A.M. No. 10-7-17-SC in order to divine the
bases for the Show Cause Resolution.
If respondents have chosen not to include certain pieces of evidence in their
respective compliances or chosen not to make a full defense at this time,
because they were counting on being granted a hearing, that is respondents
own look-out. Indeed, law professors of their stature are supposed to be aware
of the above jurisprudential doctrines regarding the non-necessity of a hearing
in disciplinary cases. They should bear the consequence of the risk they have
taken.
Thus, respondents requests for a hearing and for access to the records of, and
evidence presented in, A.M. No. 10-7-17-SC should be denied for lack of merit.
A final word
In a democracy, members of the legal community are hardly expected to have
monolithic views on any subject, be it a legal, political or social issue. Even as
lawyers passionately and vigorously propound their points of view they are
bound by certain rules of conduct for the legal profession. This Court is certainly
not claiming that it should be shielded from criticism. All the Court demands is
the same respect and courtesy that one lawyer owes to another under
established ethical standards. All lawyers, whether they are judges, court
employees, professors or private practitioners, are officers of the Court and
have voluntarily taken an oath, as an indispensable qualification for admission
to the Bar, to conduct themselves with good fidelity towards the courts. There is
no exemption from this sworn duty for law professors, regardless of their status
in the academic community or the law school to which they belong.
WHEREFORE, this administrative matter is decided as follows:
(1) With respect to Prof. Vasquez, after favorably noting his submission, the
Court finds his Compliance to be satisfactory.
(2) The Common Compliance of 35 respondents, namely, Attys. Marvic
M.V.F. Leonen, Froilan M. Bacungan, Pacifico A. Agabin, Merlin M.
Magallona, Salvador T. Carlota, Carmelo V. Sison, Patricia R.P. Salvador
Daway, Dante B. Gatmaytan, Theodore O. Te, Florin T. Hilbay, Jay L.
Batongbacal, Evelyn (Leo) D. Battad, Gwen G. De Vera, Solomon F. Lumba,
Rommel J. Casis, Jose Gerardo A. Alampay, Miguel R. Armovit, Arthur P.
Autea, Rosa Maria J. Bautista, Mark R. Bocobo, Dan P. Calica, Tristan A.
Catindig, Sandra Marie O. Coronel, Rosario O. Gallo, Concepcion L.
Jardeleza, Antonio G.M. La Via, Carina C. Laforteza, Jose C. Laureta,
Rodolfo Noel S. Quimbo, Antonio M. Santos, Gmeleen Faye B. Tomboc,
Nicholas Felix L. Ty, Evalyn G. Ursua, Susan D. Villanueva and Dina D.
Lucenario, is found UNSATISFACTORY. These 35 respondent law
professors are reminded of their lawyerly duty, under Canons 1, 11 and 13 of
the Code of Professional Responsibility, to give due respect to the Court and
to refrain from intemperate and offensive language tending to influence the
Court on pending matters or to denigrate the Court and the administration of
justice and warned that the same or similar act in the future shall be dealt with
more severely.
(3) The separate Compliance of Dean Marvic M.V.F. Leonen regarding the
charge of violation of Canon 10 is found UNSATISFACTORY. He is further
ADMONISHED to be more mindful of his duty, as a member of the Bar, an
officer of the Court, and a Dean and professor of law, to observe full candor and
honesty in his dealings with the Court and warned that the same or similar act
in the future shall be dealt with more severely.
(4) Prof. Lynch, who is not a member of the Philippine bar, is excused from
these proceedings. However, he is reminded that while he is engaged as a
professor in a Philippine law school he should strive to be a model of
responsible and professional conduct to his students even without the threat of
sanction from this Court.
(5) Finally, respondents requests for a hearing and for access to the records of
A.M. No. 10-7-17-SC are denied for lack of merit. SO ORDERED.