PRIVACY

Marynette Gamboa v. Marlou Chan, G.R. No. 193636, July 24 2012

FACTS
Gamboa alleged that the Philippine National Police in Ilocos Norte (PNP–Ilocos Norte) conducted a series of
surveillance operations against her and her aides, and classified her as someone who keeps a Private Army Group
(PAG). Purportedly without the benefit of data verification, PNP–Ilocos Norte forwarded the information gathered on
her to the Zeñarosa Commission, thereby causing her inclusion in the Report’s enumeration of individuals
maintaining PAGs. Contending that her right to privacy was violated and her reputation maligned and destroyed,
Gamboa filed a Petition for the issuance of a writ of habeas data against respondents in their capacities as officials of
the PNP-Ilocos Norte.

ISSUE
Whether or not the petition for the issuance of writ of habeas data is proper when the right to privacy is invoked as
opposed to the state’s interest in preserving the right to life, liberty or security.

RULING
NO. The writ of habeas data is an independent and summary remedy designed to protect the image, privacy, honor,
information, and freedom of information of an individual, and to provide a forum to enforce one’s right to the truth and
to informational privacy. It seeks to protect a person’s right to control information regarding oneself, particularly in
instances in which such information is being collected through unlawful means in order to achieve unlawful ends. It
must be emphasized that in order for the privilege of the writ to be granted, there must exist a nexus between the
right to privacy on the one hand, and the right to life, liberty or security on the other.
In this case, the Court ruled that Gamboa was unable to prove through substantial evidence that her inclusion in the
list of individuals maintaining PAGs made her and her supporters susceptible to harassment and to increased police
surveillance. In this regard, respondents sufficiently explained that the investigations conducted against her were in
relation to the criminal cases in which she was implicated. As public officials, they enjoy the presumption of regularity,
which she failed to overcome. [T]he state interest of dismantling PAGs far outweighs the alleged intrusion on the
private life of Gamboa, especially when the collection and forwarding by the PNP of information against her was
pursuant to a lawful mandate. Therefore, the privilege of the writ of habeas data must be denied.

PRIVACY OF COMMUNICATION
FELIPE NAVARRO, petitioner, vs. THE COURT OF APPEALS and the PEOPLE OF THE
PHILIPPINES, respondents.
[G.R. No. 121087. August 26, 1999]

MENDOZA, J.:

This is a petition for review on certiorari of the decision[1] of the Court of Appeals, dated December 14, 1994,
which affirmed the judgment of the Regional Trial Court, Branch 5, Lucena City, dated July 27, 1992, finding
petitioner Felipe Navarro guilty beyond reasonable doubt of homicide and sentencing him to ten (10) years of prision
mayor, as minimum, and fourteen (14) years, eight (8) months, and one (1) day of reclusion temporal, as maximum,
but increased the death indemnity awarded to the heirs of the victim, Enrique Ike Lingan, from P30,000.00
to P50,000.00.

The information against petitioner alleged

That on or about the 4th day of February, 1990, in the nighttime, in the City of Lucena, Province of Quezon,
Philippines, and within the jurisdiction of this Honorable Court, the said accused, being then a member of the Lucena
Integrated National Police, with intent to kill, did then and there willfully, unlawfully and feloniously assault one Ike
Lingan inside the Lucena police headquarters, where authorities are supposed to be engaged in the discharge of
their duties, by boxing the said Ike Lingan in the head with the butt of a gun and thereafter when the said victim fell,
by banging his head against the concrete pavement, as a consequence of which said Ike Lingan suffered cerebral
concussion and shock which directly caused his death.

The evidence shows that, at around 8:40 in the evening of February 4, 1990, Stanley Jalbuena and Enrique Ike
Lingan, who were reporters of the radio station DWTI in Lucena City, together with one Mario Ilagan, went to the
Entertainment City following reports that it was showing nude dancers. After the three had seated themselves at a
table and ordered beer, a scantily clad dancer appeared on stage and began to perform a strip act.As she removed
her brassieres, Jalbuena brought out his camera and took a picture.[2]

At that point, the floor manager, Dante Liquin, with a security guard, Alex Sioco, approached Jalbuena and
demanded to know why he took a picture.[3] Jalbuena replied: Wala kang pakialam, because this is my job.[4] Sioco
pushed Jalbuena towards the table as he warned the latter that he would kill him. [5] When Jalbuena saw that Sioco
was about to pull out his gun, he ran out of the joint followed by his companions. [6]

Jalbuena and his companions went to the police station to report the matter. Three of the policemen on duty,
including petitioner Navarro, were having drinks in front of the police station, and they asked Jalbuena and his
companions to join them. Jalbuena declined and went to the desk officer, Sgt. Aonuevo, to report the incident. In a
while, Liquin and Sioco arrived on a motorcycle.[7]

Sioco and Liquin were met by petitioner Navarro who talked with them in a corner for around fifteen
minutes.[8] Afterwards, petitioner Navarro turned to Jalbuena and, pushing him to the wall, said to him: Putang ina,
kinakalaban mo si Kabo Liquin, anak yan ni Kabo Liquin, hindi mo ba kilala?[9] Petitioner Navarro then pulled out his
firearm and cocked it, and, pressing it on the face of Jalbuena, said, Ano, uutasin na kita?[10]

At this point, Lingan intervened and said to petitioner Navarro: Huwag namang ganyan, pumarito kami para
magpa-blotter, I am here to mediate.[11] Petitioner Navarro replied: Walang press, press, mag-sampu pa kayo.[12] He
then turned to Sgt. Aonuevo and told him to make of record the behavior of Jalbuena and Lingan. [13]

This angered Lingan, who said: O, di ilagay mo diyan.[14] Petitioner Navarro retorted: Talagang ilalagay
ko.[15] The two then had a heated exchange.[16] Finally, Lingan said: Masyado kang abusado, alisin mo yang baril mo
at magsuntukan na lang tayo.[17] Petitioner Navarro replied: Ah, ganoon?[18]

As Lingan was about to turn away, petitioner Navarro hit him with the handle of his pistol above the left
eyebrow. Lingan fell on the floor, blood flowing down his face. He tried to get up, but petitioner Navarro gave him a
fist blow on the forehead which floored him.[19]

Petitioner Navarro turned to Jalbuena and said: Kita mo yan ha, buhay kang testigo, si Ike Lingan ang
naghamon.[20] He said to Sgt. Aonuevo: Ilagay mo diyan sa blotter, sa harap ni Alex Sioco at Dante Liquin, na si Ike
Lingan ang naghamon.[21] He then poked his gun at the right temple of Jalbuena and made him sign his name on the
blotter.[22] Jalbuena could not affix his signature. His right hand was trembling and he simply wrote his name in
print.[23]

Capt. Coronado, the station commander, called petitioner Navarro to his office, while a policeman took Lingan to
the Quezon Memorial Hospital. The station manager of DWTI, Boy Casaada, arrived and, learning that Lingan had
been taken to the hospital, proceeded there. But Lingan died from his injuries.[24]

Unknown to petitioner Navarro, Jalbuena was able to record on tape the exchange between petitioner and the
deceased.[25] The following is an excerpt from the tape recording:

Lingan: Pare, you are abusing yourself.

Navarro: Who is that abusing?

Lingan: Im here to mediate. Do not include me in the problem. Im out of the problem.

....
 Navarro: Wala sa akin yan. Ang kaso lang . . . .

Lingan: Kalaban mo ang media, pare. Ako at si Stanley, dalawa kami. Okay. Do not fight with me. I just came
here to ayusin things. Do not say bad things against me. Im the number one loko sa media. Im the best
media man. . . .

Navarro: Huwag tayong mag-lokohan sa ganyan! Huwag na tayong mag-takotan! Huwag mong sabihing loko ka!

Lingan: Im brave also.

Navarro: Ay lalo na ako. Tahimik lang naman ako. Wala ka namang masasabi sa akin dahil nag-tatrabaho lang
ako ng ayon sa serbisyo ko.

Lingan: You are challenging me and him. . . .

Navarro: Ay walastik ka naman Ike! Pag may problema ka dito sinasabihan kita na may balita tayong
maganda. Pambihira ka Ike. Huwag mong sabihin na . . .Parang minomonopoly mo eh.

Lingan: Pati ako kalaban ninyo.

Navarro: Talagang kalaban namin ang press. Lahat, hindi lang ikaw!

Lingan: You are wrong. Bakit kalaban nyo ang press?

Navarro: Pulis ito! Aba!

Lingan: Alisin mo ang baril mo! Alisin mo ang baril mo! Suntukan tayo, sige.

Navarro: Mayabang ka ah!

(Sounds of a scuffle)

Navarro: Hinamon ako nyan! Pare hinamon ako nyan! Pare hinamon ako nyan, testigo kayo. Alisin ko daw ang
baril ko. Hinamon ako nyan. Pare, ilagay mo diyan, hinamon ako sa harap ni Stanley. Testigo kayo,
hinamon ako. Pulis tayo eh. Puta, buti nga, suntok lang ang inabot nyan. Sa harap ni Alex, ni Joe, ni
Stanley, hinamon ako. Pare, hinamon ako, kinig nyo ha. Hinamon ako nyan. Sige, dalhin nyo sa hospital
yan.

Petitioner Felipe Navarro claims that it was the deceased who tried to hit him twice, but he (petitioner) was able
to duck both times, and that Lingan was so drunk he fell on the floor twice, each time hitting his head on the
concrete.[26]

In giving credence to the evidence for the prosecution, the trial court stated:

After a thorough and in-depth evaluation of the evidence adduced by the prosecution and the defense, this court finds
that the evidence for the prosecution is the more credible, concrete and sufficient to create that moral certainty in the
mind of the court that accused herein is criminally responsible.

The defenses evidence which consists of outright denial could not under the circumstance overturn the strength of
the prosecutions evidence.

This court finds that the prosecution witnesses, more particularly Stanley Jalbuena, lacked any motive to make false
accusation, distort the truth, testify falsehood or cause accusation of one who had neither brought him harm or injury.

Going over the evidence on record, the postmortem report issued by Dra. Eva Yamamoto confirms the detailed
account given by Stanley Jalbuena on how Lingan sustained head injuries.

Said post-mortem report together with the testimony of Jalbuena sufficiently belie the claim of the defense that the
head injuries of deceased Lingan were caused by the latters falling down on the concrete pavement head first.
 The Court of Appeals affirmed:

We are far from being convinced by appellants aforesaid disquisition. We have carefully evaluated the conflicting
versions of the incident as presented by both parties, and we find the trial courts factual conclusions to have better
and stronger evidentiary support.

In the first place, the mere fact that Jalbuena was himself a victim of appellants aggression does not impair the
probative worth of his positive and logical account of the incident in question. In fact, far from proving his innocence,
appellants unwarranted assault upon Jalbuena, which the defense has virtually admitted, clearly betrays his violent
character or disposition and his capacity to harm others. Apparently, the same motivation that led him into assailing
Jalbuena must have provoked him into also attacking Lingan who had interceded for Jalbuena and humiliated him
and further challenged him to a fist fight.

....

On the other hand, appellants explanation as to how Lingan was injured is too tenuous and illogical to be accepted. It
is in fact contradicted by the number, nature and location of Lingans injuries as shown in the post-mortem report
(Exh. D). According to the defense, Lingan fell two times when he was outbalanced in the course of boxing the
appellant. And yet, Lingan suffered lacerated wounds in his left forehead, left eyebrow, between his left and right
eyebrows, and contusion in the right temporal region of the head (Exh. E). Certainly, these injuries could not have
resulted from Lingans accidental fall.

Hence, this appeal. Petitioner Navarro contends:

THE HONORABLE COURT OF APPEALS HAS DECIDED THE CASE NOT IN ACCORD WITH LAW AND WITH
THE APPLICABLE DECISIONS OF THE SUPREME COURT. ITS CONCLUSION IS A FINDING BASED ON
SPECULATION, SURMISE OR CONJECTURE; THE INFERENCE IT MADE IS MANIFESTLY MISTAKEN, ABSURD
OR IMPOSSIBLE; IT COMMITTED GRAVE ABUSE OF DISCRETION; ITS JUDGMENT IS BASED ON A
MISAPPREHENSION OF FACTS; ITS FINDING IS CONTRADICTED BY EVIDENCE ON RECORD; AND ITS
FINDING IS DEVOID OF SUPPORT IN THE RECORD.

The appeal is without merit.

First. Petitioner Navarro questions the credibility of the testimony of Jalbuena on the ground that he was a
biased witness, having a grudge against him. The testimony of a witness who has an interest in the conviction of the
accused is not, for this reason alone, unreliable.[27] Trial courts, which have the opportunity to observe the facial
expressions, gestures, and tones of voice of a witness while testifying, are competent to determine whether his or her
testimony should be given credence.[28] In the instant case, petitioner Navarro has not shown that the trial court erred
in according weight to the testimony of Jalbuena.

Indeed, Jalbuenas testimony is confirmed by the voice recording he had made. It may be asked whether the
tape is admissible in view of R.A. No. 4200, which prohibits wire tapping. The answer is in the affirmative. The law
provides:

SECTION 1. It shall be unlawful for any person, not being authorized by all the parties to any private communication
or spoken word, to tap any wire or cable, or by using any other device or arrangement, to secretly overhear, intercept,
or record such communication or spoken word by using a device commonly known as a dictaphone or dictagraph or
detectaphone or walkie-talkie or tape-recorder, or however otherwise described:

It shall also be unlawful for any person, be he a participant or not in the act or acts penalized in the next preceding
sentence, to knowingly possess any tape record, wire record, disc record, or any other such record, or copies thereof,
of any communication or spoken word secured either before or after the effective date of this Act in the manner
prohibited by this law; or to replay the same for any other person or persons; or to communicate the contents thereof,
either verbally or in writing, or to furnish transcriptions thereof, whether complete or partial, to any other
person: Provided, That the use of such record or any copies thereof as evidence in any civil, criminal investigation or
trial of offenses mentioned in section 3 hereof, shall not be covered by this prohibition.

....

SEC. 4. Any communication or spoken word, or the existence, contents, substance, purport, effect, or meaning of the
same or any part thereof, or any information therein contained obtained or secured by any person in violation of the
preceding sections of this Act shall not be admissible in evidence in any judicial, quasi-judicial, legislative or
administrative hearing or investigation.

Thus, the law prohibits the overhearing, intercepting, or recording of private communications. [29] Since the
exchange between petitioner Navarro and Lingan was not private, its tape recording is not prohibited.

Nor is there any question that it was duly authenticated. A voice recording is authenticated by the testimony of a
witness (1) that he personally recorded the conversation; (2) that the tape played in court was the one he recorded;
and (3) that the voices on the tape are those of the persons such are claimed to belong. [30] In the instant case,
Jalbuena testified that he personally made the voice recording; [31] that the tape played in court was the one he
recorded;[32] and that the speakers on the tape were petitioner Navarro and Lingan. [33] A sufficient foundation was
thus laid for the authentication of the tape presented by the prosecution.

Second. The voice recording made by Jalbuena established: (1) that there was a heated exchange between
petitioner Navarro and Lingan on the placing in the police blotter of an entry against him and Jalbuena; and (2) that
some form of violence occurred involving petitioner Navarro and Lingan, with the latter getting the worst of it.

Furthermore, Dr. Eva Yamamoto, who performed the autopsy on the body of Lingan, issued a medical
certificate,[34] dated February 5, 1990, containing the following findings:

Post Mortem Findings:

= Dried blood, forehead & face

= No blood oozed from the ears, nose & mouth

= Swelling, 3 cm x 2 cm, temporal region, head, right

= Lacerated wound, 2 cm in length, 1-2 in depth, lateral, eyebrow, Left

= Lacerated wound, 0.5 cm in length, superficial, between the left & right eyebrow

= Lacerated wound, 2 cm in length, 1 cm in depth, forehead, Left

= Cyanosis of the tips of fingers & toes

CAUSE OF DEATH:

= CEREBRAL CONCUSSION & SHOCK

= BLOW ON THE HEAD

Dr. Yamamoto testified:

Q Give your opinion as to what was the possible cause of this findings number one, which is oozing of blood from
the forehead?

A It may be due to a blow on the forehead or it bumped to a hard object, sir.

Q Could a metal like a butt of a gun have caused this wound No. 1?

A It is possible, sir.

Q And in the alternative, could have it been caused by bumping on a concrete floor?

A Possible, sir.

FISCAL:

What could have been the cause of the contusion and swelling under your findings No. 2 doctor?

WITNESS:

It may be caused by bumping to a hard object, sir.

Q Could a butt of a gun have caused it doctor?

A The swelling is big so it could have not been caused by a butt of a gun because the butt of a gun is small, sir.

Q How about this findings No. 4?

A By a bump or contact of the body to a hard object, sir.

Q And findings No. 5 what could have caused it?

A Same cause, sir.

Q This findings No. 6 what could have caused this wound?

A Same thing, sir.

Q How about this last finding, cyanosis of tips of fingers and toes, what could have caused it doctor?

WITNESS:

It indicates there was cardiac failure, sir.

FISCAL:

In this same post mortem report and under the heading cause of death it states: Cause of Death: Cerebral
concussion and Shock, will you explain it?

A Cerebral concussion means in Tagalog naalog ang utak or jarring of the brain, sir.

Q What could have been the cause of jarring of the brain?

A It could have been caused by a blow of a hard object, sir.

Q What about the shock, what could have caused it?

A It was due to peripheral circulatory failure, sir.

Q Could any one of both caused the death of the victim?

A Yes, sir.

Q Could cerebral concussion alone have caused the death of the deceased?

A May be, sir.

Q How about shock?

 A Yes, sir.

FISCAL:

Which of these two more likely to cause death?

WITNESS:

Shock, sir.

Q Please explain further the meaning of the medical term shock?

A It is caused by peripheral circulatory failure as I have said earlier, sir.

....

FISCAL:

Could a bumping or pushing of ones head against a concrete floor have caused shock?

WITNESS:

Possible, sir.

How about striking with a butt of a gun, could it cause shock?

A Possible, sir.[35]

The above testimony clearly supports the claim of Jalbuena that petitioner Navarro hit Lingan with the handle of
his pistol above the left eyebrow and struck him on the forehead with his fist.

Third. It is argued that the mitigating circumstance of sufficient provocation or threat on the part of the offended
party immediately preceding the act should have been appreciated in favor of petitioner Navarro. Provocation is
defined to be any unjust or improper conduct or act of the offended party, capable of exciting, inciting, or irritating
anyone.[36] The provocation must be sufficient and should immediately precede the act. [37] People v. Paga, 79 SCRA
570 (1977).37 To be sufficient, it must be adequate to excite a person to commit the wrong, which must accordingly
be proportionate in gravity.[38] And it must immediately precede the act so much so that there is no interval between
the provocation by the offended party and the commission of the crime by the accused.[39]

In the present case, the remarks of Lingan, which immediately preceded the act of petitioner, constituted
sufficient provocation. In People v. Macaso,[40] we appreciated this mitigating circumstance in favor of the accused, a
policeman, who shot a motorist after the latter had repeatedly taunted him with defiant words. Hence, this mitigating
circumstance should be considered in favor of petitioner Navarro.

Furthermore, the mitigating circumstance that the offender had no intention to commit so grave a wrong as that
committed should also be appreciated in favor of petitioner. The frantic exclamations of petitioner Navarro after the
scuffle that it was Lingan who provoked him shows that he had no intent to kill the latter. Thus, this mitigating
circumstance should be taken into account in determining the penalty that should be imposed on petitioner
Navarro. The allowance of this mitigating circumstance is consistent with the rule that criminal liability shall be
incurred by any person committing a felony although the wrongful act done be different from that which he
intended.[41] In People v. Castro,[42] the mitigating circumstance of lack of intent to commit so grave a wrong as that
committed was appreciated in favor of the accused while finding him guilty of homicide.

However, the aggravating circumstance of commission of a crime in a place where the public authorities are
engaged in the discharge of their duties should be appreciated against petitioner Navarro. The offense in this case
was committed right in the police station where policemen were discharging their public functions. [43]

The crime committed as found by the trial court and the Court of Appeals was homicide, for which the penalty
under Art. 249 of the Revised Penal Code is reclusion temporal. As there were two mitigating circumstances and one
aggravating circumstance, the penalty should be fixed in its minimum period. [44] Applying the Indeterminate Sentence
Law, petitioner Navarro should be sentenced to an indeterminate penalty, the minimum of which is within the range of
the penalty next lower in degree, i.e., prision mayor, and the maximum of which is reclusion temporal in its minimum
period.[45]

The indemnity as increased by the Court of Appeals from P30,000.00 to P50,000.00 is in accordance with
current jurisprudence.[46] WHEREFORE, the decision of the Court of Appeals is AFFIRMED with the modification that
petitioner Felipe Navarro is hereby SENTENCED to suffer a prison term of 8 years of prision mayor, as minimum, to
14 years and 8 months of reclusion temporal, as maximum.

CECILIA ZULUETA, petitioner, vs. COURT OF APPEALS and ALFREDO MARTIN, respondents.
[G.R. No. 107383. February 20, 1996.]
MENDOZA, J.:

This is a petition to review the decision of the Court of Appeals, affirming the decision of the Regional Trial Court
of Manila (Branch X) which ordered petitioner to return documents and papers taken by her from private respondents
clinic without the latters knowledge and consent.

The facts are as follows:

Petitioner Cecilia Zulueta is the wife of private respondent Alfredo Martin. On March 26, 1982, petitioner entered
the clinic of her husband, a doctor of medicine, and in the presence of her mother, a driver and private respondents
secretary, forcibly opened the drawers and cabinet in her husbands clinic and took 157 documents consisting of
private correspondence between Dr. Martin and his alleged paramours, greetings cards, cancelled checks, diaries,
Dr. Martins passport, and photographs. The documents and papers were seized for use in evidence in a case for
legal separation and for disqualification from the practice of medicine which petitioner had filed against her husband.

Dr. Martin brought this action below for recovery of the documents and papers and for damages against
petitioner. The case was filed with the Regional Trial Court of Manila, Branch X, which, after trial, rendered judgment
for private respondent, Dr. Alfredo Martin, declaring him the capital/exclusive owner of the properties described in
paragraph 3 of plaintiffs Complaint or those further described in the Motion to Return and Suppress and ordering
Cecilia Zulueta and any person acting in her behalf to immediately return the properties to Dr. Martin and to pay him
P5,000.00, as nominal damages; P5,000.00, as moral damages and attorneys fees; and to pay the costs of the suit.
The writ of preliminary injunction earlier issued was made final and petitioner Cecilia Zulueta and her attorneys and
representatives were enjoined from using or submitting/admitting as evidence the documents and papers in question.
On appeal, the Court of Appeals affirmed the decision of the Regional Trial Court. Hence this petition.

There is no question that the documents and papers in question belong to private respondent, Dr. Alfredo
Martin, and that they were taken by his wife, the herein petitioner, without his knowledge and consent. For that
reason, the trial court declared the documents and papers to be properties of private respondent, ordered petitioner
to return them to private respondent and enjoined her from using them in evidence. In appealing from the decision of
the Court of Appeals affirming the trial courts decision, petitioners only ground is that in Alfredo Martin v. Alfonso
Felix, Jr.,1 this Court ruled that the documents and papers (marked as Annexes A-i to J-7 of respondents comment in
that case) were admissible in evidence and, therefore, their use by petitioners attorney, Alfonso Felix, Jr., did not
constitute malpractice or gross misconduct. For this reason it is contended that the Court of Appeals erred in affirming
the decision of the trial court instead of dismissing private respondents complaint.

Petitioners contention has no merit. The case against Atty. Felix, Jr. was for disbarment. Among other things,
private respondent, Dr. Alfredo Martin, as complainant in that case, charged that in using the documents in evidence,
Atty. Felix, Jr. committed malpractice or gross misconduct because of the injunctive order of the trial court. In
dismissing the complaint against Atty. Felix, Jr., this Court took note of the following defense of Atty. Felix, Jr. which it
found to be impressed with merit:2

On the alleged malpractice or gross misconduct of respondent [Alfonso Felix, Jr.], he maintains that:

xxx xxx xxx

4. When respondent refiled Cecilias case for legal separation before the Pasig Regional Trial Court, there was
admittedly an order of the Manila Regional Trial Court prohibiting Cecilia from using the documents Annex A-I to J-7.
On September 6, 1983, however having appealed the said order to this Court on a petition for certiorari, this Court
issued a restraining order on aforesaid date which order temporarily set aside the order of the trial court. Hence,
during the enforceability of this Courts order, respondents request for petitioner to admit the genuineness and
authenticity of the subject annexes cannot be looked upon as malpractice. Notably, petitioner Dr. Martin finally
admitted the truth and authenticity of the questioned annexes. At that point in time, would it have been malpractice for
respondent to use petitioners admission as evidence against him in the legal separation case pending in the Regional
Trial Court of Makati? Respondent submits it is- not malpractice.

Significantly, petitioners admission was done not thru his counsel but by Dr. Martin himself under oath. Such
verified admission constitutes an affidavit, and, therefore, receivable in evidence against him. Petitioner became
bound by his admission. For Cecilia to avail herself of her husbands admission and use the same in her action for
legal separation cannot be treated as malpractice.

Thus, the acquittal of Atty. Felix, Jr. in the administrative case amounts to no more than a declaration that his
use of the documents and papers for the purpose of securing Dr. Martins admission as to their genuiness and
authenticity did not constitute a violation of the injunctive order of the trial court. By no means does the decision in
that case establish the admissibility of the documents and papers in question.

It cannot be overemphasized that if Atty. Felix, Jr. was acquitted of the charge of violating the writ of preliminary
injunction issued by the trial court, it was only because, at the time he used the documents and papers, enforcement
of the order of the trial court was temporarily restrained by this Court. The TRO issued by this Court was eventually
lifted as the petition for certiorari filed by petitioner against the trial courts order was dismissed and, therefore, the
prohibition against the further use of the documents and papers became effective again.

Indeed the documents and papers in question are inadmissible in evidence. The constitutional injunction
declaring the privacy of communication and correspondence [to be] inviolable 3 is no less applicable simply because it
is the wife (who thinks herself aggrieved by her husbands infidelity) who is the party against whom the constitutional
provision is to be enforced. The only exception to the prohibition in the Constitution is if there is a lawful order [from a]
court or when public safety or order requires otherwise, as prescribed by law. 4 Any violation of this provision renders
the evidence obtained inadmissible for any purpose in any proceeding. 5

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

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

WATEROUS DRUG CORPORATION and MS. EMMA CO, petitioners, vs. NATIONAL LABOR RELATIONS
COMMISSION and ANTONIA MELODIA CATOLICO, respondents. [G.R. No. 113271. October 16, 1997]
DAVIDE, JR. J.:

Nor is he a true Servant [who] buys dear to share in the Profit with the Seller. [1]

This petition for certiorari under Rule 65 of the Rules of Court seeks to declare private respondent Antonia
Melodia Catolico (hereafter Catolico) not a true Servant, thereby assailing the 30 September 1993 decision [2] and 2
December 1993 Resolution[3] of the National Labor Relations Commission (NLRC) in NLRC-NCR CA No. 005160-93,
which sustained the reinstatement and monetary awards in favor of private respondent[4] and denied the petitioners
motion for reconsideration.[5]

The facts are as follows:

Catolico was hired as a pharmacist by petitioner Waterous Drug Corporation (hereafter WATEROUS) on 15 August
1988.

On 31 July 1989, Catolico received a memorandum [6] from WATEROUS Vice President-General Manager Emma R.
Co warning her not to dispense medicine to employees chargeable to the latters accounts because the same was a
prohibited practice. On the same date, Co issued another memorandum [7] to Catolico warning her not to negotiate
with suppliers of medicine without consulting the Purchasing Department, as this would impair the companys control
of purchases and, besides she was not authorized to deal directly with the suppliers.

As regards the first memorandum, Catolico did not deny her responsibility but explained that her act was due to
negligence, since fellow employee Irene Soliven obtained the medicines in bad faith and through misrepresentation
when she claimed that she was given a charge slip by the Admitting Dept. Catolico then asked the company to look
into the fraudulent activities of Soliven.[8]

In a memorandum[9] dated 21 November 1989, WATEROUS Supervisor Luzviminda E. Bautro warned Catolico
against the rush delivery of medicines without the proper documents.

On 29 January 1990, WATEROUS Control Clerk Eugenio Valdez informed Co that he noticed an irregularity involving
Catolico and Yung Shin Pharmaceuticals, Inc. (hereafter YSP), which he described as follows:

A case in point is medicine purchased under our Purchase Order (P.O.) No. 19045 with YSP Sales Invoice No. 266
representing purchase of ten (10) bottles of Voren tablets at P384.00 per unit. Previous P.O.s issued to YSP, Inc.
showed that the price per bottle is P320.00 while P.O. No. 19045 is priced at P384.00 or an over price of P64.00 per
bottle (or total of P640.00). WDRC paid the amount of P3,840.00 thru MBTC Check No. 222832 dated December 15,
1988. Verification was made to YSP, Inc. to determine the discrepancy and it was found that the cost per bottle was
indeed overpriced. YSP, Inc. Accounting Department (Ms. Estelita Reyes) confirmed that the difference represents
refund of jack-up price of ten bottles of Voren tablets per sales invoice no. 266 as per their check voucher no. 629552
(shown to the undersigned), which was paid to Ms. Catolico through China Bank check no. 892068 dated November
9, 1989....

The undersigned talked to Ms. Catolico regarding the check but she denied having received it and that she is
unaware of the overprice. However, upon conversation with Ms. Saldana, EDRC Espana Pharmacy Clerk, she
confirmed that the check amounting to P640.00 was actually received by Ms. Catolico. As a matter of fact, Ms.
Catolico even asked Ms. Saldana if she opened the envelope containing the check but Ms. Saldana answered her
talagang ganyan, bukas. It appears that the amount in question (P640.00) had been pocketed by Ms. Catolico.[10]

Forthwith, in her memorandum[11] dated 31 January 1990, Co asked Catolico to explain, within twenty-four hours, her
side of the reported irregularity. Catolico asked for additional time to give her explanation, [12] and she was granted a
48-hour extension from 1 to 3 February 1990. However, on 2 February 1990, she was informed that effective 6
February 1990 to 7 March 1990, she would be placed on preventive suspension to protect the interests of the
company.[13]

In a letter dated 2 February 1990, Catolico requested access to the file containing Sales Invoice No. 266 for her
to be able to make a satisfactory explanation. In said letter she protested Saldaas invasion of her privacy when
Saldaa opened an envelope addressed to Catolico.[14]

In a letter[15] to Co dated 10 February 1990, Catolico, through her counsel, explained that the check she
received from YSP was a Christmas gift and not a refund of overprice. She also averred that the preventive
suspension was ill-motivated, as it sprang from an earlier incident between her and Cos secretary, Irene Soliven.

On 5 March 1990, WATEROUS Supervisor Luzviminda Bautro, issued a memorandum [16] notifying Catolico of
her termination; thus:
 We received your letter of explanation and your lawyer's letter dated Feb. 2, 1990 and Feb. 10, 1990
respectively regarding our imposition of preventive suspension on you for acts of dishonesty. However, said
letters failed to rebut the evidences [sic] in our possession which clearly shows that as a Pharmacist
stationed at Espana Branch, you actually made Purchase Orders at YSP Phils., Inc. for 10 bottles of Voren
tablets at P384.00/bottle with previous price of P320.00/bottle only. A check which you received in the
amount of P640.00 actually represents the refund of over price of said medicines and this was confirmed by
Ms. Estelita Reyes, YSP Phils., Inc. Accounting Department.

Your actuation constitutes an act of dishonesty detrimental to the interest of the company. Accordingly, you
are hereby terminated effective March 8, 1990.

On 5 May 1990, Catolico filed before the Office of the Labor Arbiter a complaint for unfair labor practice, illegal
dismissal, and illegal suspension.[17]

In his decision[18] of 10 May 1993, Labor Arbiter Alex Arcadio Lopez found no proof of unfair labor practice
against petitioners.Nevertheless, he decided in favor of Catolico because petitioners failed to prove what [they]
alleged as complainants dishonesty, and to show that any investigation was conducted. Hence, the dismissal was
without just cause and due process. He thus declared the dismissal and suspension illegal but disallowed
reinstatement, as it would not be to the best interest of the parties. Accordingly, he awarded separation pay to
Catolico computed at one-half months pay for every year of service; back wages for one year; and the additional sum
of P2,000.00 for illegal suspension representing 30 days work. Arbiter Lopez computed the award in favor of Catolico
as follows:

30 days Preventive Suspension P 2,000.00

Backwages 26,858.50

1/12 of P26,858.50 2,238.21

Separation pay (3 years) 4,305.15

TOTAL AWARD: P35,401.86

Petitioners seasonably appealed from the decision and urged the NLRC to set it aside because the Labor
Arbiter erred in finding that Catolico was denied due process and that there was no just cause to terminate her
services.

In its decision[19] of 30 September 1993, the NLRC affirmed the findings of the Labor Arbiter on the ground that
petitioners were not able to prove a just cause for Catolicos dismissal from her employment. It found that petitioners
evidence consisted only of the check of P640.00 drawn by YSP in favor of complainant, which her co-employee saw
when the latter opened the envelope. But, it declared that the check was inadmissible in evidence pursuant to
Sections 2 and 3(1 and 2) of Article III of the Constitution.[20] It concluded:

With the smoking gun evidence of respondents being rendered inadmissible, by virtue of the constitutional
right invoked by complainants, respondents case falls apart as it is bereft of evidence which cannot be used
as a legal basis for complainants dismissal.

The NLRC then dismissed the appeal for lack of merit, but modified the dispositive portion of the appealed decision
by deleting the award for illegal suspension as the same was already included in the computation of the aggregate of
the awards in the amount of P35,401.86.

Their motion for reconsideration having been denied, petitioners filed this special civil action for certiorari, which
is anchored on the following grounds:

I. Public respondent committed grave abuse of discretion in its findings of facts.

 II. Due process was duly accorded to private respondent.

III. Public respondent gravely erred in applying Section 3, Article III of the 1987 Constitution.

As to the first and second grounds, petitioners insist that Catolico had been receiving commissions from YSP, or
probably from other suppliers, and that the check issued to her on 9 November 1989 was not the first or the
last. They also maintained that Catolico occupied a confidential position and that Catolicos receipt of YSPs check,
aggravated by her propensity to violate company rules, constituted breach of confidence. And contrary to the findings
of NLRC, Catolico was given ample opportunity to explain her side of the controversy.

Anent the third ground, petitioners submit that, in light of the decision in the People v. Marti,[21] the constitutional
protection against unreasonable searches and seizures refers to the immunity of ones person from interference by
government and cannot be extended to acts committed by private individuals so as to bring it within the ambit of
alleged unlawful intrusion by the government.

In its Manifestation in Lieu of Comment, the Office of the Solicitor General (OSG) disagreed with the NLRC's
decision, as it was of the persuasion that (a) the conclusions reached by public respondent are inconsistent with its
findings of fact; and (b) the incident involving the opening of envelope addressed to private respondent does not
warrant the application of the constitutional provisions. It observed that Catolico was given several opportunities to
explain her side of the check controversy, and concluded that the opportunities granted her and her subsequent
explanation satisfy the requirements of just cause and due process. The OSG was also convinced that Catolicos
dismissal was based on just cause and that Catolicos admission of the existence of the check, as well as her lame
excuse that it was a Christmas gift from YSP, constituted substantial evidence of dishonesty. Finally, the OSG
echoed petitioners argument that there was no violation of the right of privacy of communication in this
case,[22] adding that petitioner WATEROUS was justified in opening an envelope from one of its regular suppliers as it
could assume that the letter was a business communication in which it had an interest.

In its Comment which we required to be filed in view of the adverse stand of the OSG, the NLRC contends that
petitioners miserably failed to prove their claim that it committed grave abuse of discretion in its findings of fact. It
then prays that we dismiss this petition.

In her Comment, Catolico asserts that petitioners evidence is too flimsy to justify her dismissal. The check in
issue was given to her, and she had no duty to turn it over to her employer. Company rules do not prohibit an
employee from accepting gifts from clients, and there is no indication in the contentious check that it was meant as a
refund for overpriced medicines. Besides, the check was discovered in violation of the constitutional provision on the
right to privacy and communication; hence, as correctly held by the NLRC, it was inadmissible in evidence.

Catolico likewise disputes petitioners claim that the audit report and her initial response that she never received
a check were sufficient to justify her dismissal. When she denied having received a check from YSP, she meant that
she did not receive any refund of overprice, consistent with her position that what she received was a token gift. All
that can be gathered from the audit report is that there was apparently an overcharge, with no basis to conclude that
Catolico pocketed the amount in collusion with YSP. She thus concluded that her dismissal was based on a mere
suspicion.

Finally, Catolico insists that she could not have breached the trust and confidence of WATEROUS because,
being merely a pharmacist, she did not handle confidential information or sensitive properties. She was doing the task
of a saleslady: selling drugs and making requisitions when supplies were low.

A thorough review of the record leads us to no other conclusion than that, except as to the third ground, the
instant petition must fail.

Concededly, Catolico was denied due process. Procedural due process requires that an employee be apprised
of the charge against him, given reasonable time to answer the charge, allowed ample opportunity to be heard and
defend himself, and assisted by a representative if the employee so desires. [23] Ample opportunity connotes every
kind of assistance that management must accord the employee to enable him to prepare adequately for his defense,
including legal representation.[24]
 In the case at bar, although Catolico was given an opportunity to explain her side, she was dismissed from the
service in the memorandum of 5 March 1990 issued by her Supervisor after receipt of her letter and that of her
counsel. No hearing was ever conducted after the issues were joined through said letters. The Supervisors
memorandum spoke of evidences [sic] in [WATEROUS] possession, which were not, however, submitted. What the
evidences [sic] other than the sales invoice and the check were, only the Supervisor knew.

Catolico was also unjustly dismissed. It is settled that the burden is on the employer to prove just and valid
cause for dismissing an employee, and its failure to discharge that burden would result in a finding that the dismissal
is unjustified.[25] Here, WATEROUS proved unequal to the task.

It is evident from the Supervisors memorandum that Catolico was dismissed because of an alleged anomalous
transaction with YSP. Unfortunately for petitioners, their evidence does not establish that there was an
overcharge. Control Clerk Eugenio C. Valdez, who claims to have discovered Catolicos inappropriate transaction,
stated in his affidavit:[26]

4. My findings revealed that on or before the month of July 31, 1989, Ms. Catolico in violation of the
[company] procedure, made an under the table deal with YSP Phils. to supply WDRC needed medicines like
Voren tablets at a jack-up price of P384.00 per bottle of 50 mg. which has a previous price of only P320.00;

5. I verified the matter to YSP Phils. to determine the discrepancy and I found out that the cost per bottle
was indeed overpriced. The Accounting Department of YSP Phils. through Ms. Estelita Reyes confirmed
that there was really an overprice and she said that the difference was refunded through their check voucher
no. 629552 which was shown to me and the payee is Melodia Catolico, through a China Bank Check No.
892068 dated November 9, 1989.

It clearly appears then that Catolicos dismissal was based on hearsay information. Estelita Reyes never testified nor
executed an affidavit relative to this case; thus, we have to reject the statements attributed to her by Valdez. Hearsay
evidence carries no probative value.[27]

Besides, it was never shown that petitioners paid for the Voren tablets. While Valdez informed Co, through the
formers memorandum[28] of 29 January 1990, that WATEROUS paid YSP P3,840.00 thru MBTC Check No. 222832,
the said check was never presented in evidence, nor was any receipt from YSP offered by petitioners.

Moreover, the two purchase orders for Voren tablets presented by petitioners do not indicate an
overcharge. The purchase order dated 16 August 1989 [29] stated that the Voren tablets cost P320.00 per box, while
the purchase order dated 5 October 1989[30] priced the Voren tablets at P384.00 per bottle. The difference in price
may then be attributed to the different packaging used in each purchase order.

Assuming that there was an overcharge, the two purchase orders for the Voren tablets were recommended by
Director-MMG Mario R. Panuncio, verified by AVP-MNG Noli M. Lopez and approved by Vice President-General
Manager Emma R. Co. The purchase orders were silent as to Catolicos participation in the purchase. If the price
increase was objectionable to petitioners, they or their officers should have disapproved the
transaction. Consequently, petitioners had no one to blame for their predicament but themselves. This set of facts
emphasizes the exceedingly incredible situation proposed by petitioners. Despite the memorandum warning Catolico
not to negotiate with suppliers of medicine, there was no proof that she ever transacted, or that she had the
opportunity to transact, with the said suppliers. Again, as the purchase orders indicate, Catolico was not at all
involved in the sale of the Voren tablets. There was no occasion for Catolico to initiate, much less benefit from, what
Valdez called an under the table deal with YSP.

Catolicos dismissal then was obviously grounded on mere suspicion, which in no case can justify an employees
dismissal.Suspicion is not among the valid causes provided by the Labor Code for the termination of
employment;[31] and even the dismissal of an employee for loss of trust and confidence must rest on substantial
grounds and not on the employers arbitrariness, whims, caprices, or suspicion. [32] Besides, Catolico was not shown to
be a managerial employee, to which class of employees the term trust and confidence is restricted. [33]

As regards the constitutional violation upon which the NLRC anchored its decision, we find no reason to revise
the doctrine laid down in People vs. Marti[34] that the Bill of Rights does not protect citizens from unreasonable
searches and seizures perpetrated by private individuals. It is not true, as counsel for Catolico claims, that the
citizens have no recourse against such assaults. On the contrary, and as said counsel admits, such an invasion gives
rise to both criminal and civil liabilities.

Finally, since it has been determined by the Labor Arbiter that Catolicos reinstatement would not be to the best
interest of the parties, he correctly awarded separation pay to Catolico. Separation pay in lieu of reinstatement is
computed at one months salary for every year of service.[35] In this case, however, Labor Arbiter Lopez computed the
separation pay at one-half months salary for every year of service. Catolico did not oppose or raise an objection. As
such, we will uphold the award of separation pay as fixed by the Labor Arbiter.

WHEREFORE, the instant petition is hereby DISMISSED and the challenged decision and resolution of the
National Labor Relations Commission dated 30 September 1993 and 2 December 1993, respectively, in NLRC-NCR
CA No. 005160-93 are AFFIRMED, except as to its reason for upholding the Labor Arbiters decision, viz., that the
evidence against private respondent was inadmissible for having been obtained in violation of her constitutional rights
of privacy of communication and against unreasonable searches and seizures which is hereby set aside. Costs
against petitioners.

Marquez vs Desierto June 27, 2001

[G.R. No. 135882. June 27, 2001] LOURDES T. MARQUEZ, in her capacity as Branch Manager, Union Bank of
the Philippines, petitioners, vs. HON. ANIANO A. DESIERTO, (in his capacity as OMBUDSMAN, Evaluation
and Preliminary Investigation Bureau, Office of the Ombudsman, ANGEL C. MAYOR-ALGO, JR., MARY ANN
CORPUZ-MANALAC and JOSE T. DE JESUS, JR., in their capacities as Chairman and Members of the Panel,
respectively, respondents.

PARDO, J.:

In the petition at bar, petitioner seeks to--

a. Annul and set aside, for having been issued without or in excess of jurisdiction or with grave abuse of
discretion amounting to lack of jurisdiction, respondents order dated September 7, 1998 in OMB-0-97-0411, In
Re: Motion to Cite Lourdes T. Marquez for indirect contempt, received by counsel of September 9, 1998, and
their order dated October 14, 1998, denying Marquezs motion for reconsideration dated September 10, 1998,
received by counsel on October 20, 1998.

b. Prohibit respondents from implementing their order dated October 14, 1998, in proceeding with the hearing of
the motion to cite Marquez for indirect contempt, through the issuance by this Court of a temporary restraining
order and/or preliminary injunction.[1]

The antecedent facts are as follows:

Sometime in May 1998, petitioner Marquez received an Order from the Ombudsman Aniano A. Desierto dated
April 29, 1998, to produce several bank documents for purposes of inspection in camera relative to various accounts
maintained at Union Bank of the Philippines, Julia Vargas Branch, where petitioner is the branch manager. The
accounts to be inspected are Account Nos. 011-37270, 240-020718, 245-30317-3 and 245-30318-1, involved in a
case pending with the Ombudsman entitled, Fact-Finding and Intelligence Bureau (FFIB) v. Amado Lagdameo, et.
al. The order further states:

It is worth mentioning that the power of the Ombudsman to investigate and to require the production and inspection of
records and documents is sanctioned by the 1987 Philippine Constitution, Republic Act No. 6770, otherwise known
as the Ombudsman Act of 1989 and under existing jurisprudence on the matter. It must be noted that R. A. 6770
especially Section 15 thereof provides, among others, the following powers, functions and duties of the Ombudsman,
to wit:

xxx
(8) Administer oaths, issue subpoena and subpoena duces tecum and take testimony in any investigation or inquiry,
including the power to examine and have access to bank accounts and records;

(9) Punish for contempt in accordance with the Rules of Court and under the same procedure and with the same
penalties provided therein.

Clearly, the specific provision of R.A. 6770, a later legislation, modifies the law on the Secrecy of Bank Deposits (R.A.
1405) and places the office of the Ombudsman in the same footing as the courts of law in this regard. [2]

The basis of the Ombudsman in ordering an in camera inspection of the accounts is a trail of managers checks
purchased by one George Trivinio, a respondent in OMB-0-97-0411, pending with the office of the Ombudsman.

It would appear that Mr. George Trivinio, purchased fifty one (51) Managers Checks (MCs) for a total amount of
P272.1 Million at Traders Royal Bank, United Nations Avenue branch, on May 2 and 3, 1995. Out of the 51 MCs,
eleven (11) MCs

in the amount of P70.6 million, were deposited and credited to an account maintained at the Union Bank, Julia
Vargas Branch.[3]

On May 26, 1998, the FFIB panel met in conference with petitioner Lourdes T. Marquez and Atty. Fe B.
Macalino at the banks main office, Ayala Avenue, Makati City. The meeting was for the purpose of allowing petitioner
and Atty. Macalino to view the checks furnished by Traders Royal Bank. After convincing themselves of the veracity
of the checks, Atty. Macalino advised Ms. Marquez to comply with the order of the Ombudsman. Petitioner agreed to
an in camera inspection set on June 3, 1998.[4]

However, on June 4, 1998, petitioner wrote the Ombudsman explaining to him that the accounts in question
cannot readily be identified and asked for time to respond to the order. The reason forwarded by petitioner was that
despite diligent efforts and from the account numbers presented, we can not identify these accounts since the checks
are issued in cash or bearer. We surmised that these accounts have long been dormant, hence are not covered by
the new account number generated by the Union Bank system. We therefore have to verify from the Interbank
records archives for the whereabouts of these accounts. [5]

The Ombudsman, responding to the request of the petitioner for time to comply with the order, stated: firstly, it
must be emphasized that Union Bank, Julia Vargas Branch was the depositary bank of the subject Traders Royal
Bank Managers Checks (MCs), as shown at its dorsal portion and as cleared by the Philippine Clearing House, not
the International Corporate Bank.

Notwithstanding the fact that the checks were payable to cash or bearer, nonetheless, the name of the
depositor(s) could easily be identified since the account numbers x x x where said checks were deposited are
identified in the order.

Even assuming that the accounts xxx were already classified as dormant accounts, the bank is still required to
preserve the records pertaining to the accounts within a certain period of time as required by existing banking rules
and regulations.

And finally, the in camera inspection was already extended twice from May 13, 1998 to June 3, 1998, thereby
giving the bank enough time within which to sufficiently comply with the order.[6]

Thus, on June 16, 1998, the Ombudsman issued an order directing petitioner to produce the bank documents
relative to the accounts in issue. The order states:

Viewed from the foregoing, your persistent refusal to comply with Ombudsmans order is unjustified, and is merely
intended to delay the investigation of the case. Your act constitutes disobedience of or resistance to a lawful order
issued by this office and is punishable as Indirect Contempt under Section 3(b) of R.A. 6770. The same may also
constitute obstruction in the lawful exercise of the functions of the Ombudsman which is punishable under Section 36
of R.A. 6770.[7]
 On July 10, 1998, petitioner together with Union Bank of the Philippines, filed a petition for declaratory relief,
prohibition and injunction[8] with the Regional Trial Court, Makati City, against the Ombudsman.

The petition was intended to clear the rights and duties of petitioner. Thus, petitioner sought a declaration of her
rights from the court due to the clear conflict between R. A. No. 6770, Section 15 and R. A. No. 1405, Sections 2 and
3.

Petitioner prayed for a temporary restraining order (TRO) because the Ombudsman and other persons acting
under his authority were continuously harassing her to produce the bank documents relative to the accounts in
question. Moreover, on June 16, 1998, the Ombudsman issued another order stating that unless petitioner appeared
before the FFIB with the documents requested, petitioner manager would be charged with indirect contempt and
obstruction of justice.

In the meantime,[9] on July 14, 1998, the lower court denied petitioners prayer for a temporary restraining order
and stated thus:

After hearing the arguments of the parties, the court finds the application for a Temporary Restraining Order to be
without merit.

Since the application prays for the restraint of the respondent, in the exercise of his contempt powers under Section
15 (9) in relation to paragraph (8) of R.A. 6770, known as The Ombudsman Act of 1989, there is no great or
irreparable injury from which petitioners may suffer, if respondent is not so restrained. Respondent should he decide
to exercise his contempt powers would still have to apply with the court. x x x Anyone who, without lawful excuse x x
x refuses to produce documents for inspection, when thereunto lawfully required shall be subject to discipline as in
case of contempt of Court and upon application of the individual or body exercising the power in question shall be
dealt with by the Judge of the First Instance (now RTC) having jurisdiction of the case in a manner provided by law
(section 580 of the Revised Administrative Code). Under the present Constitution only judges may issue warrants,
hence, respondent should apply with the Court for the issuance of the warrant needed for the enforcement of his
contempt orders. It is in these proceedings where petitioners may question the propriety of respondents exercise of
his contempt powers. Petitioners are not therefore left without any adequate remedy.

The questioned orders were issued with the investigation of the case of Fact-Finding and Intelligence Bureau vs.
Amado Lagdameo, et. el., OMB-0-97-0411, for violation of R.A. 3019. Since petitioner failed to show prima facie
evidence that the subject matter of the investigation is outside the jurisdiction of the Office of the Ombudsman, no writ
of injunction may be issued by this Court to delay this investigation pursuant to Section 14 of the Ombudsman Act of
1989.[10]

On July 20, 1998, petitioner filed a motion for reconsideration based on the following grounds:

a. Petitioners application for Temporary Restraining Order is not only to restrain the Ombudsman from
exercising his contempt powers, but to stop him from implementing his Orders dated April 29,1998 and
June 16,1998; and

b. The subject matter of the investigation being conducted by the Ombudsman at petitioners premises is
outside his jurisdiction.[11]

On July 23, 1998, the Ombudsman filed a motion to dismiss the petition for declaratory relief[12] on the ground
that the Regional Trial Court has no jurisdiction to hear a petition for relief from the findings and orders of the
Ombudsman, citing R. A. No. 6770, Sections 14 and 27. On August 7, 1998, the Ombudsman filed an opposition to
petitioners motion for reconsideration dated July 20, 1998. [13]

On August 19, 1998, the lower court denied petitioners motion for reconsideration, [14] and also the
Ombudsmans motion to dismiss.[15]

On August 21, 1998, petitioner received a copy of the motion to cite her for contempt, filed with the Office of the
Ombudsman by Agapito B. Rosales, Director, Fact Finding and Intelligence Bureau (FFIB).[16]
 On August 31, 1998, petitioner filed with the Ombudsman an opposition to the motion to cite her in contempt on
the ground that the filing thereof was premature due to the petition pending in the lower court. [17] Petitioner likewise
reiterated that she had no intention to disobey the orders of the Ombudsman. However, she wanted to be clarified as
to how she would comply with the orders without her breaking any law, particularly R. A. No. 1405. [18]

Respondent Ombudsman panel set the incident for hearing on September 7, 1998. [19] After hearing, the panel
issued an order dated September 7, 1998, ordering petitioner and counsel to appear for a continuation of the hearing
of the contempt charges against her.[20]

On September 10, 1998, petitioner filed with the Ombudsman a motion for reconsideration of the above
order.[21] Her motion was premised on the fact that there was a pending case with the Regional Trial Court, Makati
City,[22] which would determine whether obeying the orders of the Ombudsman to produce bank documents would not
violate any law.

The FFIB opposed the motion,[23] and on October 14, 1998, the Ombudsman denied the motion by order the
dispositive portion of which reads:

Wherefore, respondent Lourdes T. Marquezs motion for reconsideration is hereby DENIED, for lack of merit. Let the
hearing of the motion of the Fact Finding Intelligence Bureau (FFIB) to cite her for indirect contempt be intransferrably
set to 29 October 1998 at 2:00 oclock p.m. at which date and time she should appear personally to submit her
additional evidence. Failure to do so shall be deemed a waiver thereof. [24]

Hence, the present petition.[25]

The issue is whether petitioner may be cited for indirect contempt for her failure to produce the documents
requested by the Ombudsman. And whether the order of the Ombudsman to have an in camera inspection of the
questioned account is allowed as an exception to the law on secrecy of bank deposits (R. A. No. 1405).

An examination of the secrecy of bank deposits law (R. A. No. 1405) would reveal the following exceptions:

1. Where the depositor consents in writing;

2. Impeachment case;

3. By court order in bribery or dereliction of duty cases against public officials;

4. Deposit is subject of litigation;

5. Sec. 8, R. A. No. 3019, in cases of unexplained wealth as held in the case of PNB vs. Gancayco[26]

The order of the Ombudsman to produce for in camera inspection the subject accounts with the Union Bank of
the Philippines, Julia Vargas Branch, is based on a pending investigation at the Office of the Ombudsman against
Amado Lagdameo, et. al. for violation of R. A. No. 3019, Sec. 3 (e) and (g) relative to the Joint Venture Agreement
between the Public Estates Authority and AMARI.

We rule that before an in camera inspection may be allowed, there must be a pending case before a court of
competent jurisdiction. Further, the account must be clearly identified, the inspection limited to the subject matter of
the pending case before the court of competent jurisdiction. The bank personnel and the account holder must be
notified to be present during the inspection, and such inspection may cover only the account identified in the pending
case.

In Union Bank of the Philippines v. Court of Appeals, we held that Section 2 of the Law on Secrecy of
Bank Deposits, as amended, declares bank deposits to be absolutely confidential except:

(1) In an examination made in the course of a special or general examination of a bank that is specifically
authorized by the Monetary Board after being satisfied that there is reasonable ground to believe that a
bank fraud or serious irregularity has been or is being committed and that it is necessary to look into
the deposit to establish such fraud or irregularity,
 (2) In an examination made by an independent auditor hired by the bank to conduct its regular audit
provided that the examination is for audit purposes only and the results thereof shall be for the
exclusive use of the bank,

(3) Upon written permission of the depositor,

(4) In cases of impeachment,

(5) Upon order of a competent court in cases of bribery or dereliction of duty of public officials, or

(6) In cases where the money deposited or invested is the subject matter of the litigation [27]

In the case at bar, there is yet no pending litigation before any court of competent authority. What is existing is
an investigation by the office of the Ombudsman. In short, what the Office of the Ombudsman would wish to do is to
fish for additional evidence to formally charge Amado Lagdameo, et. al., with the Sandiganbayan. Clearly, there was
no pending case in court which would warrant the opening of the bank account for inspection.

Zones of privacy are recognized and protected in our laws. The Civil Code provides that "[e]very person shall
respect the dignity, personality, privacy and peace of mind of his neighbors and other persons" and punishes as
actionable torts several acts for meddling and prying into the privacy of another. It also holds a public officer or
employee or any private individual liable for damages for any violation of the rights and liberties of another person,
and recognizes the privacy of letters and other private communications. The Revised Penal Code makes a crime of
the violation of secrets by an officer, the revelation of trade and industrial secrets, and trespass to dwelling. Invasion
of privacy is an offense in special laws like the Anti-Wiretapping Law, the Secrecy of Bank Deposits Act, and the
Intellectual Property Code.[28] IN VIEW WHEREOF, we GRANT the petition. We order the Ombudsman to cease and
desist from requiring Union Bank Manager Lourdes T. Marquez, or anyone in her place to comply with the order
dated October 14, 1998, and similar orders. No costs.

Digest

FACTS: Respondent Ombudsman Desierto ordered petitioner Marquez to produce several bank documents for
purposes of inspection in camera relative to various accounts maintained at Union Bank of the Philippines, Julia
Vargas Branch, where petitioner is the branch manager.

The order is based on a pending investigation at the Office of the Ombudsman against Amado Lagdameo, et. al. for
violation of R.A. No. 3019, Sec. 3 (e) and (g) relative to the Joint Venture Agreement between the Public Estates
Authority and AMARI.

Petitioner wanted to be clarified first as to how she would comply with the orders without her breaking any law,
particularly RA. No. 1405.

ISSUE:
Whether the order of the Ombudsman to have an in camera inspection of the questioned account is allowed as an
exception to the law on secrecy of bank deposits (R.A. No.1405).

HELD: No.
We rule that before an in camera inspection may be allowed, there must be a pending case before a court of
competent jurisdiction. Further, the account must be clearly identified, the inspection limited to the subject matter of
the pending case before the court of competent jurisdiction. The bank personnel and the account holder must be
notified to be present during the inspection, and such inspection may cover only the account identified in the pending
case

Ople sv Torres, July 23, 1998

[G.R. No. 127685. July 23, 1998] BLAS F. OPLE, petitioner, vs. RUBEN D. TORRES, ALEXANDER AGUIRRE,
HECTOR VILLANUEVA, CIELITO HABITO, ROBERT BARBERS, CARMENCITA REODICA, CESAR SARINO,
RENATO VALENCIA, TOMAS P. AFRICA, HEAD OF THE NATIONAL COMPUTER CENTER and CHAIRMAN OF
THE COMMISSION ON AUDIT, respondents.
PUNO, J.:
The petition at bar is a commendable effort on the part of Senator Blas F. Ople to prevent the shrinking of the
right to privacy, which the revered Mr. Justice Brandeis considered as "the most comprehensive of rights and the
right most valued by civilized men."[1]Petitioner Ople prays that we invalidate Administrative Order No. 308 entitled
"Adoption of a National Computerized Identification Reference System" on two important constitutional grounds, viz:
one, it is a usurpation of the power of Congress to legislate, and two, it impermissibly intrudes on our citizenry's
protected zone of privacy. We grant the petition for the rights sought to be vindicated by the petitioner need stronger
barriers against further erosion.

A.O. No. 308 was issued by President Fidel V. Ramos on December 12, 1996 and reads as follows:

"ADOPTION OF A NATIONAL COMPUTERIZED IDENTIFICATION REFERENCE SYSTEM

WHEREAS, there is a need to provide Filipino citizens and foreign residents with the facility to conveniently transact
business with basic service and social security providers and other government instrumentalities;

WHEREAS, this will require a computerized system to properly and efficiently identify persons seeking basic services
on social security and reduce, if not totally eradicate, fraudulent transactions and misrepresentations;

WHEREAS, a concerted and collaborative effort among the various basic services and social security providing
agencies and other government instrumentalities is required to achieve such a system;

NOW, THEREFORE, I, FIDEL V. RAMOS, President of the Republic of the Philippines, by virtue of the powers
vested in me by law, do hereby direct the following:

SECTION 1. Establishment of a National Computerized Identification Reference System. A decentralized

Identification Reference System among the key basic services and social security providers is hereby established.

SEC. 2 Inter-Agency Coordinating Committee. An Inter-Agency Coordinating Committee (IACC) to draw-up the
implementing guidelines and oversee the implementation of the System is hereby created, chaired by the Executive
Secretary, with the following as members:

Head, Presidential Management Staff

Secretary, National Economic Development Authority

Secretary, Department of the Interior and
Local Government
Secretary, Department of Health
Administrator, Government Service Insurance
System,
Administrator, Social Security System, Administrator, National Statistics Office Managing
Director, National Computer Center.

SEC. 3. Secretariat. The National Computer Center (NCC) is hereby designated as secretariat to the IACC and as
such shall provide administrative and technical support to the IACC.

SEC. 4. Linkage Among Agencies. The Population Reference Number (PRN) generated by the NSO shall serve as
the common reference number to establish a linkage among concerned agencies. The IACC Secretariat shall
coordinate with the different Social Security and Services Agencies to establish the standards in the use of Biometrics
Technology and in computer application designs of their respective systems.
SEC. 5. Conduct of Information Dissemination Campaign. The Office of the Press Secretary, in coordination with the
National Statistics Office, the GSIS and SSS as lead agencies and other concerned agencies shall undertake a
massive tri-media information dissemination campaign to educate and raise public awareness on the importance and
use of the PRN and the Social Security Identification Reference.

SEC. 6. Funding. The funds necessary for the implementation of the system shall be sourced from the respective
budgets of the concerned agencies.

SEC. 7. Submission of Regular Reports. The NSO, GSIS and SSS shall submit regular reports to the Office of the
President, through the IACC, on the status of implementation of this undertaking.

SEC. 8. Effectivity. This Administrative Order shall take effect immediately.

DONE in the City of Manila, this 12th day of December in the year of Our Lord, Nineteen Hundred and Ninety-Six.

(SGD.) FIDEL V. RAMOS"

A.O. No. 308 was published in four newspapers of general circulation on January 22, 1997 and January 23,
1997. On January 24, 1997, petitioner filed the instant petition against respondents, then Executive Secretary Ruben
Torres and the heads of the government agencies, who as members of the Inter-Agency Coordinating Committee,
are charged with the implementation of A.O. No. 308. On April 8, 1997, we issued a temporary restraining order
enjoining its implementation.

Petitioner contends:

"A. THE ESTABLISHMENT OF A NATIONAL COMPUTERIZED IDENTIFICATION REFERENCE SYSTEM

REQUIRES A LEGISLATIVE ACT. THE ISSUANCE OF A.O. NO. 308 BY THE PRESIDENT OF THE REPUBLIC OF
THE PHILIPPINES IS, THEREFORE, AN UNCONSTITUTIONAL USURPATION OF THE LEGISLATIVE POWERS
OF THE CONGRESS OF THE REPUBLIC OF THE PHILIPPINES.

B. THE APPROPRIATION OF PUBLIC FUNDS BY THE PRESIDENT FOR THE IMPLEMENTATION OF A.O. NO.
308 IS AN UNCONSTITUTIONAL USURPATION OF THE EXCLUSIVE RIGHT OF CONGRESS TO APPROPRIATE
PUBLIC FUNDS FOR EXPENDITURE.

C. THE IMPLEMENTATION OF A.O. NO. 308 INSIDIOUSLY LAYS THE GROUNDWORK FOR A SYSTEM WHICH
WILL VIOLATE THE BILL OF RIGHTS ENSHRINED IN THE CONSTITUTION."[2]

Respondents counter-argue:

A. THE INSTANT PETITION IS NOT A JUSTICIABLE CASE AS WOULD WARRANT A JUDICIAL REVIEW;

B. A.O. NO. 308 [1996] WAS ISSUED WITHIN THE EXECUTIVE AND ADMINISTRATIVE POWERS OF THE
PRESIDENT WITHOUT ENCROACHING ON THE LEGISLATIVE POWERS OF CONGRESS;

C. THE FUNDS NECESSARY FOR THE IMPLEMENTATION OF THE IDENTIFICATION REFERENCE SYSTEM
MAY BE SOURCED FROM THE BUDGETS OF THE CONCERNED AGENCIES;

D. A.O. NO. 308 [1996] PROTECTS AN INDIVIDUAL'S INTEREST IN PRIVACY.[3]

We now resolve.

I
 As is usual in constitutional litigation, respondents raise the threshold issues relating to the standing to sue of
the petitioner and the justiciability of the case at bar. More specifically, respondents aver that petitioner has no legal
interest to uphold and that the implementing rules of A.O. No. 308 have yet to be promulgated.

These submissions do not deserve our sympathetic ear. Petitioner Ople is a distinguished member of our
Senate. As a Senator, petitioner is possessed of the requisite standing to bring suit raising the issue that the issuance
of A.O. No. 308 is a usurpation of legislative power.[4] As taxpayer and member of the Government Service Insurance
System (GSIS), petitioner can also impugn the legality of the misalignment of public funds and the misuse of GSIS
funds to implement A.O. No. 308.[5]

The ripeness for adjudication of the petition at bar is not affected by the fact that the implementing rules of A.O.
No. 308 have yet to be promulgated. Petitioner Ople assails A.O. No. 308 as invalid per se and as infirmed on its
face. His action is not premature for the rules yet to be promulgated cannot cure its fatal defects. Moreover, the
respondents themselves have started the implementation of A.O. No. 308 without waiting for the rules. As early as
January 19, 1997, respondent Social Security System (SSS) caused the publication of a notice to bid for the
manufacture of the National Identification (ID) card.[6] Respondent Executive Secretary Torres has publicly
announced that representatives from the GSIS and the SSS have completed the guidelines for the national
identification system.[7] All signals from the respondents show their unswerving will to implement A.O. No. 308 and we
need not wait for the formality of the rules to pass judgment on its constitutionality. In this light, the dissenters
insistence that we tighten the rule on standing is not a commendable stance as its result would be to throttle an
important constitutional principle and a fundamental right.

II

We now come to the core issues. Petitioner claims that A.O. No. 308 is not a mere administrative order
but a law and hence, beyond the power of the President to issue. He alleges that A.O. No. 308 establishes a
system of identification that is all-encompassing in scope, affects the life and liberty of every Filipino citizen and
foreign resident, and more particularly, violates their right to privacy.

Petitioner's sedulous concern for the Executive not to trespass on the lawmaking domain of Congress is
understandable. The blurring of the demarcation line between the power of the Legislature to make laws and the
power of the Executive to execute laws will disturb their delicate balance of power and cannot be allowed. Hence, the
exercise by one branch of government of power belonging to another will be given a stricter scrutiny by this Court.

The line that delineates Legislative and Executive power is not indistinct. Legislative power is "the authority,
under the Constitution, to make laws, and to alter and repeal them." [8] The Constitution, as the will of the people in
their original, sovereign and unlimited capacity, has vested this power in the Congress of the Philippines. [9] The grant
of legislative power to Congress is broad, general and comprehensive. [10] The legislative body possesses plenary
power for all purposes of civil government.[11] Any power, deemed to be legislative by usage and tradition, is
necessarily possessed by Congress, unless the Constitution has lodged it elsewhere. [12] In fine, except as limited by
the Constitution, either expressly or impliedly, legislative power embraces all subjects and extends to matters of
general concern or common interest.[13]

While Congress is vested with the power to enact laws, the President executes the laws.[14] The executive
power is vested in the President.[15] It is generally defined as the power to enforce and administer the laws. [16] It is the
power of carrying the laws into practical operation and enforcing their due observance.[17]

As head of the Executive Department, the President is the Chief Executive. He represents the government as a
whole and sees to it that all laws are enforced by the officials and employees of his department. [18] He has control
over the executive department, bureaus and offices. This means that he has the authority to assume directly the
functions of the executive department, bureau and office, or interfere with the discretion of its officials. [19] Corollary to
the power of control, the President also has the duty of supervising the enforcement of laws for the maintenance of
general peace and public order. Thus, he is granted administrative power over bureaus and offices under his
control to enable him to discharge his duties effectively.[20]

Administrative power is concerned with the work of applying policies and enforcing orders as
determined by proper governmental organs.[21] It enables the President to fix a uniform standard of
administrative efficiency and check the official conduct of his agents. [22] To this end, he can issue
administrative orders, rules and regulations.

Prescinding from these precepts, we hold that A.O. No. 308 involves a subject that is not appropriate to
be covered by an administrative order. An administrative order is:

"Sec. 3. Administrative Orders.-- Acts of the President which relate to particular aspects of governmental operation in
pursuance of his duties as administrative head shall be promulgated in administrative orders."[23]

An administrative order is an ordinance issued by the President which relates to specific aspects in the administrative
operation of government. It must be in harmony with the law and should be for the sole purpose
of implementing the law and carrying out the legislative policy. [24] We reject the argument that A.O. No. 308
implements the legislative policy of the Administrative Code of 1987. The Code is a general law and
"incorporates in a unified document the major structural, functional and procedural principles of governance" [25] and
"embodies changes in administrative structures and procedures designed to serve the people." [26] The Code is
divided into seven (7) Books: Book I deals with Sovereignty and General Administration, Book II with the Distribution
of Powers of the three branches of Government, Book III on the Office of the President, Book IV on the Executive
Branch, Book V on the Constitutional Commissions, Book VI on National Government Budgeting, and Book VII on
Administrative Procedure. These Books contain provisions on the organization, powers and general administration of
the executive, legislative and judicial branches of government, the organization and administration of departments,
bureaus and offices under the executive branch, the organization and functions of the Constitutional Commissions
and other constitutional bodies, the rules on the national government budget, as well as guidelines for the exercise by
administrative agencies of quasi-legislative and quasi-judicial powers. The Code covers both the internal
administration of government, i.e, internal organization, personnel and recruitment, supervision and discipline, and
the effects of the functions performed by administrative officials on private individuals or parties outside
government.[27]

It cannot be simplistically argued that A.O. No. 308 merely implements the Administrative Code of 1987. It
establishes for the first time a National Computerized Identification Reference System. Such a System requires a
delicate adjustment of various contending state policies-- the primacy of national security, the extent of privacy
interest against dossier-gathering by government, the choice of policies, etc. Indeed, the dissent of Mr. Justice
Mendoza states that the A.O. No. 308 involves the all-important freedom of thought. As said administrative order
redefines the parameters of some basic rights of our citizenry vis-a-vis the State as well as the line that separates the
administrative power of the President to make rules and the legislative power of Congress, it ought to be evident that
it deals with a subject that should be covered by law.

Nor is it correct to argue as the dissenters do that A.O. No. 308 is not a law because it confers no right, imposes
no duty, affords no protection, and creates no office. Under A.O. No. 308, a citizen cannot transact business with
government agencies delivering basic services to the people without the contemplated identification card. No citizen
will refuse to get this identification card for no one can avoid dealing with government. It is thus clear as daylight that
without the ID, a citizen will have difficulty exercising his rights and enjoying his privileges. Given this reality, the
contention that A.O. No. 308 gives no right and imposes no duty cannot stand.

Again, with due respect, the dissenting opinions unduly expand the limits of administrative legislation and
consequently erodes the plenary power of Congress to make laws. This is contrary to the established approach
defining the traditional limits of administrative legislation. As well stated by Fisher: "x x x Many regulations however,
bear directly on the public. It is here that administrative legislation must be restricted in its scope and
application. Regulations are not supposed to be a substitute for the general policy-making that Congress
enacts in the form of a public law. Although administrative regulations are entitled to respect, the authority to
prescribe rules and regulations is not an independent source of power to make laws." [28]

III

Assuming, arguendo, that A.O. No. 308 need not be the subject of a law, still it cannot
pass constitutional muster as anadministrative legislation because facially it violates the right to privacy. The
essence of privacy is the "right to be let alone." [29] In the 1965 case of Griswold v. Connecticut,[30] the United States
Supreme Court gave more substance to the right of privacy when it ruled that the right has a constitutional
foundation. It held that there is a right of privacy which can be found within the penumbras of the First, Third, Fourth,
Fifth and Ninth Amendments,[31] viz:

"Specific guarantees in the Bill of Rights have penumbras formed by emanations from these guarantees that help
give them life and substance x x x. Various guarantees create zones of privacy. The right of association contained in
the penumbra of the First Amendment is one, as we have seen. The Third Amendment in its prohibition against the
quartering of soldiers `in any house' in time of peace without the consent of the owner is another facet of that
privacy. The Fourth Amendment explicitly affirms the `right of the people to be secure in their persons, houses,
papers, and effects, against unreasonable searches and seizures.' The Fifth Amendment in its Self-Incrimination
Clause enables the citizen to create a zone of privacy which government may not force him to surrender to his
detriment. The Ninth Amendment provides: `The enumeration in the Constitution, of certain rights, shall not be
construed to deny or disparage others retained by the people.'"

In the 1968 case of Morfe v. Mutuc,[32] we adopted the Griswold ruling that there is a constitutional right to
privacy. Speaking thru Mr. Justice, later Chief Justice, Enrique Fernando, we held:

"xxx

The Griswold case invalidated a Connecticut statute which made the use of contraceptives a criminal offense on the
ground of its amounting to an unconstitutional invasion of the right of privacy of married persons; rightfully it stressed
"a relationship lying within the zone of privacy created by several fundamental constitutional guarantees." It has wider
implications though. The constitutional right to privacy has come into its own.

So it is likewise in our jurisdiction. The right to privacy as such is accorded recognition independently of its
identification with liberty; in itself, it is fully deserving of constitutional protection. The language of Prof. Emerson is
particularly apt: 'The concept of limited government has always included the idea that governmental powers stop
short of certain intrusions into the personal life of the citizen. This is indeed one of the basic distinctions between
absolute and limited government. Ultimate and pervasive control of the individual, in all aspects of his life, is the
hallmark of the absolute state. In contrast, a system of limited government safeguards a private sector, which belongs
to the individual, firmly distinguishing it from the public sector, which the state can control. Protection of this private
sector-- protection, in other words, of the dignity and integrity of the individual--has become increasingly important as
modern society has developed. All the forces of a technological age --industrialization, urbanization, and
organization-- operate to narrow the area of privacy and facilitate intrusion 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.'"

Indeed, if we extend our judicial gaze we will find that the right of privacy is recognized and enshrined in
several provisions of our Constitution.[33] It is expressly recognized in Section 3(1) of the Bill of Rights:

"Sec. 3. (1) The privacy of communication and correspondence shall be inviolable except upon lawful order of the
court, or when public safety or order requires otherwise as prescribed by law."

Other facets of the right to privacy are protected in various provisions of the Bill of Rights, viz:[34]

"Sec. 1. No person shall be deprived of life, liberty, or property without due process of law, nor shall any person be
denied the equal protection of the laws.

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

Sec. 6. The liberty of abode and of changing the same within the limits prescribed by law shall not be impaired except
upon lawful order of the court. Neither shall the right to travel be impaired except in the interest of national security,
public safety, or public health, as may be provided by law.

x x x.

Sec. 8. The right of the people, including those employed in the public and private sectors, to form unions,
associations, or societies for purposes not contrary to law shall not be abridged.

Sec. 17. No person shall be compelled to be a witness against himself."

Zones of privacy are likewise recognized and protected in our laws. The Civil Code provides that "[e]very
person shall respect the dignity, personality, privacy and peace of mind of his neighbors and other persons" and
punishes as actionable torts several acts by a person of meddling and prying into the privacy of another. [35] It also
holds a public officer or employee or any private individual liable for damages for any violation of the rights and
liberties of another person,[36] and recognizes the privacy of letters and other private
communications. The Revised Penal Code makes a crime the violation of secrets by an officer, [38] the revelation of
[37]

trade and industrial secrets,[39] and trespass to dwelling.[40] Invasion of privacy is an offense in special laws like the
Anti-Wiretapping Law,[41] the Secrecy of Bank Deposit Act[42] and the Intellectual Property Code.[43] The Rules of
Court on privileged communication likewise recognize the privacy of certain information. [44]

Unlike the dissenters, we prescind from the premise that the right to privacy is a fundamental right
guaranteed by the Constitution, hence, it is the burden of government to show that A.O. No. 308 is justified
by some compelling state interest and that it is narrowly drawn. A.O. No. 308 is predicated on two
considerations: (1) the need to provide our citizens and foreigners with the facility to conveniently transact business
with basic service and social security providers and other government instrumentalities and (2) the need to reduce, if
not totally eradicate, fraudulent transactions and misrepresentations by persons seeking basic services. It is
debatable whether these interests are compelling enough to warrant the issuance of A.O. No. 308. But what is not
arguable is the broadness, the vagueness, the overbreadth of A.O. No. 308 which if implemented will put our
people's right to privacy in clear and present danger.

The heart of A.O. No. 308 lies in its Section 4 which provides for a Population Reference Number (PRN) as a
"common reference number to establish a linkage among concerned agencies" through the use of "Biometrics
Technology" and "computer application designs."

Biometry or biometrics is "the science of the application of statistical methods to biological facts; a
mathematical analysis of biological data." [45] The term "biometrics" has now evolved into a broad category of
technologies which provide precise confirmation of an individual's identity through the use of the
individual's own physiological and behavioral characteristics.[46]A physiological characteristic is a relatively
stable physical characteristic such as a fingerprint, retinal scan, hand geometry or facial features. A behavioral
characteristic is influenced by the individual's personality and includes voice print, signature and keystroke. [47]Most
biometric identification systems use a card or personal identification number (PIN) for initial identification. The
biometric measurement is used to verify that the individual holding the card or entering the PIN is the legitimate
owner of the card or PIN.[48]

A most common form of biological encoding is finger-scanning where technology scans a fingertip and turns
the unique pattern therein into an individual number which is called a biocrypt. The biocrypt is stored in computer
data banks[49] and becomes a means of identifying an individual using a service. This technology requires one's
fingertip to be scanned every time service or access is provided. [50] Another method is the retinal scan. Retinal scan
technology employs optical technology to map the capillary pattern of the retina of the eye. This technology produces
a unique print similar to a finger print.[51] Another biometric method is known as the "artificial nose." This device
chemically analyzes the unique combination of substances excreted from the skin of people.[52] The latest on the list
of biometric achievements is the thermogram. Scientists have found that by taking pictures of a face using infra-red
cameras, a unique heat distribution pattern is seen. The different densities of bone, skin, fat and blood vessels all
contribute to the individual's personal "heat signature." [53]

In the last few decades, technology has progressed at a galloping rate. Some science fictions are now science
facts. Today,biometrics is no longer limited to the use of fingerprint to identify an individual. It is a new
science that uses various technologies in encoding any and all biological characteristics of an individual
for identification. It is noteworthy that A.O. No. 308 does not state what specific biological characteristics and
what particular biometrics technology shall be used to identify people who will seek its
coverage. Considering the banquet of options available to the implementors of A.O. No. 308, the fear that it
threatens the right to privacy of our people is not groundless.

A.O. No. 308 should also raise our antennas for a further look will show that it does not state whether
encoding of data is limited to biological information alone for identification purposes. In fact, the Solicitor
General claims that the adoption of the Identification Reference System will contribute to the "generation of
population data for development planning." [54] This is an admission that the PRN will not be used solely for
identification but for the generation of other data with remote relation to the avowed purposes of A.O. No.
308. Clearly, the indefiniteness of A.O. No. 308 can give the government the roving authority to store and
retrieve information for a purpose other than the identification of the individual through his PRN.

The potential for misuse of the data to be gathered under A.O. No. 308 cannot be underplayed as the
dissenters do.Pursuant to said administrative order, an individual must present his PRN everytime he deals with a
government agency to avail of basic services and security. His transactions with the government agency will
necessarily be recorded-- whether it be in the computer or in the documentary file of the agency. The individual's file
may include his transactions for loan availments, income tax returns, statement of assets and liabilities,
reimbursements for medication, hospitalization, etc. The more frequent the use of the PRN, the better the chance
of building a huge and formidable information base through the electronic linkage of the files.[55] The data
may be gathered for gainful and useful government purposes; but the existence of this vast reservoir of
personal information constitutes a covert invitation to misuse, a temptation that may be too great for some of
our authorities to resist.[56]

We can even grant, arguendo, that the computer data file will be limited to the name, address and other basic
personal information about the individual. [57] Even that hospitable assumption will not save A.O. No. 308 from
constitutional infirmity for again said order does not tell us in clear and categorical terms how these
information gathered shall be handled. It does not provide who shall control and access the data, under what
circumstances and for what purpose. These factors are essential to safeguard the privacy and guaranty the
integrity of the information.[58] Well to note, the computer linkage gives other government agencies access to the
information. Yet, there are no controls to guard against leakage of information. When the access code of the
control programs of the particular computer system is broken, an intruder, without fear of sanction or penalty, can
make use of the data for whatever purpose, or worse, manipulate the data stored within the system. [59]

It is plain and we hold that A.O. No. 308 falls short of assuring that personal information which will be gathered
about our people will only be processed for unequivocally specified purposes.[60] The lack of proper safeguards in
this regard of A.O. No. 308 may interfere with the individual's liberty of abode and travel by enabling authorities to
track down his movement; it may also enable unscrupulous persons to access confidential information and
circumvent the right against self-incrimination; it may pave the way for "fishing expeditions" by government authorities
and evade the right against unreasonable searches and seizures. [61] The possibilities of abuse and misuse of the
PRN, biometrics and computer technology are accentuated when we consider that the individual lacks
control over what can be read or placed on his ID, much less verify the correctness of the data
encoded.[62] They threaten the very abuses that the Bill of Rights seeks to prevent.[63]

The ability of a sophisticated data center to generate a comprehensive cradle-to-grave dossier on an

individual and transmit it over a national network is one of the most graphic threats of the computer revolution.[64] The
computer is capable of producing a comprehensive dossier on individuals out of information given at different times
and for varied purposes.[65] It can continue adding to the stored data and keeping the information up to date. Retrieval
of stored data is simple. When information of a privileged character finds its way into the computer, it can be
extracted together with other data on the subject. [66] Once extracted, the information is putty in the hands of any
person. The end of privacy begins.

Though A.O. No. 308 is undoubtedly not narrowly drawn, the dissenting opinions would dismiss its danger to the
right to privacy asspeculative and hypothetical. Again, we cannot countenance such a laidback posture. The Court
will not be true to its role as theultimate guardian of the people's liberty if it would not immediately smother the sparks
that endanger their rights but would rather wait for the fire that could consume them.

We reject the argument of the Solicitor General that an individual has a reasonable expectation of
privacy with regard to the National ID and the use of biometrics technology as it stands on quicksand. The
reasonableness of a person's expectation of privacy depends on a two-part test: (1) whether by his conduct, the
individual has exhibited an expectation of privacy; and (2) whether this expectation is one that society recognizes as
reasonable.[67] The factual circumstances of the case determines the reasonableness of the expectation. [68] However,
other factors, such as customs, physical surroundings and practices of a particular activity, may serve to create or
diminish this expectation.[69] The use of biometrics and computer technology in A.O. No. 308 does not assure the
individual of a reasonable expectation of privacy. [70] As technology advances, the level of reasonably expected
privacy decreases.[71] The measure of protection granted by the reasonable expectation diminishes as relevant
technology becomes more widely accepted.[72] The security of the computer data file depends not only on the
physical inaccessibility of the file but also on the advances in hardware and software computer technology. A.O. No.
308 is so widely drawn that a minimum standard for a reasonable expectation of privacy, regardless of
technology used, cannot be inferred from its provisions.

The rules and regulations to be drawn by the IACC cannot remedy this fatal defect. Rules and regulations
merely implement the policy of the law or order. On its face, A.O. No. 308 gives the IACC virtually unfettered
discretion to determine the metes and bounds of the ID System.

Nor do our present laws provide adequate safeguards for a reasonable expectation of privacy.
Commonwealth Act No. 591 penalizes the disclosure by any person of data furnished by the individual to the NSO
with imprisonment and fine.[73] Republic Act No. 1161 prohibits public disclosure of SSS employment records and
reports.[74] These laws, however, apply to records and data with the NSO and the SSS. It is not clear whether they
may be applied to data with the other government agencies forming part of the National ID System. The need to
clarify the penal aspect of A.O. No. 308 is another reason why its enactment should be given to Congress.

Next, the Solicitor General urges us to validate A.O. No. 308's abridgment of the right of privacy by using
the rational relationship test.[75] He stressed that the purposes of A.O. No. 308 are: (1) to streamline and speed
up the implementation of basic governmentservices, (2) eradicate fraud by avoiding duplication of services, and
(3) generate population data for development planning. He concludes that these purposes justify the incursions into
the right to privacy for the means are rationally related to the end. [76]

We are not impressed by the argument. In Morfe v. Mutuc,[77] we upheld the constitutionality of R.A. 3019, the
Anti-Graft and Corrupt Practices Act, as a valid police power measure. We declared that the law, in compelling a
public officer to make an annual report disclosing his assets and liabilities, his sources of income and expenses, did
not infringe on the individual's right to privacy. The law was enacted to promote morality in public administration by
curtailing and minimizing the opportunities for official corruption and maintaining a standard of honesty in the public
service.[78]

The same circumstances do not obtain in the case at bar. For one, R.A. 3019 is a statute, not an administrative
order. Secondly, R.A. 3019 itself is sufficiently detailed. The law is clear on what practices were prohibited and
penalized, and it was narrowly drawn to avoid abuses. In the case at bar, A.O. No. 308 may have been impelled by a
worthy purpose, but, it cannot pass constitutional scrutiny for it is not narrowly drawn. And we now hold that when
the integrity of a fundamental right is at stake, this court will give the challenged law, administrative order,
rule or regulation a stricter scrutiny. It will not do for the authorities to invoke the presumption of regularity
in the performance of official duties. Nor is it enough for the authorities to prove that their act is not irrational
for a basic right can be diminished, if not defeated, even when the government does not act irrationally. They
must satisfactorily show the presence of compelling state interests and that the law, rule, or regulation is
narrowly drawn to preclude abuses. This approach is demanded by the 1987 Constitution whose entire matrix is
designed to protect human rights and to prevent authoritarianism. In case of doubt, the least we can do is to lean
towards the stance that will not put in danger the rights protected by the Constitution.

The case of Whalen v. Roe[79] cited by the Solicitor General is also off-line. In Whalen, the United States
Supreme Court was presented with the question of whether the State of New York could keep a centralized computer
record of the names and addresses of all persons who obtained certain drugs pursuant to a doctor's prescription. The
New York State Controlled Substances Act of 1972 required physicians to identify patients obtaining prescription
drugs enumerated in the statute, i.e., drugs with a recognized medical use but with a potential for abuse, so that the
names and addresses of the patients can be recorded in a centralized computer file of the State Department of
Health. The plaintiffs, who were patients and doctors, claimed that some people might decline necessary medication
because of their fear that the computerized data may be readily available and open to public disclosure; and that
once disclosed, it may stigmatize them as drug addicts. [80] The plaintiffs alleged that the statute invaded a
constitutionally protected zone of privacy, i.e, the individual interest in avoiding disclosure of personal matters, and
the interest in independence in making certain kinds of important decisions. The U.S. Supreme Court held that while
an individual's interest in avoiding disclosure of personal matters is an aspect of the right to privacy, the statute did
not pose a grievous threat to establish a constitutional violation. The Court found that the statute was necessary to
aid in the enforcement of laws designed to minimize the misuse of dangerous drugs. The patient-identification
requirement was a product of an orderly and rational legislative decision made upon recommendation by a
specially appointed commission which held extensive hearings on the matter. Moreover, the statute was
narrowly drawn and contained numerous safeguards against indiscriminate disclosure. The statute laid down
the procedure and requirements for the gathering, storage and retrieval of the information. It enumerated who were
authorized to access the data. It also prohibited public disclosure of the data by imposing penalties for its violation. In
view of these safeguards, the infringement of the patients' right to privacy was justified by a valid exercise of police
power. As we discussed above, A.O. No. 308 lacks these vital safeguards.

Even while we strike down A.O. No. 308, we spell out in neon that the Court is not per se against the use
of computers to accumulate, store, process, retrieve and transmit data to improve our bureaucracy.
Computers work wonders to achieve the efficiency which both government and private industry seek. Many
information systems in different countries make use of the computer to facilitate important social objectives, such as
better law enforcement, faster delivery of public services, more efficient management of credit and insurance
programs, improvement of telecommunications and streamlining of financial activities. [81] Used wisely, data stored in
the computer could help good administration by making accurate and comprehensive information for those who have
to frame policy and make key decisions.[82] The benefits of the computer has revolutionized information technology. It
developed the internet,[83]introduced the concept of cyberspace[84] and the information superhighway where the
individual, armed only with his personal computer, may surf and search all kinds and classes of information from
libraries and databases connected to the net.

In no uncertain terms, we also underscore that the right to privacy does not bar all incursions into
individual privacy. The right is not intended to stifle scientific and technological advancements that enhance
public service and the common good. It merely requires that the law be narrowly focused [85] and a compelling
interest justify such intrusions.[86] Intrusions into the right must be accompanied by proper safeguards and well-
defined standards to prevent unconstitutional invasions. We reiterate that any law or order that invades individual
privacy will be subjected by this Court to strict scrutiny. The reason for this stance was laid down in Morfe v. Mutuc,
to wit:

"The concept of limited government has always included the idea that governmental powers stop short of certain
intrusions into the personal life of the citizen. This is indeed one of the basic distinctions between absolute and limited
government. Ultimate and pervasive control of the individual, in all aspects of his life, is the hallmark of the absolute
state. In contrast, a system of limited government safeguards a private sector, which belongs to the individual, firmly
distinguishing it from the public sector, which the state can control. Protection of this private sector-- protection, in
other words, of the dignity and integrity of the individual-- has become increasingly important as modern society has
developed. All the forces of a technological age-- industrialization, urbanization, and organization-- operate to narrow
the area of privacy and facilitate intrusion 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." [87]
 IV

The right to privacy is one of the most threatened rights of man living in a mass society. The threats
emanate from various sources-- governments, journalists, employers, social scientists, etc. [88] In the case at bar, the
threat comes from the executive branch of government which by issuing A.O. No. 308 pressures the people to
surrender their privacy by giving information about themselves on the pretext that it will facilitate delivery of basic
services. Given the record-keeping power of the computer, only the indifferent will fail to perceive the danger
that A.O. No. 308 gives the government the power to compile a devastating dossier against unsuspecting
citizens. It is timely to take note of the well-worded warning of Kalvin, Jr., "the disturbing result could be that
everyone will live burdened by an unerasable record of his past and his limitations. In a way, the threat is that
because of its record-keeping, the society will have lost its benign capacity to forget." [89] Oblivious to this counsel, the
dissents still say we should not be too quick in labelling the right to privacy as a fundamental right. We close with the
statement that the right to privacy was not engraved in our Constitution for flattery.

IN VIEW WHEREOF, the petition is granted and Administrative Order No. 308 entitled "Adoption of a National
Computerized Identification Reference System" declared null and void for being unconstitutional.

Digest

Facts: Administrative Order No 308, otherwise known as “Adoption of a National Computerized Identification
Reference System” was issued by President Fidel Ramos on 12 December 1996. Senator Blas Ople filed a petition to
invalidate the said order for violating the right to privacy. He contends that the order must be invalidated on two
constitutional grounds, (1) that it is a usurpation of the power to legislate; and (2) that it intrudes the citizen’s right to
privacy.
Issue: Whether or not Senator Ople has standing to maintain suit?
Decision: Petitioner, Senator Ople is a distinguished member of the Senate. As a Senator, petitioner is possessed of
the requisite standing to bring suit raising the issue that the issue of Administrative Order No 308 is a usurpation of
legislative power. Ople’s concern that the Executive branch not to trespass on the lawmaking domain of Congress is
understandable. The blurring demarcation line between the power of legislature to make laws and the power of
executive to execute laws will disturb their delicate balance and cannot be allowed.

FREEDOM OF EXPRESSION
TELEBAP vs COMELEC
Telecommunications And Broadcast Attorneys Of The Phils. Vs. COMELEC
289 SCRA 337 G.R. No. 132922 April 21, 1998

Facts: Petitioner Telecommunications and Broadcast Attorneys of the Philippines, Inc. (TELEBAP) is an organization
of lawyers of radio and television broadcasting companies. It was declared to be without legal standing to sue in this
case as, among other reasons, it was not able to show that it was to suffer from actual or threatened injury as a result
of the subject law. Petitioner GMA Network, on the other hand, had the requisite standing to bring the constitutional
challenge. Petitioner operates radio and television broadcast stations in the Philippinesaffected by the enforcement
of Section 92, B.P. No. 881.

Petitioners challenge the validity of Section 92, B.P. No. 881 which provides:

“Comelec Time- The Commission shall procure radio and television time to be known as the “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 campaign.”

Petitioner contends that while Section 90 of the same law requires COMELEC to procure print space in newspapers
and magazines with payment, Section 92 provides that air time shall be procured by COMELEC free of charge. Thus
it contends that Section 92 singles out radio and television stations to provide free air time.
Petitioner claims that it suffered losses running to several million pesos in providing COMELEC Time in connection
with the 1992 presidential election and 1995 senatorial election and that it stands to suffer even more should it be
required to do so again this year. Petitioners claim that the primary source of revenue of the radio and television
stations is the sale of air time to advertisers and to require these stations to provide free air time is to authorize unjust
taking of private property. According to petitioners, in 1992 it lost P22,498,560.00 in providing free air time for one
hour each day and, in this year’s elections, it stands to lost P58,980,850.00 in view of COMELEC’s requirement that it
provide at least 30 minutes of prime time daily for such.

Issue:

Whether of not Section 92 of B.P. No. 881 denies radio and television broadcast companies the equal protection of
the laws.

Whether or not Section 92 of B.P. No. 881 constitutes taking of property without due process of law and without just
compensation.

Held: Petitioner’s argument is without merit. All broadcasting, whether radio or by television stations, is licensed by
the government. Airwave frequencies have to be allocated as there are more individuals who want to broadcast that
there are frequencies to assign. 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 to use them. Thus, such exercise of the privilege may reasonably be burdened with the
performance by the grantee of some form of public service. In granting the privilege to operate broadcast stations and
supervising radio and television stations, the state spends considerable public funds in licensing and supervising
them.

The argument that the subject law singles out radio and television stations to provide free air time as against
newspapers and magazines which require payment of just compensation for the print space they may provide is
likewise without merit. Regulation of the broadcast industry requires spending of public funds which it does not do in
the case of print media. To require the broadcast industry to provide free air time for COMELEC is a fair exchange
for what the industry gets.

As radio and television broadcast stations do not own the airwaves, no private property is taken by the requirement
that they provide air time to the COMELEC.

ABS-CBN BROADCASTING CORPORATION, petitioner, vs. COMMISSION ON ELECTIONS, respondent. [G.R.

No. 133486. January 28, 2000]

PANGANIBAN, J.:

The holding of exit polls and the dissemination of their results through mass media constitute an essential part of the
freedoms of speech and of the press. Hence, the Comelec cannot ban them totally in the guise of promoting clean,
honest, orderly and credible elections. Quite the contrary, exit polls -- properly conducted and publicized -- can be
vital tools in eliminating the evils of election-fixing and fraud. Narrowly tailored countermeasures may be prescribed
by the Comelec so as to minimize or suppress the incidental problems in the conduct of exit polls, without
transgressing in any manner the fundamental rights of our people.

The Case and the Facts

Before us is a Petition for Certiorari under Rule 65 of the Rules of Court assailing Commission on Elections
(Comelec) en banc Resolution No. 98-1419[1] dated April 21, 1998. In the said Resolution, the poll body

"RESOLVED to approve the issuance of a restraining order to stop ABS-CBN or any other groups,
its agents or representatives from conducting such exit survey and to authorize the Honorable
Chairman to issue the same."
The Resolution was issued by the Comelec allegedly upon "information from [a] reliable source that ABS-CBN (Lopez
Group) has prepared a project, with PR groups, to conduct radio-TV coverage of the elections x x x and to make [an]
exit survey of the x x x vote during the elections for national officials particularly for President and Vice President,
results of which shall be [broadcast] immediately."[2] The electoral body believed that such project might conflict with
the official Comelec count, as well as the unofficial quick count of the National Movement for Free Elections
(Namfrel). It also noted that it had not authorized or deputized Petitioner ABS-CBN to undertake the exit survey.

On May 9, 1998, this Court issued the Temporary Restraining Order prayed for by petitioner. We directed the
Comelec to cease and desist, until further orders, from implementing the assailed Resolution or the restraining order
issued pursuant thereto, if any. In fact, the exit polls were actually conducted and reported by media without any
difficulty or problem.

The Issues

Petitioner raises this lone issue: "Whether or not the Respondent Commission acted with grave abuse of discretion
amounting to a lack or excess of jurisdiction when it approved the issuance of a restraining order enjoining the
petitioner or any [other group], its agents or representatives from conducting exit polls during the x x x May 11
elections."[3]

In his Memorandum,[4] the solicitor general, in seeking to dismiss the Petition, brings up additional issues: (1)
mootness and (2) prematurity, because of petitioner's failure to seek a reconsideration of the assailed Comelec
Resolution.

The Court's Ruling

The Petition[5] is meritorious.

Procedural Issues: Mootness and Prematurity

The solicitor general contends that the petition is moot and academic, because the May 11, 1998 election has already
been held and done with. Allegedly, there is no longer any actual controversy before us.

The issue is not totally moot. While the assailed Resolution referred specifically to the May 11, 1998 election, its
implications on the people's fundamental freedom of expression transcend the past election. The holding of periodic
elections is a basic feature of our democratic government. By its very nature, exit polling is tied up with elections. To
set aside the resolution of the issue now will only postpone a task that could well crop up again in future elections.[6]

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

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

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

The instant Petition assails a Resolution issued by the Comelec en banc on April 21, 1998, only twenty (20) days
before the election itself. Besides, the petitioner got hold of a copy thereof only on May 4, 1998. Under the
circumstances, there was hardly enough opportunity to move for a reconsideration and to obtain a swift resolution in
time for the May 11, 1998 elections. Moreover, not only is time of the essence; the Petition involves transcendental
constitutional issues. Direct resort to this Court through a special civil action for certiorari is therefore justified.
 Main Issue: Validity of Conducting Exit Polls

An exit poll is a species of electoral survey conducted by qualified individuals or groups of individuals for the purpose
of determining the probable result of an election by confidentially asking randomly selected voters whom they have
voted for, immediately after they have officially cast their ballots. The results of the survey are announced to the
public, usually through the mass media, to give an advance overview of how, in the opinion of the polling individuals
or organizations, the electorate voted. In our electoral history, exit polls had not been resorted to until the recent May
11, 1998 elections.

In its Petition, ABS-CBN Broadcasting Corporation maintains that it is a responsible member of the mass media,
committed to report balanced election-related data, including "the exclusive results of Social Weather Station (SWS)
surveys conducted in fifteen administrative regions."

It argues that the holding of exit polls and the nationwide reporting of their results are valid exercises of the freedoms
of speech and of the press. It submits that, in precipitately and unqualifiedly restraining the holding and the reporting
of exit polls, the Comelec gravely abused its discretion and grossly violated the petitioner's constitutional rights.

Public respondent, on the other hand, vehemently denies that, in issuing the assailed Resolution, it gravely abused its
discretion. It insists that the issuance thereof was "pursuant to its constitutional and statutory powers to promote a
clean, honest, orderly and credible May 11, 1998 elections"; and "to protect, preserve and maintain the secrecy and
sanctity of the ballot." It contends that "the conduct of exit surveys might unduly confuse and influence the voters,"
and that the surveys were designed "to condition the minds of people and cause confusion as to who are the winners
and the [losers] in the election," which in turn may result in "violence and anarchy."

Public respondent further argues that "exit surveys indirectly violate the constitutional principle to preserve the
sanctity of the ballots," as the "voters are lured to reveal the contents of ballots," in violation of Section 2, Article V of
the Constitution;[12] and relevant provisions of the Omnibus Election Code. [13] It submits that the constitutionally
protected freedoms invoked by petitioner "are not immune to regulation by the State in the legitimate exercise of its
police power," such as in the present case.

The solicitor general, in support of the public respondent, adds that the exit polls pose a "clear and present danger of
destroying the credibility and integrity of the electoral process," considering that they are not supervised by any
government agency and can in general be manipulated easily. He insists that these polls would sow confusion among
the voters and would undermine the official tabulation of votes conducted by the Commission, as well as the quick
count undertaken by the Namfrel.

Admittedly, no law prohibits the holding and the reporting of exit polls. The question can thus be more narrowly
defined: May the Comelec, in the exercise of its powers, totally ban exit polls? In answering this question, we need to
review quickly our jurisprudence on the freedoms of speech and of the press.

Nature and Scope of Freedoms of Speech and of the Press

The freedom of expression is a fundamental principle of our democratic government. It "is a 'preferred' right and,
therefore, stands on a higher level than substantive economic or other liberties. x x x [T]his must be so because the
lessons of history, both political and legal, illustrate that freedom of thought and speech is the indispensable condition
of nearly every other form of freedom."[14]

Our Constitution clearly mandates that no law shall be passed abridging the freedom of speech or of the press. [15] In
the landmark case Gonzales v. Comelec,[16] this Court enunciated that at the very least, free speech and a free press
consist of the liberty to discuss publicly and truthfully any matter of public interest without prior restraint.

The freedom of expression is a means of assuring individual self-fulfillment, of attaining the truth, of securing
participation by the people in social and political decision-making, and of maintaining the balance between stability
and change.[17] It represents a profound commitment to the principle that debates on public issues should be
uninhibited, robust, and wide open.[18] It means more than the right to approve existing political beliefs or economic
arrangements, to lend support to official measures, or to take refuge in the existing climate of opinion on any matter
of public consequence. And paraphrasing the eminent justice Oliver Wendell Holmes,[19] we stress that the freedom
encompasses the thought we hate, no less than the thought we agree with.
Limitations

The realities of life in a complex society, however, preclude an absolute exercise of the freedoms of speech and of
the press. Such freedoms could not remain unfettered and unrestrained at all times and under all
circumstances.[20] They are not immune to regulation by the State in the exercise of its police power. [21] While the
liberty to think is absolute, the power to express such thought in words and deeds has limitations.

In Cabansag v. Fernandez[22] this Court had occasion to discuss two theoretical tests in determining the validity of
restrictions to such freedoms, as follows:

"These are the 'clear and present danger' rule and the 'dangerous tendency' rule. The first, as interpreted in a
number of cases, means that the evil consequence of the comment or utterance must be 'extremely serious and
the degree of imminence extremely high' before the utterance can be punished. The danger to be guarded
against is the 'substantive evil' sought to be prevented. x x x" [23]

"The 'dangerous tendency' rule, on the other hand, x x x may be epitomized as follows: If the words uttered
create a dangerous tendency which the state has a right to prevent, then such words are punishable. It is not
necessary that some definite or immediate acts of force, violence, or unlawfulness be advocated. It is sufficient
that such acts be advocated in general terms. Nor is it necessary that the language used be reasonably
calculated to incite persons to acts of force, violence, or unlawfulness. It is sufficient if the natural tendency and
probable effect of the utterance be to bring about the substantive evil which the legislative body seeks to
prevent."[24]

Unquestionably, this Court adheres to the "clear and present danger" test. It implicitly did in its earlier decisions
in Primicias v. Fugoso[25] and American Bible Society v. City of Manila;[26] as well as in later ones, Vera v.
Arca,[27] Navarro v. Villegas,[28] Imbong v. Ferrer,[29] Blo Umpar Adiong v. Comelec[30] and, more recently, in Iglesia ni
Cristo v. MTRCB.[31] In setting the standard or test for the "clear and present danger" doctrine, the Court echoed the
words of justice Holmes: "The question in every case is whether the words used are used in such circumstances and
are of such a nature as to create a clear and present danger that they will bring about the substantive evils that
Congress has a right to prevent. It is a question of proximity and degree."[32]

A limitation on the freedom of expression may be justified only by a danger of such substantive character that
the state has a right to prevent. Unlike in the "dangerous tendency" doctrine, the danger must not only be clear but
also present. "Present" refers to the time element; the danger must not only be probable but very likely to be
inevitable.[33] The evil sought to be avoided must be so substantive as to justify a clamp over one's mouth or a
restraint of a writing instrument.[34]

Justification for a Restriction

Doctrinally, the Court has always ruled in favor of the freedom of expression, and any restriction is treated an
exemption. The power to exercise prior restraint is not to be presumed; rather the presumption is against its
validity.[35] And it is respondent's burden to overthrow such presumption. Any act that restrains speech should be
greeted with furrowed brows,[36] so it has been said.

To justify a restriction, the promotion of a substantial government interest must be clearly shown.[37] Thus:

"A government regulation is sufficiently justified if it is within the constitutional power of the government, if it
furthers an important or substantial government interest; if the governmental interest is unrelated to the
suppression of free expression; and if the incidental restriction on alleged First Amendment freedoms is no
greater than is essential to the furtherance of that interest." [38]

Hence, even though the government's purposes are legitimate and substantial, they cannot be pursued by means
that broadly, stifle fundamental personal liberties, when the end can be more narrowly achieved.[39]

The freedoms of speech and of the press should all the more be upheld when what is sought to be curtailed is the
dissemination of information meant to add meaning to the equally vital right of suffrage. [40] We cannot support any
ruling or order "the effect of which would be to nullify so vital a constitutional right as free speech." [41] When faced with
borderline situations in which the freedom of a candidate or a party to speak or the freedom of the electorate to know
is invoked against actions allegedly made to assure clean and free elections, this Court shall lean in favor of freedom.
For in the ultimate analysis, the freedom of the citizen and the State's power to regulate should not be antagonistic.
There can be no free and honest elections if, in the efforts to maintain them, the freedom to speak and the right to
know are unduly curtailed.[42]

True, the government has a stake in protecting the fundamental right to vote by providing voting places that are safe
and accessible. It has the duty to secure the secrecy of the ballot and to preserve the sanctity and the integrity of the
electoral process. However, in order to justify a restriction of the people's freedoms of speech and of the press, the
state's responsibility of ensuring orderly voting must far outweigh them.

These freedoms have additional importance, because exit polls generate important research data which may be used
to study influencing factors and trends in voting behavior. An absolute prohibition would thus be unreasonably
restrictive, because it effectively prevents the use of exit poll data not only for election-day projections, but also for
long-term research.[43]

Comelec Ban on Exit Polling

In the case at bar, the Comelec justifies its assailed Resolution as having been issued pursuant to its constitutional
mandate to ensure a free, orderly, honest, credible and peaceful election. While admitting that "the conduct of an exit
poll and the broadcast of the results thereof [are] x x x an exercise of press freedom," it argues that "[p]ress freedom
may be curtailed if the exercise thereof creates a clear and present danger to the community or it has a dangerous
tendency." It then contends that "an exit poll has the tendency to sow confusion considering the randomness of
selecting interviewees, which further make[s] the exit poll highly unreliable. The probability that the results of such exit
poll may not be in harmony with the official count made by the Comelec x x x is ever present. In other words, the exit
poll has a clear and present danger of destroying the credibility and integrity of the electoral process."

Such arguments are purely speculative and clearly untenable. First, by the very nature of a survey, the interviewees
or participants are selected at random, so that the results will as much as possible be representative or reflective of
the general sentiment or view of the community or group polled. Second, the survey result is not meant to replace or
be at par with the official Comelec count. It consists merely of the opinion of the polling group as to who the electorate
in general has probably voted for, based on the limited data gathered from polled individuals. Finally, not at stake
here are the credibility and the integrity of the elections, which are exercises that are separate and independent from
the exit polls. The holding and the reporting of the results of exit polls cannot undermine those of the elections, since
the former is only part of the latter. If at all, the outcome of one can only be indicative of the other.

The Comelec's concern with the possible noncommunicative effect of exit polls -- disorder and confusion in the voting
centers -- does not justify a total ban on them. Undoubtedly, the assailed Comelec Resolution is too broad, since its
application is without qualification as to whether the polling is disruptive or not. [44] Concededly, the Omnibus Election
Code prohibits disruptive behavior around the voting centers. [45] There is no showing, however, that exit polls or the
means to interview voters cause chaos in voting centers. Neither has any evidence been presented proving that the
presence of exit poll reporters near an election precinct tends to create disorder or confuse the voters.

Moreover, the prohibition incidentally prevents the collection of exit poll data and their use for any purpose. The
valuable information and ideas that could be derived from them, based on the voters' answers to the survey questions
will forever remain unknown and unexplored. Unless the ban is restrained, candidates, researchers, social scientists
and the electorate in general would be deprived of studies on the impact of current events and of election-day and
other factors on voters' choices.

In Daily Herald Co. v. Munro,[46] the US Supreme Court held that a statute, one of the purposes of which was to
prevent the broadcasting of early returns, was unconstitutional because such purpose was impermissible, and the
statute was neither narrowly tailored to advance a state interest nor the least restrictive alternative. Furthermore,
the general interest of the State in insulating voters from outside influences is insufficient to justify speech regulation.
Just as curtailing election-day broadcasts and newspaper editorials for the reason that they might indirectly affect the
voters' choices is impermissible, so is regulating speech via an exit poll restriction. [47]

The absolute ban imposed by the Comelec cannot, therefore, be justified. It does not leave open any alternative
channel of communication to gather the type of information obtained through exit polling. On the other hand, there are
other valid and reasonable ways and means to achieve the Comelec end of avoiding or minimizing disorder and
confusion that may be brought about by exit surveys.
For instance, a specific limited area for conducting exit polls may be designated. Only professional survey groups
may be allowed to conduct the same. Pollsters may be kept at a reasonable distance from the voting center. They
may be required to explain to voters that the latter may refuse to be interviewed, and that the interview is not part of
the official balloting process. The pollsters may further be required to wear distinctive clothing that would show they
are not election officials.[48] Additionally, they may be required to undertake an information campaign on the nature of
the exercise and the results to be obtained therefrom. These measures, together with a general prohibition of
disruptive behavior, could ensure a clean, safe and orderly election.

For its part, Petitioner ABS-CBN explains its survey methodology as follows: (1) communities are randomly selected
in each province; (2) residences to be polled in such communities are also chosen at random; (3) only individuals
who have already voted, as shown by the indelible ink on their fingers, are interviewed; (4) the interviewers use no
cameras of any sort; (5) the poll results are released to the public only on the day after the elections. [49] These
precautions, together with the possible measures earlier stated, may be undertaken to abate the Comelec's fear,
without consequently and unjustifiably stilling the people's voice.

With the foregoing premises, we conclude that the interest of the state in reducing disruption is outweighed by the
drastic abridgment of the constitutionally guaranteed rights of the media and the electorate. Quite the contrary,
instead of disrupting elections, exit polls -- properly conducted and publicized -- can be vital tools for the holding of
honest, orderly, peaceful and credible elections; and for the elimination of election-fixing, fraud and other electoral ills.

Violation of Ballot Secrecy

The contention of public respondent that exit polls indirectly transgress the sanctity and the secrecy of the ballot is
off-tangent to the real issue. Petitioner does not seek access to the ballots cast by the voters. The ballot system of
voting is not at issue here.

The reason behind the principle of ballot secrecy is to avoid vote buying through voter identification. Thus, voters are
prohibited from exhibiting the contents of their official ballots to other persons, from making copies thereof, or from
putting distinguishing marks thereon so as to be identified. Also proscribed is finding out the contents of the ballots
cast by particular voters or disclosing those of disabled or illiterate voters who have been assisted. Clearly, what is
forbidden is the association of voters with their respective votes, for the purpose of assuring that the votes have been
cast in accordance with the instructions of a third party. This result cannot, however, be achieved merely through the
voters' verbal and confidential disclosure to a pollster of whom they have voted for.

In exit polls, the contents of the official ballot are not actually exposed. Furthermore, the revelation of whom an
elector has voted for is not compulsory, but voluntary. Voters may also choose not to reveal their identities. Indeed,
narrowly tailored countermeasures may be prescribed by the Comelec, so as to minimize or suppress incidental
problems in the conduct of exit polls, without transgressing the fundamental rights of our people.

WHEREFORE, the Petition is GRANTED, and the Temporary Restraining Order issued by the Court on May 9,
1998 is made PERMANENT.Assailed Minute Resolution No. 98-1419 issued by the Comelec en banc on April 21,
1998 is hereby NULLIFIED and SET ASIDE. No costs.

SOCIAL WEATHER STATIONS, INCORPORATED and KAMAHALAN PUBLISHING CORPORATION, doing

business as MANILA STANDARD, petitioners, vs. COMMISSION ON ELECTIONS, respondent. [G.R. No.
147571. May 5, 2001]
MENDOZA, J.:
Petitioner, Social Weather Stations, Inc. (SWS), is a private non-stock, non-profit social research institution
conducting surveys in various fields, including economics, politics, demography, and social development, and
thereafter processing, analyzing, and publicly reporting the results thereof.On the other hand, petitioner Kamahalan
Publishing Corporation publishes the Manila Standard, a newspaper of general circulation, which features
newsworthy items of information including election surveys.
Petitioners brought this action for prohibition to enjoin the Commission on Elections from enforcing 5.4 of R.A.
No. 9006 (Fair Election Act), which provides:
Surveys affecting national candidates shall not be published fifteen (15) days before an election and surveys affecting
local candidates shall not be published seven (7) days before an election.

The term election surveys is defined in 5.1 of the law as follows:

Election surveys refer to the measurement of opinions and perceptions of the voters as regards a candidates
popularity, qualifications, platforms or a matter of public discussion in relation to the election, including voters
preference for candidates or publicly discussed issues during the campaign period (hereafter referred to as Survey).

To implement 5.4, Resolution 3636, 24(h), dated March 1, 2001, of the COMELEC enjoins

Surveys affecting national candidates shall not be published fifteen (15) days before an election and surveys affecting
local candidates shall not be published seven (7) days before an election.

Petitioner SWS states that it wishes to conduct an election survey throughout the period of the elections both at
the national and local levels and release to the media the results of such survey as well as publish them directly.
Petitioner Kamahalan Publishing Corporation, on the other hand, states that it intends to publish election survey
results up to the last day of the elections on May 14, 2001.
Petitioners argue that the restriction on the publication of election survey results constitutes a prior restraint on
the exercise of freedom of speech without any clear and present danger to justify such restraint. They claim that SWS
and other pollsters conducted and published the results of surveys prior to the 1992, 1995, and 1998 elections up to
as close as two days before the election day without causing confusion among the voters and that there is neither
empirical nor historical evidence to support the conclusion that there is an immediate and inevitable danger to the
voting process posed by election surveys. They point out that no similar restriction is imposed on politicians from
explaining their opinion or on newspapers or broadcast media from writing and publishing articles concerning political
issues up to the day of the election. Consequently, they contend that there is no reason for ordinary voters to be
denied access to the results of election surveys which are relatively objective.
Respondent Commission on Elections justifies the restrictions in 5.4 of R.A. No. 9006 as necessary to prevent
the manipulation and corruption of the electoral process by unscrupulous and erroneous surveys just before the
election. It contends that (1) the prohibition on the publication of election survey results during the period proscribed
by law bears a rational connection to the objective of the law, i.e., the prevention of the debasement of the electoral
process resulting from manipulated surveys, bandwagon effect, and absence of reply; (2) it is narrowly tailored to
meet the evils sought to be prevented; and (3) the impairment of freedom of expression is minimal, the restriction
being limited both in duration, i.e., the last 15 days before the national election and the last 7 days before a local
election, and in scope as it does not prohibit election survey results but only require timeliness. Respondent claims
that in National Press Club v. COMELEC,[1] a total ban on political advertisements, with candidates being merely
allocated broadcast time during the so-called COMELEC space or COMELEC hour, was upheld by this Court. In
contrast, according to respondent, it states that the prohibition in 5.4 of R.A. No. 9006 is much more limited.
For reasons hereunder given, we hold that 5.4 of R.A. No. 9006 constitutes an unconstitutional abridgment of
freedom of speech, expression, and the press.
To be sure, 5.4 lays a prior restraint on freedom of speech, expression, and the press by prohibiting the
publication of election survey results affecting candidates within the prescribed periods of fifteen (15) days
immediately preceding a national election and seven (7) days before a local election. Because of the preferred status
of the constitutional rights of speech, expression, and the press, such a measure is vitiated by a weighty presumption
of invalidity.[2] Indeed, any system of prior restraints of expression comes to this Court bearing a heavy presumption
against its constitutional validity. . . . The Government thus carries a heavy burden of showing justification for the
enforcement of such restraint.[3] There is thus a reversal of the normal presumption of validity that inheres in every
legislation.
Nor may it be argued that because of Art. IX-C, 4 of the Constitution, which gives the COMELEC supervisory
power to regulate the enjoyment or utilization of franchise for the operation of media of communication, no
presumption of invalidity attaches to a measure like 5.4. For as we have pointed out in sustaining the ban on media
political advertisements, the grant of power to the COMELEC under Art. IX-C, 4 is limited to ensuring equal
opportunity, time, space, and the right to reply as well as uniform and reasonable rates of charges for the use of such
media facilities for public information campaigns and forums among candidates. [4] This Court stated:

The technical effect of Article IX (C) (4) of the Constitution may be seen to be that no presumption of invalidity arises
in respect of exercises of supervisory or regulatory authority on the part of the Comelec for the purpose of securing
equal opportunity among candidates for political office, although such supervision or regulation may result
in some limitation of the rights of free speech and free press.[5]

MR. JUSTICE KAPUNAN dissents. He rejects as inappropriate the test of clear and present danger for
determining the validity of 5.4. Indeed, as has been pointed out in Osmea v. COMELEC, [6] this test was originally
formulated for the criminal law and only later appropriated for free speech cases. Hence, while it may be useful for
determining the validity of laws dealing with inciting to sedition or incendiary speech, it may not be adequate for such
regulations as the one in question. For such a test is concerned with questions of the gravity and imminence of the
danger as basis for curtailing free speech, which is not the case of 5.4 and similar regulations.
Instead, MR. JUSTICE KAPUNAN purports to engage in a form of balancing by weighing and balancing the
circumstances to determine whether public interest [in free, orderly, honest, peaceful and credible elections] is served
by the regulation of the free enjoyment of the rights (page 7). After canvassing the reasons for the prohibition, i.e., to
prevent last-minute pressure on voters, the creation of bandwagon effect to favor candidates, misinformation, the
junking of weak and losing candidates by their parties, and the form of election cheating called dagdag-bawas and
invoking the States power to supervise media of information during the election period (pages 11-16), the dissenting
opinion simply concludes:

Viewed in the light of the legitimate and significant objectives of Section 5.4, it may be seen that its limiting impact on
the rights of free speech and of the press is not unduly repressive or unreasonable. Indeed, it is a mere restriction,
not an absolute prohibition, on the publication of election surveys. It is limited in duration; it applies only during the
period when the voters are presumably contemplating whom they should elect and when they are most susceptible to
such unwarranted persuasion. These surveys may be published thereafter. (Pages 17-18)

The dissent does not, however, show why, on balance, these considerations should outweigh the value of
freedom of expression. Instead, reliance is placed on Art. IX-C, 4. As already stated, the purpose of Art. IX-C, 4 is to
ensure equal opportunity, time, and space and the right of reply, including reasonable, equal rates therefor for public
information campaigns and forums among candidates. Hence the validity of the ban on media advertising. It is
noteworthy that R.A. No. 9006, 14 has lifted the ban and now allows candidates to advertise their candidacies in print
and broadcast media. Indeed, to sustain the ban on the publication of survey results would sanction the censorship of
all speaking by candidates in an election on the ground that the usual bombasts and hyperbolic claims made during
the campaigns can confuse voters and thus debase the electoral process.
In sum, the dissent has engaged only in a balancing at the margin. This form of ad hoc balancing predictably
results in sustaining the challenged legislation and leaves freedom of speech, expression, and the press with little
protection. For anyone who can bring a plausible justification forward can easily show a rational connection between
the statute and a legitimate governmental purpose. In contrast, the balancing of interest undertaken by then Justice
Castro in Gonzales v. COMELEC,[7] from which the dissent in this case takes its cue, was a strong one resulting in his
conclusion that 50-B of R.A. No. 4880, which limited the period of election campaign and partisan political activity,
was an unconstitutional abridgment of freedom of expression.
Nor can the ban on election surveys be justified on the ground that there are other countries 78, according to
the Solicitor General, while the dissent cites 28 which similarly impose restrictions on the publication of election
surveys. At best this survey is inconclusive. It is noteworthy that in the United States no restriction on the publication
of election survey results exists. It cannot be argued that this is because the United States is a mature
democracy. Neither are there laws imposing an embargo on survey results, even for a limited period, in other
countries. As pointed out by petitioners, the United Kingdom, Austria, Belgium, Denmark, Estonia, Finland, Iceland,
Ireland, Latvia, Malta, Macedonia, the Netherlands, Norway, Sweden, and Ukraine, some of which are no older nor
more mature than the Philippines in political development, do not restrict the publication of election survey results.
What test should then be employed to determine the constitutional validity of 5.4? The United States Supreme
Court, through Chief Justice Warren, held in United States v. OBrien:

[A] government regulation is sufficiently justified [1] if it is within the constitutional power of the Government; [2]
if it furthers an important or substantial governmental interest; [3] if the governmental interest is unrelated to the
suppression of free expression; and [4] if the incidental restriction on alleged First Amendment freedoms [of
speech, expression and press] is no greater than is essential to the furtherance of that interest. [8]

This is so far the most influential test for distinguishing content-based from content-neutral regulations and is
said to have become canonical in the review of such laws. [9] It is noteworthy that the OBrien test has been applied by
this Court in at least two cases.[10]
 Under this test, even if a law furthers an important or substantial governmental interest, it should be invalidated
if such governmental interest is not unrelated to the suppression of free expression. Moreover, even if the purpose is
unrelated to the suppression of free speech, the law should nevertheless be invalidated if the restriction on freedom
of expression is greater than is necessary to achieve the governmental purpose in question.
Our inquiry should accordingly focus on these two considerations as applied to 5.4.
First. Sec. 5.4 fails to meet criterion [3] of the OBrien test because the causal connection of expression to the
asserted governmental interest makes such interest not unrelated to the suppression of free expression. By
prohibiting the publication of election survey results because of the possibility that such publication might undermine
the integrity of the election, 5.4 actually suppresses a whole class of expression, while allowing the expression of
opinion concerning the same subject matter by newspaper columnists, radio and TV commentators, armchair
theorists, and other opinion makers. In effect, 5.4 shows a bias for a particular subject matter, if not viewpoint, by
preferring personal opinion to statistical results. The constitutional guarantee of freedom of expression means that the
government has no power to restrict expression because of its message, its ideas, its subject matter, or its
content.[11] The inhibition of speech should be upheld only if the expression falls within one of the few unprotected
categories dealt with in Chaplinsky v. New Hampshire,[12] thus:

There are certain well-defined and narrowly limited classes of speech, the prevention and punishment of which have
never been thought to raise any Constitutional problem. These include the lewd and obscene, the profane, the
libelous, and the insulting or fighting words those which by their very utterance inflict injury or tend to incite an
immediate breach of the peace. [S]uch utterances are no essential part of any exposition of ideas, and are of such
slight social value as a step to truth that any benefit that may be derived from them is clearly outweighed by the social
interest in order and morality.

Nor is there justification for the prior restraint which 5.4 lays on protected speech. In Near v. Minnesota,[13] it was
held:

[The] protection even as to previous restraint is not absolutely unlimited. But the limitation has been recognized only
in exceptional cases. . . . No one would question but that a government might prevent actual obstruction to its
recruiting service or the publication of the sailing dates of transports or the number and location of troops. On similar
grounds, the primary requirements of decency may be enforced against obscene publications. The security of the
community life may be protected against incitements to acts of violence and the overthrow by force of orderly
government . . . .

Thus, contrary to the claim of the Solicitor General, the prohibition imposed by 5.4 cannot be justified on the
ground that it is only for a limited period and is only incidental. The prohibition may be for a limited time, but the
curtailment of the right of expression is direct, absolute, and substantial. It constitutes a total suppression of a
category of speech and is not made less so because it is only for a period of fifteen (15) days immediately before a
national election and seven (7) days immediately before a local election.
This sufficiently distinguishes 5.4 from R.A. No. 6646, 11(b), which this Court found to be valid in National Press
Club v. COMELEC[14] and Osmea v. COMELEC.[15] For the ban imposed by R.A. No. 6646, 11(b) is not only
authorized by a specific constitutional provision, [16] but it also provided an alternative so that, as this Court pointed out
in Osmea, there was actually no ban but only a substitution of media advertisements by the COMELEC space and
COMELEC hour.
Second. Even if the governmental interest sought to be promoted is unrelated to the suppression of speech and
the resulting restriction of free expression is only incidental, 5.4 nonetheless fails to meet criterion [4] of
the OBrien test, namely, that the restriction be not greater than is necessary to further the governmental interest. As
already stated, 5.4 aims at the prevention of last-minute pressure on voters, the creation of bandwagon effect, junking
of weak or losing candidates, and resort to the form of election cheating called dagdag-bawas. Praiseworthy as these
aims of the regulation might be, they cannot be attained at the sacrifice of the fundamental right of expression, when
such aim can be more narrowly pursued by punishing unlawful acts, rather than speech because of apprehension
that such speech creates the danger of such evils. Thus, under the Administrative Code of 1987, [17] the COMELEC is
given the power:

To stop any illegal activity, or confiscate, tear down, and stop any unlawful, libelous, misleading or false election
propaganda, after due notice and hearing.
 This is surely a less restrictive means than the prohibition contained in 5.4. Pursuant to this power of the
COMELEC, it can confiscate bogus survey results calculated to mislead voters. Candidates can have their own
surveys conducted. No right of reply can be invoked by others. No principle of equality is involved. It is a free market
to which each candidate brings his ideas. As for the purpose of the law to prevent bandwagon effects, it is doubtful
whether the Government can deal with this natural-enough tendency of some voters. Some voters want to be
identified with the winners. Some are susceptible to the herd mentality. Can these be legitimately prohibited by
suppressing the publication of survey results which are a form of expression? It has been held that [mere] legislative
preferences or beliefs respecting matters of public convenience may well support regulation directed at other
personal activities, but be insufficient to justify such as diminishes the exercise of rights so vital to the maintenance of
democratic institutions.[18]
To summarize then, we hold that 5.4 is invalid because (1) it imposes a prior restraint on the freedom of
expression, (2) it is a direct and total suppression of a category of expression even though such suppression is only
for a limited period, and (3) the governmental interest sought to be promoted can be achieved by means other than
the suppression of freedom of expression.
On the other hand, the COMELEC contends that under Art. IX-A, 7 of the Constitution, its decisions, orders, or
resolutions may be reviewed by this Court only by certiorari. The flaws in this argument is that it assumes that its
Resolution 3636, dated March 1, 2001 is a decision, order, or resolution within the meaning of Art. IX-A, 7. Indeed,
counsel for COMELEC maintains that Resolution 3636 was rendered by the Commission.However, the Resolution
does not purport to adjudicate the right of any party. It is not an exercise by the COMELEC of its adjudicatory power
to settle the claims of parties. To the contrary, Resolution 3636 clearly states that it is promulgated to implement the
provisions of R.A. No. 9006.Hence, there is no basis for the COMELECs claim that this petition for prohibition is
inappropriate. Prohibition has been found appropriate for testing the constitutionality of various election laws, rules,
and regulations. 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.
RE: REQUEST RADIO-TV COVERAGE OF THE TRIAL IN THE SANDIGANBAYAN OF THE PLUNDER CASES
AGAINST THE FORMER PRESIDENT JOSEPH E. ESTRADA, SECRETARY OF JUSTICE HERNANDO PEREZ,
KAPISANAN NG MGA BRODKASTER NG PILIPINAS, CESAR SARINO, RENATO CAYETANO and ATTY.
RICARDO ROMULO, petitioners, vs. JOSEPH E. ESTRADA and INTEGRATED BAR OF THE
PHILIPPINES, oppositors. [A.M. No. 01-4-03-SC. June 29, 2001]

VITUG, J.:
The travails of a deposed President continue. The Sandiganbayan reels to start hearing the criminal charges
against Mr. Joseph E. Estrada. Media seeks to cover the event via live television and live radio broadcast and
endeavors this Court to allow it that kind of access to the proceedings.
On 13 March 2001, the Kapisanan ng mga Brodkaster ng Pilipinas (KBP), an association representing duly
franchised and authorized television and radio networks throughout the country, sent a letter [1] requesting this Court
to allow live media coverage of the anticipated trial of the plunder and other criminal cases filed against former
President Joseph E. Estrada before the Sandiganbayan in order "to assure the public of full ransparency in the
proceedings of an unprecedented case in our history." [2] The request was seconded by Mr. Cesar N. Sarino in his
letter of 05 April 2001 to the Chief Justice and, still later, by Senator Renato Cayetano and Attorney Ricardo Romulo.
On 17 April 2001, the Honorable Secretary of Justice Hernando Perez formally filed the instant
petition,[3] submitting the following exegesis:

"3. The foregoing criminal cases involve the previous acts of the former highest official of the land, members of his
family, his cohorts and, therefore, it cannot be over emphasized that the prosecution thereof, definitely involves a
matter of public concern and interest, or a matter over which the entire citizenry has the right to know, be informed
and made aware of.

" 4. There is no gainsaying that the constitutional right of the people to be informed on matters of public concern, as in
the instant cases, can best be recognized, served and satisfied by allowing the live radio and television coverage of
the concomitant court proceedings.

"5. Moreover, the live radio and television coverage of the proceedings will also serve the dual purpose of ensuring
the desired transparency in the administration of justice in order to disabuse the minds of the supporters of the past
regime of any and all unfounded notions, or ill-perceived attempts on the part of the present dispensation, to 'railroad'
the instant criminal cases against the Former President Joseph Ejercito Estrada."[4]
Public interest, the petition further averred, should be evident bearing in mind the right of the public to vital
information affecting the nation.
In effect, the petition seeks a re-examination of the 23rd October 1991 resolution of this Court in a case for libel
filed by then President Corazon C. Aquino. The resolution read:

"The records of the Constitutional Commission are bereft of discussion regarding the subject of cameras in the
courtroom. Similarly, Philippine courts have not had the opportunity to rule on the question squarely.

While we take notice of the September 1990 report of the United States Judicial Conference Ad Hoc Committee on
Cameras in the Courtroom, still the current rule obtaining in the Federal Courts of the United States prohibit the
presence of television cameras in criminal trials. Rule 53 of the Federal Rules of Criminal Procedure forbids the
taking of photographs during the progress of judicial proceedings or radio broadcasting of such proceedings from the
courtroom. A trial of any kind or in any court is a matter of serious importance to all concerned and should not be
treated as a means of entertainment. To so treat it deprives the court of the dignity which pertains to it and departs
from the orderly and serious quest for truth for which our judicial proceedings are formulated.

"Courts do not discriminate against radio and television media by forbidding the broadcasting or televising of a trial
while permitting the newspaper reporter access to the courtroom, since a television or news reporter has the same
privilege, as the news reporter is not permitted to bring his typewriter or printing press into the courtroom.

"In Estes vs. Texas, the United States Supreme Court held that television coverage of judicial proceedings involves
an inherent denial of the due process rights of a criminal defendant. Voting 5-4, the Court through 'Mr. Justice Clark,
identified four (4) areas of potential prejudice which might arise from the impact of the cameras on the jury,
witnesses, the trial judge and the defendant. The decision in part pertinently stated:

"'Experience likewise has established the prejudicial effect of telecasting on witnesses. Witnesses might be
frightened, play to the camera, or become nervous. They are subject to extraordinary out-of-court influences which
might affect their testimony. Also, telecasting not only increases the trial judge's responsibility to avoid actual
prejudice to the defendant, it may as well affect his own performance. Judges are human beings also and are subject
to the same psychologjcal reactions as laymen. For the defendant, telecasting is a form of mental harassment and
subjects him to excessive public exposure and distracts him from the effective presentation of his defense.

'The television camera is a powerful weapon which intentionally or inadvertently can destroy an accused and his case
in the eyes of the public.'

"Representatives of the press have no special standing to apply for a writ of mandate to compel a court to permit
them to attend a trial, since within the courtroom, a reporter's constitutional rights are no greater than those of any
other member of the public. Massive intrusion of representatives of the news media into the trial itself can so alter or
destroy the constitutionally necessary judicial atmosphere and decorum that the requirements of impartiality imposed
by due process of law are denied the defendant and a defendant in a criminal proceeding should not be forced to run
a gauntlet of reporters and photographers each time he enters or leaves the courtroom.

"Considering the prejudice it poses to the defendant's right to due process as well as to the fair and orderly
administration of justice, and considering further that the freedom of the press and the right of the people to
information may be served and satisfied by less distracting, degrading and prejudicial means, live radio and television
coverage of court proceedings shall not be allowed. Video footages of court hearings for news purposes shall be
restricted and limited to shots of the courtroom, the judicial officers, the parties and their counsel taken prior to the
commencement of official proceedings. No video shots or photographs shall be permitted during the trial proper.

"Accordingly, in order to protect the parties right to due process, to prevent the distraction of the participants in the
proceedings and in the last analysis, to avoid miscarriage of justice, the Court resolved to PROHIBIT live radio and
television coverage of court proceedings. Video footages of court hearings for news purposes shall be limited and
restricted as above indicated."

Admittedly, the press is a mighty catalyst in awakening public consciousness, and it has become an important
instrument in the quest for truth.[5]Recent history exemplifies media's invigorating presence, and its contribution to
society is quite impressive. The Court, just recently, has taken judicial notice of the enormous effect of media in
stirring public sentience during the impeachment trial, a partly judicial and partly political exercise, indeed the most -
watched program in the boob-tubes during those times, that would soon culminate in EDSA II.
The propriety of granting or denying the instant petition involve the weighing out of the constitutional guarantees
of freedom of the press and the right to public information, on the one hand, and the fundamental rights of the
accused, on the other hand, along with the constitutional power of a court to control its proceedings in ensuring a fair
and impartial trial.[6]
When these rights race against one another, jurisprudence [7] tells us that the right of the accused must be
preferred to win.
With the possibility of losing not only the precious liberty but also the very life of an accused, it behooves all to
make absolutely certain that an accused receives a verdict solely on the basis of a just and dispassionate judgment,
a verdict that would come only after the presentation of credible evidence testified to by unbiased witnesses
unswayed by any kind of pressure, whether open or subtle, in proceedings that are devoid of histrionics that might
detract from its basic aim to ferret veritable facts free from improper influence,[8] and decreed by a judge with an
unprejudiced mind, unbridled by running emotions or passions.
Due process guarantees the accused a presumption of innocence until the contrary is proved in a trial that is not
lifted above its individual settings nor made an object of public's attention [9] and where the conclusions reached are
induced not by any outside force or influence [10] but only by evidence and argument given in open court, where fitting
dignity and calm ambiance is demanded.
Witnesses and judges may very well be men and women of fortitude, able to thrive in hardy climate, with every
reason to presume firmness of mind and resolute endurance, but it must also be conceded that "television can work
profound changes in the behavior of the people it focuses on." [11]Even while it may be difficult to quantify the
influence, or pressure that media can bring to bear on them directly and through the shaping of public opinion, it is a
fact, nonetheless, that, indeed, it does so in so many ways and in varying degrees. The conscious or unconscious
effect that such coverage may have on the testimony of witnesses and the decision of judges cannot be evaluated
but, it can likewise be said, it is not at all unlikely for a vote of guilt or innocence to yield to it. [12] It might be farcical to
build around them an impregnable armor against the influence of the most powerful media of public opinion. [13]
To say that actual prejudice should first be present would leave to near nirvana the subtle threats to justice that
a disturbance of the mind so indispensable to the calm and deliberate dispensation of justice can create. [14] The effect
of television may escape the ordinary means of proof, but it is not far-fetched for it to gradually erode our basal
conception of a trial such as we know it now.[15]
An accused has a right to a public trial but it is a right that belongs to him, more than anyone else, where his life
or liberty can be held critically in balance. A public trial aims to ensure that he is fairly dealt with and would not be
unjustly condemned and that his rights are not compromised in secrete conclaves of long ago. A public trial is not
synonymous with publicized trial; it only implies that the court doors must be open to those who wish to come, sit in
the available seats, conduct themselves with decorum and observe the trial process. In the constitutional sense, a
courtroom should have enough facilities for a reasonable number of the public to observe the proceedings, not too
small as to render the openness negligible and not too large as to distract the trial participants from their proper
functions, who shall then be totally free to report what they have observed during the proceedings. [16]
The courts recognize the constitutionally embodied freedom of the press and the right to public information. It
also approves of media's exalted power to provide the most accurate and comprehensive means of conveying the
proceedings to the public and in acquainting the public with the judicial process in action; nevertheless, within the
courthouse, the overriding consideration is still the paramount right of the accused to due process[17] which must
never be allowed to suffer diminution in its constitutional proportions. Justice Clark thusly pronounced, "while a
maximum freedom must be allowed the press in carrying out the important function of informing the public in a
democratic society, its exercise must necessarily be subject to the maintenance of absolute fairness in the judicial
process."[18]
This Court, in the instance[19] already mentioned, citing Estes vs. Texas,[20] the United States Supreme Court
holding the television coverage of judicial proceedings as an inherent denial of due process rights of an accused, also
identified the following as being likely prejudices:

"1. The potential impact of television x x x is perhaps of the greatest significance. x x x. From the moment the trial
judge announces that a case will be televised it becomes a cause celebre. The whole community, x x x becomes
interested in all the morbid details surrounding it. The approaching trial immediately assumes an important status in
the public press and the accused is highly publicized along with the offense with which he is charged. Every juror
carries with him into the jury box these solemn facts and thus increases the chance of prejudice that is present in
every criminal case. x x x

"2. The quality of the testimony in criminal trials will often be impaired. The impact upon a witness of the knowledge
that he is being viewed by a vast audience is simply incalculable. Some may be demoralized and frightened, some
cocky and given to overstatement; memories may falter, as with anyone speaking publicly, and accuracy of statement
may be severely undermined. x x x. Indeed, the mere fact that the trial is to be televised might render witnesses
reluctant to appear and thereby impede the trial as well as the discovery of the truth.

"3. A major aspect of the problem is the additional responsibilities the presence of television places on the trial
judge. His job is to make certain that the accused receives a fair trial. This most difficult task requires his undivided
attention. x x x

4. Finally, we cannot ignore the impact of courtroom television on the defendant. Its presence is a form of mental - if
not physical-harassment, resembling a police line-up or the third degree. The inevitable close-up of his gestures and
expressions during the ordeal of his trial might well transgress his personal sensibilities, his dignity, and his ability to
concentrate on the proceedings before him - sometimes the difference between life and death - dispassionately,
freely and without the distraction of wide public surveillance. A defendant on trial for a specific crime is entitled to his
day in court, not in a stadium, or a city or nationwide arena. The heightened public clamor resulting from radio and
television coverage will inevitably result in prejudice."

In his concurring opinion in Estes, Mr. Justice Harlan opined that live television and radio coverage could have
mischievous potentialities for intruding upon the detached atmosphere that should always surround the judicial
process.[21]
The Integrated Bar of the Philippines, in its Resolution of 16 April 2001, expressed its own concern on the live
television and radio coverage of the criminal trials of Mr. Estrada; to paraphrase: Live television and radio coverage
can negate the rule on exclusion of witnesses during the hearings intended to assure a fair trial; at stake in the
criminal trial is not only the life and liberty of the accused but the very credibility of the Philippine criminal justice
system, and live television and radio coverage of the trial could allow the "hooting throng" to arrogate unto
themselves the task of judging the guilt of the accused, such that the verdict of the court will be acceptable only if
popular; and live television and radio coverage of the trial will not subserve the ends of justice but will only pander to
the desire for publicity of a few grandstanding lawyers.
It may not be unlikely, if the minority position were to be adopted, to see protracted delays in the prosecution of
cases before trial courts brought about by petitions seeking a declaration of mistrial on account of undue publicity and
assailing a court a quo's action either allowing or disallowing live media coverage of the court proceedings because of
supposed abuse of discretion on the part of the judge.
En passant, the minority would view the ponencia as having modified the case law on the matter. Just to the
contrary, the Court effectively reiterated its standing resolution of 23 October 1991. Until 1991, the Court had yet to
establish the case law on the matter, and when it did in its 23 rdOctober resolution, it confirmed, in disallowing live
television and radio coverage of court proceedings, that "the records of the Constitutional Commission (were) bereft
of discussion regarding the subject of cameras in the courtroom" and that "Philippine courts (had) not (theretofore)
had the opportunity to rule on the question squarely."
But were the cases decided by the U.S. courts and cited in the minority opinion really in point?
In Nebraska Press Association vs. Stewart,[22] the Nebraska State trial judge issued an order restraining
news media from publishing accounts of confession or admissions made by the accused or facts strongly implicating
him. The order was struck down. In Richmond Newspaper, Inc., vs. Virginia,[23] the trial judge closed the courtroom
to the public and all participants except witnesses when they testify. The judge was reversed by the U.S. Supreme
Court which ruled that criminal trials were historically open. In Globe Newspaper vs. Superior Court,[24] the US
Supreme Court voided a Massachusetts law that required trial judges to exclude the press and the public from the
courtroom during the testimony of a minor victim of certain sexual offenses.
Justice Stewart, in Chandler vs. Florida,[25] where two police officers charged with burglary sought to overturn
their conviction before the US Supreme Court upon the ground that the television coverage had infringed their right to
fair trial, explained that "the constitutional violation perceived by the Estes Court did not stem from the physical
disruption that might one day disappear with technological advances in the television equipment but inhered, rather,
in the hypothesis that the mere presence of cameras and recording devices might have an effect on the trial
participants prejudicial to the accused."[26]
 Parenthetically, the United States Supreme Court and other federal courts do not allow live television and radio
coverage of their proceedings.
The sad reality is that the criminal cases presently involved are of great dimensions so involving as they do a
former President of the Republic. It is undeniable that these cases have twice become the nation's focal points in the
two conflicting phenomena of EDSA II and EDSA III where the magnitude of the events has left a still divided
nation. Must these events be invited anew and risk the relative stability that has thus far been achieved? The
transcendental events in our midst do not allow us to, turn a blind eye to yet another possible extraordinary case of
mass action being allowed to now creep into even the business of the courts in the dispensation of justice under a
rule of law. At the very least, a change in the standing rule of the court contained in its resolution of 23 October 1991
may not appear to be propitious.
Unlike other government offices, courts do not express the popular will of the people in any sense which,
instead, are tasked to only adjudicate justiciable controversies on the basis of what alone is submitted before
them.[27] A trial is not a free trade of ideas. Nor is a competing market of thoughts the known test truth in a
courtroom.[28]
The Court is not all that unmindful of recent technological and scientific advances but to chance forthwith the life
or liberty of any person in a hasty to bid to use and apply them, even before ample safety nets are provided and the
concerns heretofore expressed are aptly addressed, is a price too high to pay. WHEREFORE, the petition is
DENIED.
NEWSOUNDS BROADCASTING NETWORK INC. and CONSOLIDATED BROADCASTING SYSTEM, INC.,
Petitioners,
vs.HON. CEASAR G. DY, FELICISIMO G. MEER, BAGNOS MAXIMO, RACMA FERNANDEZ-GARCIA and THE
CITY OF CAUAYAN, Respondents. G.R. Nos. 170270 & 179411 April 2, 2009

Facts:

Petitioners operate and run Bombo Radyo DZNC Cauayan (DZNC), an AM radio broadcast station, and Star FM
DWIT Cauayan, an FM radio broadcast station, in Cauayan Citry, Isabela. Back in 1996, Newsounds commenced
relocation of its broadcasting station, management office, and transmitters on propery located in Minante 2, Cauayan
City, Isabela.

On July 1996, the Housing & Land Use Regulatory Board (HLURB) and Office of the Municipal Planning and
Development Coordinator (OMPDC) affirmed and certified that the commercial structure to be constructed conformed
to local zoning regulations, noting as well that the location is classified as a “commercial area”. The radio station was
able to fully operate smoothly thereafter.

In 2002 however, when petitioners applied for a renewal of mayor’s permit, City Zoning Administratior-Designate
Bagnos Maximo refused to issue zoning clearance on the grounds that petitioners were not able to submit conversion
papers showing that the agricultural land was converted to commercial land. Petitioners asked the court to compel
the issuance of mayor’s permit but the court denied the action. In the meantime, the Department of Agrarian Reform
(DAR) Region II office issued to petitioners a formal recognition of conversion of the property from agricultural to
commercial.

In 2003, petitioners again filed their application for renewal of mayor’s permit, attaching the DAR Order. Respondent
Felicisimo Meer, acting City Administrator of Cauayan City denied the same, claiming that it was void on the grounds
that they did not have record of the DAR Order.

The deadline lapsed on Febuary 15, 2004, and respondents Meer and Racma Fernandez-Garcia, City Legal Officer
of Cauayan City, closed the radio station. Due to the prvosion of Omnibus Election Code which prohibits the closure
of radio station during the pendency of election period, COMELEC issued an order allowing the petitioners to operate
before Febuary 17, 2004, but was barred again by respondent Mayor Ceasar Dy on the grounds that the radio station
had no permit. Nonetheless, COMELEC allowed them to run again until June 10, 2004 after elections.

Petitioners filed the case to the RTC and CA for the issuance of mayor’s permit but both courts denied the petition.

A municipal or city mayor is likewise authorized under the LGC to issue licenses and permits, and suspend or revoke
the same for any violation of the conditions upon which said licenses or permits had been issued, pursuant to law or
ordinance. In case of Cauayan City, the authority to require a mayor’s permit was enacted through Ordinance No. 92-
004, enacted in 1993. However, nothing in the ordinance requires an application for a mayor’s permit to submit “either
an approved land conversion papers from DAR, showing that its property was converted from prime agricultural land
or an approved resolution from the Sangguniang Bayan or Sangguniang Panglungsod authorizing the reclassification
of property from agricultural to commercial land.

In 1996, the HLURB issued a zoning decision that classified the property as commercial. Petitioners are also armed
with several certifications stating that the property is indeed a commercial area. Also, petitioners paid real property
taxes based on the classification of property as commercial without objections raised by the respondents.

Petitioners argued that this consistent recognition by the local government of Cauayan of the commercial character of
the property constitutes estoppels against respondents from denying the fact before the courts. The lower courts had
ruled that “the government of Cauayan City is not bound by estoppels, but petitioners classified that this concept is
understood to only refer to acts and mistakes of its official especially to those which are irregular.

Issue:

Whether the lower court is correct in contending that the government of Cauayan City is not bound by estoppels on
the grounds that the state is immune against suits.

Held:

No. While it is true that the state cannot be put in estoppels by mistake or error of its officials or agents, there is an
exception.

Estoppels against the public are little favored. They should not be invoked except in rare and unusual circumstances,
and may not be invoked where they would operate to defeat the effective operation of a policy adopted to protect the
public. They must be applied with circumspection and should be applied only in those special cases where the
interests of justice clearly require it. Nevertheless, the government must not be allowed to deal dishonorably or
capriciously with its citizens, and must not play an ignoble part or do a shabby thing; and subject to limitations . . ., the
doctrine of equitable estoppel may be invoked against public authorities as well as against private individuals

Thus, when there is no convincing evidence to prove irregularity or negligence on the part of the government official
whose acts are being disowned other than the bare assertion on the part of the State, the Supreme Court have
declined to apply State immunity from estoppel. Herein, there is absolutely no evidence other than the bare
assertions of the respondents that the Cauayan City government had previously erred when it certified that the
property had been zoned for commercial use. The absence of any evidence other than bare assertions that the 1996
to 2001 certifications were incorrect lead to the ineluctable conclusion that respondents are estopped from asserting
that the previous recognition of the property as commercial was wrong.

Respondents were further estopped from disclaiming the previous consistent recognition by the Cauayan City
government that the property was commercially zoned unless they had evidence, which they had none, that the local
officials who issued such certifications acted irregularly in doing so. It is thus evident that respondents had no valid
cause at all to even require petitioners to secure “approved land conversion papers from the DAR showing that the
property was converted from prime agricultural land to commercial land.”

Respondents closure of petitioner’s radio stations is clearly tainted with ill motvies. Petitioners have been aggressive
in exposing the widespread election irregularities in Isabela that appear to have favored respondent Dy and his
political dynasty. Such statement manifests and confirms that respondent’s denial of the renewal applications on the
ground that property is commercial and merely a pretext, and their real agenda is to remove petitioners from Cauayan
City and suppress the latter’s voice. This is a blatant violation of constitutional right to press freedom.

WHEREFORE, the petitions are GRANTED. The assailed decisions of the Court of Appeals and the Regional Trial
Court of Cauayan City, Branch 24, are hereby REVERSED and SET ASIDE. The instant petition for mandamus is
hereby GRANTED and respondents are directed to immediately issue petitioners’ zoning clearances and mayor’s
permits for 2004 to petitioners.

HECTOR C. VILLANUEVA VS. PDI, MARCH 15, 2010

QUISUMBING, J.:

This petition for review on certiorari assails the Amended Decision [1] dated May 25, 2004 of the Court of
Appeals in CA-G.R. CV No. 54134, reversing the Decision[2] of the Regional Trial Court (RTC) of Negros
Oriental, Dumaguete City, Branch 44 in Civil Case No. 206-B, which had awarded damages to petitioner for
respondents false reporting.

The basic facts in this case are uncomplicated. Petitioner was one of the mayoralty candidates in Bais,
Negros Oriental during the May 11, 1992 elections. On March 30, 1990, Ricardo Nolan, another mayoralty candidate,
petitioned for the disqualification of petitioner from running in the elections. Said petition, however, was denied by the
COMELEC.[3]Two days before the elections, or on May 9, 1992, respondent Manila Daily Bulletin Publishing
Corporation (Manila Bulletin) published the following story:

The Comelec has disqualified Hector G. Villanueva as Lakas-NUCD candidate for

mayor of Bais City for having been convicted in three administrative cases for grave abuse of
authority and harassment in 1987, while he was officer-in-charge of the mayors office
of Bais City.[4] [Emphasis and underscoring supplied.]

A day before the elections or on May 10, 1992, respondent Philippine Daily Inquirer, Inc. (PDI) also came
out with a similar story, to wit:

The Commission on Elections disqualified Hector G. Villanueva as Lakas-NUCD

candidate for mayor of Bais City for having been convicted in three administrative cases for
grave abuse of authority and harassment in 1987, while he was the officer-in-charge of the
mayors office in the city.

The Comelec upheld the recommendation of the Comelec office in Bais City, stressing
that Villanuevas conviction in the administrative cases barred him from seeking any elective office.

The Comelec cited Section 40 of the Local Government Code of 1991, which provides that
among those who are disqualified from running for any elective position are those removed from
office as a result of an administrative case.

Villanueva was appointed Bais City OIC on April 18, 1986 by then Local Government
Minister Aquilino Pimentel. Sometime during the same year, three administrative cases were
instituted against Villanueva before the Department of Local Government upon complaint of
Rebecco V. Fernandez and Dr. Harte C. Fuentes.

Sometime in May 1987, the ministry found Villanueva guilty as charged and ordered him
removed from his position as OIC of the city government, which decision was approved by Minister
Jaime Ferrer.

In the same month, Francisco G. Villanueva was appointed OIC Mayor to replace Hector
Villanueva who had been removed from office.

The poll body also stated that insofar as the penalty of the removal is concerned, this
cannot be reversed anymore, and consequently cannot be the subject matter of an appeal.

The indefinite term as OIC to which respondent was appointed in 1986 already lapsed,
with the holding of the 1988 local elections and the assumption of office of those elected
therein.[5] [Emphasis and underscoring supplied.]
 On May 11, 1992, the national and local elections were held as scheduled. When results came out, it turned
out that petitioner failed in his mayoralty bid.

Believing that his defeat was caused by the publication of the above-quoted stories, petitioner sued
respondents PDI and Manila Bulletin as well as their publishers and editors for damages before the RTC of Bais
City. He alleged that the articles were maliciously timed to defeat him. He claimed he should have won by landslide,
but his supporters reportedly believed the news items distributed by his rivals and voted for other candidates. He
asked for actual damages of P270,000 for the amount he spent for the campaign, moral damages of P10,000,000, an
unspecified amount of exemplary damages, attorneys fees of P300,000 and costs of suit.[6] Respondents disclaimed
liability. They asserted that no malice can be attributed to them as they did not know petitioner and had no interest in
the outcome of the election, stressing that the stories were privileged in nature. [7]

According to Manila Bulletin reporter Edgardo T. Suarez, he got the story during a COMELEC
commissioners press briefing. He, however, came in late and only a fellow reporter told him that the disqualification
case against petitioner was granted. He did not bother to get a confirmation from anyone as he had a deadline to
beat.[8]

PDI political section editor Carlos Hidalgo, on the other hand, said that he got the story from a press
release. He claimed that he found the press release on his desk the day Manila Bulletin published the same
story. The press release bore COMELECs letterhead and was signed by one Sonia Dimasupil, a
former Malaya newspaper editor who was in-charge of COMELEC press releases. He tried to contact her but she
was out of the office. Since the news item was also published in the Manila Bulletin, he felt confident the press
release was authentic. He however failed to produce the press release in court.[9] On April 18, 1996, the trial court
rendered a decision in favor of petitioner as follows:

WHEREFORE FOREGOING CONSIDERED, this Court holds that defendants Philippine

Daily Inquirer, [Inc.] and Manila[Daily] Bulletin Publishing Corporation with their respective officers
are liable [for] damages to plaintiff in the following manner:

1. As moral damages, the Philippine Daily Inquirer, [Inc.] and the Manila [Daily]
Bulletin Publishing Corporation are ordered to pay P1,000,000.00 each to plaintiff;

2. Both defendants are likewise ordered to pay an exemplary damage in the

amount of P500,000.00 each;

3. To pay plaintiffs attorneys fees in the amount of P100,000.00;

4. And to pay the costs.

SO ORDERED.[10]

The trial court found the news items derogatory and injurious to petitioners reputation and candidacy. It
faulted respondents for failing to verify the truth of the news tips they published and held respondents liable for
negligence, citing Policarpio v. Manila Times Pub. Co., Inc.[11] The trial court also ruled that because the news items
lacked truth and fairness, they were not privileged communications. On appeal by respondents, the Court of Appeals
dismissed the complaint. It explained that although the stories were false and not privileged, as there is no proof they
were obtained from a press conference or release, respondents were not impelled by malice or improper
motive. There was also no proof that petitioners supporters junked him due to the reports. Neither was there any
proof he would win, making his action unfounded. Before us, petitioner raises the lone issue of whether:
 [THE] HONORABLE APPELLATE COURT COMMITTED GRAVE ABUSE OF DISCRETION
AMOUNTING TO UTTER LACK OF JURISDICTION WHEN IT UNILATERALLY, UNPROCEDURALLY
AND ARBITRARILY CHANGED THE PLEADING-BORNE AND PRE-TRIAL ORDER DELINEATED
THEORY OF QUASI-DELICT OF APPELLEE, THEREBY DISMISSING THE CASE FOR FAILURE TO
EVIDENCE AN ESSENTIAL REQUISITE OF ITS IMPOSED IRRELEVANT THEORY.[12]

Simply stated, we are asked to resolve the issue of whether petitioner is required to prove malice to be entitled to
damages.

Petitioner argues that his cause of action is based on quasi-delict which only requires proof of fault or negligence, not
proof of malice beyond reasonable doubt as required in a criminal prosecution for libel. He argues that the case is
entirely different and separate from an independent civil action arising from libel under Article 100[13] of the Revised
Penal Code. He claims he proffered proofs sustaining his claim for damages under quasi-delict, not under the law on
libel, as malice is hard to prove. He stresses that nowhere in the complaint did he mention libel, and nothing in his
complaint shows that his cause of action had some shade of libel as defined in the Revised Penal Code. He also did
not hint a resort to a criminal proceeding for libel.[14]

PDI and its officers argue that petitioners complaint clearly lays a cause of action arising from libel as it highlights
malice underlying the publications. And as malice is an element of libel, the appellate court committed no error in
characterizing the case as one arising from libel.[15]

For their part, Manila Bulletin and its officers claim that petitioner changed his theory, which must be disallowed as it
violates respondents right to due process. Although petitioners claim for damages before the trial court hinged on the
erroneous publications, which he alleged were maliciously timed, he claims in his petition before this Court that his
cause of action is actually one for quasi-delict or tort. They stress that the prayer and allegations in petitioners
complaint, which never alleged quasi-delict or tort but malicious publication as basis for the claim for damages,
control his case theory. Thus, it may not be altered unless there was an amendment of the complaint to change the
cause of action. They claim that petitioners initiatory pleading and the trial courts pre-trial order and decision reveal
that his cause of action for damages arose from the publications of the malicious articles; hence, he should have
proved actual malice to be entitled to any award of damages. They added that the appellate court correctly ruled that
the articles were not published with actual malice.[16] We rule in favor of the respondents.

Basic is the rule that what determines the nature of an action as well as which court has jurisdiction over it are
the allegations of the complaint and the character of the relief sought.[17] The nature of a pleading is determined by
allegations therein made in good faith, the stage of the proceeding at which it is filed, and the primary objective of the
party filing the same. The ground chosen or the rationale adopted by the court in resolving the case does not
determine or change the real nature thereof.

The complaint was denominated as one for damages, and a perusal of its content reveals that the factual
allegations constituted a complaint for damages based on malicious publication. It specifically pointed out that
petitioner lost the election because of the bad publicity created by the malicious publication of respondents PDI and
Manila Bulletin. It is alleged numerous times that the action for damages stemmed from respondents malicious
publication. Petitioner sought that respondents be declared guilty of irresponsible and malicious publication and be
made liable for damages. The fact that petitioner later on changed his theory to quasi-delict does not change the
nature of petitioners complaint and convert petitioners action into quasi-delict. The complaint remains to be one for
damages based on malicious publication.

Consequently, as the issue of malice was raised, it was incumbent on petitioner to prove the same. The
basic rule is that mere allegation is not evidence, and is not equivalent to proof. [18] As correctly stated by the Court
of Appeals, while the questioned news item was found to be untrue, this does not necessarily render the same
malicious.

To fully appreciate the import of the complaint alleging malice and damages, we must recall the essence
of libel.

Libel is defined as a public and malicious imputation of a crime, or of a vice or defect, real or imaginary, or
any act, omission, condition, status, or circumstance tending to cause the dishonor, discredit, or contempt of a natural
person or juridical person, or to blacken the memory of one who is dead. [19] Any of these imputations is defamatory
and under the general rule stated in Article 354 of the Revised Penal Code, every defamatory imputation is presumed
to be malicious.[20] The presumption of malice, however, does not exist in the following instances:
1. A private communication made by any person to another in the performance of any
legal, moral, or social duty; and
2. A fair and true report, made in good faith, without any comments or remarks, of any
judicial, legislative, or other official proceedings which are not of confidential nature, or of any
statement, report, or speech delivered in said proceedings, or of any other act performed by public
officers in the exercise of their functions.[21]

We note that the publications or articles in question are neither private communications nor true reports of
official proceedings without any comments or remarks. However, this does not necessarily mean that the questioned
articles are not privileged. The enumeration under Art. 354 is not an exclusive list of qualified privileged
communications since fair commentaries on matters of public interest are likewise privileged and constitute
a valid defense in an action for libel or slander.[22] The rule on privileged communication had its genesis not in the
nations penal code but in the Bill of Rights of the Constitution guaranteeing freedom of speech and of the press. As
early as 1918, in United States v. Caete,[23] this Court ruled that publications which are privileged for reasons of
public policy are protected by the constitutional guaranty of freedom of speech. [24]

In the instant case, there is no denying that the questioned articles dealt with matters of public
interest. These are matters about which the public has the right to be informed, taking into account the very public
character of the election itself. For this reason, they attracted media mileage and drew public attention not only to the
election itself but to the candidates. As one of the candidates, petitioner consequently assumed the status of a public
figure within the purview of Ayers Productions Pty. Ltd. v. Capulong.[25]

But even assuming a person would not qualify as a public figure, it would not necessarily follow that he could
not validly be the subject of a public comment. For he could; for instance, if and when he would be involved in a
public issue. If a matter is a subject of public or general interest, it cannot suddenly become less so merely because a
private individual is involved or because in some sense the individual did not voluntarily choose to become
involved. The publics primary interest is in the event; the public focus is on the conduct of the participant and
the content, effect and significance of the conduct, not the participants prior anonymity or notoriety.[26]

In any event, having been OIC-Mayor of Bais City after the People Power Revolution, petitioner in this case
as early as 1992 was already a well-known official and public figure.

However, it must be stressed that the fact that a communication or publication is privileged does not mean
that it is not actionable; the privileged character simply does away with the presumption of malice, which the plaintiff
has to prove in such a case.[27] That proof in a civil case must of course be based on preponderance of
evidence. This, however, petitioner failed to do in this case.

Under the current state of our jurisprudence, to be considered malicious, the libelous statement must be
shown to have been written or published with the knowledge that they are false or in reckless disregard of whether
they are false or not.Reckless disregard of what is false or not means that the author or publisher entertains serious
doubt as to the truth of the publication, or that he possesses a high degree of awareness of their probable falsity.[28]

In the instant case, we find no conclusive showing that the published articles in question were written with
knowledge that these were false or in reckless disregard of what was false or not. According to Manila Bulletin
reporter Edgardo T. Suarez, he got the story from a fellow reporter who told him that the disqualification case against
petitioner was granted. PDI, on the other hand, said that they got the story from a press release the very same day
the Manila Bulletin published the same story. PDI claims that the press release bore COMELECs letterhead, signed
by one Sonia Dimasupil, who was in-charge of COMELEC press releases. They also tried to contact her but she was
out of the office. Since the news item was already published in the Manila Bulletin, they felt confident the press
release was authentic. Following the narration of events narrated by respondents, it cannot be said that the
publications, were published with reckless disregard of what is false or not.

Nevertheless, even assuming that the contents of the articles turned out to be false, mere error, inaccuracy
or even falsity alone does not prove actual malice. Errors or misstatements are inevitable in any scheme of truly free
expression and debate.Consistent with good faith and reasonable care, the press should not be held to account, to a
point of suppression, for honest mistakes or imperfections in the choice of language. There must be some room for
misstatement of fact as well as for misjudgment. Only by giving them much leeway and tolerance can they
courageously and effectively function as critical agencies in our democracy. [29] A newspaper, especially one national
in reach and coverage, should be free to report on events and developments in which the public has a legitimate
interest with minimum fear of being hauled to court by one group or another on criminal or civil charges for malice or
damages, i.e. libel, so long as the newspaper respects and keeps within the standards of morality and civility
prevailing within the general community.[30]

Likewise, in our view respondents failure to counter-check their report or present their informant should not
be a reason to hold them liable. While substantiation of the facts supplied is an important reporting standard, still, a
reporter may rely on information given by a lone source although it reflects only one side of the story provided the
reporter does not entertain a high degree of awareness of [its] probable falsity. [31] Petitioner, in this case, presented
no proof that respondents entertained such awareness. Failure to present respondents informant before the court
should not be taken against them.[32] Worth stressing, jurisprudence instructs us that a privileged communication
should not be subjected to microscopic examination to discover grounds for malice or falsity. Such excessive scrutiny
would defeat the protection which the law throws over privileged communications. The ultimate test is that of bona
fides.[33]

Further, worthy of note, before the filing of the complaint, respondents herein received no word of protest,
exception or objection from petitioner. Had the error in the news reports in question been pointed out by interested
parties to the respondents, their publishers and editors could have promptly made a rectification through print and
broadcast media just before and during the election day deflecting thereby any prejudice to petitioners political or
personal interest.

As aptly observed in Quisumbing v. Lopez, et al.:[34]

Every citizen of course has the right to enjoy a good name and reputation, but we do not
consider that the respondents, under the circumstances of this case, had violated said right or
abused the freedom of the press. The newspapers should be given such leeway and
tolerance as to enable them to courageously and effectively perform their important role
in our democracy. In the preparation of stories, press reporters and edition usually have to
race with their deadlines; and consistently with good faith and reasonable care, they should
not be held to account, to a point of suppression, for honest mistakes or imperfection in
the choice of words. [35] [Emphasis supplied.]
 We find respondents entitled to the protection of the rules concerning qualified privilege, growing out of
constitutional guaranties in our Bill of Rights. We cannot punish journalists including publishers for an honest
endeavor to serve the public when moved by a sense of civic duty and prodded by their sense of responsibility as
news media to report what they perceived to be a genuine report.

Media men are always reminded of their responsibilities as such. This time, there is also a need to remind
public figures of the consequences of being one. Fittingly, as held in Time, Inc. v. Hill,[36] one of the costs associated
with participation in public affairs is an attendant loss of privacy.

Exposure of the self to others in varying degrees is a concomitant of life in a civilized

community. The risk of this exposure is an essential incident of life in a society which places a
primary value on freedom of speech and of press. Freedom of discussion, if it would fulfill its
historic function in this nation, must embrace all issues about which information is needed or
appropriate to enable the members of society to cope with the exigencies of their period. [37]

On petitioners claim for damages, we find no evidence to support their award. Indeed, it cannot be said that
respondents published the questioned articles for the sole purpose of harassing petitioner. Proof and motive that the
publication was prompted by a sinister design to vex and humiliate petitioner has not been clearly and preponderantly
established to entitle the petitioner to damages. There remains unfulfilled the need to prove that the publications were
made with actual malice that is, with the knowledge of the publications falsity or with reckless disregard of whether
they were false or not.[38]

Thus, from American jurisprudence as amplified in Lopez v. Court of Appeals:

For liability to arise then without offending press freedom, there is this test to meet: "The
constitutional guarantees require, we think, a federal rule that prohibits a public official from
recovering damages for a defamatory falsehood relating to his official conduct unless he proves
that the statement was made with actual malice that is, with knowledge that it was false or with
reckless disregard of whether it was false or not." The United States Supreme Court went
further in Curtis Publishing Co. v. Butts,[39] where such immunity, was held as covering
statements concerning public figures regardless of whether or not they are government
officials. Why there should be such an extension is understandable in the light of the broad
scope enjoyed by press freedom which certainly allows a full and free discussion of public
issues. What can be more logical and appropriate, then, than such an expansion of the principle.
As noted by a commentator: Since discussion of public issues cannot be meaningful without
reference to the men involved on both sides of such issues, and since such men will not
necessarily be public officials, one cannot but agree that the Court was right in Curtis to
extend the Times[40] rule to all public figures.[41] [Emphasis supplied.]

Furthermore, the guarantee of press freedom has also come to ensure that claims for damages arising from
the utilization of the freedom be not unreasonable or exorbitant as to practically cause a chilling effect on the exercise
thereof. Damages, in our view, could not simply arise from an inaccurate or false statement without irrefutable proof
of actual malice as element of the assailed publication. WHEREFORE, the assailed Amended Decision dated May
25, 2004 of the Court of Appeals in CA-G.R. CV No. 54134 is AFFIRMED.

GOVERNMENT SERVICE INSURANCE SYSTEM (GSIS) and WINSTON F. GARCIA, in his capacity as
PRESIDENT and GENERAL MANAGER of the GSIS, Petitioners,
vs. DINNAH VILLAVIZA, ELIZABETH DUQUE, ADRONICO A. ECHAVEZ, RODEL RUBIO, ROWENA THERESE
B. GRACIA, PILAR LAYCO, and ANTONIO JOSE LEGARDA, Respondents. G.R. No. 180291, July 27, 2010
FACTS:
Petitioner Winston Garcia (PGM Garcia), as President and General Manager of the GSIS, filed separate formal
charges against respondents Dinnah Villaviza, Elizabeth Duque, Adronico A. Echavez, Rodel Rubio, Rowena
Therese B. Gracia, Pilar Layco, and Antonio Jose Legarda for Grave Misconduct and/or Conduct Prejudicial to the
Best Interest of the Service pursuant to the Rules of Procedure in Administrative Investigation (RPAI) of GSIS
Employees and Officials, III, D, (1, c, f) in relation to Section 52A (3), (20), Rule IV, of the Uniform Rules on
Administrative Cases in the Civil Service (URACCS), in accordance with Book V of the Administrative Code of 1987,
committed as follows:

That on 27 May 2005, respondent, wearing red shirt together with some employees, marched to or appeared
simultaneously at or just outside the office of the Investigation Unit in a mass demonstration/rally of protest and
support for Messrs. Mario Molina and Albert Velasco, the latter having surreptitiously entered the GSIS premises;
That some of these employees badmouthed the security guards and the GSIS management and defiantly raised
clenched fists led by Atty. Velasco who was barred by Hearing Officer Marvin R. Gatpayat in an Order dated 24 May
2005 from appearing as counsel for Atty. Molina pursuant to Section 7 (b) (2) of R.A. 6713 otherwise known as the
Code of Conduct and Ethical Standards for Public Officials and Employees;
That respondent, together with other employees in utter contempt of CSC Resolution No. 021316, dated 11
October 2002, otherwise known as Omnibus Rules on Prohibited Concerted Mass Actions in the Public Sector
caused alarm and heightened some employees and disrupted the work at the Investigation Unit during office hours.
This episode was earlier reported to PGM Garcia, through an office memorandum dated May 31, 2005, by
the Manager of the GSIS Security Department (GSIS-SD), Dennis Nagtalon. On the same day, the Manager of the
GSIS Investigation Unit (GSIS-IU), Atty. Lutgardo Barbo, issued a memorandum to each of the seven (7)
respondents requiring them to explain in writing and under oath within three (3) days why they should not be
administratively dealt with.

Respondents Duque, Echavez, Rubio, Gracia, Layco, and Legarda, together with two others, submitted a
letter-explanation to Atty. Barbo dated June 6, 2005. Denying that there was a planned mass action, the respondents
explained that their act of going to the office of the GSIS-IU was a spontaneous reaction after learning that their
former union president was there. Aside from some of them wanting to show their support, they were interested in
that hearing as it might also affect them. For her part, respondent Villaviza submitted a separate letter explaining that
she had a scheduled pre-hearing at the GSIS-IU that day and that she had informed her immediate supervisor about
it, attaching a copy of the order of pre-hearing. These letters were not under oath.
PGM Garcia then filed the above-mentioned formal charges for Grave Misconduct and/or Conduct
Prejudicial to the Best Interest of the Service against each of the respondents, all dated June 4, 2005. Respondents
were again directed to submit their written answers under oath within three (3) days from receipt thereof. None was
filed.

On June 29, 2005, PGM Garcia issued separate but similarly worded decisions finding all seven (7)
respondents guilty of the charges and meting out the penalty of one (1) year suspension plus the accessory penalties
appurtenant thereto.

On appeal, the Civil Service Commission (CSC) found the respondents guilty of the lesser offense of Violation
of Reasonable Office Rules and Regulations and reduced the penalty to reprimand. The CSC ruled that respondents
were not denied their right to due process but there was no substantial evidence to hold them guilty of Conduct
Prejudicial to the Best Interest of the Service. Instead,

The actuation of the appellants in going to the IU, wearing red shirts, to witness a public hearing cannot be
considered as constitutive of such offense. Appellants’ (respondents herein) assembly at the said office to express
support to Velasco, their Union President, who pledged to defend them against any oppression by the GSIS
management, can be considered as an exercise of their freedom of expression, a constitutionally guaranteed right.

PGM Garcia sought reconsideration but was denied. Thus, PGM Garcia went to the Court of Appeals via a
Petition for Review under Rule 43 of the Rules on Civil Procedure. The CA upheld the CSC in this wise:
 The Civil Service Commission is correct when it found that the act sought to be punished hardly falls within
the definition of a prohibited concerted activity or mass action. The petitioners failed to prove that the supposed
concerted activity of the respondents resulted in work stoppage and caused prejudice to the public service. Only
about twenty (20) out of more than a hundred employees at the main office, joined the activity sought to be
punished. These employees, now respondents in this case, were assigned at different offices of the petitioner
GSIS. Hence, despite the belated claim of the petitioners that the act complained of had created substantial
disturbance inside the petitioner GSIS’ premises during office hours, there is nothing in the record that could support
the claim that the operational capacity of petitioner GSIS was affected or reduced to substantial percentage when
respondents gathered at the Investigation Unit. Despite the hazy claim of the petitioners that the gathering was
intended to force the Investigation Unit and petitioner GSIS to be lenient in the handling of Atty. Molina’s case and
allow Atty. Velasco to represent Atty. Molina in his administrative case before petitioner GSIS, there is likewise no
concrete and convincing evidence to prove that the gathering was made to demand or force concessions, economic
or otherwise from the GSIS management or from the government. In fact, in the separate formal charges filed
against the respondents, petitioners clearly alleged that respondents “marched to or appeared simultaneously at or
just outside the office of the Investigation Unit in a mass demonstration/rally of protest and support for Mssrs. Mario
Molina and Albert Velasco, the latter surreptitiously entered the GSIS premises.” Thus, petitioners are aware at the
outset that the only apparent intention of the respondents in going to the IU was to show support to Atty. Mario Molina
and Albert Velasco, their union officers. The belated assertion that the intention of the respondents in going to the IU
was to disrupt the operation and pressure the GSIS administration to be lenient with Atty. Mario Molina and Albert
Velasco, is only an afterthought.

ISSUE:
WHETHER AN ADMINISTRATIVE TRIBUNAL MAY APPLY SUPPLETORILY THE PROVISIONS OF THE
RULES OF COURT ON THE EFFECT OF FAILURE TO DENY THE ALLEGATIONS IN THE COMPLAINT AND
FAILURE TO FILE ANSWER, WHERE THE RESPONDENTS IN THE ADMINISTRATIVE PROCEEDINGS DID NOT
FILE ANY RESPONSIVE PLEADING TO THE FORMAL CHARGES AGAINST THEM.

HELD:
The Court finds no merit in the petition. Petitioners primarily question the probative value accorded to respondents’
letters of explanation in response to the memorandum of the GSIS-IU Manager. The respondents never filed their
answers to the formal charges. The petitioners argue that there being no answers, the allegations in the formal
charges that they filed should have been deemed admitted pursuant to Section 11, Rule 8 of the Rules of Court which
provides:

SECTION 11. Allegations not specifically denied deemed admitted.— Material averment in the complaint, other than
those as to the amount of liquidated damages, shall be deemed admitted when not specifically denied. Allegations of
usury in a complaint to recover usurious interest are deemed admitted if not denied specifically and under oath.

According to the petitioners, this rule is applicable to the case at bench pursuant to Rule 1, Section 4 of the
Rules of Court which reads:

SECTION 4. In what cases not applicable. – These Rules shall not apply to election cases, land registration,
cadastral, naturalization and insolvency proceedings, and other cases not herein provided for, except by analogy or in
a suppletory character and whenever practicable and convenient.

The Court does not subscribe to the argument of the petitioners. Petitioners’ own rules, Rule XI, Section 4 of
the GSIS’ Amended Policy and Procedural Guidelines No. 178-04, specifically provides:

If the respondent fails to file his Answer within five (5) working days from receipt of the Formal Charge for the
supporting evidence, when requested, he shall be considered to have waived his right to file an answer and the PGM
or the Board of Trustees, in proper cases, shall render judgment, as may be warranted by the facts and evidence
submitted by the prosecution.
 A perusal of said section readily discloses that the failure of a respondent to file an answer merely translates
to a waiver of “his right to file an answer.” There is nothing in the rule that says that the charges are deemed
admitted. It has not done away with the burden of the complainant to prove the charges with clear and convincing
evidence.

It is true that Section 4 of the Rules of Court provides that the rules can be applied in a “suppletory
character.” Suppletory is defined as “supplying deficiencies.”It means that the provisions in the Rules of Court will be
made to apply only where there is an insufficiency in the applicable rule. There is, however, no such deficiency as
the rules of the GSIS are explicit in case of failure to file the required answer. What is clearly stated there is that
GSIS may “render judgment as may be warranted by the facts and evidence submitted by the prosecution.”

Even granting that Rule 8, Section 11 of the Rules of Court finds application in this case, petitioners must
remember that there remain averments that are not deemed admitted by the failure to deny the same. Among them
are immaterial allegations and incorrect conclusions drawn from facts set out in the complaint. Thus, even if
respondents failed to file their answer, it does not mean that all averments found in the complaint will be considered
as true and correct in their entirety, and that the forthcoming decision will be rendered in favor of the petitioners. We
must not forget that even in administrative proceedings, it is still the complainant, or in this case the petitioners, who
have the burden of proving, with substantial evidence, the allegations in the complaint or in the formal charges.

SORIANO VS MTRCB MARCH 15, 2010

On August 10, 2004, at around 10:00 p.m., petitioner, as host of the program Ang Dating Daan, aired on UNTV 37,
made the following remarks: Lehitimong anak ng demonyo; sinungaling; Gago ka talaga Michael, masahol ka pa sa
putang babae o di ba. Yung putang babae ang gumagana lang doon yung ibaba, [dito] kay Michael ang gumagana
ang itaas, o di ba! O, masahol pa sa putang babae yan. Sabi ng lola ko masahol pa sa putang babae yan.Sobra ang
kasinungalingan ng mga demonyong ito.[1] x x x

Two days after, before the MTRCB, separate but almost identical affidavit-complaints were lodged by Jessie
L. Galapon and seven other private respondents, all members of the Iglesia ni Cristo (INC),[2] against petitioner in
connection with the above broadcast. Respondent Michael M. Sandoval, who felt directly alluded to in petitioners
remark, was then a minister of INC and a regular host of the TV program Ang Tamang Daan.[3] Forthwith, the MTRCB
sent petitioner a notice of the hearing on August 16, 2004 in relation to the alleged use of some cuss words in the
August 10, 2004 episode of Ang Dating Daan.[4]

After a preliminary conference in which petitioner appeared, the MTRCB, by Order of August 16, 2004,
preventively suspended the showing of Ang Dating Daan program for 20 days, in accordance with Section 3(d) of
Presidential Decree No. (PD) 1986, creating the MTRCB, in relation to Sec. 3, Chapter XIII of the 2004 Implementing
Rules and Regulations (IRR) of PD 1986 and Sec. 7, Rule VII of the MTRCB Rules of Procedure. [5] The same order
also set the case for preliminary investigation.

The following day, petitioner sought reconsideration of the preventive suspension order, praying that
Chairperson Consoliza P. Laguardia and two other members of the adjudication board recuse themselves from
hearing the case.[6] Two days after, however, petitioner sought to withdraw[7] his motion for reconsideration, followed
by the filing with this Court of a petition for certiorari and prohibition, [8] docketed as G.R. No. 164785, to nullify the
preventive suspension order thus issued.

On September 27, 2004, in Adm. Case No. 01-04, the MTRCB issued a decision, disposing as follows:

WHEREFORE, in view of all the foregoing, a Decision is hereby rendered, finding

respondent Soriano liable for his utterances and thereby imposing on him a penalty of three (3)
months suspension from his program, Ang Dating Daan.
 Co-respondents Joselito Mallari, Luzviminda Cruz and UNTV Channel 37 and its owner,
PBC, are hereby exonerated for lack of evidence.

SO ORDERED.[9]

Petitioner then filed this petition for certiorari and prohibition with prayer for injunctive relief, docketed as
G.R. No. 165636.

In a Resolution dated April 4, 2005, the Court consolidated G.R. No. 164785 with G.R. No. 165636.

In G.R. No. 164785, petitioner raises the following issues:

THE ORDER OF PREVENTIVE SUSPENSION PROMULGATED BY RESPONDENT [MTRCB]

DATED 16 AUGUST 2004 AGAINST THE TELEVISION PROGRAM ANG DATING DAAN x x x
IS NULL AND VOID FOR BEING ISSUED WITH GRAVE ABUSE OF DISCRETION AMOUNTING
TO LACK OR EXCESS OF JURISDICTION

(A) BY REASON THAT THE [IRR] IS INVALID INSOFAR AS IT PROVIDES FOR THE
ISSUANCE OF PREVENTIVE SUSPENSION ORDERS;

(B) BY REASON OF LACK OF DUE HEARING IN THE CASE AT BENCH;

(C) FOR BEING VIOLATIVE OF EQUAL PROTECTION UNDER THE LAW;

(D) FOR BEING VIOLATIVE OF FREEDOM OF RELIGION; AND

(E) FOR BEING VIOLATIVE OF FREEDOM OF SPEECH AND EXPRESSION.[10]

In G.R. No. 165636, petitioner relies on the following grounds:

SECTION 3(C) OF [PD] 1986, IS PATENTLY UNCONSTITUTIONAL AND ENACTED WITHOUT

OR IN EXCESS OF JURISDICTION x x x CONSIDERING THAT:

SECTION 3(C) OF [PD] 1986, AS APPLIED TO PETITIONER, UNDULY INFRINGES ON THE

CONSTITUTIONAL GUARANTEE OF FREEDOM OF RELIGION, SPEECH, AND EXPRESSION
AS IT PARTAKES OF THE NATURE OF A SUBSEQUENT PUNISHMENT CURTAILING THE
SAME; CONSEQUENTLY, THE IMPLEMENTING RULES AND REGULATIONS, RULES OF
PROCEDURE, AND OFFICIAL ACTS OF THE MTRCB PURSUANT THERETO, I.E. DECISION
DATED 27 SEPTEMBER 2004 AND ORDER DATED 19 OCTOBER 2004, ARE LIKEWISE
CONSTITUTIONALLY INFIRM AS APPLIED IN THE CASE AT BENCH;

II

SECTION 3(C) OF [PD] 1986, AS APPLIED TO PETITIONER, UNDULY INFRINGES ON THE

CONSTITUTIONAL GUARANTEE OF DUE PROCESS OF LAW AND EQUAL PROTECTION
UNDER THE LAW; CONSEQUENTLY, THE [IRR], RULES OF PROCEDURE, AND OFFICIAL
ACTS OF THE MTRCB PURSUANT THERETO, I.E., DECISION DATED 27 SEPTEMBER 2004
AND ORDER DATED 19 OCTOBER 2004, ARE LIKEWISE CONSTITUTIONALLY INFIRM AS
APPLIED IN THE CASE AT BENCH; AND

III
 [PD] 1986 IS NOT COMPLETE IN ITSELF AND DOES NOT PROVIDE FOR A SUFFICIENT
STANDARD FOR ITS IMPLEMENTATION THEREBY RESULTING IN AN UNDUE DELEGATION
OF LEGISLATIVE POWER BY REASON THAT IT DOES NOT PROVIDE FOR THE PENALTIES
FOR VIOLATIONS OF ITS PROVISIONS. CONSEQUENTLY, THE [IRR], RULES OF
PROCEDURE, AND OFFICIAL ACTS OF THE MTRCB PURSUANT THERETO, I.E. DECISION
DATED 27 SEPTEMBER 2004 AND ORDER DATED 19 OCTOBER 2004, ARE LIKEWISE
CONSTITUTIONALLY INFIRM AS APPLIED IN THE CASE AT BENCH[11]

G.R. No. 164785

We shall first dispose of the issues in G.R. No. 164785, regarding the assailed order of preventive
suspension, although its implementability had already been overtaken and veritably been rendered moot by the
equally assailed September 27, 2004 decision.

It is petitioners threshold posture that the preventive suspension imposed against him and the relevant IRR
provision authorizing it are invalid inasmuch as PD 1986 does not expressly authorize the MTRCB to issue preventive
suspension.

Petitioners contention is untenable.

Administrative agencies have powers and functions which may be administrative, investigatory, regulatory,
quasi-legislative, or quasi-judicial, or a mix of the five, as may be conferred by the Constitution or by statute.[12] They
have in fine only such powers or authority as are granted or delegated, expressly or impliedly, by law. [13] And in
determining whether an agency has certain powers, the inquiry should be from the law itself. But once ascertained as
existing, the authority given should be liberally construed.[14]

A perusal of the MTRCBs basic mandate under PD 1986 reveals the possession by the agency of the
authority, albeit impliedly, to issue the challenged order of preventive suspension. And this authority stems naturally
from, and is necessary for the exercise of, its power of regulation and supervision.

Sec. 3 of PD 1986 pertinently provides the following:

Section 3. Powers and Functions.The BOARD shall have the following functions, powers and
duties:

xxxx

c) To approve or disapprove, delete objectionable portions from and/or prohibit the x x x

production, x x x exhibition and/or television broadcast of the motion pictures, television programs
and publicity materials subject of the preceding paragraph, which, in the judgment of the board
applying contemporary Filipino cultural values as standard, are objectionable for being immoral,
indecent, contrary to law and/or good customs, injurious to the prestige of the Republic of the
Philippines or its people, or with a dangerous tendency to encourage the commission of violence or
of wrong or crime such as but not limited to:

xxxx

vi) Those which are libelous or defamatory to the good name and reputation of any person,
whether living or dead;

xxxx
 (d) To supervise, regulate, and grant, deny or cancel, permits for the x x x production, copying,
distribution, sale, lease, exhibition, and/or television broadcast of all motion pictures, television
programs and publicity materials, to the end that no such pictures, programs and materials as
are determined by the BOARD to be objectionable in accordance with paragraph (c) hereof shall be
x x x produced, copied, reproduced, distributed, sold, leased, exhibited and/or broadcast by
television;

xxxx

k) To exercise such powers and functions as may be necessary or incidental to the attainment of
the purposes and objectives of this Act x x x. (Emphasis added.)

The issuance of a preventive suspension comes well within the scope of the MTRCBs authority and
functions expressly set forth in PD 1986, more particularly under its Sec. 3(d), as quoted above, which empowers the
MTRCB to supervise, regulate, and grant, deny or cancel, permits for the x x x exhibition, and/or television broadcast
of all motion pictures, television programs and publicity materials, to the end that no such pictures, programs and
materials as are determined by the BOARD to be objectionable in accordance with paragraph (c) hereof shall be x x x
exhibited and/or broadcast by television.

Surely, the power to issue preventive suspension forms part of the MTRCBs express regulatory and
supervisory statutory mandate and its investigatory and disciplinary authority subsumed in or implied from such
mandate. Any other construal would render its power to regulate, supervise, or discipline illusory.

Preventive suspension, it ought to be noted, is not a penalty by itself, being merely a preliminary step in an
administrative investigation.[15] And the power to discipline and impose penalties, if granted, carries with it the power to
investigate administrative complaints and, during such investigation, to preventively suspend the person subject of the
complaint.[16]

To reiterate, preventive suspension authority of the MTRCB springs from its powers conferred under PD
1986. The MTRCB did not, as petitioner insinuates, empower itself to impose preventive suspension through the
medium of the IRR of PD 1986. It is true that the matter of imposing preventive suspension is embodied only in the
IRR of PD 1986. Sec. 3, Chapter XIII of the IRR provides:

Sec. 3. PREVENTION SUSPENSION ORDER.Any time during the pendency of the case,
and in order to prevent or stop further violations or for the interest and welfare of the public, the
Chairman of the Board may issue a Preventive Suspension Order mandating the preventive x x x
suspension of the permit/permits involved, and/or closure of the x x x television network, cable TV
station x x x provided that the temporary/preventive order thus issued shall have a life of not more
than twenty (20) days from the date of issuance.

But the mere absence of a provision on preventive suspension in PD 1986, without more, would not work to
deprive the MTRCB a basic disciplinary tool, such as preventive suspension. Recall that the MTRCB is expressly
empowered by statute to regulate and supervise television programs to obviate the exhibition or broadcast of, among
others, indecent or immoral materials and to impose sanctions for violations and, corollarily, to prevent further
violations as it investigates. Contrary to petitioners assertion, the aforequoted Sec. 3 of the IRR neither amended PD
1986 nor extended the effect of the law. Neither did the MTRCB, by imposing the assailed preventive suspension,
outrun its authority under the law. Far from it. The preventive suspension was actually done in furtherance of the law,
imposed pursuant, to repeat, to the MTRCBs duty of regulating or supervising television programs, pending a
determination of whether or not there has actually been a violation. In the final analysis, Sec. 3, Chapter XIII of the
2004 IRR merely formalized a power which PD 1986 bestowed, albeit impliedly, on MTRCB.

Sec. 3(c) and (d) of PD 1986 finds application to the present case, sufficient to authorize the MTRCBs
assailed action.Petitioners restrictive reading of PD 1986, limiting the MTRCB to functions within the literal confines of
the law, would give the agency little leeway to operate, stifling and rendering it inutile, when Sec. 3(k) of PD 1986
clearly intends to grant the MTRCB a wide room for flexibility in its operation. Sec. 3(k), we reiterate, provides, To
exercise such powers and functions as may be necessary or incidental to the attainment of the purposes and
objectives of this Act x x x. Indeed, the power to impose preventive suspension is one of the implied powers of
MTRCB. As distinguished from express powers, implied powers are those that can be inferred or are implicit in the
wordings or conferred by necessary or fair implication of the enabling act.[17] As we held in Angara v. Electoral
Commission, when a general grant of power is conferred or a duty enjoined, every particular power necessary for the
exercise of one or the performance of the other is also conferred by necessary implication. [18] Clearly, the power to
impose preventive suspension pending investigation is one of the implied or inherent powers of MTRCB.

We cannot agree with petitioners assertion that the aforequoted IRR provision on preventive
suspension is applicable only to motion pictures and publicity materials. The scope of the MTRCBs
authority extends beyond motion pictures. What the acronym MTRCB stands for would suggest as
much. And while the law makes specific reference to the closure of a television network, the
suspension of a television program is a far less punitive measure that can be undertaken, with the
purpose of stopping further violations of PD 1986. Again, the MTRCB would regretfully be rendered
ineffective should it be subject to the restrictions petitioner envisages.

Just as untenable is petitioners argument on the nullity of the preventive suspension order on the ground of
lack of hearing. As it were, the MTRCB handed out the assailed order after petitioner, in response to a written notice,
appeared before that Board for a hearing on private respondents complaint. No less than petitioner admitted that the
order was issued after the adjournment of the hearing, [19] proving that he had already appeared before the MTRCB.
Under Sec. 3, Chapter XIII of the IRR of PD 1986, preventive suspension shall issue [a]ny time during the pendency
of the case. In this particular case, it was done after MTRCB duly apprised petitioner of his having possibly violated
PD 1986[20] and of administrative complaints that had been filed against him for such violation. [21]

At any event, that preventive suspension can validly be meted out even without a hearing. [22]

Petitioner next faults the MTRCB for denying him his right to the equal protection of the law, arguing that,
owing to the preventive suspension order, he was unable to answer the criticisms coming from the INC ministers.

Petitioners position does not persuade. The equal protection clause demands that all persons subject to
legislation should be treated alike, under like circumstances and conditions both in the privileges conferred and
liabilities imposed.[23] It guards against undue favor and individual privilege as well as hostile discrimination. [24] Surely,
petitioner cannot, under the premises, place himself in the same shoes as the INC ministers, who, for one, are not
facing administrative complaints before the MTRCB. For another, he offers no proof that the said ministers, in their TV
programs, use language similar to that which he used in his own, necessitating the MTRCBs disciplinary action. If the
immediate result of the preventive suspension order is that petitioner remains temporarily gagged and is unable to
answer his critics, this does not become a deprivation of the equal protection guarantee. The Court need not belabor
the fact that the circumstances of petitioner, as host of Ang Dating Daan, on one hand, and the INC ministers, as
hosts of Ang Tamang Daan, on the other, are, within the purview of this case, simply too different to even consider
whether or not there is a prima facie indication of oppressive inequality.

Petitioner next injects the notion of religious freedom, submitting that what he uttered was religious speech,
adding that words like putang babae were said in exercise of his religious freedom.

The argument has no merit.

The Court is at a loss to understand how petitioners utterances in question can come within the pale of Sec.
5, Article III of the 1987 Constitution on religious freedom. The section reads as follows:

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

Petitioner, as a final point in G.R. No. 164785, would have the Court nullify the 20-day preventive
suspension order, being, as insisted, an unconstitutional abridgement of the freedom of speech and expression and
an impermissible prior restraint. The main issue tendered respecting the adverted violation and the arguments
holding such issue dovetails with those challenging the three-month suspension imposed under the assailed
September 27, 2004 MTRCB decision subject of review under G.R. No. 165636. Both overlapping issues and
arguments shall be jointly addressed.

G.R. No. 165636

Petitioner urges the striking down of the decision suspending him from hosting Ang Dating Daan for three
months on the main ground that the decision violates, apart from his religious freedom, his freedom of speech and
expression guaranteed under Sec. 4, Art. III of the Constitution, which reads:

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
grievance.

He would also have the Court declare PD 1986, its Sec. 3(c) in particular, unconstitutional
for reasons articulated in this petition.

We are not persuaded as shall be explained shortly. But first, we restate certain general concepts and
principles underlying the freedom of speech and expression.

It is settled that expressions by means of newspapers, radio, television, and motion pictures come within
the broad protection of the free speech and expression clause. [25] Each method though, because of its dissimilar
presence in the lives of people and accessibility to children, tends to present its own problems in the area of free
speech protection, with broadcast media, of all forms of communication, enjoying a lesser degree of
protection.[26] Just as settled is the rule that restrictions, be it in the form of prior restraint, e.g., judicial injunction
against publication or threat of cancellation of license/franchise, or subsequent liability, whether in libel and damage
suits, prosecution for sedition, or contempt proceedings, are anathema to the freedom of expression. Prior
restraint means official government restrictions on the press or other forms of expression in advance of actual
publication or dissemination.[27] The freedom of expression, as with the other freedoms encased in the Bill of Rights,
is, however, not absolute. It may be regulated to some extent to serve important public interests, some forms of
speech not being protected. As has been held, the limits of the freedom of expression are reached when the
expression touches upon matters of essentially private concern. [28] In the oft-quoted expression of Justice Holmes,
the constitutional guarantee obviously was not intended to give immunity for every possible use of
language.[29] From Lucas v. Royo comes this line: [T]he freedom to express ones sentiments and belief does not
grant one the license to vilify in public the honor and integrity of another. Any sentiments must be expressed within
the proper forum and with proper regard for the rights of others. [30]

Indeed, as noted in Chaplinsky v. State of New Hampshire,[31] there are certain well-defined and narrowly
limited classes of speech that are harmful, the prevention and punishment of which has never been thought to raise
any Constitutional problems. In net effect, some forms of speech are not protected by the Constitution, meaning that
restrictions on unprotected speech may be decreed without running afoul of the freedom of speech clause. [32] A
speech would fall under the unprotected type if the utterances involved are no essential part of any exposition of
ideas, and are of such slight social value as a step of truth that any benefit that may be derived from them is clearly
outweighed by the social interest in order and morality. [33] Being of little or no value, there is, in dealing with or
regulating them, no imperative call for the application of the clear and present danger rule or the balancing-of-interest
test, they being essentially modes of weighing competing values, [34] or, with like effect, determining which of the
clashing interests should be advanced.

Petitioner asserts that his utterance in question is a protected form of speech.

The Court rules otherwise. It has been established in this jurisdiction that unprotected speech or low-value
expression refers to libelous statements, obscenity or pornography, false or misleading advertisement, insulting or
fighting words, i.e., those which by their very utterance inflict injury or tend to incite an immediate breach of peace
and expression endangering national security.

The Court finds that petitioners statement can be treated as obscene, at least with respect to the average
child. Hence, it is, in that context, unprotected speech. In Fernando v. Court of Appeals, the Court expressed difficulty
in formulating a definition of obscenity that would apply to all cases, but nonetheless stated the ensuing observations
on the matter:

There is no perfect definition of obscenity but the latest word is that of Miller v. California which established
basic guidelines, to wit: (a) whether to the average person, applying contemporary standards would find the work,
taken as a whole, appeals to the prurient interest; (b) whether the work depicts or describes, in a patently offensive
way, sexual conduct specifically defined by the applicable state law; and (c) whether the work, taken as a whole, lacks
serious literary, artistic, political, or scientific value. But, it would be a serious misreading of Miller to conclude that the
trier of facts has the unbridled discretion in determining what is patently offensive. x x x What remains clear is that
obscenity is an issue proper for judicial determination and should be treated on a case to case basis and on the
judges sound discretion.[35]

Following the contextual lessons of the cited case of Miller v. California,[36] a patently offensive utterance
would come within the pale of the term obscenity should it appeal to the prurient interest of an average listener
applying contemporary standards.

A cursory examination of the utterances complained of and the circumstances of the case reveal that to an average
adult, the utterances Gago ka talaga x x x, masahol ka pa sa putang babae x x x. Yung putang babae ang gumagana
lang doon yung ibaba, [dito] kay Michael ang gumagana ang itaas, o di ba! may not constitute obscene but merely
indecent utterances. They can be viewed as figures of speech or merely a play on words. In the context they were
used, they may not appeal to the prurient interests of an adult. The problem with the challenged statements is that
they were uttered in a TV program that is rated G or for general viewership, and in a time slot that would likely reach
even the eyes and ears of children.

While adults may have understood that the terms thus used were not to be taken literally, children could
hardly be expected to have the same discernment. Without parental guidance, the unbridled use of such language as
that of petitioner in a television broadcast could corrupt impressionable young minds. The term putang babae means
a female prostitute, a term wholly inappropriate for children, who could look it up in a dictionary and just get the literal
meaning, missing the context within which it was used. Petitioner further used the terms, ang gumagana lang doon
yung ibaba, making reference to the female sexual organ and how a female prostitute uses it in her trade, then
stating that Sandoval was worse than that by using his mouth in a similar manner. Children could be motivated by
curiosity and ask the meaning of what petitioner said, also without placing the phrase in context. They may be
inquisitive as to why Sandoval is different from a female prostitute and the reasons for the dissimilarity. And upon
learning the meanings of the words used, young minds, without the guidance of an adult, may, from their end, view
this kind of indecent speech as obscene, if they take these words literally and use them in their own speech or form
their own ideas on the matter. In this particular case, where children had the opportunity to hear petitioners words,
when speaking of the average person in the test for obscenity, we are speaking of the average child, not the average
adult. The average child may not have the adults grasp of figures of speech, and may lack the understanding that
language may be colorful, and words may convey more than the literal meaning. Undeniably the subject speech is
very suggestive of a female sexual organ and its function as such. In this sense, we find petitioners utterances
obscene and not entitled to protection under the umbrella of freedom of speech.

Even if we concede that petitioners remarks are not obscene but merely indecent speech, still the Court
rules that petitioner cannot avail himself of the constitutional protection of free speech. Said statements were made in
a medium easily accessible to children. With respect to the young minds, said utterances are to be treated as
unprotected speech.

No doubt what petitioner said constitutes indecent or offensive utterances. But while a jurisprudential pattern
involving certain offensive utterances conveyed in different mediums has emerged, this case is veritably one of first
impression, it being the first time that indecent speech communicated via television and the applicable norm for its
regulation are, in this jurisdiction, made the focal point. Federal Communications
Commission (FCC) v. Pacifica Foundation,[37] a 1978 American landmark case cited in Eastern Broadcasting
Corporation v. Dans, Jr.[38] and Chavez v. Gonzales,[39] is a rich source of persuasive lessons. Foremost of these
relates to indecent speech without prurient appeal component coming under the category of protected speech
depending on the context within which it was made, irresistibly suggesting that, within a particular context, such
indecent speech may validly be categorized as unprotected, ergo, susceptible to restriction.

In FCC, seven of what were considered filthy words[40] earlier recorded in a monologue by a satiric humorist
later aired in the afternoon over a radio station owned by Pacifica Foundation. Upon the complaint of a man who
heard the pre-recorded monologue while driving with his son, FCC declared the language used as patently
offensive and indecent under a prohibiting law, though not necessarily obscene. FCC added, however, that its
declaratory order was issued in a special factual context, referring, in gist, to an afternoon radio broadcast when
children were undoubtedly in the audience. Acting on the question of whether the FCC could regulate the subject
utterance, the US Supreme Court ruled in the affirmative, owing to two special features of the broadcast medium, to
wit: (1) radio is a pervasive medium and (2) broadcasting is uniquely accessible to children. The US Court, however,
hastened to add that the monologue would be protected speech in other contexts, albeit it did not expound and
identify a compelling state interest in putting FCCs content-based regulatory action under scrutiny.

The Court in Chavez[41] elucidated on the distinction between regulation or restriction of protected speech
that is content-based and that which is content-neutral. A content-based restraint is aimed at the contents or idea of
the expression, whereas a content-neutral restraint intends to regulate the time, place, and manner of the expression
under well-defined standards tailored to serve a compelling state interest, without restraint on the message of the
expression. Courts subject content-based restraint to strict scrutiny.

With the view we take of the case, the suspension MTRCB imposed under the premises was, in one
perspective, permissible restriction. We make this disposition against the backdrop of the following interplaying
factors: First, the indecent speech was made via television, a pervasive medium that, to borrow from Gonzales v.
Kalaw Katigbak,[42] easily reaches every home where there is a set [and where] [c]hildren will likely be among the avid
viewers of the programs therein shown; second, the broadcast was aired at the time of the day when there was a
reasonable risk that children might be in the audience; and third, petitioner uttered his speech on a G or for general
patronage rated program. Under Sec. 2(A) of Chapter IV of the IRR of the MTRCB, a show for general patronage is
[s]uitable for all ages, meaning that the material for television x x x in the judgment of the BOARD, does not contain
anything unsuitable for children and minors, and may be viewed without adult guidance or supervision. The words
petitioner used were, by any civilized norm, clearly not suitable for children. Where a language is categorized as
indecent, as in petitioners utterances on a general-patronage rated TV program, it may be readily proscribed as
unprotected speech.

A view has been advanced that unprotected speech refers only to pornography, [43] false or misleading
advertisement,[44]advocacy of imminent lawless action, and expression endangering national security. But this list is
not, as some members of the Court would submit, exclusive or carved in stone. Without going into specifics, it may be
stated without fear of contradiction that US decisional law goes beyond the aforesaid general exceptions. As the
Court has been impelled to recognize exceptions to the rule against censorship in the past, this particular case
constitutes yet another exception, another instance of unprotected speech, created by the necessity of protecting the
welfare of our children. As unprotected speech, petitioners utterances can be subjected to restraint or regulation.

Despite the settled ruling in FCC which has remained undisturbed since 1978, petitioner asserts that his
utterances must present a clear and present danger of bringing about a substantive evil the State has a right and duty
to prevent and such danger must be grave and imminent. [45]

Petitioners invocation of the clear and present danger doctrine, arguably the most permissive of speech
tests, would not avail him any relief, for the application of said test is uncalled for under the premises. The doctrine,
first formulated by Justice Holmes, accords protection for utterances so that the printed or spoken words may not be
subject to prior restraint or subsequent punishment unless its expression creates a clear and present danger of
bringing about a substantial evil which the government has the power to prohibit. [46] Under the doctrine, freedom of
speech and of press is susceptible of restriction when and only when necessary to prevent grave and immediate
danger to interests which the government may lawfully protect. As it were, said doctrine evolved in the context of
prosecutions for rebellion and other crimes involving the overthrow of government. [47] It was originally designed to
determine the latitude which should be given to speech that espouses anti-government action, or to have serious and
substantial deleterious consequences on the security and public order of the community.[48] The clear and present
danger rule has been applied to this jurisdiction. [49] As a standard of limitation on free speech and press, however, the
clear and present danger test is not a magic incantation that wipes out all problems and does away with analysis and
judgment in the testing of the legitimacy of claims to free speech and which compels a court to release a defendant
from liability the moment the doctrine is invoked, absent proof of imminent catastrophic disaster. [50] As we observed
in Eastern Broadcasting Corporation, the clear and present danger test does not lend itself to a simplistic and all
embracing interpretation applicable to all utterances in all forums.[51]

To be sure, the clear and present danger doctrine is not the only test which has been applied by the
courts. Generally, said doctrine is applied to cases involving the overthrow of the government and even other evils
which do not clearly undermine national security. Since not all evils can be measured in terms of proximity and
degree the Court, however, in several casesAyer Productions v. Capulong[52] and Gonzales v. COMELEC,[53] applied
the balancing of interests test. Former Chief Justice Fred Ruiz Castro, in Gonzales v. COMELEC, elucidated in his
Separate Opinion that where the legislation under constitutional attack interferes with the freedom of speech and
assembly in a more generalized way and where the effect of the speech and assembly in terms of the probability of
realization of a specific danger is not susceptible even of impressionistic calculation, [54] then the balancing of interests
test can be applied.

The Court explained also in Gonzales v. COMELEC the balancing of interests test:

When particular conduct is regulated in the interest of public order, and the regulation results in
an indirect, conditional, partial abridgment of speech, the duty of the courts is to determine
which of the two conflicting interests demands the greater protection under the particular
circumstances presented. x x x We must, therefore, undertake the delicate and difficult task x x
x to weigh the circumstances and to appraise the substantiality of the reasons advanced in
support of the regulation of the free enjoyment of rights x x x.

In enunciating standard premised on a judicial balancing of the conflicting social values and
individual interests competing for ascendancy in legislation which restricts expression, the
court in Douds laid the basis for what has been called the balancing-of-interests test which has
found application in more recent decisions of the U.S. Supreme Court. Briefly stated, the
balancing test requires a court to take conscious and detailed consideration of the interplay of
interests observable in a given situation or type of situation.

xxxx
 Although the urgency of the public interest sought to be secured by Congressional power
restricting the individuals freedom, and the social importance and value of the freedom so
restricted, are to be judged in the concrete, not on the basis of abstractions, a wide range of
factors are necessarily relevant in ascertaining the point or line of equilibrium. Among these
are (a) the social value and importance of the specific aspect of the particular freedom
restricted by the legislation; (b) the specific thrust of the restriction, i.e., whether the restriction
is direct or indirect, whether or not the persons affected are few; (c) the value and importance
of the public interest sought to be secured by the legislationthe reference here is to the nature
and gravity of the evil which Congress seeks to prevent; (d) whether the specific restriction
decreed by Congress is reasonably appropriate and necessary for the protection of such public
interest; and (e) whether the necessary safeguarding of the public interest involved may be
achieved by some other measure less restrictive of the protected freedom. [55]

This balancing of interest test, to borrow from Professor Kauper, [56] rests on the theory that it is
the courts function in a case before it when it finds public interests served by legislation, on the one
hand, and the free expression clause affected by it, on the other, to balance one against the other and
arrive at a judgment where the greater weight shall be placed. If, on balance, it appears that the public
interest served by restrictive legislation is of such nature that it outweighs the abridgment of freedom,
then the court will find the legislation valid. In short, the balance-of-interests theory rests on the basis
that constitutional freedoms are not absolute, not even those stated in the free speech and expression
clause, and that they may be abridged to some extent to serve appropriate and important
interests.[57] To the mind of the Court, the balancing of interest doctrine is the more appropriate test to
follow.

In the case at bar, petitioner used indecent and obscene language and a three (3)-month suspension was
slapped on him for breach of MTRCB rules. In this setting, the assertion by petitioner of his enjoyment of his freedom
of speech is ranged against the duty of the government to protect and promote the development and welfare of the
youth.

After a careful examination of the factual milieu and the arguments raised by petitioner in support of his
claim to free speech, the Court rules that the governments interest to protect and promote the interests and welfare of
the children adequately buttresses the reasonable curtailment and valid restraint on petitioners prayer to continue as
program host of Ang Dating Daan during the suspension period.

No doubt, one of the fundamental and most vital rights granted to citizens of a State is the freedom of
speech or expression, for without the enjoyment of such right, a free, stable, effective, and progressive democratic
state would be difficult to attain.Arrayed against the freedom of speech is the right of the youth to their moral, spiritual,
intellectual, and social being which the State is constitutionally tasked to promote and protect. Moreover, the State is
also mandated to recognize and support the vital role of the youth in nation building as laid down in Sec. 13, Art. II of
the 1987 Constitution.

The Constitution has, therefore, imposed the sacred obligation and responsibility on the State to provide
protection to the youth against illegal or improper activities which may prejudice their general well-being. The Article
on youth, approved on second reading by the Constitutional Commission, explained that the State shall extend social
protection to minors against all forms of neglect, cruelty, exploitation, immorality, and practices which may foster
racial, religious or other forms of discrimination. [58]

Indisputably, the State has a compelling interest in extending social protection to minors against all forms of
neglect, exploitation, and immorality which may pollute innocent minds. It has a compelling interest in helping
parents, through regulatory mechanisms, protect their childrens minds from exposure to undesirable materials and
corrupting experiences. The Constitution, no less, in fact enjoins the State, as earlier indicated, to promote and
protect the physical, moral, spiritual, intellectual, and social well-being of the youth to better prepare them fulfill their
role in the field of nation-building.[59] In the same way, the State is mandated to support parents in the rearing of the
youth for civic efficiency and the development of moral character. [60]
Petitioners offensive and obscene language uttered in a television broadcast, without doubt, was easily accessible to
the children. His statements could have exposed children to a language that is unacceptable in everyday use. As
such, the welfare of children and the States mandate to protect and care for them, as parens patriae,[61] constitute a
substantial and compelling government interest in regulating petitioners utterances in TV broadcast as provided in PD
1986.

FCC explains the duty of the government to act as parens patriae to protect the children who, because of
age or interest capacity, are susceptible of being corrupted or prejudiced by offensive language, thus:

[B]roadcasting is uniquely accessible to children, even those too young to read. Although Cohens
written message, [Fuck the Draft], might have been incomprehensible to a first grader, Pacificas
broadcast could have enlarged a childs 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 Yorkthat the governments
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.

Moreover, Gonzales v. Kalaw Katigbak likewise stressed the duty of the State to attend to the
welfare of the young:

x x x It is the consensus of this Court that where television is concerned, a less liberal approach
calls for observance. This is so because unlike motion pictures where the patrons have to pay their
way, television reaches every home where there is a set. Children then will likely will be among the
avid viewers of the programs therein shown. As was observed by Circuit Court of Appeals Judge
Jerome Frank, it is hardly the concern of the law to deal with the sexual fantasies of the adult
population. 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.[62]

The compelling need to protect the young impels us to sustain the regulatory action MTRCB took in the
narrow confines of the case. To reiterate, FCC justified the restraint on the TV broadcast grounded on the following
considerations: (1) the use of television with its unique accessibility to children, as a medium of broadcast of a
patently offensive speech; (2) the time of broadcast; and (3) the G rating of the Ang Dating Daan program. And in
agreeing with MTRCB, the court takes stock of and cites with approval the following excerpts from FCC:

It is appropriate, in conclusion, to emphasize the narrowness of our holding. This case does not
involve a two-way radio conversation between a cab driver and a dispatcher, or a telecast of an Elizabethan
comedy. We have not decided that an occasional expletive in either setting would justify any sanction. x x x
The [FFCs] decision rested entirely on a nuisance rationale under which context is all important. The
concept requires consideration of a host of variables. The time of day was emphasized by the [FFC]. The
content of the program in which the language is used will affect the composition of the audience x x x. As
Mr. Justice Sutherland wrote a nuisance may be merely a right thing in the wrong place, like a pig in the
parlor instead of the barnyard. We simply hold that when the [FCC] finds that a pig has entered the parlor,
the exercise of its regulatory power does not depend on proof that the pig is obscene. (Citation omitted.)

There can be no quibbling that the remarks in question petitioner uttered on prime-time television are
blatantly indecent if not outright obscene. It is the kind of speech that PD 1986 proscribes necessitating the exercise
by MTRCB of statutory disciplinary powers. It is the kind of speech that the State has the inherent prerogative, nay
duty, to regulate and prevent should such action served and further compelling state interests. One who utters
indecent, insulting, or offensive words on television when unsuspecting children are in the audience is, in the graphic
language of FCC, a pig in the parlor. Public interest would be served if the pig is reasonably restrained or even
removed from the parlor.

Ergo, petitioners offensive and indecent language can be subjected to prior restraint.

Petitioner theorizes that the three (3)-month suspension is either prior restraint or subsequent punishment that,
however, includes prior restraint, albeit indirectly.

After a review of the facts, the Court finds that what MTRCB imposed on petitioner is an administrative
sanction or subsequent punishment for his offensive and obscene language in Ang Dating Daan.

To clarify, statutes imposing prior restraints on speech are generally illegal and presumed unconstitutional
breaches of the freedom of speech. The exceptions to prior restraint are movies, television, and radio broadcast
censorship in view of its access to numerous people, including the young who must be insulated from the prejudicial
effects of unprotected speech. PD 1986 was passed creating the Board of Review for Motion Pictures and Television
(now MTRCB) and which requires prior permit or license before showing a motion picture or broadcasting a TV
program. The Board can classify movies and television programs and can cancel permits for exhibition of films or
television broadcast.

The power of MTRCB to regulate and even impose some prior restraint on radio and television shows, even
religious programs, was upheld in Iglesia Ni Cristo v. Court of Appeals. Speaking through Chief Justice Reynato S.
Puno, the Court wrote:

We thus reject petitioners postulate that its religious program is per se beyond review by the respondent
Board. Its public broadcast on TV of its religious program brings it out of the bosom of internal belief. Television is a
medium that reaches even the eyes and ears of children. The Court iterates the rule that the exercise of religious
freedom can be regulated by the State when it will bring about the clear and present danger of some substantive evil
which the State is duty bound to prevent, i.e., serious detriment to the more overriding interest of public health, public
morals, or public welfare. x x x

While the thesis has a lot to commend itself, we are not ready to hold that [PD 1986] is unconstitutional for Congress
to grant an administrative body quasi-judicial power to preview and classify TV programs and enforce its decision
subject to review by our courts. As far back as 1921, we upheld this setup in Sotto vs. Ruiz, viz:

The use of the mails by private persons is in the nature of a privilege which can be regulated in order to
avoid its abuse.Persons possess no absolute right to put into the mail anything they please, regardless
of its character.[63]

Bernas adds:

Under the decree a movie classification board is made the arbiter of what movies and
television programs or parts of either are fit for public consumption. It decides what movies are
immoral, indecent, contrary to law and/or good customs, injurious to the prestige of the Republic of
the Philippines or its people, and what tend to incite subversion, insurrection, rebellion or sedition,
or tend to undermine the faith and confidence of the people in their government and/or duly
constituted authorities, etc. Moreover, its decisions are executory unless stopped by a court.[64]

Moreover, in MTRCB v. ABS-CBN Broadcasting Corporation,[65] it was held that the power of
review and prior approval of MTRCB extends to all television programs and is valid despite the freedom of
speech guaranteed by the Constitution. Thus, all broadcast networks are regulated by the MTRCB since
they are required to get a permit before they air their television programs. Consequently, their right to enjoy
their freedom of speech is subject to that requirement. As lucidly explained by Justice Dante O. Tinga,
government regulations through the MTRCB became a necessary evil with the government taking the role of
assigning bandwidth to individual broadcasters. The stations explicitly agreed to this regulatory scheme;
otherwise, chaos would result in the television broadcast industry as competing broadcasters will interfere or
co-opt each others signals. In this scheme, station owners and broadcasters in effect waived their right to
the full enjoyment of their right to freedom of speech in radio and television programs and impliedly agreed
that said right may be subject to prior restraintdenial of permit or subsequent punishment, like suspension or
cancellation of permit, among others.

The three (3) months suspension in this case is not a prior restraint on the right of petitioner to continue with
the broadcast of Ang Dating Daan as a permit was already issued to him by MTRCB for such broadcast. Rather, the
suspension is in the form of permissible administrative sanction or subsequent punishment for the offensive and
obscene remarks he uttered on the evening of August 10, 2004 in his television program, Ang Dating Daan. It is a
sanction that the MTRCB may validly impose under its charter without running afoul of the free speech clause. And
the imposition is separate and distinct from the criminal action the Board may take pursuant to Sec. 3(i) of PD 1986
and the remedies that may be availed of by the aggrieved private party under the provisions on libel or tort, if
applicable. As FCC teaches, the imposition of sanctions on broadcasters who indulge in profane or indecent
broadcasting does not constitute forbidden censorship. Lest it be overlooked, the sanction imposed is not per se for
petitioners exercise of his freedom of speech via television, but for the indecent contents of his utterances in a G
rated TV program.

More importantly, petitioner is deemed to have yielded his right to his full enjoyment of his freedom of
speech to regulation under PD 1986 and its IRR as television station owners, program producers, and hosts have
impliedly accepted the power of MTRCB to regulate the broadcast industry.

Neither can petitioners virtual inability to speak in his program during the period of suspension be plausibly
treated as prior restraint on future speech. For viewed in its proper perspective, the suspension is in the nature of an
intermediate penalty for uttering an unprotected form of speech. It is definitely a lesser punishment than the
permissible cancellation of exhibition or broadcast permit or license. In fine, the suspension meted was simply part of
the duties of the MTRCB in the enforcement and administration of the law which it is tasked to implement. Viewed in
its proper context, the suspension sought to penalize past speech made on prime-time G rated TV program; it does
not bar future speech of petitioner in other television programs; it is a permissible subsequent administrative sanction;
it should not be confused with a prior restraint on speech. While not on all fours, the Court, in MTRCB,[66] sustained
the power of the MTRCB to penalize a broadcast company for exhibiting/airing a pre-taped TV episode without Board
authorization in violation of Sec. 7 of PD 1986.

Any simplistic suggestion, however, that the MTRCB would be crossing the limits of its authority were it to
regulate and even restrain the prime-time television broadcast of indecent or obscene speech in a G rated program is
not acceptable. As made clear in Eastern Broadcasting Corporation, the freedom of television and radio broadcasting
is somewhat lesser in scope than the freedom accorded to newspaper and print media. The MTRCB, as a regulatory
agency, must have the wherewithal to enforce its mandate, which would not be effective if its punitive actions would
be limited to mere fines. Television broadcasts should be subject to some form of regulation, considering the ease
with which they can be accessed, and violations of the regulations must be met with appropriate and proportional
disciplinary action. The suspension of a violating television program would be a sufficient punishment and serve as a
deterrent for those responsible. The prevention of the broadcast of petitioners television program is justified, and
does not constitute prohibited prior restraint. It behooves the Court to respond to the needs of the changing times,
and craft jurisprudence to reflect these times.

Petitioner, in questioning the three-month suspension, also tags as unconstitutional the very law creating the
MTRCB, arguing that PD 1986, as applied to him, infringes also upon his freedom of religion. The Court has earlier
adequately explained why petitioners undue reliance on the religious freedom cannot lend justification, let alone an
exempting dimension to his licentious utterances in his program. The Court sees no need to address anew the
repetitive arguments on religious freedom. As earlier discussed in the disposition of the petition in G.R. No. 164785,
what was uttered was in no way a religious speech.Parenthetically, petitioners attempt to characterize his speech as
a legitimate defense of his religion fails miserably. He tries to place his words in perspective, arguing evidently as an
afterthought that this was his method of refuting the alleged distortion of his statements by the INC hosts of Ang
Tamang Daan. But on the night he uttered them in his television program, the word simply came out as profane
language, without any warning or guidance for undiscerning ears.
 As to petitioners other argument about having been denied due process and equal protection of the law, suffice it to
state that we have at length debunked similar arguments in G.R. No. 164785. There is no need to further delve into
the fact that petitioner was afforded due process when he attended the hearing of the MTRCB, and that he was
unable to demonstrate that he was unjustly discriminated against in the MTRCB proceedings.

Finally, petitioner argues that there has been undue delegation of legislative power, as PD 1986 does not
provide for the range of imposable penalties that may be applied with respect to violations of the provisions of the
law.

The argument is without merit.

In Edu v. Ericta, the Court discussed the matter of undue delegation of legislative power in the following
wise:

It is a fundamental principle flowing from the doctrine of separation of powers that

Congress may not delegate its legislative power to the two other branches of the government,
subject to the exception that local governments may over local affairs participate in its
exercise. What cannot be delegated is the authority under the Constitution to make laws and to
alter and repeal them; the test is the completeness of the statute in all its term and provisions when
it leaves the hands of the legislature. To determine whether or not there is an undue delegation of
legislative power, the inquiry must be directed to the scope and definiteness of the measure
enacted.The legislature does not abdicate its functions when it describes what job must be done,
who is to do it, and what is the scope of his authority. For a complex economy, that may indeed be
the only way in which the legislative process can go forward. A distinction has rightfully been made
between delegation of power to make laws which necessarily involves a discretion as to what it
shall be, which constitutionally may not be done, and delegation of authority or discretion as to its
execution to be exercised under and in pursuance of the law, to which no valid objection can be
made. The Constitution is thus not to be regarded as denying the legislature the necessary
resources of flexibility and practicability.

To avoid the taint of unlawful delegation, there must be a standard, which implies at the
very least that the legislature itself determines matters of principle and lays down fundamental
policy. Otherwise, the charge of complete abdication may be hard to repel.A standard thus defines
legislative policy, marks its limits, maps out its boundaries and specifies the public agency to apply
it. It indicates the circumstances under which the legislative command is to be effected. It is the
criterion by which legislative purpose may be carried out. Thereafter, the executive or
administrative office designated may in pursuance of the above guidelines promulgate
supplemental rules and regulations.[67]

Based on the foregoing pronouncements and analyzing the law in question, petitioners protestation
about undue delegation of legislative power for the sole reason that PD 1986 does not provide for a range of
penalties for violation of the law is untenable. His thesis is that MTRCB, in promulgating the IRR of PD 1986,
prescribing a schedule of penalties for violation of the provisions of the decree, went beyond the terms of the
law.

Petitioners posture is flawed by the erroneous assumptions holding it together, the first assumption being
that PD 1986 does not prescribe the imposition of, or authorize the MTRCB to impose, penalties for violators of PD
1986. As earlier indicated, however, the MTRCB, by express and direct conferment of power and functions, is
charged with supervising and regulating, granting, denying, or canceling permits for the exhibition and/or television
broadcast of all motion pictures, television programs, and publicity materials to the end that no such objectionable
pictures, programs, and materials shall be exhibited and/or broadcast by television. Complementing this provision is
Sec. 3(k) of the decree authorizing the MTRCB to exercise such powers and functions as may be necessary or
incidental to the attainment of the purpose and objectives of [the law]. As earlier explained, the investiture of
supervisory, regulatory, and disciplinary power would surely be a meaningless grant if it did not carry with it the power
to penalize the supervised or the regulated as may be proportionate to the offense committed, charged, and
proved. As the Court said in Chavez v. National Housing Authority:

x x x [W]hen a general grant of power is conferred or duty enjoined, every particular power necessary for
the exercise of the one or the performance of the other is also conferred. x x x [W]hen the statute does not specify the
particular method to be followed or used by a government agency in the exercise of the power vested in it by law,
said agency has the authority to adopt any reasonable method to carry out its function. [68]

Given the foregoing perspective, it stands to reason that the power of the MTRCB to regulate and supervise
the exhibition of TV programs carries with it or necessarily implies the authority to take effective punitive action for
violation of the law sought to be enforced. And would it not be logical too to say that the power to deny or cancel a
permit for the exhibition of a TV program or broadcast necessarily includes the lesser power to suspend?

The MTRCB promulgated the IRR of PD 1986 in accordance with Sec. 3(a) which, for reference, provides
that agency with the power [to] promulgate such rules and regulations as are necessary or proper for the
implementation of this Act, and the accomplishment of its purposes and objectives x x x. And Chapter XIII, Sec. 1 of
the IRR providing:

Section 1. VIOLATIONS AND ADMINISTRATIVE SANCTIONS.Without prejudice to the

immediate filing of the appropriate criminal action and the immediate seizure of the pertinent
articles pursuant to Section 13, any violation of PD 1986 and its Implementing Rules and
Regulations governing motion pictures, television programs, and related promotional
materials shall be penalized with suspension or cancellation of permits and/or licenses
issued by the Board and/or with the imposition of fines and other administrative
penalty/penalties. The Board recognizes the existing Table of Administrative Penalties attached
without prejudice to the power of the Board to amend it when the need arises. In the meantime the
existing revised Table of Administrative Penalties shall be enforced. (Emphasis added.)

This is, in the final analysis, no more than a measure to specifically implement the aforequoted provisions of
Sec. 3(d) and (k). Contrary to what petitioner implies, the IRR does not expand the mandate of the MTRCB under the
law or partake of the nature of an unauthorized administrative legislation. The MTRCB cannot shirk its responsibility
to regulate the public airwaves and employ such means as it can as a guardian of the public.

In Sec. 3(c), one can already find the permissible actions of the MTRCB, along with the standards to be
applied to determine whether there have been statutory breaches. The MTRCB may evaluate motion pictures,
television programs, and publicity materials applying contemporary Filipino cultural values as standard, and, from
there, determine whether these audio and video materials are objectionable for being immoral, indecent, contrary to
law and/or good customs, [etc.] x x x and apply the sanctions it deems proper. The lawmaking body cannot possibly
provide for all the details in the enforcement of a particular statute.[69] The grant of the rule-making power to
administrative agencies is a relaxation of the principle of separation of powers and is an exception to the non-
delegation of legislative powers.[70] Administrative regulations or subordinate legislation calculated to promote the
public interest are necessary because of the growing complexity of modern life, the multiplication of the subjects of
governmental regulations, and the increased difficulty of administering the law. [71] Allowing the MTRCB some
reasonable elbow-room in its operations and, in the exercise of its statutory disciplinary functions, according it ample
latitude in fixing, by way of an appropriate issuance, administrative penalties with due regard for the severity of the
offense and attending mitigating or aggravating circumstances, as the case may be, would be consistent with its
mandate to effectively and efficiently regulate the movie and television industry.

But even as we uphold the power of the MTRCB to review and impose sanctions for violations of PD 1986,
its decision to suspend petitioner must be modified, for nowhere in that issuance, particularly the power-defining Sec.
3 nor in the MTRCB Schedule of Administrative Penalties effective January 1, 1999 is the Board empowered to
suspend the program host or even to prevent certain people from appearing in television programs. The MTRCB, to
be sure, may prohibit the broadcast of such television programs or cancel permits for exhibition, but it may not
suspend television personalities, for such would be beyond its jurisdiction. The MTRCB cannot extend its exercise of
regulation beyond what the law provides. Only persons, offenses, and penalties clearly falling clearly within the letter
and spirit of PD 1986 will be considered to be within the decrees penal or disciplinary operation. And when it exists,
the reasonable doubt must be resolved in favor of the person charged with violating the statute and for whom the
penalty is sought. Thus, the MTRCBs decision in Administrative Case No. 01-04 dated September 27, 2004 and the
subsequent order issued pursuant to said decision must be modified. The suspension should cover only the television
program on which petitioner appeared and uttered the offensive and obscene language, which sanction is what the
law and the facts obtaining call for.

In ending, what petitioner obviously advocates is an unrestricted speech paradigm in which absolute
permissiveness is the norm. Petitioners flawed belief that he may simply utter gutter profanity on television without
adverse consequences, under the guise of free speech, does not lend itself to acceptance in this jurisdiction. We
repeat: freedoms of speech and expression are not absolute freedoms. To say any act that restrains speech should be
greeted with furrowed brows is not to say that any act that restrains or regulates speech or expression is per
se invalid. This only recognizes the importance of freedoms of speech and expression, and indicates the necessity to
carefully scrutinize acts that may restrain or regulate speech.

WHEREFORE, the decision of the MTRCB in Adm. Case No. 01-04 dated September 27, 2004 is
hereby AFFIRMED with the MODIFICATION of limiting the suspension to the program Ang Dating Daan. As thus
modified, the fallo of the MTRCB shall read as follows: WHEREFORE, in view of all the foregoing, a Decision is
hereby rendered, imposing a penalty of THREE (3) MONTHS SUSPENSION on the television program, Ang Dating
Daan, subject of the instant petition. Co-respondents Joselito Mallari, Luzviminda Cruz, and UNTV Channel 37 and its
owner, PBC, are hereby exonerated for lack of evidence.

SOUTHERN HEMISPHERE ENGAGEMENT NETWORK VS. ANTI TERRORISM COUNCIL

OCTOBER 5, 2010
CARPIO MORALES, J.:

Before the Court are six petitions challenging the constitutionality of Republic Act No. 9372 (RA 9372), An Act to
Secure the State and Protect our People from Terrorism, otherwise known as the Human Security Act of
2007,[1] signed into law on March 6, 2007.
Following the effectivity of RA 9372 on July 15, 2007,[2] petitioner Southern Hemisphere Engagement Network, Inc., a
non-government organization, and Atty. Soliman Santos, Jr., a concerned citizen, taxpayer and lawyer, filed a petition
for certiorari and prohibition on July 16, 2007 docketed as G.R. No. 178552. On even date, petitioners Kilusang Mayo
Uno (KMU), National Federation of Labor Unions-Kilusang Mayo Uno (NAFLU-KMU), and Center for Trade Union
and Human Rights (CTUHR), represented by their respective officers [3] who are also bringing the action in their
capacity as citizens, filed a petition for certiorari and prohibition docketed as G.R. No. 178554.

The following day, July 17, 2007, organizations Bagong Alyansang Makabayan (BAYAN), General Alliance Binding
Women for Reforms, Integrity, Equality, Leadership and Action (GABRIELA), Kilusang Magbubukid ng Pilipinas
(KMP), Movement of Concerned Citizens for Civil Liberties (MCCCL), Confederation for Unity, Recognition and
Advancement of Government Employees (COURAGE), Kalipunan ng Damayang Mahihirap (KADAMAY), Solidarity
of Cavite Workers (SCW), League of Filipino Students (LFS), Anakbayan, Pambansang Lakas ng Kilusang
Mamamalakaya (PAMALAKAYA), Alliance of Concerned Teachers (ACT), Migrante, Health Alliance for Democracy
(HEAD), and Agham, represented by their respective officers,[4] and joined by concerned citizens and taxpayers
Teofisto Guingona, Jr., Dr. Bienvenido Lumbera, Renato Constantino, Jr., Sister Mary John Manansan, OSB, Dean
Consuelo Paz, Atty. Josefina Lichauco, Retired Col. Gerry Cunanan, Carlitos Siguion-Reyna, Dr. Carolina Pagaduan-
Araullo, Renato Reyes, Danilo Ramos, Emerenciana de Jesus, Rita Baua and Rey Claro Casambre filed a petition for
certiorari and prohibition docketed as G.R. No. 178581.
On August 6, 2007, Karapatan and its alliance member organizations Hustisya, Desaparecidos, Samahan ng mga
Ex-Detainees Laban sa Detensyon at para sa Amnestiya (SELDA), Ecumenical Movement for Justice and Peace
(EMJP), and Promotion of Church Peoples Response (PCPR), which were represented by their respective
officers[5] who are also bringing action on their own behalf, filed a petition for certiorari and prohibition docketed
as G.R. No. 178890.

On August 29, 2007, the Integrated Bar of the Philippines (IBP), Counsels for the Defense
of Liberty (CODAL),[6] Senator Ma. Ana Consuelo A.S. Madrigal, Sergio Osmea III, and Wigberto E. Taada filed a
petition for certiorari and prohibition docketed as G.R. No. 179157.

Bagong Alyansang Makabayan-Southern Tagalog (BAYAN-ST), other regional chapters and organizations mostly
based in the Southern Tagalog Region,[7] and individuals[8] followed suit by filing on September 19, 2007 a petition for
certiorari and prohibition docketed as G.R. No. 179461 that replicates the allegations raised in the BAYAN petition
in G.R. No. 178581.

Impleaded as respondents in the various petitions are the Anti-Terrorism Council[9] composed of, at the time of the
filing of the petitions, Executive Secretary Eduardo Ermita as Chairperson, Justice Secretary Raul Gonzales as Vice
Chairperson, and Foreign Affairs Secretary Alberto Romulo, Acting Defense Secretary and National Security Adviser
Norberto Gonzales, Interior and Local Government Secretary Ronaldo Puno, and Finance Secretary Margarito Teves
as members. All the petitions, except that of the IBP, also impleaded Armed Forces of the Philippines (AFP) Chief of
Staff Gen. Hermogenes Esperon and Philippine National Police (PNP) Chief Gen. Oscar Calderon.

The Karapatan, BAYAN and BAYAN-ST petitions likewise impleaded President Gloria Macapagal-Arroyo and the
support agencies for the Anti-Terrorism Council like the National Intelligence Coordinating Agency, National Bureau
of Investigation, Bureau of Immigration, Office of Civil Defense, Intelligence Service of the AFP, Anti-
Money Laundering Center, Philippine Center on Transnational Crime, and the PNP intelligence and investigative
elements.

The petitions fail.

Petitioners resort to certiorari is improper

Preliminarily, certiorari does not lie against respondents who do not exercise judicial or quasi-judicial
functions. Section 1, Rule 65 of the Rules of Court is clear:

Section 1. Petition for certiorari.When any tribunal, board or officer exercising judicial
or quasi-judicial functions has acted without or in excess of its or his jurisdiction, or with
grave abuse of discretion amounting to lack or excess of jurisdiction, and there is no
appeal, nor any plain, speedy, and adequate remedy in the ordinary course of law, a person
aggrieved thereby may file a verified petition in the proper court, alleging the facts with certainty
and praying that judgment be rendered annulling or modifying the proceedings of such tribunal,
board or officer, and granting such incidental reliefs as law and justice may require. (Emphasis
and underscoring supplied)

Parenthetically, petitioners do not even allege with any modicum of particularity how respondents acted without or in
excess of their respective jurisdictions, or with grave abuse of discretion amounting to lack or excess of jurisdiction.

The impropriety of certiorari as a remedy aside, the petitions fail just the same.

In constitutional litigations, the power of judicial review is limited by four exacting requisites, viz: (a) there must be an
actual case or controversy; (b) petitioners must possess locus standi; (c) the question of constitutionality must be
raised at the earliest opportunity; and (d) the issue of constitutionality must be the lis mota of the case.[10]

In the present case, the dismal absence of the first two requisites, which are the most essential, renders the
discussion of the last two superfluous.

Petitioners lack locus standi

Locus standi or legal standing requires 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.[11]

Anak Mindanao Party-List Group v. The Executive Secretary[12] summarized the rule on locus standi, thus:

Locus standi or legal standing has been defined as a personal and substantial interest in a case
such that the party has sustained or will sustain direct injury as a result of the governmental act that
is being challenged. The gist of the question on standing is whether a party alleges such personal
stake in the outcome of the controversy as to assure that concrete adverseness which sharpens
the presentation of issues upon which the court depends for illumination of difficult constitutional
questions.

[A] party who assails the constitutionality of a statute must have a direct and personal interest. It
must show not only that the law or any governmental act is invalid, but also that it sustained or is
in immediate danger of sustaining some direct injury as a result of its enforcement, and not
merely that it suffers thereby in some indefinite way. It must show that it has been or is about to be
denied some right or privilege to which it is lawfully entitled or that it is about to be subjected to
some burdens or penalties by reason of the statute or act complained of.

For a concerned party to be allowed to raise a constitutional question, it must show that (1) it
has personally suffered some actual or threatened injury as a result of the allegedly illegal
conduct of the government, (2) the injury is fairly traceable to the challenged action, and (3) the
injury is likely to be redressed by a favorable action. (emphasis and underscoring supplied.)

Petitioner-organizations assert locus standi on the basis of being suspected communist fronts by the government,
especially the military; whereas individual petitioners invariably invoke the transcendental importance doctrine and
their status as citizens and taxpayers.

While Chavez v. PCGG[13] holds that transcendental public importance dispenses with the requirement that petitioner
has experienced or is in actual danger of suffering direct and personal injury, cases involving the constitutionality
of penallegislation belong to an altogether different genus of constitutional litigation. Compelling State and societal
interests in the proscription of harmful conduct, as will later be elucidated, necessitate a closer judicial scrutiny
of locus standi.

Petitioners have not presented any personal stake in the outcome of the controversy. None of them faces any
charge under RA 9372.

KARAPATAN, Hustisya, Desaparecidos, SELDA, EMJP and PCR, petitioners in G.R. No. 178890, allege that they
have been subjected to close security surveillance by state security forces, their members followed by suspicious
persons and vehicles with dark windshields, and their offices monitored by men with military build. They likewise
claim that they have been branded as enemies of the [S]tate. [14]

Even conceding such gratuitous allegations, the Office of the Solicitor General (OSG) correctly points out that
petitioners have yet to show any connection between the purported surveillance and the implementation of RA
9372.

BAYAN, GABRIELA, KMP, MCCCL, COURAGE, KADAMAY, SCW, LFS, Anakbayan, PAMALAKAYA, ACT,
Migrante, HEAD and Agham, petitioner-organizations in G.R. No. 178581, would like the Court to take judicial
notice of respondents alleged action of tagging them as militant organizations fronting for the Communist Party of the
Philippines (CPP) and its armed wing, the National Peoples Army (NPA). The tagging, according to petitioners, is
tantamount to the effects of proscription without following the procedure under the law. [15] The petition of BAYAN-ST,
et al. in G.R. No. 179461 pleads the same allegations.
The Court cannot take judicial notice of the alleged tagging of petitioners.

Generally speaking, matters of judicial notice have three material requisites: (1) the matter must
be one of common and general knowledge; (2) it must be well and authoritatively settled and
not doubtful or uncertain; and (3) it must be known to be within the limits of the jurisdiction of the
court. The principal guide in determining what facts may be assumed to be judicially known is that
of notoriety. Hence, it can be said that judicial notice is limited to facts evidenced by public records
and facts of general notoriety. Moreover, a judicially noticed fact must be one not subject to a
reasonable dispute in that it is either: (1) generally known within the territorial jurisdiction of the
trial court; or (2) capable of accurate and ready determination by resorting to sources whose
accuracy cannot reasonably be questionable.

Things of common knowledge, of which courts take judicial matters coming to the knowledge of
men generally in the course of the ordinary experiences of life, or they may be matters which are
generally accepted by mankind as true and are capable of ready and unquestioned demonstration.
Thus, facts which are universally known, and which may be found in encyclopedias, dictionaries or
other publications, are judicially noticed, provided, they are of such universal notoriety and so
generally understood that they may be regarded as forming part of the common knowledge of
every person. As the common knowledge of man ranges far and wide, a wide variety of particular
facts have been judicially noticed as being matters of common knowledge. But a court cannot
take judicial notice of any fact which, in part, is dependent on the existence or non-
existence of a fact of which the court has no constructive knowledge.[16] (emphasis and
underscoring supplied.)

No ground was properly established by petitioners for the taking of judicial notice. Petitioners apprehension is
insufficient to substantiate their plea. That no specific charge or proscription under RA 9372 has been filed against
them, three years after its effectivity, belies any claim of imminence of their perceived threat emanating from the so-
called tagging.

The same is true with petitioners KMU, NAFLU and CTUHR in G.R. No. 178554, who merely harp as well on their
supposed link to the CPP and NPA. They fail to particularize how the implementation of specific provisions of RA
9372 would result in direct injury to their organization and members.

While in our jurisdiction there is still no judicially declared terrorist organization, the United States of America[17] (US)
and the European Union[18] (EU) have both classified the CPP, NPA and Abu Sayyaf Group as foreign terrorist
organizations. The Court takes note of the joint statement of Executive Secretary Eduardo Ermita and Justice
Secretary Raul Gonzales that the Arroyo Administration would adopt the US and EU classification of the CPP and
NPA as terrorist organizations.[19] Such statement notwithstanding, there is yet to be filed before the courts an
application to declare the CPP and NPA organizations as domestic terrorist or outlawed organizations under
RA 9372. Again, RA 9372 has been in effect for three years now. From July 2007 up to the present, petitioner-
organizations have conducted their activities fully and freely without any threat of, much less an actual, prosecution or
proscription under RA 9372.

Parenthetically, the Fourteenth Congress, in a resolution initiated by Party-list Representatives Saturnino Ocampo,
Teodoro Casio, Rafael Mariano and Luzviminda Ilagan,[20] urged the government to resume peace negotiations with
the NDF by removing the impediments thereto, one of which is the adoption of designation of the CPP and NPA by
the US and EU as foreign terrorist organizations. Considering the policy statement of the Aquino Administration [21] of
resuming peace talks with the NDF, the government is not imminently disposed to ask for the judicial proscription of
the CPP-NPA consortium and its allied organizations.

More important, there are other parties not before the Court with direct and specific interests in the questions being
raised.[22]Of recent development is the filing of the first case for proscription under Section 17[23] of RA 9372 by the
Department of Justice before the Basilan Regional Trial Court against the Abu Sayyaf Group.[24] Petitioner-
organizations do not in the least allege any link to the Abu Sayyaf Group.

Some petitioners attempt, in vain though, to show the imminence of a prosecution under RA 9372 by alluding to past
rebellion charges against them.

In Ladlad v. Velasco,[25] the Court ordered the dismissal of rebellion charges filed in 2006 against then Party-List
Representatives Crispin Beltran and Rafael Mariano of Anakpawis, Liza Maza of GABRIELA, and Joel Virador,
Teodoro Casio and Saturnino Ocampo of Bayan Muna. Also named in the dismissed rebellion charges were
petitioners Rey Claro Casambre, Carolina Pagaduan-Araullo, Renato Reyes, Rita Baua, Emerencia de Jesus and
Danilo Ramos; and accused of being front organizations for the Communist movement were petitioner-organizations
KMU, BAYAN, GABRIELA, PAMALAKAYA, KMP, KADAMAY, LFS and COURAGE.[26]

The dismissed rebellion charges, however, do not save the day for petitioners. For one, those charges were filed in
2006, prior to the enactment of RA 9372, and dismissed by this Court. For another, rebellion is defined and punished
under the Revised Penal Code. Prosecution for rebellion is not made more imminent by the enactment of RA 9372,
nor does the enactment thereof make it easier to charge a person with rebellion, its elements not having been
altered.

Conversely, previously filed but dismissed rebellion charges bear no relation to prospective charges under RA
9372. It cannot be overemphasized that three years after the enactment of RA 9372, none of petitioners has been
charged.

Petitioners IBP and CODAL in G.R. No. 179157 base their claim of locus standi on their sworn duty to uphold the
Constitution. The IBP zeroes in on Section 21 of RA 9372 directing it to render assistance to those arrested or
detained under the law.

The mere invocation of the duty to preserve the rule of law does not, however, suffice to clothe the IBP or any of its
members with standing.[27] The IBP failed to sufficiently demonstrate how its mandate under the assailed statute
revolts against its constitutional rights and duties. Moreover, both the IBP and CODAL have not pointed to even a
single arrest or detention effected under RA 9372.
Former Senator Ma. Ana Consuelo Madrigal, who claims to have been the subject of political surveillance, also
lacks locus standi. Prescinding from the veracity, let alone legal basis, of the claim of political surveillance, the Court
finds that she has not shown even the slightest threat of being charged under RA 9372. Similarly lacking in locus
standi are former Senator Wigberto Taada and Senator Sergio Osmea III, who cite their being respectively a
human rights advocate and an oppositor to the passage of RA 9372. Outside these gratuitous statements, no
concrete injury to them has been pinpointed.

Petitioners Southern Hemisphere Engagement Network and Atty. Soliman Santos Jr. in G.R. No. 178552 also
conveniently state that the issues they raise are of transcendental importance, which must be settled early and are of
far-reaching implications, without mention of any specific provision of RA 9372 under which they have been charged,
or may be charged. Mere invocation of human rights advocacy has nowhere been held sufficient to clothe litigants
with locus standi. Petitioners must show an actual, or immediate danger of sustaining, direct injury as a result of the
laws enforcement. To rule otherwise would be to corrupt the settled doctrine of locus standi, as every worthy cause is
an interest shared by the general public.

Neither can locus standi be conferred upon individual petitioners as taxpayers and citizens. A taxpayer suit is proper
only when there is an exercise of the spending or taxing power of Congress, [28] whereas citizen standing must rest on
direct and personal interest in the proceeding.[29]

RA 9372 is a penal statute and does not even provide for any appropriation from Congress for its implementation,
while none of the individual petitioner-citizens has alleged any direct and personal interest in the implementation of
the law.
It bears to stress that generalized interests, albeit accompanied by the assertion of a public right, do not
establish locus standi.Evidence of a direct and personal interest is key.

Petitioners fail to present an actual case or controversy

By constitutional fiat, judicial power operates only when there is an actual case or controversy.

Section 1. The judicial power shall be vested in one Supreme Court and in such lower courts as
may be established by law.
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 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.[30] (emphasis and underscoring supplied.)

As early as Angara v. Electoral Commission,[31] the Court ruled that the power of judicial review is limited to actual
cases or controversies to be exercised after full opportunity of argument by the parties. Any attempt at abstraction
could only lead to dialectics and barren legal questions and to sterile conclusions unrelated to actualities.
An actual case or controversy means an existing case or controversy that is appropriate or ripe for determination, not
conjectural or anticipatory, lest the decision of the court would amount to an advisory opinion. [32]

Information Technology Foundation of the Philippines v. COMELEC[33] cannot be more emphatic:

[C]ourts do not sit to adjudicate mere academic questions to satisfy scholarly

interest, however intellectually challenging. The controversy must be justiciabledefinite and
concrete, touching on the legal relations of parties having adverse legal interests. In other
words, the pleadings must show an active antagonistic assertion of a legal right, on the
one hand, and a denial thereof on the other hand; that is, it must concern a real and not
merely a theoretical question or issue. There ought to be an actual and substantial
controversy admitting of specific relief through a decree conclusive in nature, as
distinguished from an opinion advising what the law would be upon a hypothetical state of
facts. (Emphasis and underscoring supplied)

Thus, a petition to declare unconstitutional a law converting the Municipality of Makati into a Highly Urbanized City
was held to be premature as it was tacked on uncertain, contingent events.[34] Similarly, a petition that fails to allege
that an application for a license to operate a radio or television station has been denied or granted by the authorities
does not present a justiciable controversy, and merely wheedles the Court to rule on a hypothetical problem. [35]

The Court dismissed the petition in Philippine Press Institute v. Commission on Elections [36] for failure to cite any
specific affirmative action of the Commission on Elections to implement the assailed resolution. It refused, in Abbas v.
Commission on Elections,[37] to rule on the religious freedom claim of the therein petitioners based merely on a
perceived potential conflict between the provisions of the Muslim Code and those of the national law, there being no
actual controversy between real litigants.

The list of cases denying claims resting on purely hypothetical or anticipatory grounds goes on ad infinitum.

The Court is not unaware that a reasonable certainty of the occurrence of a perceived threat to any constitutional
interest
suffices to provide a basis for mounting a constitutional challenge. This, however, is qualified by the requirement that
there must be sufficient facts to enable the Court to intelligently adjudicate the issues. [38]
Very recently, the US Supreme Court, in Holder v. Humanitarian Law Project,[39] allowed the pre-enforcement
review of a criminal statute, challenged on vagueness grounds, since plaintiffs faced a credible threat of
prosecution and should not be required to await and undergo a criminal prosecution as the sole means of seeking
relief.[40] The plaintiffs therein filed an action before a federal court to assail the constitutionality of the material
support statute, 18 U.S.C. 2339B (a) (1),[41]proscribing the provision of material support to organizations declared by
the Secretary of State as foreign terrorist organizations. They claimed that they intended to provide support for the
humanitarian and political activities of two such organizations.

Prevailing American jurisprudence allows an adjudication on the merits when an anticipatory petition clearly
shows that the challenged prohibition forbids the conduct or activity that a petitioner seeks to do, as there
would then be a justiciable controversy.[42]

Unlike the plaintiffs in Holder, however, herein petitioners have failed to show that the challenged provisions of RA
9372 forbid constitutionally protected conduct or activity that they seek to do. No demonstrable threat has been
established, much less a real and existing one.

Petitioners obscure allegations of sporadic surveillance and supposedly being tagged as communist fronts
in no way approximate a credible threat of prosecution. From these allegations, the Court is being lured to render
an advisory opinion,which is not its function.[43]

Without any justiciable controversy, the petitions have become pleas for declaratory relief, over which the Court has
no original jurisdiction. Then again, declaratory actions characterized by double contingency, where both the activity
the petitioners intend to undertake and the anticipated reaction to it of a public official are merely theorized, lie
beyond judicial review for lack of ripeness.[44]

The possibility of abuse in the implementation of RA 9372 does not avail to take the present petitions out of the realm
of the surreal and merely imagined. Such possibility is not peculiar to RA 9372 since the exercise of any power
granted by law may be abused.[45] Allegations of abuse must be anchored on real events before courts may step in to
settle actual controversiesinvolving rights which are legally demandable and enforceable.

A facial invalidation of a statute is allowed only in free speech

cases, wherein certain rules of constitutional litigation are
rightly excepted

Petitioners assail for being intrinsically vague and impermissibly broad the definition of the crime of terrorism[46] under
RA 9372 in that terms like widespread and extraordinary fear and panic among the populace and coerce the
government to give in to an unlawful demand are nebulous, leaving law enforcement agencies with no standard to
measure the prohibited acts.

Respondents, through the OSG, counter that the doctrines of void-for-vagueness and overbreadth find no application
in the present case since these doctrines apply only to free speech cases; and that RA 9372 regulates conduct, not
speech.

For a jurisprudentially guided understanding of these doctrines, it is imperative to outline the schools of thought on
whether the void-for-vagueness and overbreadth doctrines are equally applicable grounds to assail a penal statute.

Respondents interpret recent jurisprudence as slanting toward the idea of limiting the application of the two doctrines
to free speech cases. They particularly cite Romualdez v. Hon. Sandiganbayan[47] and Estrada v. Sandiganbayan.[48]

The Court clarifies.

At issue in Romualdez v. Sandiganbayan was whether the word intervene in Section 5[49] of the Anti-Graft and
Corrupt Practices Act was intrinsically vague and impermissibly broad. The Court stated that the overbreadth and the
vagueness doctrines have special application only to free-speech cases, and are not appropriate for testing the
validity of penal statutes.[50]It added that, at any rate, the challenged provision, under which the therein petitioner
was charged, is not vague.[51]
While in the subsequent case of Romualdez v. Commission on Elections,[52] the Court stated that a facial invalidation
of criminal statutes is not appropriate, it nonetheless proceeded to conduct a vagueness analysis, and concluded that
the therein subject election offense[53] under the Voters Registration Act of 1996, with which the therein petitioners
were charged, is couched in precise language.[54]

The two Romualdez cases rely heavily on the Separate Opinion [55] of Justice Vicente V. Mendoza in
the Estrada case, where the Court found the Anti-Plunder Law (Republic Act No. 7080) clear and free from ambiguity
respecting the definition of the crime of plunder.

The position taken by Justice Mendoza in Estrada relates these two doctrines to the concept of a facial invalidation as
opposed to an as-applied challenge. He basically postulated that allegations that a penal statute is vague and
overbroad do not justify a facial review of its validity. The pertinent portion of the Concurring Opinion of Justice
Mendoza, which was quoted at length in the main Estrada decision, reads:
A facial challenge is allowed to be made to a vague statute and to one which is overbroad
because of possible "chilling effect" upon protected speech. The theory is that "[w]hen statutes
regulate or proscribe speech and no readily apparent construction suggests itself as a vehicle for
rehabilitating the statutes in a single prosecution, the transcendent value to all society of
constitutionally protected expression is deemed to justify allowing attacks on overly broad statutes
with no requirement that the person making the attack demonstrate that his own conduct could not
be regulated by a statute drawn with narrow specificity." The possible harm to society in permitting
some unprotected speech to go unpunished is outweighed by the possibility that the protected
speech of others may be deterred and perceived grievances left to fester because of possible
inhibitory effects of overly broad statutes.

This rationale does not apply to penal statutes. Criminal statutes have general in
terrorem effect resulting from their very existence, and, if facial challenge is allowed for this reason
alone, the State may well be prevented from enacting laws against socially harmful conduct. In the
area of criminal law, the law cannot take chances as in the area of free speech.

The overbreadth and vagueness doctrines then have special application only to free
speech cases. They are inapt for testing the validity of penal statutes. As the U.S. Supreme Court
put it, in an opinion by Chief Justice Rehnquist, "we have not recognized an 'overbreadth' doctrine
outside the limited context of the First Amendment." In Broadrick v. Oklahoma, the Court ruled that
"claims of facial overbreadth have been entertained in cases involving statutes which, by their terms,
seek to regulate only spoken words" and, again, that "overbreadth claims, if entertained at all, have
been curtailed when invoked against ordinary criminal laws that are sought to be applied to protected
conduct." For this reason, it has been held that "a facial challenge to a legislative act is the most
difficult challenge to mount successfully, since the challenger must establish that no set of
circumstances exists under which the Act would be valid." As for the vagueness doctrine, it is said
that a litigant may challenge a statute on its face only if it is vague in all its possible applications. "A
plaintiff who engages in some conduct that is clearly proscribed cannot complain of the vagueness of
the law as applied to the conduct of others."

In sum, the doctrines of strict scrutiny, overbreadth, and vagueness are analytical
tools developed for testing "on their faces" statutes in free speech cases or, as they are called
in American law, First Amendment cases. They cannot be made to do service when what is
involved is a criminal statute. With respect to such statute, the established rule is that "one to whom
application of a statute is constitutional will not be heard to attack the statute on the ground that
impliedly it might also be taken as applying to other persons or other situations in which its
application might be unconstitutional." As has been pointed out, "vagueness challenges in the First
Amendment context, like overbreadth challenges typically produce facial invalidation, while statutes
found vague as a matter of due process typically are invalidated [only] 'as applied' to a particular
 defendant." Consequently, there is no basis for petitioner's claim that this Court review the Anti-
Plunder Law on its face and in its entirety.

Indeed, "on its face" invalidation of statutes results in striking them down entirely on the
ground that they might be applied to parties not before the Court whose activities are constitutionally
protected. It constitutes a departure from the case and controversy requirement of the Constitution
and permits decisions to be made without concrete factual settings and in sterile abstract
contexts. But, as the U.S. Supreme Court pointed out in Younger v. Harris

[T]he task of analyzing a proposed statute, pinpointing its deficiencies,

and requiring correction of these deficiencies before the statute is put into effect, is
rarely if ever an appropriate task for the judiciary. The combination of the relative
remoteness of the controversy, the impact on the legislative process of the relief
sought, and above all the speculative and amorphous nature of the required line-
by-line analysis of detailed statutes, . . . ordinarily results in a kind of case that is
wholly unsatisfactory for deciding constitutional questions, whichever way they
might be decided.

For these reasons, "on its face" invalidation of statutes has been described as "manifestly
strong medicine," to be employed "sparingly and only as a last resort," and is generally disfavored. In
determining the constitutionality of a statute, therefore, its provisions which are alleged to have been
violated in a case must be examined in the light of the conduct with which the defendant is
charged.[56] (Underscoring supplied.)

The confusion apparently stems from the interlocking relation of the overbreadth and vagueness doctrines as
grounds for a facial or as-applied challenge against a penal statute (under a claim of violation of due process of law)
or a speech regulation (under a claim of abridgement of the freedom of speech and cognate rights).

To be sure, the doctrine of vagueness and the doctrine of overbreadth do not operate on the same plane.

A statute or act suffers from the defect of vagueness when it lacks comprehensible standards that men of common
intelligence must necessarily guess at its meaning and differ as to its application. It is repugnant to the Constitution in
two respects: (1) it violates due process for failure to accord persons, especially the parties targeted by it, fair notice
of the conduct to avoid; and (2) it leaves law enforcers unbridled discretion in carrying out its provisions and becomes
an arbitrary flexing of the Government muscle.[57] The overbreadth doctrine, meanwhile, decrees that a governmental
purpose to control or prevent activities constitutionally subject to state regulations may not be achieved by means
which sweep unnecessarily broadly and thereby invade the area of protected freedoms. [58]

As distinguished from the vagueness doctrine, the overbreadth doctrine assumes that individuals will understand
what a statute prohibits and will accordingly refrain from that behavior, even though some of it is protected. [59]

A facial challenge is likewise different from an as-applied challenge.

Distinguished from an as-applied challenge which considers only extant facts affecting real litigants,
a facial invalidation is an examination of the entire law, pinpointing its flaws and defects, not only on the basis of its
actual operation to the parties, but also on the assumption or prediction that its very existence may cause others not
before the court to refrain from constitutionally protected speech or activities.[60]

Justice Mendoza accurately phrased the subtitle [61] in his concurring opinion that the vagueness and overbreadth
doctrines, as grounds for a facial challenge, are not applicable to penal laws. A litigant cannot thus successfully
mount a facial challenge against a criminal statute on either vagueness or overbreadth grounds.
The allowance of a facial challenge in free speech cases is justified by the aim to avert the chilling effect on protected
speech, the exercise of which should not at all times be abridged. [62] As reflected earlier, this rationale is inapplicable
to plain penal statutes that generally bear an in terrorem effect in deterring socially harmful conduct. In fact, the
legislature may even forbid and penalize acts formerly considered innocent and lawful, so long as it refrains from
diminishing or dissuading the exercise of constitutionally protected rights.[63]

The Court reiterated that there are critical limitations by which a criminal statute may be challenged and underscored
that an on-its-face invalidation of penal statutes x x x may not be allowed. [64]

[T]he rule established in our jurisdiction is, only statutes on free speech, religious freedom, and other
fundamental rights may be facially challenged. Under no case may ordinary penal statutes be
subjected to a facial challenge. The rationale is obvious. If a facial challenge to a penal statute is
permitted, the prosecution of crimes may be hampered. No prosecution would be possible. A strong
criticism against employing a facial challenge in the case of penal statutes, if the same is allowed,
would effectively go against the grain of the doctrinal requirement of an existing and concrete
controversy before judicial power may be appropriately exercised. A facial challenge against a penal
statute is, at best, amorphous and speculative. It would, essentially, force the court to consider third
parties who are not before it. As I have said in my opposition to the allowance of a facial challenge to
attack penal statutes, such a test will impair the States ability to deal with crime. If warranted, there
would be nothing that can hinder an accused from defeating the States power to prosecute on a
mere showing that, as applied to third parties, the penal statute is vague or overbroad,
notwithstanding that the law is clear as applied to him. [65] (Emphasis and underscoring supplied)

It is settled, on the other hand, that the application of the overbreadth doctrine is limited to a facial kind of
challenge and, owing to the given rationale of a facial challenge, applicable only to free speech cases.

By its nature, the overbreadth doctrine has to necessarily apply a facial type of invalidation in order to plot areas of
protected speech, inevitably almost always under situations not before the court, that are impermissibly swept by the
substantially overbroad regulation. Otherwise stated, a statute cannot be properly analyzed for being substantially
overbroad if the court confines itself only to facts as applied to the litigants.

The most distinctive feature of the overbreadth technique is that it marks an exception to some of the
usual rules of constitutional litigation. Ordinarily, a particular litigant claims that a statute is
unconstitutional as applied to him or her; if the litigant prevails, the courts carve away the
unconstitutional aspects of the law by invalidating its improper applications on a case to case
basis. Moreover, challengers to a law are not permitted to raise the rights of third parties and can
only assert their own interests. In overbreadth analysis, those rules give way; challenges are
permitted to raise the rights of third parties; and the court invalidates the entire statute "on its
face,"not merely "as applied for" so that the overbroad law becomes unenforceable until a properly
authorized court construes it more narrowly. The factor that motivates courts to depart from the
normal adjudicatory rules is the concern with the "chilling;" deterrent effect of the overbroad statute
on third parties not courageous enough to bring suit. The Court assumes that an overbroad laws
"very existence may cause others not before the court to refrain from constitutionally protected
speech or expression." An overbreadth ruling is designed to remove that deterrent effect on the
speech of those third parties.[66] (Emphasis in the original omitted; underscoring supplied.)

In restricting the overbreadth doctrine to free speech claims, the Court, in at least two cases, [67] observed that the US
Supreme Court has not recognized an overbreadth doctrine outside the limited context of the First
Amendment,[68] and that claims of facial overbreadth have been entertained in cases involving statutes which, by their
terms, seek to regulate only spoken words.[69] In Virginia v. Hicks,[70] it was held that rarely, if ever, will an overbreadth
challenge succeed against a law or regulation that is not specifically addressed to speech or speech-related
conduct. Attacks on overly broad statutes are justified by the transcendent value to all society of constitutionally
protected expression.[71]
Since a penal statute may only be assailed for being vague as
applied to petitioners, a limited vagueness analysis of the definition
of terrorism in RA 9372 is legally impermissible absent an actual or
imminent charge against them

While Estrada did not apply the overbreadth doctrine, it did not preclude the operation of the vagueness test on the
Anti-Plunder Law as applied to the therein petitioner, finding, however, that there was no basis to review the law on
its face and in its entirety.[72] It stressed that statutes found vague as a matter of due process typically are invalidated
only 'as applied' to a particular defendant.[73]

American jurisprudence[74] instructs that vagueness challenges that do not involve the First Amendment must be
examined in light of the specific facts of the case at hand and not with regard to the statute's facial validity.

For more than 125 years, the US Supreme Court has evaluated defendants claims that criminal statutes are
unconstitutionally vague, developing a doctrine hailed as among the most important guarantees of liberty under
law.[75]

In this jurisdiction, the void-for-vagueness doctrine asserted under the due process clause has been utilized in
examining the constitutionality of criminal statutes. In at least three cases,[76] the Court brought the doctrine into play
in analyzing an ordinance penalizing the non-payment of municipal tax on fishponds, the crime of illegal recruitment
punishable under Article 132(b) of the Labor Code, and the vagrancy provision under Article 202 (2) of the Revised
Penal Code. Notably, the petitioners in these three cases, similar to those in the two Romualdez and Estrada cases,
were actually charged with the therein assailed penal statute, unlike in the present case.

There is no merit in the claim that RA 9372 regulates

speech so as to permit a facial analysis of its validity

From the definition of the crime of terrorism in the earlier cited Section 3 of RA 9372, the following elements may be
culled: (1) the offender commits an act punishable under any of the cited provisions of the Revised Penal Code, or
under any of the enumerated special penal laws; (2) the commission of the predicate crime sows and creates a
condition of widespread and extraordinary fear and panic among the populace; and (3) the offender is actuated by the
desire to coerce the government to give in to an unlawful demand.

In insisting on a facial challenge on the invocation that the law penalizes speech, petitioners contend that the element
of unlawful demand in the definition of terrorism [77] must necessarily be transmitted through some form of expression
protected by the free speech clause.

The argument does not persuade. What the law seeks to penalize is conduct, not speech.

Before a charge for terrorism may be filed under RA 9372, there must first be a predicate crime actually committed to
trigger the operation of the key qualifying phrases in the other elements of the crime, including the coercion of the
government to accede to an unlawful demand. Given the presence of the first element, any attempt at singling out or
highlighting the communicative component of the prohibition cannot recategorize the unprotected conduct into a
protected speech.

Petitioners notion on the transmission of message is entirely inaccurate, as it unduly focuses on just one particle of
an element of the crime. Almost every commission of a crime entails some mincing of words on the part of the
offender like in declaring to launch overt criminal acts against a victim, in haggling on the amount of ransom or
conditions, or in negotiating a deceitful transaction. An analogy in one U.S. case[78] illustrated that the fact that the
prohibition on discrimination in hiring on the basis of race will require an employer to take down a sign reading White
Applicants Only hardly means that the law should be analyzed as one regulating speech rather than conduct.
Utterances not elemental but inevitably incidental to the doing of the criminal conduct alter neither the intent of the
law to punish socially harmful conduct nor the essence of the whole act as conduct and not speech. This holds
true a fortiori in the present case where the expression figures only as an inevitable incident of making the element of
coercion perceptible.

[I]t is true that the agreements and course of conduct here were as in most instances brought about
through speaking or writing. But it has never been deemed an abridgement of freedom of speech or
press to make a course of conduct illegal merely because the conduct was, in part,
initiated, evidenced, or carried out by means of language, either spoken, written, or printed. Such an
expansive interpretation of the constitutional guaranties of speech and press would make it
practically impossible ever to enforce laws against agreements in restraint of trade as well as many
other agreements and conspiracies deemed injurious to society. [79] (italics and underscoring
supplied)

Certain kinds of speech have been treated as unprotected conduct, because they merely evidence a prohibited
conduct.[80] Since speech is not involved here, the Court cannot heed the call for a facial analysis.

IN FINE, Estrada and the other cited authorities engaged in a vagueness analysis of the therein subject penal
statute as appliedto the therein petitioners inasmuch as they were actually charged with the pertinent crimes
challenged on vagueness grounds.The Court in said cases, however, found no basis to review the assailed penal
statute on its face and in its entirety.

In Holder, on the other hand, the US Supreme Court allowed the pre-enforcement review of a criminal statute,
challenged on vagueness grounds, since the therein plaintiffs faced a credible threat of prosecution and should not
be required to await and undergo a criminal prosecution as the sole means of seeking relief.

As earlier reflected, petitioners have established neither an actual charge nor a credible threat of
prosecution under RA 9372. Even a limited vagueness analysis of the assailed definition of terrorism is thus legally
impermissible. The Court reminds litigants that judicial power neither contemplates speculative counseling on a
statutes future effect on hypothetical scenarios nor allows the courts to be used as an extension of a failed legislative
lobbying in Congress.
WHEREFORE, the petitions are DISMISSED.