SUPREME COURT

Manila
SECOND DIVISION
G.R. No. 182601
November 10, 2014
JOEY M. PESTILOS, DWIGHT MACAPANAS, MIGUEL GACES, JERRY
FERNANDEZ and RONALD MUNOZ, Petitioners,
vs.
MORENO GENEROSO and PEOPLE OF THE PHILIPPINES, Respondents.
DECISION
BRION, J.:
We resolve the petition for review on certiorari under Rule 45 of the Rules of Court
challenging the decision1 dated January 21, 2008 and the resolution2 dated April 17,
2008 of the Court of Appeals (CA) in CAG.R. SP No. 91541.
The appealed decision affirmed the Order dated March 16, 2005 of the Regional Trial
Court (RTC), Branch 96, Quezon City, denying Joey M. Pestilos, Dwight Macapanas,
Miguel Gaces, Jerry Fernandez, and Ronald Munoz's (petitioners) Urgent Motion for
Regular Preliminary Investigation, as well as their subsequent motion for reconsideration.
The Antecedent Facts
The records of the case reveal that on February 20, 2005, at around 3: 15 in the morning,
an altercation ensued between the petitioners and Atty. Moreno Generoso (Atty.
Generoso) at Kasiyahan Street, Barangay Holy Spirit, Quezon City where the petitioners
and Atty. Generoso reside.3
Atty. Generoso called the Central Police District, Station 6 (Batas an Hills Police Station)
to report the incident.4 Acting on this report, Desk Officer SPOl Primitivo Monsalve
(SPOJ Monsalve) dispatched SP02 Dominador Javier (SP02 Javier) to go to the scene of
the crime and to render assistance.5 SP02 Javier, together with augmentation personnel
from the Airforce, A2C Alano Sayson and Airman Ruel Galvez, arrived at the scene of
the crime less than one hour after the alleged altercation6 and they saw Atty. Generoso
badly beaten.7
Atty. Generoso then pointed to the petitioners as those who mauled him. This prompted
the police officers to "invite" the petitioners to go to Batasan Hills Police Station for
investigation.8 The petitioners went with the police officers to Batasan Hills Police
Station.9 At the inquest proceeding, the City Prosecutor of Quezon City found that the
petitioners stabbed Atty. Generoso with a bladed weapon. Atty. Generoso fortunately
survived the attack.10
In an Information dated February 22, 2005, the petitioners were indicted for attempted
murder allegedly committed as follows:
That on or about the 20th h day of February, 2005, in Quezon City, Philippines, the said
accused, conspiring together, confederating with and mutually helping one another, with
intent to kill, qualified with evident premeditation, treachery and taking advantage of
superior strength, did then and there, willfully, unlawfully and feloniously commence the
commission of the crime of Murder directly by overt acts, by then and there stabbing one
Atty. MORENO GENEROSO y FRANCO, with a bladed weapon, but said accused were
not able to perform all the acts of execution which would produce the crime of Murder by
reason of some cause/s or accident other than their own spontaneous desistance, that is,
said complainant was able to parry the attack, to his damage and prejudice.

CONTRARY TO LAW.11
On March 7, 2005, the petitioners filed an Urgent Motion for Regular Preliminary
Investigation12 on the ground that they had not been lawfully arrested. They alleged that
no valid warrantless arrest took place since the police officers had no personal knowledge
that they were the perpetrators of the crime. They also claimed that they were just
"invited" to the police station. Thus, the inquest proceeding was improper, and a regular
procedure for preliminary investigation should have been performed pursuant to Rule 112
of the Rules of Court.13
On March 16, 2005, the RTC issued its order denying the petitioners' Urgent Motion for
Regular Preliminary Investigation.14 The court likewise denied the petitioners' motion
for reconsideration.15
The petitioners challenged the lower court's ruling before the CA on a Rule 65 petition
for certiorari. They attributed grave abuse of discretion, amounting to lack or excess of
jurisdiction, on the R TC for the denial of their motion for preliminary investigation.16
The Assailed CA Decision
On January 21, 2008, the CA issued its decision dismissing the petition for lack of
merit.17 The CA ruled that the word "invited" in the Affidavit of Arrest executed by SP02
Javier carried the meaning of a command. The arresting officer clearly meant to arrest the
petitioners to answer for the mauling of Atty. Generoso. The CA also recognized that the
arrest was pursuant to a valid warrantless arrest so that an inquest proceeding was called
for as a consequence. Thus, the R TC did not commit any grave abuse of discretion in
denying the Urgent Motion for Regular Preliminary Investigation.
The CA saw no merit in the petitioners' argument that the order denying the Urgent
Motion for Regular Preliminary Investigation is void for failure to clearly state the facts
and the law upon which it was based, pursuant to Rule 16, Section 3 of the Revised Rules
of Court. The CA found that the RTC had sufficiently explained the grounds for the
denial of the motion.
The petitioners moved for reconsideration, but the CA denied the motion in its Resolution
of April 17, 2008;18 hence, the present petition.
The Issues
The petitioners cited the following assignment of errors:
I.
WHETHER OR NOT THE PETITIONERS WERE VALIDLY ARRESTED WITHOUT
A WARRANT.
II.
WHETHER OR NOT THE PETITIONERS WERE LAWFULLY ARRESTED WHEN
THEY WERE MERELY INVITED TO THE POLICE PRECINCT.
III.
WHETHER OR NOT THE ORDER DENYING THE MOTION FOR PRELIMINARY
INVESTIGATION IS VOID FOR FAILURE TO STATE THE FACTS AND THE LAW
UPON WHICH IT WAS BASED.
The petitioners primarily argue that they were not lawfully arrested. No arrest warrant
was ever issued; they went to the police station only as a response to the arresting
officers' invitation. They even cited the Affidavit of Arrest, which actually used the word
"invited. "

The petitioners also claim that no valid warrantless arrest took place under the terms of
Rule 112, Section 7 of the Revised Rules of Court. The incident happened two (2) hours
before the police officers actually arrived at the crime scene. The police officers could not
have undertaken a valid warrantless arrest as they had no personal knowledge that the
petitioners were the authors of the crime.
The petitioners additionally argue that the R TC' s Order denying the Urgent Motion for
Regular Preliminary Investigation is void because it was not properly issued.
The Court's Ruling
We find the petition unmeritorious and thus uphold the RTC Order. The criminal
proceedings against the petitioners should now proceed.
It is unfortunate that the kind of motion that the petitioners filed has to reach this Court
for its resolution. The thought is very tempting that the motion was employed simply to
delay the proceedings and that the use of Rule 65 petition has been abused.
But accepting things as they are, this delay can be more than compensated by fully
examining in this case the legalities surrounding warrantless warrants and establishing
the proper interpretation of the Rules for the guidance of the bench and the bar. These
Rules have evolved over time, and the present case presents to us the opportunity to retrace their origins, development and the current applicable interpretation.
I. Brief history on warrantless arrests
The organic laws of the Philippines, specifically, the Philippine Bill of 1902,19 and the
1935,20 197321 and 198722 Constitutions all protect the right of the people to be secure
in their persons against unreasonable searches and seizures. Arrest falls under the term
"seizure. "23
This constitutional mandate is identical with the Fourth Amendment of the Constitution
of the United States. The Fourth Amendment traces its origins to the writings of Sir
Edward Coke24 and The Great Charter of the Liberties of England (Magna Carta
Libertatum), sealed under oath by King John on the bank of the River Thames near
Windsor, England on June 15, 1215.25 The Magna Carta Libertatum limited the King of
England's powers and required the Crown to proclaim certain liberties26 under the feudal
vassals' threat of civil war.27 The declarations in Chapter 29 of the Magna Carta
Libertatum later became the foundational component of the Fourth Amendment of the
United States Constitution.28 It provides:
No freeman shall be taken, or imprisoned, or be disseised29 of his Freehold, or Liberties,
or free Customs, or be outlawed, or exiled, or any otherwise destroyed; nor will we not
pass upon him, nor condemn him, but by lawful Judgment of his Peers, or by the Law of
the Land, We will sell to no man, we will not deny or defer to any man either Justice or
Right.30 [Emphasis supplied]
In United States v. Snyder,31 the United States Supreme Court held that this
constitutional provision does not prohibit arrests, searches and seizures without judicial
warrant, but only those that are unreasonable.32 With regard to an arrest, it is considered
a seizure, which must also satisfy the test of reasonableness.33
In our jurisdiction, early rulings of the Court have acknowledged the validity of
warrantless arrests. The Court based these rulings on the common law of America and
England that, according to the Court, were not different from the Spanish laws.34 These
court rulings likewise justified warrantless arrests based on the provisions of separate
laws then existing in the Philippines.35

In 1905, the Court held in The United States v. Wilson36 that Section 3737 of Act No.
183, or the Charter of Manila, defined the arresting officer's power to arrest without a
warrant, at least insofar as the City of Manila was concerned.
In The United States v. Vallejo, et al.,38 the Court held that in the absence of any
provisions under statutes or local ordinances, a police officer who held similar functions
as those of the officers established under the common law of England and America, also
had the power to arrest without a warrant in the Philippines.
The Court also ruled in The United States v. Santos39 that the rules on warrantless arrest
were based on common sense and reason.40 It further held that warrantless arrest found
support under the then Administrative Code41 which directed municipal policemen to
exercise vigilance in the prevention of public offenses.
In The United States v. Fortaleza,42 the Court applied Rules 27, 28, 29 and 3043 of the
Provisional Law for the Application of the Penal Code which were provisions taken from
the Spanish Law.
These rules were subsequently established and incorporated in our Rules of Court and
jurisprudence. Presently, the requirements of a warrantless arrest are now summarized in
Rule 113, Section 5 which states that: Section 5. Arrest without warrant; when lawful. - A
peace officer or a private person may, without a warrant, arrest a person:
(a) When, in his presence, the person to be arrested has committed, is actually
committing, or is attempting to commit an offense;
(b) When an offense has just been committed, and he has probable cause to believe based
on personal knowledge of facts or circumstances that the person to be arrested has
committed it; and
(c) When the person to be arrested is a prisoner who has escaped from a penal
establishment or place where he is serving final judgment or is temporarily confined
while his case is pending, or has escaped while being transferred from one confinement
to another.
In cases falling under paragraph (a) and (b) above, the person arrested without a warrant
shall be forth with delivered to the nearest police station or jail and shall be proceeded
against in accordance with section 7 of Rule 112.
A warrantless arrest under the circumstances contemplated under Section 5(a) above has
been denominated as one "in flagrante delicto," while that under Section 5(b) has been
described as a "hot pursuit" arrest.44
For purposes of this case, we shall focus on Section 5(b) the provision applicable in the
present case. This provision has undergone changes through the years not just in its
phraseology but also in its interpretation in our jurisprudence.
We shall first trace the evolution of Section 5(b) and examine the applicable American
and Philippine jurisprudence to fully understand its roots and its appropriate present
application.
II. Evolution of Section 5(b), Rule 113
A. Prior to the 1940 Rules of Court
Prior to 1940, the Court based its rulings not just on American and English common law
principle on warrantless arrests but also on laws then existing in the Philippines. In
Fortaleza,45 the Court cited Rule 28 of the Provisional Law for the Application of the
Penal Code which provided that:

Judicial and administrative authorities have power to detain, or to cause to be detained,

persons whom there is reasonable ground to believe guilty of some offense. It will be the
duty of the authorities, as well as of their agents, to arrest:
First. Such persons as may be arrested under the provisions of rule 27.
Second. A person charged with a crime for which the code provides a penalty greater than
that of confinamiento.
Third. A person charged with a crime for which the code provides a penalty less than that
of confinamiento, if his antecedents or the circumstances of the case would warrant the
presumption that he would fail to appear when summoned by the judicial authorities.
The provisions of the preceding paragraph shall not apply, however, to a defendant who
gives sufficient bond, to the satisfaction of the authority or agent who may arrest him,
and who it may reasonably be presumed will appear whenever summoned by the judge or
court competent to try him.
Fourth. A person coining under the provisions of the preceding paragraph may be
arrested, although no formal complaint has been filed against him, provided the following
circumstances are present:
First. That the authority or agent had reasonable cause to believe that an unlawful act,
amounting to a crime had been committed.
Second. That the authority or agent had sufficient reason to believe that the person
arrested participated in the commission of such unlawful act or crime." [Emphasis and
underscoring supplied]
In the same decision, the Court likewise cited Section 3 7 of the Charter of Manila, which
provided that certain officials, including police officers may, within the territory defined
in the law, pursue and arrest without warrant, any person found in suspicious places or
under suspicious circumstances, reasonably tending to show that such person has
committed, or is about to commit any crime or breach of the peace.
In Santos,46 the Court cited Miles v. Weston,47 which ruled that a peace officer may
arrest persons walking in the street at night when there is reasonable ground to suspect
the commission of a crime, although there is no proof of a felony having been committed.
The Court ruled in Santos that the arresting officer must justify that there was a probable
cause for an arrest without a warrant. The Court defined probable cause as a reasonable
ground of suspicion, supported by circumstances sufficiently strong in themselves as to
warrant a reasonable man in believing that the accused is guilty. Besides reasonable
ground of suspicion, action in good faith is another requirement. Once these conditions
are complied with, the peace officer is not liable even if the arrested person turned out to
be innocent.
Based on these discussions, it appears clear that prior to the 1940 Rules of Court, it was
not necessary for the arresting officer to first have knowledge that a crime was actually
committed. What was necessary was the presence of reasonably sufficient grounds to
believe the existence of an act having the characteristics of a crime; and that the same
grounds exist to believe that the person sought to be detained participated in it. In
addition, it was also established under the old court rulings that the phrase "reasonable
suspicion" was tantamount to probable cause without which, the warrantless arrest would
be invalid and the arresting officer may be held liable for its breach.48
In The US. v. Hachaw,49 the Court invalidated the warrantless arrest of a Chinaman
because the arresting person did not state in what way the Chinaman was acting

suspiciously or the particular act or circumstance which aroused the arresting person's
curiosity.
It appears, therefore, that prior to the establishment in our Rules of Court of the rules on
warrantless arrests, the gauge for a valid warrantless arrest was the arresting officer's
reasonable suspicion (probable cause) that a crime was committed and the person sought
to be arrested has participated in its commission. This principle left so much discretion
and leeway on the part of the arresting officer. However, the 1940 Rules of Court has
limited this discretion.
B. The 1940 Rules of Court
(Restricting the arresting
officer's determination of
probable cause)
Rules 27 and 28 of the Provisional Law for the Application of the Penal Code were
substantially incorporated in Section 6, Rule 109 of the 1940 Rules of Court as
follows:50
SEC. 6. Arrest without warrant - When lawful. - A peace officer or a private person may,
without a warrant, arrest a person:
(a) When the person to be arrested has committed, is actually committing, or is about to
commit an offense in his presence;
(b) When an offense has in fact been committed, and he has reasonable ground to believe
that the person to be arrested has committed it;
(c) When the person to be arrested is a prisoner who has escaped from a penal
establishment or place where he is serving final judgment or temporarily confined while
his case is pending, or has escaped while being transferred from one confinement to
another. [Emphasis and underscoring supplied]
These provisions were adopted in toto in Section 6, Rule 113 of the 1964 Rules of Court.
Notably, the 1940 and 1964 Rules have deviated from the old rulings of the Court. Prior
to the 1940 Rules, the actual commission of the offense was not necessary in determining
the validity of the warrantless arrest. Too, the arresting officer's determination of probable
cause (or reasonable suspicion) applied both as to whether a crime has been committed
and whether the person to be arrested has committed it.
However, under the 1940 and the 1964 Rules of Court, the Rules required that there
should be actual commission of an offense, thus, removing the element of the arresting
officer's "reasonable suspicion of the commission of an offense." Additionally, the
determination of probable cause, or reasonable suspicion, was limited only to the
determination of whether the person to be arrested has committed the offense. In other
words, the 1940 and 1964 Rules of Court restricted the arresting officer's discretion in
warrantless arrests under Section 6(b), Rule 113 of the 1964 Rules of Court.
C. The more restrictive 1985 Rules of Criminal Procedure
Section 6, Rule 113 of the 1964 Rules of Court again underwent substantial changes and
was re-worded and re-numbered when it became Section 5, Rule 113 of the 1985 Rules
of Criminal Procedure, to wit:
Sec. 5. Arrest without warrant; when. lawful. - A peace officer or a private person may,
without a warrant, arrest a person:
(a) When, in his presence, the person to be arrested has committed, is actually
committing, or is attempting to commit an offense;

(b) When an offense has in fact just been committed, and he has personal knowledge of
facts indicating that the person to be arrested has committed it; and
(c) When the person to be arrested is a prisoner who has escaped from a penal
establishment or place where he is serving final judgment or temporarily confined while
his case is pending, or has escaped while being transferred from one confinement to
another. In cases falling under paragraphs (a) and (b) hereof, the person arrested without a
warrant shall be forthwith delivered to the nearest police station or jail, and he shall be
proceeded against in accordance with Rule 112, Section 7. [Emphasis and underscoring
supplied]
As amended, Section 5(b ), Rule 113 of the 1985 Rules of Court retained the restrictions
introduced under the 1964 Rules of Court. More importantly, however, it added a
qualification that the commission of the offense should not only have been "committed"
but should have been "just committed." This limited the arresting officer's time frame for
conducting an investigation for purposes of gathering information indicating that the
person sought to be arrested has committed the crime.
D. The Present Revised Rules of Criminal Procedure
Section 5(b ), Rule 113 of the 1985 Rules of Criminal Procedure was further amended
with the incorporation of the word "probable cause" as the basis of the arresting officer's
determination on whether the person to be arrested has committed the crime.
Hence, as presently worded, Section 5(b), Rule 113 of the Revised Rules of Criminal
Procedure provides that:
When an offense has just been committed, and he has probable cause to believe based on
personal knowledge of facts or circumstances that the person to be arrested has
committed it.
From the current phraseology of the rules on warrantless arrest, it appears that for
purposes of Section S(b ), the following are the notable changes: first, the contemplated
offense was qualified by the word "just," connoting immediacy; and second, the
warrantless arrest of a person sought to be arrested should be based on probable cause to
be determined by the arresting officer based on his personal knowledge of facts and
circumstances that the person to be arrested has committed it.
It is clear that the present rules have "objectified" the previously subjective determination
of the arresting officer as to the (1) commission of the crime; and (2) whether the person
sought to be arrested committed the crime. According to Feria, these changes were
adopted to minimize arrests based on mere suspicion or hearsay.51
As presently worded, the elements under Section 5(b), Rule 113 of the Revised Rules of
Criminal Procedure are: first, an offense has just been committed; and second, the
arresting officer has probable cause to believe based on personal knowledge of facts or
circumstances that the person to be arrested has committed it.
For purposes of this case, we shall discuss these elements separately below, starting with
the element of probable cause, followed by the elements that the offense has just been
committed, and the arresting officer's personal knowledge of facts or circumstances that
the person to be arrested has committed the crime.
i) First Element of Section 5(b), Rule 113 of the Revised Rules of Criminal Procedure:
Probable cause
The existence of "probable cause" is now the "objectifier" or the determinant on how the
arresting officer shall proceed on the facts and circumstances, within his personal

knowledge, for purposes of determining whether the person to be arrested has committed
the crime.
i.a) U.S. jurisprudence on probable cause in warrantless arrests
In Payton v. New York,52 the U.S. Supreme Court held that the Fourth Amendment of the
Federal Constitution does not prohibit arrests without a warrant although such arrests
must be reasonable. According to State v. Quinn,53 the warrantless arrest of a person who
was discovered in the act of violating the law is not a violation of due process.
The U.S. Supreme Court, however indicated in Henry v. United States54 that the Fourth
Amendment limited the circumstances under which warrantless arrests may be made. The
necessary inquiry is not whether there was a warrant or whether there was time to get
one, but whether at the time of the arrest probable cause existed. The term probable cause
is synonymous to "reasonable cause" and "reasonable grounds."55
In determining the existence of probable cause, the arresting officer should make a
thorough investigation and exercise reasonable judgment. The standards for evaluating
the factual basis supporting a probable cause assessment are not less stringent in
warrantless arrest situation than in a case where a warrant is sought from a judicial
officer. The probable cause determination of a warrantless arrest is based on information
that the arresting officer possesses at the time of the arrest and not on the information
acquired later.56
In evaluating probable cause, probability and not certainty is the determinant of
reasonableness under the Fourth Amendment. Probable cause involves probabilities
similar to the factual and practical questions of everyday life upon which reasonable and
prudent persons act. It is a pragmatic question to be determined in each case in light of
the particular circumstances and the particular offense involved.57
In determining probable cause, the arresting officer may rely on all the information in his
possession, his fair inferences therefrom, including his observations. Mere suspicion does
not meet the requirements of showing probable cause to arrest without warrant especially
if it is a mere general suspicion. Probable cause may rest on reasonably trustworthy
information as well as personal knowledge. Thus, the arresting officer may rely on
information supplied by a witness or a victim of a crime; and under the circumstances,
the arresting officer need not verify such information.58
In our jurisdiction, the Court has likewise defined probable cause in the context of
Section 5(b), Rule 113 of the Revised Rules of Criminal Procedure.
In Abelita Ill v. Doria et al.,59 the Court held that personal knowledge of facts must be
based on probable cause, which means an actual belief or reasonable grounds of
suspicion. The grounds of suspicion are reasonable when, in the absence of actual belief
of the arresting officers, the suspicion that the person to be arrested is probably guilty of
committing the offense is based on actual facts, i.e., supported by circumstances
sufficiently strong in themselves to create the probable cause of guilt of the person to be
arrested. A reasonable suspicion, therefore, must be founded on probable cause, coupled
with good faith on the part of the peace officers making the arrest.
i.b) Probable cause under Section 5(b), Rule 113 of the Revised Rules of Criminal
Procedure, distinguished from probable cause in preliminary investigations and the
judicial proceeding for the issuance of a warrant of arrest
The purpose of a preliminary investigation is to determine whether a crime has been
committed and whether there is probable cause to believe that the accused is guilty of the

crime and should be held for triat.60 In Buchanan v. Viuda de Esteban,61 we defined
probable cause as the existence of facts and circumstances as would excite the belief in a
reasonable mind, acting on the facts within the knowledge of the prosecutor, that the
person charged was guilty of the crime for which he was prosecuted.
In this particular proceeding, the finding of the existence of probable cause as to the guilt
of the respondent was based on the submitted documents of the complainant, the
respondent and his witnesses.62
On the other hand, probable cause in judicial proceedings for the issuance of a warrant of
arrest is defined as the existence of such facts and circumstances that would lead a
reasonably discreet and prudent person to believe that an offense has been committed by
the person sought to be arrested.
Hence, before issuing a warrant of arrest, the judge must be satisfied that based on the
evidence submitted, there is sufficient proof that a crime has been committed and that the
person to be arrested is probably guilty thereof. At this stage of the criminal proceeding,
the judge is not yet tasked to review in detail the evidence submitted during the
preliminary investigation. It is sufficient that he personally evaluates the evidence in
determining probable cause63 to issue a warrant of arrest.
In contrast, the arresting officer's determination of probable cause under Section 5(b),
Rule 113 of the Revised Rules of Criminal Procedure is based on his personal knowledge
of facts or circumstances that the person sought to be arrested has committed the crime.
These facts or circumstances pertain to actual facts or raw evidence, i.e., supported by
circumstances sufficiently strong in themselves to create the probable cause of guilt of
the person to be arrested. A reasonable suspicion therefore must be founded on probable
cause, coupled with good faith on the part of the peace officers making.the arrest.
The probable cause to justify warrantless arrest ordinarily signifies a reasonable ground
of suspicion supported by circumstances sufficiently strong in themselves to warrant a
cautious man to believe that the person accused is guilty of the offense with which he is
charged,64 or an actual belief or reasonable ground of suspicion, based on actual facts.65
It is clear therefore that the standard for determining "probable cause" is invariable for
the officer arresting without a warrant, the public prosecutor, and the judge issuing a
warrant of arrest. It is the existence of such facts and circumstances that would lead a
reasonably discreet and prudent person to believe that an offense has been committed by
the person sought to be arrested or held for trial, as the case may be.
However, while the arresting officer, the public prosecutor and the judge all determine
"probable cause," within the spheres of their respective functions, its existence is
influenced heavily by the available facts and circumstance within their possession. In
short, although these officers use the same standard of a reasonable man, they possess
dissimilar quantity of facts or circumstances, as set by the rules, upon which they must
determine probable cause.
Thus, under the present rules and jurisprudence, the arresting officer should base his
determination of probable cause on his personal knowledge of facts and circumstances
that the person sought to be arrested has committed the crime; the public prosecutor and
the judge must base their determination on the evidence submitted by the parties.
In other words, the arresting officer operates on the basis of more limited facts, evidence
or available information that he must personally gather within a limited time frame.

Hence, in Santos,66 the Court acknowledged the inherent limitations of determining

probable cause in warrantless arrests due to the urgency of its determination in these
instances. The Court held that one should not expect too much of an ordinary policeman.
He is not presumed to exercise the subtle reasoning of a judicial officer. Oftentimes, he
has no opportunity to make proper investigation but must act in haste on his own belief to
prevent the escape of the criminal.67
ii) Second and Third Elements of Section 5(b), Rule 113:
The crime has just been committed/personal
knowledge of facts or circumstances that the person
to be arrested has committed it
We deem it necessary to combine the discussions of these two elements as our
jurisprudence shows that these were usually taken together in the Court's determination
of the validity of the warrantless arrests that were made pursuant to Section 5(b), Rule
113 of the Revised Rules of Criminal Procedure.
In Posadas v. Ombudsman,68 the killing of Dennis Venturina happened on December 8,
1994. It was only on December 11, 1994 that Chancellor Posadas requested the NBI's
assistance. On the basis of the supposed identification of two (2) witnesses, the NBI
attempted to arrest Francis Carlo Taparan and Raymundo Narag three (3) days after the
commission of the crime. With this set of facts, it cannot be said that the officers have
personal knowledge of facts or circumstances that the persons sought to be arrested
committed the crime. Hence, the Court invalidated the warrantless arrest.
Similarly, in People v. Burgos,69 one Cesar Masamlok personally and voluntarily
surrendered to the authorities, stating that Ruben Burgos forcibly recruited him to
become a member of the NPA, with a threat of physical harm. Upon receipt of this
information, a joint team of PC-INP units was dispatched to arrest Burgos who was then
plowing the field. Indeed, the arrest was invalid considering that the only information that
the police officers had in effecting the arrest was the information from a third person. It
cannot be also said in this case that there was certainty as regards the commission of a
crime.
In People v. del Rosario,70 the Court held that the requirement that an offense has just
been committed means that there must be a large measure of immediacy between the time
the offense was committed and the time of the arrest. If there was an appreciable lapse of
time between the arrest and the commission of the crime, a warrant of arrest must be
secured.
The Court held that the arrest of del Rosario did not comply with these requirements
because he was arrested only a day after the commission of the crime and not
immediately thereafter. Additionally, the arresting officers were not present and were not
actual eyewitnesses to the crime. Hence, they had no personal knowledge of facts
indicating that the person to be arrested had committed the offense. They became aware
of del Rosario's identity as the driver of the getaway tricycle only during the custodial
investigation.
In People v. Cendana,71 the accused was arrested one (1) day after the killing of the
victim and only on the basis of information obtained from unnamed sources. The
unlawful arrest was held invalid.
In Rolito Go v. CA,72 the arrest of the accused six ( 6) days after the commission of the
crime was held invalid because the crime had not just been committed. Moreover, the

"arresting" officers had no "personal knowledge" of facts indicating that the accused was
the gunman who had shot the victim. The information upon which the police acted came
from statements made by alleged eyewitnesses to the shooting; one stated that the
accused was the gunman; another was able to take down the alleged gunman's car's plate
number which turned out to be registered in the name of the accused's wife. That
information did not constitute "personal knowledge."
In People v. Tonog, Jr.,73 the warrantless arrest which was done on the same day was
held valid. In this case, the arresting officer had knowledge of facts which he personally
gathered in the course of his investigation, indicating that the accused was one of the
perpetrators.
In People v. Gerente,74 the policemen arrested Gerente only about three (3) hours after
Gerente and his companions had killed the victim. The Court held that the policemen had
personal knowledge of the violent death of the victim and of facts indicating that Gerente
and two others had killed him. The warrantless arrest was held valid.
In People v. Alvario,75 the warrantless arrest came immediately after the arresting
officers received information from the victim of the crime. The Court held that the
personal knowledge of the arresting officers was derived from the information supplied
by the victim herself who pointed to Alvario as the man who raped her at the time of his
arrest. The Court upheld the warrantless arrest. In People v. Jayson,76 there was a
shooting incident. The policemen who were summoned to the scene of the crime found
the victim. The informants pointed to the accused as the assailant only moments after the
shooting. The Court held that the arresting officers acted on the basis of personal
knowledge of the death of the victim and of facts indicating that the accused was the
assailant. Thus, the warrantless arrest was held valid.
In People v. Acol,77 a group held up the passengers in a jeepney and the policemen
immediately responded to the report of the crime. One of the victims saw four persons
walking towards Fort Bonifacio, one of whom was wearing his jacket. The victim pointed
them to the policemen. When the group saw the policemen coming, they ran in different
directions. The Court held that the arrest was valid.
In Cadua v. CA,78 there was an initial report to the police concerning a robbery. A radio
dispatch was then given to the arresting officers, who proceeded to Alden Street to verify
the authenticity of the radio message. When they reached the place, they met with the
complainants who initiated the report about the robbery. Upon the officers' invitation, the
victims joined them in conducting a search of the nearby area where the accused was
spotted in the vicinity. Based on the reported statements of the complainants, he was
identified as a logical suspect in the offense just committed. Hence, the arrest was held
valid.
In Doria,79 the Court held that Section S(b ), Rule 113 of the 1985 Rules of Criminal
Procedure does not require the arresting officers to personally witness the commission of
the offense.
In this case, P/Supt. Doria alleged that his office received a telephone call from a relative
of Rosa Sia about a shooting incident. He dispatched a team headed by SP03 Ramirez to
investigate the incident. SP03 Ramirez later reported that a certain William Sia was
wounded while Judge Abelita III, who was implicated in the incident, and his wife just
left the place of the incident. P/Supt. Doria looked for Abelita III and when he found him,
he informed him of the incident report. P/Supt. Doria requested Abelita III to go with him

to the police headquarters as he had been reported to be involved in the incident. Abelita
III agreed but suddenly sped up his vehicle and proceeded to his residence where P/Supt.
Doria caught him up as he was about to run towards his house.
The police officers saw a gun in the front seat of the vehicle beside the driver's seat as
Abelita III opened the door. They also saw a shotgun at the back of the driver's seat. The
police officers confiscated the firearms and arrested Abelita III. The Court held that the
petitioner's act of trying to get away, coupled with the incident report which they
investigated, were enough to raise a reasonable suspicion on the part of the police
authorities as to the existence of probable cause. Based on these discussions, it appears
that the Court's appreciation of the elements that "the offense has just been committed"
and ''personal knowledge of facts and circumstances that the person to be arrested
committed it" depended on the particular circumstances of the case. However, we note
that the element of ''personal knowledge of facts or circumstances" under Section S(b ),
Rule 113 of the Revised Rules of Criminal Procedure requires clarification.
The phrase covers facts or, in the alternative, circumstances. According to the Black's
Law Dictionary,80 "circumstances are attendant or accompanying facts, events or
conditions. " Circumstances may pertain to events or actions within the actual perception,
personal evaluation or observation of the police officer at the scene of the crime. Thus,
even though the police officer has not seen someone actually fleeing, he could still make
a warrantless arrest if, based on his personal evaluation of the circumstances at the scene
of the crime, he could determine the existence of probable cause that the person sought to
be arrested has committed the crime. However, the determination of probable cause and
the gathering of facts or circumstances should be made immediately after the commission
of the crime in order to comply with the element of immediacy.
In other words, the clincher in the element of ''personal knowledge of facts or
circumstances" is the required element of immediacy within which these facts or
circumstances should be gathered. This required time element acts as a safeguard to
ensure that the police officers have gathered the facts or perceived the circumstances
within a very limited time frame. This guarantees that the police officers would have no
time to base their probable cause finding on facts or circumstances obtained after an
exhaustive investigation.
The reason for the element of the immediacy is this - as the time gap from the
commission of the crime to the arrest widens, the pieces of information gathered are
prone to become contaminated and subjected to external factors, interpretations and
hearsay. On the other hand, with the element of immediacy imposed under Section 5(b),
Rule 113 of the Revised Rules of Criminal Procedure, the police officer's determination
of probable cause would necessarily be limited to raw or uncontaminated facts or
circumstances, gathered as they were within a very limited period of time. The same
provision adds another safeguard with the requirement of probable cause as the standard
for evaluating these facts of circumstances before the police officer could effect a valid
warrantless arrest.
In light of the discussion above on the developments of Section 5(b), Rule 113 of the
Revised Rules of Criminal Procedure and our jurisprudence on the matter, we hold that
the following must be present for a valid warrantless arrest: 1) the crime should have
been just committed; and 2) the arresting officer's exercise of discretion is limited by the
standard of probable cause to be determined from the facts and circumstances within his

personal knowledge. The requirement of the existence of probable cause objectifies the
reasonableness of the warrantless arrest for purposes of compliance with the
Constitutional mandate against unreasonable arrests.
Hence, for purposes of resolving the issue on the validity of the warrantless arrest of the
present petitioners, the question to be resolved is whether the requirements for a valid
warrantless arrest under Section 5(b), Rule 113 of the Revised Rules of Criminal
Procedure were complied with, namely: 1) has the crime just been committed when they
were arrested? 2) did the arresting officer have personal knowledge of facts and
circumstances that the petitioners committed the crime? and 3) based on these facts and
circumstances that the arresting officer possessed at the time of the petitioners' arrest,
would a reasonably discreet and prudent person believe that the attempted murder of Atty.
Generoso was committed by the petitioners? We rule in the affirmative.
III. Application of Section S(b), Rule 113 of the Revised Rules
of Criminal Procedure in the present case: there was a
valid warrantless arrest
We deem it necessary to review the records of the CA because it has misapprehended the
facts in its decision.81 From a review of the records, we conclude that the police officers
had personal knowledge of facts or circumstances upon which they had properly
determined probable cause in effecting a warrantless arrest against the petitioners. We
note, however, that the determination of the facts in the present case is purely limited to
the resolution of the issue on the validity of the warrantless arrests of the petitioners.
Based on the police blotter82 entry taken at 4:15 a.m. on February 20, 2005, the date that
the alleged crime was committed, the petitioners were brought in for investigation at the
Batasan Hills Police Station. The police blotter stated that the alleged crime was
committed at 3:15 a.m. on February 20, 2005, along Kasiyahan St., Brgy. Holy Spirit,
Quezon City.
The time of the entry of the complaint in the police blotter at 4:15 a.m., with Atty.
Generoso and the petitioners already inside the police station, would connote that the
arrest took place less than one hour from the time of the occurrence of the crime. Hence,
the CA finding that the arrest took place two (2) hours after the commission of the crime
is unfounded.
The arresting officers' personal observation of Atty. Generoso's bruises when they arrived
at the scene of the crime is corroborated by the petitioners' admissions that Atty:
Generoso indeed suffered blows from petitioner Macapanas and his brother Joseph
Macapanas,83 although they asserted that they did it in self-defense against Atty.
Generoso.
Atty. Generoso's bruises were also corroborated by the Medico-Legal Certificate84 that
was issued by East Avenue Medical Center on the same date of the alleged mauling. The
medical check-up of Atty. Generoso that was made about 8:10 a.m. on the date of the
incident, showed the following findings: "Contusion Hematoma, Left Frontal Area;
Abrasion, T6 area, right midclavicular line periorbital hematoma, left eye; Abrasion,
distal 3rd posterolateral aspect of right forearm; Abrasion, 4th and fifth digit, right hand;
Abrasion on area of ih rib (L ant. Chest wall), tenderness on L peripheral area, no visible
abrasion. In addition, the attending physician, Dr. Eva P. Javier, diagnosed Atty. Generoso
of contusion hematoma, periorbital L., and traumatic conjunctivitis, o.s.

To summarize, the arresting officers went to the scene of the crime upon the complaint of
Atty. Generoso of his alleged mauling; the police officers responded to the scene of the
crime less than one (1) hour after the alleged mauling; the alleged crime transpired in a
community where Atty. Generoso and the petitioners reside; Atty. Generoso positively
identified the petitioners as those responsible for his mauling and, notably, the
petitioners85 and Atty. Generoso86 lived almost in the same neighborhood; more
importantly, when the petitioners were confronted by the arresting officers, they did not
deny their participation in the incident with Atty. Generoso, although they narrated a
different version of what transpired.87
With these facts and circumstances that the police officers gathered and which they have
personally observed less than one hour from the time that they have arrived at the scene
of the crime until the time of the arrest of the petitioners, we deem it reasonable to
conclude that the police officers had personal knowledge of facts or circumstances
justifying the petitioners' warrantless arrests. These circumstances were well within the
police officers' observation, perception and evaluation at the time of the arrest. These
circumstances qualify as the police officers' personal observation, which are within their
personal knowledge, prompting them to make the warrantless arrests.
Similar to the factual antecedents in Jayson,88 the police officers in the present case saw
Atty. Generoso in his sorry bloodied state. As the victim, he positively identified the
petitioners as the persons who mauled him; however, instead of fleeing like what
happened in Jayson, the petitioners agreed to go with the police officers.
This is also similar to what happened in People v. Tonog, Jr.89 where Tonog did not flee
but voluntarily went with the police officers. More than this, the petitioners in the present
case even admitted to have been involved in the incident with Atty. Generoso, although
they had another version of what transpired.
In determining the reasonableness of the warrantless arrests, it is incumbent upon the
courts to consider if the police officers have complied with the requirements set under
Section 5(b), Rule 113 of the Revised Rules of Criminal Procedure, specifically, the
requirement of immediacy; the police officer's personal knowledge of facts or
circumstances; and lastly, the propriety of the determination of probable cause that the
person sought to be arrested committed the crime.
The records show that soon after the report of the incident occurred, SPOl Monsalve
immediately dispatched the arresting officer, SP02 Javier, to render personal assistance to
the victim.90 This fact alone negates the petitioners' argument that the police officers did
not have personal knowledge that a crime had been committed - the police immediately
responded and had personal knowledge that a crime had been committed.1wphi1
To reiterate, personal knowledge of a crime just committed under the terms of the abovecited provision, does not require actual presence at the scene while a crime was being
committed; it is enough that evidence of the recent commission of the crime is patent (as
in this case) and the police officer has probable cause to believe based on personal
knowledge of facts or circumstances, that the person to be arrested has recently
committed the crime.
Considering the circumstances of the stabbing, particularly the locality where it took
place, its occasion, the personal circumstances of the parties, and the immediate on-thespot investigation that took place, the immediate and warrantless arrests of the

perpetrators were proper. Consequently, the inquest proceeding that the City Prosecutor
conducted was appropriate under the circumstances.
IV. The term "invited" in the Affidavit of Arrest is construed to
mean as an authoritative command
After the resolution of the validity of the warrantless arrest, the discussion of the
petitioners' second issue is largely academic. Arrest is defined as the taking of a person
into custody in order that he may be bound to answer for the commission of an offense.
An arrest is made by an actual restraint of the person to be arrested, or by his submission
to the custody of the person making the arrest.91 Thus, application of actual force,
manual touching of the body, physical restraint or a formal declaration of arrest is not
required. It is enough that there be an intention on the part of one of the parties to arrest
the other and the intent of the other to submit, under the belief and impression that
submission is necessary.92
Notwithstanding the term "invited" in the Affidavit of Arrest,93 SP02 Javier could not but
have the intention of arresting the petitioners following Atty. Generoso' s account. SP02
Javier did not need to apply violent physical restraint when a simple directive to the
petitioners to follow him to the police station would produce a similar effect. In other
words, the application of actual force would only be an alternative if the petitioners had
exhibited resistance.
To be sure, after a crime had just been committed and the attending policemen have
acquired personal knowledge of the incidents of the crime, including the alleged
perpetrators, the arrest of the petitioners as the perpetrators pointed to by the victim, was
not a mere random act but was in connection with a particular offense. Furthermore,
SP02 Javier had informed the petitioners, at the time of their arrest, of the charges against
them before taking them to Batasan Hills Police Station for investigation.94
V. The Order denying the motion for preliminary
investigation is valid
People vs. Burgos (G.R. No. L-68955 September 4, 1986)
G.R. No. L-68955 September 4, 1986
PEOPLE OF THE PHILIPPINES, plaintiff-appellee,
vs.
RUBEN BURGOS y TITO, defendant-appellant.
Facts: Defendant is charged with illegal possession of firearm in furtherance of
subversion (tasks such as recruiting members to the NPA and collection of contributions
from its members) and found guilty by the RTC of Digos, Davao del Sur. From the
information filed by the police authorities upon the information given by Masamlok,
allegedly a man defendant tried to recruit into the NPA, the police authorities arrest
defendant and had his house searched. Subsequently, certain NPA-related documents and
a firearm, allegedly issued and used by one Alias Cmdr. Pol of the NPA, are confiscated.
Defendant denies being involved in any subversive activities and claims that he has been
tortured in order to accept ownership of subject firearm and that his alleged extrajudicial
statements have been made only under fear, threat and intimidation on his person and his
family. He avers that his arrest is unlawful as it is done without valid warrant, that the
trial court erred in holding the search warrant in his house for the firearm lawful, and that
the trial court erred in holding him guilty beyond reasonable doubt for violation of PD 9
in relation to GOs 6and 7.

In their last ditch attempt at avoidance, the petitioners attack the R TC Order denying the
petitioners' urgent motion for regular preliminary investigation for allegedly having been
issued in violation of Article VIII, Section 14 of the 1987 Constitution95 and Rule 16,
Section 3 of the Revised Rules of Court.96
The RTC, in its Order dismissing the motion, clearly states that the Court is not
persuaded by the evidentiary nature of the allegations in the said motion of the accused.
Aside from lack of clear and convincing proof, the Court, in the exercise of its sound
discretion on the matter, is legally bound to pursue and hereby gives preference to the
speedy disposition of the case."
We do not see any taint of impropriety or grave abuse of discretion in this Order. The
RTC, in resolving the motion, is not required to state all the facts found in the record of
the case. Detailed evidentiary matters, as the RTC decreed, is best reserved for the fullblown trial of the case, not in the preliminary incidents leading up to the trial.
Additionally, no less than the Constitution itself provides that it is the decision that
should state clearly and distinctly the facts and the law on which it is based. In resolving
a motion, the court is only required to state clearly and distinctly the reasons therefor. A
contrary system would only prolong the proceedings, which was precisely what happened
to this case. Hence, we uphold the validity of the RTC's order as it correctly stated the
reason for its denial of the petitioners' Urgent Motion for Regular Preliminary
Investigation. WHEREFORE, premises considered, we hereby DENY the petition, and
hereby AFFIRM the decision dated January 21, 2008 and the resolution dated April 17,
2008 of the Court of Appeals in CA-G.R. SP No. 91541. The City Prosecutor of Quezon
City is hereby ORDERED to proceed with the criminal proceedings against the
petitioners.
SO ORDERED.

Issue: If defendants arrest, the search of his home, and the subsequent confiscation of a
firearm and several NPA-related documents are lawful.
Held: Records disclose that when the police went to defendants house to arrest him upon
the information given by Masamlok, they had neither search nor arrest warrant with them
in wanton violation of ArtIV, Sec 3 (now Art III, sec 2). As the Court held in
Villanueva vs Querubin, the state, however powerful, doesnt have access to a mans
home, his haven of refuge where his individuality can assert itself in his choice of
welcome and in the kind of objects he wants around him. In the traditional formulation, a
mans house, however humble, is his castle, and thus is outlawed any unwarranted
intrusion by the government.
The trial court justified the warrantless arrest under Rule 113 Sec 6 of the RoC:
a)
When the person to be arrested has committed, is actually committing, or is about
to commit an offense in his presence;
b)
When an offense has in fact been committed, and he has reasonable ground to
believe that the person to be arrested has committed it;

c)
When the person to be arrested is a prisoner who has escaped from a penal
establishment or place where he is serving final judgment or temporarily confined while
his case is pending or has escaped while being transferred from one confinement to
another
and the confiscation of the firearm under Rule 126, Sec 12:
A person charged with an offense may be searched for dangerous weapons or anything
which may be used as proof of the commission of the offense.
However, the trial court has erred in its conclusion that said warrantless arrest is under
the ambit of aforementioned RoC. At the time of defendants arrest, he wasnt in actual
possession of any firearm or subversive document, and was not committing any
subversive acthe was plowing his field. It is not enough that there is reasonable
ground to believe that the person to be arrested has committed a crime in a warrantless
arrest. An essential precondition is that a crime must have beenin fact or actually have
been committed first; it isnt enough to suspect a crime may have been committed. The
test of reasonable ground applies only to the identity of the perpetrator. The Court also
finds no compelling reason for the haste with which the arresting officers sought to arrest
the accused. We fail to see why they failed to first go through the process of obtaining a
warrant of arrest, if indeed they had reasonable ground to believe that the accused had
truly committed a crime. There is no showing that there was a real apprehension that the
Umil vs. Ramos
FACTS: This consolidated case of 8 petitions for habeas corpus assails the validity of the
arrests and searches made by the military on the petitioners. The arrests relied on the
confidential information that the authorities received. Except for one case where
inciting to sedition was charged, the rest are charged with subversion for being a member
of the New Peoples Army.
RULING: The arrests were legal. Regarding the subversion cases, the arrests were legal
since subversion is a form of a continuing crime together with rebellion, conspiracy or
proposal to commit rebellion/subversion, and crimes committed in furtherance thereof or
in connection therewith. On the inciting to sedition case, the arrest was legal since an
information was filed prior to his arrest. Lastly, the arrests were not fishing expeditions
but a result of an in-depth surveillance of NPA safe houses pinpointed by none other than
members of the NPA.
The right to preliminary investigation should be exercised by the offender as soon as
possible. Otherwise, it would be considered as impliedly waived and the filing of
information can proceed. This sort of irregularity is not sufficient to set aside a valid
judgment upon a sufficient complaint and after a trial free from error.
DISSENT: (Sarmiento, J.) The confidential information was nothing but hearsay. The
searches and arrests made were bereft of probable cause and that the petitioners were not
Republic of the Philippines
SUPREME COURT
Manila

accused was on the verge of flight or escape. Likewise, there is no showing that the
whereabouts of the accused were unknown.
In proving the ownership of the questioned firearm and alleged subversive documents,
assuming they were really illegal, the defendant was never informed of his constitutional
rights at the time of his arrest; thus the admissions obtained are in violation of the
constitutional right against self-incrimination under Sec 20 Art IV (now Sec 12, Art III)
and thus inadmissible as evidence.
Furthermore, the defendant was not accorded his constitutional right to be assisted by
counsel during the custodial interrogation. His extra-judicial confession, the firearm, and
the alleged subversive documents are all inadmissible as evidence. In light of the
aforementioned, defendant is acquitted on grounds of reasonable doubt of the crime with
which he has been charged. Subject firearm and alleged subversive documents have been
disposed of in accordance with law.
The Court also maintains that violations of human rights do not help in overcoming a
rebellion. Reiterating Morales vs Enrile, while the government should continue to repel
the communists, the subversives, the rebels, and the lawless with the means at its
command, it should always be remembered that whatever action is taken must always be
within the framework of our Constitution and our laws.
caught in flagrante delicto or in any overt act. Utmost, the authorities was lucky in their
fishing expeditions.
2. The Bill of Rights can only be invoked only against the state. People vs. Marti -- Marti
and his wife went to the booth of the "Manila Packing and Export Forwarders" carrying
with them four (4) gift-wrapped packages. Marti informed the owner that the packages
simply contained books, cigars and gloves as gifts to his friends in Zurich and refused to
allow the owner to examine and inspect the packages. However, before the delivery of
the box to the Bureau of Customs, the owner's husband inspected the package and found
marijuana which was later turned over to the NBI. A case was filed against Marti. Marti
invoked his right against illegal searches and seizure. Held: The constitutional
proscription against unlawful searches and seizures therefore applies as a restraint
directed only against the government and its agencies tasked with the enforcement of the
law. Thus, it could only be invoked against the State to whom the restraint against
arbitrary and unreasonable exercise of power is imposed.
Corollarily, alleged violations against unreasonable search and seizure may only be
invoked against the State by an individual unjustly traduced by the exercise of sovereign
authority. To agree with appellant that an act of a private individual in violation of the
Bill of Rights should also be construed as an act of the State would result in serious legal
complications and an absurd interpretation of the constitution
EN BANC

G.R. No. 81567 July 9, 1990

IN THE MATTER OF THE PETITION FOR HABEAS CORPUS OF ROBERTO UMIL,
ROLANDO DURAL and RENATO VILLANUEVA. MANOLITA O. UMIL, and
NICANOR P. DURAL, FELICITAS V. SESE, petitioners,
vs.
FIDEL V. RAMOS, MAJ. GEN. RENATO DE VILLA, BRIG. GEN. RAMON
MONTANO, BRIG. GEN. ALEXANDER AGUIRRE, respondents.
G.R. Nos. 84581-82 July 9, 1990
AMELIA ROQUE and WILFREDO BUENAOBRA, petitioners,
vs.
GEN. RENATO DE VILLA and GEN. RAMON MONTANO, respondents.

THE STATION COMMANDER OF THE MUNTINGLUPA POLICE STATION,

Muntinglupa, Metro Manila, P/SGT. JACINTO MEDINA, P/SGT. ELADIO TAGLE,
P/SGT. LEVI SOLEDAD, and P/SGT. MAURO AROJADO, respondents.
Efren H. Mercado for petitioners in G.R. No. 81567.
Ricardo C. Valmonte for petitioners in G.R. Nos. 84581-82.
Ramon S. Esguerra, Barbara Anne C. Migallos and Agripino G. Morga for petitioners in
G.R. Nos. 84583-84.
Efren H. Mercado for petitioner in G.R. No. 83162.
Banzuela, Flores, Miralles, Raneses, Sy, Taquio & Association for petitioner in G.R. No.
85727.

G.R. Nos. 84583-84 July 9, 1990

Josefina G. Campbell-Castillo for petitioners in G.R. No. 86332.
IN THE MATTER OF THE PETITION FOR HABEAS CORPUS OF ATTY. DOMINGO
T. ANONUEVO and RAMON CASIPLE. DOMINGO T. ANONUEVO and RAMON
CASIPLE, petitioners,
vs.
HON. FIDEL V. RAMOS, GEN. RENATO S. DE VILLA, COL. EVARISTO CARINO,
LT. COL. REX D. PIAD, T/SGT. CONRADO DE TORRES, S/SGT. ARNOLD
DURIAN, and Commanding Officer, PC-INP Detention Center, Camp Crame, Quezon
City, respondents.
G.R. No. 83162 July 9, 1990
IN THE MATTER OF THE APPLICATION FOR HABEAS CORPUS OF VICKY A.
OCAYA AND DANNY RIVERA. VIRGILIO A. OCAYA, petitioner,
vs.
BRIG. GEN. ALEXANDER AGUIRRE, COL. HERCULES CATALUNA, COL.
NESTOR MARIANO, respondents.
G.R. No. 85727 July 9, 1990
IN THE MATTER OF APPLICATION FOR HABEAS CORPUS OF: DEOGRACIAS
ESPIRITU, petitioner,
vs.
BRIG. GEN. ALFREDO S. LIM, COL. RICARDO REYES, respondents.

The Solicitor General for the respondents.

PER CURIAM:
The are eight (8) petitioners for habeas corpus filed before the Court, which have been
consolidated because of the similarity of issues raised, praying for the issuance of the writ
of habeas corpus, ordering the respective respondents to produce the bodies of the
persons named therein and to explain why they should not be set at liberty without further
delay.
In their respective Returns, the respondents uniformly assert that the privilege of the writ
of habeas corpus is not available to the petitioners as they have been legally arrested and
are detained by virtue of valid informations filed in court against them.
The petitioners counter that their detention is unlawful as their arrests were made without
warrant and, that no preliminary investigation was first conducted, so that the
informations filed against them are null and void.

G.R. No. 86332 July 9, 1990

The Court has carefully reviewed the contentions of the parties in their respective
pleadings, and it finds that the persons detained have not been illegally arrested nor
arbitrarily deprived of their constitutional right to liberty, and that the circumstances
attending these cases do not warrant their release on habeas corpus.

IN THE MATTER OF THE PETITION FOR HABEAS CORPUS OF NARCISO B.

NAZARENO. ALFREDO NAZARENO, petitioner,
vs.

The arrest of a person without a warrant of arrest or previous complaint is recognized in

law. The occasions or instances when such an arrest may be effected are clearly spelled
out in Section 5, Rule 113 of the Rules of Court, as amended, which provides:

10

Sec. 5. Arrest without warrant; when lawful. A peace officer or a private person may,
without a warrant, arrest a person:
(a) When, in his presence, the person to be arrested has committed, is actually
committing, or is attempting to commit an offense;
(b) When an offense has in fact just been committed, and he has personal knowledge of
facts indicating that the person to be arrested has committed it; and
(c) When the person to be arrested is a prisoner who has escaped from a penal
establishment or place where he is serving final judgment or temporarily confined while
his case is pending, or has escaped while being transferred from one confinement to
another.
In cases falling under paragraphs (a) and (b) hereof, the person arrested without a warrant
shall be forthwith delivered to the nearest police station or jail, and he shall be proceeded
against in accordance with Rule 112, Section 7.
An arrest without a warrant of arrest, under Section 5 paragraphs (a) and (b) of Rule 113
of the Rules of Court, as amended, is justified when the person arrested is caught in
flagranti delicto, viz., in the act of committing an offense; or when an offense has just
been committed and the person making the arrest has personal knowledge of the facts
indicating that the person arrested has committed it. The rationale behind lawful arrests,
without warrant, was stated by this Court in the case of People vs. Kagui Malasugui 1
thus:
To hold that no criminal can, in any case, be arrested and searched for the evidence and
tokens of his crime without a warrant, would be to leave society, to a large extent, at the
mercy of the shrewdest, the most expert, and the most depraved of criminals, facilitating
their escape in many instances.
The record of the instant cases would show that the persons in whose behalf these
petitions for habeas corpus have been filed, had freshly committed or were actually
committing an offense, when apprehended, so that their arrests without a warrant were
clearly justified, and that they are, further, detained by virtue of valid informations filed
against them in court.
A brief narration of the facts and events surrounding each of the eight (8) petitions is in
order.
I
In G.R. No. 81567 (Umil vs. Ramos), the record shows that, on 1 February 1988, the
Regional Intelligence Operations Unit of the Capital Command (RIOU-CAPCOM)

received confidential information about a member of the NPA Sparrow Unit (liquidation
squad) being treated for a gunshot wound at the St. Agnes Hospital in Roosevelt Avenue,
Quezon City. Upon verification, it was found that the wounded person, who was listed in
the hospital records as Ronnie Javelon, is actually Rolando Dural, a member of the NPA
liquidation squad, responsible for the killing of two (2) CAPCOM soldiers the day
before, or on 31 January 1988, in Macanining Street, Bagong Barrio, Caloocan City. In
view of this verification, Rolando Dural was transferred to the Regional Medical Services
of the CAPCOM, for security reasons. While confined thereat, or on 4 February 1988,
Rolando Dural was positively identified by eyewitnesses as the gunman who went on top
of the hood of the CAPCOM mobile patrol car, and fired at the two (2) CAPCOM
soldiers seated inside the car identified as T/Sgt. Carlos Pabon and CIC Renato Manligot.
As a consequence of this positive identification, Rolando Dural was referred to the
Caloocan City Fiscal who conducted an inquest and thereafter filed with the Regional
Trial Court of Caloocan City an information charging Rolando Dural alias Ronnie
Javelon with the crime of "Double Murder with Assault Upon Agents of Persons in
Authority." The case was docketed therein as Criminal Case No. C-30112 and no bail was
recommended. On 15 February 1988, the information was amended to include, as
defendant, Bernardo Itucal, Jr. who, at the filing of the original information, was still
unidentified.
Meanwhile, on 6 February 1988, a petition for habeas corpus was filed with this Court on
behalf of Roberto Umil, Rolando Dural, and Renato Villanueva. The Court issued the
writ of habeas corpus on 9 February 1988 and the respondents filed a Return of the Writ
on 12 February 1988. Thereafter, the parties were heard on 15 February 1988.
On 26 February 1988, however, Roberto Umil and Renato Villanueva posted bail before
the Regional Trial Court of Pasay City where charges for violation of the Anti-Subversion
Act had been filed against them, and they were accordingly released. The petition for
habeas corpus, insofar as Umil and Villanueva are concerned, is now moot and academic
and is accordingly dismissed, since the writ of habeas corpus does not lie in favor of an
accused in a criminal case who has been released on bail. 2
As to Rolando Dural, it clearly appears that he was not arrested while in the act of
shooting the two (2) CAPCOM soldiers aforementioned. Nor was he arrested just after
the commission of the said offense for his arrest came a day after the said shooting
incident. Seemingly, his arrest without warrant is unjustified.
However, Rolando Dural was arrested for being a member of the New Peoples Army
(NPA), an outlawed subversive organization. Subversion being a continuing offense, the
arrest of Rolando Dural without warrant is justified as it can be said that he was
committing an offense when arrested. The crimes of rebellion, subversion, conspiracy or
proposal to commit such crimes, and crimes or offenses committed in furtherance thereof
or in connection therewith constitute direct assaults against the State and are in the nature
of continuing crimes. As stated by the Court in an earlier case:

11

From the facts as above-narrated, the claim of the petitioners that they were initially
arrested illegally is, therefore, without basis in law and in fact. The crimes of insurrection
or rebellion, subversion, conspiracy or proposal to commit such crimes, and other crimes
and offenses committed in the furtherance, on the occasion thereof, or incident thereto, or
in connection therewith under Presidential Proclamation No. 2045, are all in the nature of
continuing offenses which set them apart from the common offenses, aside from their
essentially involving a massive conspiracy of nationwide magnitude. Clearly then, the
arrest of the herein detainees was well within the bounds of the law and existing
jurisprudence in our jurisdiction.

In G.R. Nos. 84581-82 (Roque vs. De Villa), the arrest of Amelia Roque and Wilfredo
Buenaobra, without warrant, is also justified. When apprehended at the house of Renato
Constantino in Marikina Heights, Marikina, Metro Manila, Wilfredo Buenaobra admitted
that he was an NPA courier and he had with him letters to Renato Constantino and other
members of the rebel group. Amelia Roque, upon the other hand, was a member of the
National United Front Commission, in charge of finance, and admitted ownership of
subversive documents found in the house of her sister in Caloocan City. She was also in
possession of ammunition and a fragmentation grenade for which she had no permit or
authority to possess.

2. The arrest of persons involved in the rebellion whether as its fighting armed elements,
or for committing non-violent acts but in furtherance of the rebellion, is more an act of
capturing them in the course of an armed conflict, to quell the rebellion, than for the
purpose of immediately prosecuting them in court for a statutory offense. The arrest,
therefore, need not follow the usual procedure in the prosecution of offenses which
requires the determination by a judge of the existence of probable cause before the
issuance of a judicial warrant of arrest and the granting of bail if the offense is bailable.
Obviously, the absence of a judicial warrant is no legal impediment to arresting or
capturing persons committing overt acts of violence against government forces, or any
other milder acts but equally in pursuance of the rebellious movement. The arrest or
capture is thus impelled by the exigencies of the situation that involves the very survival
of society and its government and duly constituted authorities. If killing and other acts of
violence against the rebels find justification in the exigencies of armed hostilities which
is of the essence of waging a rebellion or insurrection, most assuredly so in case of
invasion, merely seizing their persons and detaining them while any of these
contingencies continues cannot be less justified. . . . 3

The record of these two (2) cases shows that on 27 June 1988, one Rogelio Ramos y
Ibanes, a member of the NPA, who had surrendered to the military authorities, told
military agents about the operations of the Communist Party of the Philippines (CPP) and
the New Peoples Army (NPA) in Metro Manila. He identified some of his former
comrades as "Ka Mong", a staff member of the Communications and Transportation
Bureau; "Ka Nelia", a staff member in charge of finance; "Ka Miller", an NPA courier
from Sorsogon and Lopez, Quezon; "Ka Ted", and "Ka Totoy". He also pointed to a
certain house occupied by Renato Constantino located in the Villaluz Compound, Molave
St., Marikina Heights, Marikina, Metro Manila, which is used as a safehouse of the
National United Front Commission (NUFC) of the CPP-NPA.

The record, moreover, shows that the criminal case filed against Rolando Dural and
Bernardo Itucal, Jr. for "Double Murder, etc." was tried in the court below and at the
conclusion thereof, or on 17 August 1988, Rolando Dural and Bernardo Itucal, Jr. were
found guilty of the charge and sentenced accordingly. Rolando Dural is now serving the
sentence imposed upon him by the trial court. Thus, the writ of habeas corpus is no
longer available to him. For, as held in the early case of U.S. vs. Wilson: 4

In view of these revelations, the Constantino house was placed under military
surveillance and on 12 August 1988, pursuant to a search warrant issued by Judge
Eutropio Migrino of the Regional Trial Court of Pasig, a search of the house was
conducted at about 5:00 o'clock in the afternoon, by a combined team of the Criminal
Investigation Service, National Capital District (CIS-NCD) and the Constabulary
Security Group (CSG). In the course of the search, the following articles were found and
taken under proper receipt:
a) One (1) Colt M16A1 long rifle with defaced serial number;
b) One (1) Cal. .380 ACT/9mm Model PPK/8 SN: 260577 & 2605778;
c) Two (2) fragmentation hand grenades;

In this case, whatever may be said about the manner of his arrest, the fact remains that the
defendant was actually in court in the custody of the law on March 29, when a complaint
sufficient in form and substance was read to him. To this he pleaded not guilty. The trial
followed, in which, and in the judgment of guilty pronounced by the court, we find no
error. Whether, if there were irregularities in bringing him personally before the court, he
could have been released on a writ of habeas corpus or now has a civil action for
damages against the person who arrested him we need not inquire. It is enough to say that
such irregularities are not sufficient to set aside a valid judgment rendered upon a
sufficient complaint and after a trial free from error.

d) Fifty-six (56) live ammunition for Cal. 5.56 mm;

e) Five (5) live ammunition for Cal. .380;
f) One (1) ICOM VHF FM Radio Transciever SN: 14903
g) One (1) Regulated power supply 220V AC;
h) One (1) Antennae (adjustable);

II
i) One (1) Speaker with cord ALEXAR;

12

j) Voluminous Subversive documents.

When confronted, Renato Constatino could not produce any permit or authority to
possess the firearms, ammunition, radio and other communications equipment. Hence, he
was brought to the CIS Headquarters for investigation. When questioned, he refused to
give a written statement, although he admitted that he was a staff member of the
executive committee of the NUFC and a ranking member of the International Department
of the Communist Party of the Philippines (CPP).
At about 8:00 o'clock in the evening of the same day (12 August 1988), Wilfredo
Buenaobra arrived at the house of Renato Constantino in the Villaluz Compound. When
accosted, he readily admitted to the military agents that he is a regular member of the
CPP/NPA and that he went to the place to deliver letters to "Ka Mong", referring to
Renato Constatino, and other members of the rebel group. On further questioning, he also
admitted that he is known as "Ka Miller" and that he was from Barangay San Pedro,
Lopez, Quezon. Among the items taken from him were the following:
(1) Handwritten letter addressed to "Ka Bing & Co. from A & Co." dated August 11,
1988;
(2) Handwritten letter addressed to "ROD from VIC (Schell datre)" dated August 11,
1988;

On 15 August 1988, Amelia Roque was brought to the Caloocan City Fiscal for inquest
after which an information charging her with violation of PD 1866 was filed with the
Regional Trial Court of Caloocan City. The case is docketed therein as Criminal Case No.
C-1196. Another information for violation of the Anti-Subversion Act was filed against
Amelia Roque before the Metropolitan Trial Court of Caloocan City, which is docketed
therein as Criminal Case No. C-150458.
An information for violation of the Anti-Subversion Act was filed against Wilfredo
Buenaobra before the Metropolitan Trial Court of Marikina, Metro Manila. The case is
docketed therein as Criminal Case No. 23715. Bail was set at P4,000.00.
On 24 August 1988, a petition for habeas corpus was filed before this Court on behalf of
Amelia Roque and Wilfredo Buenaobra. At the hearing of the case, however, Wilfredo
Buenaobra manifested his desire to stay in the PC-INP Stockade at Camp Crame, Quezon
City. According, the petition for habeas corpus filed on his behalf is now moot and
academic. Only the petition of Amelia Roque remains for resolution.
The contention of respondents that petitioners Roque and Buenaobra are officers and/or
members of the National United Front Commission (NUFC) of the CPP was not
controverted or traversed by said petitioners. The contention must be deemed admitted. 5
As officers and/or members of the NUFC-CPP, their arrest, without warrant, was justified
for the same reasons earlier stated vis-a-vis Rolando Dural. The arrest without warrant of
Roque was additionally justified as she was, at the time of apprehension, in possession of
ammunitions without license to possess them.

(3) Handwritten letter addressed to "Suzie" from "Vic", dated August 11, 1988.
III
Also found Buenaobra's possession was a piece of paper containing a written but jumbled
telephone number of Florida M. Roque, sister of Amelia Roque alias "Ka Nelia", at 69
Geronimo St., Caloocan City. Acting on the lead provided as to the whereabouts of
Amelia Roque, the military agents went to the given address the next day (13 August
1988). They arrived at the place at about 11:00 o'clock in the morning. After identifying
themselves as military agents and after seeking permission to search the place, which was
granted, the military agents conducted a search in the presence of the occupants of the
house and the barangay captain of the place, one Jesus D. Olba.
The military agents found the place to be another safehouse of the NUFC/CPP. They
found ledgers, journals, vouchers, bank deposit books, folders, computer diskettes, and
subversive documents as well as live ammunition for a .38 SPL Winchester, 11 rounds of
live ammunition for a cal. .45, 19 rounds of live ammunition for an M16 Rifle, and a
fragmentation grenade. As a result, Amelia Roque and the other occupants of the house
were brought to the PC-CIS Headquarters at Camp Crame, Quezon City, for
investigation. Amelia Roque admitted to the investigators that the voluminous documents
belonged to her and that the other occupants of the house had no knowledge of them. As a
result, the said other occupants of the house were released from custody.

In G.R. Nos. 84583-84 (Anonuevo vs. Ramos), the arrest of Domingo Anonuevo and
Ramon Casiple, without warrant, is also justified under the rules. Both are admittedly
members of the standing committee of the NUFC and, when apprehended in the house of
Renato Constatino, they had a bag containing subversive materials, and both carried
firearms and ammunition for which they had no license to possess or carry.
The record of these two (2) cases shows that at about 7:30 o'clock in the evening of 13
August 1988, Domingo T. Anonuevo and Ramon Casiple arrived at the house of Renato
Constatino at Marikina Heights, Marikina, which was still under surveillance by military
agents. The military agents noticed bulging objects on their waist lines. When frisked, the
agents found them to be loaded guns. Anonuevo and Casiple were asked to show their
permit or license to possess or carry firearms and ammunition, but they could not produce
any. Hence, they were brought to PC Headquarters for investigation. Found in their
possession were the following articles:
a) Voluminous subversive documents
b) One (1) Cal. 7.65 MOD 83 2C Pistol SN: 001412 with one (1) magazine for Cal. 7.65
containing ten (10) live ammunition of same caliber;

13

c) One (1) Cal. 7.65 Pietro Barreta SN; A18868 last digit tampered with one (1) magazine
containing five (5) live ammunition of same caliber.
At the PC Stockade, Domingo Anonuevo was identified as "Ka Ted", and Ramon Casiple
as "Ka Totoy" of the CPP, by their comrades who had previously surrendered to the
military.
On 15 August 1988, the record of the investigation and other documentary evidence were
forwarded to the Provincial Fiscal at Pasig, Metro Manila, who conducted an inquest,
after which Domingo Anonuevo and Ramon Casiple were charged with violation of
Presidential Decree No. 1866 before the Regional Trial Court of Pasig, Metro Manila.
The cases are docketed therein as Criminal Cases Nos. 74386 ad 74387, respectively. No
bail was recommended.
On 24 August 1988, a petition for habeas corpus was filed with this Court on behalf of
Domingo Anonuevo and Ramon Casiple, alleging that the said Anonuevo and Casiple
were unlawfully arrested without a warrant and that the informations filed against them
are null and void for having been filed without prior hearing and preliminary
investigation. On 30 August 1988, the Court issued the writ of habeas corpus, and after
the respondents had filed a Return of the Writ, the parties were heard.

If the case has been filed in court without a preliminary investigation having been first
conducted, the accused may within five (5) days from the time he learns of the filing of
the information, ask for a preliminary investigation with the same right to adduced
evidence in his favor in the manner prescribed in this Rule.
The petitioners Domingo Anonuevo and Ramon Casiple, however, refused to sign a
waiver of the provisions of Article 125 of the Revised Penal Code, as amended. In the
informations filed against them, the prosecutor made identical certifications, as follows:
This is to certify that the accused has been charged in accordance with Sec. 7, Rule 112
of the 1985 Rules on Criminal Procedure, that no preliminary investigation was
conducted because the accused has not made and signed a waiver of the provisions of Art.
125 of the Revised Penal Code, as amended; that based on the evidence presented, there
is reasonable ground to believe that the crime has been committed, and that the accused is
probably guilty thereof.
Nor did petitioners ask for a preliminary investigation after the informations had been
filed against them in court. Petitioners cannot now claim that they have been deprived of
their constitutional right to due process.
IV

The petitioners' (Anonuevo and Casiple) claim that they were unlawfully arrested
because there was no previous warrant of arrest, is without merit The record shows that
Domingo Anonuevo and Ramon Casiple were carrying unlicensed firearms and
ammunition in their person when they were apprehended.
There is also no merit in the contention that the informations filed against them are null
and void for want of a preliminary investigation. The filing of an information, without a
preliminary investigation having been first conducted, is sanctioned by the Rules. Sec. 7,
Rule 112 of the Rules of Court, as amended, reads:
Sec. 7. When accused lawfully arrested without a warrant. When a person is lawfully
arrested without a warrant for an offense cognizable by the Regional Trial Court the
complaint or information may be filed by the offended party, peace officer or fiscal
without a preliminary investigation having been first conducted, on the basis of the
affidavit of the offended party or arresting officer or person.
However, before the filing of such complaint or information, the person arrested may ask
for a preliminary investigation by a proper officer in accordance with this Rule, but he
must sign a waiver of the provisions of Article 125 of the Revised Penal Code, as
amended, with the assistance of a lawyer and in case of non-availability of a lawyer, a
responsible person of his choice. Notwithstanding such waiver, he may apply for bail as
provided in the corresponding rule and the investigation must be terminated within fifteen
(15) days from its inception.

In G.R. No. 83162 (Ocaya vs. Aguirre), the arrest without warrant, of Vicky Ocaya is
justified under the Rules, since she had with her unlicensed ammunition when she was
arrested. The record of this case shows that on 12 May 1988, agents of the PC
Intelligence and Investigation of the Rizal PC-INP Command, armed with a search
warrant issued by Judge Eutropio Migrino of the Regional Trial Court of Pasig, Metro
Manila, conducted a search of a house located at Block 19, Phase II, Marikina Green
Heights, Marikina, Metro Manila, believed to be occupied by Benito Tiamson, head of
the CPP-NPA. In the course of the search, Vicky Ocaya arrived in a car driven by Danny
Rivera. Subversive documents and several rounds of ammunition for a .45 cal. pistol
were found in the car of Vicky Ocaya. As a result, Vicky Ocaya and Danny Rivera were
brought to the PC Headquarters for investigation. When Vicky Ocaya could not produce
any permit or authorization to possess the ammunition, an information charging her with
violation of PD 1866 was filed with the Regional Trial Court of Pasig, Metro Manila. The
case is docketed therein as Criminal Case No. 73447. Danny Rivera, on the other hand,
was released from custody.
On 17 May 1988, a petition for habeas corpus was filed, with this Court on behalf of
Vicky Ocaya and Danny Rivera. It was alleged therein that Vicky Ocaya was illegally
arrested and detained, and denied the right to a preliminary investigation.
It would appear, however, that Vicky Ocaya was arrested in flagranti delicto so that her
arrest without a warrant is justified. No preliminary investigation was conducted because
she was arrested without a warrant and she refused to waive the provisions of Article 125

14

of the Revised Penal Code, pursuant to Sec. 7, Rule 112 of the Rule of Court, as
amended.
V
The petitioners Vicky Ocaya, Domingo Anonuevo, Ramon Casiple, and Amelia Roque
claim that the firearms, ammunition and subversive documents alleged to have been
found in their possession when they were arrested, did not belong to them, but were
"planted" by the military agents to justify their illegal arrest.
The petitioners, however, have not introduced any evidence to support their aforesaid
claim. On the other hand, no evil motive or ill-will on the part of the arresting officers
that would cause the said arresting officers in these cases to accuse the petitioners falsely,
has been shown. Besides, the arresting officers in these cases do not appear to be seekers
of glory and bounty hunters for, as counsel for the petitioners Anonuevo and Casiple say,
"there is absolutely nothing in the evidence submitted during the inquest that petitioners
are on the 'AFP Order of Battle with a reward of P150,000.00 each on their heads.'" 6 On
the other hand, as pointed out by the Solicitor General, the arrest of the petitioners is not
a product of a witch hunt or a fishing expedition, but the result of an in-depth surveillance
of NPA safehouses pointed to by no less than former comrades of the petitioners in the
rebel movement.
The Solicitor General, in his Consolidated Memorandum, aptly observes:
. . . . To reiterate, the focal point in the case of petitioners Roque, Buenaobra, Anonuevo
and Casiple, was the lawful search and seizure conducted by the military at the residence
of Renato Constantino at Villaluz Compound, Molave St., Marikina Heights, Marikina,
Metro Manila. The raid at Constantino's residence, was not a witch hunting or fishing
expedition on the part of the military. It was a result of an in-depth military surveillance
coupled with the leads provided by former members of the underground subversive
organizations. That raid produced positive results. to date, nobody has disputed the fact
that the residence of Constantino when raided yielded communication equipment,
firearms and ammunitions, as well as subversive documents.
The military agents working on the information provided by Constantino that other
members of his group were coming to his place, reasonably conducted a "stake-out"
operation whereby some members of the raiding team were left behind the place. True
enough, barely two hours after the raid and Constantino's arrest, petitioner Buenaobra
arrived at Constantino's residence. He acted suspiciously and when frisked and searched
by the military authorities, found in his person were letters. They are no ordinary letters,
as even a cursory reading would show. Not only that, Buenaobra admitted that he is a
NPA courier and was there to deliver the letters to Constantino.
Subsequently, less than twenty four hours after the arrest of Constantino and Buenaobra,
petitioners Anonuevo and Casiple arrived at Constantino's place. Would it be
unreasonable for the military agents to believe that petitioners Anonuevo and Casiple are

among those expected to visit Constantino's residence considering that Constatino's

information was true, in that Buenaobra did come to that place? Was it unreasonable
under the circumstances, on the part of the military agents, not to frisk and search anyone
who should visit the residence of Constantino, such as petitioners Anonuevo and Casiple?
Must this Honorable Court yield to Anonuevo and Casiple's flimsy and bare assertion that
they went to visit Constantino, who was to leave for Saudi Arabia on the day they were
arrested thereat?
As to petitioner Roque, was it unreasonable for the military authorities to effect her arrest
without warrant considering that it was Buenaobra who provided the leads on her
identity? It cannot be denied that Buenaobra had connection with Roque. Because the
former has the phone number of the latter. Why the necessity of jumbling Roque's
telephone number as written on a piece of paper taken from Buenaobra's possession?
Petitioners Roque and Buenaobra have not offered any plausible reason so far.
In all the above incidents, respondents maintain that they acted reasonably, under the
time, place and circumstances of the events in question, especially considering that at the
time of petitioner's arrest, incriminatory evidence, i.e, firearms, ammunitions and/or
subversive documents were found in their possession.
Petitioners, when arrested, were neither taking their snacks nor innocently visiting a
camp, but were arrested in such time, place and circumstances, from which one can
reasonably conclude tat they were up to a sinister plot, involving utmost secrecy and
comprehensive conspiracy.
IV
In. G.R. No. 85727 (Espiritu vs. Lim), the release on habeas corpus of the petitioner
Deogracias Espiritu, who is detained by virtue of an Information for Violation of Article
142 of the Revised Penal Code (Inciting to Sedition) filed with the Regional Trial Court
of Manila, is similarly not warranted.
The record of the case shows that the said petitioner is the General Secretary of the
Pinagkaisahang Samahan ng Tsuper at Operators Nationwide (PISTON), an association
of drivers and operators of public service vehicles in the Philippines, organized for their
mutual aid and protection.
Petitioner claims that at about 5:00 o'clock in the morning of 23 November 1988, while
he was sleeping in his home located at 363 Valencia St., Sta. Mesa, Manila, he was
awakened by his sister Maria Paz Lalic who told him that a group of persons wanted to
hire his jeepney. When he went down to talk to them, he was immediately put under
arrest. When he asked for the warrant of arrest, the men, headed by Col. Ricardo Reyes,
bodily lifted him and placed him in their owner-type jeepney. He demanded that his
sister, Maria Paz Lalic, be allowed to accompany him, but the men did not accede to his
request and hurriedly sped away.

15

He was brought to Police Station No. 8 of the Western Police District at Blumentritt,
Manila where he was interrogated and detained. Then, at about 9:00 o'clock of the same
morning, he was brought before the respondent Lim and, there and then, the said
respondent ordered his arrest and detention. He was thereafter brought to the General
Assignment Section, Investigation Division of the Western Police District under Police
Capt. Cresenciano A. Cabasal where he was detained, restrained and deprived of his
liberty. 7
The respondents claim however, that the detention of the petitioner is justified in view of
the Information filed against him before the Regional Trial Court of Manila, docketed
therein as Criminal Case No. 88-683-85, charging him with violation of Art. 142 of the
Revised Penal Code (Inciting to Sedition).
The respondents also claim that the petitioner was lawfully arrested without a judicial
warrant of arrest since petitioner when arrested had in fact just committed an offense in
that in the afternoon of 22 November 1988, during a press conference at the National
Press Club.
Deogracias Espiritu through tri-media was heard urging all drivers and operators to go on
nationwide strike on November 23, 1988, to force the government to give into their
demands to lower the prices of spare parts, commodities, water and the immediate release
from detention of the president of the PISTON (Pinag-isang Samahan ng Tsuper
Operators Nationwide). Further, we heard Deogracias Espiritu taking the place of
PISTON president Medardo Roda and also announced the formation of the Alliance
Drivers Association to go on nationwide strike on November 23, 1988. 8
Policemen waited for petitioner outside the National Pres Club in order to investigate
him, but he gave the lawmen the slip. 9 He was next seen at about 5:00 o'clock that
afternoon at a gathering of drivers and symphatizers at the corner of Magsaysay Blvd.
and Valencia Street, Sta. Mesa, Manila where he was heard to say:
Bukas tuloy ang welga natin, sumagot na ang Cebu at Bicol na kasali sila, at hindi tayo
titigil hanggang hindi binibigay ng gobyerno ni Cory ang gusto nating pagbaba ng halaga
ng spare parts, bilihin at and pagpapalaya sa ating pinuno na si Ka Roda hanggang sa
magkagulo na. 10 (emphasis supplied)
The police finally caught up with the petitioner on 23 November 1988. He was invited for
questioning and brought to police headquarters after which an Information for violation
of Art. 142 of the Revised Penal Code was filed against him before the Regional Trial
Court of Manila. 11
Since the arrest of the petitioner without a warrant was in accordance with the provisions
of Rule 113, Sec. 5(b) of the Rules of Court and that the petitioner is detained by virtue of
a valid information filed with the competent court, he may not be released on habeas
corpus. He may, however be released upon posting bail as recommended. However, we

find the amount of the recommended bail (P60,000.00) excessive and we reduce it to
P10,000.00 only.
VII
In G.R. No. 86332 (Nazareno vs. Station Commander), we also find no merit in the
submission of Narciso Nazareno that he was illegally arrested and is unlawfully detained.
The record of this case shows that at about 8:30 o'clock in the morning of 14 December
1988, one Romulo Bunye II was killed by a group of men near the corner of T. Molina
and Mendiola Streets in Alabang, Muntinglupa, Metro Manila. One of the suspects in the
killing was Ramil Regal who was arrested by the police on 28 December 1988. Upon
questioning, Regal pointed to Narciso Nazareno as on of his companions in the killing of
the said Romulo Bunye II. In view thereof, the police officers, without warrant, picked up
Narciso Nazareno and brought him to the police headquarters for questioning. Obviously,
the evidence of petitioner's guilt is strong because on 3 January 1989, an information
charging Narciso Nazareno, Ramil Regala, and two (2) others, with the killing of Romulo
Bunye II was filed with the Regional Trial Court of Makati, Metro Manila. The case is
docketed therein as Criminal Case No. 731.
On 7 January 1989, Narciso Nazareno filed a motion to post bail, but the motion was
denied by the trial court in an order dated 10 January 1989, even as the motion to post
bail, earlier filed by his co-accused, Manuel Laureaga, was granted by the same trial
court.
On 13 January 1989, a petition for habeas corpus was filed with this Court on behalf of
Narciso Nazareno and on 13 January 1989, the Court issued the writ of habeas corpus,
returnable to the Presiding Judge of the Regional Trial Court of Bian, Laguna, Branch
24, ordering said court to hear the case on 30 January 1989 and thereafter resolve the
petition.
At the conclusion of the hearing, or on 1 February 1989, the Presiding Judge of the
Regional Trial Court of Bian, Laguna issued a resolution denying the petition for habeas
corpus, it appearing that the said Narciso Nazareno is in the custody of the respondents
by reason of an information filed against him with the Regional Trial Court of Makati,
Metro Manila which had taken cognizance of said case and had, in fact, denied the
motion for bail filed by said Narciso Nazareno (presumably because of the strength of the
evidence against him).
The findings of the Presiding Judge of the Regional Trial Court of Bian, Laguna are
based upon the facts and the law. Consequently, we will not disturb the same. Evidently,
the arrest of Nazareno was effected by the police without warrant pursuant to Sec. 5(b),
Rule 113, Rules of Court after he was positively implicated by his co-accused Ramil
Regala in the killing of Romulo Bunye
II; and after investigation by the police authorities. As held in People vs. Ancheta: 12

16

The obligation of an agent of authority to make an arrest by reason of a crime, does not
presuppose as a necessary requisite for the fulfillment thereof, the indubitable existence
of a crime. For the detention to be perfectly legal, it is sufficient that the agent or person
in authority making the arrest has reasonably sufficient grounds to believe the existence
of an act having the characteristics of a crime and that the same grounds exist to believe
that the person sought to be detained participated therein.

possible the arrest and detention of innocent persons despite lack of evidence against
them, and, most often, it is only after a petition for habeas corpus is filed before the court
that the military authorities file the criminal information in the courts of law to be able to
hide behind the protective mantle of the said doctrine. This, petitioners assert, stands as
an obstacle to the freedom and liberty of the people and permits lawless and arbitrary
State action.

VIII

We find, however, no compelling reason to abandon the said doctrine. It is based upon
express provision of the Rules of Court and the exigencies served by the law. The fears
expressed by the petitioners are not really unremediable. As the Court sees it, reexamination or reappraisal, with a view to its abandonment, of the Ilagan case doctrine is
not the answer. The answer and the better practice would be, not to limit the function of
the habeas corpus to a mere inquiry as to whether or not the court which issued the
process, judgment or order of commitment or before whom the detained person is
charged, had jurisdiction or not to issue the process, judgment or order or to take
cognizance of the case, but rather, as the Court itself states in Morales, Jr. vs. Enrile, 15
"in all petitions for habeas corpus the court must inquire into every phase and aspect of
petitioner's detention-from the moment petition was taken into custody up to the moment
the court passes upon the merits of the petition;" and "only after such a scrutiny can the
court satisfy itself that the due process clause of our Constitution has in fact been
satisfied." This is exactly what the Court has done in the petitions at bar. This is what
should henceforth be done in all future cases of habeas corpus. In Short, all cases
involving deprivation of individual liberty should be promptly brought to the courts for
their immediate scrutiny and disposition.

It is to be noted that, in all the petitions here considered, criminal charges have been filed
in the proper courts against the petitioners. The rule is, that if a person alleged to be
restrained of his liberty is in the custody of an officer under process issued by a court
judge, and that the court or judge had jurisdiction to issue the process or make the order,
of if such person is charged before any court, the writ of habeas corpus will not be
allowed. Section 4, Rule 102, Rules of Court, as amended is quite explicit in providing
that:
Sec. 4. When writ is allowed or discharge authorized. If it appears that the person
alleged to be restrained of his liberty is in the custody of an officer under process issued
by a court or judge or by virtue of a judgment or order of a court of record, and that the
court or judge had jurisdiction to issue the process, render the judgment, or make the
order, the writ shall not be allowed; or if the jurisdiction appears after the writ is allowed,
the person shall not be discharged by reason of any informality or defect in the process,
judgment, or order. Nor shall anything in this rule be held to authorize the discharge of a
person charged with a convicted of an offense in the Philippines or of a person suffering
imprisonment under lawful judgment. (emphasis supplied)
At this point, we refer to petitioner's plea for the Court of re-examine and, thereafter,
abandon its pronouncement in Ilagan vs. Enrile, 13 that a writ of habeas corpus is no
longer available after an information is filed against the person detained and a warrant of
arrest or an order of commitment, is issued by the court where said information has been
filed. 14 The petitioners claim that the said ruling, which was handed down during the
past dictatorial regime to enforce and strengthen said regime, has no place under the
present democratic dispensation and collides with the basic, fundamental, and
constitutional rights of the people. Petitioners point out that the said doctrine makes
ARSENIO VERGARA VALDEZ vs. People of the Philippines
G.R. No 170180
November 23, 2007

WHEREFORE, the petitions are hereby DISMISSED, except that in G.R. No. 85727
(Espiritu vs. Lim), the bail bond for petitioner's provisional liberty is hereby ordered
reduced from P60,000.00 to P10,000.00. No costs.
SO ORDERED.
Fernan C.J., Narvasa, C.J., Melencio-Herrera, Gutierrez, Jr., Paras, Gancayco, Padilla,
Bidin, Grio-Aquino, Medialdea and Regalado, JJ., concur.

Facts:

Petitioner denied ownership and purported that he had just alighted from the bus when
one of the barangay tanods approached him and requested to see the contents of his bags.
The petitioner was then brought by the three tanods to the house of Brgy. Captain
Mercado, who again ordered to have the bag opened. During which, the dried marijuana
leaves were found.

Petitioner Arsenio Valdez was found guilty by the lower courts for the violation of
Section 11 of RA 9165 (illegal possession of dangerous drugs) after dried marijuana
leaves were found in his possession by three barangay tanods who made a search on him

Petitioner prays for his acquittal questioning, although for the first time on appeal, that
his warrantless arrest was effected unlawfully and the warrantless search that followed
was likewise contrary to law.
Issue:

17

Whether or not the petitioner should be acquitted for the lack of a warrant supporting the
arrest and the search.
Held:
The Court ruled for the reversal of the decision by the lower courts. The accused was
acquitted by reasonable doubt.
Section 5, Rule 113 of the Rules on Criminal Procedures provides for the only occasions
permitting a warrantless arrest: (a) When, in his presence, the person to be arrested has
committed, is actually committing, or is attempting to commit an offense; (b) When an
offense has just been committed and he has probable cause to believe based on personal
knowledge of facts or circumstances that the person to be arrested has committed it; and
(c) When the person to be arrested is a prisoner who has escaped from a penal
establishment or place where he is serving final judgment or temporarily confined while
his case is pending, or has escaped while being transferred from one confinement to
another.
The Court held that none of the circumstances was attendant at the time of the arrest.
The Court also posed 2 exceptions to the said rule, to wit: (1) the person to be arrested
must execute an overt act indicating that he has just committed, is actually committing, or
is attempting to commit a crime; and (2) such overt act is done in the presence or within
the view of the arresting officer.
G.R. No. 178039 January 19, 2011
PEOPLE OF THE PHILIPPINES
vs.
ERNESTO UYBOCO y RAMOS
FACTS: On 20 December 1993, Nimfa and her wards, siblings Jeson Kevin and Jeson
Kirby Dichaveswere abducted and brought to a house in Merville Subdivision,
Paraaque. Nimfa was able to recognizedone of the kidnappers
as appellant, because she had seen the latter in her employers office.
14
Thekidnappers called Jepson and demanded for ransom of P26 Million. In one of the
calls of the kidnappers,
Jepson was able to recognize the voice of appellant because he had several business
transactions. After,numerous times of negotiation, the parties finally agreed to a ransom
of P1.5 Million, some in ash and the
balance to be paid in kind, such as jewelry and a pistol. Appellant asked Jepson to bring
the ransomalone at Pancake House in Magallanes Commercial Center and ordered him to
put the bag in the trunk,leave the trunk unlocked, and walk away for ten (10) minutes
without turning back. P/Insp. Escandor andP/Supt. Chan were assigned to proceed to

None of the petitioners actuations (i.e. his looking around and alleged fleeing upon
approach of the tanods) is adequate to incite suspicion of criminal activity to validate the
warrantless arrest.
However, the Courts decision was not only hinged on this premise but also on the fact
that the lower courts failed to establish the veracity of the seized items by virtue of the
chain of custody rule and in view of the contrasting testimonies by the prosecution
witnesses.
Failure of the lower courts to satisfy the test of moral certainty, the accused was thus
acquitted.
The Court added that the petitioners lack of objection to the search and seizure is not
tantamount to a waiver of his constitutional right or a voluntary submission to the
warrantless search and seizure.
WHEREFORE, the assailed Decision is REVERSED and SET ASIDE. Petitioner Arsenio
Vergara Valdez is ACQUITTED on reasonable doubt. The Director of the Bureau of
Corrections is directed to cause the immediate release of petitioner, unless the latter is
being lawfully held for another cause; and to inform the Court of
the date of his release, or the reasons for his continued confinement, within ten (10) days
from notice. No costs.
Magallanes Commercial Center and brought a camera to takephoto and video coverage of
the supposed pay-off. He identified Macias together with appellant and thelatter as the
one who took the ransom.
Later, appellant checked on his trunk and the bag was alreadygone. Appellant then
apprised him that his sons and helper were already at the Shell Gasoline Stationalong
South Luzon Expressway. He immediately went to the place and found his sons and
helper seatedat the corner of the gas station. P/Supt. Cruz and his group was assigned at
Fort Bonifacio then heard on
their radio that the suspects vehicle, a red Nissan Sentra was heading in their direction. A
few minutes
later, they saw the red car and tailed it until it reached Dasmarias Village in Makati.
When said car slowed down, they blocked it and immediately approached the vehicle.
23
They introduced themselves aspolice officers and accosted the suspect, who turned out to
be appellant. Appellant suddenly pulled a .38caliber revolver and a scuffle took place.
They managed to subdue appellant and handcuffed him. Appellant was requested to open
the compartment and a gray bag was found inside. P/Supt. Cruz sawmoney, jewelry and a
gun inside the bag.ISSUE: Whether or not there was a valid arrest and search without
warrant?DOCTRINE: The arrest was validly executed pursuant to Section 5, paragraph
(b) of Rule 113 of theRules of Court, which provides:
A

18

peace officer or a private person may, without a warrant, arrest aperson: x x x; (b) When
an offense has in fact been committed and he has personal knowledge of factsindicating
that the person to be arrested has committed it; and, (c) x x x.
A search incident to a lawful
arrest is also valid under Section 13, Rule 126 of the Rules of Court which states:

A person lawfullyarrested may be searched for dangerous weapons or anything which

may have been used or constituteproof in the commission of an offense without a search
warrant.

RATIONALE: The instance of lawful warrantless arrest covered by paragraph (b) cited
abovenecessitates two stringent requirements before a warrantless arrest can be effected:
(1) an offense has just been committed; and (2) the person making the arrest has personal
knowledge of facts indicating thatthe person to be arrested has committed it. Records
show that both requirements are present in theinstant case. The police officers present in
Magallanes Commercial Center were able to witness the pay-off which effectively
People vs Marti
G.R. No. 81561 January 18, 1991
PEOPLE OF THE PHILIPPINES, plaintiff-appellee
vs.
ANDRE MARTI, accused-appellant.
Facts: The proprietors of Manila Packing and Export Forwarders, following standard
operating procedure, opened four gift wrapped boxes from which emerged a peculiar
odor. They reported this to the NBI on the same day, and in the presence of said agents,
opened the boxes which contained marijuana. The NBI filed an information against
appellant for violation of RA 6425, Dangerous Drugs Act, but appellant contended that
the evidence had been obtained in violation of consti rights against unreasonable search
and seizure and privacy of communication.
Issue: May an act of a private individual without the intervention and participation of the
State, and allegedly in violation of appellants constitutional rights, be invoked against
the State?
Held: No. It was the proprietor of the forwarding agency who made search/inspection of
the packages, not the NBI, as appellant would have the Court believe. Said inspection
SUPREME COURT
Manila

Outlawed is any unwarranted intrusion by the government, which is called upon to refrain
from any invasion of his dwelling and to respect the privacies of his life. However, in the
absence of governmental interference, the liberties granted by the Constitution cannot be
invoked against the State. As held in Bernas vs. US, the Fourth Amendment and the law
applying to it do not require exclusion of evidence obtained through a search by a private
citizen; rather the amendment only proscribes government action. To agree with appellant
that an act of a private individual in violation of the Bill of Rights should also be
construed as an act of the State would result in serious legal complications and an absurd
interpretation of the constitution.
The constitutional proscription against unlawful searches and seizures therefore applies
as a restraint directed only against the government and its agencies tasked with the
enforcement of the law. Thus, it could only be invoked against the State to whom the
restraint against arbitrary and unreasonable exercise of power is imposed.
ANDRE MARTI, accused-appellant.
The Solicitor General for plaintiff-appellee.
Reynaldo B. Tatoy and Abelardo E. Rogacion for accused-appellant.

THIRD DIVISION
G.R. No. 81561

consummates the crime of kidnapping. Such knowledge was then relayed to theother
police officers stationed in Fort Bonifacio where appellant was expected to pass by.
Personalknowledge of facts must be based on probable cause, which means an actual
belief or reasonablegrounds of suspicion. Section 5, Rule 113 does not require the
arresting officers to personally witness thecommission of the offense with their own eyes.
It is sufficient for the arresting team that they weremonitoring the pay-off for a number of
hours long enough for them to be informed that it was indeedappellant, who was the
kidnapper. This is equivalent to personal knowledge based on probable cause.Likewise,
the search conducted inside the car of appellant was legal because the latter consented
tosuch. Even assuming that appellant did not give his consent for the police to search the
car, they can stillvalidly do so by virtue of a search incident to a lawful arrest under
Section 13, Rule 126. In lawful arrests,it becomes both the duty and the right of the
apprehending officers to conduct a warrantless search notonly on the person of the
suspect, but also in the permissible area within the latter's reach. Therefore, it isonly but
expected and legally so for the police to search his car as he was driving it when he
wasarrested.
was reasonable and a standard operating procedure on the part of the proprietor as a
precautionary measure before delivery of packages to the Bureau of Customs or the
Bureau of Posts. Second, the mere presence of the NBI agents did not convert the
reasonable search the proprietor effected into a warrantless search and seizure proscribed
by the Constitution. Merely to observe and look at that which is in plain sight is not a
search.

January 18, 1991

PEOPLE OF THE PHILIPPINES, plaintiff-appellee

vs.

BIDIN, J.:
This is an appeal from a decision * rendered by the Special Criminal Court of Manila
(Regional Trial Court, Branch XLIX) convicting accused-appellant of violation of

19

Section 21 (b), Article IV in relation to Section 4, Article 11 and Section 2 (e) (i), Article
1 of Republic Act 6425, as amended, otherwise known as the Dangerous Drugs Act.

have been contained inside the cellophane wrappers (tsn, p. 38, October 6, 1987;
Emphasis supplied).

The facts as summarized in the brief of the prosecution are as follows:

The package which allegedly contained books was likewise opened by Job Reyes. He
discovered that the package contained bricks or cake-like dried marijuana leaves. The
package which allegedly contained tabacalera cigars was also opened. It turned out that
dried marijuana leaves were neatly stocked underneath the cigars (tsn, p. 39, October 6,
1987).

On August 14, 1987, between 10:00 and 11:00 a.m., the appellant and his common-law
wife, Shirley Reyes, went to the booth of the "Manila Packing and Export Forwarders" in
the Pistang Pilipino Complex, Ermita, Manila, carrying with them four (4) gift wrapped
packages. Anita Reyes (the proprietress and no relation to Shirley Reyes) attended to
them. The appellant informed Anita Reyes that he was sending the packages to a friend in
Zurich, Switzerland. Appellant filled up the contract necessary for the transaction, writing
therein his name, passport number, the date of shipment and the name and address of the
consignee, namely, "WALTER FIERZ, Mattacketr II, 8052 Zurich, Switzerland"
(Decision, p. 6)
Anita Reyes then asked the appellant if she could examine and inspect the packages.
Appellant, however, refused, assuring her that the packages simply contained books,
cigars, and gloves and were gifts to his friend in Zurich. In view of appellant's
representation, Anita Reyes no longer insisted on inspecting the packages. The four (4)
packages were then placed inside a brown corrugated box one by two feet in size (1' x 2').
Styro-foam was placed at the bottom and on top of the packages before the box was
sealed with masking tape, thus making the box ready for shipment (Decision, p. 8).
Before delivery of appellant's box to the Bureau of Customs and/or Bureau of Posts, Mr.
Job Reyes (proprietor) and husband of Anita (Reyes), following standard operating
procedure, opened the boxes for final inspection. When he opened appellant's box, a
peculiar odor emitted therefrom. His curiousity aroused, he squeezed one of the bundles
allegedly containing gloves and felt dried leaves inside. Opening one of the bundles, he
pulled out a cellophane wrapper protruding from the opening of one of the gloves. He
made an opening on one of the cellophane wrappers and took several grams of the
contents thereof (tsn, pp. 29-30, October 6, 1987; Emphasis supplied).

The NBI agents made an inventory and took charge of the box and of the contents
thereof, after signing a "Receipt" acknowledging custody of the said effects (tsn, pp. 2-3,
October 7, 1987).
Thereupon, the NBI agents tried to locate appellant but to no avail. Appellant's stated
address in his passport being the Manila Central Post Office, the agents requested
assistance from the latter's Chief Security. On August 27, 1987, appellant, while claiming
his mail at the Central Post Office, was invited by the NBI to shed light on the attempted
shipment of the seized dried leaves. On the same day the Narcotics Section of the NBI
submitted the dried leaves to the Forensic Chemistry Section for laboratory examination.
It turned out that the dried leaves were marijuana flowering tops as certified by the
forensic chemist. (Appellee's Brief, pp. 9-11, Rollo, pp. 132-134).
Thereafter, an Information was filed against appellant for violation of RA 6425,
otherwise known as the Dangerous Drugs Act.
After trial, the court a quo rendered the assailed decision.
In this appeal, accused/appellant assigns the following errors, to wit:
THE LOWER COURT ERRED IN ADMITTING IN EVIDENCE THE ILLEGALLY
SEARCHED AND SEIZED OBJECTS CONTAINED IN THE FOUR PARCELS.

Job Reyes forthwith prepared a letter reporting the shipment to the NBI and requesting a
laboratory examination of the samples he extracted from the cellophane wrapper (tsn, pp.
5-6, October 6, 1987).

THE LOWER COURT ERRED IN CONVICTING APPELLANT DESPITE THE

UNDISPUTED FACT THAT HIS RIGHTS UNDER THE CONSTITUTION WHILE
UNDER CUSTODIAL PROCEEDINGS WERE NOT OBSERVED.

He brought the letter and a sample of appellant's shipment to the Narcotics Section of the
National Bureau of Investigation (NBI), at about 1:30 o'clock in the afternoon of that
date, i.e., August 14, 1987. He was interviewed by the Chief of Narcotics Section. Job
Reyes informed the NBI that the rest of the shipment was still in his office. Therefore,
Job Reyes and three (3) NBI agents, and a photographer, went to the Reyes' office at
Ermita, Manila (tsn, p. 30, October 6, 1987).

THE LOWER COURT ERRED IN NOT GIVING CREDENCE TO THE

EXPLANATION OF THE APPELLANT ON HOW THE FOUR PARCELS CAME
INTO HIS POSSESSION (Appellant's Brief, p. 1; Rollo, p. 55)

Job Reyes brought out the box in which appellant's packages were placed and, in the
presence of the NBI agents, opened the top flaps, removed the styro-foam and took out
the cellophane wrappers from inside the gloves. Dried marijuana leaves were found to

1. Appellant contends that the evidence subject of the imputed offense had been obtained
in violation of his constitutional rights against unreasonable search and seizure and
privacy of communication (Sec. 2 and 3, Art. III, Constitution) and therefore argues that
the same should be held inadmissible in evidence (Sec. 3 (2), Art. III).
Sections 2 and 3, Article III of the Constitution provide:

20

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.

It must be noted, however, that in all those cases adverted to, the evidence so obtained
were invariably procured by the State acting through the medium of its law enforcers or
other authorized government agencies.

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.

On the other hand, the case at bar assumes a peculiar character since the evidence sought
to be excluded was primarily discovered and obtained by a private person, acting in a
private capacity and without the intervention and participation of State authorities. Under
the circumstances, can accused/appellant validly claim that his constitutional right against
unreasonable searches and seizure has been violated? Stated otherwise, may an act of a
private individual, allegedly in violation of appellant's constitutional rights, be invoked
against the State?

(2) Any evidence obtained in violation of this or the preceding section shall be
inadmissible for any purpose in any proceeding.

We hold in the negative. In the absence of governmental interference, the liberties

guaranteed by the Constitution cannot be invoked against the State.

Our present constitutional provision on the guarantee against unreasonable search and
seizure had its origin in the 1935 Charter which, worded as follows:

As this Court held in Villanueva v. Querubin (48 SCRA 345 [1972]:

The right of the people to be secure in their persons, houses, papers and effects against
unreasonable searches and seizures shall not be violated, and no warrants shall issue but
upon probable cause, to be determined 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. (Sec. 1 [3],
Article III)
was in turn derived almost verbatim from the Fourth Amendment ** to the United States
Constitution. As such, the Court may turn to the pronouncements of the United States
Federal Supreme Court and State Appellate Courts which are considered doctrinal in this
jurisdiction.
Thus, following the exclusionary rule laid down in Mapp v. Ohio by the US Federal
Supreme Court (367 US 643, 81 S.Ct. 1684, 6 L.Ed. 1081 [1961]), this Court, in
Stonehill v. Diokno (20 SCRA 383 [1967]), declared as inadmissible any evidence
obtained by virtue of a defective search and seizure warrant, abandoning in the process
the ruling earlier adopted in Moncado v. People's Court (80 Phil. 1 [1948]) wherein the
admissibility of evidence was not affected by the illegality of its seizure. The 1973
Charter (Sec. 4 [2], Art. IV) constitutionalized the Stonehill ruling and is carried over up
to the present with the advent of the 1987 Constitution.
In a number of cases, the Court strictly adhered to the exclusionary rule and has struck
down the admissibility of evidence obtained in violation of the constitutional safeguard
against unreasonable searches and seizures. (Bache & Co., (Phil.), Inc., v. Ruiz, 37 SCRA
823 [1971]; Lim v. Ponce de Leon, 66 SCRA 299 [1975]; People v. Burgos, 144 SCRA 1
[1986]; Roan v. Gonzales, 145 SCRA 687 [1987]; See also Salazar v. Hon. Achacoso, et
al., GR No. 81510, March 14, 1990).

1. This constitutional right (against unreasonable search and seizure) refers to the
immunity of one's person, whether citizen or alien, from interference by government,
included in which is his residence, his papers, and other possessions. . . .
. . . There the state, however powerful, does not as such have the access except under the
circumstances above noted, for in the traditional formulation, his house, however humble,
is his castle. Thus is outlawed any unwarranted intrusion by government, which is called
upon to refrain from any invasion of his dwelling and to respect the privacies of his
life. . . . (Cf. Schermerber v. California, 384 US 757 [1966] and Boyd v. United States,
116 US 616 [1886]; Emphasis supplied).
In Burdeau v. McDowell (256 US 465 (1921), 41 S Ct. 547; 65 L.Ed. 1048), the Court
there in construing the right against unreasonable searches and seizures declared that:
(t)he Fourth Amendment gives protection against unlawful searches and seizures, and as
shown in previous cases, its protection applies to governmental action. Its origin and
history clearly show that it was intended as a restraint upon the activities of sovereign
authority, and was not intended to be a limitation upon other than governmental agencies;
as against such authority it was the purpose of the Fourth Amendment to secure the
citizen in the right of unmolested occupation of his dwelling and the possession of his
property, subject to the right of seizure by process duly served.
The above ruling was reiterated in State v. Bryan (457 P.2d 661 [1968]) where a parking
attendant who searched the automobile to ascertain the owner thereof found marijuana
instead, without the knowledge and participation of police authorities, was declared
admissible in prosecution for illegal possession of narcotics.
And again in the 1969 case of Walker v. State (429 S.W.2d 121), it was held that the
search and seizure clauses are restraints upon the government and its agents, not upon

21

private individuals (citing People v. Potter, 240 Cal. App.2d 621, 49 Cap. Rptr, 892
(1966); State v. Brown, Mo., 391 S.W.2d 903 (1965); State v. Olsen, Or., 317 P.2d 938
(1957).
Likewise appropos is the case of Bernas v. US (373 F.2d 517 (1967). The Court there
said:
The search of which appellant complains, however, was made by a private citizen the
owner of a motel in which appellant stayed overnight and in which he left behind a travel
case containing the evidence*** complained of. The search was made on the motel
owner's own initiative. Because of it, he became suspicious, called the local police,
informed them of the bag's contents, and made it available to the authorities.
The fourth amendment and the case law applying it do not require exclusion of evidence
obtained through a search by a private citizen. Rather, the amendment only proscribes
governmental action."
The contraband in the case at bar having come into possession of the Government
without the latter transgressing appellant's rights against unreasonable search and seizure,
the Court sees no cogent reason why the same should not be admitted against him in the
prosecution of the offense charged.
Appellant, however, would like this court to believe that NBI agents made an illegal
search and seizure of the evidence later on used in prosecuting the case which resulted in
his conviction.
The postulate advanced by accused/appellant needs to be clarified in two days. In both
instances, the argument stands to fall on its own weight, or the lack of it.
First, the factual considerations of the case at bar readily foreclose the proposition that
NBI agents conducted an illegal search and seizure of the prohibited merchandise.
Records of the case clearly indicate that it was Mr. Job Reyes, the proprietor of the
forwarding agency, who made search/inspection of the packages. Said inspection was
reasonable and a standard operating procedure on the part of Mr. Reyes as a
precautionary measure before delivery of packages to the Bureau of Customs or the
Bureau of Posts (TSN, October 6 & 7, 1987, pp. 15-18; pp. 7-8; Original Records, pp.
119-122; 167-168).
It will be recalled that after Reyes opened the box containing the illicit cargo, he took
samples of the same to the NBI and later summoned the agents to his place of business.
Thereafter, he opened the parcel containing the rest of the shipment and entrusted the care
and custody thereof to the NBI agents. Clearly, the NBI agents made no search and
seizure, much less an illegal one, contrary to the postulate of accused/appellant.
Second, the mere presence of the NBI agents did not convert the reasonable search
effected by Reyes into a warrantless search and seizure proscribed by the Constitution.

Merely to observe and look at that which is in plain sight is not a search. Having
observed that which is open, where no trespass has been committed in aid thereof, is not
search (Chadwick v. State, 429 SW2d 135). Where the contraband articles are identified
without a trespass on the part of the arresting officer, there is not the search that is
prohibited by the constitution (US v. Lee 274 US 559, 71 L.Ed. 1202 [1927]; Ker v. State
of California 374 US 23, 10 L.Ed.2d. 726 [1963]; Moore v. State, 429 SW2d 122 [1968]).
In Gandy v. Watkins (237 F. Supp. 266 [1964]), it was likewise held that where the
property was taken into custody of the police at the specific request of the manager and
where the search was initially made by the owner there is no unreasonable search and
seizure within the constitutional meaning of the term.
That the Bill of Rights embodied in the Constitution is not meant to be invoked against
acts of private individuals finds support in the deliberations of the Constitutional
Commission. True, the liberties guaranteed by the fundamental law of the land must
always be subject to protection. But protection against whom? Commissioner Bernas in
his sponsorship speech in the Bill of Rights answers the query which he himself posed, as
follows:
First, the general reflections. The protection of fundamental liberties in the essence of
constitutional democracy. Protection against whom? Protection against the state. The Bill
of Rights governs the relationship between the individual and the state. Its concern is not
the relation between individuals, between a private individual and other individuals.
What the Bill of Rights does is to declare some forbidden zones in the private sphere
inaccessible to any power holder. (Sponsorship Speech of Commissioner Bernas , Record
of the Constitutional Commission, Vol. 1, p. 674; July 17, 1986; Emphasis supplied)
The constitutional proscription against unlawful searches and seizures therefore applies
as a restraint directed only against the government and its agencies tasked with the
enforcement of the law. Thus, it could only be invoked against the State to whom the
restraint against arbitrary and unreasonable exercise of power is imposed.
If the search is made upon the request of law enforcers, a warrant must generally be first
secured if it is to pass the test of constitutionality. However, if the search is made at the
behest or initiative of the proprietor of a private establishment for its own and private
purposes, as in the case at bar, and without the intervention of police authorities, the right
against unreasonable search and seizure cannot be invoked for only the act of private
individual, not the law enforcers, is involved. In sum, the protection against unreasonable
searches and seizures cannot be extended to acts committed by private individuals so as
to bring it within the ambit of alleged unlawful intrusion by the government.
Appellant argues, however, that since the provisions of the 1935 Constitution has been
modified by the present phraseology found in the 1987 Charter, expressly declaring as
inadmissible any evidence obtained in violation of the constitutional prohibition against
illegal search and seizure, it matters not whether the evidence was procured by police
authorities or private individuals (Appellant's Brief, p. 8, Rollo, p. 62).

22

The argument is untenable. For one thing, the constitution, in laying down the principles
of the government and fundamental liberties of the people, does not govern relationships
between individuals. Moreover, it must be emphasized that the modifications introduced
in the 1987 Constitution (re: Sec. 2, Art. III) relate to the issuance of either a search
warrant or warrant of arrest vis-a-vis the responsibility of the judge in the issuance
thereof (See Soliven v. Makasiar, 167 SCRA 393 [1988]; Circular No. 13 [October 1,
1985] and Circular No. 12 [June 30, 1987]. The modifications introduced deviate in no
manner as to whom the restriction or inhibition against unreasonable search and seizure is
directed against. The restraint stayed with the State and did not shift to anyone else.
Corolarilly, alleged violations against unreasonable search and seizure may only be
invoked against the State by an individual unjustly traduced by the exercise of sovereign
authority. To agree with appellant that an act of a private individual in violation of the
Bill of Rights should also be construed as an act of the State would result in serious legal
complications and an absurd interpretation of the constitution.
Similarly, the admissibility of the evidence procured by an individual effected through
private seizure equally applies, in pari passu, to the alleged violation, non-governmental
as it is, of appellant's constitutional rights to privacy and communication.
2. In his second assignment of error, appellant contends that the lower court erred in
convicting him despite the undisputed fact that his rights under the constitution while
under custodial investigation were not observed.
Again, the contention is without merit, We have carefully examined the records of the
case and found nothing to indicate, as an "undisputed fact", that appellant was not
informed of his constitutional rights or that he gave statements without the assistance of
counsel. The law enforcers testified that accused/appellant was informed of his
constitutional rights. It is presumed that they have regularly performed their duties (See.
5(m), Rule 131) and their testimonies should be given full faith and credence, there being
no evidence to the contrary. What is clear from the records, on the other hand, is that
appellant refused to give any written statement while under investigation as testified by
Atty. Lastimoso of the NBI, Thus:
Fiscal Formoso:
You said that you investigated Mr. and Mrs. Job Reyes. What about the accused here, did
you investigate the accused together with the girl?
WITNESS:
Yes, we have interviewed the accused together with the girl but the accused availed of his
constitutional right not to give any written statement, sir. (TSN, October 8, 1987, p. 62;
Original Records, p. 240)

The above testimony of the witness for the prosecution was not contradicted by the
defense on cross-examination. As borne out by the records, neither was there any proof
by the defense that appellant gave uncounselled confession while being investigated.
What is more, we have examined the assailed judgment of the trial court and nowhere is
there any reference made to the testimony of appellant while under custodial
investigation which was utilized in the finding of conviction. Appellant's second
assignment of error is therefore misplaced.
3. Coming now to appellant's third assignment of error, appellant would like us to believe
that he was not the owner of the packages which contained prohibited drugs but rather a
certain Michael, a German national, whom appellant met in a pub along Ermita, Manila:
that in the course of their 30-minute conversation, Michael requested him to ship the
packages and gave him P2,000.00 for the cost of the shipment since the German national
was about to leave the country the next day (October 15, 1987, TSN, pp. 2-10).
Rather than give the appearance of veracity, we find appellant's disclaimer as incredulous,
self-serving and contrary to human experience. It can easily be fabricated. An
acquaintance with a complete stranger struck in half an hour could not have pushed a
man to entrust the shipment of four (4) parcels and shell out P2,000.00 for the purpose
and for appellant to readily accede to comply with the undertaking without first
ascertaining its contents. As stated by the trial court, "(a) person would not simply entrust
contraband and of considerable value at that as the marijuana flowering tops, and the cash
amount of P2,000.00 to a complete stranger like the Accused. The Accused, on the other
hand, would not simply accept such undertaking to take custody of the packages and ship
the same from a complete stranger on his mere say-so" (Decision, p. 19, Rollo, p. 91). As
to why he readily agreed to do the errand, appellant failed to explain. Denials, if
unsubstantiated by clear and convincing evidence, are negative self-serving evidence
which deserve no weight in law and cannot be given greater evidentiary weight than the
testimony of credible witnesses who testify on affirmative matters (People v. Esquillo,
171 SCRA 571 [1989]; People vs. Sariol, 174 SCRA 237 [1989]).
Appellant's bare denial is even made more suspect considering that, as per records of the
Interpol, he was previously convicted of possession of hashish by the Kleve Court in the
Federal Republic of Germany on January 1, 1982 and that the consignee of the frustrated
shipment, Walter Fierz, also a Swiss national, was likewise convicted for drug abuse and
is just about an hour's drive from appellant's residence in Zurich, Switzerland (TSN,
October 8, 1987, p. 66; Original Records, p. 244; Decision, p. 21; Rollo, p. 93).
Evidence to be believed, must not only proceed from the mouth of a credible witness, but
it must be credible in itself such as the common experience and observation of mankind
can approve as probable under the circumstances (People v. Alto, 26 SCRA 342 [1968],
citing Daggers v. Van Dyke, 37 N.J. Eg. 130; see also People v. Sarda, 172 SCRA 651
[1989]; People v. Sunga, 123 SCRA 327 [1983]); Castaares v. CA, 92 SCRA 567
[1979]). As records further show, appellant did not even bother to ask Michael's full
name, his complete address or passport number. Furthermore, if indeed, the German

23

national was the owner of the merchandise, appellant should have so indicated in the
contract of shipment (Exh. "B", Original Records, p. 40). On the contrary, appellant
signed the contract as the owner and shipper thereof giving more weight to the
presumption that things which a person possesses, or exercises acts of ownership over,
are owned by him (Sec. 5 [j], Rule 131). At this point, appellant is therefore estopped to
claim otherwise.

WHEREFORE, the judgment of conviction finding appellant guilty beyond reasonable

doubt of the crime charged is hereby AFFIRMED. No costs.
SO ORDERED.
Fernan, C.J., Gutierrez, Jr. and Feliciano, JJ., concur.

Premises considered, we see no error committed by the trial court in rendering the
assailed judgment.
In 1927, Jay M. Near, who has been described as "anti-Catholic, anti-Semitic, anti-black
and anti-labor"[2] began publishing The Saturday Press in Minneapolis with Howard A.
Guilford, a former mayoral candidate who had been convicted of criminal libel.
The paper claimed that Jewish gangs were "practically ruling" the city along with the
police chief, Frank W. Brunskill, who was accused of participation in graft. Among the
paper's other targets were mayor George E. Leach, Hennepin County attorney and future
three-term governor Floyd B. Olson, and the members of the grand jury of Hennepin
County, who, the paper claimed, were either incompetent or willfully failing to
investigate and prosecute known criminal activity.
Shortly after the first issue was distributed, Guilford was gunned down and hospitalized,
where a further attempt on his life was made. At least one of the stories printed in The
Saturday Press led to a successful prosecution of a gangster called Big Mose Barnett who
had intimidated a local dry cleaner by destroying his customers' clothing.
First trial court proceeding
Olson filed a complaint against Near and Guilford under the Public Nuisance Law of
1925.[3] Also known as the "Minnesota Gag Law", it provided permanent injunctions
against those who created a "public nuisance," by publishing, selling, or distributing a
"malicious, scandalous and defamatory newspaper." Olson claimed that the allegations
raised against him and the other named public officials in all nine issues published
between September 24, 1927, and November 19, 1927, as well as the paper's overall antiSemitic tone, constituted a violation of this law. On November 22, 1927, Judge Matthias
Baldwin of the Hennepin County District Court issued a temporary injunction that barred
the defendants from editing, publishing, or circulating The Saturday Press or any other
publication containing similar material. This injunction was granted without notice to
either defendant on an ex parte hearing between Olson and the judge, and was to extend
until the hearing on the judge's order for the defendants to show cause as to why they
should not be permanently enjoined from publishing their paper. The hearing was held
December 9, and future Minneapolis mayor, Thomas Latimer, argued that the defendants'
activities were protected by the U.S. and Minnesota constitutions and demurred to the
complaint.
Judge Baldwin denied the demurrer and was affirmed by the Minnesota Supreme Court
on appeal.
First Minnesota Supreme Court decision

The State Supreme Court wrote that a scandalous publication "annoys, injures and
endangers the comfort and repose of a considerable number of persons," and so
constituted a nuisance just as surely as "places where intoxicating liquor is illegally sold,"
"houses of prostitution," "dogs," "malicious fences" "itinerant carnivals," "lotteries," and
"noxious weeds." The court considered that a newspaper may also endanger safety,
because "scandalous material" tended to disturb the peace and provoke assaults. The
court cited previous Minnesota decisions that upheld the right of the state to enjoin the
publication of "details of execution of criminals" and the teaching of "things injurious to
society." Restricting the publication of a newspaper based on its harmful content
accordingly fell within the legitimate power of "the people speaking through their
representatives" to preserve "public morals" and the "public welfare." The court stated
that it had to give heavy deference to such decisions, because "[i]t is the prerogative of
the legislature to determine not only what the public interests require but also the
measures necessary to protect such interests."
Regarding Near and Guilford's defense of freedom of the press under article 1, section 3
of the Minnesota Constitution, the State Supreme Court did not believe that the right was
intended to protect the publishing of "scandalous material", but that it only provided "a
shield for the honest, careful and conscientious press," not the "defamer and the
scandalmonger." Instead, "[h]e who uses the press is responsible for its abuse." The court
also ruled that the state constitution's due process clause did not extend any additional
protection.
The trial court's decision after remand
The case then returned to the Hennepin County District Court, and Near and Guilford
renewed their objection to the constitutionality of the Public Nuisance Law. Judge
Baldwin again overruled their objection. Only the verified complaint that Olson had filed
and the newspaper issues themselves were entered as evidence, and the defendants did
not try to argue that the Saturday Press did not fit the definition under the statute, or that
their published stories were in fact true. Baldwin ruled that the newspapers contained
nothing but scandalous and defamatory material, and permanently enjoined the
defendants "from producing, editing, publishing, circulating, having in their possession,
selling or giving away any publication whatsoever which is a malicious, scandalous or
defamatory newspaper, as defined by law," and also "from further conducting said
nuisance under the name and title of said 'The Saturday Press or any other name or
title."[4]

24

Second Minnesota Supreme Court decision

On appeal once again, the Minnesota Supreme Court ruled that its first decision left little
question as to the constitutionality of the statute, both under the defendants' state
constitutional challenge and a new argument based on due process under the 14th
Amendment to the U.S. Constitution. The defendants also argued that the trial court's
injunction went too far because it effectively prevented them from operating any
newspaper, but their appeal did not request a modification of the order. The court in any
case disagreed with their interpretation of the order's scope, stating that it did allow them
to publish a newspaper, so long as it was operated "in harmony with the public welfare."
Only Near appealed from this decision to the U.S. Supreme Court, thanks to last-minute
financial help from Col. Robert R. McCormick, the legendary publisher of the Chicago
Tribune. This time, the Court, by a narrow 5-4 margin reversed the decision of the
Minnesota Supreme Court and ruled that the Public Nuisance Law of 1925 was
unconstitutional. The reversal was based largely on changes to the makeup of the
Supreme Court between the two arguments. A quotation from the decision written by
Hughes is engraved in the lobby of the Tribune today.
The Court's decision
The U.S. Supreme Court held that, except in rare cases, censorship is unconstitutional.
The court held:
"For these reasons we hold the statute, so far as it authorized the proceedings in this
action under clause (b) [723] of section one, to be an infringement of the liberty of the
press guaranteed by the Fourteenth Amendment. We should add that this decision rests
upon the operation and effect of the statute, without regard to the question of the truth of
the charges contained in the particular periodical. The fact that the public officers named
in this case, and those associated with the charges of official dereliction, may be deemed
to be impeccable cannot affect the conclusion that the statute imposes an unconstitutional
restraint upon publication."
Note that the paragraph above cites the Fourteenth Amendment and not the First
Amendment. This is because the Fourteenth Amendment incorporates the First and makes
it applicable to the States. As literally written, the First Amendment applies to Congress
and the federal government, not the states.
This case strengthened the notion that a prior restraint of the press violates the First
Amendment. However, it left a loophole which would be used later for other prior
New York Times vs US

restraint cases, citing certain circumstances in which prior restraint could potentially be
used:
"The objection has also been made that the principle as to immunity from previous
restraint is stated too broadly, if every such restraint is deemed to be prohibited. That is
undoubtedly true; the protection even as to previous restraint is not absolutely unlimited.
But the limitation has been recognized only in exceptional cases. 'When a nation is at war
many things that might be said in time of peace are such a hindrance to its effort that their
utterance will not be endured so long as men fight and that no Court could regard them as
protected by any constitutional right.' (Schenck v. United States). 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."
Hughes (Ct): "...the fact that liberty of press may be abused does not make any less
necessary the immunity of the press from prior restraint...a more serious evil would result
if officials could determine which stories can be published..."
Subsequent developments
Guilford later joined the staff of the Twin City Reporter. He continued to draw the ire of
organized crime in Minneapolis and was shot and killed on September 6, 1934.
The Court closed off one of the few outlets remaining to censor the press under Near in
New York Times Co. v. Sullivan, which seriously limited the grounds upon which a
public official could sue for libel. Statements made regarding their official conduct were
only actionable if made with "actual malice", meaning a knowing or reckless disregard
for the truth.
Hustler Magazine v. Falwell excluded parodies from even this limited standard, as they
included no actionable statements of fact. Hustler made clear this protection extended
beyond merely defamation suits to cover other torts such as intentional infliction of
emotional distress.
Basic case law resulting from this case
No prior restraint of the content of news by the government is allowed unless it reveals
crucial military information, contains obscenity, or may directly incite "acts of violence".
Annotated and the only part that appeared to apply to the Times was 793(e), which made
it criminal for:

Section 793 of the Espionage Act

Section 793 of the Espionage Act was cited by Attorney General John N. Mitchell as
cause for the United States to sue to bar further publication of stories based upon the
Pentagon Papers. The statute was spread over three pages of the United States Code

Whoever having unauthorized possession of, access to, or control over any document,
writing, code book, signal book, sketch, photograph, photographic negative, blueprint,
plan, map, model, instrument, appliance, or note relating to the national defense, or
information relating to the national defense which information the possessor has reason to

25

believe could be used to the injury of the United States or to the advantage of any foreign
nation, willfully communicates, delivers, transmits or causes to be communicated,
delivered, or transmitted, or attempts to communicate, deliver, transmit or cause to be
communicated, delivered, or transmitted the same to any person not entitled to receive it,
or willfully retains the same and fails to deliver it to the officer or employee of the United
States entitled to receive it.[2]
Based on this language, Alexander Bickel and Floyd Abrams felt there were three
preliminary arguments to raise. First, the wording of the statute was very broad. Was each
article about foreign policy one "relating to the national defense"? What was the
significance of "reason to believe" that the Pentagon Papers "could be used to the injury
of the United States or the advantage of any foreign nation"? If the motivation was to
educate the public, was that a defense that served to help, not hinder, the country? Would
the public be "a person not entitled to receive" the information? Of equal import was
what the statute did not say: No references to "publication" (as Attorney General
Mitchell's cease-and-desist order referenced), no reference to classified information, and
no support for Mitchell's reliance on the top secret classification to justify restraint on
publication. Additionally, there was no statutory language providing authority for prior
restraint on publication at all.
Second, was the relevance of Mitchell's reliance on a criminal statute in a civil
proceeding seeking prior restraint. There was Supreme Court precedent that lent support
to the idea that bans on the publication of information by the press to be unconstitutional.
In 1907 Oliver Wendell Holmes wrote the "main purpose" of the First Amendment" was
"to prevent all such previous restraints upon publications as had been practiced by other
governments". In 1931 the Court wrote that only the narrowest circumstancessuch as
publication of the dates of departure of ships during wartimewere permissibly
restrained. In 1969 John Marshall Harlan II wrote the Supreme Court "rejected all
manner of prior restraint on publication". This second line of reasoning made it seem the
statute should only be dealt with in passing, making the case a First Amendment one and
the relief the government wanteda bar on publicationunavailable.
The third possible approach was a very broad view of the First Amendment, one not
focused on the impact of a government victory on the life of a democratic society if prior
restraint were granted; but that the publication of just these sorts of materials
governmental misjudgments and misconducts of high importis exactly why the First
Amendment exists.
Restraining order sought
By 1971, the United States had been overtly at war with North Vietnam for six years. At
this point, 59,000 American soldiers had died and the administration was facing
widespread dissent from large portions of the American public. In 1967 Secretary of
Defense Robert S. McNamara commissioned a massive top-secret history of the United
States role in Indochina. The resulting 2.5 million word classified work was obtained by
the New York Times within three years, which immediately began publishing articles
outlining the findings.

The first article appeared in the Times' Sunday edition, on June 13, 1971. By the
following Tuesday, the Times received an order to cease further publication from a
District Court judge, at the request of the administration. The government claimed it
would cause "irreparable injury to the defense interests of the United States" and wanted
to "enjoin the New York Times and the Washington Post from publishing the contents of
a classified study entitled History of U.S. Decision-Making Process on the Vietnam
Policy. Seen from a constitutional perspective, the Government was expressing its intent
to enforce prior restraint upon a newspaper with regards to publishing the findings of a
study that the government itself had made.
The government sought a restraining order that barred the Times from publishing any
further articles based upon the Pentagon Papers. In addition to The New York Times
Company, the Justice Department named the following defendants: Arthur Ochs
Sulzberger, president and publisher; Harding Bancroft and Ivan Veit, executive vice
presidents; Francis Cox, James Goodale, Sydney Gruson, Walter Mattson, John McCabe,
John Mortimer and James Reston, vice presidents; John B. Oakes, editorial page editor;
A. M. Rosenthal, managing editor; Daniel Schwarz, Sunday editor; Clifton Daniel and
Tom Wicker, associate editors; Gerald Gold and Allan Siegal, assistant foreign editors;
Neil Sheehan, Hedrick Smith, E. W. Kenworthy and Fox Butterfield, reporters; and
Samuel Abt, a foreign desk copy editor.
Federal judge Murray Gurfein heard arguments. Michael Hess, chief of the Civil Division
of the United States Attorneys Office, argued "serious injuries are being inflicted on our
foreign relations, to the benefit of other nations opposed to our foreign relations, to the
benefit of other nations opposed to our form of government".[3] Hess relied on Secretary
of State William P. Rogers's statement reported earlier that day that a number of nations
were concerned about the Papers publication and an affidavit from general counsel of the
Navy that alleged irreparable injury if publication did not cease. Hess asked for a
temporary restraining order.
Bickel argued that the separation of powers barred the court from issuing the restraining
order, since there was no statute authorizing such relief. He further argued that there was
no exception to the general unavailability of prior restraint that applied in this case.
Gurfein called all counsel to his chambers and asked Bickel and Abrams to have the
Times cease publication of the Papers until he could review them. Bickel responded that
Gurfein would be the first judge in American history to enter a prior restraint enjoining
publication of news if he granted the government's request. The Times refused to cease
publication. Gurfein granted the request and set a hearing for June 18.
The New York Times agreed to abide by the restraining order and on June 19, the District
Court rejected the administrations request for an injunction, whereas the Court of
Appeals, after an en banc hearing, granted an injunction until June 25.[4] As for the Post,
the District Court for the District of Columbia rejected the government's request, as well
as the Court of Appeals for the DC Circuit. This inconsistency between the courts of
appeal led the Supreme Court to hear the case.

26

Floyd Abrams, counsel to the New York Times

Along with the issue of how the Times obtained the documents (which was being
investigated by a federal grand jury elsewhere) the real issue for the Court was whether
there was a sufficient justification for prior restraint, which would be a suspension of the
newspapers First Amendment rights to freedom of the press. The First Amendment states
that no federal law can be made abridging the freedom of the press, but a few landmark
cases in the 20th century had established precedents creating exceptions to that rule.
The most recent incarnation of the exception was the grave and probable danger rule,
established in Dennis v. United States, 341 U.S. 494 (1951). During this case, the
wording was changed to the grave and irreparable danger standard. The idea behind the
numerous versions of the rule is that if a certain message will likely cause a grave and
irreparable danger to the American public when expressed, then the messages prior
restraint could be considered an acceptable infringement of civil liberties. The Supreme
Court was therefore charged with determining if the Government had sufficiently met the
burden of showing justification for the imposition of such a restraint .
The Supreme Court heard arguments from the Executive Branch, the Times, the Post, and
the Justice Department on June 25 and 26, 1971. On June 30, with six Justices concurring
and three dissenting, the Supreme Court upheld the right of the two newspapers to
publish the material.
In its decision, the court first established the legal question with the use of precedents. It
first stated that Any system of prior restraints of expression comes to this Court bearing
a heavy presumption against its constitutional validity. The purpose of this statement
was to make the presence of the inherent conflict between the Governments efforts and
the First Amendment clear. The decision then stated that the government thus carries a
heavy burden of showing justification for the imposition of such a restraint. This
reinforced the idea that it was the Nixon Administration's responsibility to show sufficient
evidence that the newspapers actions would cause a grave and irreparable danger.[5]
Decision
In a 6-3 decision, the Supreme Court agreed with the two lower courts, which had
originally decided that the government had not met its "heavy burden" of showing a
justification for a prior restraint. The Court issued a very brief per curiam opinion, stating
only that the Court concurred with the decisions of the two lower courts to reject the
Governments request for an injunction.[6]
The Justices' opinions included different degrees of support for the clear superiority of
the First Amendment and no Justice fully supported the governments case. Because of
these factors, no clear and exclusive verdict appears to have come out of this case.
Nevertheless, the significance of the case and the wording of the Justices opinions have
added important statements to the history of precedents for exceptions to the First
Amendment, which have been cited in numerous Supreme Court cases since.
Concurring opinions

Justice Hugo Black wrote an opinion that elaborated on his view of the absolute
superiority of the First Amendment:
"[T]he injunction against the New York Times should have been vacated without oral
argument when the cases were first presented ... . [E]very moment's continuance of the
injunctions ... amounts to a flagrant, indefensible, and continuing violation of the First
Amendment. ... When the Constitution was adopted, many people strongly opposed it
because the document contained no Bill of Rights ... . In response to an overwhelming
public clamor, James Madison offered a series of amendments to satisfy citizens that
these great liberties would remain safe ... . In the First Amendment the Founding Fathers
gave the free press the protection it must have to fulfill its essential role in our
democracy. The press was to serve the governed, not the governors. The Government's
power to censor the press was abolished so that the press would remain forever free to
censure the Government. The press was protected so that it could bare the secrets of
government and inform the people. Only a free and unrestrained press can effectively
expose deception in government. And paramount among the responsibilities of a free
press is the duty to prevent any part of the government from deceiving the people and
sending them off to distant lands to die of foreign fevers and foreign shot and shell. ...
[W]e are asked to hold that ... the Executive Branch, the Congress, and the Judiciary can
make laws ... abridging freedom of the press in the name of 'national security.' ... To find
that the President has 'inherent power' to halt the publication of news ... would wipe out
the First Amendment and destroy the fundamental liberty and security of the very people
the Government hopes to make 'secure.' ... The word 'security' is a broad, vague
generality whose contours should not be invoked to abrogate the fundamental law
embodied in the First Amendment. The guarding of military and diplomatic secrets at the
expense of informed representative government provides no real security ... . The
Framers of the First Amendment, fully aware of both the need to defend a new nation and
the abuses of the English and Colonial governments, sought to give this new society
strength and security by providing that freedom of speech, press, religion, and assembly
should not be abridged.[7]
Justice William O. Douglas largely concurred with Black, arguing that the need for a free
press as a check on government prevents any governmental restraint on the press.[8]
Justice William J. Brennan, Jr., wrote separately to explain that the publication of the
documents did not qualify as one of the three exceptions to the freedom of expression
established in Near v. Minnesota (1931).[9]
Justice Potter Stewart and Justice Byron R. White agreed that it is the responsibility of
the Executive to ensure national security through the protection of its information.
However, in areas of national defense and international affairs, the President of United
States possesses great constitutional independence that is virtually unchecked by the
Legislative and Judicial branch. "In absence of governmental checks and balances", per
Justice Stewart, "the only effective restraint upon executive policy and power in [these

27

two areas] may lie in an enlightened citizenry - in an informed and critical public opinion
which alone can here protect the values of democratic government".[10]
Justice Thurgood Marshall argued that the term "national security" was too broad to
legitimize prior restraint, and also argued that it is not the Courts job to create laws
where the Congress had not spoken.[11]
Dissenting opinions
Chief Justice Warren E. Burger, dissenting, argued that "the imperative of a free and
unfettered press comes into collision with another imperative, the effective functioning of
a complex modern government", that there should be a detailed study on the effects of
[G.R. No. 119673. July 26, 1996]
IGLESIA NI CRISTO (INC.), petitioner, vs. THE HONORABLE COURT OF
APPEALS, BOARD OF REVIEW FOR MOTION PICTURES AND TELEVISION and
HONORABLE HENRIETTA S. MENDEZ, respondents.

these actions. He argued that in the haste of the proceedings, and given the size of the
documents, the Court was unable to gather enough information to make a decision. He
also argued that the Times should have discussed the possible societal repercussions with
the Government prior to publication of the material. The Chief Justice did not argue that
the Government had met the aforementioned standard, but rather that the decision should
not have been made so hastily.[12]
Justice John M. Harlan and Justice Harry A. Blackmun joined the Chief Justice in arguing
the faults in the proceedings, and the lack of attention towards national security and the
rights of the Executive.[13]
Series Nos. 115, 119, 121 and 128. In their Answer, respondent Board invoked its power
under P.D. No. 1986 in relation to Article 201 of the Revised Penal Code.
On January 4, 1993, the trial court held a hearing on petitioners prayer for a writ of
preliminary injunction. The parties orally argued and then marked their documentary
evidence. Petitioner submitted the following as its exhibits, viz.:

DECISION
PUNO, J.:
This is a petition for review of the Decision dated March 24, 1995 of the respondent
Court of Appeals affirming the action of the respondent Board of Review for Motion
Pictures and Television which x-rated the TV Program Ang Iglesia ni Cristo.
Petitioner Iglesia ni Cristo, a duly organized religious organization, has a television
program entitled Ang Iglesia ni Cristo aired on Channel 2 every Saturday and on Channel
13 every Sunday. The program presents and propagates petitioners religious beliefs,
doctrines and practices often times in comparative studies with other religions.
Sometime in the months of September, October and November 1992, petitioner submitted
to the respondent Board of Review for Motion Pictures and Television the VTR tapes of
its TV program Series Nos. 116, 119, 121 and 128. The Board classified the series as X or
not for public viewing on the ground that they offend and constitute an attack against
other religions which is expressly prohibited by law.
Petitioner pursued two (2) courses of action against the respondent Board. On November
28, 1992, it appealed to the Office of the President the classification of its TV Series No.
128. It succeeded in its appeal for on December 18, 1992, the Office of the President
reversed the decision of the respondent Board. Forthwith, the Board allowed Series No.
128 to be publicly telecast.
On December 14, 1992, petitioner also filed against the respondent Board Civil Case No.
Q-92-14280, with the RTC, NCR, Quezon City.[1] Petitioner alleged that the respondent
Board acted without jurisdiction or with grave abuse of discretion in requiring petitioner
to submit the VTR tapes of its TV program and in x-rating them. It cited its TV Program

(1) Exhibit A, respondent Boards Voting Slip for Television showing its September 9,
1992 action on petitioners Series No. 115 as follows:[2]
REMARKS:
There are some inconsistencies in the particular program as it is very surprising for this
program to show series of Catholic ceremonies and also some religious sects and using it
in their discussion about the bible. There are remarks which are direct criticism which
affect other religions.
Need more opinions for this particular program. Please subject to more opinions.
(2) Exhibit A-1, respondent Boards Voting Slip for Television showing its September 11,
1992 subsequent action on petitioners Series No. 115 as follows:[3]
REMARKS:
This program is criticizing different religions, based on their own interpretation of the
Bible.
We suggest that the program should delve on explaining their own faith and beliefs and
avoid attacks on other faith.
(3) Exhibit B, respondent Boards Voting Slip for Television showing its October 9, 1992
action on petitioners Series No. 119, as follows:[4]
REMARKS:

28

The Iglesia ni Cristo insists on the literal translation of the bible and says that our
(Catholic) veneration of the Virgin Mary is not to be condoned because nowhere it is
found in the bible that we should do so.

(9) Exhibits H, H-1, letter dated November 26, 1992 of Teofilo C. Ramos, Sr., addressed
to President Fidel V. Ramos appealing the action of the respondent Board x-rating
petitioners Series No. 128.

This is intolerance and robs off all sects of freedom of choice, worship and decision.

On its part, respondent Board submitted the following exhibits, viz.:

(4) Exhibit C, respondent Boards Voting Slip for Television showing its October 20, 1992
action on petitioners Series No. 121 as follows:[5]

(1) Exhibit 1, Permit Certificate for Television Exhibition No. 15181 dated December 18,
1992 allowing the showing of Series No. 128 under parental guidance.

REMARKS:

(2) Exhibit 2, which is Exhibit G of petitioner.

I refuse to approve the telecast of this episode for reasons of the attacks, they do on,
specifically, the Catholic religion.

(3) Exhibit 3, letter dated October 12, 1992 of Henrietta S. Mendez, addressed to the
Christian Era Broadcasting Service which reads in part:

I refuse to admit that they can tell, dictate any other religion that they are right and the
rest are wrong, which they clearly present in this episode.

xxx

(5) Exhibit D, respondent Boards Voting Slip for Television showing its November 20,
1992 action on petitioners Series No. 128 as follows:[6]

In the matter of your television show Ang Iglesia ni Cristo Series No. 119, please be
informed that the Board was constrained to deny your show a permit to exhibit. The
material involved constitute an attack against another religion which is expressly
prohibited by law. Please be guided in the submission of future shows.

REMARKS:
The episode presented criticizes the religious beliefs of the Catholic and Protestants
beliefs.
We suggest a second review.
(6) Exhibits E, E-1, petitioners block time contract with ABS-CBN Broadcasting
Corporation dated September 1, 1992.[7]

After evaluating the evidence of the parties, the trial court issued a writ of preliminary
injunction on petitioners bond of P10,000.00.
The trial court set the pre-trial of the case and the parties submitted their pre-trial briefs.
[9] The pre-trial briefs show that the parties evidence is basically the evidence they
submitted in the hearing of the issue of preliminary injunction. The trial of the case was
set and reset several times as the parties tried to reach an amicable accord. Their efforts
failed and the records show that after submission of memoranda, the trial court rendered a
Judgment,[10] on December 15, 1993, the dispositive portion of which reads:

(7) Exhibit F, petitioners Airtime Contract with Island Broadcasting Corporation.[8]

xxx
(8) Exhibit G, letter dated December 18, 1992 of former Executive Secretary Edelmiro A.
Amante, Sr., addressed to Henrietta S. Mendez reversing the decision of the respondent
Board which x-rated the showing of petitioners Series No. 129. The letter reads in part:

WHEREFORE, judgment is hereby rendered ordering respondent Board of Review for

Motion Pictures and Television (BRMPT) to grant petitioner Iglesia ni Cristo the
necessary permit for all the series of Ang Iglesia ni Cristo program.

xxx xxx xxx

The television episode in question is protected by the constitutional guarantee of free
speech and expression under Article III, Section 4 of the 1987 Constitution.

Petitioner Iglesia ni Cristo, however, is directed to refrain from offending and attacking
other existing religions in showing Ang Iglesia ni Cristo program.
SO ORDERED.

We have viewed a tape of the television episode in question, as well as studied the
passages found by MTRCB to be objectionable and we find no indication that the episode
poses any clear and present danger sufficient to limit the said constitutional guarantee.

Petitioner moved for reconsideration[11] praying: (a) for the deletion of the second
paragraph of the dispositive portion of the Decision, and (b) for the Board to be
perpetually enjoined from requiring petitioner to submit for review the tapes of its

29

program. The respondent Board opposed the motion.[12] On March 7, 1993, the trial
court granted petitioners Motion for Reconsideration. It ordered:[13]
xxx
WHEREFORE, the Motion for Reconsideration is granted. The second portion of the
Courts Order dated December 15, 1993, directing petitioner to refrain from offending and
attacking other existing religions in showing Ang Iglesia ni Cristo program is hereby
deleted and set aside. Respondents are further prohibited from requiring petitioner Iglesia
ni Cristo to submit for review VTR tapes of its religious program Ang Iglesia ni Cristo.
Respondent Board appealed to the Court of Appeals after its motion for reconsideration
was denied.[14]
On March 5, 1995, the respondent Court of Appeals[15] reversed the trial court. It ruled
that: (1) the respondent board has jurisdiction and power to review the TV program Ang
Iglesia ni Cristo, and (2) the respondent Board did not act with grave abuse of discretion
when it denied permit for the exhibition on TV of the three series of Ang Iglesia ni Cristo
on the ground that the materials constitute an attack against another religion. It also found
the series indecent, contrary to law and contrary to good customs.
In this petition for review on certiorari under Rule 45, petitioner raises the following
issues:
I
WHETHER OR NOT THE HONORABLE COURT OF APPEALS ERRED IN
HOLDING THAT ANG IGLESIA NI CRISTO PROGRAM IS NOT
CONSTITUTIONALLY PROTECTED AS A FORM OF RELIGIOUS EXERCISE AND
EXPRESSION.
II
WHETHER OR NOT THE HONORABLE COURT OF APPEALS ERRED IN NOT
HOLDING THAT BEING AN EXERCISE OF RELIGIOUS FREEDOM, THE ANG
IGLESIA NI CRISTO PROGRAM IS SUBJECT TO THE POLICE POWER OF THE
STATE ONLY IN THE EXTREME CASE THAT IT POSES A CLEAR AND PRESENT
DANGER.
III
WHETHER OR NOT THE HONORABLE COURT OF APPEALS ERRED IN
HOLDING THAT THE MTRCB IS VESTED WITH THE POWER TO CENSOR
RELIGIOUS PROGRAMS.

WHETHER OR NOT THE HONORABLE COURT OF APPEALS ERRED IN

HOLDING THAT THE ANG IGLESIA NI CRISTO, A PURELY RELIGIOUS
PROGRAM IS INDECENT AND CONTRARY TO LAW AND GOOD CUSTOMS.
The basic issues can be reduced into two: (1) first, whether the respondent Board has the
power to review petitioners TV program Ang Iglesia ni Cristo, and (2) second, assuming
it has the power, whether it gravely abused its discretion when it prohibited the airing of
petitioners religious program, series Nos. 115, 119 and 121, for the reason that they
constitute an attack against other religions and that they are indecent, contrary to law and
good customs.
The first issue can be resolved by examining the powers of the Board under P.D. No.
1986. Its Section 3 pertinently provides:
Sec. 3 Powers and Functions. The BOARD shall have the following functions, powers
and duties:
xxx xxx xxx
b) To screen, review and examine all motion pictures as herein defined, television
programs, including publicity materials such as advertisements, trailers and stills,
whether such motion pictures and publicity materials be for theatrical or non-theatrical
distribution for television broadcast or for general viewing, imported or produced in the
Philippines and in the latter case, whether they be for local viewing or for export.
c) To approve, delete objectionable portion from and/or prohibit the importation,
exportation, production, copying, distribution, sale, lease, exhibition and/or television
broadcast of the motion pictures, television programs and publicity materials, subject of
the preceding paragraph, which, in the judgment of the BOARD applying contemporary
Filipino cultural values as standard, are objectionable for being immoral, indecent,
contrary to law and/or good customs, injurious to the prestige of the Republic of the
Philippines and its people, or with a dangerous tendency to encourage the commission of
violence or of a wrong or crime, such as but not limited to:
i) Those which tend to incite subversion, insurrection, rebellion or sedition against the
State, or otherwise threaten the economic and/or political stability of the State;
ii) Those which tend to undermine the faith and confidence of the people, their
government and/or duly constituted authorities;
iii) Those which glorify criminals or condone crimes;
iv) Those which serve no other purpose but to satisfy the market for violence or
pornography;

IV

30

v) Those which tend to abet the traffic in and use of prohibited drugs;
vi) Those which are libelous or defamatory to the good name and reputation of any
person, whether living or dead;
vii) Those which may constitute contempt of court or of any quasi-judicial tribunal, or
pertain to matters which are sub-judice in nature (emphasis ours).
The law gives the Board the power to screen, review and examine all television
programs. By the clear terms of the law, the Board has the power to approve, delete x x x
and/or prohibit the x x x exhibition and/or television broadcast of x x x television
programs x x x. The law also directs the Board to apply contemporary Filipino cultural
values as standard to determine those which are objectionable for being immoral,
indecent, contrary to law and/or good customs, injurious to the prestige of the Republic of
the Philippines and its people, or with a dangerous tendency to encourage the commission
of violence or of a wrong or crime.
Petitioner contends that the term television program should not include religious
programs like its program Ang Iglesia ni Cristo. A contrary interpretation, it is urged, will
contravene Section 5, Article III of the Constitution which guarantees that no law shall be
made respecting an establishment of religion, or prohibiting the free exercise thereof. The
free exercise and enjoyment of religious profession and worship, without discrimination
or preference, shall forever be allowed.
We reject petitioners submission which need not set us adrift in a constitutional voyage
towards an uncharted sea. Freedom of religion has been accorded a preferred status by
the framers of our fundamental laws, past and present. We have affirmed this preferred
status well aware that it is designed to protect the broadest possible liberty of conscience,
to allow each man to believe as his conscience directs, to profess his beliefs, and to live
as he believes he ought to live, consistent with the liberty of others and with the common
good.[16] We have also laboriously defined in our jurisprudence the intersecting umbras
and penumbras of the right to religious profession and worship. To quote the summation
of Mr. Justice Isagani Cruz, our well-known constitutionalist:[17]

that appeals to his reverence; recognize or deny the immortality of his soul in fact,
cherish any religious conviction as he and he alone sees fit. However absurd his beliefs
may be to others, even if they be hostile and heretical to the majority, he has full freedom
to believe as he pleases. He may not be required to prove his beliefs. He may not be
punished for his inability to do so. Religion, after all, is a matter of faith. Men may
believe what they cannot prove. Every one has a right to his beliefs and he may not be
called to account because he cannot prove what he believes.
(2) Freedom to Act on Ones Beliefs
But where the individual externalizes his beliefs in acts or omissions that affect the
public, his freedom to do so becomes subject to the authority of the State. As great as this
liberty may be, religious freedom, like all the other rights guaranteed in the Constitution,
can be enjoyed only with a proper regard for the rights of others. It is error to think that
the mere invocation of religious freedom will stalemate the State and render it impotent
in protecting the general welfare. The inherent police power can be exercised to prevent
religious practices inimical to society. And this is true even if such practices are pursued
out of sincere religious conviction and not merely for the purpose of evading the
reasonable requirements or prohibitions of the law.
Justice Frankfurter put it succinctly: The constitutional provision on religious freedom
terminated disabilities, it did not create new privileges. It gave religious liberty, not civil
immunity. Its essence is freedom from conformity to religious dogma, not freedom from
conformity to law because of religious dogma.
Accordingly, while one has full freedom to believe in Satan, he may not offer the object
of his piety a human sacrifice, as this would be murder. Those who literally interpret the
Biblical command to go forth and multiply are nevertheless not allowed to contract plural
marriages in violation of the laws against bigamy. A person cannot refuse to pay taxes on
the ground that it would be against his religious tenets to recognize any authority except
that of God alone. An atheist cannot express his disbelief in acts of derision that wound
the feelings of the faithful. The police power can be validly asserted against the Indian
practice of the suttee born of deep religious conviction, that calls on the widow to
immolate herself at the funeral pile of her husband.

Religious Profession and Worship

The right to religious profession and worship has a two-fold aspect, viz., freedom to
believe and freedom to act on ones beliefs. The first is absolute as long as the belief is
confined within the realm of thought. The second is subject to regulation where the belief
is translated into external acts that affect the public welfare.
(1) Freedom to Believe
The individual is free to believe (or disbelieve) as he pleases concerning the hereafter. He
may indulge his own theories about life and death; worship any god he chooses, or none
at all; embrace or reject any religion; acknowledge the divinity of God or of any being

We thus reject petitioners postulate that its religious program is per se beyond review by
the respondent Board. Its public broadcast on TV of its religious program brings it out of
the bosom of internal belief. Television is a medium that reaches even the eyes and ears
of children. The Court iterates the rule that the exercise of religious freedom can be
regulated by the State when it will bring about the clear and present danger of some
substantive evil which the State is duty bound to prevent, i.e., serious detriment to the
more overriding interest of public health, public morals, or public welfare. A laissez faire
policy on the exercise of religion can be seductive to the liberal mind but history counsels
the Court against its blind adoption as religion is and continues to be a volatile area of
concern in our country today. Across the sea and in our shore, the bloodiest and bitterest
wars fought by men were caused by irreconcilable religious differences. Our country is

31

still not safe from the recurrence of this stultifying strife considering our warring
religious beliefs and the fanaticism with which some of us cling and claw to these beliefs.
Even now, we have yet to settle the near century old strife in Mindanao, the roots of
which have been nourished by the mistrust and misunderstanding between our Christian
and Muslim brothers and sisters. The bewildering rise of weird religious cults espousing
violence as an article of faith also proves the wisdom of our rule rejecting a strict let
alone policy on the exercise of religion. For sure, we shall continue to subject any act
pinching the space for the free exercise of religion to a heightened scrutiny but we shall
not leave its rational exercise to the irrationality of man. For when religion divides and its
exercise destroys, the State should not stand still.
It is also petitioners submission that the respondent appellate court gravely erred when it
affirmed the ruling of the respondent Board x-rating its TV Program Series Nos. 115,
119, 121 and 128. The records show that the respondent Board disallowed the program
series for attacking other religions. Thus, Exhibits A, A-1, (respondent Boards Voting Slip
for Television) reveal that its reviewing members x-rated Series 115 for x x x criticizing
different religions, based on their own interpretation of the Bible. They suggested that the
program should only explain petitioners x x x own faith and beliefs and avoid attacks on
other faiths. Exhibit B shows that Series No. 119 was x-rated because the Iglesia ni Cristo
insists on the literal translation of the bible and says that our Catholic veneration of the
Virgin Mary is not to be condoned because nowhere it is found in the bible that we
should do so. This is intolerance x x x. Exhibit C shows that Series No. 121 was x-rated x
x x for reasons of the attacks, they do on, specifically, the Catholic religion. x x x (T)hey
can not tell, dictate any other religion that they are right and the rest are wrong x x x.
Exhibit D also shows that Series No. 128 was not favorably recommended because it x x
x outrages Catholic and Protestants beliefs. On second review, it was x-rated because of
its unbalanced interpretations of some parts of the Bible.[18] In sum, the respondent
Board x-rated petitioners TV program series Nos. 115, 119, 121 and 128 because of
petitioners controversial biblical interpretations and its attacks against contrary religious
beliefs. The respondent appellate court agreed and even held that the said attacks are
indecent, contrary to law and good customs.
We reverse the ruling of the appellate court.

and good customs, hence, can be prohibited from public viewing under Section 3(c) of
PD 1986. This ruling clearly suppresses petitioners freedom of speech and interferes with
its right to free exercise of religion. It misappreciates the essence of freedom to differ as
delineated in the benchmark case of Cantwell v. Connecticut,[20] viz.:
xxx xxx xxx
In the realm of religious faith, and in that of political belief, sharp differences arise. In
both fields, the tenets of one man may seem the rankest error to his neighbor. To persuade
others to his own point of view, the pleader, as we know, at times, resorts to exaggeration,
to vilification of men who have been, or are prominent in church or state or even to false
statements. But the people of this nation have ordained in the light of history that inspite
of the probability of excesses and abuses, these liberties are, in the long view, essential to
enlightened opinion and right conduct on the part of the citizens of democracy.
The respondent Board may disagree with the criticisms of other religions by petitioner
but that gives it no excuse to interdict such criticisms, however, unclean they may be.
Under our constitutional scheme, it is not the task of the State to favor any religion by
protecting it against an attack by another religion. Religious dogmas and beliefs are often
at war and to preserve peace among their followers, especially the fanatics, the
establishment clause of freedom of religion prohibits the State from leaning towards any
religion. Vis-a-vis religious differences, the State enjoys no banquet of options. Neutrality
alone is its fixed and immovable stance. In fine, respondent board cannot squelch the
speech of petitioner Iglesia ni Cristo simply because it attacks other religions, even if said
religion happens to be the most numerous church in our country. In a State where there
ought to be no difference between the appearance and the reality of freedom of religion,
the remedy against bad theology is better theology. The bedrock of freedom of religion is
freedom of thought and it is best served by encouraging the marketplace of dueling ideas.
When the luxury of time permits, the marketplace of ideas demands that speech should be
met by more speech for it is the spark of opposite speech, the heat of colliding ideas that
can fan the embers of truth.

First. Deeply ensconced in our fundamental law is its hostility against all prior restraints
on speech, including religious speech. Hence, any act that restrains speech is hobbled by
the presumption of invalidity and should be greeted with furrowed brows.[19] It is the
burden of the respondent Board to overthrow this presumption. If it fails to discharge this
burden, its act of censorship will be struck down. It failed in the case at bar.

Third. The respondents cannot also rely on the ground attacks against another religion in
x-rating the religious program of petitioner. Even a sideglance at Section 3 of PD 1986
will reveal that it is not among the grounds to justify an order prohibiting the broadcast of
petitioners television program. The ground attack against another religion was merely
added by the respondent Board in its Rules.[21] This rule is void for it runs smack against
the hoary doctrine that administrative rules and regulations cannot expand the letter and
spirit of the law they seek to enforce.

Second. The evidence shows that the respondent Board x-rated petitioners TV series for
attacking other religions, especially the Catholic church. An examination of the evidence,
especially Exhibits A, A-1, B, C, and D will show that the so-called attacks are mere
criticisms of some of the deeply held dogmas and tenets of other religions. The
videotapes were not viewed by the respondent court as they were not presented as
evidence. Yet they were considered by the respondent court as indecent, contrary to law

It is opined that the respondent board can still utilize attack against any religion as a
ground allegedly x x x because Section 3 (c) of PD 1986 prohibits the showing of motion
pictures, television programs and publicity materials which are contrary to law and
Article 201 (2) (b) (3) of the Revised Penal Code punishes anyone who exhibits shows
which offend any race or religion. We respectfully disagree for it is plain that the word
attack is not synonymous with the word offend. Moreover, Article 201 (2) (b) (3) of the

32

Revised Penal Code should be invoked to justify the subsequent punishment of a show
which offends any religion. It cannot be utilized to justify prior censorship of speech. It
must be emphasized that E.O. 876, the law prior to PD 1986, included attack against any
religion as a ground for censorship. The ground was not, however, carried over by PD
1986. Its deletion is a decree to disuse it. There can be no other intent. Indeed, even the
Executive Department espouses this view. Thus, in an Opinion dated November 28, 1985
then Minister of Justice, now President of the Senate, Neptali Gonzales explained:
xxx
However, the question whether the BRMPT (now MTRCB) may preview and censor the
subject television program of INC should be viewed in the light of the provision of
Section 3, paragraph (c) of PD 1986, which is substantially the same as the provision of
Section 3, paragraph (c) of E.O. No. 876-A, which prescribes the standards of censorship,
to wit: immoral, indecent, contrary to law and/or good customs, injurious to the prestige
of the Republic of the Philippines or its people or with dangerous tendency to encourage
the commission of violence, or of a wrong as determined by the Board, applying
contemporary Filipino cultural values as standard. As stated, the intention of the Board to
subject the INCs television program to previewing and censorship is prompted by the fact
that its religious program makes mention of beliefs and practices of other religion. On the
face of the law itself, there can conceivably be no basis for censorship of said program by
the Board as much as the alleged reason cited by the Board does not appear to be within
the contemplation of the standards of censorship set by law. (Italics supplied)
Fourth. In x-rating the TV program of the petitioner, the respondents failed to apply the
clear and present danger rule. In American Bible Society v. City of Manila,[22] this Court
held: The constitutional guaranty of free exercise and enjoyment of religious profession
and worship carries with it the right to disseminate religious information. Any restraint of
such right can be justified like other restraints on freedom of expression on the ground
that there is a clear and present danger of any substantive evil which the State has the
right to prevent. In Victoriano vs. Elizalde Rope Workers Union,[23] we further ruled that
x x x it is only where it is unavoidably necessary to prevent an immediate and grave
danger to the security and welfare of the community that infringement of religious
freedom may be justified, and only to the smallest extent necessary to avoid the danger.
The records show that the decision of the respondent Board, affirmed by the respondent
appellate court, is completely bereft of findings of facts to justify the conclusion that the
subject video tapes constitute impermissible attacks against another religion. There is no
showing whatsoever of the type of harm the tapes will bring about especially the gravity
and imminence of the threatened harm. Prior restraint on speech, including religious
speech, cannot be justified by hypothetical fears but only by the showing of a substantive
and imminent evil which has taken the life of a reality already on ground.
It is suggested that we re-examine the application of clear and present danger rule to the
case at bar. In the United States, it is true that the clear and present danger test has
undergone permutations. It was Mr. Justice Holmes who formulated the test in Schenck v.

US,[24] as follows: x x x the question in every case is whether the words used are used in
such circumstances and are of such a nature as to create a clear and present danger that
they will bring about the substantive evils that Congress has a right to prevent.
Admittedly, the test was originally designed to determine the latitude which should be
given to speech that espouses anti-government action. Bannered by Justices Holmes and
Brandeis, the test attained its full flowering in the decade of the forties, when its umbrella
was used to protect speech other than subversive speech.[25] Thus, for instance, the test
was applied to annul a total ban on labor picketing.[26] The use of the test took a
downswing in the 1950s when the US Supreme Court decided Dennis v. United States
involving communist conspiracy.[27] In Dennis, the components of the test were altered
as the High Court adopted Judge Learned Hands formulation that x x x in each case
[courts] must ask whether the gravity of the evil, discounted by its improbability, justifies
such invasion of free speech as is necessary to avoid the danger. The imminence
requirement of the test was thus diminished and to that extent, the protection of the rule
was weakened. In 1969, however, the strength of the test was reinstated in Brandenburg
v. Ohio,[28] when the High Court restored in the test the imminence requirement, and
even added an intent requirement which according to a noted commentator ensured that
only speech directed at inciting lawlessness could be punished.[29] Presently in the
United States, the clear and present danger test is not applied to protect low value
speeches such as obscene speech, commercial speech and defamation. Be that as it may,
the test is still applied to four types of speech: speech that advocates dangerous ideas,
speech that provokes a hostile audience reaction, out of court contempt and release of
information that endangers a fair trial.[30] Hence, even following the drift of American
jurisprudence, there is reason to apply the clear and present danger test to the case at bar
which concerns speech that attacks other religions and could readily provoke hostile
audience reaction. It cannot be doubted that religious truths disturb and disturb terribly.
It is also opined that it is inappropriate to apply the clear and present danger test to the
case at bar because the issue involves the content of speech and not the time, place or
manner of speech. Allegedly, unless the speech is first allowed, its impact cannot be
measured, and the causal connection between the speech and the evil apprehended cannot
be established. The contention overlooks the fact that the case at bar involves videotapes
that are pre-taped and hence, their speech content is known and not an X quantity. Given
the specific content of the speech, it is not unreasonable to assume that the respondent
Board, with its expertise, can determine whether its sulphur will bring about the
substantive evil feared by the law.
Finally, it is also opined by Mr. Justice Kapunan that x x x the determination of the
question as to whether or not such vilification, exaggeration or fabrication falls within or
lies outside the boundaries of protected speech or expression is a judicial function which
cannot be arrogated by an administrative body such as a Board of Censors. He submits
that a system of prior restraint may only be validly administered by judges and not left to
administrative agencies. The same submission is made by Mr. Justice Mendoza.
This thoughtful thesis is an attempt to transplant another American rule in our
jurisdiction. Its seedbed was laid down by Mr. Justice Brennan in his concurring opinion

33

in the 1962 case of Manual Enterprise v. Day.[31] By 1965, the US Supreme Court in
Freedman v. Maryland[32] was ready to hold that the teaching of cases is that, because
only a judicial determination in an adversary proceeding ensures the necessary sensitivity
to freedom of expression, only a procedure requiring a judicial determination suffices to
impose a valid final restraint.[33]
While the thesis has a lot to commend itself, we are not ready to hold that it is
unconstitutional for Congress to grant an administrative body quasi-judicial power to
preview and classify TV programs and enforce its decision subject to review by our
courts. As far back as 1921, we upheld this set-up in Sotto vs. Ruiz,[34] viz.:
The use of the mails by private persons is in the nature of a privilege which can be
regulated in order to avoid its abuse. Persons possess no absolute right to put into the
mail anything they please, regardless of its character.
On the other hand, the exclusion of newspaper and other publications from the mails, in
the exercise of executive power, is extremely delicate in nature and can only be justified
where the statute is unequivocably applicable to the supposed objectionable publication.
In excluding any publication for the mails, the object should be not to interfere with the
freedom of the press or with any other fundamental right of the people. This is the more
true with reference to articles supposedly libelous than to other particulars of the law,
since whether an article is or is not libelous, is fundamentally a legal question. In order
for there to be due process of law, the action of the Director of Posts must be subject to
revision by the courts in case he had abused his discretion or exceeded his authority. (Exparte Jackson [1878], 96 U.S., 727; Public Clearing House vs. Coyne [1903], 194 U.S.,
497; Post Publishing Co. vs. Murray [1916], 23-Fed., 773)
SUPREME COURT
Manila
EN BANC
A.M. No. 01-4-03-SC September 13, 2001
RE: REQUEST FOR LIVE RADIO-TV COVERAGE OF THE TRIAL IN THE
SANDIGANBAYAN OF THE PLUNDER CASES AGAINST 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.
RESOLUTION
MENDOZA, J.:

As has been said, the performance of the duty of determining whether a publication
contains printed matter of a libelous character rests with the Director of Posts and
involves the exercise of his judgment and discretion. Every intendment of the law is in
favor of the correctness of his action. The rule is (and we go only to those cases coming
from the United States Supreme Court and pertaining to the United States PostmasterGeneral), that the courts will not interfere with the decision of the Director of Posts
unless clearly of opinion that it was wrong. (Bates & Guilid Co. vs. Payne [1904], 194
U.S., 106; Smith vs. Hitchcock [1912], 226 U.S., 63; Masses Pub. Co. vs. Patten [1917],
246 Fed., 24. But see David vs. Brown [1900], 103 Fed., 909, announcing a somewhat
different doctrine and relied upon by the Attorney-General).
To be sure, legal scholars in the United States are still debating the proposition whether or
not courts alone are competent to decide whether speech is constitutionally protected.[35]
The issue involves highly arguable policy considerations and can be better addressed by
our legislators.
IN VIEW WHEREOF, the Decision of the respondent Court of Appeals dated March 24,
1995 is affirmed insofar as it sustained the jurisdiction of the respondent MTRCB to
review petitioners TV program entitled Ang Iglesia ni Cristo, and is reversed and set
aside insofar as it sustained the action of the respondent MTRCB x-rating petitioners TV
Program Series Nos. 115, 119, and 121. No costs.
SO ORDERED.

This is a motion for reconsideration of the decision denying petitioners' request for
permission to televise and broadcast live the trial of former President Estrada before the
Sandiganbayan. The motion was filed by the Secretary of Justice, as one of the
petitioners, who argues that there is really no conflict between the right of the people to
public information and the freedom of the press, on the one hand, and, on the other, the
right of the accused to a fair trial; that if there is a clash between these rights, it must be
resolved in favor of the right of the people and the press because the people, as the
repository of sovereignty, are entitled to information; and that live media coverage is a
safeguard against attempts by any party to use the courts as instruments for the pursuit of
selfish interests.
On the other hand, former President Joseph E. Estrada reiterates his objection to the live
TV and radio coverage of his trial on the ground that its allowance will violate the sub
judice rule and that, based on his experience with the impeachment trial, live media
coverage will only pave the way for so-called "expert commentary" which can trigger
massive demonstrations aimed at pressuring the Sandiganbayan to render a decision one
way or the other. Mr. Estrada contends that the right of the people to information may be
served through other means less distracting, degrading, and prejudicial than live TV and
radio coverage.1wphi1.nt

34

The Court has considered the arguments of the parties on this important issue and, after
due deliberation, finds no reason to alter or in any way modify its decision prohibiting
live or real time broadcast by radio or television of the trial of the former president. By a
vote of nine (9) to six (6) of its members,1 the Court denies the motion for
reconsideration of the Secretary of Justice.
In lieu of live TV and radio coverage of the trial, the Court, by the vote of eight (8)
Justices,2 has resolved to order the audio-visual recording of the trial.
What follows is the opinion of the majority.lawphil.net
Considering the significance of the trial before the Sandiganbayan of former President
Estrada and the importance of preserving the records thereof, the Court believes that there
should be an audio-visual recording of the proceedings. The recordings will not be for
live or real time broadcast but for documentary purposes. Only later will they be
available for public showing, after the Sandiganbayan shall have promulgated its decision
in every case to which the recording pertains. The master film shall be deposited in the
National Museum and the Records Management and Archives Office for historical
preservation and exhibition pursuant to law.4
For the purpose of recording the proceedings, cameras will be inconspicuously installed
in the courtroom and the movement of TV crews will be regulated, consistent with the
dignity and solemnity of the proceedings. The trial shall be recorded in its entirety, except
such portions thereof as the Sandiganbayan may decide should not be held public
pursuant to Rule 119, 21 of the Revised Rules of Criminal Procedure. No comment shall
be included in the documentary except annotations which may be necessary to explain
certain scenes which are depicted. The audio-visual recordings shall be made under the
supervision and control of the Sandiganbayan or its Division as the case may be.
There are several reasons for such televised recording.1awphil.net First, the hearings are
of historic significance. They are an affirmation of our commitment to the rule that "the
King is under no man, but he is under God and the law." (Quod Rex non debet esse sub
homine, sed sub Deo et Lege.) Second, the Estrada cases involve matters of vital concern
to our people who have a fundamental right to know how their government is conducted.
This right can be enhanced by audio visual presentation. Third, audio-visual presentation
is essential for the education and civic training of the people.
Above all, there is the need to keep audio-visual records of the hearings for documentary
purposes. The recordings will be useful in preserving the essence of the proceedings in a
way that the cold print cannot quite do because it cannot capture the sights and sounds of
events. They will be primarily for the use of appellate courts in the event a review of the
proceedings, rulings, or decisions of the Sandiganbayan is sought or becomes necessary.
The accuracy of the transcripts of stenographic notes taken during the trial can be
checked by reference to the tapes.

On the other hand, by delaying the release of the tapes for broadcast, concerns that those
taking part in the proceedings will be playing to the cameras and will thus be distracted
from the proper performance of their roles -- whether as counsel, witnesses, court
personnel, or judges -- will be allayed. The possibility that parallel trials before the bar of
justice and the bar of public opinion may jeopardize, or even prevent, the just
determination of the cases can be minimized. The possibility that judgment will be
rendered by the popular tribunal before the court of justice can render its own will be
avoided.
At the same time, concerns about the regularity and fairness of the trial -- which, it may
be assumed, is the concern of those opposed to, as much as of those in favor of, televised
trials - will be addressed since the tapes will not be released for public showing until after
the decision of the cases by the Sandiganbayan. By delaying the release of the tapes,
much of the problem posed by real time TV and radio broadcast will be avoided.
Thus, many important purposes for preserving the record of the trial can be served by
audio-visual recordings without impairing the right of the accused to a fair trial.
Nor is the right of privacy of the accused a bar to the production of such documentary. In
Ayer Productions Pty. Ltd. V. Capulong,5 this Court set aside a lower court's injunction
restraining the filming of "Four Day Revolution," a documentary film depicting, among
other things, the role of then Minister of National Defense Juan Ponce Enrile in the 1986
EDSA people power. This Court held: "A limited intrusion into a person's privacy has
long been regarded as permissible where that person is a public figure and the
information sought to be elicited from him or to be published about him constitute
matters of a public character."6
No one can prevent the making of a movie based on the trial. But, at least, if a
documentary record is made of the proceedings, any movie that may later be produced
can be checked for its accuracy against such documentary and any attempt to distort the
truth can thus be averted.
Indeed, a somewhat similar proposal for documentary recording of celebrated cases or
causes clbres was made was made way back in 1971 by Paul Freund of the Harvard
Law School. As he explained:
In fairness let me refer to an American experience many of my lay friends found similarly
moving. An educational television network filmed a trial in Denver of a Black Panther
leader on charges of resisting arrest, and broadcast the document in full, in four
installments, several months after the case was concluded -- concluded incidentally, with
a verdict of acquittal.
No one could witness the trial without a feeling of profound respect for the painstaking
way in which the truth was searched for, for the ways whereby law copes with
uncertainties and ambiguities through presumptions and burden of proof, and the sense of
gravity with which judge and jury carried out their responsibilities.

35

I agree in general with the exclusion of television from the courtroom, for the familiar
good reasons. And yet the use of television at a trial for documentary purposes, not for
the broadcast of live news, and with the safeguards of completeness and consent, is an
educational experiment that I would be prepared to welcome. Properly safeguarded and
with suitable commentary, the depiction of an actual trial is an agency of enlightenment
that could have few equals in its impact on the public understanding.

prohibition; (e) to ensure that the conditions are observed, the audio-visual recording of
the proceedings shall be made under the supervision and control of the Sandiganbayan or
its Division concerned and shall be made pursuant to rules promulgated by it; and (f)
simultaneously with the release of the audio-visual recordings for public broadcast, the
original thereof shall be deposited in the National Museum and the Records Management
and Archives Office for preservation and exhibition in accordance with law.
SO ORDERED.

Understanding of our legal process, so rarely provided by our educational system, is now
a desperate need.7
Professor Freund's observation is as valid today as when it was made thirty years ago. It
is perceptive for its recognition of the serious risks posed to the fair administration of
justice by live TV and radio broadcasts, especially when emotions are running high on
the issues stirred by a case, while at the same time acknowledging the necessity of
keeping audio-visual recordings of the proceedings of celebrated cases, for public
information and exhibition, after passions have subsided.
WHEREFORE, an audio-visual recording of the trial of former President Estrada before
the Sandiganbayan is hereby ordered to be made, for the account of the Sandiganbayan,
under the following conditions: (a) the trial shall be recorded in its entirety, excepting
such portions thereof as the Sandiganbayan may determine should not be held public
under Rule 119, 21 of the Rules of Criminal Procedure; (b) cameras shall be installed
inconspicuously inside the courtroom and the movement of TV crews shall be regulated
consistent with the dignity and solemnity of the proceedings; (c) the audio-visual
recordings shall be made for documentary purposes only and shall be made without
comment except such annotations of scenes depicted therein as may be necessary to
explain them; (d) the live broadcast of the recordings before the Sandiganbayan shall
have rendered its decision in all the cases against the former President shall be prohibited
under pain of contempt of court and other sanctions in case of violations of the
Ayer Production PTY Ltd. V Capulong (1988)
F:
Pivate respondent Juan Ponce Enrile filed an action in the RTC of Makati to
enjoin the petitioners from producing the movie "The Four Day Revolution," a
documentary of the EDSA Revolution in 1986 on the ground that it violated his right to
privacy. Petitioners contended that the movie would not involve his private life not that of
his family. But the trial court issued a writ of preliminary injunction and ordered
petitioners to desist from making the movie making reference whatsoever to Ponce
Enrile. This, this action for certiorari.
HELD: Freedom of speech and expression includes freedom to produce motion pictures
and to exhibit them. What is involved is a prior restraint by the Judge upon the exercise
of speech and of expression by petitioners. Because of the preferred character of speech
and of expression, a weighty presumption of invalidity vitiates measures of prior
restraint. The Judge should have stayed his hand considering that the movie was yet
uncompleted and therefore there was no "clear and present danger." The subject matter of
the movie does not relate to the private life of Ponce Enrile. The intrusion is no more than

Davide, Jr., C.J., Melo, Puno, Panganiban, and Gonzaga-Reyes, JJ., concur.
Bellosillo, J. I am for full live coverage hence I maintain my original view; nonetheless. I
concur.
Kapunan, J. I maintain my original view prohibiting live T.V. and radio coverage and
concur with the separate opinion of Justice Vitug.
Quisumbing, J. Although earlier I respectfully Dissented as I favor live TV coverage, I
now concur in the result.
Pardo, J. I concur with the denial of the motion for reconsideration only. The conditions
are inadequate. I join J. Vitug's opinion.
Buena, J. I concur with the Separate Opinion of Justice Vitug.
Ynares-Santiago, J. I concur with the separate opinion of J. Jose Vitug.
De Leon, Jr., J. I concur with Separate Opinion of Justice Vitug.
Sandoval-Gutierrez, J. I concur but only in the denial with finality of the MR.
necessary to keep the film a truthful historical account. He is, after all, a public figure.
The line of equilibrium in the specific context of the instant case between freedom of
speech and of expression and the right of privacy may be marked out in terms of a
requirement that the proposed motion picture must be fairly truthful and historical in its
presentation of facts. There must be no showing of a reckless disregard of truth.
Notes: Ayer sought to produce a movie on the 4-day revolution. Enrile, who had
previously been asked for the use of his character in the movie and had refused the offer,
sued to enjoin the filming because he did not want any mention of his and his family's
name. The SC lifted the injunction issued by the lower court on the ground that it
amounted to prior restraint, which is no better if imposed by the courts than if imposed by
administrative bodies or by ecclesiatical officials.
In Ayer, the reference to Enrile is unavoidable because his name is part of history and this
cannot be changed or altered; thus his name can be used so long as only his public life is

36

dwelled only. But in Lagunzad, although Moises Padilla was also a public figure, the
movie dealth with both the public and private lives of Moises Padilla.
SUPREME COURT
Manila
EN BANC
G.R. No. 82380 April 29, 1988
AYER PRODUCTIONS PTY. LTD. and McELROY & McELROY FILM
PRODUCTIONS, petitioners,
vs.
HON.IGNACIO M. CAPULONG and JUAN PONCE ENRILE, respondents.
G.R. No. 82398 April 29, 1988

Faced with the task of dramatising these rerkble events, screenwriter David Williamson
and history Prof Al McCoy have chosen a "docu-drama" style and created [four] fictitious
characters to trace the revolution from the death of Senator Aquino, to the Feb revolution
and the fleeing of Marcos from the country.
These character stories have been woven through the real events to help our huge
international audience understand this ordinary period inFilipino history.
First, there's Tony O'Neil, an American television journalist working for major network.
Tony reflects the average American attitude to the Phihppinence once a colony, now
the home of crucially important military bases. Although Tony is aware of the corruption
and of Marcos' megalomania, for him, there appears to be no alternative to Marcos except
the Communists.

HAL MCELROY petitioner,

vs.
HON. IGNACIO M. CAPULONG, in his capacity as Presiding Judge of the Regional
Trial Court of Makati, Branch 134 and JUAN PONCE ENRILE, respondents.

Next, Angie Fox a fiery Australian photo-journalist. A 'new girl in town,' she is quickly
caught up in the events as it becomes dear that the time has come for a change. Through
Angle and her relationship with one of the Reform Army Movement Colonels (a fictitious
character), we follow the developing discontent in the armed forces. Their dislike for
General Ver, their strong loyalty to Defense Minister Enrile, and ultimately their
defection from Marcos.

FELICIANO, J.:

The fourth fictitious character is Ben Balano, a middle-aged editor of a Manila newspaper
who despises the Marcos regime and is a supporter an promoter of Cory Aquino. Ben has
two daughters, Cehea left wing lawyer who is a secret member of the New People's
Army, and Eva--a -P.R. girl, politically moderate and very much in love with Tony.
Ultimately, she must choose between her love and the revolution.

Petitioner Hal McElroy an Australian film maker, and his movie production company,
Petitioner Ayer Productions pty Ltd. (Ayer Productions), 1 envisioned, sometime in 1987,
the for commercial viewing and for Philippine and international release, the histolic
peaceful struggle of the Filipinos at EDSA (Epifanio de los Santos Avenue). Petitioners
discussed this Project with local movie producer Lope V. Juban who suggested th they
consult with the appropriate government agencies and also with General Fidel V. Ramos
and Senator Juan Ponce Enrile, who had played major roles in the events proposed to be
filmed.
The proposed motion picture entitled "The Four Day Revolution" was endorsed by the
Movie Television Review and Classification Board as wel as the other government
agencies consulted. General Fidel Ramos also signified his approval of the intended film
production.
In a letter dated 16 December 1987, petitioner Hal McElroy informed private respondent
Juan Ponce Enrile about the projected motion picture enclosing a synopsis of it, the full
text of which is set out below:
The Four Day Revolution is a six hour mini-series about People Powera unique event
in modern history that-made possible the Peaceful revolution in the Philippines in 1986.

Through the interviews and experiences of these central characters, we show the complex
nature of Filipino society, and thintertwining series of events and characters that triggered
these remarkable changes. Through them also, we meet all of the principal characters and
experience directly dramatic recreation of the revolution. The story incorporates actual
documentary footage filmed during the period which we hope will capture the unique
atmosphere and forces that combined to overthrow President Marcos.
David Williamson is Australia's leading playwright with some 14 hugely successful plays
to his credit(Don's Party,' 'The Club,' Travelling North) and 11 feature films (The Year of
Living Dangerously,' Gallipoli,' 'Phar Lap').
Professor McCoy (University of New South Wales) is an American historian with a deep
understanding of the Philippines, who has worked on the research for this project for
some 18 months. Together with Davi Wilhamgon they have developed a script we believe
accurately depicts the complex issues and events that occurred during th period .

37

The six hour series is a McElroy and McElroy co-production with Home Box Office in
American, the Australian Broadcast Corporation in Australia and Zenith Productions in
the United Kingdom
The proposed motion picture would be essentially a re-enact. ment of the events that
made possible the EDSA revolution; it is designed to be viewed in a six-hour mini-series
television play, presented in a "docu-drama" style, creating four (4) fictional characters
interwoven with real events, and utilizing actual documentary footage as background.
On 21 December 1987, private respondent Enrile replied that "[he] would not and will
not approve of the use, appropriation, reproduction and/or exhibition of his name, or
picture, or that of any member of his family in any cinema or television production, film
or other medium for advertising or commercial exploitation" and further advised
petitioners that 'in the production, airing, showing, distribution or exhibition of said or
similar film, no reference whatsoever (whether written, verbal or visual) should not be
made to [him] or any member of his family, much less to any matter purely personal to
them.
It appears that petitioners acceded to this demand and the name of private respondent
Enrile was deleted from the movie script, and petitioners proceeded to film the projected
motion picture.
On 23 February 1988, private respondent filed a Complaint with application for
Temporary Restraining Order and Wilt of Pretion with the Regional Trial Court of
Makati, docketed as Civil Case No. 88-151 in Branch 134 thereof, seeking to enjoin
petitioners from producing the movie "The Four Day Revolution". The complaint alleged
that petitioners' production of the mini-series without private respondent's consent and
over his objection, constitutes an obvious violation of his right of privacy. On 24
February 1988, the trial court issued ex-parte a Temporary Restraining Order and set for
hearing the application for preliminary injunction.

family and from creating any fictitious character in lieu of plaintiff which nevertheless is
based on, or bears rent substantial or marked resemblance or similarity to, or is otherwise
Identifiable with, plaintiff in the production and any similar film or photoplay, until
further orders from this Court, upon plaintiff's filing of a bond in the amount of P
2,000,000.00, to answer for whatever damages defendants may suffer by reason of the
injunction if the Court should finally decide that plaintiff was not entitled thereto.
xxx xxx xxx
(Emphasis supplied)
On 22 March 1988, petitioner Ayer Productions came to this Court by a Petition for
certiorari dated 21 March 1988 with an urgent prayer for Preliminary Injunction or
Restraining Order, which petition was docketed as G.R. No. L-82380.
A day later, or on 23 March 1988, petitiioner Hal McElroy also filed separate Petition for
certiorari with Urgent Prayer for a Restraining Order or Preliminary Injunction, dated 22
March 1988, docketed as G.R. No. L-82398.
By a Resolution dated 24 March 1988, the petitions were consolidated and private
respondent was required to file a consolidated Answer. Further, in the same Resolution,
the Court granted a Temporary Restraining Order partially enjoining the implementation
of the respondent Judge's Order of 16 March 1988 and the Writ of Preliminary Injunction
issued therein, and allowing the petitioners to resume producing and filming those
portions of the projected mini-series which do not make any reference to private
respondent or his family or to any fictitious character based on or respondent.
Private respondent seasonably filed his Consolidated Answer on 6 April 1988 invoking in
the main a right of privacy.
I

On 9 March 1988, Hal McElroy flied a Motion to Dismiss with Opposition to the Petition
for Preliminary Injunction contending that the mini-series fim would not involve the
private life of Juan Ponce Enrile nor that of his family and that a preliminary injunction
would amount to a prior restraint on their right of free expression. Petitioner Ayer
Productions also filed its own Motion to Dismiss alleging lack of cause of action as the
mini-series had not yet been completed.
In an Order 2 dated 16 March 1988, respondent court issued a writ of Preliminary
Injunction against the petitioners, the dispositive portion of which reads thus:
WHEREFORE, let a writ of preliminary injunction be issued, ordering defendants, and
all persons and entities employed or under contract with them, including actors, actresses
and members of the production staff and crew as well as all persons and entities acting on
defendants' behalf, to cease and desist from producing and filming the mini-series entitled
'The Four Day Revolution" and from making any reference whatsoever to plaintiff or his

The constitutional and legal issues raised by the present Petitions are sharply drawn.
Petitioners' claim that in producing and "The Four Day Revolution," they are exercising
their freedom of speech and of expression protected under our Constitution. Private
respondent, upon the other hand, asserts a right of privacy and claims that the production
and filming of the projected mini-series would constitute an unlawful intrusion into his
privacy which he is entitled to enjoy.
Considering first petitioners' claim to freedom of speech and of expression the Court
would once more stress that this freedom includes the freedom to film and produce
motion pictures and to exhibit such motion pictures in theaters or to diffuse them through
television. In our day and age, motion pictures are a univesally utilized vehicle of
communication and medium Of expression. Along with the press, radio and television,
motion pictures constitute a principal medium of mass communication for information,

38

education and entertainment. In Gonzales v. Katigbak, 3 former Chief Justice Fernando,

speaking for the Court, explained:

who had produced the motion picture and exhibited it but refused to pay the stipulated
royalties, the Court, through Justice Melencio-Herrera, said:

1. Motion pictures are important both as a medium for the communication of Ideas and
the expression of the artistic impulse. Their effect on the perception by our people of
issues and public officials or public figures as well as the pre cultural traits is
considerable. Nor as pointed out in Burstyn v. Wilson (343 US 495 [19421) is the
Importance of motion pictures as an organ of public opinion lessened by the fact that they
are designed to entertain as well as to inform' (Ibid, 501). There is no clear dividing line
between what involves knowledge and what affords pleasure. If such a distinction were
sustained, there is a diminution of the basic right to free expression. ... 4

Neither do we agree with petitioner's subon that the Licensing Agreement is null and void
for lack of, or for having an illegal cause or consideration, while it is true that petitioner
bad pled the rights to the book entitled "The Moises Padilla Story," that did not dispense
with the need for prior consent and authority from the deceased heirs to portray publicly
episodes in said deceased's life and in that of his mother and the member of his family. As
held in Schuyler v. Curtis, ([1895],147 NY 434,42 NE 31 LRA 286.49 Am St Rep 671), 'a
privilege may be given the surviving relatives of a deperson to protect his memory, but
the privilege wts for the benefit of the living, to protect their feelings and to preventa
violation of their own rights in the character and memory of the deceased.'

This freedom is available in our country both to locally-owned and to foreign-owned

motion picture companies. Furthermore the circumstance that the production of motion
picture films is a commercial activity expected to yield monetary profit, is not a
disqualification for availing of freedom of speech and of expression. In our community as
in many other countries, media facilities are owned either by the government or the
private sector but the private sector-owned media facilities commonly require to be
sustained by being devoted in whole or in pailt to revenue producing activities. Indeed,
commercial media constitute the bulk of such facilities available in our country and hence
to exclude commercially owned and operated media from the exerciseof constitutionally
protected om of speech and of expression can only result in the drastic contraction of
such constitutional liberties in our country.
The counter-balancing of private respondent is to a right of privacy. It was demonstrated
sometime ago by the then Dean Irene R. Cortes that our law, constitutional and statutory,
does include a right of privacy. 5 It is left to case law, however, to mark out the precise
scope and content of this right in differing types of particular situations. The right of
privacy or "the right to be let alone," 6 like the right of free expression, is not an absolute
right. A limited intrusion into a person's privacy has long been regarded as permissible
where that person is a public figure and the information sought to be elicited from him or
to be published about him constitute of apublic character. 7 Succinctly put, the right of
privacy cannot be invoked resist publication and dissemination of matters of public
interest. 8 The interest sought to be protected by the right of privacy is the right to be free
from unwarranted publicity, from the wrongful publicizing of the private affairs and
activities of an individual which are outside the realm of legitimate public concern. 9
Lagunzad v. Vda. de Gonzales, 10 on which private respondent relies heavily, recognized
a right to privacy in a context which included a claim to freedom of speech and of
expression. Lagunzad involved a suit fortion picture producer as licensee and the widow
and family of the late Moises Padilla as licensors. This agreement gave the licensee the
right to produce a motion Picture Portraying the life of Moises Padilla, a mayoralty
candidate of the Nacionalista Party for the Municipality of Magallon, Negros Occidental
during the November 1951 elections and for whose murder, Governor Rafael Lacson, a
member of the Liberal Party then in power and his men were tried and convicted. 11 In
the judgment of the lower court enforcing the licensing agreement against the licensee

Petitioners averment that private respondent did not have any property right over the life
of Moises Padilla since the latter was a public figure, is neither well taken. Being a public
figure ipso facto does not automatically destroy in toto a person's right to privacy. The
right to invade a person's privacy to disseminate public information does not extend to a
fictional or novelized representation of a person, no matter how public a he or she may be
(Garner v. Triangle Publications, DCNY 97 F. Supp., SU 549 [1951]). In the case at bar,
while it is true that petitioner exerted efforts to present a true-to-life Story Of Moises
Padilla, petitioner admits that he included a little romance in the film because without it,
it would be a drab story of torture and brutality. 12
In Lagunzad, the Court had need, as we have in the instant case, to deal with contraposed
claims to freedom of speech and of expression and to privacy. Lagunzad the licensee in
effect claimed, in the name of freedom of speech and expression, a right to produce a
motion picture biography at least partly "fictionalized" of Moises Padilla without the
consent of and without paying pre-agreed royalties to the widow and family of Padilla. In
rejecting the licensee's claim, the Court said:
Lastly, neither do we find merit in petitioners contention that the Licensing Agreement
infringes on the constitutional right of freedom of speech and of the press, in that, as a
citizen and as a newspaperman, he had the right to express his thoughts in film on the
public life of Moises Padilla without prior restraint.The right freedom of expression,
indeed, occupies a preferred position in the "hierarchy of civil liberties" (Philippine
Blooming Mills Employees Organization v. Philippine Blooming Mills Co., Inc., 51
SCRA 191 [1963]). It is not, however, without limitations. As held in Gonzales v.
Commission on Elections, 27 SCRA 835, 858 [1960]:
xxx xxx xxx
The prevailing doctine is that the clear and present danger rule is such a limitation.
Another criterion for permissible limitation on freedom of speech and the press, which
includes such vehicles of the mass media as radio, television and the movies, is the
"balancing of interest test" (Chief Justice Enrique M. Fernando on the Bill of Rights,
1970 ed. p. 79). The principle "requires a court to take conscious and detailed

39

consideration of the interplay of interests observable in given situation or type of

situation" (Separation Opinion of the late Chief Justice Castro in Gonzales v.
Commission on Elections, supra, p. 899).
In the case at bar, the interests observable are the right to privacy asserted by respondent
and the right of freedom of expression invoked by petitioner. taking into account the
interplay of those interests, we hold that under the particular circumstances presented,
and considering the obligations assumed in the Licensing Agreement entered into by
petitioner, the validity of such agreement will have to be upheld particularly because the
limits of freedom of expression are reached when expression touches upon matters of
essentially private concern." 13
Whether the "balancing of interests test" or the clear and present danger test" be applied
in respect of the instant Petitions, the Court believes that a different conclusion must here
be reached: The production and filming by petitioners of the projected motion picture
"The Four Day Revolution" does not, in the circumstances of this case, constitute an
unlawful intrusion upon private respondent's "right of privacy."
1. It may be observed at the outset that what is involved in the instant case is a prior and
direct restraint on the part of the respondent Judge upon the exercise of speech and of
expression by petitioners. The respondent Judge has restrained petitioners from filming
and producing the entire proposed motion picture. It is important to note that in
Lagunzad, there was no prior restrain of any kind imposed upon the movie producer who
in fact completed and exhibited the film biography of Moises Padilla. Because of the
speech and of expression, a weighty presumption of invalidity vitiates. 14 The invalidity
of a measure of prior restraint doesnot, of course, mean that no subsequent liability may
lawfully be imposed upon a person claiming to exercise such constitutional freedoms.
The respondent Judge should have stayed his hand, instead of issuing an ex-parte
Temporary Restraining Order one day after filing of a complaint by the private
respondent and issuing a Preliminary Injunction twenty (20) days later; for the projected
motion picture was as yet uncompleted and hence not exhibited to any audience. Neither
private respondent nor the respondent trial Judge knew what the completed film would
precisely look like. There was, in other words, no "clear and present danger" of any
violation of any right to privacy that private respondent could lawfully assert.
2. The subject matter of "The Four Day Revolution" relates to the non-bloody change of
government that took place at Epifanio de los Santos Avenue in February 1986, and the
trian of events which led up to that denouement. Clearly, such subject matter is one of
public interest and concern. Indeed, it is, petitioners' argue, of international interest. The
subject thus relates to a highly critical stage in the history of this countryand as such,
must be regarded as having passed into the public domain and as an appropriate subject
for speech and expression and coverage by any form of mass media. The subject mater,
as set out in the synopsis provided by the petitioners and quoted above, does not relate to
the individual life and certainly not to the private life of private respondent Ponce Enrile.
Unlike in Lagunzad, which concerned the life story of Moises Padilla necessarily
including at least his immediate family, what we have here is not a film biography, more

or less fictionalized, of private respondent Ponce Enrile. "The Four Day Revolution" is
not principally about, nor is it focused upon, the man Juan Ponce Enrile' but it is
compelled, if it is to be historical, to refer to the role played by Juan Ponce Enrile in the
precipitating and the constituent events of the change of government in February 1986.
3. The extent of the instrusion upon the life of private respondent Juan Ponce Enrile that
would be entailed by the production and exhibition of "The Four Day Revolution" would,
therefore, be limited in character. The extent of that intrusion, as this Court understands
the synopsis of the proposed film, may be generally described as such intrusion as is
reasonably necessary to keep that film a truthful historical account. Private respondent
does not claim that petitioners threatened to depict in "The Four Day Revolution" any
part of the private life of private respondent or that of any member of his family.
4. At all relevant times, during which the momentous events, clearly of public concern,
that petitioners propose to film were taking place, private respondent was what Profs.
Prosser and Keeton have referred to as a "public figure:"
A public figure has been defined as a person who, by his accomplishments, fame, or
mode of living, or by adopting a profession or calling which gives the public a legitimate
interest in his doings, his affairs, and his character, has become a 'public personage.' He
is, in other words, a celebrity. Obviously to be included in this category are those who
have achieved some degree of reputation by appearing before the public, as in the case of
an actor, a professional baseball player, a pugilist, or any other entertainment. The list is,
however, broader than this. It includes public officers, famous inventors and explorers,
war heroes and even ordinary soldiers, an infant prodigy, and no less a personage than the
Grand Exalted Ruler of a lodge. It includes, in short, anyone who has arrived at a position
where public attention is focused upon him as a person.
Such public figures were held to have lost, to some extent at least, their tight to privacy.
Three reasons were given, more or less indiscrimately, in the decisions" that they had
sought publicity and consented to it, and so could not complaint when they received it;
that their personalities and their affairs has already public, and could no longer be
regarded as their own private business; and that the press had a privilege, under the
Constitution, to inform the public about those who have become legitimate matters of
public interest. On one or another of these grounds, and sometimes all, it was held that
there was no liability when they were given additional publicity, as to matters
legitimately within the scope of the public interest they had aroused.
The privilege of giving publicity to news, and other matters of public interest, was held to
arise out of the desire and the right of the public to know what is going on in the world,
and the freedom of the press and other agencies of information to tell it. "News" includes
all events and items of information which are out of the ordinary hum-drum routine, and
which have 'that indefinable quality of information which arouses public attention.' To a
very great extent the press, with its experience or instinct as to what its readers will want,
has succeeded in making its own definination of news, as a glance at any morning
newspaper will sufficiently indicate. It includes homicide and othe crimes, arrests and

40

police raides, suicides, marriages and divorces, accidents, a death from the use of
narcotics, a woman with a rare disease, the birth of a child to a twelve year old girl, the
reappearance of one supposed to have been murdered years ago, and undoubtedly many
other similar matters of genuine, if more or less deplorable, popular appeal.
The privilege of enlightening the public was not, however, limited, to the dissemination
of news in the scene of current events. It extended also to information or education, or
even entertainment and amusement, by books, articles, pictures, films and broadcasts
concerning interesting phases of human activity in general, as well as the reproduction of
the public scene in newsreels and travelogues. In determining where to draw the line, the
courts were invited to exercise a species of censorship over what the public may be
permitted to read; and they were understandably liberal in allowing the benefit of the
doubt. 15
Private respondent is a "public figure" precisely because, inter alia, of his participation as
a principal actor in the culminating events of the change of government in February 1986.
Because his participation therein was major in character, a film reenactment of the
peaceful revolution that fails to make reference to the role played by private respondent
would be grossly unhistorical. The right of privacy of a "public figure" is necessarily
narrower than that of an ordinary citizen. Private respondent has not retired into the
seclusion of simple private citizenship. he continues to be a "public figure." After a
successful political campaign during which his participation in the EDSA Revolution was
directly or indirectly referred to in the press, radio and television, he sits in a very public
place, the Senate of the Philippines.
5. The line of equilibrium in the specific context of the instant case between the
constitutional freedom of speech and of expression and the right of privacy, may be
marked out in terms of a requirement that the proposed motion picture must be fairly
truthful and historical in its presentation of events. There must, in other words, be no
knowing or reckless disregard of truth in depicting the participation of private respondent
in the EDSA Revolution. 16 There must, further, be no presentation of the private life of
the unwilling private respondent and certainly no revelation of intimate or embarrassing
personal facts. 17 The proposed motion picture should not enter into what Mme. Justice
Melencio-Herrera in Lagunzad referred to as "matters of essentially private concern." 18
To the extent that "The Four Day Revolution" limits itself in portraying the participation
of private respondent in the EDSA Revolution to those events which are directly and
reasonably related to the public facts of the EDSA Revolution, the intrusion into private
respondent's privacy cannot be regarded as unreasonable and actionable. Such portrayal
may be carried out even without a license from private respondent.
II
In a Manifestation dated 30 March 1988, petitioner Hal McElroy informed this Court that
a Temporary Restraining Order dated 25 March 1988, was issued by Judge Teofilo
Guadiz of the Regional Trial Court of Makati, Branch 147, in Civil Case No. 88-413,
entitled "Gregorio B. Honasan vs. Ayer Productions Pty. Ltd., McElroy Film Productions,

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

41

SO ORDERED.
Draft cards under the Selective Service Act
In 1948, the United States instituted a peace-time draft with the Universal Military
Training and Service Act (also called the Selective Service Act), which required all male
American citizens to register with a local draft board upon reaching the age of 18. In
1965, Congress amended the Act to prohibit the willful destruction of "draft cards" or
registration certificates. These were small white cards bearing the registrant's identifying
information, the date and place of registration, and his Selective Service number, which
indicated his state of registration, local board, birth year, and his chronological position in
the local board's classification record.
The Act had already required all eligible men to carry the certificate at all times, and
prohibited alterations that would perpetrate a forgery or fraud. The 1965 amendment,
however, made it a separate crime under 50 U.S.C. 462(b)(3) to "knowingly destroy" or
"knowingly mutilate" the card. This amendment was passed at a time when public
burnings of draft cards to protest the Vietnam War were a growing phenomenon, many
observers (including the U.S. Court of Appeals for the First Circuit) believed that
Congress had intentionally targeted such protesters.[1]
O'Brien's protest and conviction
On the morning of March 31, 1966, David Paul O'Brien and three companions burned
their draft cards on the steps of the South Boston Courthouse, in front of a crowd that
happened to include several FBI agents. After the four men came under attack from some
of the crowd, an FBI agent ushered O'Brien inside the courthouse and advised him of his
rights. O'Brien proudly confessed to the agent and produced the charred remains of the
certificate. He was subsequently indicted for violating 462(b)(3) and put on trial in the
U.S. District Court for the District of Massachusetts.[2]
O'Brien insisted on representing himself at his trial and argued that the Act was
unconstitutional. He explained to the jury that he burned the draft card publicly to
persuade others to oppose the war, "so that other people would reevaluate their positions
with Selective Service, with the armed forces, and reevaluate their place in the culture of
today, to hopefully consider my position". O'Brien was convicted and sentenced to the
maximum of six years, as a "youth offender" under the now-repealed Youth Corrections
Act, which submitted him to the custody of the Attorney General "for supervision and
treatment".[3]
Appeal
On appeal, the First Circuit Court of Appeals ruled that the 1965 amendment ran afoul of
the First Amendment because it singled out "persons engaging in protest for special
treatment".[4] However, although O'Brien could not be convicted for protesting, the First
Amendment could not protect him from being required to carry a draft card. The court
believed that all the factual issues necessary for a "nonpossession" conviction had been

Yap, C.J., Fernan, Narvasa, Melencio-Herrera, Gutierrez, Jr., Cruz, Paras, Gancayco,
Padilla, Bidin, Sarmiento, Cortes and Grio-Aquino, JJ., concur.
fully litigated, and so affirmed his conviction on that basis and remanded for appropriate
resentencing.[5]
Both O'Brien and the United States petitioned for review by the Supreme Court, with the
government in United States v. O'Brien (No. 232) challenging the lower court's
invalidation of 462(b)(3) and O'Brien challenging in the nonpossession conviction in
O'Brien v. United States (No. 233).[6] The Court decided both actions together and, in a
71 decision, upheld the constitutionality of 462(b)(3), vacated the First Circuit's
decision and reinstated O'Brien's sentence. O'Brien had also argued to the Court that the
First Circuit had unconstitutionally sustained his conviction for a crime of which he was
neither convicted nor tried, and much of the Court's questioning of the government
during oral argument challenged this ruling. However, with that decision vacated, the
Court did not reach that issue.
Supreme Court's decision
Chief Justice Warren's decision for the Court rejected O'Brien's argument that the 1965
amendment to 462(b)(3) was only passed to stifle the speech of anti-war protesters. The
law did not restrict speech on its face, but instead only addressed conduct that was not
necessarily expressive, and applied without regard to whether the draft card was
destroyed in private or before an audience. It also did not matter to the Court if Congress
had passed it with the intention of stifling protest, as long as it could be justified on
another basis; Chief Justice Warren declared that "this Court will not strike down an
otherwise constitutional statute on the basis of an alleged illicit legislative motive".[7]
Despite finding that 462(b)(3) only prohibited conduct, the Court continued its First
Amendment inquiry to determine whether the rule was unduly restrictive of the element
of O'Brien's conduct that was expressive. The Court plainly questioned whether this
communicative element was "sufficient to bring into play the First Amendment" in
O'Brien's case, and so this portion of the Courts opinion was effectively hypothetical
musing.[8] Nevertheless, Justice Harlan, in his concurring opinion, recognized this as the
"crux" of the Courts decision.[9]
Warren wrote that when a regulation prohibits conduct that combines "speech" and
"nonspeech" elements, "a sufficiently important governmental interest in regulating the
nonspeech element can justify incidental limitations on First Amendment freedoms". The
regulation must 1) be within the constitutional power of the government to enact, 2)
further an important or substantial government interest, 3) that interest must be unrelated
to the suppression of speech (or "content neutral", as later cases have phrased it), and 4)
prohibit no more speech than is essential to further that interest. The Court ruled that
462(b)(3) satisfied this test.[10]
First, the law was, to the Court, unquestionably within the "broad and sweeping"
constitutional powers of Congress under Article I to "raise and support armies" by

42

"classify[ing] and conscript[ing] manpower for military service". Under the second prong
of the test, the issuance of registration certificates was regarded as a "legitimate and
substantial administrative aid" in the functioning of the draft system, as were laws that
insured the "continuing availability" of issued draft cards. The Court rejected OBriens
characterization of the draft cards as nothing more than a superfluous notification of
registration. Instead, the cards advanced "the smooth and proper functioning of the
system" through functions such as providing proof of registration, facilitating contact
between the registrant and draft board, reminding the registrant of the need to notify the
board of changes of address, and further preventing fraud or forgery. Third, the
registration and raising of troops was unrelated to the suppression of speech. And fourth,
the Court saw "no alternative means" by which the government could ensure that draft
cards would continue to be available than a law that prohibited their willful destruction.
Both the governments interest and 462(b)(3), Warren wrote, "are limited to the
noncommunicative aspect of O'Brien's conduct. The governmental interest and the scope
of the 1965 Amendment are limited to preventing harm to the smooth and efficient
functioning of the Selective Service System. When O'Brien deliberately rendered
unavailable his registration certificate, he wilfully frustrated this governmental interest.
For this noncommunicative impact of his conduct, and for nothing else, he was
convicted."[11]
Harlan's concurrence

SORIANO VS LA GUARDIAG.R. No. 164785, April 29, 2009

FACTSThe Minister of INC felt directly alluded by an offending remark made by
Soriano in one of his episodein his regular program aired on UNTV 37, Ang Dating
Daan. This ensued 8 private complainants whoare members of INC to file an affidavitcomplaint against herein petition (Soriano) before the MTRCB.Forthwith, the MTRCB
sent petitioner a notice of the hearing in relation to the alleged use of some cusswords in
the said episode. After a preliminary conference in which petitioner appeared, the
MTRCBordered preventive suspension of his 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 2004Implementing Rules and Regulations (IRR) of PD 1986
and Sec. 7, Rule VII of the MTRCB Rules of Procedure. The petitioner sought
reconsideration of the preventive suspension order, praying thatLaguardia and two other
members of the adjudication board recuse themselves from hearing the case,but withdrew
the same two days after, and, instead filed with the SC of a petition for certiorari
andprohibition to nullify the preventive suspension order thus issued. Meanwhile, in the
administrative case filed against the respondent with the MTRCB, it was held that
therespondent is liable for his utterances and thereby imposing on him a penalty of three
(3) monthssuspension from said program. He then filed petition for certiorari and
prohibition with prayer for injunctive relief on the ground that the preventive suspension
imposed against him and the relevant IRRprovision authorizing it are invalid inasmuch as
PD 1986 does not expressly authorize the MTRCB toissue preventive
suspension.ISSUE:WHETHER OR NOT THE MTRCB IS ENTITLED TO ISSUE
PREVENTIVE SUSPENSIONRULINGYES. Administrative agencies have powers and

Justice Harlan, though joining Warren's opinion, wrote a brief separate concurrence.[12]
Harlan wished to extend First Amendment protection to instances in which, though the
majority's test was satisfied, the regulation at issue additionally had "the effect of entirely
preventing a speaker from reaching a significant audience with whom he could not
otherwise lawfully communicate". This was adopted in later cases by the Court as an
additional prong of the OBrien test, that the regulation must leave (as phrased in later
decisions) "ample alternative channels" of communication. As Harlan felt that OBrien
had other means by which he could communicate his message, he had no problem
affirming his conviction.
Douglas's dissent
Justice Douglas was the sole dissenter.[13] Though he did not express disagreement with
the Court's First Amendment analysis, he believed that the asserted government interest
was only valid when the nation was in a state of war as declared by Congress (which had
not been the case since World War II). Douglas questioned whether a peacetime draft was
even constitutional, and wanted to reschedule O'Brien for reargument along with two
cases challenging the draft that were denied review by the Court the same day O'Brien
was handed down,[14] even though the parties in O'Brien had not presented arguments or
briefs on that issue
functions which may be administrative, investigatory,regulatory, quasi-legislative, or
quasi-judicial, or a mix of the five, as may be conferred by theConstitution or by statute.
They have in fine only such powers or authority as are granted or delegated,expressly or
impliedly, by law. And in determining whether an agency has certain powers, the
inquiryshould be from the law itself. But once ascertained as existing, the authority given
should be liberallyconstrued. The issuance of a preventive suspension comes well within
the scope of the MTRCBs authority andfunctions expressly set forth in PD 1986, more
particularly under its Sec. 3(d), which empowers theMTRCB 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 thatno such
pictures, programs and materials as are determined by the BOARD to be objectionable
inaccordance with paragraph (c) hereof shall be x x x exhibited and/or broadcast by
television. The power to issue preventive suspension forms part of the MTRCBs
express regulatory andsupervisory statutory mandate and its investigatory and
disciplinary authority subsumed in or impliedfrom such mandate. Any other construal
would render its power to regulate, supervise, or disciplineillusory.
Preventive suspension is not a penalty by itself, but merely a preliminary step in
anadministrative investigation
. And the power to discipline and impose penalties, if granted, carries withit the power to
investigate administrative complaints and, during such investigation, to
preventivelysuspend the person subject of the complaint. The mere absence of a
provision on preventive suspension in PD 1986 would not work to deprive theMTRCB a
basic disciplinary tool, such as preventive suspension. It is expressly empowered by
statuteto regulate and supervise television programs to obviate the exhibition or broadcast
of, among others,indecent or immoral materials and to impose sanctions for violations

43

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 preventivesuspension, outrun its authority
under the law. The preventive suspension was actually done infurtherance of the law,
SUPREME COURT
Manila
EN BANC
G.R. No. 164785

March 15, 2010

ELISEO F. SORIANO, Petitioner,

vs.
MA. CONSOLIZA P. LAGUARDIA, in her capacity as Chairperson of the Movie and
Television Review and Classification Board, MOVIE AND TELEVISION REVIEW
AND CLASSIFICATION BOARD, JESSIE L. GALAPON, ANABEL M. DELA CRUZ,
MANUEL M. HERNANDEZ, JOSE L. LOPEZ, CRISANTO SORIANO, BERNABE S.
YARIA, JR., MICHAEL M. SANDOVAL, and ROLDAN A. GAVINO, Respondents.
x - - - - - - - - - - - - - - - - - - - - - - -x

imposed pursuant to the MTRCBs duty of regulating or supervisingtelevision programs,

pending a determination of whether or not there has actually been aviolation. In the final
analysis, Sec. 3, Chapter XIII of the 2004 IRR merely formalized a power which PD
1986 bestowed, albeit impliedly, on MTRCB.
Petitioner seeks reconsideration on the following grounds or issues: (1) the suspension
thus meted out to the program constitutes prior restraint; (2) the Court erred in ruling that
his utterances1 did not constitute exercise of religion; (3) the Court erred in finding the
language used as offensive and obscene; (4) the Court should have applied its policy of
non-interference in cases of conflict between religious groups; and (5) the Court erred in
penalizing the television program for the acts of petitioner.
The motion has no merit.
Petitioners threshold posture that the suspension thus imposed constitutes prior restraint
and an abridgement of his exercise of religion and freedom of expression is a mere rehash
of the position he articulated in the underlying petitions for certiorari and expounded in
his memorandum.2 So are the supportive arguments and some of the citations of
decisional law, Philippine and American, holding it together. They have been considered,
sufficiently discussed in some detail, and found to be without merit in our Decision. It
would, thus, make little sense to embark on another lengthy discussion of the same issues
and arguments.

G.R. No. 165636

ELISEO F. SORIANO, Petitioner,
vs.
MOVIE AND TELEVISION REVIEW AND CLASSIFICATION BOARD, ZOSIMO G.
ALEGRE, JACKIE AQUINO-GAVINO, NOEL R. DEL PRADO, EMMANUEL
BORLAZA, JOSE E. ROMERO IV, and FLORIMONDO C. ROUS, in their capacity as
members of the Hearing and Adjudication Committee of the MTRCB, JESSIE L.
GALAPON, ANABEL M. DELA CRUZ, MANUEL M. HERNANDEZ, JOSE L.
LOPEZ, CRISANTO SORIANO, BERNABE S. YARIA, JR., MICHAEL M.
SANDOVAL, and ROLDAN A. GAVINO, in their capacity as complainants before the
MTRCB, Respondents.
RESOLUTION
VELASCO, JR., J.:
Before us is this motion of petitioner Eliseo F. Soriano for reconsideration of the
Decision of the Court dated April 29, 2009, modifying that of the Movie and Television
Review and Classification Board (MTRCB) by imposing the penalty of three-month
suspension on the television show Ang Dating Daan, instead of on petitioner Soriano, as
host of that program.

Suffice it to reiterate that the sanction imposed on the TV program in question does not,
under the factual milieu of the case, constitute prior restraint, but partakes of the nature of
subsequent punishment for past violation committed by petitioner in the course of the
broadcast of the program on August 10, 2004. To be sure, petitioner has not contested the
fact of his having made statements on the air that were contextually violative of the
programs "G" rating. To merit a "G" rating, the program must be "suitable for all ages,"
which, in turn, means that the "material for television [does not], in the judgment of the
[MTRCB], x x x contain anything unsuitable for children and minors, and may be viewed
without adult guidance or supervision."3 As previously discussed by the Court, the vulgar
language petitioner used on prime-time television can in no way be characterized as
suitable for all ages, and is wholly inappropriate for children.
Petitioner next harps on the primacy of his freedoms, referring particularly to the exercise
of his religious beliefs and profession, as presiding minister of his flock, over the right
and duty of the state as parens patriae. Petitioners position may be accorded some
cogency, but for the fact that it fails to consider that the medium he used to make his
statements was a television broadcast, which is accessible to children of virtually all ages.
As already laid down in the Decision subject of this recourse, the interest of the
government in protecting children who may be subjected to petitioners invectives must
take precedence over his desire to air publicly his dirty laundry. The public soapbox that
is television must be guarded by the state, which purpose the MTRCB serves, and has
served, in suspending Ang Dating Daan for petitioners statements. As emphasized in
Gonzalez v. Kalaw Katigbak,4 the freedom of broadcast media is, in terms of degree of

44

protection it deserves, lesser in scope, especially as regards television, which reaches

every home where there is a set, and where children will likely be among the avid
viewers of the programs shown. The same case also laid the basis for the classification
system of the MTRCB when it stated, "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."5
The penalty of suspension imposed on petitioner has driven him to liken the Court to "a
blind man who was asked to describe an elephant, and by his description he stubbornly
believed that an elephant is just the same as a Meralco post after touching one if its
legs."6 Petitioner makes this comparison with the view that the factual backdrop against
which his statements were made was purportedly not considered by the Court. As he
presently argues:
The Honorable Court should have rendered its decision in light of the surrounding
circumstances why and what prompted herein petitioner to utter those words. Clearly, he
was provoked because of the malicious and blatant splicing by the INC ministers of his
recorded voice. Verily, Petitioner submits that the choice of words he used has been harsh
but strongly maintains that the same was consistent with his constitutional right of
freedom of speech and religion.
Contrary to petitioners impression, the Court has, in fact, considered the factual
antecedents of and his motive in making his utterances, and has found those
circumstances wanting as defense for violating the programs "G" rating. Consider the
following excerpts from the Courts Decision:
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.
And just to set things straight, the penalty imposed is on the program, not on petitioner.
Petitioner would next have the Court adopt a hands-off approach to the conflict between
him and the Iglesia Ni Cristo. In support of his urging, he cites Iglesia ni Cristo v. Court
of Appeals.7

Petitioners invocation of Iglesia ni Cristo to support his hands-off thesis is erroneous.

Obviously, he fails to appreciate what the Court stated in that particular case when it
rejected the argument that a religious program is beyond MTRCBs review and
regulatory authority. We reproduce what the Court pertinently wrote in Iglesia ni Cristo:
We thus reject petitioners postulate that its religious program is per se beyond review by
the respondent [MTRCB]. Its public broadcast on TV of its religious program brings it
out of the bosom of internal belief. Television is a medium that reaches even the eyes and
ears of children. The Court iterates the rule that the exercise of religious freedom can be
regulated by the State when it will bring about the clear and present danger of some
substantive evil which the State is duty bound to prevent, i.e. serious detriment to the
more overriding interest of public health, public morals, or public welfare. A laissez faire
policy on the exercise of religion can be seductive to the liberal mind but history counsels
the Court against its blind adoption as religion is and continues to be a volatile area of
concern in our country today. Across the sea and in our shore, the bloodiest and bitterest
wars fought by men were caused by irreconcilable religious differences. Our country is
still not safe from the recurrence of this stultifying strife considering our warring
religious beliefs and the fanaticism with which some of us cling and claw to these beliefs.
x x x For when religion divides and its exercise destroys, the State should not stand still.8
(Emphasis added.)
Lastly, petitioner claims that there was violation of due process of law, alleging that the
registered producer of the program is not a party to the proceedings. Hence, the program
cannot, so petitioner asserts, be penalized.
We will let the records speak for themselves to refute that argument.
As per petitioners admission in his petition for certiorari filed with the Court, he is "the
Executive Producer of Ang Dating Daan, a televised bible exposition program produced
by the Philippine-based religious organization, Church of God International."9 It is
unclear, then, which producer the movant is referring to in claiming that there was no
representation before the MTRCB. He was and is the representative of Ang Dating Daan,
and the claim that there was no due process of law is simply bereft of merit.
Even as the foregoing disquisitions would suffice to write finis to the instant motion,
certain relevant issues have been raised by some members of the Court that ought to be
addressed if only to put things in their proper perspective. We refer to the matter of
obscenity.
As stressed at every possible turn in the challenged Courts Decision, the defining
standards to be employed in judging the harmful effects of the statements petitioner used
would be those for the average child, not those for the average adult. We note that the
ratings and regulation of television broadcasts take into account the protection of the
child, and it is from the childs narrow viewpoint that the utterances must be considered,
if not measured. The ratings "G," "PG" (parental guidance), "PG-13," and "R" (restricted

45

or for adults only) suggest as much. The concern was then, as now, that the program
petitioner hosted and produced would reach an unintended audience, the average child,
and so it is how this audience would view his words that matters. The average child
would not be concerned with colorful speech, but, instead, focus on the literal, everyday
meaning of words used. It was this literal approach that rendered petitioners utterances
obscene.1avvphi1
The Court has taken stock of Action for Childrens Television v. FCC,10 but finds this
U.S. case not to be of governing application to this jurisdiction under the present state of
things. The so-called "safe harbor" of 10:00 p.m. to 6:00 a.m., adverted to in Action for
Childrens Television as the time wherein broadcast of indecent material may be
permitted, is believed inapplicable here. As it were, there is no legislative enactment or
executive issuance setting a similar period in the Philippines wherein indecent material
may be broadcast. Rather than fix a period for allowing indecent programming, what is
used in this jurisdiction is the system of classification of television programs, which the
petitioner violated. His program was rated "G," purported to be suitable for all ages. We
cannot lose sight of the violation of his programs classification that carried with it the
producers implied assurance that the program did not contain anything unsuitable for
children and minors. The hour at which it was broadcasted was of little moment in light
of the guarantee that the program was safe for childrens viewing.

JOSE JESUS M. DISINI, JR., ROWENA S. DISINI, LIANNE IVY P. MEDINA,

JANETTE TORAL and ERNESTO SONIDO, JR., Petitioners,
vs.
THE SECRETARY OF JUSTICE, THE SECRETARY OF THE DEPARTMENT OF
THE INTERIOR AND LOCAL GOVERNMENT, THE EXECUTIVE DIRECTOR OF
THE INFORMATION AND COMMUNICATIONS TECHNOLOGY OFFICE, THE
CHIEF OF THE PHILIPPINE NATIONAL POLICE and THE DIRECTOR OF THE
NATIONAL BUREAU OF INVESTIGATION, Respondents.
x-----------------------x
G.R. No. 203299
LOUIS "BAROK" C. BIRAOGO, Petitioner,
vs.
NATIONAL BUREAU OF INVESTIGATION and PHILIPPINE NATIONAL POLICE,
Respondents.
x-----------------------x
G.R. No. 203306

The suspension of the program has not been arrived at lightly. Taking into account all the
factors involved and the arguments pressed on the Court, the suspension of the program
is a sufficiently limited disciplinary action, both to address the violation and to serve as
an object lesson for the future. The likelihood is great that any disciplinary action
imposed on petitioner would be met with an equally energetic defense as has been put up
here. The simple but stubborn fact is that there has been a violation of government
regulations that have been put in place with a laudable purpose, and this violation must
accordingly be dealt with. We are not unmindful of the concerns on the restriction of
freedoms that may occur in imposing sanctions upon erring individuals and institutions,
but it cannot be over-emphasized that the freedoms encased in the Bill of Rights are far
from absolute. Each has its own limits, responsibilities, and obligations. Everyone is
expected to bear the burden implicit in the exercise of these freedoms. So it must be here.
WHEREFORE, petitioners motion for reconsideration is hereby DENIED.
No further pleadings shall be entertained in this case. Let entry of judgment be made in
due course.
SUPREME COURT
Manila

ALAB NG MAMAMAHAYAG (ALAM), HUKUMAN NG MAMAMAYAN

MOVEMENT, INC., JERRY S. YAP, BERTENI "TOTO" CAUSING, HERNANI Q.
CUARE, PERCY LAPID, TRACY CABRERA, RONALDO E. RENTA, CIRILO P.
SABARRE, JR., DERVIN CASTRO, ET AL., Petitioners,
vs.
OFFICE OF THE PRESIDENT, represented by President Benigno Simeon Aquino III,
SENATE OF THE PHILIPPINES, and HOUSE OF REPRESENTATIVES, Respondents.
x-----------------------x
G.R. No. 203359
SENATOR TEOFISTO DL GUINGONA III, Petitioner,
vs.
EXECUTIVE SECRETARY, THE SECRETARY OF JUSTICE, THE SECRETARY OF
THE DEPARTMENT OF INTERIOR AND LOCAL GOVERNMENT, THE CHIEF OF
THE PHILIPPINE NATIONAL POLICE, and DIRECTOR OF THE NATIONAL
BUREAU OF INVESTIGATION, Respondents.
x-----------------------x

EN BANC
G.R. No. 203378
G.R. No. 203335

February 11, 2014

46

ALEXANDER ADONIS, ELLEN TORDESILLAS, MA. GISELA ORDENESCASCOLAN, H. HARRY L. ROQUE, JR., ROMEL R. BAGARES, and GILBERT T.
ANDRES, Petitioners,
vs.
THE EXECUTIVE SECRETARY, THE DEPARTMENT OF BUDGET AND
MANAGEMENT, THE DEPARTMENT OF JUSTICE, THE DEPARTMENT OF THE
INTERIOR AND LOCAL GOVERNMENT, THE NATIONAL BUREAU OF
INVESTIGATION, THE PHILIPPINE NATIONAL POLICE, AND THE
INFORMATION AND COMMUNICATIONS TECHNOLOGY OFFICEDEPARTMENT OF SCIENCE AND TECHNOLOGY, Respondents.
x-----------------------x
G.R. No. 203391
HON. RAYMOND V. PALATINO, HON. ANTONIO TINIO, VENCER MARI
CRISOSTOMO OF ANAKBAYAN, MA. KATHERINE ELONA OF THE PHILIPPINE
COLLEGIAN, ISABELLE THERESE BAGUISI OF THE NATIONAL UNION OF
STUDENTS OF THE PHILIPPINES, ET AL., Petitioners,
vs.
PAQUITO N. OCHOA, JR., in his capacity as Executive Secretary and alter-ego of
President Benigno Simeon Aquino III, LEILA DE LIMA in her capacity as Secretary of
Justice, Respondents.
x-----------------------x
G.R. No. 203407
BAGONG ALYANSANG MAKABAYAN SECRETARY GENERAL RENATO M.
REYES, JR., National Artist BIENVENIDO L. LUMBERA, Chairperson of Concerned
Artists of the Philippines, ELMER C. LABOG, Chairperson of Kilusang Mayo Uno,
CRISTINA E. PALABAY, Secretary General of Karapatan, FERDINAND R. GAITE,
Chairperson of COURAGE, JOEL B. MAGLUNSOD, Vice President of Anakpawis
Party-List, LANA R. LINABAN, Secretary General Gabriela Women's Party, ADOLFO
ARES P. GUTIERREZ, and JULIUS GARCIA MATIBAG, Petitioners,
vs.
BENIGNO SIMEON C. AQUINO III, President of the Republic of the Philippines,
PAQUITO N. OCHOA, JR., Executive Secretary, SENATE OF THE PHILIPPINES,
represented by SENATE PRESIDENT JUAN PONCE ENRILE, HOUSE OF
REPRESENTATIVES, represented by SPEAKER FELICIANO BELMONTE, JR.,
LEILA DE LIMA, Secretary of the Department of Justice, LOUIS NAPOLEON C.
CASAMBRE, Executive Director of the Information and Communications Technology
Office, NONNATUS CAESAR R. ROJAS, Director of the National Bureau of
Investigation, D/GEN. NICANOR A. BARTOLOME, Chief of the Philippine National
Police, MANUEL A. ROXAS II, Secretary of the Department of the Interior and Local
Government, Respondents.

x-----------------------x
G.R. No. 203440
MELENCIO S. STA. MARIA, SEDFREY M. CANDELARIA, AMPARITA STA.
MARIA, RAY PAOLO J. SANTIAGO, GILBERT V. SEMBRANO, and RYAN
JEREMIAH D. QUAN (all of the Ateneo Human Rights Center), Petitioners,
vs.
HONORABLE PAQUITO OCHOA in his capacity as Executive Secretary,
HONORABLE LEILA DE LIMA in her capacity as Secretary of Justice, HONORABLE
MANUEL ROXAS in his capacity as Secretary of the Department of Interior and Local
Government, The CHIEF of the Philippine National Police, The DIRECTOR of the
National Bureau of Investigation (all of the Executive Department of Government),
Respondents.
x-----------------------x
G.R. No. 203453
NATIONAL UNION OF JOURNALISTS OF THE PHILIPPINES (NUJP), PHILIPPINE
PRESS INSTITUTE (PPI), CENTER FOR MEDIA FREEDOM AND
RESPONSIBILITY, ROWENA CARRANZA PARAAN, MELINDA QUINTOS-DE
JESUS, JOSEPH ALWYN ALBURO, ARIEL SEBELLINO AND THE PETITIONERS
IN THE e-PETITION http://www.nujp.org/no-to-ra10175/, Petitioners,
vs.
THE EXECUTIVE SECRETARY, THE SECRETARY OF JUSTICE, THE SECRETARY
OF THE INTERIOR AND LOCAL GOVERNMENT, THE SECRETARY OF BUDGET
AND MANAGEMENT, THE DIRECTOR GENERAL OF THE PHILIPPINE
NATIONAL POLICE, THE DIRECTOR OF THE NATIONAL BUREAU OF
INVESTIGATION, THE CYBERCRIME INVESTIGATION AND COORDINATING
CENTER, AND ALL AGENCIES AND INSTRUMENTALITIES OF GOVERNMENT
AND ALL PERSONS ACTING UNDER THEIR INSTRUCTIONS, ORDERS,
DIRECTION IN RELATION TO THE IMPLEMENTATION OF REPUBLIC ACT NO.
10175, Respondents.
x-----------------------x
G.R. No. 203454
PAUL CORNELIUS T. CASTILLO & RYAN D. ANDRES, Petitioners,
vs.
THE HON. SECRETARY OF JUSTICE THE HON. SECRETARY OF INTERIOR AND
LOCAL GOVERNMENT, Respondents.
x-----------------------x

47

G.R. No. 203469

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

ANTHONY IAN M. CRUZ; MARCELO R. LANDICHO; BENJAMIN NOEL A.

ESPINA; MARCK RONALD C. RIMORIN; JULIUS D. ROCAS; OLIVER RICHARD
V. ROBILLO; AARON ERICK A. LOZADA; GERARD ADRIAN P. MAGNAYE; JOSE
REGINALD A. RAMOS; MA. ROSARIO T. JUAN; BRENDALYN P. RAMIREZ;
MAUREEN A. HERMITANIO; KRISTINE JOY S. REMENTILLA; MARICEL O.
GRAY; JULIUS IVAN F. CABIGON; BENRALPH S. YU; CEBU BLOGGERS
SOCIETY, INC. PRESIDENT RUBEN B. LICERA, JR; and PINOY EXPAT/OFW
BLOG AWARDS, INC. COORDINATOR PEDRO E. RAHON; Petitioners,
vs.
HIS EXCELLENCY BENIGNO S. AQUINO III, in his capacity as President of the
Republic of the Philippines; SENATE OF THE PHILIPPINES, represented by HON.
JUAN PONCE ENRILE, in his capacity as Senate President; HOUSE OF
REPRESENTATIVES, represented by FELICIANO R. BELMONTE, JR., in his capacity
as Speaker of the House of Representatives; HON. PAQUITO N. OCHOA, JR., in his
capacity as Executive Secretary; HON. LEILA M. DE LIMA, in her capacity as Secretary
of Justice; HON. LOUIS NAPOLEON C. CASAMBRE, in his capacity as Executive
Director, Information and Communications Technology Office; HON. NONNATUS
CAESAR R. ROJAS, in his capacity as Director, National Bureau of Investigation; and
P/DGEN. NICANOR A. BARTOLOME, in his capacity as Chief, Philippine National
Police, Respondents.

G.R. No. 203515

x-----------------------x
G.R. No. 203501
PHILIPPINE BAR ASSOCIATION, INC., Petitioner,
vs.
HIS EXCELLENCY BENIGNO S. AQUINO III, in his official capacity as President of
the Republic of the Philippines; HON. PAQUITO N. OCHOA, JR., in his official
capacity as Executive Secretary; HON. LEILA M. DE LIMA, in her official capacity as
Secretary of Justice; LOUIS NAPOLEON C. CASAMBRE, in his official capacity as
Executive Director, Information and Communications Technology Office; NONNATUS
CAESAR R. ROJAS, in his official capacity as Director of the National Bureau of
Investigation; and DIRECTOR GENERAL NICANOR A. BARTOLOME, in his official
capacity as Chief of the Philippine National Police, Respondents.

NATIONAL PRESS CLUB OF THE PHILIPPINES, INC. represented by BENNY D.

ANTIPORDA in his capacity as President and in his personal capacity, Petitioner,
vs.
OFFICE OF THE PRESIDENT, PRES. BENIGNO SIMEON AQUINO III,
DEPARTMENT OF JUSTICE, DEPARTMENT OF INTERIOR AND LOCAL
GOVERNMENT, PHILIPPINE NATIONAL POLICE, NATIONAL BUREAU OF
INVESTIGATION, DEPARTMENT OF BUDGET AND MANAGEMENT AND ALL
OTHER GOVERNMENT INSTRUMENTALITIES WHO HAVE HANDS IN THE
PASSAGE AND/OR IMPLEMENTATION OF REPUBLIC ACT 10175, Respondents.
x-----------------------x
G.R. No. 203518
PHILIPPINE INTERNET FREEDOM ALLIANCE, composed of DAKILAPHILIPPINE COLLECTIVE FOR MODERN HEROISM, represented by Leni Velasco,
PARTIDO LAKAS NG MASA, represented by Cesar S. Melencio, FRANCIS EUSTON
R. ACERO, MARLON ANTHONY ROMASANTA TONSON, TEODORO A. CASIO,
NOEMI LARDIZABAL-DADO, IMELDA ORALES, JAMES MATTHEW B.
MIRAFLOR, JUAN G.M. RAGRAGIO, MARIA FATIMA A. VILLENA, MEDARDO
M. MANRIQUE, JR., LAUREN DADO, MARCO VITTORIA TOBIAS SUMAYAO,
IRENE CHIA, ERASTUS NOEL T. DELIZO, CRISTINA SARAH E. OSORIO,
ROMEO FACTOLERIN, NAOMI L. TUPAS, KENNETH KENG, ANA ALEXANDRA
C. CASTRO, Petitioners,
vs.
THE EXECUTIVE SECRETARY, THE SECRETARY OF JUSTICE, THE SECRETARY
OF INTERIOR AND LOCAL GOVERNMENT, THE SECRETARY OF SCIENCE AND
TECHNOLOGY, THE EXECUTIVE DIRECTOR OF THE INFORMATION
TECHNOLOGY OFFICE, THE DIRECTOR OF THE NATIONAL BUREAU OF
INVESTIGATION, THE CHIEF, PHILIPPINE NATIONAL POLICE, THE HEAD OF
THE DOJ OFFICE OF CYBERCRIME, and THE OTHER MEMBERS OF THE
CYBERCRIME INVESTIGATION AND COORDINATING CENTER, Respondents.
DECISION

x-----------------------x
ABAD, J.:
G.R. No. 203509
BAYAN MUNA REPRESENTATIVE NERI J. COLMENARES, Petitioner,
vs.
THE EXECUTIVE SECRETARY PAQUITO OCHOA, JR., Respondent.

These consolidated petitions seek to declare several provisions of Republic Act (R.A.)
10175, the Cybercrime Prevention Act of 2012, unconstitutional and void.
The Facts and the Case

48

The cybercrime law aims to regulate access to and use of the cyberspace. Using his
laptop or computer, a person can connect to the internet, a system that links him to other
computers and enable him, among other things, to:
1. Access virtual libraries and encyclopedias for all kinds of information that he needs for
research, study, amusement, upliftment, or pure curiosity;
2. Post billboard-like notices or messages, including pictures and videos, for the general
public or for special audiences like associates, classmates, or friends and read postings
from them;
3. Advertise and promote goods or services and make purchases and payments;
4. Inquire and do business with institutional entities like government agencies, banks,
stock exchanges, trade houses, credit card companies, public utilities, hospitals, and
schools; and

But petitioners claim that the means adopted by the cybercrime law for regulating
undesirable cyberspace activities violate certain of their constitutional rights. The
government of course asserts that the law merely seeks to reasonably put order into
cyberspace activities, punish wrongdoings, and prevent hurtful attacks on the system.
Pending hearing and adjudication of the issues presented in these cases, on February 5,
2013 the Court extended the original 120-day temporary restraining order (TRO) that it
earlier issued on October 9, 2012, enjoining respondent government agencies from
implementing the cybercrime law until further orders.
The Issues Presented
Petitioners challenge the constitutionality of the following provisions of the cybercrime
law that regard certain acts as crimes and impose penalties for their commission as well
as provisions that would enable the government to track down and penalize violators.
These provisions are:
a. Section 4(a)(1) on Illegal Access;

5. Communicate in writing or by voice with any person through his e-mail address or
telephone.
This is cyberspace, a system that accommodates millions and billions of simultaneous
and ongoing individual accesses to and uses of the internet. The cyberspace is a boon to
the need of the current generation for greater information and facility of communication.
But all is not well with the system since it could not filter out a number of persons of ill
will who would want to use cyberspace technology for mischiefs and crimes. One of
them can, for instance, avail himself of the system to unjustly ruin the reputation of
another or bully the latter by posting defamatory statements against him that people can
read.

b. Section 4(a)(3) on Data Interference;

c. Section 4(a)(6) on Cyber-squatting;
d. Section 4(b)(3) on Identity Theft;
e. Section 4(c)(1) on Cybersex;
f. Section 4(c)(2) on Child Pornography;
g. Section 4(c)(3) on Unsolicited Commercial Communications;

And because linking with the internet opens up a user to communications from others, the
ill-motivated can use the cyberspace for committing theft by hacking into or
surreptitiously accessing his bank account or credit card or defrauding him through false
representations. The wicked can use the cyberspace, too, for illicit trafficking in sex or for
exposing to pornography guileless children who have access to the internet. For this
reason, the government has a legitimate right to regulate the use of cyberspace and
contain and punish wrongdoings.
Notably, there are also those who would want, like vandals, to wreak or cause havoc to
the computer systems and networks of indispensable or highly useful institutions as well
as to the laptop or computer programs and memories of innocent individuals. They
accomplish this by sending electronic viruses or virtual dynamites that destroy those
computer systems, networks, programs, and memories. The government certainly has the
duty and the right to prevent these tomfooleries from happening and punish their
perpetrators, hence the Cybercrime Prevention Act.

h. Section 4(c)(4) on Libel;

i. Section 5 on Aiding or Abetting and Attempt in the Commission of Cybercrimes;
j. Section 6 on the Penalty of One Degree Higher;
k. Section 7 on the Prosecution under both the Revised Penal Code (RPC) and R.A.
10175;
l. Section 8 on Penalties;
m. Section 12 on Real-Time Collection of Traffic Data;
n. Section 13 on Preservation of Computer Data;

49

o. Section 14 on Disclosure of Computer Data;

p. Section 15 on Search, Seizure and Examination of Computer Data;
q. Section 17 on Destruction of Computer Data;
r. Section 19 on Restricting or Blocking Access to Computer Data;
s. Section 20 on Obstruction of Justice;
t. Section 24 on Cybercrime Investigation and Coordinating Center (CICC); and

In the cases before it, the Court finds nothing in Section 4(a)(1) that calls for the
application of the strict scrutiny standard since no fundamental freedom, like speech, is
involved in punishing what is essentially a condemnable act accessing the computer
system of another without right. It is a universally condemned conduct.4
Petitioners of course fear that this section will jeopardize the work of ethical hackers,
professionals who employ tools and techniques used by criminal hackers but would
neither damage the target systems nor steal information. Ethical hackers evaluate the
target systems security and report back to the owners the vulnerabilities they found in it
and give instructions for how these can be remedied. Ethical hackers are the equivalent of
independent auditors who come into an organization to verify its bookkeeping records.5

u. Section 26(a) on CICCs Powers and Functions.

The Rulings of the Court

Besides, a clients engagement of an ethical hacker requires an agreement between them

as to the extent of the search, the methods to be used, and the systems to be tested. This is
referred to as the "get out of jail free card."6 Since the ethical hacker does his job with
prior permission from the client, such permission would insulate him from the coverage
of Section 4(a)(1).

Section 4(a)(1)

Section 4(a)(3) of the Cybercrime Law

Section 4(a)(1) provides:

Section 4(a)(3) provides:

Section 4. Cybercrime Offenses. The following acts constitute the offense of

cybercrime punishable under this Act:

Section 4. Cybercrime Offenses. The following acts constitute the offense of

cybercrime punishable under this Act:

(a) Offenses against the confidentiality, integrity and availability of computer data and
systems:

(a) Offenses against the confidentiality, integrity and availability of computer data and
systems:

(1) Illegal Access. The access to the whole or any part of a computer system without
right.

xxxx

Some petitioners also raise the constitutionality of related Articles 353, 354, 361, and 362
of the RPC on the crime of libel.

Petitioners contend that Section 4(a)(1) fails to meet the strict scrutiny standard required
of laws that interfere with the fundamental rights of the people and should thus be struck
down.
The Court has in a way found the strict scrutiny standard, an American constitutional
construct,1 useful in determining the constitutionality of laws that tend to target a class of
things or persons. According to this standard, a legislative classification that
impermissibly interferes with the exercise of fundamental right or operates to the peculiar
class disadvantage of a suspect class is presumed unconstitutional. The burden is on the
government to prove that the classification is necessary to achieve a compelling state
interest and that it is the least restrictive means to protect such interest.2 Later, the strict
scrutiny standard was used to assess the validity of laws dealing with the regulation of
speech, gender, or race as well as other fundamental rights, as expansion from its earlier
applications to equal protection.3

(3) Data Interference. The intentional or reckless alteration, damaging, deletion or

deterioration of computer data, electronic document, or electronic data message, without
right, including the introduction or transmission of viruses.
Petitioners claim that Section 4(a)(3) suffers from overbreadth in that, while it seeks to
discourage data interference, it intrudes into the area of protected speech and expression,
creating a chilling and deterrent effect on these guaranteed freedoms.
Under the overbreadth doctrine, a proper governmental purpose, constitutionally subject
to state regulation, may not be achieved by means that unnecessarily sweep its subject
broadly, thereby invading the area of protected freedoms.7 But Section 4(a)(3) does not
encroach on these freedoms at all. It simply punishes what essentially is a form of
vandalism,8 the act of willfully destroying without right the things that belong to others,
in this case their computer data, electronic document, or electronic data message. Such

50

act has no connection to guaranteed freedoms. There is no freedom to destroy other

peoples computer systems and private documents.
All penal laws, like the cybercrime law, have of course an inherent chilling effect, an in
terrorem effect9 or the fear of possible prosecution that hangs on the heads of citizens
who are minded to step beyond the boundaries of what is proper. But to prevent the State
from legislating criminal laws because they instill such kind of fear is to render the state
powerless in addressing and penalizing socially harmful conduct.10 Here, the chilling
effect that results in paralysis is an illusion since Section 4(a)(3) clearly describes the evil
that it seeks to punish and creates no tendency to intimidate the free exercise of ones
constitutional rights.

name and another who registers the name because it happens to be his real name.
Petitioners claim that, considering the substantial distinction between the two, the law
should recognize the difference.
But there is no real difference whether he uses "Julio Gandolfo" which happens to be his
real name or use it as a pseudo-name for it is the evil purpose for which he uses the name
that the law condemns. The law is reasonable in penalizing him for acquiring the domain
name in bad faith to profit, mislead, destroy reputation, or deprive others who are not illmotivated of the rightful opportunity of registering the same. The challenge to the
constitutionality of Section 4(a)(6) on ground of denial of equal protection is baseless.
Section 4(b)(3) of the Cybercrime Law

Besides, the overbreadth challenge places on petitioners the heavy burden of proving that
under no set of circumstances will Section 4(a)(3) be valid.11 Petitioner has failed to
discharge this burden.

Section 4(b)(3) provides:

Section 4(a)(6) of the Cybercrime Law

Section 4. Cybercrime Offenses. The following acts constitute the offense of

cybercrime punishable under this Act:

Section 4(a)(6) provides:

xxxx

Section 4. Cybercrime Offenses. The following acts constitute the offense of

cybercrime punishable under this Act:

b) Computer-related Offenses:
xxxx

(a) Offenses against the confidentiality, integrity and availability of computer data and
systems:
xxxx
(6) Cyber-squatting. The acquisition of domain name over the internet in bad faith to
profit, mislead, destroy the reputation, and deprive others from registering the same, if
such a domain name is:
(i) Similar, identical, or confusingly similar to an existing trademark registered with the
appropriate government agency at the time of the domain name registration;
(ii) Identical or in any way similar with the name of a person other than the registrant, in
case of a personal name; and
(iii) Acquired without right or with intellectual property interests in it.
Petitioners claim that Section 4(a)(6) or cyber-squatting violates the equal protection
clause12 in that, not being narrowly tailored, it will cause a user using his real name to
suffer the same fate as those who use aliases or take the name of another in satire, parody,
or any other literary device. For example, supposing there exists a well known
billionaire-philanthropist named "Julio Gandolfo," the law would punish for cybersquatting both the person who registers such name because he claims it to be his pseudo-

(3) Computer-related Identity Theft. The intentional acquisition, use, misuse, transfer,
possession, alteration, or deletion of identifying information belonging to another,
whether natural or juridical, without right: Provided: that if no damage has yet been
caused, the penalty imposable shall be one (1) degree lower.
Petitioners claim that Section 4(b)(3) violates the constitutional rights to due process and
to privacy and correspondence, and transgresses the freedom of the press.
The right to privacy, or the right to be let alone, was institutionalized in the 1987
Constitution as a facet of the right protected by the guarantee against unreasonable
searches and seizures.13 But the Court acknowledged its existence as early as 1968 in
Morfe v. Mutuc,14 it ruled that the right to privacy exists independently of its
identification with liberty; it is in itself fully deserving of constitutional protection.
Relevant to any discussion of the right to privacy is the concept known as the "Zones of
Privacy." The Court explained in "In the Matter of the Petition for Issuance of Writ of
Habeas Corpus of Sabio v. Senator Gordon"15 the relevance of these zones to the right to
privacy:
Zones of privacy are recognized and protected in our laws. Within these zones, any form
of intrusion is impermissible unless excused by law and in accordance with customary
legal process. The meticulous regard we accord to these zones arises not only from our

51

conviction that the right to privacy is a "constitutional right" and "the right most valued
by civilized men," but also from our adherence to the Universal Declaration of Human
Rights which mandates that, "no one shall be subjected to arbitrary interference with his
privacy" and "everyone has the right to the protection of the law against such interference
or attacks."

Sec. 4. Cybercrime Offenses. The following acts constitute the offense of cybercrime
punishable under this Act:
xxxx
(c) Content-related Offenses:

Two constitutional guarantees create these zones of privacy: (a) the right against
unreasonable searches16 and seizures, which is the basis of the right to be let alone, and
(b) the right to privacy of communication and correspondence.17 In assessing the
challenge that the State has impermissibly intruded into these zones of privacy, a court
must determine whether a person has exhibited a reasonable expectation of privacy and,
if so, whether that expectation has been violated by unreasonable government
intrusion.18
The usual identifying information regarding a person includes his name, his citizenship,
his residence address, his contact number, his place and date of birth, the name of his
spouse if any, his occupation, and similar data.19 The law punishes those who acquire or
use such identifying information without right, implicitly to cause damage. Petitioners
simply fail to show how government effort to curb computer-related identity theft
violates the right to privacy and correspondence as well as the right to due process of law.
Also, the charge of invalidity of this section based on the overbreadth doctrine will not
hold water since the specific conducts proscribed do not intrude into guaranteed freedoms
like speech. Clearly, what this section regulates are specific actions: the acquisition, use,
misuse or deletion of personal identifying data of another. There is no fundamental right
to acquire anothers personal data.
Further, petitioners fear that Section 4(b)(3) violates the freedom of the press in that
journalists would be hindered from accessing the unrestricted user account of a person in
the news to secure information about him that could be published. But this is not the
essence of identity theft that the law seeks to prohibit and punish. Evidently, the theft of
identity information must be intended for an illegitimate purpose. Moreover, acquiring
and disseminating information made public by the user himself cannot be regarded as a
form of theft.
The Court has defined intent to gain as an internal act which can be established through
the overt acts of the offender, and it may be presumed from the furtive taking of useful
property pertaining to another, unless special circumstances reveal a different intent on
the part of the perpetrator.20 As such, the press, whether in quest of news reporting or
social investigation, has nothing to fear since a special circumstance is present to negate
intent to gain which is required by this Section.
Section 4(c)(1) of the Cybercrime Law
Section 4(c)(1) provides:

(1) Cybersex. The willful engagement, maintenance, control, or operation, directly or

indirectly, of any lascivious exhibition of sexual organs or sexual activity, with the aid of
a computer system, for favor or consideration.
Petitioners claim that the above violates the freedom of expression clause of the
Constitution.21 They express fear that private communications of sexual character
between husband and wife or consenting adults, which are not regarded as crimes under
the penal code, would now be regarded as crimes when done "for favor" in cyberspace. In
common usage, the term "favor" includes "gracious kindness," "a special privilege or
right granted or conceded," or "a token of love (as a ribbon) usually worn
conspicuously."22 This meaning given to the term "favor" embraces socially tolerated
trysts. The law as written would invite law enforcement agencies into the bedrooms of
married couples or consenting individuals.
But the deliberations of the Bicameral Committee of Congress on this section of the
Cybercrime Prevention Act give a proper perspective on the issue. These deliberations
show a lack of intent to penalize a "private showing x x x between and among two private
persons x x x although that may be a form of obscenity to some."23 The understanding of
those who drew up the cybercrime law is that the element of "engaging in a business" is
necessary to constitute the illegal cybersex.24 The Act actually seeks to punish cyber
prostitution, white slave trade, and pornography for favor and consideration. This
includes interactive prostitution and pornography, i.e., by webcam.25
The subject of Section 4(c)(1)lascivious exhibition of sexual organs or sexual activity
is not novel. Article 201 of the RPC punishes "obscene publications and exhibitions
and indecent shows." The Anti-Trafficking in Persons Act of 2003 penalizes those who
"maintain or hire a person to engage in prostitution or pornography."26 The law defines
prostitution as any act, transaction, scheme, or design involving the use of a person by
another, for sexual intercourse or lascivious conduct in exchange for money, profit, or
any other consideration.27
The case of Nogales v. People28 shows the extent to which the State can regulate
materials that serve no other purpose than satisfy the market for violence, lust, or
pornography.29 The Court weighed the property rights of individuals against the public
welfare. Private property, if containing pornographic materials, may be forfeited and
destroyed. Likewise, engaging in sexual acts privately through internet connection,
perceived by some as a right, has to be balanced with the mandate of the State to
eradicate white slavery and the exploitation of women.

52

In any event, consenting adults are protected by the wealth of jurisprudence delineating
the bounds of obscenity.30 The Court will not declare Section 4(c)(1) unconstitutional
where it stands a construction that makes it apply only to persons engaged in the business
of maintaining, controlling, or operating, directly or indirectly, the lascivious exhibition
of sexual organs or sexual activity with the aid of a computer system as Congress has
intended.

The question of aiding and abetting the offense by simply commenting on it will be
discussed elsewhere below. For now the Court must hold that the constitutionality of
Section 4(c)(2) is not successfully challenged.
Section 4(c)(3) of the Cybercrime Law

Section 4(c)(2) of the Cybercrime Law

Section 4(c)(3) provides:

Section 4(c)(2) provides:

Sec. 4. Cybercrime Offenses. The following acts constitute the offense of cybercrime
punishable under this Act:

Sec. 4. Cybercrime Offenses. The following acts constitute the offense of cybercrime
punishable under this Act:

xxxx

xxxx

(c) Content-related Offenses:

(c) Content-related Offenses:

xxxx

xxxx

(3) Unsolicited Commercial Communications. The transmission of commercial

electronic communication with the use of computer system which seeks to advertise, sell,
or offer for sale products and services are prohibited unless:

(2) Child Pornography. The unlawful or prohibited acts defined and punishable by
Republic Act No. 9775 or the Anti-Child Pornography Act of 2009, committed through a
computer system: Provided, That the penalty to be imposed shall be (1) one degree higher
than that provided for in Republic Act No. 9775.
It seems that the above merely expands the scope of the Anti-Child Pornography Act of
200931 (ACPA) to cover identical activities in cyberspace. In theory, nothing prevents
the government from invoking the ACPA when prosecuting persons who commit child
pornography using a computer system. Actually, ACPAs definition of child pornography
already embraces the use of "electronic, mechanical, digital, optical, magnetic or any
other means." Notably, no one has questioned this ACPA provision.
Of course, the law makes the penalty higher by one degree when the crime is committed
in cyberspace. But no one can complain since the intensity or duration of penalty is a
legislative prerogative and there is rational basis for such higher penalty.32 The potential
for uncontrolled proliferation of a particular piece of child pornography when uploaded in
the cyberspace is incalculable.
Petitioners point out that the provision of ACPA that makes it unlawful for any person to
"produce, direct, manufacture or create any form of child pornography"33 clearly relates
to the prosecution of persons who aid and abet the core offenses that ACPA seeks to
punish.34 Petitioners are wary that a person who merely doodles on paper and imagines a
sexual abuse of a 16-year-old is not criminally liable for producing child pornography but
one who formulates the idea on his laptop would be. Further, if the author bounces off his
ideas on Twitter, anyone who replies to the tweet could be considered aiding and abetting
a cybercrime.

(i) There is prior affirmative consent from the recipient; or

(ii) The primary intent of the communication is for service and/or administrative
announcements from the sender to its existing users, subscribers or customers; or
(iii) The following conditions are present:
(aa) The commercial electronic communication contains a simple, valid, and reliable way
for the recipient to reject receipt of further commercial electronic messages (opt-out)
from the same source;
(bb) The commercial electronic communication does not purposely disguise the source of
the electronic message; and
(cc) The commercial electronic communication does not purposely include misleading
information in any part of the message in order to induce the recipients to read the
message.
The above penalizes the transmission of unsolicited commercial communications, also
known as "spam." The term "spam" surfaced in early internet chat rooms and interactive
fantasy games. One who repeats the same sentence or comment was said to be making a
"spam." The term referred to a Monty Pythons Flying Circus scene in which actors
would keep saying "Spam, Spam, Spam, and Spam" when reading options from a
menu.35

53

The Government, represented by the Solicitor General, points out that unsolicited
commercial communications or spams are a nuisance that wastes the storage and network
capacities of internet service providers, reduces the efficiency of commerce and
technology, and interferes with the owners peaceful enjoyment of his property.
Transmitting spams amounts to trespass to ones privacy since the person sending out
spams enters the recipients domain without prior permission. The OSG contends that
commercial speech enjoys less protection in law.
But, firstly, the government presents no basis for holding that unsolicited electronic ads
reduce the "efficiency of computers." Secondly, people, before the arrival of the age of
computers, have already been receiving such unsolicited ads by mail. These have never
been outlawed as nuisance since people might have interest in such ads. What matters is
that the recipient has the option of not opening or reading these mail ads. That is true with
spams. Their recipients always have the option to delete or not to read them.
To prohibit the transmission of unsolicited ads would deny a person the right to read his
emails, even unsolicited commercial ads addressed to him. Commercial speech is a
separate category of speech which is not accorded the same level of protection as that
given to other constitutionally guaranteed forms of expression but is nonetheless entitled
to protection.36 The State cannot rob him of this right without violating the
constitutionally guaranteed freedom of expression. Unsolicited advertisements are
legitimate forms of expression.
Articles 353, 354, and 355 of the Penal Code
Section 4(c)(4) of the Cyber Crime Law
Petitioners dispute the constitutionality of both the penal code provisions on libel as well
as Section 4(c)(4) of the Cybercrime Prevention Act on cyberlibel.
The RPC provisions on libel read:
Art. 353. Definition of libel. A libel is public and malicious imputation of a crime, or
of a vice or defect, real or imaginary, or any act, omission, condition, status, or
circumstance tending to cause the dishonor, discredit, or contempt of a natural or juridical
person, or to blacken the memory of one who is dead.
Art. 354. Requirement for publicity. Every defamatory imputation is presumed to be
malicious, even if it be true, if no good intention and justifiable motive for making it is
shown, except in the following cases:
1. A private communication made by any person to another in the performance of any
legal, moral or social duty; and

2. A fair and true report, made in good faith, without any comments or remarks, of any
judicial, legislative or other official proceedings which are not of confidential nature, or
of any statement, report or speech delivered in said proceedings, or of any other act
performed by public officers in the exercise of their functions.
Art. 355. Libel means by writings or similar means. A libel committed by means of
writing, printing, lithography, engraving, radio, phonograph, painting, theatrical
exhibition, cinematographic exhibition, or any similar means, shall be punished by
prision correccional in its minimum and medium periods or a fine ranging from 200 to
6,000 pesos, or both, in addition to the civil action which may be brought by the offended
party.
The libel provision of the cybercrime law, on the other hand, merely incorporates to form
part of it the provisions of the RPC on libel. Thus Section 4(c)(4) reads:
Sec. 4. Cybercrime Offenses. The following acts constitute the offense of cybercrime
punishable under this Act:
xxxx
(c) Content-related Offenses:
xxxx
(4) Libel. The unlawful or prohibited acts of libel as defined in Article 355 of the
Revised Penal Code, as amended, committed through a computer system or any other
similar means which may be devised in the future.
Petitioners lament that libel provisions of the penal code37 and, in effect, the libel
provisions of the cybercrime law carry with them the requirement of "presumed malice"
even when the latest jurisprudence already replaces it with the higher standard of "actual
malice" as a basis for conviction.38 Petitioners argue that inferring "presumed malice"
from the accuseds defamatory statement by virtue of Article 354 of the penal code
infringes on his constitutionally guaranteed freedom of expression.
Petitioners would go further. They contend that the laws on libel should be stricken down
as unconstitutional for otherwise good jurisprudence requiring "actual malice" could
easily be overturned as the Court has done in Fermin v. People39 even where the
offended parties happened to be public figures.
The elements of libel are: (a) the allegation of a discreditable act or condition concerning
another; (b) publication of the charge; (c) identity of the person defamed; and (d)
existence of malice.40
There is "actual malice" or malice in fact41 when the offender makes the defamatory
statement with the knowledge that it is false or with reckless disregard of whether it was

54

false or not.42 The reckless disregard standard used here requires a high degree of
awareness of probable falsity. There must be sufficient evidence to permit the conclusion
that the accused in fact entertained serious doubts as to the truth of the statement he
published. Gross or even extreme negligence is not sufficient to establish actual
malice.43
The prosecution bears the burden of proving the presence of actual malice in instances
where such element is required to establish guilt. The defense of absence of actual
malice, even when the statement turns out to be false, is available where the offended
party is a public official or a public figure, as in the cases of Vasquez (a barangay official)
and Borjal (the Executive Director, First National Conference on Land Transportation).
Since the penal code and implicitly, the cybercrime law, mainly target libel against
private persons, the Court recognizes that these laws imply a stricter standard of "malice"
to convict the author of a defamatory statement where the offended party is a public
figure. Societys interest and the maintenance of good government demand a full
discussion of public affairs.44

defense but under the condition that the accused has been prompted in making the
statement by good motives and for justifiable ends. Thus:
Art. 361. Proof of the truth. In every criminal prosecution for libel, the truth may be
given in evidence to the court and if it appears that the matter charged as libelous is true,
and, moreover, that it was published with good motives and for justifiable ends, the
defendants shall be acquitted.
Proof of the truth of an imputation of an act or omission not constituting a crime shall not
be admitted, unless the imputation shall have been made against Government employees
with respect to facts related to the discharge of their official duties.
In such cases if the defendant proves the truth of the imputation made by him, he shall be
acquitted.

Parenthetically, the Court cannot accept the proposition that its ruling in Fermin
disregarded the higher standard of actual malice or malice in fact when it found
Cristinelli Fermin guilty of committing libel against complainants who were public
figures. Actually, the Court found the presence of malice in fact in that case. Thus:

Besides, the UNHRC did not actually enjoin the Philippines, as petitioners urge, to
decriminalize libel. It simply suggested that defamation laws be crafted with care to
ensure that they do not stifle freedom of expression.48 Indeed, the ICCPR states that
although everyone should enjoy freedom of expression, its exercise carries with it special
duties and responsibilities. Free speech is not absolute. It is subject to certain restrictions,
as may be necessary and as may be provided by law.49

It can be gleaned from her testimony that petitioner had the motive to make defamatory
imputations against complainants. Thus, petitioner cannot, by simply making a general
denial, convince us that there was no malice on her part. Verily, not only was there malice
in law, the article being malicious in itself, but there was also malice in fact, as there was
motive to talk ill against complainants during the electoral campaign. (Emphasis ours)

The Court agrees with the Solicitor General that libel is not a constitutionally protected
speech and that the government has an obligation to protect private individuals from
defamation. Indeed, cyberlibel is actually not a new crime since Article 353, in relation to
Article 355 of the penal code, already punishes it. In effect, Section 4(c)(4) above merely
affirms that online defamation constitutes "similar means" for committing libel.

Indeed, the Court took into account the relatively wide leeway given to utterances against
public figures in the above case, cinema and television personalities, when it modified the
penalty of imprisonment to just a fine of P6,000.00.

But the Courts acquiescence goes only insofar as the cybercrime law penalizes the
author of the libelous statement or article. Cyberlibel brings with it certain intricacies,
unheard of when the penal code provisions on libel were enacted. The culture associated
with internet media is distinct from that of print.

But, where the offended party is a private individual, the prosecution need not prove the
presence of malice. The law explicitly presumes its existence (malice in law) from the
defamatory character of the assailed statement.45 For his defense, the accused must show
that he has a justifiable reason for the defamatory statement even if it was in fact true.46
Petitioners peddle the view that both the penal code and the Cybercrime Prevention Act
violate the countrys obligations under the International Covenant of Civil and Political
Rights (ICCPR). They point out that in Adonis v. Republic of the Philippines,47 the
United Nations Human Rights Committee (UNHRC) cited its General Comment 34 to the
effect that penal defamation laws should include the defense of truth.

The internet is characterized as encouraging a freewheeling, anything-goes writing

style.50 In a sense, they are a world apart in terms of quickness of the readers reaction to
defamatory statements posted in cyberspace, facilitated by one-click reply options offered
by the networking site as well as by the speed with which such reactions are disseminated
down the line to other internet users. Whether these reactions to defamatory statement
posted on the internet constitute aiding and abetting libel, acts that Section 5 of the
cybercrime law punishes, is another matter that the Court will deal with next in relation to
Section 5 of the law.
Section 5 of the Cybercrime Law

But General Comment 34 does not say that the truth of the defamatory statement should
constitute an all-encompassing defense. As it happens, Article 361 recognizes truth as a

Section 5 provides:

55

Sec. 5. Other Offenses. The following acts shall also constitute an offense:
(a) Aiding or Abetting in the Commission of Cybercrime. Any person who willfully
abets or aids in the commission of any of the offenses enumerated in this Act shall be
held liable.
(b) Attempt in the Commission of Cybercrime. Any person who willfully attempts to
commit any of the offenses enumerated in this Act shall be held liable.
Petitioners assail the constitutionality of Section 5 that renders criminally liable any
person who willfully abets or aids in the commission or attempts to commit any of the
offenses enumerated as cybercrimes. It suffers from overbreadth, creating a chilling and
deterrent effect on protected expression.
The Solicitor General contends, however, that the current body of jurisprudence and laws
on aiding and abetting sufficiently protects the freedom of expression of "netizens," the
multitude that avail themselves of the services of the internet. He points out that existing
laws and jurisprudence sufficiently delineate the meaning of "aiding or abetting" a crime
as to protect the innocent. The Solicitor General argues that plain, ordinary, and common
usage is at times sufficient to guide law enforcement agencies in enforcing the law.51 The
legislature is not required to define every single word contained in the laws they craft.
Aiding or abetting has of course well-defined meaning and application in existing laws.
When a person aids or abets another in destroying a forest,52 smuggling merchandise
into the country,53 or interfering in the peaceful picketing of laborers,54 his action is
essentially physical and so is susceptible to easy assessment as criminal in character.
These forms of aiding or abetting lend themselves to the tests of common sense and
human experience.
But, when it comes to certain cybercrimes, the waters are muddier and the line of sight is
somewhat blurred. The idea of "aiding or abetting" wrongdoings online threatens the
heretofore popular and unchallenged dogmas of cyberspace use.
According to the 2011 Southeast Asia Digital Consumer Report, 33% of Filipinos have
accessed the internet within a year, translating to about 31 million users.55 Based on a
recent survey, the Philippines ranks 6th in the top 10 most engaged countries for social
networking.56 Social networking sites build social relations among people who, for
example, share interests, activities, backgrounds, or real-life connections.57
Two of the most popular of these sites are Facebook and Twitter. As of late 2012, 1.2
billion people with shared interests use Facebook to get in touch.58 Users register at this
site, create a personal profile or an open book of who they are, add other users as friends,
and exchange messages, including automatic notifications when they update their
profile.59 A user can post a statement, a photo, or a video on Facebook, which can be
made visible to anyone, depending on the users privacy settings.

If the post is made available to the public, meaning to everyone and not only to his
friends, anyone on Facebook can react to the posting, clicking any of several buttons of
preferences on the programs screen such as "Like," "Comment," or "Share." "Like"
signifies that the reader likes the posting while "Comment" enables him to post online his
feelings or views about the same, such as "This is great!" When a Facebook user "Shares"
a posting, the original "posting" will appear on his own Facebook profile, consequently
making it visible to his down-line Facebook Friends.
Twitter, on the other hand, is an internet social networking and microblogging service
that enables its users to send and read short text-based messages of up to 140 characters.
These are known as "Tweets." Microblogging is the practice of posting small pieces of
digital contentwhich could be in the form of text, pictures, links, short videos, or other
mediaon the internet. Instead of friends, a Twitter user has "Followers," those who
subscribe to this particular users posts, enabling them to read the same, and "Following,"
those whom this particular user is subscribed to, enabling him to read their posts. Like
Facebook, a Twitter user can make his tweets available only to his Followers, or to the
general public. If a post is available to the public, any Twitter user can "Retweet" a given
posting. Retweeting is just reposting or republishing another persons tweet without the
need of copying and pasting it.
In the cyberworld, there are many actors: a) the blogger who originates the assailed
statement; b) the blog service provider like Yahoo; c) the internet service provider like
PLDT, Smart, Globe, or Sun; d) the internet caf that may have provided the computer
used for posting the blog; e) the person who makes a favorable comment on the blog; and
f) the person who posts a link to the blog site.60 Now, suppose Maria (a blogger)
maintains a blog on WordPress.com (blog service provider). She needs the internet to
access her blog so she subscribes to Sun Broadband (Internet Service Provider).
One day, Maria posts on her internet account the statement that a certain married public
official has an illicit affair with a movie star. Linda, one of Marias friends who sees this
post, comments online, "Yes, this is so true! They are so immoral." Marias original post
is then multiplied by her friends and the latters friends, and down the line to friends of
friends almost ad infinitum. Nena, who is a stranger to both Maria and Linda, comes
across this blog, finds it interesting and so shares the link to this apparently defamatory
blog on her Twitter account. Nenas "Followers" then "Retweet" the link to that blog site.
Pamela, a Twitter user, stumbles upon a random persons "Retweet" of Nenas original
tweet and posts this on her Facebook account. Immediately, Pamelas Facebook Friends
start Liking and making Comments on the assailed posting. A lot of them even press the
Share button, resulting in the further spread of the original posting into tens, hundreds,
thousands, and greater postings.
The question is: are online postings such as "Liking" an openly defamatory statement,
"Commenting" on it, or "Sharing" it with others, to be regarded as "aiding or abetting?"
In libel in the physical world, if Nestor places on the office bulletin board a small poster
that says, "Armand is a thief!," he could certainly be charged with libel. If Roger, seeing

56

the poster, writes on it, "I like this!," that could not be libel since he did not author the
poster. If Arthur, passing by and noticing the poster, writes on it, "Correct!," would that
be libel? No, for he merely expresses agreement with the statement on the poster. He still
is not its author. Besides, it is not clear if aiding or abetting libel in the physical world is a
crime.

violation. The severity of criminal sanctions may well cause speakers to remain silent
rather than communicate even arguably unlawful words, ideas, and images. As a practical
matter, this increased deterrent effect, coupled with the risk of discriminatory
enforcement of vague regulations, poses greater U.S. Const. amend. I concerns than those
implicated by certain civil regulations.

But suppose Nestor posts the blog, "Armand is a thief!" on a social networking site.
Would a reader and his Friends or Followers, availing themselves of any of the "Like,"
"Comment," and "Share" reactions, be guilty of aiding or abetting libel? And, in the
complex world of cyberspace expressions of thoughts, when will one be liable for aiding
or abetting cybercrimes? Where is the venue of the crime?

xxxx

Except for the original author of the assailed statement, the rest (those who pressed Like,
Comment and Share) are essentially knee-jerk sentiments of readers who may think little
or haphazardly of their response to the original posting. Will they be liable for aiding or
abetting? And, considering the inherent impossibility of joining hundreds or thousands of
responding "Friends" or "Followers" in the criminal charge to be filed in court, who will
make a choice as to who should go to jail for the outbreak of the challenged posting?
The old parameters for enforcing the traditional form of libel would be a square peg in a
round hole when applied to cyberspace libel. Unless the legislature crafts a cyber libel
law that takes into account its unique circumstances and culture, such law will tend to
create a chilling effect on the millions that use this new medium of communication in
violation of their constitutionally-guaranteed right to freedom of expression.
The United States Supreme Court faced the same issue in Reno v. American Civil
Liberties Union,61 a case involving the constitutionality of the Communications Decency
Act of 1996. The law prohibited (1) the knowing transmission, by means of a
telecommunications device, of
"obscene or indecent" communications to any recipient under 18 years of age; and (2) the
knowing use of an interactive computer service to send to a specific person or persons
under 18 years of age or to display in a manner available to a person under 18 years of
age communications that, in context, depict or describe, in terms "patently offensive" as
measured by contemporary community standards, sexual or excretory activities or organs.
Those who challenged the Act claim that the law violated the First Amendments
guarantee of freedom of speech for being overbroad. The U.S. Supreme Court agreed and
ruled:
The vagueness of the Communications Decency Act of 1996 (CDA), 47 U.S.C.S. 223, is
a matter of special concern for two reasons. First, the CDA is a content-based regulation
of speech. The vagueness of such a regulation raises special U.S. Const. amend. I
concerns because of its obvious chilling effect on free speech. Second, the CDA is a
criminal statute. In addition to the opprobrium and stigma of a criminal conviction, the
CDA threatens violators with penalties including up to two years in prison for each act of

The Communications Decency Act of 1996 (CDA), 47 U.S.C.S. 223, presents a great
threat of censoring speech that, in fact, falls outside the statute's scope. Given the vague
contours of the coverage of the statute, it unquestionably silences some speakers whose
messages would be entitled to constitutional protection. That danger provides further
reason for insisting that the statute not be overly broad. The CDAs burden on protected
speech cannot be justified if it could be avoided by a more carefully drafted statute.
(Emphasis ours)
Libel in the cyberspace can of course stain a persons image with just one click of the
mouse. Scurrilous statements can spread and travel fast across the globe like bad news.
Moreover, cyberlibel often goes hand in hand with cyberbullying that oppresses the
victim, his relatives, and friends, evoking from mild to disastrous reactions. Still, a
governmental purpose, which seeks to regulate the use of this cyberspace communication
technology to protect a persons reputation and peace of mind, cannot adopt means that
will unnecessarily and broadly sweep, invading the area of protected freedoms.62
If such means are adopted, self-inhibition borne of fear of what sinister predicaments
await internet users will suppress otherwise robust discussion of public issues.
Democracy will be threatened and with it, all liberties. Penal laws should provide
reasonably clear guidelines for law enforcement officials and triers of facts to prevent
arbitrary and discriminatory enforcement.63 The terms "aiding or abetting" constitute
broad sweep that generates chilling effect on those who express themselves through
cyberspace posts, comments, and other messages.64 Hence, Section 5 of the cybercrime
law that punishes "aiding or abetting" libel on the cyberspace is a nullity.
When a penal statute encroaches upon the freedom of speech, a facial challenge grounded
on the void-for-vagueness doctrine is acceptable. The inapplicability of the doctrine must
be carefully delineated. As Justice Antonio T. Carpio explained in his dissent in
Romualdez v. Commission on Elections,65 "we must view these statements of the Court
on the inapplicability of the overbreadth and vagueness doctrines to penal statutes as
appropriate only insofar as these doctrines are used to mount facial challenges to penal
statutes not involving free speech."
In an "as applied" challenge, the petitioner who claims a violation of his constitutional
right can raise any constitutional ground absence of due process, lack of fair notice,
lack of ascertainable standards, overbreadth, or vagueness. Here, one can challenge the
constitutionality of a statute only if he asserts a violation of his own rights. It prohibits
one from assailing the constitutionality of the statute based solely on the violation of the

57

rights of third persons not before the court. This rule is also known as the prohibition
against third-party standing.66
But this rule admits of exceptions. A petitioner may for instance mount a "facial"
challenge to the constitutionality of a statute even if he claims no violation of his own
rights under the assailed statute where it involves free speech on grounds of overbreadth
or vagueness of the statute.
The rationale for this exception is to counter the "chilling effect" on protected speech that
comes from statutes violating free speech. A person who does not know whether his
speech constitutes a crime under an overbroad or vague law may simply restrain himself
from speaking in order to avoid being charged of a crime. The overbroad or vague law
thus chills him into silence.67
As already stated, the cyberspace is an incomparable, pervasive medium of
communication. It is inevitable that any government threat of punishment regarding
certain uses of the medium creates a chilling effect on the constitutionally-protected
freedom of expression of the great masses that use it. In this case, the particularly
complex web of interaction on social media websites would give law enforcers such
latitude that they could arbitrarily or selectively enforce the law.
Who is to decide when to prosecute persons who boost the visibility of a posting on the
internet by liking it? Netizens are not given "fair notice" or warning as to what is criminal
conduct and what is lawful conduct. When a case is filed, how will the court ascertain
whether or not one netizens comment aided and abetted a cybercrime while another
comment did not?
Of course, if the "Comment" does not merely react to the original posting but creates an
altogether new defamatory story against Armand like "He beats his wife and children,"
then that should be considered an original posting published on the internet. Both the
penal code and the cybercrime law clearly punish authors of defamatory publications.
Make no mistake, libel destroys reputations that society values. Allowed to cascade in the
internet, it will destroy relationships and, under certain circumstances, will generate
enmity and tension between social or economic groups, races, or religions, exacerbating
existing tension in their relationships.
In regard to the crime that targets child pornography, when "Google procures, stores, and
indexes child pornography and facilitates the completion of transactions involving the
dissemination of child pornography," does this make Google and its users aiders and
abettors in the commission of child pornography crimes?68 Byars highlights a feature in
the American law on child pornography that the Cybercrimes law lacksthe exemption
of a provider or notably a plain user of interactive computer service from civil liability
for child pornography as follows:
No provider or user of an interactive computer service shall be treated as the publisher or
speaker of any information provided by another information content provider and cannot

be held civilly liable for any action voluntarily taken in good faith to restrict access to or
availability of material that the provider or user considers to be obscene...whether or not
such material is constitutionally protected.69
When a person replies to a Tweet containing child pornography, he effectively
republishes it whether wittingly or unwittingly. Does this make him a willing accomplice
to the distribution of child pornography? When a user downloads the Facebook mobile
application, the user may give consent to Facebook to access his contact details. In this
way, certain information is forwarded to third parties and unsolicited commercial
communication could be disseminated on the basis of this information.70 As the source
of this information, is the user aiding the distribution of this communication? The
legislature needs to address this clearly to relieve users of annoying fear of possible
criminal prosecution.
Section 5 with respect to Section 4(c)(4) is unconstitutional. Its vagueness raises
apprehension on the part of internet users because of its obvious chilling effect on the
freedom of expression, especially since the crime of aiding or abetting ensnares all the
actors in the cyberspace front in a fuzzy way. What is more, as the petitioners point out,
formal crimes such as libel are not punishable unless consummated.71 In the absence of
legislation tracing the interaction of netizens and their level of responsibility such as in
other countries, Section 5, in relation to Section 4(c)(4) on Libel, Section 4(c)(3) on
Unsolicited Commercial Communications, and Section 4(c)(2) on Child Pornography,
cannot stand scrutiny.
But the crime of aiding or abetting the commission of cybercrimes under Section 5
should be permitted to apply to Section 4(a)(1) on Illegal Access, Section 4(a)(2) on
Illegal Interception, Section 4(a)(3) on Data Interference, Section 4(a)(4) on System
Interference, Section 4(a)(5) on Misuse of Devices, Section 4(a)(6) on Cyber-squatting,
Section 4(b)(1) on Computer-related Forgery, Section 4(b)(2) on Computer-related Fraud,
Section 4(b)(3) on Computer-related Identity Theft, and Section 4(c)(1) on Cybersex.
None of these offenses borders on the exercise of the freedom of expression.
The crime of willfully attempting to commit any of these offenses is for the same reason
not objectionable. A hacker may for instance have done all that is necessary to illegally
access another partys computer system but the security employed by the systems lawful
owner could frustrate his effort. Another hacker may have gained access to usernames
and passwords of others but fail to use these because the system supervisor is alerted.72
If Section 5 that punishes any person who willfully attempts to commit this specific
offense is not upheld, the owner of the username and password could not file a complaint
against him for attempted hacking. But this is not right. The hacker should not be freed
from liability simply because of the vigilance of a lawful owner or his supervisor.
Petitioners of course claim that Section 5 lacks positive limits and could cover the
innocent.73 While this may be true with respect to cybercrimes that tend to sneak past the
area of free expression, any attempt to commit the other acts specified in Section 4(a)(1),
Section 4(a)(2), Section 4(a)(3), Section 4(a)(4), Section 4(a)(5), Section 4(a)(6), Section

58

4(b)(1), Section 4(b)(2), Section 4(b)(3), and Section 4(c)(1) as well as the actors aiding
and abetting the commission of such acts can be identified with some reasonable
certainty through adroit tracking of their works. Absent concrete proof of the same, the
innocent will of course be spared.

the OSG itself claims that online libel under Section 4(c)(4) is not a new crime but is one
already punished under Article 353. Section 4(c)(4) merely establishes the computer
system as another means of publication.75 Charging the offender under both laws would
be a blatant violation of the proscription against double jeopardy.76

Section 6 of the Cybercrime Law

The same is true with child pornography committed online. Section 4(c)(2) merely
expands the ACPAs scope so as to include identical activities in cyberspace. As
previously discussed, ACPAs definition of child pornography in fact already covers the
use of "electronic, mechanical, digital, optical, magnetic or any other means." Thus,
charging the offender under both Section 4(c)(2) and ACPA would likewise be
tantamount to a violation of the constitutional prohibition against double jeopardy.

Section 6 provides:
Sec. 6. All crimes defined and penalized by the Revised Penal Code, as amended, and
special laws, if committed by, through and with the use of information and
communications technologies shall be covered by the relevant provisions of this Act:
Provided, That the penalty to be imposed shall be one (1) degree higher than that
provided for by the Revised Penal Code, as amended, and special laws, as the case may
be.
Section 6 merely makes commission of existing crimes through the internet a qualifying
circumstance. As the Solicitor General points out, there exists a substantial distinction
between crimes committed through the use of information and communications
technology and similar crimes committed using other means. In using the technology in
question, the offender often evades identification and is able to reach far more victims or
cause greater harm. The distinction, therefore, creates a basis for higher penalties for
cybercrimes.

Section 8 of the Cybercrime Law

Section 8 provides:
Sec. 8. Penalties. Any person found guilty of any of the punishable acts enumerated in
Sections 4(a) and 4(b) of this Act shall be punished with imprisonment of prision mayor
or a fine of at least Two hundred thousand pesos (PhP200,000.00) up to a maximum
amount commensurate to the damage incurred or both.
Any person found guilty of the punishable act under Section 4(a)(5) shall be punished
with imprisonment of prision mayor or a fine of not more than Five hundred thousand
pesos (PhP500,000.00) or both.

Section 7 of the Cybercrime Law

Section 7 provides:
Sec. 7. Liability under Other Laws. A prosecution under this Act shall be without
prejudice to any liability for violation of any provision of the Revised Penal Code, as
amended, or special laws.
The Solicitor General points out that Section 7 merely expresses the settled doctrine that
a single set of acts may be prosecuted and penalized simultaneously under two laws, a
special law and the Revised Penal Code. When two different laws define two crimes,
prior jeopardy as to one does not bar prosecution of the other although both offenses arise
from the same fact, if each crime involves some important act which is not an essential
element of the other.74 With the exception of the crimes of online libel and online child
pornography, the Court would rather leave the determination of the correct application of
Section 7 to actual cases.
Online libel is different. There should be no question that if the published material on
print, said to be libelous, is again posted online or vice versa, that identical material
cannot be the subject of two separate libels. The two offenses, one a violation of Article
353 of the Revised Penal Code and the other a violation of Section 4(c)(4) of R.A. 10175
involve essentially the same elements and are in fact one and the same offense. Indeed,

If punishable acts in Section 4(a) are committed against critical infrastructure, the penalty
of reclusion temporal or a fine of at least Five hundred thousand pesos (PhP500,000.00)
up to maximum amount commensurate to the damage incurred or both, shall be imposed.
Any person found guilty of any of the punishable acts enumerated in Section 4(c)(1) of
this Act shall be punished with imprisonment of prision mayor or a fine of at least Two
hundred thousand pesos (PhP200,000.00) but not exceeding One million pesos
(PhP1,000,000.00) or both.
Any person found guilty of any of the punishable acts enumerated in Section 4(c)(2) of
this Act shall be punished with the penalties as enumerated in Republic Act No. 9775 or
the "Anti-Child Pornography Act of 2009:" Provided, That the penalty to be imposed
shall be one (1) degree higher than that provided for in Republic Act No. 9775, if
committed through a computer system.
Any person found guilty of any of the punishable acts enumerated in Section 4(c)(3) shall
be punished with imprisonment of arresto mayor or a fine of at least Fifty thousand pesos
(PhP50,000.00) but not exceeding Two hundred fifty thousand pesos (PhP250,000.00) or
both.

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Any person found guilty of any of the punishable acts enumerated in Section 5 shall be
punished with imprisonment one (1) degree lower than that of the prescribed penalty for
the offense or a fine of at least One hundred thousand pesos (PhP100,000.00) but not
exceeding Five hundred thousand pesos (PhP500,000.00) or both.
Section 8 provides for the penalties for the following crimes: Sections 4(a) on Offenses
Against the Confidentiality, Integrity and Availability of Computer Data and Systems;
4(b) on Computer-related Offenses; 4(a)(5) on Misuse of Devices; when the crime
punishable under 4(a) is committed against critical infrastructure; 4(c)(1) on Cybersex;
4(c)(2) on Child Pornography; 4(c)(3) on Unsolicited Commercial Communications; and
Section 5 on Aiding or Abetting, and Attempt in the Commission of Cybercrime.
The matter of fixing penalties for the commission of crimes is as a rule a legislative
prerogative. Here the legislature prescribed a measure of severe penalties for what it
regards as deleterious cybercrimes. They appear proportionate to the evil sought to be
punished. The power to determine penalties for offenses is not diluted or improperly
wielded simply because at some prior time the act or omission was but an element of
another offense or might just have been connected with another crime.77 Judges and
magistrates can only interpret and apply them and have no authority to modify or revise
their range as determined by the legislative department.
The courts should not encroach on this prerogative of the lawmaking body.78
Section 12 of the Cybercrime Law
Section 12 provides:
Sec. 12. Real-Time Collection of Traffic Data. Law enforcement authorities, with due
cause, shall be authorized to collect or record by technical or electronic means traffic data
in real-time associated with specified communications transmitted by means of a
computer system.
Traffic data refer only to the communications origin, destination, route, time, date, size,
duration, or type of underlying service, but not content, nor identities.
All other data to be collected or seized or disclosed will require a court warrant.
Service providers are required to cooperate and assist law enforcement authorities in the
collection or recording of the above-stated information.
The court warrant required under this section shall only be issued or granted upon written
application and the examination under oath or affirmation of the applicant and the
witnesses he may produce and the showing: (1) that there are reasonable grounds to
believe that any of the crimes enumerated hereinabove has been committed, or is being
committed, or is about to be committed; (2) that there are reasonable grounds to believe
that evidence that will be obtained is essential to the conviction of any person for, or to

the solution of, or to the prevention of, any such crimes; and (3) that there are no other
means readily available for obtaining such evidence.
Petitioners assail the grant to law enforcement agencies of the power to collect or record
traffic data in real time as tending to curtail civil liberties or provide opportunities for
official abuse. They claim that data showing where digital messages come from, what
kind they are, and where they are destined need not be incriminating to their senders or
recipients before they are to be protected. Petitioners invoke the right of every individual
to privacy and to be protected from government snooping into the messages or
information that they send to one another.
The first question is whether or not Section 12 has a proper governmental purpose since a
law may require the disclosure of matters normally considered private but then only upon
showing that such requirement has a rational relation to the purpose of the law,79 that
there is a compelling State interest behind the law, and that the provision itself is
narrowly drawn.80 In assessing regulations affecting privacy rights, courts should
balance the legitimate concerns of the State against constitutional guarantees.81
Undoubtedly, the State has a compelling interest in enacting the cybercrime law for there
is a need to put order to the tremendous activities in cyberspace for public good.82 To do
this, it is within the realm of reason that the government should be able to monitor traffic
data to enhance its ability to combat all sorts of cybercrimes.
Chapter IV of the cybercrime law, of which the collection or recording of traffic data is a
part, aims to provide law enforcement authorities with the power they need for spotting,
preventing, and investigating crimes committed in cyberspace. Crime-fighting is a state
business. Indeed, as Chief Justice Sereno points out, the Budapest Convention on
Cybercrimes requires signatory countries to adopt legislative measures to empower state
authorities to collect or record "traffic data, in real time, associated with specified
communications."83 And this is precisely what Section 12 does. It empowers law
enforcement agencies in this country to collect or record such data.
But is not evidence of yesterdays traffic data, like the scene of the crime after it has been
committed, adequate for fighting cybercrimes and, therefore, real-time data is superfluous
for that purpose? Evidently, it is not. Those who commit the crimes of accessing a
computer system without right,84 transmitting viruses,85 lasciviously exhibiting sexual
organs or sexual activity for favor or consideration;86 and producing child
pornography87 could easily evade detection and prosecution by simply moving the
physical location of their computers or laptops from day to day. In this digital age, the
wicked can commit cybercrimes from virtually anywhere: from internet cafs, from
kindred places that provide free internet services, and from unregistered mobile internet
connectors. Criminals using cellphones under pre-paid arrangements and with
unregistered SIM cards do not have listed addresses and can neither be located nor
identified. There are many ways the cyber criminals can quickly erase their tracks. Those
who peddle child pornography could use relays of computers to mislead law enforcement
authorities regarding their places of operations. Evidently, it is only real-time traffic data

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collection or recording and a subsequent recourse to court-issued search and seizure

warrant that can succeed in ferreting them out.
Petitioners of course point out that the provisions of Section 12 are too broad and do not
provide ample safeguards against crossing legal boundaries and invading the peoples
right to privacy. The concern is understandable. Indeed, the Court recognizes in Morfe v.
Mutuc88 that certain constitutional guarantees work together to create zones of privacy
wherein governmental powers may not intrude, and that there exists an independent
constitutional right of privacy. Such right to be left alone has been regarded as the
beginning of all freedoms.89
But that right is not unqualified. In Whalen v. Roe,90 the United States Supreme Court
classified privacy into two categories: decisional privacy and informational privacy.
Decisional privacy involves the right to independence in making certain important
decisions, while informational privacy refers to the interest in avoiding disclosure of
personal matters. It is the latter rightthe right to informational privacythat those who
oppose government collection or recording of traffic data in real-time seek to protect.
Informational privacy has two aspects: the right not to have private information
disclosed, and the right to live freely without surveillance and intrusion.91 In determining
whether or not a matter is entitled to the right to privacy, this Court has laid down a twofold test. The first is a subjective test, where one claiming the right must have an actual or
legitimate expectation of privacy over a certain matter. The second is an objective test,
where his or her expectation of privacy must be one society is prepared to accept as
objectively reasonable.92
Since the validity of the cybercrime law is being challenged, not in relation to its
application to a particular person or group, petitioners challenge to Section 12 applies to
all information and communications technology (ICT) users, meaning the large segment
of the population who use all sorts of electronic devices to communicate with one
another. Consequently, the expectation of privacy is to be measured from the general
publics point of view. Without reasonable expectation of privacy, the right to it would
have no basis in fact.
As the Solicitor General points out, an ordinary ICT user who courses his communication
through a service provider, must of necessity disclose to the latter, a third person, the
traffic data needed for connecting him to the recipient ICT user. For example, an ICT user
who writes a text message intended for another ICT user must furnish his service
provider with his cellphone number and the cellphone number of his recipient,
accompanying the message sent. It is this information that creates the traffic data.
Transmitting communications is akin to putting a letter in an envelope properly
addressed, sealing it closed, and sending it through the postal service. Those who post
letters have no expectations that no one will read the information appearing outside the
envelope.

Computer datamessages of all kindstravel across the internet in packets and in a way
that may be likened to parcels of letters or things that are sent through the posts. When
data is sent from any one source, the content is broken up into packets and around each of
these packets is a wrapper or header. This header contains the traffic data: information
that tells computers where the packet originated, what kind of data is in the packet (SMS,
voice call, video, internet chat messages, email, online browsing data, etc.), where the
packet is going, and how the packet fits together with other packets.93 The difference is
that traffic data sent through the internet at times across the ocean do not disclose the
actual names and addresses (residential or office) of the sender and the recipient, only
their coded internet protocol (IP) addresses. The packets travel from one computer
system to another where their contents are pieced back together.
Section 12 does not permit law enforcement authorities to look into the contents of the
messages and uncover the identities of the sender and the recipient.
For example, when one calls to speak to another through his cellphone, the service
providers communications system will put his voice message into packets and send
them to the other persons cellphone where they are refitted together and heard. The
latters spoken reply is sent to the caller in the same way. To be connected by the service
provider, the sender reveals his cellphone number to the service provider when he puts
his call through. He also reveals the cellphone number to the person he calls. The other
ways of communicating electronically follow the same basic pattern.
In Smith v. Maryland,94 cited by the Solicitor General, the United States Supreme Court
reasoned that telephone users in the 70s must realize that they necessarily convey phone
numbers to the telephone company in order to complete a call. That Court ruled that even
if there is an expectation that phone numbers one dials should remain private, such
expectation is not one that society is prepared to recognize as reasonable.
In much the same way, ICT users must know that they cannot communicate or exchange
data with one another over cyberspace except through some service providers to whom
they must submit certain traffic data that are needed for a successful cyberspace
communication. The conveyance of this data takes them out of the private sphere, making
the expectation to privacy in regard to them an expectation that society is not prepared to
recognize as reasonable.
The Court, however, agrees with Justices Carpio and Brion that when seemingly random
bits of traffic data are gathered in bulk, pooled together, and analyzed, they reveal
patterns of activities which can then be used to create profiles of the persons under
surveillance. With enough traffic data, analysts may be able to determine a persons close
associations, religious views, political affiliations, even sexual preferences. Such
information is likely beyond what the public may expect to be disclosed, and clearly falls
within matters protected by the right to privacy. But has the procedure that Section 12 of
the law provides been drawn narrowly enough to protect individual rights?

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Section 12 empowers law enforcement authorities, "with due cause," to collect or record
by technical or electronic means traffic data in real-time. Petitioners point out that the
phrase "due cause" has no precedent in law or jurisprudence and that whether there is due
cause or not is left to the discretion of the police. Replying to this, the Solicitor General
asserts that Congress is not required to define the meaning of every word it uses in
drafting the law.
Indeed, courts are able to save vague provisions of law through statutory construction.
But the cybercrime law, dealing with a novel situation, fails to hint at the meaning it
intends for the phrase "due cause." The Solicitor General suggests that "due cause"
should mean "just reason or motive" and "adherence to a lawful procedure." But the
Court cannot draw this meaning since Section 12 does not even bother to relate the
collection of data to the probable commission of a particular crime. It just says, "with due
cause," thus justifying a general gathering of data. It is akin to the use of a general search
warrant that the Constitution prohibits.
Due cause is also not descriptive of the purpose for which data collection will be used.
Will the law enforcement agencies use the traffic data to identify the perpetrator of a
cyber attack? Or will it be used to build up a case against an identified suspect? Can the
data be used to prevent cybercrimes from happening?
The authority that Section 12 gives law enforcement agencies is too sweeping and lacks
restraint. While it says that traffic data collection should not disclose identities or content
data, such restraint is but an illusion. Admittedly, nothing can prevent law enforcement
agencies holding these data in their hands from looking into the identity of their sender or
receiver and what the data contains. This will unnecessarily expose the citizenry to leaked
information or, worse, to extortion from certain bad elements in these agencies.
Section 12, of course, limits the collection of traffic data to those "associated with
specified communications." But this supposed limitation is no limitation at all since,
evidently, it is the law enforcement agencies that would specify the target
communications. The power is virtually limitless, enabling law enforcement authorities to
engage in "fishing expedition," choosing whatever specified communication they want.
This evidently threatens the right of individuals to privacy.
The Solicitor General points out that Section 12 needs to authorize collection of traffic
data "in real time" because it is not possible to get a court warrant that would authorize
the search of what is akin to a "moving vehicle." But warrantless search is associated
with a police officers determination of probable cause that a crime has been committed,
that there is no opportunity for getting a warrant, and that unless the search is
immediately carried out, the thing to be searched stands to be removed. These
preconditions are not provided in Section 12.
The Solicitor General is honest enough to admit that Section 12 provides minimal
protection to internet users and that the procedure envisioned by the law could be better
served by providing for more robust safeguards. His bare assurance that law enforcement

authorities will not abuse the provisions of Section 12 is of course not enough. The grant
of the power to track cyberspace communications in real time and determine their sources
and destinations must be narrowly drawn to preclude abuses.95
Petitioners also ask that the Court strike down Section 12 for being violative of the voidfor-vagueness doctrine and the overbreadth doctrine. These doctrines however, have been
consistently held by this Court to apply only to free speech cases. But Section 12 on its
own neither regulates nor punishes any type of speech. Therefore, such analysis is
unnecessary.
This Court is mindful that advances in technology allow the government and kindred
institutions to monitor individuals and place them under surveillance in ways that have
previously been impractical or even impossible. "All the forces of a technological age x x
x operate to narrow the area of privacy and facilitate intrusions into it. In modern terms,
the capacity to maintain and support this enclave of private life marks the difference
between a democratic and a totalitarian society."96 The Court must ensure that laws
seeking to take advantage of these technologies be written with specificity and
definiteness as to ensure respect for the rights that the Constitution guarantees.
Section 13 of the Cybercrime Law
Section 13 provides:
Sec. 13. Preservation of Computer Data. The integrity of traffic data and subscriber
information relating to communication services provided by a service provider shall be
preserved for a minimum period of six (6) months from the date of the transaction.
Content data shall be similarly preserved for six (6) months from the date of receipt of the
order from law enforcement authorities requiring its preservation.
Law enforcement authorities may order a one-time extension for another six (6) months:
Provided, That once computer data preserved, transmitted or stored by a service provider
is used as evidence in a case, the mere furnishing to such service provider of the
transmittal document to the Office of the Prosecutor shall be deemed a notification to
preserve the computer data until the termination of the case.
The service provider ordered to preserve computer data shall keep confidential the order
and its compliance.
Petitioners in G.R. 20339197 claim that Section 13 constitutes an undue deprivation of
the right to property. They liken the data preservation order that law enforcement
authorities are to issue as a form of garnishment of personal property in civil forfeiture
proceedings. Such order prevents internet users from accessing and disposing of traffic
data that essentially belong to them.
No doubt, the contents of materials sent or received through the internet belong to their
authors or recipients and are to be considered private communications. But it is not clear

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that a service provider has an obligation to indefinitely keep a copy of the same as they
pass its system for the benefit of users. By virtue of Section 13, however, the law now
requires service providers to keep traffic data and subscriber information relating to
communication services for at least six months from the date of the transaction and those
relating to content data for at least six months from receipt of the order for their
preservation.

Sec. 15. Search, Seizure and Examination of Computer Data. Where a search and
seizure warrant is properly issued, the law enforcement authorities shall likewise have the
following powers and duties.

Actually, the user ought to have kept a copy of that data when it crossed his computer if
he was so minded. The service provider has never assumed responsibility for their loss or
deletion while in its keep.

(a) To secure a computer system or a computer data storage medium;

At any rate, as the Solicitor General correctly points out, the data that service providers
preserve on orders of law enforcement authorities are not made inaccessible to users by
reason of the issuance of such orders. The process of preserving data will not unduly
hamper the normal transmission or use of the same.

(c) To maintain the integrity of the relevant stored computer data;

Section 14 of the Cybercrime Law

(e) To render inaccessible or remove those computer data in the accessed computer or
computer and communications network.

Within the time period specified in the warrant, to conduct interception, as defined in this
Act, and:

(b) To make and retain a copy of those computer data secured;

(d) To conduct forensic analysis or examination of the computer data storage medium;
and

Section 14 provides:
Sec. 14. Disclosure of Computer Data. Law enforcement authorities, upon securing a
court warrant, shall issue an order requiring any person or service provider to disclose or
submit subscribers information, traffic data or relevant data in his/its possession or
control within seventy-two (72) hours from receipt of the order in relation to a valid
complaint officially docketed and assigned for investigation and the disclosure is
necessary and relevant for the purpose of investigation.
The process envisioned in Section 14 is being likened to the issuance of a subpoena.
Petitioners objection is that the issuance of subpoenas is a judicial function. But it is
well-settled that the power to issue subpoenas is not exclusively a judicial function.
Executive agencies have the power to issue subpoena as an adjunct of their investigatory
powers.98
Besides, what Section 14 envisions is merely the enforcement of a duly issued court
warrant, a function usually lodged in the hands of law enforcers to enable them to carry
out their executive functions. The prescribed procedure for disclosure would not
constitute an unlawful search or seizure nor would it violate the privacy of
communications and correspondence. Disclosure can be made only after judicial
intervention.
Section 15 of the Cybercrime Law
Section 15 provides:

Pursuant thereof, the law enforcement authorities may order any person who has
knowledge about the functioning of the computer system and the measures to protect and
preserve the computer data therein to provide, as is reasonable, the necessary
information, to enable the undertaking of the search, seizure and examination.
Law enforcement authorities may request for an extension of time to complete the
examination of the computer data storage medium and to make a return thereon but in no
case for a period longer than thirty (30) days from date of approval by the court.
Petitioners challenge Section 15 on the assumption that it will supplant established search
and seizure procedures. On its face, however, Section 15 merely enumerates the duties of
law enforcement authorities that would ensure the proper collection, preservation, and
use of computer system or data that have been seized by virtue of a court warrant. The
exercise of these duties do not pose any threat on the rights of the person from whom
they were taken. Section 15 does not appear to supersede existing search and seizure
rules but merely supplements them.
Section 17 of the Cybercrime Law
Section 17 provides:
Sec. 17. Destruction of Computer Data. Upon expiration of the periods as provided in
Sections 13 and 15, service providers and law enforcement authorities, as the case may
be, shall immediately and completely destroy the computer data subject of a preservation
and examination.

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Section 17 would have the computer data, previous subject of preservation or

examination, destroyed or deleted upon the lapse of the prescribed period. The Solicitor
General justifies this as necessary to clear up the service providers storage systems and
prevent overload. It would also ensure that investigations are quickly concluded.
Petitioners claim that such destruction of computer data subject of previous preservation
or examination violates the users right against deprivation of property without due
process of law. But, as already stated, it is unclear that the user has a demandable right to
require the service provider to have that copy of the data saved indefinitely for him in its
storage system. If he wanted them preserved, he should have saved them in his computer
when he generated the data or received it. He could also request the service provider for a
copy before it is deleted.
Section 19 of the Cybercrime Law
Section 19 empowers the Department of Justice to restrict or block access to computer
data:

to be unprotected without any judicial warrant, it is not enough for him to be of the
opinion that such content violates some law, for to do so would make him judge, jury, and
executioner all rolled into one.100
Not only does Section 19 preclude any judicial intervention, but it also disregards
jurisprudential guidelines established to determine the validity of restrictions on speech.
Restraints on free speech are generally evaluated on one of or a combination of three
tests: the dangerous tendency doctrine, the balancing of interest test, and the clear and
present danger rule.101 Section 19, however, merely requires that the data to be blocked
be found prima facie in violation of any provision of the cybercrime law. Taking Section
6 into consideration, this can actually be made to apply in relation to any penal provision.
It does not take into consideration any of the three tests mentioned above.
The Court is therefore compelled to strike down Section 19 for being violative of the
constitutional guarantees to freedom of expression and against unreasonable searches and
seizures.
Section 20 of the Cybercrime Law

Sec. 19. Restricting or Blocking Access to Computer Data. When a computer data is
prima facie found to be in violation of the provisions of this Act, the DOJ shall issue an
order to restrict or block access to such computer data.
Petitioners contest Section 19 in that it stifles freedom of expression and violates the right
against unreasonable searches and seizures. The Solicitor General concedes that this
provision may be unconstitutional. But since laws enjoy a presumption of
constitutionality, the Court must satisfy itself that Section 19 indeed violates the freedom
and right mentioned.
Computer data99 may refer to entire programs or lines of code, including malware, as
well as files that contain texts, images, audio, or video recordings. Without having to go
into a lengthy discussion of property rights in the digital space, it is indisputable that
computer data, produced or created by their writers or authors may constitute personal
property. Consequently, they are protected from unreasonable searches and seizures,
whether while stored in their personal computers or in the service providers systems.
Section 2, Article III of the 1987 Constitution provides that the right to be secure in ones
papers and effects against unreasonable searches and seizures of whatever nature and for
any purpose shall be inviolable. Further, it states that no search warrant shall issue except
upon probable cause to be determined personally by the judge. Here, the Government, in
effect, seizes and places the computer data under its control and disposition without a
warrant. The Department of Justice order cannot substitute for judicial search warrant.
The content of the computer data can also constitute speech. In such a case, Section 19
operates as a restriction on the freedom of expression over cyberspace. Certainly not all
forms of speech are protected. Legislature may, within constitutional bounds, declare
certain kinds of expression as illegal. But for an executive officer to seize content alleged

Section 20 provides:
Sec. 20. Noncompliance. Failure to comply with the provisions of Chapter IV hereof
specifically the orders from law enforcement authorities shall be punished as a violation
of Presidential Decree No. 1829 with imprisonment of prision correctional in its
maximum period or a fine of One hundred thousand pesos (Php100,000.00) or both, for
each and every noncompliance with an order issued by law enforcement authorities.
Petitioners challenge Section 20, alleging that it is a bill of attainder. The argument is that
the mere failure to comply constitutes a legislative finding of guilt, without regard to
situations where non-compliance would be reasonable or valid.
But since the non-compliance would be punished as a violation of Presidential Decree
(P.D.) 1829,102 Section 20 necessarily incorporates elements of the offense which are
defined therein. If Congress had intended for Section 20 to constitute an offense in and of
itself, it would not have had to make reference to any other statue or provision.
P.D. 1829 states:
Section 1. The penalty of prision correccional in its maximum period, or a fine ranging
from 1,000 to 6,000 pesos, or both, shall be imposed upon any person who knowingly or
willfully obstructs, impedes, frustrates or delays the apprehension of suspects and the
investigation and prosecution of criminal cases by committing any of the following acts:
x x x.

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Thus, the act of non-compliance, for it to be punishable, must still be done "knowingly or
willfully." There must still be a judicial determination of guilt, during which, as the
Solicitor General assumes, defense and justifications for non-compliance may be raised.
Thus, Section 20 is valid insofar as it applies to the provisions of Chapter IV which are
not struck down by the Court.

Further, the formulation of the cybersecurity plan is consistent with the policy of the law
to "prevent and combat such [cyber] offenses by facilitating their detection, investigation,
and prosecution at both the domestic and international levels, and by providing
arrangements for fast and reliable international cooperation."105 This policy is clearly
adopted in the interest of law and order, which has been considered as sufficient
standard.106 Hence, Sections 24 and 26(a) are likewise valid.

Sections 24 and 26(a) of the Cybercrime Law

WHEREFORE, the Court DECLARES:
Sections 24 and 26(a) provide:
1. VOID for being UNCONSTITUTIONAL:
Sec. 24. Cybercrime Investigation and Coordinating Center. There is hereby created,
within thirty (30) days from the effectivity of this Act, an inter-agency body to be known
as the Cybercrime Investigation and Coordinating Center (CICC), under the
administrative supervision of the Office of the President, for policy coordination among
concerned agencies and for the formulation and enforcement of the national cybersecurity
plan.
Sec. 26. Powers and Functions. The CICC shall have the following powers and
functions:

a. Section 4(c)(3) of Republic Act 10175 that penalizes posting of unsolicited

commercial communications;
b. Section 12 that authorizes the collection or recording of traffic data in real-time; and
c. Section 19 of the same Act that authorizes the Department of Justice to restrict or
block access to suspected Computer Data.
2. VALID and CONSTITUTIONAL:

(a) To formulate a national cybersecurity plan and extend immediate assistance of real
time commission of cybercrime offenses through a computer emergency response team
(CERT); x x x.

a. Section 4(a)(1) that penalizes accessing a computer system without right;

b. Section 4(a)(3) that penalizes data interference, including transmission of viruses;

Petitioners mainly contend that Congress invalidly delegated its power when it gave the
Cybercrime Investigation and Coordinating Center (CICC) the power to formulate a
national cybersecurity plan without any sufficient standards or parameters for it to follow.

c. Section 4(a)(6) that penalizes cyber-squatting or acquiring domain name over the
internet in bad faith to the prejudice of others;

In order to determine whether there is undue delegation of legislative power, the Court
has adopted two tests: the completeness test and the sufficient standard test. Under the
first test, the law must be complete in all its terms and conditions when it leaves the
legislature such that when it reaches the delegate, the only thing he will have to do is to
enforce it.1avvphi1 The second test mandates adequate guidelines or limitations in the
law to determine the boundaries of the delegates authority and prevent the delegation
from running riot.103

d. Section 4(b)(3) that penalizes identity theft or the use or misuse of identifying
information belonging to another;

Here, the cybercrime law is complete in itself when it directed the CICC to formulate and
implement a national cybersecurity plan. Also, contrary to the position of the petitioners,
the law gave sufficient standards for the CICC to follow when it provided a definition of
cybersecurity.

g. Section 6 that imposes penalties one degree higher when crimes defined under the
Revised Penal Code are committed with the use of information and communications
technologies;

e. Section 4(c)(1) that penalizes cybersex or the lascivious exhibition of sexual organs
or sexual activity for favor or consideration;
f. Section 4(c)(2) that penalizes the production of child pornography;

h. Section 8 that prescribes the penalties for cybercrimes;

Cybersecurity refers to the collection of tools, policies, risk management approaches,
actions, training, best practices, assurance and technologies that can be used to protect
cyber environment and organization and users assets.104 This definition serves as the
parameters within which CICC should work in formulating the cybersecurity plan.

i. Section 13 that permits law enforcement authorities to require service providers to

preserve traffic data and subscriber information as well as specified content data for six
months;

65

j. Section 14 that authorizes the disclosure of computer data under a court-issued

warrant;

Illegal Access, Section 4(a)(2) on Illegal Interception, Section 4(a)(3) on Data

Interference, Section 4(a)(4) on System

k. Section 15 that authorizes the search, seizure, and examination of computer data
under a court-issued warrant;

Interference, Section 4(a)(5) on Misuse of Devices, Section 4(a)(6) on Cyber-squatting,

Section 4(b)(1) on Computer-related Forgery, Section 4(b)(2) on Computer-related Fraud,
Section 4(b)(3) on Computer-related Identity Theft, and Section 4(c)(1) on Cybersex; but
VOID and UNCONSTITUTIONAL with respect to Sections 4(c)(2) on Child
Pornography, 4(c)(3) on Unsolicited Commercial Communications, and 4(c)(4) on online
Libel.1wphi1

l. Section 17 that authorizes the destruction of previously preserved computer data

after the expiration of the prescribed holding periods;
m. Section 20 that penalizes obstruction of justice in relation to cybercrime
investigations;
n. Section 24 that establishes a Cybercrime Investigation and Coordinating Center
(CICC);
o. Section 26(a) that defines the CICCs Powers and Functions; and
p. Articles 353, 354, 361, and 362 of the Revised Penal Code that penalizes libel.
Further, the Court DECLARES:
1. Section 4(c)(4) that penalizes online libel as VALID and CONSTITUTIONAL with
respect to the original author of the post; but VOID and UNCONSTITUTIONAL with
respect to others who simply receive the post and react to it; and

Lastly, the Court RESOLVES to LEAVE THE DETERMINATION of the correct

application of Section 7 that authorizes prosecution of the offender under both the
Revised Penal Code and Republic Act 10175 to actual cases, WITH THE EXCEPTION
of the crimes of:
1. Online libel as to which, charging the offender under both Section 4(c)(4) of Republic
Act 10175 and Article 353 of the Revised Penal Code constitutes a violation of the
proscription against double jeopardy; as well as
2. Child pornography committed online as to which, charging the offender under both
Section 4(c)(2) of Republic Act 10175 and Republic Act 9775 or the Anti-Child
Pornography Act of 2009 also constitutes a violation of the same proscription, and, in
respect to these, is VOID and UNCONSTITUTIONAL.
SO ORDERED.

2. Section 5 that penalizes aiding or abetting and attempt in the commission of

cybercrimes as VA L I D and CONSTITUTIONAL only in relation to Section 4(a)(1) on
GONZALES VS. COMELEC [27 SCRA 835; G.R. L-27833; 18 APR 1969]
Sunday, February 08, 2009 Posted by Coffeeholic Writes
Labels: Case Digests, Political Law
Facts: RA 4880 which took effect on June 17, 1967, prohibiting the too early nomination
of candidates and limiting the period of election campaign or partisan political activity
was challenged on constitutional grounds. More precisely, the basic liberties of free
speech and free press, freedom of assembly and freedom of association are invoked to
nullify the act. Petitioner Cabigao was, at the time of the filing the petition, an incumbent
councilor in the 4th District of Manila and the Nacionalista Party official candidate for
Vice-Mayor of Manila to which he was subsequently elected on November 11, 1967;
petitioner Gonzales, on the other hand, is a private individual, a registered voter in the
City of Manila and a political leader of his co-petitioner. There was the further allegation
that the nomination of a candidate and the fixing of period of election campaign are
matters of political expediency and convenience which only political parties can regulate
or curtail by and among themselves through self-restraint or mutual understanding or
agreement and that the regulation and limitation of these political matters invoking the
police power, in the absence of clear and present danger to the state, would render the
constitutional rights of petitioners meaningless and without effect. Senator Lorenzo M.

Taada was asked to appear as amicus curiae, and elucidated that Act No. 4880 could
indeed be looked upon as a limitation on the preferred rights of speech and press, of
assembly and of association. He did justify its enactment however under the clear and
present danger doctrine, there being the substantive evil of elections, whether for national
or local officials, being debased and degraded by unrestricted campaigning, excess of
partisanship and undue concentration in politics with the loss not only of efficiency in
government but of lives as well. The Philippine Bar Association, the Civil Liberties
Union, the U.P. Law Center and the U.P. Women Lawyers' Circle were requested to give
their opinions. Respondents contend that the act was based on the police power of the
state.
Issue: Whether or Not RA 4880 unconstitutional.
Held: Yes. As held in Cabansag v. Fernandez there are two tests that may supply an
acceptable criterion for permissible restriction on freedom of speech. These are the clear
and present danger rule and the 'dangerous tendency' rule. The first, means that the evil
consequence of the comment or utterance must be extremely serious and the degree of

66

imminence extremely high before the utterance can be punished. The danger to be
guarded against is the 'substantive evil' sought to be prevented. It has the advantage of
establishing according to the above decision a definite rule in constitutional law. It
provides the criterion as to what words may be publicly established. The "dangerous
tendency rule" is such that 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.
The challenged statute could have been more narrowly drawn and the practices prohibited
more precisely delineated to satisfy the constitutional requirements as to a valid limitation
under the clear and present danger doctrine. As the author Taada clearly explained, such
provisions were deemed by the legislative body to be part and parcel of the necessary and
appropriate response not merely to a clear and present danger but to the actual existence
of a grave and substantive evil of excessive partisanship, dishonesty and corruption as
well as violence that of late has invariably marred election campaigns and partisan
political activities in this country.
The very idea of a government, republican in form, implies a right on the part of its
citizens to meet peaceably for consultation in respect to public affairs and to petition for
redress of grievances. As in the case of freedom of expression, this right is not to be
limited, much less denied, except on a showing of a clear and present danger of a
substantive evil that Congress has a right to prevent.
The prohibition of any speeches, announcements or commentaries, or the holding of
interviews for or against the election of any party or candidate for public office and the
prohibition of the publication or distribution of campaign literature or materials, against
the solicitation of votes whether directly or indirectly, or the undertaking of any campaign
literature or propaganda for or against any candidate or party is repugnant to a
constitutional command.

GONZALES vs COMELEC, G.R. No. L-28196, November 9, 1967FACTS:

On March 16, 1967, the Senate and the House of Representatives passed resolutions No.
1, 2 and 3

i.e. to increase the seats of the Lower House from 120 to 180; to convoke a
ConstitutionalConvention of 1971; and to amend the Constitution (Section 16, Article VI)
so they can becomedelegates themselves to the Convention.Subsequently, Congress

Constitutional Law Digest Stef Macapagal

passed a bill, which, upon approval by the President, on June 17, 1967,became Republic
Act No. 4913, providing that the amendments to the Constitution proposed in
theaforementioned Resolutions No. 1 and 3 be submitted, for approval by the people, at
thegeneral elections which shall be held on November 14, 1967.Two cases were filed
against this act of Congress: One an is original action for prohibition, withpreliminary
injunction by Ramon A. Gonzales, in L-28196, a Filipino citizen, a taxpayer, and a
voter.He claims to have instituted case L-28196 as a class unit, for and in behalf of all
citizens, taxpayers,and voters similarly situated. Another one is by PHILCONSA, in L28224, a corporation dulyorganized and existing under the laws of the Philippines, and a
civic, non-profit and non-partisanorganization the objective of which is to uphold the rule
of law in the Philippines and to defend itsConstitution against erosions or onslaughts
from whatever source.
ISSUE/S:
Whether or not a Resolution of Congress

acting as a constituent assembly

violates theConstitution?May Constitutional Amendments Be Submitted for Ratification

in a General Election?
HELD:
The issue whether or not a Resolution of Congress

acting as a constituent assembly

violatesthe Constitution essentially justiciable, not political, and, hence, subject to

judicial review.In the cases at bar, notwithstanding that the R. B. H. Nos. 1 and 3 have
been approved by a vote of three-fourths of all the members of the Senate and of the
House of Representatives votingseparately, said resolutions are null and void because
Members of Congress, which approved theproposed amendments, as well as the
resolution calling a convention to propose amendments, are,at best,
de facto
Congressmen (based upon Section 5, Article VI, of the Constitution, noapportionment has
been made been made by Congress within three (3) years since 1960.Thereafter, the
Congress of the Philippines and/or the election of its Members became illegal;
thatCongress and its Members, likewise, became a
de facto
Congress and/or
de facto
congressmen);However, As a consequence, the title of a
de facto
officer cannot be assailed collaterally
Tulfo v. People
GR Nos. 161032 and 16117616 September 2008Facts:Atty. Ding So of the Bureau of
Customs filed four separateInformations against Erwin Tulfo, Susan Cambri, Rey Salao,

67

JocelynBarlizo, and Philip Pichay, accusing them of libel in connection with the
publication of articles in the column Direct Hit of the daily tabloid
Remate.
The column accused So of corruption, and portrayed him as anextortionist and
smuggler.After trial, the RTC found Tulfo, et al. guilty of libel. The CAaffirmed the
decision.Issues:
1.
Why was
Borjal v. CA
not applied to this case?2.W/N the assailed articles are privileged.3.W/N the assailed
articles are fair commentaries.Ruling:1.Borjal was not applied to this case
because:a.Borjal stemmed from a civil action for damages based onlibel, and was not a
criminal case. b.The ruling in Borjal was that there was no sufficientidentification of the
complainant.c.The subject in Borjal was a private citizen, whereas in the present case, the
subject is a public official.d.It was held in Borjal that the articles written by Art
Borjalwere fair commentaries on matters of public interest.2.NO. The columns were
unsubstantiated attacks on Atty. So, andcannot be countenanced as being privileged
simply because thetarget was a public official.a.Even with the knowledge that he might
be in error, evenknowing of the possibility that someone else may haveused Atty. Sos
name, as Tulfo surmised, he made noeffort to verify the information given by his source
or even to ascertain the identity of the person he wasaccusing. b.Although falsity of the
articles does not prove malice, theexistence of press freedom must be done consistent
withgood faith and reasonable care. This was clearlyabandoned by Tulfo when he wrote
the subject articles.This is no case of mere error or honest mistake, but a caseof a
journalist abdicating his responsibility to verify hisstory and instead misinforming the
public.c.Tulfo had written and published the articles with recklessdisregard of whether
the same were false or not. The testlaid down is the reckless disregard test, and Tulfo
failedto meet that test.d.Evidence of malice: The fact that Tulfo published another article
lambasting Atty. So after the commencement of anaction. Tulfo did not relent nor did he
pause to consider his actions, but went on to continue defaming Atty. So.This is a clear
indication of his intent to malign Atty. So,no matter the cost, and is proof of malice.
3.
NO. Good faith is lacking, as Tulfo failed to substantiate or evenattempt to verify his
story before publication.a.The provided no details o the acts committed by thesubject.
They are plain and simple baseless accusations, backed up by the word of one unnamed
source. b.Not fair or true because fair is defined as havingthe qualities of
impartiality and honesty. True isdefined as comfortable to fact; correct; exact;
actual;genuine; honest. Tulfo failed to satisfy theserequirements, as he did not do
research before making hisallegations, and it has been shown that these allegationswere
Background
Clarence Brandenburg, a Ku Klux Klan (KKK) leader in rural Ohio, contacted a reporter
at a Cincinnati television station and invited him to cover a KKK rally that would take
place in Hamilton County in the summer of 1964.[6] Portions of the rally were filmed,
showing several men in robes and hoods, some carrying firearms, first burning a cross

baseless. The articles are not fair and true reports, but merely wild accusations.Velasco,
Jr., J
Elements of fair commentary (to be considered privileged):a.That it is a fair and true
report of a judicial, legislative, or other official proceedings which are not of
confidentialnature, or of a statement, report, or speech delivered insaid proceedings, or of
any other act performed by a pulicofficer in the exercise of his functions; b.That it is
made in good faith;c.That it is without any comments or remarks.Journalists may be
allowed an adequate margin of error in the exercise of their profession, but this margin
does not expand to cover every defamatoryor injurious statement they may make in the
furtherance of their profession,nor does this margin cover total abandonment of
responsibility.The mere fact that the subject of an article is a public figure or a matter of
public interest does not mean it is a fair commentary within the scope of qualified
privileged communication, which would automatically exclude theauthor from
liability.The confidentiality of sources and their importance to journalists areaccepted and
respected. What cannot be accepted are journalists making noefforts to verify the
information given by a source, and using that unverifiedinformation to throw wild
accusations and besmirch the name of possibly aninnocent person. Journalists have a
responsibility to report the truth, and indoing so must at least investigate their stories
before publication, and beable to back up their stories with proof.Journalists are not
storytellers or novelists who may just spin tales out of fevered imaginings, and pass them
off as reality. There must be somefoundation to their reports; these reports must be
warranted by facts.Freedom of expression as well as freedom of the press may not
beunrestrained, but neither must it be reined in too harshly.
Obiter 1: It may be clich that the pen is mightier than the sword, but in this particular
case, the lesson to be learned is that such a mighty weapon should not be wielded
recklessly or thoughtlessly, but always guided byconscience and careful thought.Obiter 2:
A robust and independently free press is doubtless one of the most effectivechecks on
government power and abuses. Hence, it behooves government functionaries to respect
the value of openness and refrain from concealing from media corruption and other
anomalous practices occurring withintheir backyard. On the other hand, public officials
also deserve respect and protection against false innuendoes and unfounded accusation
of official wrongdoing from an abusive press. As it were, the law and jurisprudenceon
libel heavily tilt in favor of press freedom. The common but most unkind perception is
that government institutions and their officers and employeesare fair game to official and
personal attacks and even ridicule. And the practice on the ground is just as disconcerting.
Reports and accusation of official misconduct often times merit front page or primetime
treatment,while defenses set up, retraction issued, or acquittal rendered get no more,if
ever, perfunctory coverage. The unfairness needs no belaboring. Thebalm of clear
conscience is sometimes not enoug
and then making speeches. One of the speeches made reference to the possibility of
"revengeance" [sic] against "niggers", "Jews", and those who supported them. One of the
speeches also claimed that "our President, our Congress, our Supreme Court, continues to
suppress the white, Caucasian race", and announced plans for a march on Washington to
take place on the Fourth of July. Brandenburg was charged with advocating violence
under Ohio's criminal syndicalism statute for his participation in the rally and for the

68

speech he made. In relevant part, the statute enacted in 1919 during the First Red Scare
proscribed "advocat[ing]...the duty, necessity, or propriety of crime, sabotage, violence,
or unlawful methods of terrorism as a means of accomplishing industrial or political
reform" and "voluntarily assembl[ing] with any society, group or assemblage of persons
formed to teach or advocate the doctrines of criminal syndicalism".
Convicted in the Court of Common Pleas of Hamilton County, Brandenburg was fined
$1,000 and sentenced to one to ten years in prison. On appeal, the Ohio First District
Court of Appeal affirmed Brandenburg's conviction, rejecting his claim that the statute
violated his First Amendment and Fourteenth Amendment right to freedom of speech.
The Supreme Court of Ohio dismissed his appeal without opinion.
The rather cursory way in which the Ohio courts dismissed Brandenburg's constitutional
arguments is unsurprising in light of the state of First Amendment law in the preBrandenburg era. Although Yates v. United States[7] had overturned the convictions of
mid-level Communist Party members in language that seemed suggestive of a broader
view of freedom of expression rights than had been accorded them in Dennis v. United
States,[8] all Yates purported to do was construe a federal statute, the Smith Act. Thus,
Dennis's reading of the First Amendment remained in force: advocacy of law violation,
even as an abstract doctrine, could be punished under law consistent with the free speech
clause.
The decision
The U.S. Supreme Court reversed Brandenburg's conviction, holding that government
cannot constitutionally punish abstract advocacy of force or law violation. The majority
opinion was per curiam (issued from the Court as an institution rather than as authored
and signed by an individual justice). The earlier draft had originally been prepared by
Justice Abe Fortas before he was forced to resign in the midst of an ethics scandal, and
would have included a modified version of the clear and present danger test. In finalizing
the draft, Justice Brennan eliminated all references to it, substituting instead the
"imminent lawless action" language.[9] Justices Black and Douglas concurred separately.
Per curiam opinion
The per curiam majority opinion overturned the Ohio Criminal Syndicalism statute,
overruled Whitney v. California,[2] and articulated a new test the "imminent lawless
action" test for judging what was then referred to as "seditious speech" under the First
Amendment:
Whitney has been thoroughly discredited by later decisions. See Dennis v. United
States, 341 U.S. 494, at 507 (1951). These later decisions have fashioned the principle
that the constitutional guarantees of free speech and free press do not permit a State to
forbid or proscribe advocacy of the use of force or of law violation except where such
advocacy is directed to inciting or producing imminent lawless action and is likely to
incite or produce such action.

In Schenck v. United States[3] the Court had adopted a "clear and present danger" test
that Whitney v. California subsequently expanded to a "bad tendency" test: if speech has
a "tendency" to cause sedition or lawlessness, it may constitutionally be prohibited.
Dennis v. United States, a case dealing with prosecution of alleged Communists under the
Smith Act for advocating the overthrow of the government, used the clear and present
danger test while still upholding the defendants' convictions for acts that could not
possibly have led to a speedy overthrow of the government.
Interestingly, the per curiam opinion cited Dennis v. United States as though it were good
law and amenable to the result reached in Brandenburg. In point of fact, Brandenburg
completely did away with Dennis's central holding and held that "mere advocacy" of any
doctrine, including one that assumed the necessity of violence or law violation, was per
se protected speech. It may be that principles of stare decisis figured in the Court's
decision to avoid overruling the relatively recent Dennis, but the distance between the
two cases' approach is obvious and irreconcilable.
The Brandenburg test (also known as the imminent lawless action test)
The three distinct elements of this test (intent, imminence, and likelihood) have distinct
precedential lineages.
Judge Learned Hand was possibly the first judge to advocate the intent standard, in
Masses Publishing Co. v. Patten,[10] reasoning that "[i]f one stops short of urging upon
others that it is their duty or their interest to resist the law, it seems to me one should not
be held to have attempted to cause its violation". The Brandenburg intent standard is
more speech-protective than Hand's formulation, which contained no temporal element.
The imminence element was a departure from earlier rulings. Brandenburg did not
explicitly overrule the bad tendency test, but it appears that after Brandenburg, the test is
de facto overruled. The Brandenburg test effectively made the time element of the clear
and present danger test more defined and more rigorous.
Concurrences
Justice Hugo Black, renowned civil libertarian and First Amendment absolutist, filed a
short concurrence indicating his agreement with Justice William O. Douglas's longer
opinion and pointing out that the per curiam's reliance on Dennis was more symbolic than
actual.
Justice Douglas's concurrence reflected the absolutist position that only he and Black,
among Supreme Court justices, ever fully subscribed to, namely that the phrase "no law"
in the First Amendment ought to be interpreted very literally, and that all speech is
immune from prosecution, regardless of the governmental interests advanced in
suppressing some particular instance of speech. He briefly traced the history of the "clear
and present danger" test, illustrating how it had been used over the years since its debut in
Schenck to dismiss dozens of what Douglas viewed as legitimate First Amendment
claims.

69

A short section of Douglas's opinion indicated that he might be open to allowing the
government greater latitude in controlling speech during time of "declared war" (making
clear that he was not referring to the then-current Vietnam War), although he only
phrased that possibility in terms of doubt (as opposed to his certainty that the clear and
present danger test was irreconcilable with the First Amendment during time of peace).
Douglas also pointed out the legitimate role of symbolic speech in First Amendment
doctrine, using examples of a person ripping up a Bible to celebrate the abandonment of
his faith or tearing a copy of the Constitution in order to protest a Supreme Court
decision, and assailed the previous term's United States v. O'Brien,[11] which had
allowed for the prosecution of a man for burning his draft card. In all these situations,
Douglas argued, an action was a vital way of conveying a certain message, and thus the
action itself deserved First Amendment protection.
Finally, Douglas dealt with the classic example of a man "falsely shouting fire in a theater
and causing a panic". In order to explain why someone could be legitimately prosecuted

Intergrated Bar of the Philippines, H. Harry L. Roque, et al. vs. Honorable Manila Mayor
JoseLito Atienza,G.R. No. 175241, February 24, 2010Digest by Conrad LacsinaIBP
filed with the Office of the City Mayor of Manila an application for a permit to rally at
thefoot of Mendiola Bridge. The mayor issued a permit allowing the IBP to stage a rally
on givendate but indicated therein Plaza Miranda as the venue, instead of Mendiola
Bridge. The rally pushed through at Mendiola Bridge. A criminal action was thereafter
instituted against Cadiz for violating the Public Assembly Act in staging a rally at a venue
not indicated in the permit.The Supreme Court held that in modifying the permit outright,
SUPREME COURT
Manila
FIRST DIVISION
G.R. No. 175241

February 24, 2010

INTEGRATED BAR OF THE PHILIPPINES represented by its National President, Jose

Anselmo I. Cadiz, H. HARRY L. ROQUE, and JOEL RUIZ BUTUYAN, Petitioners,
vs.
HONORABLE MANILA MAYOR JOSE "LITO" ATIENZA, Respondent.

for this, Douglas called it an example in which "speech is brigaded with action". In the
view of Douglas and Black, this was probably the only sort of case in which a person
could be prosecuted for speech.
Subsequent developments
The Brandenburg test was the Supreme Court's last major statement on what government
may do about inflammatory speech that seeks to incite others to lawless action. It
resolved the debate between those who urged greater government control of speech for
reasons of security and those who favored allowing as much speech as possible and
relying on the marketplace of ideas to reach a favorable result, leaving the law in a state
along the lines of that which Justices Louis Brandeis, and, post-Schenck, Oliver Wendell
Holmes advocated in several dissents and concurrences during the late 1910s and early
1920s. The Brandenburg test remains the standard used for evaluating attempts to punish
inflammatory speech, and it has not been seriously challenged since it was laid down in
1969. Very few cases have actually reached the Court during the past decades that would
test the outer limits of Brandenburg, so the test remains largely unqualified
respondent Mayor gravely abusedhis discretion when he did not immediately inform the
IBP who should have been heard first onthe matter of his perceived imminent and grave
danger of a substantive evil that may warrant thechanging of the venue. The opportunity
to be heard precedes the action on the permit, since theapplicant may directly go to court
after an unfavorable action on the permit. Respondent mayor failed to indicate how he
had arrived at modifying the terms of the permit against the standard of a clear and
present danger test which is an indispensable condition to such modification. Nothingin
the issued permit adverts to an imminent and grave danger of a substantive evil,
whichblank denial or modification would, when granted imprimatur as the appellate
court wouldhave it, render illusory any judicial scrutiny thereof
respondent Jose "Lito" Atienza, the then mayor of Manila, in granting a permit to rally in
a venue other than the one applied for by the IBP.
On June 15, 2006, the IBP, through its then National President Jose Anselmo Cadiz
(Cadiz), filed with the Office of the City Mayor of Manila a letter application4 for a
permit to rally at the foot of Mendiola Bridge on June 22, 2006 from 2:30 p.m. to 5:30
p.m. to be participated in by IBP officers and members, law students and multi-sectoral
organizations.
Respondent issued a permit5 dated June 16, 2006 allowing the IBP to stage a rally on
given date but indicated therein Plaza Miranda as the venue, instead of Mendiola Bridge,
which permit the IBP received on June 19, 2006.

DECISION
CARPIO MORALES, J.:
Petitioners Integrated Bar of the Philippines1 (IBP) and lawyers H. Harry L. Roque and
Joel R. Butuyan appeal the June 28, 2006 Decision2 and the October 26, 2006
Resolution3 of the Court of Appeals that found no grave abuse of discretion on the part of

Aggrieved, petitioners filed on June 21, 2006 before the Court of Appeals a petition for
certiorari docketed as CA-G.R. SP No. 94949.6 The petition having been unresolved
within 24 hours from its filing, petitioners filed before this Court on June 22, 2006 a
petition for certiorari docketed as G.R. No. 172951 which assailed the appellate courts
inaction or refusal to resolve the petition within the period provided under the Public
Assembly Act of 1985.7

70

The Court, by Resolutions of July 26, 2006, August 30, 2006 and November 20, 2006,
respectively, denied the petition for being moot and academic, denied the relief that the
petition be heard on the merits in view of the pendency of CA-G.R. SP No. 94949, and
denied the motion for reconsideration.
The rally pushed through on June 22, 2006 at Mendiola Bridge, after Cadiz discussed
with P/Supt. Arturo Paglinawan whose contingent from the Manila Police District (MPD)
earlier barred petitioners from proceeding thereto. Petitioners allege that the participants
voluntarily dispersed after the peaceful conduct of the program.
The MPD thereupon instituted on June 26, 2006 a criminal action,8 docketed as I.S. No.
06I-12501, against Cadiz for violating the Public Assembly Act in staging a rally at a
venue not indicated in the permit, to which charge Cadiz filed a Counter-Affidavit of
August 3, 2006.
In the meantime, the appellate court ruled, in CA-G.R. SP No. 94949, by the first assailed
issuance, that the petition became moot and lacked merit. The appellate court also denied
petitioners motion for reconsideration by the second assailed issuance.
Hence, the filing of the present petition for review on certiorari, to which respondent filed
his Comment of November 18, 2008 which merited petitioners Reply of October 2,
2009.
The main issue is whether the appellate court erred in holding that the modification of the
venue in IBPs rally permit does not constitute grave abuse of discretion.
Petitioners assert that the partial grant of the application runs contrary to the Pubic
Assembly Act and violates their constitutional right to freedom of expression and public
assembly.

evades review, owing to the limited time in processing the application where the shortest
allowable period is five days prior to the assembly. The susceptibility of recurrence
compels the Court to definitively resolve the issue at hand.
Respecting petitioners argument that the issues presented in CA-G.R. SP No. 94949 pose
a prejudicial question to the criminal case against Cadiz, the Court finds it improper to
resolve the same in the present case.
Under the Rules,10 the existence of a prejudicial question is a ground in a petition to
suspend proceedings in a criminal action. Since suspension of the proceedings in the
criminal action may be made only upon petition and not at the instance of the judge or the
investigating prosecutor,11 the latter cannot take cognizance of a claim of prejudicial
question without a petition to suspend being filed. Since a petition to suspend can be filed
only in the criminal action,12 the determination of the pendency of a prejudicial question
should be made at the first instance in the criminal action, and not before this Court in an
appeal from the civil action.
In proceeding to resolve the petition on the merits, the appellate court found no grave
abuse of discretion on the part of respondent because the Public Assembly Act does not
categorically require respondent to specify in writing the imminent and grave danger of a
substantive evil which warrants the denial or modification of the permit and merely
mandates that the action taken shall be in writing and shall be served on respondent
within 24 hours. The appellate court went on to hold that respondent is authorized to
regulate the exercise of the freedom of expression and of public assembly which are not
absolute, and that the challenged permit is consistent with Plaza Mirandas designation as
a freedom park where protest rallies are allowed without permit.
The Court finds for petitioners.
Section 6 of the Public Assembly Act reads:

The Court shall first resolve the preliminary issue of mootness.

Section 6. Action to be taken on the application Undoubtedly, the petition filed with the appellate court on June 21, 2006 became moot
upon the passing of the date of the rally on June 22, 2006.
A moot and academic case is one that ceases to present a justiciable controversy by virtue
of supervening events, so that a declaration thereon would be of no practical use or value.
Generally, courts decline jurisdiction over such case or dismiss it on ground of mootness.
However, even in cases where supervening events had made the cases moot, this Court
did not hesitate to resolve the legal or constitutional issues raised to formulate controlling
principles to guide the bench, bar and public. Moreover, as an exception to the rule on
mootness, courts will decide a question otherwise moot if it is capable of repetition, yet
evading review.9

(a) It shall be the duty of the mayor or any official acting in his behalf to issue or grant a
permit unless there is clear and convincing evidence that the public assembly will create a
clear and present danger to public order, public safety, public convenience, public morals
or public health.
(b) The mayor or any official acting in his behalf shall act on the application within two
(2) working days from the date the application was filed, failing which, the permit shall
be deemed granted. Should for any reason the mayor or any official acting in his behalf
refuse to accept the application for a permit, said application shall be posted by the
applicant on the premises of the office of the mayor and shall be deemed to have been
filed.

In the present case, the question of the legality of a modification of a permit to rally will
arise each time the terms of an intended rally are altered by the concerned official, yet it

71

(c) If the mayor is of the view that there is imminent and grave danger of a substantive
evil warranting the denial or modification of the permit, he shall immediately inform the
applicant who must be heard on the matter.
(d) The action on the permit shall be in writing and served on the application [sic] within
twenty-four hours.
(e) If the mayor or any official acting in his behalf denies the application or modifies the
terms thereof in his permit, the applicant may contest the decision in an appropriate court
of law.
(f) In case suit is brought before the Metropolitan Trial Court, the Municipal Trial Court,
the Municipal Circuit Trial Court, the Regional Trial Court, or the Intermediate Appellate
Court, its decisions may be appealed to the appropriate court within forty-eight (48) hours
after receipt of the same. No appeal bond and record on appeal shall be required. A
decision granting such permit or modifying it in terms satisfactory to the applicant shall,
be immediately executory.
(g) All cases filed in court under this Section shall be decided within twenty-four (24)
hours from date of filing. Cases filed hereunder shall be immediately endorsed to the
executive judge for disposition or, in his absence, to the next in rank.

public morals, public health, or any other legitimate public interest.14 (emphasis
supplied)
The Court in Bayan stated that the provisions of the Public Assembly Act of 1985
practically codified the 1983 ruling in Reyes v. Bagatsing.15 In juxtaposing Sections 4 to
6 of the Public Assembly Act with the pertinent portion of the Reyes case, the Court
elucidated as follows:
x x x [The public official concerned shall] appraise whether there may be valid objections
to the grant of the permit or to its grant but at another public place. It is an indispensable
condition to such refusal or modification that the clear and present danger test be the
standard for the decision reached. If he is of the view that there is such an imminent and
grave danger of a substantive evil, the applicants must be heard on the matter. Thereafter,
his decision, whether favorable or adverse, must be transmitted to them at the earliest
opportunity. Thus if so minded, they can have recourse to the proper judicial authority.16
(italics and underscoring supplied)
In modifying the permit outright, respondent gravely abused his discretion when he did
not immediately inform the IBP who should have been heard first on the matter of his
perceived imminent and grave danger of a substantive evil that may warrant the changing
of the venue. The opportunity to be heard precedes the action on the permit, since the
applicant may directly go to court after an unfavorable action on the permit.1avvphi1

(h) In all cases, any decision may be appealed to the Supreme Court.
(i) Telegraphic appeals to be followed by formal appeals are hereby allowed.
(underscoring supplied)
In Bayan, Karapatan, Kilusang Magbubukid ng Pilipinas (KMP) v. Ermita,13 the Court
reiterated:
x x x Freedom of assembly connotes the right of the people to meet peaceably for
consultation and discussion of matters of public concern. It is entitled to be accorded the
utmost deference and respect. It is not to be limited, much less denied, except on a
showing, as is the case with freedom of expression, of a clear and present danger of a
substantive evil that the state has a right to prevent. Even prior to the 1935 Constitution,
Justice Malcolm had occasion to stress that it is a necessary consequence of our
republican institutions and complements the right of free speech. To paraphrase the
opinion of Justice Rutledge, speaking for the majority of the American Supreme Court in
Thomas v. Collins, it was not by accident or coincidence that the rights to freedom of
speech and of the press were coupled in a single guarantee with the rights of the people
peaceably to assemble and to petition the government for redress of grievances. All these
rights, while not identical, are inseparable. In every case, therefore, where there is a
limitation placed on the exercise of this right, the judiciary is called upon to examine the
effects of the challenged governmental actuation. The sole justification for a limitation on
the exercise of this right, so fundamental to the maintenance of democratic institutions, is
the danger, of a character both grave and imminent, of a serious evil to public safety,

Respondent failed to indicate how he had arrived at modifying the terms of the permit
against the standard of a clear and present danger test which, it bears repeating, is an
indispensable condition to such modification. Nothing in the issued permit adverts to an
imminent and grave danger of a substantive evil, which "blank" denial or modification
would, when granted imprimatur as the appellate court would have it, render illusory any
judicial scrutiny thereof.
It is true that the licensing official, here respondent Mayor, is not devoid of discretion in
determining whether or not a permit would be granted. It is not, however, unfettered
discretion. While prudence requires that there be a realistic appraisal not of what may
possibly occur but of what may probably occur, given all the relevant circumstances, still
the assumption especially so where the assembly is scheduled for a specific public
place is that the permit must be for the assembly being held there. The exercise of such
a right, in the language of Justice Roberts, speaking for the American Supreme Court, is
not to be "abridged on the plea that it may be exercised in some other place."17
(emphasis and underscoring supplied)
Notably, respondent failed to indicate in his Comment any basis or explanation for his
action. It smacks of whim and caprice for respondent to just impose a change of venue
for an assembly that was slated for a specific public place. It is thus reversible error for
the appellate court not to have found such grave abuse of discretion and, under specific
statutory

72

provision, not to have modified the permit "in terms satisfactory to the applicant."18
WHEREFORE, the assailed Decision and Resolution of the Court of Appeals in CA-G.R.
SP No. 94949 are REVERSED. The Court DECLARES that respondent committed grave
SC junks Marantans plea vs. DLSU dean over 2005 Ortigas shooting
February 19, 2014 5:44pm
Tags: hanselmarantan, supremecourt, ortigasshooting
By MARK MERUEAS, GMA News
The Supreme Court has dismissed a petition filed by Superintendent Hansel Marantan
seeking to cite a university dean and another over their public statements on the
November 2005 firefight between a group of policemen led by Marantan and three
suspected car thieves in Ortigas, Pasig.
Marantan, the former Calabarzon police deputy intelligence head, is the police official
tagged in the January 6, 2013 Atimonan bloodbath where 13 people were killed during a
supposed rubout at a checkpoint in Quezon province.
In its decision, the SC did not find merit in Marantan's allegations that Jose Manuel
Diokno, current dean of the De La Salle University Law dean, and his client Cu-Unjieng
La'O violated the sub judice rule when they spoke at a press conference and were
separately interviewed in a television news program in January 201 where they expressed
dismay over the delay in the Ortigas shooting case.
Cu-Unjieng La'O's brother was among the three people killed in the shooting. Diokno
was the legal counsel of the Cu-Unjieng La'O family. Homicide charges were slapped
against Marantan and other policemen implicated in the shooting.
Marantan had claimed that Diokno and Cu-Unjieng La'O's statements were "intemperate
and unreasonable comments on the merits of the criminal cases pending before the
regional trial court."

abuse of discretion in modifying the rally permit issued on June 16, 2006 insofar as it
altered the venue from Mendiola Bridge to Plaza Miranda.
SO ORDERED.
According to the high court, the sub judice rule "restricts comments and disclosures
pertaining to the judicial proceedings in order to avoid prejudging the issue, influencing
the court, or obstructing the administration of justice."
"The Court detects no malice on the face of their statements and the mere restatement of
arguments contained in their various submissions to the court cannot actually, or does not
even tend to, influence the Court," the SC said.
The high court reviewed the comments made by Diokno and Cu-Unjieng La'O and found
that the two were merely stating that the homicide case has yet to be resolved.
"There appears no attack or insult on the dignity of the Court either," the SC said.
The SC said the respondents' comments in the media did not "pose a serious and
imminent threat to the administration of justice," nor did they have "criminal intent to
impede, obstruct or degrade the administration of justice."
The court's power to cite people in contempt should only be used when needed in
pursuing the interest of justice, the SC said.
"The power to punish for contempt, being drastic and extraordinary in its nature, should
not be resorted to unless necessary in the interest of justice. In the present case, such
necessity is wanting," it said.

The SC, however, thought otherwise.

Apart from the Atimonan and Ortigas incidents, Marantan was also involved in the armed
encounter between policemen and suspected robbers in Paraaque City in December
2008 that resulted in the death of a vacationing seaman and her daughter, who were both
caught in the crossfire.

"The supposedly contemptuous statements attributed to respondents Diokno and CuUnjieng LaO are expressions of their opinion as to the state of events as perceived by
them, specifically that Marantan and company should be charged with murder instead of
homicide," the court said in a summary of the decision.
Republic of the Philippines
SUPREME COURT
Manila

There had also been reports that Marantan was also part of police teams that figured in
separate encounters in Bulacan and Cabuyao, Laguna. KBK, GMA News
- See more at: http://www.gmanetwork.com/news/story/349166/news/nation/sc-junksmarantan-s-plea-vs-dlsu-dean-over-2005-ortigas-shooting#sthash.y5Rx7ckd.dpuf
P/SUPT. HANSEL M. MARANTAN, Petitioner,
vs.
ATTY. JOSE MANUEL DIOKNO and MONIQUE CU-UNJIENG LA'O, Respondents.

THIRD DIVISION

RESOLUTION

G.R. No. 205956

February 12, 2014

MENDOZA, J.:

73

Before the Court is a petition to cite respondents in contempt of Court.

Ernesto Manzano

Petitioner P/Supt. Hansel M. Marantan (Marantan) is the respondent in G.R. No.

199462,1 a petition filed on December 6, 2011, but already dismissed although the
disposition is not yet final. Respondent Monique Cu-Unjieng La'O (La O) is one of the
petitioners in the said case, while respondent Atty. Jose Manuel Diokno (Atty. Diokno) is
her counsel therein.

Kung sinasabi nilang carnapper dapat huliin nilang buhay yong mga mahal naming sa
buhay and kinasuhan pero ang ginawa nila, sila mismo na ang nagbigay ng hatol.

G.R. No. 199462 relates to Criminal Case Nos. 146413-PSG, 146414-PSG and 146415PSG, entitled "People of the Philippines v. P/SINSP Hansel M. Marantan, et al.," pending
before the Regional Trial Court of Pasig City, Branch 265 (RTC), where Marantan and
his co-accused are charged with homicide. The criminal cases involve an incident which
transpired on November 7, 2005, where Anton Cu-Unjieng (son of respondent LaO),
Francis Xavier Manzano, and Brian Anthony Dulay, were shot and killed by police
officers in front of the AIC Gold Tower at Ortigas Center, which incident was captured by
a television crew from UNTV 37 (Ortigas incident).
In G.R. No. 199462, LaO, together with the other petitioners, prayed, among others, that
the resolution of the Office of the Ombudsman downgrading the charges from murder to
homicide be annulled and set aside; that the corresponding informations for homicide be
withdrawn; and that charges for murder be filed.
In the meantime, on January 6, 2013, a shooting incident occurred in Barangay Lumutan,
Municipality of Atimonan, Province of Quezon, where Marantan was the ground
commander in a police-military team, which resulted in the death of thirteen (13) men
(Atimonan incident). This encounter, according to Marantan, elicited much negative
publicity for him.
Marantan alleges that, riding on the unpopularity of the Atimonan incident, LaO and her
counsel, Atty. Diokno, and one Ernesto Manzano, organized and conducted a
televised/radio broadcasted press conference. During the press conference, they
maliciously made intemperate and unreasonable comments on the conduct of the Court in
handling G.R. No. 199462, as well as contumacious comments on the merits of the
criminal cases before the RTC, branding Marantan and his co-accused guilty of murder in
the Ortigas incident.

Monique Cu-Unjieng Lao

Sinasabi nila na may kinarnap siya, tinutukan ng baril, hindi magagawa yong kasi kilala
ko siya, anak ko yon e x x x he is already so arrogant because they protected him all these
years. They let him get away with it. So even now, so confident of what he did, I mean
confident of murdering so many innocent individuals.
Atty. Diokno
Despite the overwhelming evidence, however, Supt. Marantan and company have never
been disciplined, suspended or jailed for their participation in the Ortigas rubout, instead
they were commended by their superiors and some like Marantan were even promoted to
our consternation and disgust. Ang problema po e hangang ngayon, we filed a Petition in
the Supreme Court December 6, 2011, humihingi po kami noon ng Temporary
Restraining Order, etc. hangang ngayon wala pa pong action ang Supreme Court yong
charge kung tama ba yong pag charge ng homicide lamang e subalit kitang kita naman na
they were killed indiscriminately and maliciously.
Atty. Diokno
Eight years have passed since our love ones were murdered, but the policemen who killed
them led by Supt. Hansel Marantan the same man who is involved in the Atimonan
killings still roam free and remain unpunished. Mr. President, while we are just humble
citizens, we firmly believe that police rub-out will not stop until you personally intervene.
Ernesto Manzano
Up to this date, we are still praying for justice.
Monique Cu-Unjieng Lao

On January 29, 2013, this interview was featured in "TV Patrol," an ABS-CBN news
program. Marantan quotes2 a portion of the interview, as follows:

Ilalaban namin ito no matter what it takes, we have the evidence with us, I mean
everything shows that they were murdered.

Atty. Diokno

(Emphasis supplied by petitioner)

So ang lumabas din sa video that the actual raw footage of the UNTV is very long. Ang
nangyari, you see the police officers may nilalagay sila sa loob ng sasakyan ng victims na
parang pinapalabas nila that there was a shootout pero ang nangyari na yon e tapos na,
patay na.

Marantan submits that the respondents violated the sub judice rule, making them liable
for indirect contempt under Section 3(d) of Rule 71 of the Rules of Court, for their
contemptuous statements and improper conduct tending directly or indirectly to impede,
obstruct or degrade the administration of justice. He argues that their pronouncements
and malicious comments delved not only on the supposed inaction of the Court in

74

resolving the petitions filed, but also on the merits of the criminal cases before the RTC
and prematurely concluded that he and his co-accused are guilty of murder. It is
Marantas position that the press conference was organized by the respondents for the
sole purpose of influencing the decision of the Court in the petition filed before it and the
outcome of the criminal cases before the RTC by drawing an ostensible parallelism
between the Ortigas incident and the Atimonan incident.
The respondents, in their Comment,3 argue that there was no violation of the sub judice
rule as their statements were legitimate expressions of their desires, hopes and opinions
which were taken out of context and did not actually impede, obstruct or degrade the
administration of justice in a concrete way; that no criminal intent was shown as the
utterances were not on their face actionable being a fair comment of a matter of public
interest and concern; and that this petition is intended to stifle legitimate speech.
The petition must fail.
The sub judice rule restricts comments and disclosures pertaining to the judicial
proceedings in order to avoid prejudging the issue, influencing the court, or obstructing
the administration of justice. A violation of this rule may render one liable for indirect
contempt under Sec. 3(d), Rule 71 of the Rules of Court,4 which reads:
Section 3. Indirect contempt to be punished after charge and hearing. x x x a person
guilty of any of the following acts may be punished for indirect contempt:
xxx
(d) Any improper conduct tending, directly or indirectly, to impede, obstruct, or degrade
the administration of justice[.]
The proceedings for punishment of indirect contempt are criminal in nature.5 This form
of contempt is conduct that is directed against the dignity and authority of the court or a
judge acting judicially; it is an act obstructing the administration of justice which tends to
bring the court into disrepute or disrespect. Intent is a necessary element in criminal
contempt, and no one can be punished for a criminal contempt unless the evidence makes
it clear that he intended to commit it.6
For a comment to be considered as contempt of court "it must really appear" that such
does impede, interfere with and embarrass the administration of justice.7 What is, thus,
sought to be protected is the all-important duty of the court to administer justice in the
decision of a pending case.8 The specific rationale for the sub judice rule is that courts, in
the decision of issues of fact and law should be immune from every extraneous influence;
that facts should be decided upon evidence produced in court; and that the determination
of such facts should be uninfluenced by bias, prejudice or sympathies.91wphi1

of their decisions or otherwise obstruct the administration of justice. As important as the

maintenance of freedom of speech, is the maintenance of the independence of the
Judiciary. The "clear and present danger" rule may serve as an aid in determining the
proper constitutional boundary between these two rights.10
The "clear and present danger" rule means that the evil consequence of the comment
must be "extremely serious and the degree of imminence extremely high" before an
utterance can be punished. There must exist a clear and present danger that the utterance
will harm the administration of justice. Freedom of speech should not be impaired
through the exercise of the power of contempt of court unless there is no doubt that the
utterances in question make a serious and imminent threat to the administration of justice.
It must constitute an imminent, not merely a likely, threat.11
The contemptuous statements made by the respondents allegedly relate to the merits of
the case, particularly the guilt of petitioner, and the conduct of the Court as to its failure
to decide G.R. No. 199462.
As to the merits, the comments seem to be what the respondents claim to be an
expression of their opinion that their loved ones were murdered by Marantan. This is
merely a reiteration of their position in G.R. No. 199462, which precisely calls the Court
to upgrade the charges from homicide to murder. The Court detects no malice on the face
of the said statements. The mere restatement of their argument in their petition cannot
actually, or does not even tend to, influence the Court.
As to the conduct of the Court, a review of the respondents' comments reveals that they
were simply stating that it had not yet resolved their petition. There was no complaint,
express or implied, that an inordinate amount of time had passed since the petition was
filed without any action from the Court. There appears no attack or insult on the dignity
of the Court either.
"A public utterance or publication is not to be denied the constitutional protection of
freedom of speech and press merely because it concerns a judicial proceeding still
pending in the cou1is, upon the theory that in such a case, it must necessarily tend to
obstruct the orderly and fair administration of justice."12 By no stretch of the imagination
could the respondents' comments pose a serious and imminent threat to the administration
of justice. No criminal intent to impede, obstruct, or degrade the administration of justice
can be inferred from the comments of the respondents.
Freedom of public comment should, in borderline instances, weigh heavily against a
possible tendency to influence pending cases.13 The power to punish for contempt, being
drastic and extraordinary in its nature, should not be resorted to unless necessary in the
interest of justice.14 In the present case, such necessity is wanting.
WHEREFORE, the petition is DISMISSED.

The power of contempt is inherent in all courts in order to allow them to conduct their
business unhampered by publications and comments which tend to impair the impartiality

SO ORDERED.

75

Roth v. United States, 354 U.S. 476 (1957),[1] along with its companion case Alberts v.
California, was a landmark case before the United States Supreme Court which redefined
the Constitutional test for determining what constitutes obscene material unprotected by
the First Amendment.
Contents
1 Prior history
2 The case
3 The legacy of Roth v. United States
4 See also
5 References
6 Research resources
7 External links
Prior history
Under the common law rule that prevailed before Roth, articulated most famously in the
1868 English case Hicklin v. Regina, any material that tended to "deprave and corrupt
those whose minds are open to such immoral influences" was deemed "obscene" and
could be banned on that basis. Thus, works by Balzac, Flaubert, James Joyce and D. H.
Lawrence were banned based on isolated passages and the effect they might have on
children.

not protected by the First Amendment and thus upheld the convictions of Roth and
Alberts for publishing and sending obscene material through the mail.
Congress could ban material, "utterly without redeeming social importance," or in other
words, "whether to the average person, applying contemporary community standards, the
dominant theme of the material taken as a whole appeals to the prurient interest."
Chief Justice Earl Warren worried that "broad language used here may eventually be
applied to the arts and sciences and freedom of communication generally," but, agreeing
that obscenity is not constitutionally protected, concurred only in the judgment.
Justices Hugo Black and William O. Douglas, First Amendment "literalists," dissented in
Roth, arguing vigorously that the First Amendment protected obscene material.
Justice John Marshall Harlan II dissented in Roth, involving a federal statute, but
concurred in Alberts, involving a state law, on the grounds that while states had broad
power to prosecute obscenity, the federal government did not.
The legacy of Roth v. United States
In Memoirs v. Massachusetts (1966),[2] a plurality of the Court further redefined the
Roth test by holding unprotected only that which is "patently offensive" and "utterly
without redeeming social value," but no opinion in that case could command a majority
of the Court either, and the state of the law in the obscenity field remained confused.

Samuel Roth, who ran a literary business in New York City, was convicted under a
federal statute criminalizing the sending of "obscene, lewd, lascivious or filthy" materials
through the mail for advertising and selling a publication called American Aphrodite ("A
Quarterly for the Fancy-Free") containing literary erotica and nude photography. David
Alberts, who ran a mail-order business from Los Angeles, was convicted under a
California statute for publishing pictures of "nude and scantily-clad women." The Court
granted Certiorari and affirmed both convictions.
The case

Pornography and sexually oriented publications proliferated as a result of the Warren

Court's holdings, the "Sexual Revolution" of the 1960s flowered, and pressure
increasingly came on the Court to allow leeway for state and local governments to crack
down on obscenity. During his ill-fated bid to become Chief Justice, Justice Abe Fortas
was attacked vigorously in Congress by conservatives such as Strom Thurmond for
siding with the Warren Court majority in liberalizing protection for pornography. In his
1968 presidential campaign, Richard Nixon campaigned against the Warren Court,
pledging to appoint "strict constructionists" to the Supreme Court.

Roth came down as a 6-3 decision, with the opinion of the Court authored by William J.
Brennan, Jr.. The Court repudiated the Hicklin test and defined obscenity more strictly, as
material whose "dominant theme taken as a whole appeals to the prurient interest" to the
"average person, applying contemporary community standards." Only material meeting
this test could be banned as "obscene." However, Brennan reaffirmed that obscenity was

In Miller v. California (1973), a five-person majority agreed for the first time since Roth
as to a test for determining constitutionally unprotected obscenity, thereby superseding
the Roth test. By the time Miller was considered in 1973, Justice Brennan had abandoned
the Roth test and argued that "no formulation of this Court, the Congress, or the States
can adequately distinguish obscene material unprotected by the First Amendment from
protected expression."[3]
THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee,
vs.
GO PIN, defendant-appellant.

SUPREME COURT
Manila
EN BANC
G.R. No. L-7491

August 8, 1955

J. Perez Cardenas and Castao and Ampil for defendant.

Office of the Solicitor General Querube C. Makalintal and Solicitor Jesus A. Avancea
for appellee.

76

MONTEMAYOR, J.:
Go Pin, an alien and a Chinese citizen, was charged with a violation of Article 201 of the
Revised Penal Code for having exhibited in the City of Manila at the Globe Arcade, a
recreation center, a large number of one-real 16-millimeter films about 100 feet in length
each, which are allegedly indecent and/or immoral. At first, he pleaded not guilty of the
information but later was allowed by the court to change his plea to that of guilty which
he did. Not content with the plea of guilty the trial court had the films in question
projected and were viewed by it in order to evaluate the same from the standpoint of
decency and morality. Thereafter, and considering the plea of guilty entered by the
accused, and the fact that after viewing the films the trial court noted only a slight degree
of obscenity, indecency and immorality in them, it sentenced the appellant to 6 months
and 1 day of prision correcciconal and to pay a fine of P300, with subsidiary
imprisonment in case of insolvency, and to pay the costs. He is now appealing from the
decision.
Go Pin does not deny his guilt but he claims that under the circumstances surrounding the
case, particularly the slight degree of obscenity, indecency and immorality noted by the
court in the films, the prison sentence should be eliminated from the penalty imposed. His
counsel brings to our attention some authorities to the effect that paintings and pictures of
women in the nude, including sculptures of that kind are not offensive because they are
made and presented for the sake of art. We agree with counsel for appellant in part. If
such pictures, sculptures and paintings are shown in art exhibits and art galleries for the
cause of art, to be viewed and appreciated by people interested in art, there would be no
offense committed. However, the pictures here in question were used not exactly for art's
sake but rather for commercial purposes. In other words, the supposed artistic qualities of
said pictures were being commercialized so that the cause of art was of secondary or
minor importance. Gain and profit would appear to have been the main, if not the
G.R. No. 80806 October 5, 1989LEO PITA doing business under the name and style of
PINOY PLAYBOY, petitioner,vs.THE COURT OF APPEALS, RAMON BAGATSING,
and NARCISO CABRERA, respondents.FACTS:On December 1 and 3, 1983, pursuing
an Anti-Smut Campaign initiated by the Mayorof the City ofManila, Ramon D.
Bagatsing, elements of the Special Anti-Narcotics Group, Auxilliary ServicesBureau,
Western Police District, INP of the Metropolitan Police Force of Manila,seized
andconfiscated from dealers, distributors, newsstand owners and peddlers along Manila
sidewalks,magazines, publications and other reading materials believed to be obscene,
pornographic andindecent and later burned the seized materials in public at the University
beltalong C.M. RectoAvenue, Manila, in the presence of Mayor Bagatsing and several
officers and members of variousstudent organizations.Among the publications seized, and
later burned, was "Pinoy Playboy" magazines published and coeditedby plaintiff Leo
Pita. Plaintiff filed several petition for preliminary injuction and filed an Urgent Motion
for issuance of a temporary restraining order against indiscriminate seizure, confiscation
and burning of plaintiff's "Pinoy Playboy" Magazines,pending hearing on the petition for
preliminary injunction in view of Mayor Bagatsing's pronouncementto continue the AntiSmut Campaign. The Court granted the temporary restrainingorder.Defendant Mayor

exclusive consideration in their exhibition; and it would not be surprising if the persons
who went to see those pictures and paid entrance fees for the privilege of doing so, were
not exactly artists and persons interested in art and who generally go to art exhibitions
and galleries to satisfy and improve their artistic tastes, but rather people desirous of
satisfying their morbid curiosity and taste, and lust, and for love for excitement, including
the youth who because of their immaturity are not in a position to resist and shield
themselves from the ill and perverting effects of these pictures.
Before rendering sentence the trial court asked the prosecuting attorney for this
recommendation and said official recommendation that "considering that the accused Go
Pin is an alien who is supposed to maintain a high degree of morality while he is in the
Philippines", and "considering that he engaged in a very nefarious trade, which
degenerates the moral character of our youth, who are usually the regular customers of
his trade", he recommended that appellant be sentenced to 2 years imprisonment and a
fine of P300. Notwithstanding this recommendation, the trial court as already said,
probably considering its opinion that the pictures were not so obscene, indecent and
immoral but only slightly so, gave appellant only 6 months and 1 day of prision
correccional in addition to P300 fine.
The penalty imposed by the trial court is within the range provided by Article 201 of the
Revised Code. We are satisfied that in imposing the penalty the trial court made use of its
sound discretion, and we find no reason for modifying the said sentence. The Solicitor
General in his brief even urges that we recommend to the proper authorities that
deportation proceedings be instituted against appellant as an undesirable alien. The trial
court could have done this but did not do so, believing perhaps that it was warranted. We
repeat that we do not feel justified in interfering with the discretion of the trial court in
the imposition of the sentence in this case.
In view of the foregoing, the decision appealed from is affirmed, with costs.
Bagatsing admitted the confiscation and burning of obscence reading materials on
December 1 and 3, 1983, but claimed that the said materials were voluntarily surrendered
by the vendors to the police authorities, and that thesaid confiscation and seizure was
(sic) undertaken pursuant to P.D. No. 960, asamended by P.D. No. 969, which amended
Article 201 of the Revised Penal Code.ISSUE:whether or not the defendants and/or their
agents can without acourt order confiscate or seize plaintiffs magazine before any judicial
findingis made on whether saidmagazine is obscene or notHELD:(tackled the preliminary
issue on defining obscenity:As the Court declared, the issue is a complicated one, in
which the finelines have neither been drawn nor divided.It is easier said than done to say,
indeed, that if "the pictures here in question were used not exactly for art's sakebut rather
for commercial purposes," the pictures are not entitled to any constitutional
protection.)NO. The Court is not convinced that the private respondents have shown the
required proof to justify a ban and towarrant confiscation of the literature for which
mandatory injunction had been sought below. First of all, they werenot possessed of a
lawful court order: (1) finding the said materials to be pornography, and (2) authorizing
them tocarry out a search and seizure, by way of a search warrant

77

Allinanutshelll.wordpress.com
Primicias vs. Fugoso [L-18000. Jan 27, 1948]
Doctrine:
Clear and Present Danger Test, Freedom of Assembly and Expression
FACTS:
This case is an action of mandamus instituted by petitioner Cipriano Primicias, manager
of theCoalesced Minority Parties, against respondent Manila City Mayor, Valeriano
Fugoso, to compel thelatter to issue a permit for the holding of a public meeting at the
Plaza Miranda on Nov 16, 1947. The
petitioner requested for a permit to hold a peaceful public meeting.
However, the respondent refused
to issue such permit because he found that there is a reasonable ground to believe,
basing upon
previous utterances and upon the fact that passions, specially on the part of the losing
groups, remainsbitter and high, that similar speeches will be delivered tending to
undermine the faith and confidence of
the people in their government, and in the duly peace and a disruption of public order.
Respondentbased his refusal to the Revised Ordinances of 1927 prohibiting as an offense
against public peace, andpenalizes as a misdemeanor, "any act, in any public place,
meeting, or procession, tending to disturb thepeace or excite a riot; or collect with other
persons in a body or crowd for any unlawful purpose; ordisturb or disquiet any
congregation engaged in any lawful assembly." Included herein is Sec. 1119, Freeuse of
Public Place.
ISSUE:
Whether or not the Mayor has the right to refuse to issue permit hence violating freedom
of assembly.
HELD:

PHILIPPINE BLOOMING MILLS EMPLOYMENT ORGANIZATION (PBMEO) VS.

PHILIPPINE BLOOMING MILLS CO., INC. G.R. No. L-31195 June 5, 1973
FACTS: Philippine Blooming Mills Employees Organization (PBMEO) decided to stage
a mass demonstration at Malacaang in protest against alleged abuses of the Pasig police
and that they informed the Philippine Blooming Mills Inc. (Company) of their proposed
demonstration. The company called a meeting with the officers of PBMEO after learning
the about the planned mass. During the meeting, the planned demonstration was
confirmed by the union, explaining further that the demonstration has nothing to do with
the Company because the union has no quarrel or dispute with Management. It was
stressed out that the demonstration was not a strike against the company but was in fact
an exercise of the laborers inalienable constitutional right to freedom of expression,
freedom of speech and freedom for petition for redress of grievances. Company informed
PBMEO that the demonstration is an inalienable right of the union guaranteed by the
Constitution but emphasized, however, that any demonstration for that matter should not

The answer is negative. Supreme Court states that the freedom of speech, and to
peacefullyassemble and petition the government for redress of grievances, are
fundamental personal rights of thepeople recognized and guaranteed by the constitution.
However, these rights are not absolute. They can
be regulated under the states police power
that they should not be injurious to the equal enjoymentof others having equal rights, nor
to the rights of the community or society.The Court holds that there can be 2
interpretations of Sec. 1119: 1) the Mayor of the City of Manila isvested with unregulated
discretion to grant or refuse, to grant permit for the holding of a lawfulassembly or
meeting, parade, or procession in the streets and other public places of the City of
Manila;and 2) The right of the Mayor is subject to reasonable discretion to determine or
specify the streets orpublic places to be used with the view to prevent confusion by
overlapping, to secure convenient use of the streets and public places by others, and to
provide adequate and proper policing to minimize therisk of disorder.The court favored
the second construction since the first construction is tantamount to authorizing theMayor
to prohibit the use of the streets. Under our democratic system of government no such
unlimitedpower may be validly granted to any officer of the government, except perhaps
in cases of nationalemergency. It is to be noted that the permit to be issued is for the use
of public places and not for theassembly itself.The Court holds that the assembly is
lawful and thus cannot be struck down. Fear of serious injurycannot alone justify
suppression of free speech and assembly. It is the function of speech to free menfrom the
bondage of irrational fears. To justify suppression of free speech there must be
reasonableground to fear that serious evil will result if free speech is practiced. There
must be reasonable groundto believe that the danger apprehended is imminent. There
must be reasonable ground to believe thatthe evil to be prevented is a serious one . The
fact that speech is likely to result in some violence or in
Allinanutshelll.wordpress.com
destruction of property is not enough to justify its suppression. There must be the
probability of seriousinjury to the state.PETITION IS GRANTED.
unduly prejudice the normal operation of the Company. For which reason, the Company
warned the PBMEO representatives that workers who without previous leave of absence
approved by the Company, particularly , the officers present who are the organizers of the
demonstration, who shall fail to report for work shall be dismissed. Another meeting was
convoked Company. It reiterated and appealed to the PBMEO representatives that while
all workers may join the Malacaang demonstration, those from the 1st and regular shifts
should not absent themselves to participate, otherwise, they would be dismissed. Since it
was too late to cancel the plan, the rally took place and the
officers of the PBMEO were eventually dismissed for a violation of the No Strike and
No Lockout clause of their Collective Bargaining
The lower court decided in favor of the company and the officers of the PBMEO were
found guilty of bargaining in bad faith. Their motion for reconsideration was
subsequently denied by the Court of Industrial Relations for being filed two days late.
ISSUES: 1.
Whether the workers who joined the strike violated the CBA 2.

78

Whether the company is guilty of unfair labor practice for dismissing its employees
RULING: 1.
No. The rights of free expression, free assembly and petition, are not only civil rights but
also political rights essential to man's enjoyment of his life, to his happiness and to his
full and complete fulfillment. Thru these freedoms the citizens can participate not merely
in the periodic establishment of the government through their suffrage but also in the
administration of public affairs as well as in the discipline of abusive public officers. The
citizen is accorded these rights so that he can appeal to the appropriate governmental
officers or agencies for redress and protection as well as for the imposition of the lawful
sanctions on erring public officers and employees.
While the Bill of Rights also protects property rights, the primacy of human
rights
over
property rights is recognized. Because these freedoms are "delicate
and
vulnerable, as well as
supremely precious in our society" and the "threat
of
sanctions may deter their exercise almost as potently as the actual application
of sanctions," they "need breathing space to survive," permitting government
regulation only "with narrow specificity." Property and property rights can be
lost
thru prescription; but human rights are imprescriptible. If human rights are
extinguished by the passage of time, then the Bill of Rights is a useless
attempt to limit the power of
government and ceases to be an efficacious shield
[G.R. Nos. 117267-117310. August 22, 1996]
GENEROSO N. SUBAYCO, ALFREDO T. ALCALDE, and ELEUTERIO O. IBAEZ,
petitioners, vs. SANDIGANBAYAN and PEOPLE OF THE PHILIPPINES, respondents.
DECISION
PUNO, J.:
The year was 1985, the month, September. The Marcos government was fast sliding into
its sunset days. Yet, it was again set to celebrate with pomp, September 21, the day it
proclaimed martial law some thirteen (13) years ago. The people, however, were not in
the mood to be joyous. They planned massive public protests in different parts of the
country. One of the biggest protest rallies was blueprinted as a Welga ng Bayan at
Escalante, Negros Occidental. It ended in tragedy which will not easily recede in the mist
of our history. Twenty (20) demonstrators were shot dead and twenty-four (24) others
were wounded by the military and para-military forces of the Marcos government. Of
several persons charged with various counts of murder and frustrated murder, only three
(3) were convicted Generoso N. Subayco, Alfredo T. Alcalde and Eleuterio O. Ibaez were
convicted by the respondent Sandiganbayan. They now come to this Court insisting on
their innocence and pleading to be set free. We deny their petition and we warn our
military and police authorities that they cannot shoot people who are exercising their
right to peacefully assemble and petition the government for redress of grievance.[1]

against the
tyranny of officials, of
majorities, of the influential and powerful,
and of oligarchs
political, economic or
otherwise.
In the hierarchy of civil liberties, the rights of free expression and of assembly
occupy a
preferred position as they are essential to the preservation
and
vitality of our civil and political
institutions; and such priority "gives these
liberties the sanctity and the sanction not permitting
dubious intrusions."
The freedoms of speech and of the press as well as
of peaceful assembly
and of petition for redress of
grievances are absolute when directed against
public officials or "when exercised in relation to our right to choose the men and
women by whom we shall be
governed.
2.
Company is the one guilty of unfair labor practice. Because the refusal on its
part to permit all its employees and workers to join the mass demonstration against
alleged police abuses and the subsequent separation of the eight (8) workers from the
service constituted an unconstitutional restraint on the freedom of expression, freedom of
assembly and freedom petition for redress of grievances, the company committed an
unfair labor practice defined in Section 4(a-1) in relation to Section 3 of Republic Act No.
875, otherwise known as the Industrial Peace Act. Section 3 of Republic Act No. 8
guarantees to the employees the right "to engage in concert activities for ... mutual aid or
protection"; while Section 4(a-1) regards as an unfair labor practice for an employer
interfere with, restrain or coerce employees in the exercise their rights guaranteed in
Section Three."
As aforestated, twenty (20) demonstrators were killed and twenty-four (24) others were
seriously wounded by gunshots during the Welga ng Bayan held on September 20, 1985
at Escalante, Negros Occidental. Twenty (20) counts of Murder and twenty-four (24)
counts of Frustrated Murder[2] were filed with respondent Sandiganbayan against those
allegedly responsible for the death and injuries of the victims. Charged were several
civilian government officials, personnel from the Philippine Constabulary and the
Integrated National Police, and from the para-military group Civilian Home Defense
Force (CHDF), namely:
1. Ex-Mayor Braulio P. Lumayno,
2. Ex-Governor Armando C. Gustilo,[3]
3. Danilo Nonoy Jimenez,
4. Capt. Modesto E. Sanson, Jr.,
5. CIC Alfredo T. Alcalde,
6. CIC Eleuterio O. Ibaez,
7. C2C Rufino L. Lerado,
8. C2C Carlos L. Santiago,

79

9. T/Sgt. Generoso N. Subayco,

32. Chdf Teddy Magtubo,

10. S/Sgt. Quirino L. Amar,

33. Chdf Elias Torias,

11. Sgt. Rolando A. Braa,

34. Chdf Jose Boy Parcon,

12. P/Capt. Rafael C. Jugan,

35. Chdf Jeremias Villanueva,

13. P/Pfc. Mariano C. Juarez, Jr.,

36. Chdf Dante P. Diaz,

14. P/Pfc. Alfonso Birao,

37. Chdf Amador O. Villa,

15. P/Pfc. Wilfredo Carreon,

38. Chdf Antonio A. Caete,

16. P/Pfc. Rogelio Pea,

39. Chdf Jimmy Mayordomo,

17. P/Pfc. Iluminado D. Guillen,

40. Chdf Jerry L. Espinosa,

18. Pat. Ludovico Cajurao,

41. Chdf Francisco A. Morante,

19. Pat. Luisito T. Magalona,

42. Chdf Bernie C. Muoz,

20. Pat. Alex Francisco M. Liguaton,

43. Chdf Ernesto V. Olaera,

21. Pat. Porfirio Q. Sypongco,

44. Chdf Dione L. Sesbreno, and

22. Pat. Prudencio M. Panagsagan,

45. Chdf Alfredo A. Quinatagcan alias Pidong Bagis.

23. Pat. Danilo P. Antones,

All of the accused were part of the police-military group which undertook the dispersal
operation during the rally.

24. Pat. Elmer Sinadjan,

25. Pat. Grant L. Batomalaque,

Only twenty-eight (28) of the above accused were arrested and tried as the others
remained at large. The twenty-eight (28) were all members of the Philippine
Constabulary and the Integrated National Police, viz:

26. Pat. Lino F. Mercado,

1. Modesto Sanson,
27. F/Cpl. Casimiro Pandongan,
2. Alfredo Alcalde,
28. Fmn. Gene Legaspina,
3. Eleuterio Ibaez,
29. Fmn. Giomar D. Gale,
4. Rufino Lerado,
30. Fmn. Edwin T. Gustilo,
5. Carlos Santiago,
31. Fmn. Joel B. Rosal,

80

6. Generoso Subayco,
7. Quirino Amar,
8. Rolando Braa,

Upon conclusion of the trial, respondent court acquitted all the accused except petitioners
Alfredo Alcalde, Eleuterio Ibaez and Generoso Subayco. The dispositive portion of the
Decision held:

9. Rafael Jugan,

WHEREFORE, for all the foregoing, the Court finds the evidence against the following
accused to be insufficient to establish their liability in the instant charges and therefore
ACQUITS them in all the herein cases:

10. Mariano Juarez,

1. Modesto Sanson

11. Alfonso Birao,

2. Rufino Leado

12. Wilfredo Carreon

3. Carlos Santiago

13. Rogelio Pea,

4. Quirino Amar

14. Iluminado Guillen,

5. Rolando Braa

15. Ludovico Cajurao,

6. Rafael Jugan

16. Luisito Magalona,

7. Mariano Juarez

17. Alex Francisco Liguaton,

8. Alfonso Birao

18. Porfirio Sypongco,

9. Wilfredo Carreon

19. Prudencio Panagsagan,

10. Rogelio Pea

20. Danilo Antones,

11. Iluminado Guillen

21. Elmer Sinadjan,

12. Ludivico Cajurao

22. Grant Batomalaque,

13. Luisito Magalona

23. Casimiro Pandongan,

14. Alex Francisco Liguaton

24. Gene Legaspina,

15. Porfirio Sypongco

25. Socrates Jarina,

16. Prudencio Panagsagan

26. Giomar Gale,

17. Danilo Antones

27. Edwin Gustilo, and

18. Elmer Sinadjan

28. Joel Rosal.

19. Grant Batomalaque

81

20. Casimiro Pandongan

of Michael Dayanan in No. 12073

21. Gene Legaspina

of Maria Luz Mondejar in No. 12074

22. Socrates Jarina

of Aniano Ornopia in No. 12076

23. Giomar Gale

of Nenita Orot in No. 12077

24. Edwin Gustilo

of Johnny Suarez in No. 12078

25. Joel Rosal, and

of Ronilo Sta. Ana in No. 12080

26. Francisco Morante.

of Angelina Lape in No. 12081

The same evidence, however, has established the guilt beyond reasonable doubt of the
following accused who stood trial:

1) imprisonment for an indeterminate period ranging from a minimum of seventeen (17)

years and one (1) day of reclusion temporal to a maximum of reclusion perpetua for
EACH of the above sixteen cases;

1. Alfredo Alcalde
2. Eleuterio Ibaez, and
3. Generoso Subayco
and the Court hereby renders judgment CONVICTING them and imposing upon them the
corresponding penalties, to wit:

2) to jointly pay indemnity to the heirs for the death of the above mentioned victims at
P50,000.00 for each victim, or a total of P800,000.00;
3) to jointly pay moral damages to the heirs of the above victims at P20,000.00 for each
victim of a total of P320,000.00;
B. FOR FRUSTRATED MURDER for the injuries sustained under the following
Criminal Cases:

A. FOR MURDER in the following Criminal Cases:

No. 12039 by Buenaventura Jaravelo
of Rodolfo Montealto in No. 12063
No. 12041 by Alejandro Bocabal
of Claro Monares in No. 12064
No. 12042 by Elias Hermogenes
of Edgardo Salili in No. 12065
No. 12046 by Luvimin Leones
of William Alegre in No. 12066
No. 12047 by Gloven Gabrido
of Rovena Franco in No. 12067
No. 12051 by Henry Sernal
of Cesar Tejones in No. 12067
No. 12053 by Virgirita Mabuyao
of Juvely Jaravelo in No. 12070
No. 12059 by Federico Dogomeo
of Rodney Demigilio in No. 12071
No. 12060 by Wenefreda Loquinario
of Manuel Tan in No. 12072
No. 12062 by Luzviminda Gemola

82

No. 12045 of Renato Tapel

1) imprisonment for an indeterminate period ranging from a minimum of eight (8) years
and one (1) day of prision mayor to a maximum of fourteen (14) years, ten (10) months
and twenty (20) days of reclusion temporal for EACH of the above ten (10) cases;

No. 12048 of Joel Quiamco

No. 12049 of Magdalena Hemola

2) to jointly pay actual damages incurred only by the following victims, as follows:
No. 12050 of Lucia Ravanes
Alejandro Bocabal (No. 12040) - P800.00
No. 12052 of Ernesto Caro
Luzminda Gemola (No. 12062) - P700.00
No. 12054 of Renato Saratobias
or a total of P1,500.00; no other damage having been actually proven at trial;
No. 12055 of Elisa Zarraga
3) to jointly pay moral damages to the following victims:
No. 12056 of Julio Iwayan
Buenaventura Jaravelo (No.12039) P10,000.00
No. 12057 of Nelson Cabahug
Alejandro Bocabal (No. 12040) P10,000.00
No. 12058 of Felix Almonia
Elias Hermogenes (No. 12042) P10,000.00
No. 12061 of Abundia Caraat-Petrano
Luvimin Leones (No. 12046) P10,000.00
Gloven Gabrido (No. 12047) P10,000.00

1) imprisonment for an indeterminate period ranging from a minimum of four (4) years,
one (1) month and one (1) day of prision correccional to a maximum of eight (8) years of
prision mayor for EACH of the above fourteen (14) cases;

Henry Sernal (No. 12051) P10,000.00

2) to jointly pay actual damages incurred by the victims, as follows:
Virginita Mabuyao (No. 12053) P10,000.00
Celso Saburdo (No. 12041) P800.00
Federico Dogomeo (No. 12059) P15,000.00
Renato Tapel (No. 12045) P300.00
Wenefrida Loquinario (No. 12060) P15,000.00
Joel Quiamco (No. 12048) P15,000.00
Luzminda Gemola (No. 12062) P10,000.00
Lucia Ravanes (No. 12050) P2,000.00
or a total of P110,000.00.
Renato Saratobias (No. 12054) P2,000.00
C. FOR ATTEMPTED MURDER for the injuries sustained under the following Criminal
Cases:

Elisa Zarraga (No. 12055) P300.00

No. 12041 of Celso Saburdo

Nelson Cahabug (No. 12057) P2,000.00

No. 12043 of Eduardo Latosa

Abundia Petrano (No. 12061) P200.00

No. 12044 of Nelly Artajo

or a total of P22,600.00

83

3) to jointly pay moral damages to the victims at P5,000.00 for each of the victims in the
fourteen cases or a total of P70,000.00.
These three accused, namely, Alfredo Alcalde, Eleuterio Ibaez and Genoroso Subayco
are, however, ACQUITTED in the four murder cases (No. 12069, No. 12075, No. 12079
and No. 12082 charging the deaths of Alex Lobatos, Rodolfo Mahinay, Rogelio
Magallen, Jr. and Norberto Locanilao, respectively) for failure of the prosecution to prove
their guilt beyond reasonable doubt.
LET an alias warrant of arrest issue for the following accused who, up to this time, had
eluded arrest:
1. Ex-Mayor Braulio Lumayno

In the meantime, the cases with respect to the above-named accused who remain at large
shall be archived pending their arrest or voluntary submission to the jurisdiction of this
Court.
SO ORDERED.[4]
Petitioners now come before us by way of certiorari raising the following issues:
1. Whether respondent Sandiganbayan committed serious error of law in convicting the
petitioners based merely on alleged implied conspiracy to perpetrate the crimes charged
and not on clear, positive and convincing proof of conspiracy; and

2. Danilo Nonoy Jimenez

2. Whether respondent Sandiganbayan committed serious error of law in convicting the

petitioners despite that the quantum of evidence required for a finding of guilt that is
proof beyond reasonable doubt was not satisfied.[5]

3. Pat. Lino F. Mercado

The petition must fail.

4. CHDF Teddy G. Magtubo

The undisputed facts are summarized by the respondent court in its exhaustive Decision,
as follows:

5. CHDF Elias Torias

xxx xxx xxx
6. CHDF Jose Boy Parcon
7. CHDF Jeremias Villanueva
8. CHDF Dante P. Diaz
9. CHDF Amador O. Villa

There was a rally held at Escalante, Negros Occidental that started on September 18,
1985. It was planned to go on until September 21, 1985, the anniversary of the
proclamation of martial law by then President Marcos. This rally was participated in by
members of the Bagong Alyansang Makabayan or BAYAN, the National Federation of
Sugar Workers, the Kristianong Katilingban, the CYO, the KMU, the League of Filipino
Students, and others. It was spearheaded by the BAYAN whose leader at Escalante was
Rolando Ponseca.

10. CHDF Antonio A. Caete

11. CHDF Jimmy Mayordomo
12. CHDF Jerry L. Espinosa
13. CHDF Bernie C. Muoz
14. CHDF Ernesto V. Olaera
15. CHDF Dione L. Sebreno, and
16. CHDF Alfredo M. Quinatagcan alias Pidong Baguis.

The rally was without permit from the local authorities, although the plan was not kept
secret from them. In fact, this planned demonstration was taken up at a conference called
by the Provincial Command and attended by the accused Capt. Sanson of the 334th PC
Company stationed at Sagay, among other unit commanders. At that meeting, the
operational guidelines were laid down on how to deal with the planned demonstration as
well as with contingencies in connection therewith. The local command headed by Capt.
Sanson had met with the leaders of the projected Welga ng Bayan in order to agree on
ground rules for the conduct of the rally.
The Welga ng Bayan started as scheduled on September 18, 1985. It started with a torch
parade that evening. The demonstrators came to Escalante and stayed, occupying the
national highway in front of the Rural Bank of Escalante and the other converging point
at the market site. By the 20th, the crowd was at its thickest. Estimates of the attendance
therein ranged from 3,000 to 10,000.

84

At around noontime on that day, there were speeches delivered by speakers from among
the demonstrators using the public address system on an improvised platform, addressing
the crowd assembled in front of the Rural Bank. The crowd also shouted anti-Marcos and
anti-Military slogans, among others.
Capt. Sanson had been constantly apprised of the activities of the demonstrators by
reports coming from Capt. Rafael Jugan, the Station Commander of the INP at Escalante.
He was informed by the latter that the rallyists had failed to honor their commitment not
to barricade the entire portion of the national highway so as not to obstruct traffic. He
was likewise informed that the demonstrators were collecting money from passing
motorists and that the demonstrators were becoming unruly.
Capt. Sanson in turn reported these pieces of information to the Provincial Command. As
he was in charge of the area, Capt. Sanson took it upon himself to personally talk to
Ponseca, when he believed that his Station Commander had failed to get in touch with
Ponseca, to remind him of his commitment. After Ponseca had failed to effect a dispersal
of the crowd or to open at least half of the road to allow passage to vehicles, he had
prepared a dispersal operation and had called fire-fighting personnel and equipment from
the towns of Sagay and Escalante, as well as from the cities of San Carlos and Cadiz. He
had also summoned his men under Capt. Jugan of the Escalante INP, the CHDF headed
by Sgt. Subayco and another team headed by Lt. Supaco.
After a last-ditch effort to peacefully disperse the crowd by Ponseca through a letter to
the demonstrators in front of the Rural Bank had failed, the dispersal operation by Capt.
Sanson began. Four firetrucks were dispatched to the crowd of demonstrators, two of
them the Cadiz and Escalante firetrucks towards the demonstrators massed in front of the
Rural Bank of Escalante. These hosed the demonstrators with water but even after the
water from them had been exhausted, the demonstrators stayed put. Capt. Sanson then
ordered the throwing of teargas to the demonstrators by two of his men, Amar and
Mercado. The tear gas caused the demonstrators to lie face down on the ground; they
persisted in their places rather than disperse. Then, a single shot rang out followed by
successive gunfire from different directions. As one witness had described it, it was like
New Years Eve (TSN, February 7, 1994, testimony of accused CHDF Morante). This
firing lasted for a few minutes.
Capt. Sanson had been heard by some of the witnesses to have shouted Stop firing
repeatedly and, after some time, the firing had stopped, but not soon enough for men and
women from the rallyists group who died and others who were wounded as a result of the
gunfire.[6]
It was the thesis of the prosecution that the whole dispersal operation was an unlawful
conspiracy, that the firing at the crowd was part of the dispersal operation, and that all
those who took part in the dispersal operation should be held liable for each death and
each injury that resulted therefrom.[7]

The accused denied the existence of conspiracy. Subayco and Ibaez claimed that they
merely fired into the air but not toward the crowd. On his part, Alcalde admitted that he
fired his weapon to prevent the rallyists from climbing the Cadiz City firetruck.[8]
In its Decision, the respondent court ruled there was no sufficient evidence to prove
general conspiracy of the forty-five (45) accused as alleged by the prosecution.[9] It then
examined the individual acts of the accused during the dispersal operation to determine
their liability for the death and injuries of the victims. It found implied conspiracy only
on the part of all the accused who fired at the demonstrators.
Per finding of the respondent Sandiganbayan, the firing came from the Cadiz City
firetruck and the jeep which witnesses referred to as a weapons carrier. After the rallyists
were hosed with water, the Cadiz City firetruck attempted to move back, but was trapped
by the logs and rocks ostensibly put by the rallyists under its wheels. The weapons carrier
was then maneuvered behind the Cadiz City firetruck. Thereafter, teargas canisters were
lobbed at the rallyists. Jovy Jaravelo, a rallyist, picked up one of the canisters and threw it
back where it came from. Hell broke loose. CHDF Alfredo Quinatagcan (a.k.a. Pidong
Bagis) shot Jaravelo. Successive gunfire followed. Several witnesses saw the CHDF
personnel and the PC men on board the Cadiz City firetruck and the weapons carrier fire
their guns. Some fired into the air while the others directed their gun shots at the rallyists.
When the dust settled down, twenty (20) of the demonstrators were dead, twenty-four
(24) others were wounded and seventy-nine (79) empty shells were recovered from the
scene of the crime. They were later traced to four firearms belonging to CHDF Caete,
CHDF Parcon, C2C Lerado and CIC Ibaez.[10]
The following were identified by witnesses to have fired their guns: CHDF Alfredo M.
Quinatagcan alias Pidong Bagis, CHDF Elias Torias, CHDF Jimmy Mayordomo, CHDF
Teddy Magtubo, CHDF Jeremias Villanueva, CHDF Jose Boy Parcon, Roming Javier,
C1C Eleuterio O. Ibaez, T/Sgt. Generoso N. Subayco, C1C Alfredo Alcalde.[11]
On the basis of the evidence adduced and following its theory of implied conspiracy, the
respondent Court held petitioners liable for the deaths and injuries of all the victims.[12]
It is this finding of implied conspiracy that petitioners assail in the petition at bar.
Conspiracy exists when two or more persons come to an agreement concerning the
commission of a felony and decide to commit it. It may be deduced from the mode and
manner in which the offense was committed. The concerned acts of petitioners to achieve
the same objective signify conspiracy.[13] In the case of People vs. Guevarra,[14] we
enunciated the doctrine of implied conspiracy as follows:
xxx xxx xxx
Although there is no well-founded evidence that the appellant and Romero had conferred
and agreed to kill Joselito, their complicity can be justified by circumstantial evidence,
that is, their community of purpose and their unity of design in the contemporaneous or
simultaneous performance of the act of assaulting the deceased.

85

xxx xxx xxx

There can be no question that the appellants act in holding the victim from behind
immediately before the latter was stabbed by Eduardo constitutes a positive and overt act
towards the realization of a common criminal intent, although the intent may be classified
as instantaneous. The act was impulsively done on the spur of the moment. It sprang from
the turn of events, thereby uniting the criminal design of the slayer immediately before
the commission of the offense. That is termed as implied conspiracy. The appellants
voluntary and indispensable cooperation was a concurrence of the criminal act to be
executed. Consequently, he is a co-conspirator by indispensable cooperation, although the
common desire or purpose was never bottled up by previous undertaking. (italics
supplied)
We therefore uphold the respondent court in ruling that the following circumstances
proved the existence of an implied conspiracy among the petitioners in the cases at bar:
1. After the Escalante firetruck exhausted its supply of water, it withdrew from the scene.
2. The Cadiz City firetruck took over hosing the crowd. It also ran out of water, tried to
back out but was prevented by the logs and rocks strewn behind it.
3. The weapons carrier then moved behind the Cadiz City firetruck.
4. Teargas canisters were thrown into the crowd. Jovy Jaravelo, a rallyist, picked up one
of the canisters and threw it back to where it came from. At this juncture, CHDF Alfredo
Quinatagcan a.k.a. Pidong Bagis shot Jaravelo. Successive gunfire followed.
5. The seventy-nine (79) empty shells recovered from the scene of the crime were traced
to four M-16 rifles issued to CHDF Caete, CHDF Parcon, C2C Lerado and C1C Ibaez.
Caete and Parcon were on board the weapons carrier while Lerado and Ibaez were on
board the Cadiz City firetruck.
6. The other personnel who were also on these two vehicles were also scene to have fired
at the crowd.
All these circumstances intersect to show a community of purpose among the petitioners
and their companions, that is, to fire at the demonstrators. This common purpose was
pursued by the petitioners and their companions who used firepower against the rallyists.
As proved, the plan to disperse the demonstrators did not include the use of guns, yet,
petitioners and their cohorts did. At the first crack of gunfire coming from CHDF Alfredo
Quinatagcan (a.k.a. Pidong Bagis), petitioners and their companions commenced firing at
the demonstrators, as if on signal. They fired indiscriminately toward the demonstrators
who were then already lying prone on the ground. There was no imminent danger to their
safety. Not just one or a few shots were fired but several. The firing lasted a few minutes
and cost the lives and limbs of the demonstrators. We agree with the respondent court that

the collective acts of the petitioners and their companions clearly show the existence of a
common design toward the accomplishment of a united purpose.[15] They were therefore
properly convicted for all the crimes they were charged with.
The use of bullets to break up an assembly of people petitioning for redress of grievance
cannot but be bewailed. It is bound to happen again for as long as abuses in government
abound. Precisely to help put a brake on official abuses, people empowerment was
codified in various provisions of the 1987 Constitution. It is high time to remind our
officials that under our Constitution power does not come from the barrel of a gun but
from the ballots of the people. It is thus important to know the unexpurgated will of the
people for in a republican government, it is the people who should truly rule.
Consequently, the right of the people to assemble peacefully and to petition for redress of
grievance should not be abridged by officials momentarily holding the powers of
government. So we expressly held in the early case of US v. Apurado.[16]
It is rather to be expected that more or less disorder will mark the public assembly of the
people to protest against grievances whether real or imaginary, because on such occasions
feeling it always brought to a high pitch of excitement, and the greater the grievance and
the more intense the feeling, the less perfect, as a rule, will be the disciplinary control of
the leaders over their irresponsible followers. But if the prosecution be permitted to seize
upon every instance of such disorderly conduct by individual members of a crowd as an
excuse to characterize the assembly as a seditious and tumultuous rising against the
authorities, then the right to assemble and to petition for redress of grievances would
become a delusion and a snare and the attempt to exercise it on the most righteous
occasion and in the most peaceable manner would expose all those who took part therein
to the severest and most unmerited punishment, if the purposes which they sought to
attain did not happen to be pleasing to the prosecuting authorities. If instances of
disorderly conduct occur on such occasions, the guilty individuals should be sought out
and punished therefor, but the utmost discretion must be exercised in drawing the line
between disorderly and seditious conduct and between an essentially peaceable assembly
and a tumultuous uprising.
The Constitution did not engage in mystical teaching when it proclaimed in solemn tone
that sovereignty resides in the people and all government authority emanates from them.
[17] It should be clear even to those with intellectual deficits that when the sovereign
people assemble to petition for redress of grievances, all should listen, especially the
government. For in a democracy, it is the people who count; those who are deaf to their
grievances are ciphers.
Our affirmance of the conviction of the petitioners does not give complete justice to the
victims of the Escalante massacre, subject of the cases at bar. Until today, sixteen (16) of
the other accused have successfully eluded arrest by the authorities. Not until they have
been arrested and tried will justice emerge triumphant for justice cannot come in fraction.
IN VIEW WHEREOF, the Decision of the Sandiganbayan promulgated October 3, 1994
is affirmed. Let copies of this Decision be furnished the Secretary of Justice and the

86

Secretary of Interior and Local Government that they may undertake the necessary efforts
to effectuate the early arrest of the other accused in the cases at bar. Costs against
petitioners.

SO ORDERED.

Adminstrative Law
Arellano Univeristy School of Law
aiza ebina/2015

Petitioners Bayan, et al., contend that Batas Pambansa No. 880 is clearly a violation of
the Constitution and the International Covenant on Civil and Political Rights and other
human rights treaties of which the Philippines is a signatory.

BAYAN, KARAPATAN, KILUSANG MAGBUBUKID NG PILIPINAS (KMP) vs

ERMITA
488 SCRA 226
Sufficiency of Standards
FACTS: The first petitioners, Bayan, et al., allege that they are citizens and taxpayers of
the Philippines and that their rights as organizations and individuals were violated when
the rally they participated in on October 6, 2005 was violently dispersed by policemen
implementing Batas Pambansa (B.P.) No. 880.
The second group consists of 26 individual petitioners, Jess del Prado, et al., who allege
that they were injured, arrested and detained when a peaceful mass action they held on
September 26, 2005 was preempted and violently dispersed by the police. They further
assert that on October 5, 2005, a group they participated in marched to Malacaang to
protest issuances of the Palace which, they claim, put the country under an undeclared
martial rule, and the protest was likewise dispersed violently and many among them were
arrested and suffered injuries.
The third group, Kilusang Mayo Uno, et al., allege that they conduct peaceful mass
actions and that their rights as organizations and those of their individual members as
citizens, specifically the right to peaceful assembly, are affected by Batas Pambansa No.
880 and the policy of Calibrated Preemptive Response being followed to implement it.

Regalado (Chairman), Romero, Mendoza, and Torres, Jr., JJ., concur.

They argue that B.P. No. 880 requires a permit before one can stage a public assembly
regardless of the presence or absence of a clear and present danger. It also curtails the
choice of venue and is thus repugnant to the freedom of expression clause as the time and
place of a public assembly form part of the message for which the expression is sought.
Furthermore, it is not content-neutral as it does not apply to mass actions in support of the
government. The words lawful cause, opinion, protesting or influencing suggest
the exposition of some cause not espoused by the government. Also, the phrase
maximum tolerance shows that the law applies to assemblies against the government
because they are being tolerated. As a content-based legislation, it cannot pass the strict
scrutiny test.
Petitioners Jess del Prado, et al., in turn, argue that B.P. No. 880 is unconstitutional as it is
a curtailment of the right to peacefully assemble and petition for redress of grievances
because it puts a condition for the valid exercise of that right. It also characterizes public
assemblies without a permit as illegal and penalizes them and allows their dispersal.
Thus, its provisions are not mere regulations but are actually prohibitions.
Furthermore, the law delegates powers to the Mayor without providing clear standards.
The two standards stated in the laws (clear and present danger and imminent and grave
danger) are inconsistent.
ISSUE: Whether or not B.P. No, 880 which delegates powers to the Mayor provides clear
standards

KMU, et al., claim that on October 4, 2005, a rally KMU co-sponsored was to be
conducted at the Mendiola bridge but police blocked them along C.M. Recto and Lepanto
Streets and forcibly dispersed them, causing injuries to several of their members. They
further allege that on October 6, 2005, a multi-sectoral rally which KMU also cosponsored was scheduled to proceed along Espaa Avenue in front of the University of
Santo Tomas and going towards Mendiola bridge. Police officers blocked them along
Morayta Street and prevented them from proceeding further. They were then forcibly
dispersed, causing injuries on one of them.[4] Three other rallyists were arrested.

RULING: Yes. As to the delegation of powers to the mayor, the law provides a precise
and sufficient standard the clear and present danger test stated in Sec. 6 (a). The
reference to imminent and grave danger of a substantive evil in Sec. 6 (c) substantially
means the same thing and is not an inconsistent standard. As to whether respondent
Mayor has the same power independently under Republic Act No. 7160 is thus not
necessary to resolve in these proceedings, and was not pursued by the parties in their
arguments.

All petitioners assail Batas Pambansa No. 880, some of them in toto and others only
Sections 4, 5, 6, 12, 13(a), and 14(a), as well as the policy of CPR. They seek to stop
violent dispersals of rallies under the no permit, no rally policy and the CPR policy
recently announced.

The so-called calibrated preemptive response policy has no place in our legal firmament
and must be struck down as a darkness that shrouds freedom. It merely confuses our
people and is used by some police agents to justify abuses. On the other hand, B.P. No.
880 cannot be condemned as unconstitutional; it does not curtail or unduly restrict
freedoms; it merely regulates the use of public places as to the time, place and manner of
assemblies. Far from being insidious, maximum tolerance is for the benefit of rallyists,

87

not the government. The delegation to the mayors of the power to issue rally permits is
valid because it is subject to the constitutionally-sound clear and present danger
standard.

standard for administrative action in specific fields... "a clear and present danger," and
"imminent and grave danger of a substantive evil."
---

RATIO: Examples of standards held sufficient. - The following are legislative

specifications are among those which have been held to state a sufficiently definite
Reynolds v. United States, 98 U.S. (8 Otto.) 145 (1878), was a Supreme Court of the
United States case that held that religious duty was not a defense to a criminal indictment.
Reynolds was the first Supreme Court opinion to address the Impartial Jury and the
Confrontation Clauses of the Sixth Amendment.
George Reynolds was a member of The Church of Jesus Christ of Latter-day Saints (LDS
Church), charged with bigamy under the Morrill Anti-Bigamy Act after marrying Amelia
Jane Schofield while still married to Mary Ann Tuddenham in Utah Territory. He was
secretary to Brigham Young and presented himself as a test of the federal government's
attempt to outlaw polygamy. A first trial ended in his acquittal on technical grounds.[1]
Contents
1 Background
2 Prior history
3 Decision
3.1 Religious duty argument
3.2 Other arguments
4 Reaction
5 See also
6 References
7 Further reading
8 External links
Background
The Church of Jesus Christ of Latter-day Saints, believing that the law unconstitutionally
deprived them of their First Amendment right to freely practice their religion, chose to
ignore the Morrill Anti-Bigamy Act at the time. On the other hand, in subsequent years,
efforts had been underway to strengthen the anti-bigamy laws. Eventually, amid the
efforts to indict the LDS leadership for bigamy, the First Presidency agreed to furnish a
defendant in a test case to be brought before the United States Supreme Court to
determine the constitutionality of the anti-bigamy law. Reynolds, a secretary in the office
of the President of the Church, agreed to serve as the defendant, then provided the
attorney numerous witnesses who could testify of his being married to two wives, and
was indicted for bigamy by a grand jury on October 23, 1874. In 1875, Reynolds was
convicted and sentenced to two years hard labor in prison and a fine of five hundred
dollars. In 1876 the Utah Territorial Supreme Court upheld the sentence.

Previously, U.S. Attorney William Carey promised to stop his attempts to indict general
authorities during the test case. However when Carey failed to keep his promise and
arrested George Q. Cannon, the LDS Church leaders decided that they would no longer
cooperate with him.[2]
Prior history
Reynolds was indicted in the District Court for the 3rd Judicial District of the Territory of
Utah under sect. 5352 of the Revised Statutes, which stated, as quoted in the Supreme
Court decision:
Every person having a husband or wife living, who marries another, whether married
or single, in a Territory, or other place over which the United States have exclusive
jurisdiction, is guilty of bigamy, and shall be punished by a fine of not more than $500,
and by imprisonment for a term of not more than five years.
Reynolds tried to have the jury instructed that if they found he committed bigamy with
the only intention of following his religion, then he must be found not guilty. The trial
court refused this request and instructed the jury that if they found that Reynolds, under
religious influence, "deliberately married a second time, having a first wife living, the
want of consciousness of evil intentthe want of understanding on his part that he was
committing crimedid not excuse him, but the law inexorably, in such cases, implies
criminal intent."
After being found guilty by the lower court, Reynolds appealed to the Utah Territorial
Supreme Court, which upheld the conviction.
Decision
The Court affirmed Reynold's conviction unanimously. Chief Justice Morrison Waite
wrote on behalf of himself and seven colleagues. Justice Field wrote a concurrence that
dissented on one minor point.
Before the Supreme Court, Reynolds argued that his conviction for bigamy should be
overturned on four issues: that it was his religious duty to marry multiple times and the
First Amendment protected his practice of his religion; that his grand jury had not been
legally constituted; that challenges of certain jurors were improperly overruled; that
testimony was not admissible as it was under another indictment.
Religious duty argument

88

The Court considered whether Reynolds could use religious belief or duty as a defense.
Reynolds had argued that as a Mormon, it was his religious duty as a male member of the
church to practice polygamy if possible.
The Court recognized that under the First Amendment, the Congress cannot pass a law
that prohibits the free exercise of religion. However it held that the law prohibiting
bigamy did not meet that standard. The principle that a person could only be married
singly, not plurally, existed since the times of King James I of England in English law,
upon which United States law was based.
The Court investigated the history of religious freedom in the United States and quoted a
letter from Thomas Jefferson in which he wrote that there was a distinction between
religious belief and action that flowed from religious belief. The former "lies solely
between man and his God," therefore "the legislative powers of the government reach
actions only, and not opinions." The court considered that if polygamy was allowed,
someone might eventually argue that human sacrifice was a necessary part of their
religion, and "to permit this would be to make the professed doctrines of religious belief
superior to the law of the land, and in effect to permit every citizen to become a law unto
himself." The Court believed the First Amendment forbade Congress from legislating
against opinion, but allowed it to legislate against action.
Other arguments
Reynolds argued that the grand jury that had indicted him was not legal. United States
law at that time required that a grand jury consist of no fewer than 16 persons. The grand
jury that indicted Reynolds had only 15 persons. The court rejected this argument
because the Utah Territory had passed a law in 1870 under which a grand jury had to
consist of only 15 persons.

The Court held that evidence Amelia Jane Schofield, Reynold's second wife, gave during
an earlier trial of Reynolds for the same offense but under a different indictment was
admissible. Schofield could not be found during the second trial and so evidence from the
previous trial was used. The Court held that "if a witness is kept away by the adverse
party, his testimony, taken on a former trial between the same parties upon the same
issues, may be given in evidence". The court held that Reynolds had every opportunity
under oath to reveal the whereabouts of Schofield. This was the one point on which
Justice Field dissented, finding that the evidence should not have been allowed.
Reynolds had argued that the jury had been improperly instructed by the judge when he
told them that they "should consider what are to be the consequences to the innocent
victims of this delusion". Reynolds argued that this introduced prejudice to the jury. The
Court held that Reynolds had freely admitted that he was a bigamist. All the judge had
done was "call the attention of the jury to the peculiar character of the crime" and had
done so "not to make them partial, but to keep them impartial".
Reaction
George Q. Cannon, representative of the territory, wrote in response to this decision:[3]
Our crime has been: We married women instead of seducing them; we reared children
instead of destroying them; we desired to exclude from the land prostitution, bastardy and
infanticide. If George Reynolds [the man who was convicted of committing bigamy] is to
be punished, let the world know the facts.... Let it be published to the four corners of the
earth that in this land of liberty, the most blessed and glorious upon which the sun shines,
the law is swiftly invoked to punish religion, but justice goes limping and blindfolded in
pursuit of crime.

During his original trial, Reynolds had challenged two jurors, both of whom stated that
they had formed an opinion on the guilt or innocence of Reynolds before the trial. The
court held that universal education and press reports made it hard to find jurors who had
not formed some opinion. It found that Reynolds had failed to meet the requirement that
he, as challenger of a juror's objectivity, demonstrate that a juror had developed a real and
strong opinion. The prosecution had discharged two potential jurors who refused to say
whether or not they were living in polygamy. The Court held that it would not overturn a
case based on the legality of challenges to dismissed jurors.

The New York Times defended the decision, noting that the 1862 act that banned bigamy,
though "obviously directed at the polygamous practices of the Mormons, merely
extended over the Territories the common law in relation to bigamy which exists in every
State of the Union." Its editorial ridiculed the Mormon defense of polygamy as a religious
practice and said: "Similarly, a sect which should pretend, or believe, that incest,
infanticide, or murder was a divinely appointed ordinance, to be observed under certain
conditions, could set up that the enforcement of the common law, as against either [sic] of
these practices, was an invasion of the rights of conscience." It predicted the eventual
success of the movement "to crush out polygamy in Utah."[4]

American Bible Society v. City of Manila [GR L-9637, 30 April 1957]

Second Division, Felix (J): 7 concur, 1 concur in result
Facts: In the course of its ministry, American Bible SocietysPhilippine agency has been
distributing and selling bibles and/orgospel portions thereof (since 1898, but except
during the Japaneseoccupation) throughout the Philippines and translating the same
intoseveral Philippine dialects. On 29 May 1953, the acting CityTreasurer of the City of
Manila informed the Society that it wasconducting the business of general merchandise
since November1945, without providing itself with the necessary Mayors permit
andmunicipal license, in violation of Ordinance 3000, as amended, andOrdinances 2529,

3028 and 3364, and required the Society tosecure, within 3 days, the corresponding
permit and license fees,together with compromise covering the period from the 4th
quarterof 1945 to the 2nd quarter of 1953, in the total sum of P5,821.45.On 24 October
1953, the Society paid to the City Treasurer underprotest the said permit and license fees,
giving at the same timenotice to the City Treasurer that suit would be taken in court
toquestion the legality of the ordinances under which the said feeswere being collected,
which was done on the same date by filing thecomplaint that gave rise to this action.
After hearing, the lower courtdismissed the complaint for lack of merit. the Society
appealed tothe Court of Appeals, which in turn certified the case to the SupremeCourt for

89

the reason that the errors assigned involved only questionsof law.Issue: Whether the
Society is required to secure municipal permit toallow it to sell and distribute bibles and
religious literature, and topay taxes from the sales thereof.Held: No. Section 27 (e) of
Commonwealth Act 466 (NIRC) exemptscorporations or associations organized and
operated exclusively forreligious, charitable, or educational purposes, Provided
however,That the income of whatever kind and character from any of itsproperties, real
or personal, or from any activity conducted for profit,regardless of the disposition made
of such income, shall be liable tothe tax imposed under the Code. Herein, the act of
distributing andselling bibles, etc. is purely religious and cannot be made liable fortaxes
or fees therein. Further, Ordinance 2529, as amended, cannotbe applied to the Society, for
in doing so it would impair its freeexercise and enjoyment of its religious profession and
worship aswell as its rights of dissemination of religious beliefs. The fact thatthe price of
Philippine Blooming Mills Employees Organization vs. PBM, 51 SCRA 189
Post under case digests, labor law at Tuesday, February 21, 2012 Posted by Schizophrenic
Mind
Facts: Philippine Blooming Employees Organization (PBMEO) decided to stage a mass
demonstration in front of Malacaang to express their grievances against the alleged
abuses of the Pasig Police.
After learning about the planned mass demonstration, Philippine Blooming Mills Inc.,
called for a meeting with the leaders of the PBMEO. During the meeting, the planned
demonstration was confirmed by the union. But it was stressed out that the demonstration
was not a strike against the company but was in fact an exercise of the laborers
inalienable constitutional right to freedom of expression, freedom of speech and freedom
for petition for redress of grievances.
The company asked them to cancel the demonstration for it would interrupt the normal
course of their business which may result in the loss of revenue. This was backed up with
the threat of the possibility that the workers would lose their jobs if they pushed through
with the rally.
A second meeting took place where the company reiterated their appeal that while the
workers may be allowed to participate, those from the 1st and regular shifts should not
absent themselves to participate , otherwise, they would be dismissed. Since it was too
late to cancel the plan, the rally took place and the officers of the PBMEO were

Mark Jorel O. Calida 1C 2007 Introduction to Law

ESTRADAv.ESCRITORAMNo.P02
1651,August4,2003,June20,2006FACTS:
Escritor,amemberoftheJehovahsWitness,waschargedforimmoralcon
ductforco
habitingwithamanwithoutthebenefitofamarriage,theirrelationshipb
earingachild.ShesecuredaDeclarationofPledgingFaithfulness,indicat
ingtheirchurchsapprovaloftheirunioninaccordancewiththebeliefso
ftheJehovahsWitness.

the bibles and other religious pamphlets are little higherthan the actual cost of the same
does not necessarily mean that it isalready engaged in the business or occupation of
selling said merchandise for profit. Furthermore, Ordinance 3000 of the City of Manila
is of general application and it does not contain anyprovisions whatsoever prescribing
religious censorship norrestraining the free exercise and enjoyment of any
religiousprofession. The ordinance is not applicable to the Society, as itsbusiness, trade or
occupation is not particularly mentioned in Section3 of the Ordinance, and the record
does not show that a permit isrequired therefor under existing laws and ordinances for the
propersupervision and enforcement of their provisions governing thesanitation, security
and welfare of the public and the health of theemployees engaged in the business of the
Society
eventually dismissed for a violation of the No Strike and No Lockout clause of their
Collective Bargaining Agreement.
The lower court decided in favor of the company and the officers of the PBMEO were
found guilty of bargaining in bad faith. Their motion for reconsideration was
subsequently denied by the Court of Industrial Relations for being filed two days late.
Issue: Whether or not the workers who joined the strike violated the CBA.
Held: No. While the Bill of Rights also protects property rights, the primacy of human
rights over property rights is recognized. Because these freedoms are "delicate and
vulnerable, as well as supremely precious in our society" and the "threat of sanctions may
deter their exercise almost as potently as the actual application of sanctions," they "need
breathing space to survive," permitting government regulation only "with narrow
specificity." Property and property rights can be lost thru prescription; but human rights
are imprescriptible. In the hierarchy of civil liberties, the rights of free expression and of
assembly occupy a preferred position as they are essential to the preservation and vitality
of our civil and political institutions; and such priority "gives these liberties the sanctity
and the sanction not permitting dubious intrusions."
The freedoms of speech and of the press as well as of peaceful assembly and of petition
for redress of grievances are absolute when directed against public officials or "when
exercised in relation to our right to choose the men and women by whom we shall be
governed.
ISSUES:
WhetherornotEscritormaybesanctionedinlightoftheFreeExercise
clause.
RULING:
No.Thestatehastheburdenofsatisfyingthecompellingstateinterest
testtojustifyanypossiblesanctiontobeimposeduponEscritor.Thiste
stinvolvesthreesteps:1)
Thecourtsshouldlookintothesincerityofthereligiousbeliefwithoutin
quiringintothetruthofthebelief.2)

90

Thestatehastoestablishthatitspurposesarelegitimateandcompelling.
3)
Thestateusedtheleastintrusivemeanspossible.Thecasewasremand
edtotheOfficeoftheCourtAdministratorsothatthegovernmentwould
havetheopportunitytodemonstratethecompellingstateinterestitseeks
toupholdinopposingEscritorspositionthatherconjugalarrangementis
notimmoralandpunishableasitcomeswithinthescopeoffreeexercis
eprotection.SinceneitherEstrada,Escritornorthegovernmenthasfiled
amotionforreconsiderationassailingtheAugust4,2003ruling,the200
3decisionhasattainedfinalityandconstitutesthelawofthecase.Any
attempttoreopenthisrulingconstitutesacontraventionofelementaryrule
sofprocedure.Worse,insofarasitwouldoverturnthepartiesrighttor
elyupontheSupremeCourtsinterpretationwhichhaslongattainedfinality,
italsorunscountertosubstantivedueprocess.InitsJune20,2006r
Estrada vs Escritor (August 4, 2003)
Estrada vs. Escritor
AM P-02-1651, August 4, 2003

uling,theSupremeCourtheldthat,Escritorssincerityisbeyondseriousd
oubt.Sheprocuredthecertificate10yearsaftertheirunionbeganandnot
merelyafterbeingimplicated.Thefreeexerciseofreligionisafundame
ntalrightthatenjoysapreferredpositioninthehierarchyofrights.The
statesbroadinterestinprotectingtheinstitutionsofmarriageandthefamil
yisnotacompellinginterestenforcingtheconcubinagechargesagainstEs
critor.TheConstitutionadherestothebenevolentneutralityapproachthatgi
vesroomforaccommodationofreligiousexercisesasrequiredbytheFree
ExerciseClause.Evenassumingthattherewasacompellingstateinterest,
thestatefailedtoshowevidencethatthemeansthestateadoptedinpu
rsuingthiscompellinginterestistheleastrestrictivetoEscritorsreligious
freedom.

Hence,Escritorsconjugalarrangementcannotbepenalizedasshehasmad
eoutacaseforexemptionfromthelawbasedonherrighttofreedom
ofreligion.
Whether or not respondent should be found guilty of the administrative charge of gross
and immoral conduct and be penalized by the State for such conjugal arrangement.
HELD:

FACTS:
Soledad Escritor is a court interpreter since 1999 in the RTC of Las Pinas City. Alejandro
Estrada, the complainant, wrote to Judge Jose F. Caoibes, presiding judge of Branch 253,
RTC of Las Pinas City, requesting for an investigation of rumors that Escritor has been
living with Luciano Quilapio Jr., a man not her husband, and had eventually begotten a
son. Escritors husband, who had lived with another woman, died a year before she
entered into the judiciary. On the other hand, Quilapio is still legally married to another
woman. Estrada is not related to either Escritor or Quilapio and is not a resident of Las
Pinas but of Bacoor, Cavite. According to the complainant, respondent should not be
allowed to remain employed in the judiciary for it will appear as if the court allows such
act.
Escritor is a member of the religious sect known as the Jehovahs Witnesses and the
Watch Tower and Bible Tract Society where her conjugal arrangement with Quilapio is in
conformity with their religious beliefs. After ten years of living together, she executed on
July 28, 1991 a Declaration of Pledging Faithfulness which was approved by the
congregation. Such declaration is effective when legal impediments render it impossible
for a couple to legalize their union. Gregorio, Salazar, a member of the Jehovahs
Witnesses since 1985 and has been a presiding minister since 1991, testified and
explained the import of and procedures for executing the declaration which was
completely executed by Escritor and Quilapios in Atimonan, Quezon and was signed by
three witnesses and recorded in Watch Tower Central Office.
ISSUE:

A distinction between public and secular morality and religious morality should be kept
in mind. The jurisdiction of the Court extends only to public and secular morality.
The Court states that our Constitution adheres the benevolent neutrality approach that
gives room for accommodation of religious exercises as required by the Free Exercise
Clause. This benevolent neutrality could allow for accommodation of morality based on
religion, provided it does not offend compelling state interests.
The states interest is the preservation of the integrity of the judiciary by maintaining
among its ranks a high standard of morality and decency. There is nothing in the OCAs
(Office of the Court Administrator) memorandum to the Court that demonstrates how this
interest is so compelling that it should override respondents plea of religious freedom.
Indeed, it is inappropriate for the complainant, a private person, to present evidence on
the compelling interest of the state. The burden of evidence should be discharged by the
proper agency of the government which is the Office of the Solicitor General.
In order to properly settle the case at bar, it is essential that the government be given an
opportunity to demonstrate the compelling state interest it seeks to uphold in opposing
the respondents position that her conjugal arrangement is not immoral and punishable as
it is within the scope of free exercise protection. The Court could not prohibit and punish
her conduct where the Free Exercise Clause protects it, since this would be an
unconstitutional encroachment of her right to religious freedom. Furthermore, the court
cannot simply take a passing look at respondents claim of religious freedom but must
also apply the compelling state interest test.

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IN VIEW WHEREOF, the case is REMANDED to the Office of the Court Administrator.
The Solicitor General is ordered to intervene in the case where it will be given the
opportunity (a) to examine the sincerity and centrality of respondent's claimed religious
belief and practice; (b) to present evidence on the state's "compelling interest" to override
Islamic Dawah Council of the Philippines, Inc. vs. Executive Secretary
Monday, October 1, 2012 Mga etiketa: Constitutional Law, Political Law
Islamic Dawah Council of the Philippines, Inc. vs. Executive Secretary
G.R. No. 153888. July 9, 2003.
Facts:
Petitioner is a non-governmental organization that extends voluntary services to
the Filipino people, especially to Muslim Communities. Petitioner began to issue, for a
fee, halal certifications to qualified products and food manufacturers on account of the
actual need to certify food products as halal and also due to halal food producers' request.
Subsequently, Executive Order (EO) 46 was issued creating the Philippine Halal
Certification Scheme and designating respondent Office of Muslim Affairs (OMA) to
oversee its implementation. In this petition for prohibition, petitioner alleged, among
others, that the subject EO violates the constitutional provision on the separation of
Church and State.
In granting the petition, the Supreme Court ruled that freedom of religion was accorded
preferred status by the framers of the fundamental law and it has consistently affirmed
this preferred status. Without doubt, classifying a food product as halal is a religious
function because the standards used are drawn from the Qur'an and Islamic beliefs. By
giving the OMA the exclusive power to classify food products as halal, EO 46
encroached on the religious freedom of Muslim organizations like herein petitioner to
interpret for Filipino Muslims what food products are fit for Muslim consumption. Also,
by arrogating to itself the task of issuing halal certifications, the State has in effect forced
Muslims to accept its own interpretation of the Qur'an and Sunnah on halal food.
The Court further ruled that only the prevention of an immediate and grave danger to the
security and welfare of the community can justify the infringement of religious freedom.
In the case at bar, the Court found no compelling justification for the government to
deprive Muslim organizations, like herein petitioner, of their religious right to classify a
product as halal, even on the premise that the health of Muslim Filipinos can be
effectively protected by assigning to OMA the exclusive power to issue halal certificates.
Issue:
Whether or not Eexecutive Order 46 violates the constitutional provision on the
separation of Church and State.
ISLAMIC DA'WAH COUNCIL OF THE PHILIPPINES, INC (IDCP) vs. Office of the
Executive Secretary, et al (2003)
FACTS: Petitioner IDCP, a corporation that operates under DSWD, is a nongovernmental organization that extends voluntary services to the Filipino people,
especially to Muslim communities. Among the functions petitioner carries out is to
conduct seminars, orient manufacturers on halal food and issue halal certifications to

respondent's religious belief and practice; and (c) to show that the means the state adopts
in pursuing its interest is the least restrictive to respondent's religious freedom. The
rehearing should be concluded thirty (30) days from the Office of the Court
Administrator's receipt of this Decision. .
Held:
No. In granting the petition, the Supreme Court ruled that freedom of religion was
accorded preferred status by the framers of the fundamental law and it has consistently
affirmed this preferred status. Without doubt, classifying a food product as halal is a
religious function because the standards used are drawn from the Qur'an and Islamic
beliefs. By giving the OMA the exclusive power to classify food products as halal,
Executive Order 46 encroached on the religious freedom of Muslim organizations like
herein petitioner to interpret for Filipino Muslims what food products are fit for Muslim
consumption. Also, by arrogating to itself the task of issuing halal certifications, the State
has in effect forced Muslims to accept its own interpretation of the Qur'an and Sunnah on
halal food.
The Court further ruled that only the prevention of an immediate and grave danger to the
security and welfare of the community can justify the infringement of religious freedom.
In the case at bar, the Court found no compelling justification for the government to
deprive Muslim organizations, like herein petitioner, of their religious right to classify a
product as halal, even on the premise that the health of Muslim Filipinos can be
effectively protected by assigning to OMA the exclusive power to issue halal certificates.
Only the prevention of an immediate and grave danger to the security and welfare of the
community can justify the infringement of religious freedom. If the government fails to
show the seriousness and immediacy of the threat, State intrusion is constitutionally
unacceptable. In a society with a democratic framework like ours, the State must
minimize its interference with the affairs of its citizens and instead allow them to exercise
reasonable freedom of personal and religious activity. In the case at bar, we find no
compelling justification for the government to deprive Muslim organizations, like herein
petitioner, of their religious right to classify a product as halal, even on the premise that
the health of Muslim Filipinos can be effectively protected by assigning to OMA the
exclusive power to issue halal certifications. The protection and promotion of the Muslim
Filipinos' right to health are already provided for in existing laws and ministered to by
government agencies charged with ensuring that food products released in the market are
fit for human consumption, properly labeled and safe. Unlike EO 46, these laws do not
encroach on the religious freedom of Muslims.
qualified products and manufacturers. On October 26, 2001, respondent Office of the
Executive Secretary issued EO 46 5 creating the Philippine Halal Certification Scheme
and designating respondent Office on Muslim Affairs (OMA) to oversee its
implementation. Under the EO, respondent OMA has the exclusive authority to issue
halal certificates and perform other related regulatory activities. Petitioner contends that
the subject EO violates the constitutional provision on the separation of Church and State

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and that it is unconstitutional for the government to formulate policies and guidelines on
the halal certification scheme because said scheme is a function only religious
organizations, entity or scholars can lawfully and validly perform for the Muslims.
ISSUE: Whether the EO is violates the constitutional provision as to freedom of religion
RULING: The Court grants the petition. OMA deals with the societal, legal, political and
economic concerns of the Muslim community as a "national cultural community" and not
as a religious group. Thus, bearing in mind the constitutional barrier between the Church
and State, the latter must make sure that OMA does not intrude into purely religious
matters lest it violate the non-establishment clause and the "free exercise of religion"
provision found in Article III, Section 5 of the 1987 Constitution. Freedom of religion
was accorded preferred status by the framers of our fundamental law. And this Court has
consistently affirmed this preferred status, well aware that it is "designed to protect the
broadest possible liberty of conscience, to allow each man to believe as his conscience
directs, to profess his beliefs, and to live as he believes he ought to live, consistent with
the liberty of others and with the common good." Without doubt, classifying a food
product as halal is a religious function because the standards used are drawn from the
Qur'an and Islamic beliefs. By giving OMA the exclusive power to classify food products
as halal, EO 46 encroached on the religious freedom of Muslim organizations like herein
petitioner to interpret for Filipino Muslims what food products are fit for Muslim
Aglipay v. Ruiz Digest
G.R. No. L-45459 March 13, 1937
Laurel, J.:
Facts:
1. In May 1936, the Director of Posts announced in the dailies of Manila that he would
order the issuance of postage stamps commemorating the celebration in the City of
Manila of the 33rd International Eucharistic Congress, organized by the Roman Catholic
Church.
2. The petitioner, Mons. Gregorio Aglipay, Supreme Head of the Philippine Independent
Church, in the fulfilment of what he considers to be a civic duty, requested Vicente Sotto,
a member of the Philippine Bar, to denounce the matter to the President. In spite of the
protest of the petitioners attorney, the Director of Posts publicly announced having sent
to the United States the designs of the postage for printing. The said stamps were actually
issued and sold though the greater part remained unsold.
3. The further sale was sought to be prevented by the petitioner. He alleged that the
provisions of Section 23, Subsection 3, Article VI, of the Constitution were violated in
the issuance and selling of the commemorative postage stamps. It was provided therein
that, No public money or property shall ever be appropriated, applied, or used, directly
or indirectly, for the use, benefit, or support of any sect, church, denomination, sectarian,
institution, or system of religion, or for the use, benefit, or support of any priest, preacher,

consumption. Also, by arrogating to itself the task of issuing halal certifications, the State
has in effect forced Muslims to accept its own interpretation of the Qur'an and Sunnah on
halal food. Only the prevention of an immediate and grave danger to the security and
welfare of the community can justify the infringement of religious freedom. If the
government fails to show the seriousness and immediacy of the threat, State intrusion is
constitutionally unacceptable. In a society with a democratic framework like ours, the
State must minimize its interference with the affairs of its citizens and instead allow them
to exercise reasonable freedom of personal and religious activity. There is no compelling
justification for the government to deprive Muslim organizations, like herein petitioner,
of their religious right to classify a product as halal, even on the premise that the health of
Muslim Filipinos can be effectively protected by assigning to OMA the exclusive power
to issue halal certifications. The protection and promotion of the Muslim Filipinos' right
to health are already provided for in existing laws and ministered to by government
agencies charged with ensuring that food products released in the market are fit for
human consumption, properly labeled and safe. Unlike EO 46, these laws do not
encroach on the religious freedom of Muslims. With these regulatory bodies given
detailed functions on how to screen and check the quality and safety of food products, the
perceived danger against the health of Muslim and non-Muslim Filipinos alike is totally
avoided. The halal certifications issued by petitioner and similar organizations come
forward as the official religious approval of a food product fit for Muslim consumption.
The pe
minister, or other religious teacher or dignitary as such, except when such priest,
preacher, minister, or dignitary is assigned to the armed forces or to any penal institution,
orphanage, or leprosarium.
Issue: Whether or not the issuance of stamps was in violation of the principle of
separation of church and state
NO.
1. Religious freedom, as a constitutional mandate, is not inhibition of profound reverence
for religion and is not denial of its influence in human affairs. Religion as a profession of
faith to an active power that binds and elevates man to his Creator is recognized. In so far
as it instils into the minds the purest principles of morality, its influence is deeply felt and
highly appreciated.
2. When the Filipino people, in the preamble of the Constitution, implored "the aid of
Divine Providence, in order to establish a government that shall embody their ideals,
conserve and develop the patrimony of the nation, promote the general welfare, and
secure to themselves and their posterity the blessings of independence under a regime of
justice, liberty and democracy," they thereby manifested reliance upon Him who guides
the destinies of men and nations. The elevating influence of religion in human society is
recognized here as elsewhere. In fact, certain general concessions are indiscriminately
accorded to religious sects and denominations.

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3. There has been no constitutional infraction in this case. Act No. 4052 granted the
Director of Posts, with the approval of the Sec. of Public Works and Communications,
discretion to issue postage stamps with new designs. Even if we were to assume that
these officials made use of a poor judgment in issuing and selling the postage stamps in
question, still, the case of the petitioner would fail to take in weight. Between the exercise
ANDRES GARCES vs. Hon. NUMERIANO G. ESTENZO
G.R. No. L-53487. May 25, 1981.
FACTS:
Pursuant to Resolution No. 5 of the Barangay Council of Valencia, Ormoc City, a wooden
image of San Vicente Ferrer was acquired by the barangay council with funds raised by
means of solicitations and cash, duly ratified by the barangay assembly in a plebiscite,
reviving the traditional socio-religious celebration of the feast day of the saint. As per
Resolution No. 6, the image was brought to the Catholic parish church during the saint's
feast day which also designated the hermano mayor as the custodian of the image. After
the fiesta, however, petitioner parish priest, Father Sergio Marilao Osmea, refused to
return custody of the image to the council on the pretext that it was the property of the
church because church funds were used for its acquisition until after the latter, by
resolution, filed a replevin case against the priest and posted the required bond.
Thereafter, the parish priest and his co-petitioners filed an action for annulment of the
council's resolutions relating to the subject image contending that when they were
adopted, the barangay council was not duly constituted because the chairman of the
Kabataang Barangay was not allowed to participate; and that they contravened the
constitutional provisions on separation of church and state, freedom of religion and the
use of public money to favor any sect or church.
ISSUE:
Whether the barangay council's resolution providing for purchase of saint's image with
private funds in connection with barangay fiesta, constitutional.
CHAVEZ V PUBLIC ESTATES AUTHORITY AND AMARI COASTAL BAY
FACTS:
Nature: original Petition for Mandamus with prayer for writ of preliminary injunction
and a temporary restraining order. Petition also seeks to compel the Public Estates
Authority (PEA) to disclose all facts on PEAs then on-going renegotiations with Amari
Coastal Bay and Development Corporation to reclaim portions of Manila Bay. The
petition further seeks to enjoin PEA from signing a new agreement with AMARI
involving such reclamation.
1973: The government through the Commission of Public Highways signed a contract
with the Construction and Development Corporation of the Philippines (CDCP) to
reclaim certain foreshore and offshore areas of Manila Bay
1977: President Marcos issued PD No. 1084 creating the PEA, which was tasked to
reclaim land, including foreshore and submerged areas and to develop, improve, acquire
x xx lease and sell any and all kinds of lands. On the same date, President Marcos issued

of a poor judgment and the unconstitutionality of the step taken, a gap exists which is yet
to be filled to justify the court in setting aside the official act assailed as coming within a
constitutional inhibition. The court resolved to deny the petition for a writ of prohibition.
- See more at: http://lawsandfound.blogspot.com/2012/11/aglipay-v-ruizdigest.html#sthash.WQaaYdgi.dpuf
HELD:
Yes. Resolution No. 5 of the barangay council of Valenzuela, Ormoc City, "reviving the
traditional socio-religious celebration" every fifth day of April "of the feast day of Seor
San Vicente Ferrer, the patron saint of Valenzuela", and providing for: (I) the acquisition
of the image of San Vicente Ferrer; and (2) the construction of a waiting shed as the
barangay's projects, funds for which would be obtained through the "selling of tickets and
cash donations", does not directly or indirectly establish any religion, nor abridge
religious liberty, nor appropriate money for the benefit of any sect, priest or clergyman.
The image was purchased with private funds, not with tax money. The construction of the
waiting shed is entirely a secular matter. The wooden image was purchased in connection
with the celebration of the barrio fiesta honoring the patron saint, San Vicente Ferrer, and
not for the purpose of favoring any religion or interfering with religious beliefs of the
barrio residents. One of the highlights of the fiesta was the mass. Consequently, the
image of the patron saint had to be placed in the church when the mass was celebrated. If
there is nothing unconstitutional or illegal in holding a fiesta and having a patron saint for
the barrio, then any activity intended to facilitate the worship of the patron saint (such as
the acquisition and display of his image) cannot be branded as illegal. As noted in the
resolution, the barrio fiesta is a socio-religious affair. Its celebration is an ingrained
tradition in rural communities. The fiesta relieves the monotony and drudgery of the lives
of the masses.
PD. 1085 transferring to PEA the lands reclaimed in the foreshore and offshore of the
Manila Bay under the Manila-Cavite Coastal Road and Reclamation Project (MCCRRP)
1981: Pres. Marcos issued a memorandum ordering PEA to amend its contract with
CDCP which stated that CDCP shall transfer in favor of PEA the areas reclaimed by
CDCP in the MCCRRP
1988: Pres. Aquino issued Special Patent granting and transferring to PEA parcels of land
so reclaimed under the MCCRRP. Subsequently she transferred in the name of PEA the
three reclaimed islands known as the Freedom Islands
1995: PEA entered into a Joint Venture Agreement (JVA) with AMARI, a private
corporation, to develop the Freedom Islands and this was done without public bidding
Pres. Ramos through Executive Secretary Ruben Torres approved the JVA

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1996: Senate Pres.Maceda delivered a privileged speech in the Senate and denounced the
JVA as the grandmother of all scams. As a result, the Senate conducted investigations.
Among the conclusions were:
The reclaimed lands PEA seeks to transfer to AMARI under the JVA are lands of the
public domain which the government has not classified as alienable lands and therefore
PEA cannot alienate these lands;
The certificates of the title covering the Freedom Islands are thus void, and
The JVA itself is illegal
1997: Pres. Ramos created the Legal Task Force to conduct a study on the legality of the
JVA in view of the Senate Committee report.
1998: The Philippine Daily Inquirer published reports on on-going renegotiations
between PEA and AMARI
PEA Director Nestor Kalaw and PEA Chairman ArsenioYulo and former navy officer
Sergio Cruz were members of the negotiating panel
Frank Chavez filed petition for Mandamus stating that the government stands to lose
billions of pesos in the sale by PEA of the reclaimed lands to AMARI and prays that PEA
publicly disclose the terms of the renegotiations of JVA. He cited that the sale to AMARI
is in violation of Article 12, Sec. 3 prohibiting sale of alienable lands of the public
domain to private corporations and Article 2 Section 28 and Article 3 Sec. 7 of the
Constitution on the right to information on matters of public concern
1999: PEA and AMARI signed Amended JVA which Pres. Estrada approved
ISSUES:
WON the principal reliefs prayed for in the petition are moot and academic because of
the subsequent events
WON the petition merits dismissal for failure to observe the principle governing the
hierarchy of courts
WON the petition merits dismissal for non-exhaustion of administrative remedies
WON petitioner has locus standi to bring this suit
WON the constitutional right to information includes official information on on-going
negotiations before a final agreement
WON the stipulations in the amended joint venture agreement for the transfer to AMARI
of certain lands, reclaimed and still to be reclaimed, violate the 1987 constitution; and
WON the court is the proper forum for raising the issue of whether the amended joint
venture agreement is grossly disadvantageous to the government.
Threshold issue: whether AMARI, a private corporation, can acquire and own under the
amended JVA 367.5 has. of reclaimed foreshore and submerged area in Manila Bay in
view of Sections 2 & 3, Art. 12 of the 1987 constitution

(1) The prayer to enjoin the signing of the Amended JVA on constitutional grounds
necessarily includes preventing its implementation if in the meantime PEA and AMARI
have signed one in violation of the Constitution and if already implemented, to annul the
effects of an unconstitutional contract
(2) The principle of hierarchy of courts applies generally to cases involving factual
questions
Reasoning: the instant case raises constitutional issues of transcendental importance to
the public
(3) The principle of exhaustion of administrative remedies does not apply when the issue
involved is a purely legal or constitutional question
(4) Petitioner has standing if petition is of transcendental public importance and as such,
there is the right of a citizen to bring a taxpayers suit on these matters of transcendental
public importance
(5) The constitutional right to information includes official information on on-going
negotiations before a final contract and must therefore constitute definite propositions by
the government and should not cover recognized exceptions like privileged information,
military and diplomatic secrets and similar matters affecting national security and public
order
Reasoning The State policy of full transparency in all transactions involving public
interest reinforces the peoples right to information on matters of public concern. PEA
must prepare all the data and disclose them to the public at the start of the disposition
process, long before the consummation of the contract. While the evaluation or review is
on-going, there are no official acts, transactions, or decisions on the bids or proposals
but once the committee makes its official recommendation, there arises a definite
proposition on the part of the government
(6) In a form of a summary:
The 157.84 has.of reclaimed lands comprising the Freedom Islands, now covered by
certificates of title in the name of PEA, are alienable lands of the public domain. PEA
may lease these lands to private corporations but may not sell or transfer ownership of
these lands to private corporations. PEA may only sell these lands to Philippine citizens,
subject to ownership limitations in the 1987 Constitution and existing laws.
The 592.15 has.of submerged areas of Manila Bay remain inalienable natural resources of
the public domain and outside the commerce of man until classified as alienable or
disposable lands open to disposition and declared no longer needed for public service.
The government can make such classification and declaration only after PEA has
reclaimed these submerged areas. Only then can these lands qualify as agricultural lands
of the public domain, which are the only natural resources the government can alienate

HELD

95

Since the Amended JVA seeks to transfer to AMARI, a private corporation, ownership of
77.34 has.of the Freedom Islands, such transfer is void for being contrary to Section 3,
Article 12 of the 1987 Constitution which prohibits private corporations from acquiring
any kind of alienable land of the public domain
Since the Amended JVA also seeks to transfer to AMARI ownership of 290.156 has.of
still submerged areas of Manila Bay, such transfer is void for being contrary to Section 2,
Article 12 of the 1987 Constitution which prohibits the alienation of natural resources
other than agricultural lands of the public domain. PEA may reclaim these submerged
areas. Thereafter, the government can classify the reclaimed lands as alienable or
disposable, and further declare them no longer needed for public services. Still, the
transfer of such reclaimed alienable lands of the public domain to AMARI will be void in
view of Section 3, Article 12 that prohibits private corporations from acquiring any kind
of alienable land of the public domain.
Reasoning:
CA 141 of the Philippine National Assembly empowers the president to classify lands of
the public domain into alienable or disposable (Sec. 6).The President, upon
recommendation of the Secretary of Agriculture and Commerce, shall from time to time
classify the lands of the public domain into(a) Alienable of disposable, (b) timber, and
(c) mineral lands.
The President must first officially classify these lands as alienable or disposable, and then
declare them open to disposition or concession.
Sec. 59 states that the lands disposable under this title shall be classified as follows: (a)
Lands reclaimed by the Government by dredging, filling, or other means; (b) Foreshore;
(c) Marshy lands (d) Lands not included in any of the foregoing classes.
Sec. 61 states that the lands comprised in classes (a), (b) and (c) of section 59 shall be
disposed f to private parties by lease only and not otherwise
After the effectivity of the 1935 Constitution, government reclaimed and marshy
disposable lands of the public domain continued to be only leased and not sold to private
parties. These lands remained suis generic as the only alienable or disposable lands of the
public domain the government could not sell to private parties. The only way that the
government can sell to private parties government reclaimed and marshy disposable lands
of the public domain is for the legislature to pass a law authorizing such sale.
PD No. 1085, coupled with President Aquinos actual issuance of a special patent
covering the Freedom Islands, is equivalent to an official proclamation classifying the
Freedom Islands as alienable or disposable lands of the public domain. PD No. 1085 and
President Aquinos issuance of a land patent also constitute a declaration that the
Freedom Islands are no longer needed for public service. The Freedom Islands are thus
alienable or disposable lands of the public domain, open to disposition or concession to
qualified parties.
in case of sale or lease of disposable lands of the public domain, a public bidding is
required
1987 Constitution declares that all natural resources are owned by the State. With the
exception of agricultural lands, all other natural resources shall not be alienated. Article
12, Sec. 3 states that alienable lands of the public domain shall be limited to agricultural

lands. Private corporations or associations may not hold such alienable lands of the public
domain except by lease, for a period not exceeding 25 years, renewable for not more than
25 years, and not to exceed 1,000 has.in area.
ration behind the ban on corporations from acquiring except through lease is not well
understood. If the purpose is to equitably diffuse lands ownership then the Consti could
have simply limited the size of alienable lands of the public domain that corporations
could acquire. If the intent were to encourage owner-cultivatorship and the economic
family-size farm and to prevent a recurrence of cases like the instant case, then placing
the land in the name of a corporation would be more effective in preventing the break-up
of farmlands. If the farmland were registered in the name of a corporation, upon the death
of the owner, his heirs would inherit shares in the corporation instead of subdivided
parcels of the farmland. This would prevent the continuing break-up of farmlands into
smaller and smaller plots from one generation to the next. In actual practice then, this ban
strengthens the consti limitation on individuals from acquiring more than the allowed
area of alienable lands of the public domain. Without the ban, individuals who already
acquired the maximum area of alienable lands of the public domain could easily set up
corporations to acquire more alienable public lands. An individual could own as many
corporations as his means would allow him. He could even hide his ownership of a
corporation by putting his nominees as stockholders of the corporation.
In the instant case, the only patent and certificates of title issued are those in the name of
PEA, a wholly government owned corporation performing public as well as proprietary
functions. No patent or certificate of title has been issued to any private party. No one is
asking the Director of Lands to cancel PEAs patent or certificates of title. In fact, the
thrust of the instant petition is that PEAs certificates of title should remain with PEA,
and the land covered by these certificates, being alienable lands of the public domain,
should not be sold to a private corporation.
Registration of land under Act No. 496 or PD No. 1529 does not vest in the registrant
private or public ownership of the land. Registration is not a mode of acquiring
ownership but is merely evidence of ownership previously conferred by any of the
recognized modes of acquiring ownership. Registration does not give the registrant a
better right than what the registrant had prior to the registration. [102] The registration of
lands of the public domain under the Torrens system, by itself, cannot convert public
lands into private lands. [103]
Jurisprudence holding that upon the grant of the patent or issuance of the certificate of
title the alienable land of the public domain automatically becomes private land cannot
apply to government units and entities like PEA. The transfer of the Freedom Islands to
PEA was made subject to the provisions of CA No. 141 as expressly stated in Special
Patent No. 3517 issued by then President Aquino, to wit:
NOW, THEREFORE, KNOW YE, that by authority of the Constitution of the
Philippines and in conformity with the provisions of Presidential Decree No. 1084,
supplemented by Commonwealth Act No. 141, as amended, there are hereby granted and
conveyed unto the Public Estates Authority the aforesaid tracts of land containing a total
area of one million nine hundred fifteen thousand eight hundred ninety four (1,915,894)
square meters; the technical description of which are hereto attached and made an
integral part hereof. (Emphasis supplied)

96

Thus, the provisions of CA No. 141 apply to the Freedom Islands on matters not covered
by PD No. 1084. Section 60 of CA No. 141 prohibits, except when authorized by
Congress, the sale of alienable lands of the public domain that are transferred to
government units or entities. Section 60 of CA No. 141 constitutes, under Section 44 of
PD No. 1529, a statutory lien affecting title of the registered land even if not annotated
on the certificate of title. [104] Alienable lands of the public domain held by government
entities under Section 60 of CA No. 141 remain public lands because they cannot be
alienated or encumbered unless Congress passes a law authorizing their disposition.
Congress, however, cannot authorize the sale to private corporations of reclaimed
alienable lands of the public domain because of the constitutional ban. Only individuals
can benefit from such law.
The grant of legislative authority to sell public lands in accordance with Section 60 of CA
No. 141 does not automatically convert alienable lands of the public domain into private
or patrimonial lands. The alienable lands of the public domain must be transferred to
qualified private parties, or to government entities not tasked to dispose of public lands,
before these lands can become private or patrimonial lands. Otherwise, the constitutional
ban will become illusory if Congress can declare lands of the public domain as private or
patrimonial lands in the hands of a government agency tasked to dispose of public lands.
This will allow private corporations to acquire directly from government agencies
limitless areas of lands which, prior to such law, are concededly public lands
As the central implementing agency tasked to undertake reclamation projects nationwide,
with authority to sell reclaimed lands, PEA took the place of DENR as the government
agency charged with leasing or selling reclaimed lands of the public domain. The
reclaimed lands being leased or sold by PEA are not private lands, in the same manner
that DENR, when it disposes of other alienable lands, does not dispose of private lands
but alienable lands of the public domain. Only when qualified private parties acquire
these lands will the lands become private lands. In the hands of the government agency
tasked and authorized to dispose of alienable of disposable lands of the public domain,
these lands are still public, not private lands.
Furthermore, PEAs charter expressly states that PEA shall hold lands of the public
domain as well as any and all kinds of lands. PEA can hold both lands of the public
domain and private lands. Thus, the mere fact that alienable lands of the public domain
like the Freedom Islands are transferred to PEA and issued land patents or certificates of
title in PEAs name does not automatically make such lands private.
The Regalian doctrine is deeply implanted in our legal system. Foreshore and submerged
areas form part of the public domain and are inalienable. Lands reclaimed from
foreshore and submerged areas also form part of the public domain and are also
inalienable, unless converted pursuant to law into alienable or disposable lands of the
public domain. Historically, lands reclaimed by the government are sui generis, not
available for sale to private parties unlike other alienable public lands. Reclaimed lands
EN BANC

retain their inherent potential as areas for public use or public service. Alienable lands of
the public domain, increasingly becoming scarce natural resources, are to be distributed
equitably among our ever-growing population. To insure such equitable distribution, the
1973 and 1987 Constitutions have barred private corporations from acquiring any kind of
alienable land of the public domain. Those who attempt to dispose of inalienable natural
resources of the State, or seek to circumvent the constitutional ban on alienation of lands
of the public domain to private corporations, do so at their own risk.
We can now summarize our conclusions as follows:
1.
The 157.84 hectares of reclaimed lands comprising the Freedom Islands, now
covered by certificates of title in the name of PEA, are alienable lands of the public
domain. PEA may lease these lands to private corporations but may not sell or transfer
ownership of these lands to private corporations. PEA may only sell these lands to
Philippine citizens, subject to the ownership limitations in the 1987 Constitution and
existing laws.
2.
The 592.15 hectares of submerged areas of Manila Bay remain inalienable
natural resources of the public domain until classified as alienable or disposable lands
open to disposition and declared no longer needed for public service. The government
can make such classification and declaration only after PEA has reclaimed these
submerged areas. Only then can these lands qualify as agricultural lands of the public
domain, which are the only natural resources the government can alienate. In their
present state, the 592.15 hectares of submerged areas are inalienable and outside the
commerce of man.
3.
Since the Amended JVA seeks to transfer to AMARI, a private corporation,
ownership of 77.34 hectares [110] of the Freedom Islands, such transfer is void for being
contrary to Section 3, Article XII of the 1987 Constitution which prohibits private
corporations from acquiring any kind of alienable land of the public domain.
4.
Since the Amended JVA also seeks to transfer to AMARI ownership of 290.156
hectares [111] of still submerged areas of Manila Bay, such transfer is void for being
contrary to Section 2, Article XII of the 1987 Constitution which prohibits the alienation
of natural resources other than agricultural lands of the public domain. PEA may reclaim
these submerged areas. Thereafter, the government can classify the reclaimed lands as
alienable or disposable, and further declare them no longer needed for public service.
Still, the transfer of such reclaimed alienable lands of the public domain to AMARI will
be void in view of Section 3, Article XII of the 1987 Constitution which prohibits private
corporations from acquiring any kind of alienable land of the public domain.
Clearly, the Amended JVA violates glaringly Sections 2 and 3, Article XII of the 1987
Constitution. Under Article 1409 [112] of the Civil Code, contracts whose object or
purpose is contrary to law, or whose object is outside the commerce of men, are
inexistent and void from the beginning. The Court must perform its duty to defend and
uphold the Constitution, and therefore declares the Amended JVA null and void ab initio.
G.R. No. 199034 (Gloria Macapagal-Arroyo vs. Hon. Leila M. De Lima, in her capacity
as Secretary of the Department of Justice and Ricardo A. David, Jr., in his capacity as
Commissioner of the Bureau of Immigration) and G.R. No. 199046 (Jose Miguel T.
Arroyo vs. Hon. Leila M. De Lima, in her capacity as Secretary, Department of Justice,
Ricardo V. Paras III, in his capacity as Chief State Counsel, Department of Justice and
Ricardo A. David, Jr., in his capacity as Commissioner, Bureau of Immigration)

97

(b) REQUIRE the respondents to COMMENT on the consolidated petitions NOT LATER
THAN NOVEMBER 18, 2011;
Promulgated:

December 13, 2011

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

SEPARATE OPINION

VELASCO, JR., J.:

This is in response to the Dissenting Opinions of Justices Antonio T. Carpio and Maria
Lourdes P.A. Sereno in relation to the Temporary Restraining Order (TRO) issued by the
Court on November l5, 2011 pursuant to its Resolution of even date. In its relevant part,
the November 15, 2011 Resolution provided as follows:

x x x Acting on the Special Civil Actions for Certiorari and Prohibition with Prayer for
the Issuance of a Temporary Restraining Order and/or Writ of Preliminary Injunction, and
mindful of the underlying issues in the cases the right to life (which is the highest right
under the Constitution) and its supporting rights, including the right to travel the Court
Resolved to

(a) CONSOLIDATE the above-entitled cases;

(c) ISSUE a TEMPORARY RESTRAINING ORDER in the consolidated petitions,

enjoining the respondents from enforcing or implementing DOJ Department Circular No.
41 and Watchlist Order Nos. ASM-11-237 dated August 9, 2011, 2011-422 dated
September 6, 2011 and 2011-573 dated October 27, 2011, subject to the following
conditions:

(i)
The petitioners shall post a cash bond of Two Million Pesos (P2,000,000.00)
payable to this Court within five (5) days from notice hereof. Failure to post the bond
within the aforesaid period will result in the automatic lifting of the temporary restraining
order;

(ii)
The petitioners shall appoint a legal representative common to both of them
who will receive subpoena, orders and other legal processes on their behalf during their
absence. The petitioners shall submit the name of the legal representative, also within
five (5) days from notice hereof; and

(iii)
If there is a Philippine embassy or consulate in the place where they will be
traveling, the petitioners shall inform said embassy or consulate by personal appearance
or by phone of their whereabouts at all times; and

(d) SET the consolidated cases for ORAL ARGUMENTS on November 22, 2011 x x x.
xxxx

The temporary restraining order shall be immediately executory. Justices Antonio T.

Carpio and Bienvenido L. Reyes have reserved the right to submit their dissenting
opinions. Leonardo-De Castro, J., on official business. Del Castillo, J., on official leave.
(adv156 & 157)

98

The Court further Resolved to

The above Resolution was followed by the related November 18, 2011 and November 22,
2011 Resolutions, pertinently reading:

November 18, 2011 Resolution

On November 15, 2011, the Court issued a temporary restraining order enjoining
Secretary of Justice Leila M. De Lima, her agents, representatives, or persons acting in
her place or stead, from enforcing or implementing DOJ Department Circular No. 41 and
Watchlist Order Nos. ASM-11-237 dated August 9, 2011, 2011-422 dated September 6,
2011 and 2011-573 dated October 27, 2011. To date, it appears that Secretary De Lima
has effectively prevented petitioners Gloria Macapagal-Arroyo and Jose Miguel T.
Arroyo from leaving the country.

(a)
REQUIRE the petitioners to COMMENT, within ten (10) days from today, on
the Urgent Manifestation with Motion to Lift Temporary Restraining Order dated
November 18, 2011 filed by the Office of the Solicitor General (OSG) for public
respondents [x x x];

(b)
NOTE the Supplemental Compliance dated November 18, 2011 filed by Atty.
Ferdinand S. Topacio, submitting the Special Powers of Attorney from Mrs. Gloria
Macapagal Arroyo and Mr. Jose Miguel Arroyo pursuant to the resolution dated
November l8, 20ll;

(c)
NOTE the aforesaid Special Powers of Attorney authorizing him, among
others, to receive summons, subpoenas, orders and other legal processes, and to submit
documentary evidence.
Accordingly, on motion of the petitioners, the Court Resolved to require Secretary De
Lima to (a) SHOW CAUSE, within a NON-EXTENDIBLE period of ten (10) days from
notice hereof, why she should not be disciplinary dealt with or held in contempt for
failure to comply with the temporary restraining order and (b) IMMEDIATELY
COMPLY with the said temporary restraining order by allowing petitioners to leave the
country.

In its En Banc session of November 29, 2011, the Court revoted on the issue of whether
or not the TRO was suspended pending compliance by the petitioners of condition (ii) on
the requirement to appoint their legal representative. This issue was no longer reflected in
the adverted November 22, 2011 Resolution.

November 22, 2011 Resolution

On November 18, 2011, the Court, by a vote of 7-6, found that there was no sufficient
compliance with the second condition of the Temporary Restraining Order issued on
November 15, 2011. However, by a vote of 7-6, the Court ruled that the TRO was not
suspended pending compliance with the second condition. Thus, the Court resolved to
CLARIFY that the TRO was not suspended even with the finding that there was no full
compliance with the conditions of the TRO.

Unpromulgated Dissenting Opinion of Justice Sereno filed late and in contravention of

Section 2, Rule 10 of the Internal Rules of the Supreme Court (IRSC)

99

When, as earlier indicated, the En Banc Court conducted a revote on the question bearing
on the suspension of the TRO pending compliance with the appointment of petitioners
legal representative, a majority of 7 members categorically voted that the TRO was not
suspended. The revote, to stress, was held to clarify the correctness of the directives
contained in the Courts November 22, 2011 Resolution on the same issue.

After the vote, Justice Sereno, when asked when she would submit her dissenting opinion
thereon, committed to do so on December 1, 2011, a self-imposed deadline. As it turned
out, her opinion was belatedly filed only on December 2, 2011 (a Friday) at 4 p.m. She
did not even circulated a letter asking for an extension of time to submit her opinion. Her
late submission effectively prevented me from responding to her opinion since I was
already booked to leave for Jakarta on December 4, 2011 to attend the ASEAN Chief
Justices Roundtable on Environment. Accordingly, I requested Atty. Enriqueta E. Vidal to
hold in abeyance the promulgation of Justice Serenos opinion so that the matter of the
promulgation could be discussed in the December 6, 2011 En Banc session. I could have
had filed a separate opinion on her dissent had she filed it on December 1, 2011. For then,
I would have the rest of December 1 and the whole day of December 2, 2011 to prepare
and submit one.

There is yet another reason why I felt the dissent should not be promulgated until the
validity thereof is discussed by the En Banc. In my view, the disclosures made in Justice
Serenos dissent may constitute a breach of Sec. 2, Rule 10 of the IRSC which reads:

Sec. 2. Confidentiality of court sessions.Court sessions are executive in character, with

only the Members of the Court present. Court deliberations are confidential and shall not
be disclosed to outside parties, except as may be provided herein or as authorized by the
Court.

The following confidential matters, discussed during the November 18, 2011 session, are
embodied in the Dissenting Opinion of Justice Sereno promulgated on the same date, to
wit:

1. At this mornings special session called exclusively to deliberate on the pending

incidents in the above-consolidated Petitions, the Court voted on several matters:

The first voting was on whether the Resolution dated 15 November 2011 granting the
prayer for Temporary Restraining Order (TRO) by petitioners is to be reconsidered or
not. The justices who voted on the 15 November 2011 Resolution maintained the same
vote, 8-5.

The issue in the second voting, proposed by one of the members of the Court, was on
whether the TRO issued by the Clerk of Court should be recalled for failure to comply
with one of the conditions, Condition Number 2, imposed for the issuance of the TRO.
Condition No. 2 reads:

(ii) The petitioners shall appoint a legal representative common to both of them who will
receive subpoena, orders, and other legal processes on their behalf during their absence.
The petitioners shall submit the name of the legal representative, also within five (5) days
from notice hereof; (Emphasis supplied.)

On this matter, the voting was 76[1] finding that there was no compliance with the
second condition of the TRO.
The Chief Justice or the Division Chairperson shall record the action or actions taken in
each case for transmittal to the Clerk of Court or Division Clerk of Court after each
session. The notes of the Chief Justice and the Division Chairperson, which the Clerk of
Court and the Division Clerks of Court must treat with strict confidentiality, shall be the
bases of the minutes of the sessions.

The third voting proceeded from the result of the second voting whether, considering that
the Court found that there was a failure to comply with a condition imposed by the earlier
resolution, the Court should explicitly state that the TRO was thereby suspended in the
meantime pending compliance with Condition Number 2. The Court, by a vote of 7-6,
decided there was no need to explicitly state the legal effect on the TRO of the
noncompliance by petitioners with Condition Number 2 of the earlier Resolution.

100

to the Decision of the majority to grant the temporary restraining order (TRO) in favor of
petitioners continues.[6]

The fourth vote that was taken was on whether the Court would direct public respondents
to show cause why they should not be held in contempt for failure to comply with the
TRO and to comply therewith. The vote was unanimous.

The fifth vote was on whether public respondent DOJ Secretary should be ordered to also
show cause why she should not be held in contempt for showing disrespect for the Court.
The voting on this was 9-4.

The sixth voting was on whether to reset the schedule of the oral arguments. This was
unanimously denied.[2]

2. What took place in the En Banc morning sessions of the 15th, 18th, and 22nd of
November 2011 has been placed on record by Justice Antonio T. Carpio in a letter to
Chief Justice Renato C. Corona and circulated to all the members of the Court on the
morning of 24 November 2011.

The letter reads:

24 November 2011

The CHIEF JUSTICE

2. The Court, motu proprio, even without the motion from petitioners herein, is ordering
public respondent De Lima to show cause why she should not be held for indirect
contempt by showing disrespect to the Court. The majority has explained that this order
is anyway, to just require an explanation from her, and is thus not out of the ordinary.[3]
3. The majority, by a 7-6 voting, denied the minoritys proposition that a resolution be
issued including a phrase that the TRO is suspended pending compliance with the second
condition of the 15 November 2011 Resolution. The majority argued that such a
clarification is unnecessary, because it is clear that the TRO is conditional, and cannot be
made use of until compliance has been done. It was therefore the sense of the majority
that, as an offshoot of the winning vote that there was failure by petitioners to comply
with Condition Number 2, the TRO is implicitly deemed suspended until there is
compliance with such condition. Everyone believed that it would be clear to all that a
conditional TRO is what it is, conditional.[4]
4. Contrary to this interpretation, as stated, it was the understanding of a majority that the
TRO is suspended pending compliance with our earlier Resolution.[5]

On the other hand, the unpromulgated dissenting opinion of Justice Sereno contained the
following confidential matters:
1. To recall, my Dissenting Opinion of 18 November 2011 consisted of two parts: (1) a
narration of the voting that took place in the morning; and (2) the reason why my Dissent

Supreme Court

May I suggest that the issuance of the attached Resolution dated 22 November 2011,
which is supposed to clarify the Resolution dated 18 November 2011, be held in
abeyance until the En Banc has a chance to go over the same. Instead of clarifying the
Resolution dated 18 November 2011, the attached Resolution compounds the error in the
Resolution dated 18 November 2011. (Underlining supplied)
You will recall that during the En Banc meeting last 18 November 2011,[7] the En Banc,
after a long discussion, voted on the following issues:
1. That petitioners did not comply with condition (ii) for the issuance of the TRO
(voting was 7-6 with Carpio, Abad, Villarama, Mendoza, Sereno, Reyes and Bernabe as
the majority);
2. That there is no need to state in the Resolution that the TRO is suspended until
petitioners comply with condition (ii), that is, petitioners will simply be directed to
comply with condition (ii) for the issuance of the TRO (voting was 7-6, with Corona,
Velasco, Brion, Peralta, Bersamin, Abad, and Perez as the majority). This vote was taken
after Justice Abad stated that since condition (ii) for the issuance of the TRO was not
complied with, there was no need to state that the TRO is suspended since it is common
sense that the TRO cannot take effect unless all the conditions are satisfied. I had earlier

101

proposed that the Court recall the TRO for non-compliance of condition (ii) but Justice
Abads response was that it need not be recalled because its effectivity is deemed
suspended pending compliance with condition (ii). After all, Justice Abad said, it will
take only 10 minutes for the amended Special Power of Attorney to be submitted by Atty.
Topacio.

However, the Resolution dated 18 November 2011 did not reflect at all item 1. The
Resolution merely stated that petitioners are directed to comply with condition (ii) for the
issuance of the TRO, which correctly reflects item 2. Thus, in the En Banc meeting last
22 November 2011, I suggested that the En Banc clarify the Resolution dated 15
November 2011 to reflect item 1 above. The En Banc agreed, and no one objected.
Justice Velasco was designated to draft the clarificatory Resolution.

word, a revision of the second majority groups vote, which now has the effect of
reversing their earlier ruling. This is not strange, as any clarification of an earlier vote can
result in a very substantive revision of that earlier vote. I requested two (2) days to write
my Dissent.[10]

5. When the resolution came out, it was not, with all due respect, a fully accurate
reflection of what took place; thus, the sentences in my Dissent advising the acting chief
of the PIO to desist from interpreting our actions, the letter of Justice Carpio, and the
need for a re-voting by the En Banc on 29 November 2011. This incident demonstrates an
existing gap between the actual discussion and the voting results that take place in an En
Banc session and their reflection in written form via an unsigned resolution.[11]

x x x x[8]

Justice Carpios confidential letter aforementioned became part of the discussion during
the En Banc session on November 29, 2011 which ought not to be divulged to the public.

3. The letter of Justice Carpio was taken up on the morning of 29 November 2011. While
Justice Roberto A. Abad had argued on 18 November 2011 that the suspensive effect of
non-compliance with condition (ii) need no longer be stated, as it is common sense, this
time he voted unequivocably that despite non-compliance with condition (ii), the TRO is
nevertheless not suspended.[9]

4. The voting taken on 29 November 2011 was of the same composition as that of the 18
November 2011 voting. Justices Carpio, Abad, Martin S. Villarama, Jr., Jose C. Mendoza,
Maria Lourdes P. A. Sereno, Bienvenido L. Reyes and Estela M. Perlas-Bernabe as the
first majority group maintain that there was no compliance with condition (ii). Then the
majority grouping shifted when Justice Abad as he did on 18 November joined Chief
Justice Corona and Justices Presbitero J. Velasco, Jr., Arturo D. Brion, Diosdado M.
Peralta, Lucas P. Bersamin, and Jose P. Perez to comprise the majority. This time,
however, the majority categorically voted to declare the non-suspension of the TRO
despite non-compliance with condition (ii). There was therefore, in every sense of the

Justice Serenos unpromulgated dissenting opinion appears to me as a clear breach of Sec.

2, Rule 10 of the IRSC, which pronounces, in an unequivocal manner, that Court
deliberations are confidential and shall not be disclosed to outside parties, except as may
be provided herein (IRSC) or as authorized by the Court. The aforesaid excerpts from the
promulgated November 18, 2011 Dissenting Opinion and the unpromulgated Dissenting
Opinion of Justice Sereno are confidential matters taken up during the November 18,
2011 and November 29, 2011 En Banc sessions. They cannot be incorporated in an
opinion of a member of the Court as this will be tantamount to a proscribed disclosure to
outside parties even if contained in an opinion. Justice Sereno has not shown that such
disclosure is allowed by any rule of the IRSC or authorized by the Court.

More importantly, it is the Chief Justices task under Sec. 2, Rule 10 of the IRSC to record
the action or actions taken in each case. The notes of the Chief Justice shall be the bases
of the minutes of the session which, in turn, resolutions shall be predicated upon.
Nowhere in the Rules does it say that a member can incorporate the deliberations in
his/her opinion. This caveat is to obviate the possibility of conflicting statements of facts
that will likely arise especially if the member takes a contrary position to that of the
majority. Justice Sereno, by stating what are allegedly the result of the deliberations of
the En Banc and the votation on cases or incidents, appears to encroach into the functions
of the Chief Justice. This should not be countenanced as once a vote is taken on an issue,
the majority view then becomes that of the Court. To say that such was not the case, as is
the position of J. Sereno, would sow doubt and suspicion on the veracity of the
resolutions of the en banc as authenticated by the Clerk of Court. Else the stability of
judicial decisions and resolutions is compromised.

102

Accordingly, I recommend that the portions of the unpromulgated Dissenting Opinion of

Justice Sereno delving on what under the Rules are considered confidential be expunged
for being violative of Sec. 2, Rule 10 of the IRSC. In the same token, confidential matters
contained in this separate opinion should likewise be expunged in the event the Court
decides to adopt the recommendation herein made. It should be made clear, however, that
what impelled me to include matters in this opinion that only members of the Court ought
to know is to show that, should the dissenting opinion of Justice Sereno be promulgated
in its present form, it in itself is a departure from the IRSC.

The TRO authorized by the November l5, 20ll Resolution is immediately executory upon
compliance with the posting of the P2M bond.

The November 15, 2011 Resolution is clearThe temporary restraining order shall be
immediately executory. (Last paragraph, p. 3) This directive is qualified by item (c) of the
said Resolution which prescribed three (3) conditions:

i.
the posting of the P2M bond within 5 days from notice otherwise the TRO will
be automatically lifted;

ii.
the appointment of a legal representative who will receive subpoena, orders and
other legal processes during petitioners absence also within 5 days from notice; and

iii.

the petitioners shall inform said embassy of their whereabouts at all times.

It is my view that petitioners are required only to post the bond of P2M to pave the way
for the issuance of the TRO. This is clear from the 2nd sentence of condition (i) that the
failure to post the bond within 5 days will result in the automatic lifting of the TRO.

While The Court ruled later in its November 22, 2011 Resolution that the special power
of attorney submitted by Atty. Topacio on November 15, 2011 was insufficient, the TRO
however remained effective by virtue of the submission of the requisite P2M bond. It
should be made abundantly clear that the qualification respecting the automatic lifting of
the TRO obtaining in condition (i) was not made to apply to condition (ii), implying that
non-compliance with the requirement on the appointment of the legal representative will
not result in the lifting of the TRO. The matter of whether or not condition (ii) constitutes
a condition precedent or a subsequent condition, is now really of little moment. The
important consideration is that non-compliance with condition (ii) would not, under the
very terms of the enabling Resolution or the TRO itself, result in the automatic lifting of
the restraining order thus granted.

At any rate, on November 15, 2011, petitioners complied with conditions (i) and (ii) and,
as a result, the Office of the Clerk of Court issued the TRO pursuant to the November 15,
2011 Resolution. The presumptive validity of the TRO must be recognized, albeit the
original special power of attorney accorded Atty. Topacio was determined later to be noncompliant.

Respondent De Lima chose to ignore the TRO and so, on November 18, 2011, the Court
issued a Resolution requiring her to show cause why she should not be cited for contempt
for her failure to comply with the TRO and further require her to immediately comply
thereto. Justice Carpio questioned the accuracy and completeness of this Resolution.
Thus, the Resolution in question was discussed during the November 22, 2011 session.
By a vote of 7-6, the Court found that there was no sufficient compliance with the
required appointment of the legal representative of petitioners. Thereafter, there was a
long discussion on whether or not the TRO was suspended pending compliance with the
second condition. I distinctly remember moving that a vote be made on the issue of the
suspension or non-suspension of the TRO pending satisfaction of the second condition.
Thus, the majority vote of 7 held that the TRO was not suspended pending compliance
with the appointment of the legal representative of petitioners. As a matter of fact, on
November 18, 2011, petitioners already submitted a special power of attorney appointing
Atty. Topacio as their legal representative to receive summons, subpoenas, orders and
other legal processes. Thus, by November 18, 2011, the issue of whether or not the TRO
was suspended pending compliance with such requirement has already become moot and
academic and there is actually no necessity to clarify said issue. However, to set the
record straight, I certify that the draft directive on the non-suspension of the TRO is
correct and accurate.

On November 29, 2011, the Court En Banc voted anew on the same issue of the nonsuspension of the TRO pending compliance with the second condition and again, by a

103

vote of 7 against 6, the Court held that the TRO was not suspended. The majority
EN BANC

IN RE: Production of Court Records and Documents and the Attendance of Court
Officials and Employees as Witnesses under the Subpoenas of February 10, 2012 and the
Various Letters of the Impeachment Prosecution Panel dated January 19 and 25, 2012.
Promulgated: February 14, 2012
x-----------------------------------------------------------------------------------------x

SEPARATE OPINION

CARPIO, J.:

I concur with the Resolution of 14 February 2012 (Resolution), subject to certain

important clarifications and reservations.

1. On Judicial Privilege

Judicial Privilege, or the right of the Judiciary to confidentiality of certain information, is

implied from Judicial Power. Similarly, Executive Privilege, or the right of the Executive
to confidentiality of certain information, is implied from Executive Power. This Court has
explained the rationale for Judicial Privilege, Executive Privilege, as well as Legislative
Privilege, as follows:
[I]nformation x x x like internal deliberations of the Supreme Court and other collegiate
courts, or executive sessions of either house of Congress, are recognized as confidential.
This kind of information cannot be pried open by a co-equal branch of government. A
frank exchange of exploratory ideas and assessments, free from the glare of publicity and
pressure by interested parties, is essential to protect the independence of decision-making

sustained the correctness and validity of the November 22, 2011 Resolution. This should
put the issue to rest.
of those tasked to exercise Presidential, Legislative and Judicial power. x x x1 (Emphasis
supplied)
However, there are clear limits to Judicial Privilege, as there are clear limits to Executive
and Legislative Privilege. One overriding limitation on Judicial Privilege is that it can be
invoked only if the information arose from the performance of official adjudicatory
functions of Members of the Judiciary. As succinctly stated in the Resolution, Judicial
Privilege refers only to matters that are part of the internal deliberations and actions of
the Court in the exercise of the(ir) adjudicatory functions and duties of Justices. The
Resolution further states that the matter must refer to the performance of the(ir) official
functions of adjudication of Justices.

Thus, information relating to the commission of crimes or misconduct, or violations of

the Code of Judicial Conduct,2 or any violation of a law or regulation for that matter, is
not confidential because the commission of crimes or misconduct is not part of the
official functions or duties of Justices. Moreover, information that are outside the
adjudicatory functions of Justices, such as financial, budgetary, personnel and similar
administrative matters relating to the operations of the Judiciary, are not confidential. The
adjudicatory functions of Justices refer to their power to decide cases in the exercise of
Judicial Power, as distinguished from the power to make decisions in the exercise of
administrative functions.
Judicial Privilege is merely implied from Judicial Power. Thus, another limitation on
Judicial Privilege is the need to carefully weigh and calibrate its exercise when it clashes
with express constitutional rights and principles, such as freedom of expression,3
freedom of the press,4 the right of the people to information on matters of public
concern,5 and the State policy of full disclosure of all transactions involving public
interest.6 While these express constitutional rights and principles do not negate Judicial
Privilege, the Judiciary cannot invoke Judicial Privilege to claim confidentiality beyond
what is essential and necessary to preserve the exercise of Judicial Power.

Thus, information of no, or de minimis, value to the preservation of Judicial Power, such
as the date and time of receipt by the Clerk of Court7 of the Dissenting Opinion of a
Justice, cannot be deemed confidential. By no stretch of the imagination can release of
such information impair even slightly the exercise of Judicial Power. Such information is
obviously not part of the internal deliberations and actions of the Court. On the other
hand, such information is an official record and falls under the peoples constitutional
right to access to official records, and to documents, and papers pertaining to official x x
x decisions.8 This is one instance when an express constitutional right must prevail over
the invocation of Judicial Privilege.

104

2. On the Constitutional Duty to Explain Ones Dissent

The Constitution mandates that a Justice who dissents must explain his dissent. Thus,
Section 13, Article VIII of the 1987 Constitution provides in part:

Section 13. x x x Any Member who took no part, or dissented, or abstained from decision
or resolution must state the reason therefor. x x x (Underscoring and boldfacing supplied)

The framers of the 1987 Constitution used the word must to emphasize that the duty to
explain ones dissent is mandatory. The framers considered a violation of this express duty
a culpable violation of the Constitution.9

Without this constitutional command to state the reasons for his dissent, a Justice still has
a right to explain his dissent under the constitutional right of a citizen to freedom of
expression. With this constitutional command, a Justice has not only a right, but also a
duty, to explain his dissent. Under a Justices freedom of expression, he may or may not
explain his dissent. Under his constitutional duty to state the reason for his dissent, he has
no choice but to explain his dissent.

G.R. No. 169777, July 14, 2006

Requisites of Judicial Review
Legislative Inquiry vs. Executive Privilege
Executive Privilege, defined
Kinds of Executive Privilege
Executive Privilege as applied to an official
Constitutionality of EO 464
FACTS:
This case is regarding the railway project of the North Luzon Railways Corporation with
the China National Machinery and Equipment Group as well as the Wiretapping activity
of the ISAFP, and the Fertilizer scam.

Thus, the majority can never suppress the dissent of any Justice because to write a dissent
is not only a constitutional right but also a constitutional duty. If the majority suppress a
dissent, then they commit a culpable violation of the Constitution. This express
constitutional right and duty to explain ones dissent should be given utmost deference
vis--vis Judicial Privilege which is merely implied from Judicial Power. When a Justice
explains his dissent, he may even include in his dissent internal deliberations if such
internal deliberations are material in complying with his constitutional duty to state the
reasons for his dissent. Assuming that the dissent of a Justice breaches Judicial Privilege,
any sanction for such breach can only be made through impeachment by Congress, which
has the sole power to discipline impeachable officers. Any other rule means that the
majority can terrorize the minority into acquiescence by threatening to sanction them for
their dissents.

A Justice who dissents can explain his position only in his dissent and nowhere else. He
cannot go to media to expound on his dissent. He can articulate, and state his reasons,
only in his dissent. Thus, a Justice who dissents often strives to put into his dissent all the
arguments he could possibly marshal, hoping that his arguments could one day in the
future carry more weight with the wisdom of hindsight. Indeed, in both American and
Philippine jurisprudence, many dissents eventually emerged as the majority rule, and
some dissents were even enacted into law by the legislature. This is another reason for
giving dissents as much leeway as possible.

Accordingly, I concur with the Resolution of 14 February 2012 subject to the foregoing
clarifications and reservations.
The Senate Committees sent invitations to various officials of the Executive Department
and AFP officials for them to appear before Senate on Sept. 29, 2005. Before said date
arrived, Executive Sec. Ermita sent a letter to Senate President Drilon, requesting for a
postponement of the hearing on Sept. 29 in order to afford said officials ample time and
opportunity to study and prepare for the various issues so that they may better enlighten
the Senate Committee on its investigation. Senate refused the request.
On Sept. 28, 2005, the President issued EO 464, effective immediately, which, among
others, mandated that all heads of departments of the Executive Branch of the
government shall secure the consent of the President prior to appearing before either
House of Congress. Pursuant to this Order, Executive Sec. Ermita communicated to the
Senate that the executive and AFP officials would not be able to attend the meeting since
the President has not yet given her consent. Despite the lack of consent, Col. Balutan and
Brig. Gen. Gudani, among all the AFP officials invited, attended the investigation. Both
faced court marshal for such attendance.
Hence, these petitions.

105

ISSUES:
Whether or not EO 464 contravenes the power of inquiry vested in Congress
Whether or not EO 464 violates the right of the people to information on matters of
public concern
Whether or not respondents have committed grave abuse of discretion when they
implemented EO 464 prior to its publication in a newspaper of general circulation
RULING:

of a constitutional or statutory prohibition by the public respondent agency or

instrumentality of the government, and (3) the lack of any party with a more direct and
specific interest in raising the questions being raised.
ACTUAL CASE/CONTROVERSY
The Court finds respondents assertion that the President has not withheld her consent or
prohibited the appearance of the officials concerned immaterial in determining the
existence of an actual case or controversy insofar as EO 464 is concerned. For EO 464
does not require either a deliberative withholding of consent or an express prohibition
issuing from the President in order to bar officials from appearing before Congress.

ESSENTIAL REQUISITES OF JUDICIAL REVIEW:

there must be an actual case or controversy calling for the exercise of judicial power;
the person challenging the act must have standing to challenge the validity of the
subject act or issuance; otherwise stated, he must have a personal and substantial interest
in the case such that he has sustained, or will sustain, direct injury as a result of its
enforcement;
the question of constitutionality must be raised as the earliest opportunity; and
the issue of constitutionality must be the very lis mota of the case.
LEGAL STANDING

As the implementation of the challenged order has already resulted in the absence of
officials invited to the hearings of petitioner Senate of the Philippines, it would make no
sense to wait for any further event before considering the present case ripe for
adjudication. Indeed, it would be sheer abandonment of duty if this Court would now
refrain from passing on the constitutionality of EO 464.
The power of inquiry
The Congress power of inquiry is expressly recognized in Sec. 21, Art. VI. But as early as
1950 (the 1935 Constitution did not contain a similar provision) in Arnault v. Nazareno,
the Court already recognized that the power of inquiry is inherent in the power to
legislate. xxx

Standing of the Senate

That the Senate of the Philippines has a fundamental right essential not only for
intelligent public decision-making in a democratic system, but more especially for sound
legislation is not disputed. EO 464, however, allegedly stifles the ability of the members
of Congress to access information that is crucial to law-making. Verily, the Senate,
including its individual members, has a substantial and direct interest over the outcome of
the controversy and is the proper party to assail the constitutionality of EO 464. Indeed,
legislators have standing to maintain inviolate the prerogative, powers and privileges
vested by the Constitution in their office and are allowed to sue to question the validity of
any official action which they claim infringes their prerogatives as legislators.

That this power of inquiry is broad enough to cover officials of the executive branch may
be deduced from the same case. The power of inquiry...is co-extensive with the power to
legislate. The matters which may be a proper subject of legislation and those which may
be a proper subject of investigation are one. It follows that the operation of government,
being a legitimate subject for legislation, is a proper subject for investigation.
xxx the power of inquiry, with process to enforce it, is grounded on the necessity of the
information in the legislative process. If the information possessed by executive officials
on the operation of their offices is necessary for wise legislation on that subject, by parity
of reasoning, Congress has the right to that information and the power to compel the
disclosure thereof.

Standing of an ordinary citizen

The power of inquiry is subject to judicial review
It is well-settled that when suing as a citizen, the interest of the petitioner in assailing the
constitutionality of laws, presidential decrees, orders and other regulations must be direct
and personal. In Francisco v. House of Representatives, this Court held that when the
proceeding involves the assertion of a public right, the mere fact that he is a citizen
satisfies the requirement of personal interest.
Requisites for transcendental importance: Establish (1) the character of the funds (that it
is public) or other assets involved in the case, (2) the presence of a clear case of disregard

xxx the right of Congress to conduct inquiries in aid of legislation is, in theory, no less
susceptible to abuse than executive or judicial power. It may thus be subjected to judicial
review pursuant to the Courts certiorari powers under Sec. 1, Art. VIII.
For one...the inquiry itself might not properly be in aid of legislation, and thus beyond the
constitutional power of Congress. Such inquiry could not usurp judicial functions.
Parenthetically, one possible way for Congress to avoid such a result...is to indicate in its

106

invitations to the public officials concerned, or to any person for that matter, the possible
needed statute which prompted the need for the inquiry. Given such statement in its
investigations, along with the usual indication of the subject of inquiry and the questions
relative to and in furtherance thereof, there would be less room for speculation on the part
of the person invited on whether the inquiry is in aid of legislation.
Sec. 21, Art. VI likewise establishes crucial safeguards that proscribe the legislative
power of inquiry. The provision requires that the inquiry be done in accordance with the
Senate or Houses duly published rules of procedure, necessarily implying the
constitutional infirmity of an inquiry conducted without duly published rules of
procedure. Sec. 21 also mandates that the rights of persons appearing in or affected by
such inquiries be respected, an imposition that obligates Congress to adhere to the
guarantees in the Bill of Rights.
Exemption to power of inquiry
Even where the inquiry is in aid of legislation, there are still recognized exemptions to the
power of inquiry, which exemptions falls under the rubric of executive privilege.
Executive privilege, defined
Schwartz defines executive privilege as the power of the Government to withhold
information from the public, the courts, and the Congress. Similarly, Rozell defines it as
the right of the President and high-level executive branch officers to withhold
information from Congress, the courts, and ultimately the public.
Kinds of executive privilege
One variety of the privilege...is the state secrets privilege...on the ground that the
information is of such nature that its disclosure would subvert crucial military or
diplomatic objectives. Another variety is the informers privilege, or the privilege of the
Government not to disclose the identity of persons who furnish information of violations
of law to officers charged with the enforcement of that law. Finally, a generic privilege
for internal deliberations has been said to attach to intragovernmental documents
reflecting advisory opinions, recommendations and deliberations comprising part of a
process by which governmental decisions and policies are formulated.
That a type of information is recognized as privileged does not, however, necessarily
mean that it would be considered privileged in all instances. For in determining the
validity of a claim of privilege, the question that must be asked is not only whether the
requested information falls within one of the traditional privileges, but also whether that
privilege should be honored in a given procedural setting.
The principle of executive privilege

Executive privilege, whether asserted against Congress, the courts, or the public, is
recognized only in relation to certain types of information of a sensitive character. While
executive privilege is a constitutional concept, a claim thereof may be valid or not
depending on the ground invoked to justify it and the context in which it is made.
Noticeably absent is any recognition that executive officials are exempt from the duty to
disclose information by the mere fact of being executive officials. Indeed, the
extraordinary character of the exemptions indicates that the presumption inclines heavily
against executive secrecy and in favor of disclosure.
xxx
When Congress exercises its power of inquiry, the only way for department heads to
exempt themselves therefrom is by a valid claim of privilege. They are not exempt by the
mere fact that they are department heads. Only one executive official may be exempted
from this power the President on whom executive power is vested, hence, beyond the
reach of Congress except through the power of impeachment. It is based on her being the
highest official of the executive branch, and the due respect accorded to a co-equal
branch of government which is sanctioned by a long-standing custom.
By the same token, members of the Supreme Court are also exempt from this power of
inquiry. Unlike the Presidency, judicial power is vested in a collegial body; hence, each
member thereof is exempt on the basis not only of separation of powers but also on the
fiscal autonomy and the constitutional independence of the judiciary.
Constitutionality of Sec. 1, EO 464
Section 1, in view of its specific reference to Sec. 22 of Art. VI and the absence of any
reference to inquiries in aid of legislation, must be construed as limited in its application
to appearances of department heads in the question hour contemplated in the provision of
said Sec. 22, Art. VI xxx
The requirement then to secure presidential consent under Section 1, limited as it is only
to appearances in the question hour, is valid on its face. For under Sec. 22, Art. VI, the
appearance of department heads in the question hour is discretionary on their part.
Section 1 cannot, however, be applied to appearances of department heads in inquiries in
aid of legislation. Congress is not bound in such instances to respect the refusal of the
department head to appear in such inquiry, unless a valid claim of privilege is
subsequently made, either by the President herself or by the Executive Secretary.
Validity of Sec. 2 and 3, EO 464
En passant, the Court notes that Section 2(b) of EO 464 virtually states that executive
privilege actually covers persons. Such is a misuse of the doctrine. Executive
privilege...is properly invoked in relation to specific categories of information and not to
categories of persons.

107

The claim of executive privilege must be accompanied by specific allegation of basis

thereof
Certainly, Congress has the right to know why the executive considers the requested
information privileged. It does not suffice to merely declare that the President, or an
authorized head of office, has determined that it is so, and that the President has not
overturned that determination. Such declaration leaves Congress in the dark on how the
requested information could be classified as privileged. That the message is couched in
terms that, on first impression, do not seem like a claim of privilege only makes it more
pernicious. It threatens to make Congress doubly blind to the question of why the
executive branch is not providing it with the information that it has requested.
A claim of privilege, being a claim of exemption from an obligation to disclose
information, must, therefore, be clearly asserted xxx
Absent then a statement of the specific basis of a claim of executive privilege, there is no
way of determining whether it falls under one of the traditional privileges, or whether,
given the circumstances in which it is made, it should be respected xxx
Upon the other hand, Congress must not require the executive to state the reasons for the
claim with such particularity as to compel disclosure of the information which the
privilege is meant to protect. A useful analogy in determining the requisite degree of
particularity would be the privilege against self-incrimination xxx
The claim of privilege under Sec. 3, EO 464 in relation to Sec. 2(b) is thus invalid per se.
It is not asserted. It is merely implied. Instead of providing precise and certain reasons for
the claim, it merely invokes EO 464, coupled with an announcement that the President
has not given her consent. It is woefully insufficient for Congress to determine whether
the withholding of information is justified under the circumstances of each case. It
severely frustrates the power of inquiry of Congress.
In fine, Section 3 and Section 2(b) of EO 464 must be invalidated.
EO 464 unlawfully delegated authority to the heads of offices in Sec. 2(b) to determine
certain information as privileged
Section 2(b) in relation to Section 3 virtually provides that, once the head of office
determines that a certain information is privileged, such determination is presumed to
bear the Presidents authority and has the effect of prohibiting the official from appearing
before Congress, subject only to the express pronouncement of the President that it is
allowing the appearance of such official. These provisions thus allow the President to
authorize claims of privilege by mere silence.
Such presumptive authorization, however, is contrary to the exception nature of the
privilege. Executive privilege...is recognized with respect to information the confidential

nature of which is crucial to the fulfillment of the unique role and responsibilities of the
executive branch, or in those instances where exemption from disclosure is necessary to
the discharge of highly important executive responsibilities. The doctrine of executive
privilege is thus premised on the fact that certain informations (sic) must, as a matter of
necessity, be kept confidential in pursuit of the public interest. The privilege being, by
definition, an exemption from the obligation to disclose information, in this case to
Congress, the necessity must be of such high degree as to outweigh the public interest in
enforcing that obligation in a particular case.
In light of this highly exceptional nature of the privilege, the Court finds it essential to
limit to the President the power to invoke the privilege. She may of course authorize the
Executive Secretary to invoke the privilege on her behalf, in which case the Executive
Secretary must state that the authority is By order of the President, which means that he
personally consulted with her. The privilege being an extraordinary power, it must be
wielded only by the highest official in the executive hierarchy. In other words, the
President may not authorize her subordinates to exercise such power.
How executive privilege should be applied in the case of an official
xxx when an official is being summoned by Congress on a matter which, in his own
judgment, might be covered by executive privilege, he must be afforded reasonable time
to inform the President or the Executive Secretary of the possible need for invoking the
privilege. This is necessary in order to provide the President or the Executive Secretary
with fair opportunity to consider whether the matter indeed calls for a claim of executive
privilege. If, afer the lapse of that reasonable time, neither the President nor the Executive
Secretary invokes the privilege, Congress is no longer bound to respect the failure of the
official to appear before Congress and may then opt to avail of the necessary legal means
to compel his appearance.
Right to Information
There are, it bears noting, clear distinctions between the right of Congress to information
which underlies the power of inquiry and the right of the people to information on
matters of public concern. For one, the demand of a citizen for the production of
documents pursuant to his right to information does not have the same obligatory force as
a subpoena duces tecum issued by Congress. Neither does the right to information grant a
citizen the power to exact testimony from government officials. These powers belong
only to Congress and not to an individual citizen.
Thus, while Congress is composed of representatives elected by the people, it does not
follow, except in a highly qualified sense, that in every exercise of its power of inquiry,
the people are exercising their right to information.
To the extent that investigations in aid of legislation are generally conducted in public,
however, any executive assistance tending to unduly limit disclosures of information in
such investigations necessarily deprives the people of information which, being presumed

108

to be in aid of legislation, is presumed to be a matter of public concern. The citizens are

thereby denied access to information which they can use in formulating their own
opinions on the matter before Congress opinions which they can then communicate to
their representatives and other governmental officials through various legal means
allowed by their freedom of expression xxx
The impairment of the right of the people to information as a consequence of EO 464 is,
therefore, in the sense explained above, just as direct as its violation of the legislatures
power of inquiry.
Implementation of EO 464 prior to its publication
While EO 464 applies only to officials of the executive branch, it does not follow that the
same is exempt from the need for publication. On the need for publishing even those
statutes that do not directly apply to people in genera, Tanada v. Tuvera states: The term
Supreme Court

laws should refer to all laws and not only to those of general application, for strictly
speaking all laws relate to the people in general albeit there are some that do not apply to
them directly. An example is a law granting citizenship to a particular individual, like a
relative of President Marcos who was decreed instant naturalization. It surely cannot be
said that such a law does not affect the public although it unquestionably does not apply
directly to all the people. The subject of the law is a matter of public interest which any
member of the body politic may question in the political forums or, if he is a proper party,
even in courts of justice.
Although the above statement was made in reference to statutes, logic dictates that the
challenged order must be covered by the publication requirement. As explained above,
EO 464 has a direct effect on the right of the people to information on matters of public
concern. It is, therefore, a matter of public interest which members of the body politic
may question before this Court. Due process thus requires that the people should have
been apprised of this issuance before it was implemented.

Manila

FIRST DIVISION

- versus -

HAZEL MA. C. ANTOLIN,

G.R. No. 165036

Petitioner,

ABELARDO T. DOMONDON,

109

JOSE A. GANGAN, and

G.R. No. 175705

Petitioner,

VIOLETA J. JOSEF,

Respondents.

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

Present:

HAZEL MA. C. ANTOLIN

110

ANTONIETA FORTUNA-IBE,
CORONA, C. J., Chairperson,
- versus -

Promulgated:
Respondent.
VELASCO, JR.,

July 5, 2010

LEONARDO-DE CASTRO,

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

DECISION
DEL CASTILLO, and

DEL CASTILLO, J.:

PEREZ, JJ.

Examinations have a two-fold purpose. First, they are summative; examinations are
intended to assess and record what and how much the students have learned. Second, and
perhaps more importantly, they are formative; examinations are intended to be part and
parcel of the learning process. In a perfect system, they are tools for learning. In view of
the pedagogical aspect of national examinations, the need for all parties to fully ventilate
their respective positions, and the view that government transactions can only be
improved by public scrutiny, we remand these cases to the trial court for further
proceedings.

111

Factual Antecedents
68 %
Petitioner took the accountancy licensure examinations (the Certified Public Accountant
[CPA] Board Exams) conducted by the Board of Accountancy (the Board) in October
1997.[1] The examination results were released on October 29, 1997; out of 6,481
examinees, only 1,171 passed. Unfortunately, petitioner did not make it. When the results
were released, she received failing grades in four out of the seven subjects.[2]

Subject

Petitioners Grade
Theory of Accounts

Practical Accounting II

77 %

Convinced that she deserved to pass the examinations, she wrote to respondent Abelardo
T. Domondon (Domondon), Acting Chairman of the Board of Accountancy, and
requested that her answer sheets be re-corrected.[3] On November 3, 1997, petitioner was
shown her answer sheets, but these consisted merely of shaded marks, so she was unable
to determine why she failed the exam.[4] Thus, on November 10, 1997, she again wrote
to the Board to request for copies of (a) the questionnaire in each of the seven subjects (b)
her answer sheets; (c) the answer keys to the questionnaires, and (d) an explanation of the
grading system used in each subject (collectively, the Examination Papers).[5]

65 %
Business Law

66 %
Management Services

69 %
Auditing Theory

82 %

Acting Chairman Domondon denied petitioners request on two grounds: first, that
Section 36, Article III of the Rules and Regulations Governing the Regulation and
Practice of Professionals, as amended by Professional Regulation Commission (PRC)
Resolution No. 332, series of 1994, only permitted access to the petitioners answer sheet
(which she had been shown previously), and that reconsideration of her examination
result was only proper under the grounds stated therein:

Sec. 36 An examinee shall be allowed to have access or to go over his/her test papers or
answer sheets on a date not later than thirty (30) days from the official release of the
results of the examination. Within ten (10) days from such date, he/she may file his/her
request for reconsideration of ratings. Reconsideration of rating shall be effected only on
grounds of mechanical error in the grading of his/her testpapers or answer sheets, or
malfeasance.[6]

Auditing Problems

70 %
Practical Accounting I

112

Second, Acting Chairman Domondon clarified that the Board was precluded from
releasing the Examination Papers (other than petitioners answer sheet) by Section 20,
Article IV of PRC Resolution No. 338, series of 1994, which provides:

Sec. 20. Illegal, Immoral, Dishonorable, Unprofessional Acts The hereunder acts shall
constitute prejudicial, illegal, grossly immoral, dishonorable, or unprofessional conduct:

A. Providing, getting, receiving, holding, using or reproducing questions

On February 5, 1998, respondents filed their Opposition to the Application for a Writ of
Preliminary Mandatory Injunction, and argued, inter alia, that petitioner was not entitled
to the relief sought, that the respondents did not have the duty to furnish petitioner with
copies of the Examination Papers, and that petitioner had other plain, speedy, adequate
remedy in the ordinary course of law, namely, recourse to the PRC.[12] Respondents also
filed their Answer with Compulsory Counterclaim in the main case, which asked that the
Petition for Mandamus with Damages be dismissed for lack of merit on the following
grounds: (1) petitioner failed to exhaust administrative remedies; (2) the petition stated no
cause of action because there was no ministerial duty to release the information
demanded; and (3) the constitutional right to information on matters of public concern is
subject to limitations provided by law, including Section 20, Article IV, of PRC
Resolution No. 338, series of 1994.[13]

xxxx
3. that have been given in the examination except if the test bank for the subject has on
deposit at least two thousand (2,000) questions.[7]

After a further exchange of correspondence,[8] the Board informed petitioner that an

investigation was conducted into her exam and there was no mechanical error found in
the grading of her test papers.[9]

On March 3, 1998, petitioner filed an Amended Petition (which was admitted by the
RTC), where she included the following allegation in the body of her petition:

The allegations in this amended petition are meant only to plead a cause of action for
access to the documents requested, not for re-correction which petitioner shall assert in
the proper forum depending on, among others, whether she finds sufficient error in the
documents to warrant such or any other relief. None of the allegations in this amended
petition, including those in the following paragraphs, is made to assert a cause of action
for re-correction.[14]

Proceedings before the Regional Trial Court

Undeterred, on January 12, 1998, petitioner filed a Petition for Mandamus with Damages
against the Board of Accountancy and its members[10] before the Regional Trial Court
(RTC) of Manila. The case was raffled to Branch 33, and docketed as Civil Case No. 9886881. The Petition included a prayer for the issuance of a preliminary mandatory
injunction ordering the Board of Accountancy and its members (the respondents) to
furnish petitioner with copies of the Examination Papers. Petitioner also prayed that final
judgment be issued ordering respondents to furnish petitioner with all documents and
other materials as would enable her to determine whether respondents fairly administered
the examinations and correctly graded petitioners performance therein, and, if warranted,
to issue to her a certificate of registration as a CPA.[11]

If only to underscore the fact that she was not asking for a re-checking of her exam, the
following prayer for relief was deleted from the Amended Petition: and, if warranted, to
issue to her a certificate of registration as a CPA.

On June 23, 1998, respondents filed a Manifestation and Motion to Dismiss Application
for Writ of Preliminary Mandatory Injunction, on the ground that petitioner had taken and
passed the May 1998 CPA Licensure Examination and had taken her oath as a CPA.[15]
Petitioner filed her Opposition on July 8, 1998.[16] Subsequently, on October 29, 1998,
respondents filed their Answer with Counterclaim to the amended petition. They
reiterated their original allegations and further alleged that there was no cause of action
because at the time the Amended Petition was admitted, they had ceased to be members
of the Board of Accountancy and they were not in possession of the documents sought by
the petitioner.[17]

113

court in its Omnibus Order[22] dated November 11, 2002. The Omnibus Order provides
in part:
Ruling of the Regional Trial Court

In an Order dated October 16, 1998, the trial court granted respondents Motion to
Dismiss Petitioners Application for a Writ of Preliminary Mandatory Injunction (not the
main case), ruling that the matter had become moot since petitioner passed the May CPA
Licensure 1998 Examination and had already taken her oath as a CPA.[18]

Undaunted, petitioner sought and obtained leave to file a Second Amended Petition for
Mandamus with Damages[19] where she finally impleaded the PRC as respondent and
included the following plea in her prayer:

On the motion for reconsideration filed by the petitioner, the Court is inclined to
reconsider its Order dismissing the petition. The Court agrees with the petitioner that the
passing of the petitioner in the subsequent CPA examination did not render the petition
moot and academic because the relief and if warranted, to issue to her a certificate of
registration as Certified Public Accountant was deleted from the original petition. As
regard the issue of whether the petitioner has the constitutional right to have access to the
questioned documents, the Court would want first the parties to adduce evidence before it
can resolve the issue so that it can make a complete determination of the rights of the
parties.

The Court would also want the Professional Regulation Commission to give its side of
the case the moment it is impleaded as a respondent in the Second Amended Petition for
Mandamus filed by the petitioner which this Court is inclined to grant.

WHEREFORE, petitioner respectfully prays that:

xxxx

2. Judgment be issued

(a) commanding respondents to give petitioner all documents and other materials as
would enable her to determine whether respondents fairly administered the same
examinations and correctly graded petitioners performance therein and, if warranted, to
make the appropriate revisions on the results of her examination. (Emphasis ours)

As to the Motion for Conservatory Measures filed by the petitioner, the Court denies the
same. It is clear that the PRC has in custody the documents being requested by the
petitioner. It has also an adequate facility to preserve and safeguard the documents. To be
sure that the questioned documents are preserved and safeguarded, the Court will order
the PRC to preserve and safeguard the documents and make them available anytime the
Court or petitioner needs them.

WHEREFORE, the Order of this Court dated June 20, 2002 is reconsidered and set aside.
The Professional Regulation Commission is ordered to preserve and safeguard the
following documents:

a)
Questionnaire in each of the seven subjects comprising the Accountancy
Examination of October, 1997;
On June 21, 2002, the trial court dismissed the petition on the ground that the petition had
already become moot, since petitioner managed to pass the 1998 CPA Board
examinations.[20] Petitioner sought reconsideration[21] which was granted by the trial

b)

Petitioners Answer Sheets; and

c)

Answer keys to the questionnaires.

114

SO ORDERED.[23]

Respondents filed a motion for reconsideration which was denied.[24]

Proceedings before the Court of Appeals

The RTC Decisions led to the filing of three separate petitions for certiorari before the
Court of Appeals (CA):

Exam. In CA-GR SP No. 76498, the CA found, in a Decision dated February 16, 2004,
[26] that (i) Section 20, Article IV of PRC Resolution No. 338 constituted a valid
limitation on petitioners right to information and access to government documents; (ii)
the Examination Documents were not of public concern, because petitioner merely
sought review of her failing marks; (iii) it was not the ministerial or mandatory function
of the respondents to review and reassess the answers to examination questions of a
failing examinee; (iv) the case has become moot, since petitioner already passed the May
1998 CPA Board Examinations and took her oath as a CPA; and (v) petitioner failed to
exhaust administrative remedies, because, having failed to secure the desired outcome
from the respondents, she did not elevate the matter to the PRC before seeking judicial
intervention.[27]
CA-GR SP No. 76498 and CA-GR SP No. 76546 were brought before us by the
petitioner and docketed as G.R. Nos. 165036 and 175705, respectively. The cases were
then consolidated, in view of the similarity of the factual antecedents and issues, and to
avoid the possibility of conflicting decisions by different divisions of this Court.[28]

Issues
(a)
CA-GR SP No. 76498, a petition filed by respondents Domondon,
Gangan, and Josef on April 11, 2003;
(b)
30, 2003; and

CA-GR SP No. 76546, a petition filed by respondent Ibe on April

(c)
and PRC.

CA-GR SP No. 76545, a petition filed by the Board of Accountancy

It is the first two proceedings that are pending before us. In both cases, the CA set aside
the RTC Decisions and ordered the dismissal of Civil Case No. 98-8681.

Ruling of the Court of Appeals

In its December 11, 2006 Decision[25] in CA-GR SP No. 76546, the CA ruled that the
petition has become moot in view of petitioners eventual passing of the 1998 CPA Board

Before us, petitioner argues that she has a right to obtain copies of the examination papers
so she can determine for herself why and how she failed and to ensure that the Board
properly performed its duties. She argues that the Constitution[29] as well as the Code of
Conduct and Ethical Standards for Public Officials and Employees[30] support her right
to demand access to the Examination Papers. Furthermore, she claims that there was no
need to exhaust administrative remedies, since no recourse to the PRC was available, and
only a pure question of law is involved in this case. Finally, she claims that her demand
for access to documents was not rendered moot by her passing of the 1998 CPA Board
Exams.

Our Ruling

Propriety of Writ of Mandamus

At the very outset let us be clear of our ruling. Any claim for re-correction or revision of
her 1997 examination cannot be compelled by mandamus. This much was made evident
by our ruling in Agustin-Ramos v. Sandoval,[31] where we stated:

115

regulation (PRC Resolution No. 338) that is at issue in this case. In addition, under
Section 5(c), the PRC has the power to
After deliberating on the petition in relation to the other pleadings filed in the
proceedings at bar, the Court resolved to DENY said petition for lack of merit. The
petition at bar prays for the setting aside of the Order of respondent Judge dismissing
petitioners mandamus action to compel the other respondents (Medical Board of
Examiners and the Professional Regulation Commission) to reconsider, recorrect and/or
rectify the board ratings of the petitioners from their present failing grades to higher or
passing marks. The function of reviewing and re-assessing the petitioners answers to the
examination questions, in the light of the facts and arguments presented by them x x x is
a discretionary function of the Medical Board, not a ministerial and mandatory one,
hence, not within the scope of the writ of mandamus. The obvious remedy of the
petitioners from the adverse judgment by the Medical Board of Examiners was an appeal
to the Professional Regulation Commission itself, and thence to the Court of Appeals; and
since they did not apply for relief to the Commission prior to their institution of the
special civil action of mandamus in the Regional Trial Court, the omission was fatal to
the action under the familiar doctrine requiring exhaustion of administrative remedies.
Apart from the obvious undesirability of a procedure which would allow Courts to
substitute their judgment for that of Government boards in the determination of
successful examinees in any administered examination an area in which courts have no
expertise and the circumstance that the law declares the Court of Appeals to be the
appropriate review Court, the Regional Trial Court was quite correct in refusing to take
cognizance of an action seeking reversal of the quasi-judicial action taken by the Medical
Board of Examiners.[32] (Emphasis ours)

For a writ of mandamus to issue, the applicant must have a well-defined, clear, and
certain legal right to the thing demanded. The corresponding duty of the respondent to
perform the required act must be equally clear.[33] No such clarity exists here; neither
does petitioners right to demand a revision of her examination results. And despite
petitioners assertions that she has not made any demand for re-correction, the most
cursory perusal of her Second Amended Petition and her prayer that the respondents
make the appropriate revisions on the results of her examination belies this claim.

Like the claimants in Agustin, the remedy of petitioner from the refusal of the Board to
release the Examination Papers should have been through an appeal to the PRC.
Undoubtedly, petitioner had an adequate remedy from the Boards refusal to provide her
with copies of the Examination Papers. Under Section 5(a) of Presidential Decree No.
223,[34] the PRC has the power to promulgate rules and regulations to implement
policies for the regulation of the accounting profession.[35] In fact, it is one such

review, coordinate, integrate and approve the policies, resolutions, rules and regulations,
orders or decisions promulgated by the various Boards with respect to the profession or
occupation under their jurisdictions including the results of their licensure examinations
but their decisions on administrative cases shall be final and executory unless appealed to
the Commission within thirty (30) days from the date of promulgation thereof.

Petitioner posits that no remedy was available because the PRCs power to review and
approve in Section 5(c) only refers to appeals in decisions concerning administrative
investigations[36] and not to instances where documents are being requested. Not only is
this position myopic and self-serving, it is bereft of either statutory or jurisprudential
basis. The PRCs quasi-legislative and enforcement powers, encompassing its authority to
review and approve policies, resolutions, rules and regulations, orders, or decisions cover
more than administrative investigations conducted pursuant to its quasi-judicial powers.
[37] More significantly, since the PRC itself issued the resolution questioned by the
petitioner here, it was in the best position to resolve questions addressed to its area of
expertise. Indeed, petitioner could have saved herself a great deal of time and effort had
she given the PRC the opportunity to rectify any purported errors committed by the
Board.
One of the reasons for exhaustion of administrative remedies is our well-entrenched
doctrine on separation of powers, which enjoins upon the Judiciary a becoming policy of
non-interference with matters falling primarily (albeit not exclusively) within the
competence of other departments.[38] Courts, for reasons of law, comity and
convenience, should not entertain suits unless the available administrative remedies have
first been resorted to and the proper authorities have been given an appropriate
opportunity to act and correct their alleged errors, if any, committed in the administrative
forum. [39]

However, the principle of exhaustion of administrative remedies is subject to exceptions,

among which is when only a question of law is involved.[40] This is because issues of
law such as whether petitioner has a constitutional right to demand access to the
Examination Papers - cannot be resolved with finality by the administrative officer.[41]

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Issues of Mootness

We now turn to the question of whether the petition has become moot in view of
petitioners having passed the 1998 CPA examination. An issue becomes moot and
academic when it ceases to present a justiciable controversy, so that a declaration on the
issue would be of no practical use or value.[42]

In this jurisdiction, any citizen may challenge any attempt to obstruct the exercise of his
or her right to information and may seek its enforcement by mandamus.[43] And since
every citizen possesses the inherent right to be informed by the mere fact of citizenship,
[44] we find that petitioners belated passing of the CPA Board Exams does not
automatically mean that her interest in the Examination Papers has become mere
superfluity. Undoubtedly, the constitutional question presented, in view of the likelihood
that the issues in this case will be repeated, warrants review.[45]

The crux of this case is whether petitioner may compel access to the Examination
Documents through mandamus. As always, our inquiry must begin with the Constitution.
Section 7, Article III provides:

Sec.7. The right of the people to information on matters of public concern shall be
recognized. Access to official records, and to documents, and papers pertaining to official
acts, transactions, or decisions, as well to government research data used as basis for
policy development, shall be afforded the citizen, subject to such limitations as may be
provided by law.

Together with the guarantee of the right to information, Section 28, Article II promotes
full disclosure and transparency in government, viz:

Sec. 28. Subject to reasonable conditions prescribed by law, the State adopts and
implements a policy of full public disclosure of all its transactions involving public
interest.

Like all the constitutional guarantees, the right to information is not absolute. The
people's right to information is limited to "matters of public concern," and is further
"subject to such limitations as may be provided by law." Similarly, the State's policy of
full disclosure is limited to "transactions involving public interest," and is "subject to
reasonable conditions prescribed by law". The Court has always grappled with the
meanings of the terms "public interest" and "public concern." As observed in Legaspi v.
Civil Service Commission:[46]

In determining whether x x x a particular information is of public concern there is no

rigid test which can be applied. "Public concern" like "public interest" is a term that
eludes exact definition. Both terms embrace a broad spectrum of subjects which the
public may want to know, either because these directly affect their lives, or simply
because such matters naturally arouse the interest of an ordinary citizen. In the final
analysis, it is for the courts to determine on a case by case basis whether the matter at
issue is of interest or importance, as it relates to or affects the public.

We have also recognized the need to preserve a measure of confidentiality on some

matters, such as national security, trade secrets and banking transactions, criminal
matters, and other confidential matters.[47]

We are prepared to concede that national board examinations such as the CPA Board
Exams are matters of public concern. The populace in general, and the examinees in
particular, would understandably be interested in the fair and competent administration of
these exams in order to ensure that only those qualified are admitted into the accounting
profession. And as with all matters pedagogical, these examinations could be not merely
quantitative means of assessment, but also means to further improve the teaching and
learning of the art and science of accounting.
On the other hand, we do realize that there may be valid reasons to limit access to the
Examination Papers in order to properly administer the exam. More than the mere
convenience of the examiner, it may well be that there exist inherent difficulties in the
preparation, generation, encoding, administration, and checking of these multiple choice

117

exams that require that the questions and answers remain confidential for a limited
duration. However, the PRC is not a party to these proceedings. They have not been given
an opportunity to explain the reasons behind their regulations or articulate the
justification for keeping the Examination Documents confidential. In view of the farreaching implications of this case, which may impact on every board examination
administered by the PRC, and in order that all relevant issues may be ventilated, we deem
it best to remand these cases to the RTC for further proceedings.

Republic of the Philippines

SUPREME COURT
Manila
EN BANC
G.R. No. 200238

IN VIEW OF THE FOREGOING, the petitions are GRANTED. The December 11, 2006
and February 16, 2004 Decisions of the Court of Appeals in CA-GR SP No. 76546 and
CA-GR SP No. 76498, respectively, are hereby SET ASIDE. The November 11, 2002 and
January 30, 2003 Orders of the Regional Trial Court of Manila, Branch 33, in Civil Case
No. 98-86881 are AFFIRMED. The case is remanded to the Regional Trial Court for
further proceedings.
SO ORDERED.
On November 5, 2012, and during the pendency of this petition, petitioners filed a
Motion with Leave of Court to Withdraw the Petition3 averring that subsequent events
have overtaken the petition and that, with the termination of the impeachment
proceedings against former Chief Justice Corona, they are no longer faced with the
dilemma of either violating Republic Act No. 6426 (RA 6426) or being held in contempt
of court for refusing to disclose the details of the subject foreign currency deposits.

November 20, 2012

PHILIPPINE SAVINGS BANK (PSBANK) and PASCUAL M. GARCIA III, as

representative of Philippine Savings Bank and in his personal capacity, Petitioners,
vs.
SENATE IMPEACHMENT COURT, consisting of the senators of the republic of the
philippines acting as senator judges, namely: JUAN PONCE ENRILE, JINGGOY
EJERCITO ESTRADA, VICENTE C. SOTTO III, ALAN PETER S. CAYETANO,
EDGARDO J. ANGARA, JOKER P. ARROYO, PIA S. CAYETANO, FRANKLIN M.
DRILON, FRANCIS G. ESCUDERO, TEOFISTO GUINGONA III, GREGORIO B.
HONASAN II, PANFILO M. LACSON, MANUEL M. LAPID, LOREN B. LEGARDA,
FERDINAND R. MARCOS, JR., SERGIO R. OSMENA III, FRANCIS "KIKO"
PANGILINAN, AQUILINO PIMENTEL III, RALPH G. RECTO, RAMON REVILLA,
JR., ANTONIO F. TRILLANES IV, MANNY VILLAR; and THE HONORABLE
MEMBERS OF THE PROSECUTION PANEL OF THE HOUSE OF
REPRESENTATIVES, Respondents.
RESOLUTION
PERLAS-BERNABE, J.:
Petitioners Philippine Savings Bank (PSBank) and Pascual M. Garcia III, as President of
PSBank, filed a Petition for Certiorari and Prohibition seeking to nullity and set aside the
Resolution1 of respondent Senate of the Republic of the Philippines, sitting as an
Impeachment Court, which granted the prosecution's requests for subpoena duces tecum
ad testificandum2 to PSBank and/or its representatives requiring them to testify and
produce before the Impeachment Court documents relative to the foreign currency
accounts that were alleged to belong to then Suprerpe Court Chief Justice Renato C.
Corona.

It is well-settled that courts will not determine questions that have become moot and
academic because there is no longer any justiciable controversy to speak of. The
judgment will not serve any useful purpose or have any practical legal effect because, in
the nature of things, it cannot be enforced.4 In Gancho-on v. Secretary of Labor and
Employment,5 the Court ruled:
It is a rule of universal application that courts of justice constituted to pass upon
substantial rights will not consider questions in which no actual interests are involved;
they decline jurisdiction of moot cases. And where the issue has become moot and
academic, there is no justiciable controversy, so that a declaration thereon would be of no
practical use or value. There is no actual substantial relief to which petitioners would be
entitled and which would be negated by the dismissal of the petition. (Citations omitted)
Indeed, the main issue of whether the Impeachment Court acted arbitrarily when it issued
the assailed subpoena to obtain information concerning the subject foreign currency
deposits notwithstanding the confidentiality of such deposits under RA 6426 has been
overtaken by events. The supervening conviction of Chief Justice Corona on May 29,
2012, as well as his execution of a waiver against the confidentiality of all his bank
accounts, whether in peso or foreign currency, has rendered the present petition moot and
academic.
On the basis of the foregoing, the Court finds it appropriate to abstain from passing upon
the merits of this case where legal relief is no longer needed nor called for.1wphi1
WHEREFORE, the petition is DISMISSED for having become moot and academic and
the temporary restraining order issued by the Court on February 9, 2012 is LIFTED.
SO ORDERED.

Supreme Court

118

Manila

EN BANC

RE: REQUEST FOR COPY OF 2008 STATEMENT OF ASSETS, LIABILITIES AND

NETWORTH [SALN] AND PERSONAL DATA SHEET OR CURRICULUM VITAE
OF THE JUSTICES OF THE SUPREME COURT AND OFFICERS AND
EMPLOYEES

A.M. No. 09-8-07-CA

OF THE JUDICIARY.
Present:
x-----------------------x
CARPIO,
RE: REQUEST OF PHILIPPINE CENTER FOR INVESTIGATIVE JOURNALISM
[PCIJ] FOR THE 2008 STATEMENT OF ASSETS, LIABILITIES AND NET WORTH
[SALN] AND PERSONAL DATA SHEETS OF THE COURT OF APPEALS JUSTICES.

VELASCO, JR.,
LEONARDO-DE CASTRO,
BRION,
PERALTA,
BERSAMIN,

A.M. No. 09-8-6-SC

DEL CASTILLO,
ABAD,
VILLARAMA, JR.,
PEREZ,

119

MENDOZA,
SERENO,

The two requests were ordered consolidated by the Court on August 18, 2009.[3] On the
same day, the Court resolved to create a special committee (Committee) to review the
policy on requests for SALN and PDS and other similar documents, and to recommend
appropriate action on such requests.[4]

REYES, and
PERLAS-BERNABE, JJ.

Promulgated:

On November 23, 2009, the Committee, chaired by then Associate Justice Minita V.
Chico-Nazario submitted its Memorandum[5] dated November 18, 2009 and its
Resolution[6] dated November 16, 2009, recommending the creation of Committee on
Public Disclosure that would, in essence, take over the functions of the Office of the
Court Administrator (OCA) with respect to requests for copies of, or access to, SALN,
and other personal documents of members of the Judiciary.

June 13, 2012

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

Meanwhile, several requests for copies of the SALN and other personal documents of the
Justices of this Court, the CA and the Sandiganbayan (SB) were filed. In particular, these
requests include the:

RESOLUTION

MENDOZA, J.:

In a letter,[1] dated July 30, 2009, Rowena C. Paraan, Research Director of the Philippine
Center for Investigative Journalism (PCIJ), sought copies of the Statement of Assets,
Liabilities and Networth (SALN) of the Justices of this Court for the year 2008. She also
requested for copies of the Personal Data Sheet (PDS) or the Curriculum Vitae (CV) of
the Justices of this Court for the purpose of updating their database of information on
government officials.

In her Letter,[2] dated August 13, 2009, Karol M. Ilagan, a researcher-writer also of the
PCIJ, likewise sought for copies of the SALN and PDS of the Justices of the Court of
Appeals (CA), for the same above-stated purpose.

(1) SUBPOENA DUCES TECUM,[7] dated September 10, 2009, issued by Atty. E. H.
Amat, Acting Director, General Investigation Bureau-B of the Office of the Ombudsman,
directing the Office of Administrative Services, Supreme Court to submit two (2) copies
of the SALN of Associate Justice Roland B. Jurado of the Sandiganbayan for the years
1997-2008, his latest PDS, his Oath of Office, appointment papers, and service records.

(2) LETTER,[8] dated April 21, 2010, of the Philippine Public Transparency Reporting
Project, asking permission to be able to access and copy the SALN of officials and
employees of the lower courts.

(3) LETTER,[9] filed on August 24, 2011, by Marvin Lim, seeking copies of the SALN
of Chief Justice Renato C. Corona, Associate Justices Antonio T. Carpio, Presbitero J.
Velasco, Jr., Teresita Leonardo-De Castro, Arturo D. Brion, Diosdado M. Peralta, Lucas
P. Bersamin, Mariano C. Del Castillo, Roberto A. Abad, Martin S. Villarama, Jr., Jose
Portugal Perez, Jose C. Mendoza, and Maria Lourdes P.A. Sereno.

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(4) LETTER,[10] dated August 26, 2011, of Rawnna Crisostomo, Reporter, GMA News
and Public Affairs also requesting for copies of the SALN of Chief Justice Renato C.
Corona, Associate Justices Antonio T. Carpio, Presbitero J. Velasco, Jr., Teresita
Leonardo-De Castro, Arturo D. Brion, Diosdado M. Peralta, Lucas P. Bersamin, Mariano
C. Del Castillo, Roberto A. Abad, Martin S. Villarama, Jr., Jose Portugal Perez, Jose C.
Mendoza, and Maria Lourdes P.A. Sereno, for purposes of producing a story on
transparency and governance, and updating their database.

(9) LETTER,[26] dated December 19, 2011, of Malou Mangahas, Executive Director,
PCIJ, requesting for copies of the SALN, PDS or CVs of the Justices of the Supreme
Court from the year they were appointed to the present.

(10) SUBPOENA AD TESTIFICANDUM ET DUCES TECUM,[27] issued on January

17, 2012, by the Senate, sitting as an Impeachment Court, in connection with
Impeachment Case No. 002-2011 against Chief Justice Renato C. Corona, requiring the
Clerk of Court, among others, to bring with her the SALN of Chief Justice Renato C.
Corona for the years 2002 to 2011.
(5) LETTER,[11] dated October 11, 2011, of Bala S. Tamayo, requesting for a copy of
the 2010 SALN of any Justice of the Supreme Court as well as a copy of the Judiciary
Development Fund, for purposes of her securing a huge percentage in final examination
in Constitutional Law I at the San Beda College Alabang School of Law and for her study
on the state of the Philippine Judiciary, particularly the manner, nature and disposition of
the resources under the JDF and how these have evolved through the years.

(6) LETTERS, all dated December 19, 2011, of Harvey S. Keh, Lead Convenor of Kaya
Natin! Movement for Good Governance and Ethical Leadership, addressed to Chief
Justice Renato C. Corona,[12] Associate Justices Presbitero J. Velasco, Jr.,[13] Teresita
Leonardo-De Castro,[14] Arturo D. Brion,[15] Diosdado M. Peralta,[16] Mariano C. Del
Castillo,[17] Jose Portugal Perez,[18] and Maria Lourdes P.A. Sereno,[19] requesting for
copies of their SALN and seeking permission to post the same on their website for the
general public.

(7) LETTER,[20] dated December 21, 2011, of Glenda M. Gloria, Executive Director,
Newsbreak, seeking copies of the SALN of the Supreme Court Justices covering various
years, for the purpose of the stories they intend to put on their website regarding the
Supreme Court and the Judiciary.

(8) LETTERS, all dated January 3, 2012, of Phillipe Manalang of Unlimited Productions,
Inc., addressed to Associate Justices Presbitero J. Velasco, Jr.,[21] Teresita Leonardo-De
Castro,[22] Mariano C. Del Castillo[23] and Jose Portugal Perez,[24] and Atty. Enriqueta
Esguerra-Vidal, Clerk of Court, Supreme Court[25] requesting for copies of the SALN of
the Supreme Court Justices for the years 2010 and 2011.

(11) LETTER,[28] dated January 16, 2012, of Nilo Ka Nilo H. Baculo, Sr., requesting
copies of the SALN of the Supreme Court Justices for the years 2008 to 2011, for his use
as a media practitioner.

(12) LETTER,[29] dated January 25, 2012, of Roxanne Escaro-Alegre of GMA News,
requesting for copies of the SALN of the Supreme Court Justices for the networks story
on the political dynamics and process of decision-making in the Supreme Court.

(13) LETTER,[30] dated January 27, 2012, of David Jude Sta. Ana, Head, News
Operations, News 5, requesting for copies of the 2010-2011 SALN of the Supreme Court
Justices for use as reference materials for stories that will be aired in the newscasts of
their television network.

(14) LETTER,[31] dated January 31, 2012, of Michael G. Aguinaldo, Deputy Executive
Secretary for Legal Affairs, Malacaang, addressed to Atty. Enriqueta Esguerra-Vidal,
Clerk of Court, Supreme Court, seeking her comments and recommendation on House
Bill No. 5694,[32] to aid in their determination of whether the measure should be
certified as urgent.

121

(15) Undated LETTER[33] of Benise P. Balaoing, Intern of Rappler.com, a news website,

seeking copies of the 2010 SALN of the Justices of the Court and the CA for the purpose
of completing its database in preparation for its coverage of the 2013 elections.

(16) LETTER,[34] dated April 27, 2012, of Maria A. Ressa, Chief Executive Officer and
Executive Officer and Executive Editor of Rappler, Inc., requesting for copies of the
current SALN of all the Justices of the Supreme Court, the Court of Appeals and the
Sandiganbayan also for the purpose of completing its database in preparation for its
coverage of the 2013 elections.

(17) LETTER,[35] dated May 2, 2012, of Mary Ann A. Seir, Junior Researcher, News
Research Section, GMA News and Public Affairs, requesting for copies of the SALN of
Chief Justice Renato C. Corona and the Associate Justices of the Supreme Court for the
calendar year 2011 for the networks use in their public affairs programs.

(18) LETTER,[36] dated May 4, 2012, of Edward Gabud, Sr., Desk Editor of Solar
Network, Inc., requesting for copies of the 2011 SALN of all the Justices of the Supreme
Court.

(19) LETTER,[37] dated May 30, 2012, of Gerry Lirio, Senior News Editor, TV5
requesting for copies of the SALN of the Justices of the Court for the last three (3) years
for the purpose of a special report it would produce as a result of the impeachment and
subsequent conviction of Chief Justice Renato C. Corona.

(20) LETTER,[38] dated May 31, 2012, of Atty. Joselito P. Fangon, Assistant
Ombudsman, Field Investigation Office, Office of the Ombudsman, requesting for 1]
certified copies of the SALN of former Chief Justice Renato C. Corona for the years
2002-2011, as well as 2] a certificate of his yearly compensation, allowances, and
bonuses, also for the years 2002-2011.

(21) LETTER,[39] dated June 8, 2012, of Thea Marie S. Pias, requesting a copy of the
SALN of any present Supreme Court Justice, for the purpose of completing her grade in
Legal Philosophy at the San Beda College of Law.

Pursuant to Section 6, Article VIII of the 1987 Constitution,[40] the Court, upon
recommendation of the OCA, issued its Resolution[41] dated October 13, 2009, denying
the subpoena duces tecum for the SALNs and personal documents of Justice Roland B.
Jurado of the SB. The resolution also directed the Ombudsman to forward to the Court
any complaint and/or derogatory report against Justice Roland B. Jurado, in consonance
with the doctrine laid down in Caiobes v. Ombudsman.[42] Upon compliance by the
Ombudsman, the Court, in its Resolution[43] dated February 2, 2010, docketed this
matter as a regular administrative complaint.[44]

Also, considering the development in Impeachment Case No. 002-2011 against Chief
Justice Renato C. Corona, the Court, on January 24, 2012, resolved to consider moot the
Subpoena Ad Testificandum Et Duces Tecum issued by the Senate impeachment court.
[45]

In resolving the remaining pending incidents, the Court, on January 17, 2012 required the
CA, the SB, the CTA, the Philippine Judges Association, the Metropolitan and City
Judges Association of the Philippines, the Philippine Trial Judges League, and the
Philippine Women Judges Association (PWJA), to file their respective comments.

In essence, it is the consensus of the Justices of the above-mentioned courts and the
various judges associations that while the Constitution holds dear the right of the people
to have access to matters of concern, the Constitution also holds sacred the independence
of the Judiciary. Thus, although no direct opposition to the disclosure of SALN and other
personal documents is being expressed, it is the uniform position of the said magistrates
and the various judges associations that the disclosure must be made in accord with the

122

guidelines set by the Court and under such circumstances that would not undermine the
independence of the Judiciary.

After a review of the matters at hand, it is apparent that the matter raised for
consideration of the Court is not a novel one. As early as 1989, the Court had the
opportunity to rule on the matter of SALN disclosure in Re: Request of Jose M.
Alejandrino,[46] where the Court denied the request of Atty. Alejandrino for the SALNs
of the Justices of the Court due to a plainly discernible improper motive. Aggrieved by an
adverse decision of the Court, he accused the Justices of patent partiality and alluded that
they enjoyed an early Christmas as a result of the decision promulgated by the Court.
Atty. Alejandrino even singled out the Justices who took part in the decision and
conspicuously excluded the others who, for one reason or another, abstained from voting
therein. While the Court expressed its willingness to have the Clerk of Court furnish
copies of the SALN of any of its members, it however, noted that requests for SALNs
must be made under circumstances that must not endanger, diminish or destroy the
independence, and objectivity of the members of the Judiciary in the performance of their
judicial functions, or expose them to revenge for adverse decisions, kidnapping,
extortion, blackmail or other untoward incidents. Thus, in order to give meaning to the
constitutional right of the people to have access to information on matters of public
concern, the Court laid down the guidelines to be observed for requests made. Thus:

1. All requests for copies of statements of assets and liabilities of any Justice or Judge
shall be filed with the Clerk of Court of the Supreme Court or with the Court
Administrator, as the case may be (Section 8 [A][2], R.A. 6713), and shall state the
purpose of the request.

2. The independence of the Judiciary is constitutionally as important as the right to

information which is subject to the limitations provided by law. Under specific
circumstances, the need for fair and just adjudication of litigations may require a court to
be wary of deceptive requests for information which shall otherwise be freely available.
Where the request is directly or indirectly traced to a litigant, lawyer, or interested party
in a case pending before the court, or where the court is reasonably certain that a disputed
matter will come before it under circumstances from which it may, also reasonably, be
assumed that the request is not made in good faith and for a legitimate purpose, but to
fish for information and, with the implicit threat of its disclosure, to influence a decision
or to warn the court of the unpleasant consequences of an adverse judgment, the request
may be denied.

3. Where a decision has just been rendered by a court against the person making the
request and the request for information appears to be a fishing expedition intended to
harass or get back at the Judge, the request may be denied.

4. In the few areas where there is extortion by rebel elements or where the nature of their
work exposes Judges to assaults against their personal safety, the request shall not only be
denied but should be immediately reported to the military.

5. The reason for the denial shall be given in all cases.

In the 1992 case of Re: Request for Certified True Copies of the Sworn Statements of
Assets, Liabilities and Networth,[47] the request was denied because the Court found that
the purpose of the request was to fish for information against certain members of the
Judiciary. In the same case, the Court resolved to authorize the Court Administrator to act
on all requests for copies of SALN, as well as other papers on file with the 201 Personnel
Records of lower court judges and personnel, provided that there was a court subpoena
duly signed by the Presiding Judge in a pending criminal case against a judge or
personnel of the Judiciary. The Court added that for requests made by the Office of the
Ombudsman, the same must be personally signed by the Ombudsman himself.
Essentially, the Court resolved that, in all instances, requests must conform to the
guidelines set in the Alejandrino case and that the documents or papers requested for
must be relevant and material to the case being tried by the court or under investigation
by the Ombudsman.

In 1993, the Court, in Request for Certified True Copies of the Sworn Statements of
Assets, Liabilities and Net Worth of former Judge Luis D. Dictado,[48] ruled that the
OCA may extend its granted authority to retired members of the Judiciary.

With respect to investigations conducted by the Office of the Ombudsman in a criminal

case against a judge, the Court, in Maceda v. Vasquez,[49] upheld its constitutional duty
to exercise supervision over all inferior courts and ruled that an investigation by the
Office of the Ombudsman without prior referral of the criminal case to the Court was an
encroachment of a constitutional duty that ran afoul to the doctrine of separation of
powers. This pronouncement was further amplified in the abovementioned case of
Caiobes. Thus:

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x x x Under Section 6, Article VIII of the Constitution, it is the Supreme Court which is
vested with exclusive administrative supervision over all courts and its personnel.
Prescinding from this premise, the Ombudsman cannot determine for itself and by itself
whether a criminal complaint against a judge, or court employee, involves an
administrative matter. The Ombudsman is duty bound to have all cases against judges and
court personnel filed before it, referred to the Supreme Court for determination as to
whether an administrative aspect is involved therein. This rule should hold true regardless
of whether an administrative case based on the act subject of the complaint before the
Ombudsman is already pending with the Court. For, aside from the fact that the
Ombudsman would not know of this matter unless he is informed of it, he should give
due respect for and recognition of the administrative authority of the Court, because in
determining whether an administrative matter is involved, the Court passes upon not only
administrative liabilities but also administrative concerns, as is clearly conveyed in the
case of Maceda v. Vasquez (221 SCRA 464[1993]).

The Ombudsman cannot dictate to, and bind the Court, to its findings that the case before
it does or does not have administrative implications. To do so is to deprive the Court of
the exercise of its administrative prerogatives and to arrogate unto itself a power not
constitutionally sanctioned. This is a dangerous policy which impinges, as it does, on
judicial independence.

Maceda is emphatic that by virtue of its constitutional power of administrative

supervision over all courts and court personnel, from the Presiding Justice of the Court of
Appeals down to the lowest municipal trial court clerk, it is only the Supreme Court that
can oversee the judges and court personnels compliance with all laws, and take the proper
administrative action against them if they commit any violation thereof. No other branch
of government may intrude into this power, without running afoul of the doctrine of
separation of powers.

Sec. 7. The right of the people to information on matters of public concern shall be
recognized. Access to official records, and to documents, and papers pertaining to official
acts, transactions, or decisions, as well as to government research data used as basis for
policy development, shall be afforded the citizen, subject to such limitations as may be
provided by law.

Emphasizing the import and meaning of the foregoing constitutional provision, the Court,
in the landmark case of Valmonte v. Belmonte, Jr.,[50] elucidated on the import of the
right to information in this wise:

The cornerstone of this republican system of government is delegation of power by the

people to the State. In this system, governmental agencies and institutions operate within
the limits of the authority conferred by the people. Denied access to information on the
inner workings of government, the citizenry can become prey to the whims and caprices
of those to whom the power had been delegated. The postulate of public office is a public
trust, institutionalized in the Constitution to protect the people from abuse of
governmental power, would certainly be mere empty words if access to such information
of public concern is denied x x x.

x x x The right to information goes hand-in-hand with the constitutional policies of full
public disclosure and honesty in the public service. It is meant to enhance the widening
role of the citizenry in governmental decision-making as well as in checking abuse in
government. (Emphases supplied)

In Baldoza v. Dimaano,[51] the importance of the said right was pragmatically

explicated:

Corollary to the above pronouncements, Section 7, Article III of the Constitution is

relevant in the issue of public disclosure of SALN and other documents of public
officials, viz:

The incorporation of this right in the Constitution is a recognition of the fundamental role
of free exchange of information in a democracy. There can be no realistic perception by
the public of the nations problems, nor a meaningful democratic decision-making if they
are denied access to information of general interest. Information is needed to enable the
members of society to cope with the exigencies of the times. As has been aptly observed:
Maintaining the flow of such information depends on protection for both its acquisition

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and its dissemination since, if either process is interrupted, the flow inevitably ceases.
However, restrictions on access to certain records may be imposed by law.

Thus, while public concern like public interest eludes exact definition and has been said
to embrace a broad spectrum of subjects which the public may want to know, either
because such matters directly affect their lives, or simply because such matters naturally
arouse the interest of an ordinary citizen,[52] the Constitution itself, under Section 17,
Article XI, has classified the information disclosed in the SALN as a matter of public
concern and interest. In other words, a duty to disclose sprang from the right to know.
Both of constitutional origin, the former is a command while the latter is a permission.
Hence, the duty on the part of members of the government to disclose their SALNs to the
public in the manner provided by law:

their spouses and of unmarried children under eighteen (18) years of age living in their
households.
(A) Statements of Assets and Liabilities and Financial Disclosure. - All public officials
and employees, except those who serve in an honorary capacity, laborers and casual or
temporary workers, shall file under oath their Statement of Assets, Liabilities and Net
Worth and a Disclosure of Business Interests and Financial Connections and those of
their spouses and unmarried children under eighteen (18) years of age living in their
households.
The two documents shall contain information on the following:
(a) real property, its improvements, acquisition costs, assessed value and current fair
market value;
(b) personal property and acquisition cost;
(c) all other assets such as investments, cash on hand or in banks, stocks, bonds, and the
like;
(d) liabilities, and;
(e) all business interests and financial connections.

Section 17. A public officer or employee shall, upon assumption of office and as often
thereafter as may be required by law, submit a declaration under oath of his assets,
liabilities, and net worth. In the case of the President, the Vice-President, the Members of
the Cabinet, the Congress, the Supreme Court, the Constitutional Commissions and other
constitutional offices, and officers of the armed forces with general or flag rank, the
declaration shall be disclosed to the public in the manner provided by law. [Emphasis
supplied]

The documents must be filed:

This Constitutional duty is echoed and particularized in a statutory creation of Congress:

Republic Act No. 6713, also known as "Code of Conduct and Ethical Standards for
Public Officials and Employees":[53]

All public officials and employees required under this section to file the aforestated
documents shall also execute, within thirty (30) days from the date of their assumption of
office, the necessary authority in favor of the Ombudsman to obtain from all appropriate
government agencies, including the Bureau of Internal Revenue, such documents as may
show their assets, liabilities, net worth, and also their business interests and financial
connections in previous years, including, if possible, the year when they first assumed
any office in the Government.

Section 8. Statements and Disclosure. - Public officials and employees have an obligation
to accomplish and submit declarations under oath of, and the public has the right to know,
their assets, liabilities, net worth and financial and business interests including those of

(a) within thirty (30) days after assumption of office;

(b) on or before April 30, of every year thereafter; and
(c) within thirty (30) days after separation from the service.

Husband and wife who are both public officials or employees may file the required
statements jointly or separately.

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The Statements of Assets, Liabilities and Net Worth and the Disclosure of Business
Interests and Financial Connections shall be filed by:
(1) Constitutional and national elective officials, with the national office of the
Ombudsman;
(2) Senators and Congressmen, with the Secretaries of the Senate and the House of
Representatives, respectively; Justices, with the Clerk of Court of the Supreme Court;
Judges, with the Court Administrator; and all national executive officials with the Office
of the President.
(3) Regional and local officials and employees, with the Deputy Ombudsman in their
respective regions;
(4) Officers of the armed forces from the rank of colonel or naval captain, with the Office
of the President, and those below said ranks, with the Deputy Ombudsman in their
respective regions; and
(5) All other public officials and employees, defined in Republic Act No. 3019, as
amended, with the Civil Service Commission.
(B) Identification and disclosure of relatives. - It shall be the duty of every public official
or employee to identify and disclose, to the best of his knowledge and information, his
relatives in the Government in the form, manner and frequency prescribed by the Civil
Service Commission. (Emphasis supplied)

Like all constitutional guarantees, however, the right to information, with its companion
right of access to official records, is not absolute. While providing guaranty for that right,
the Constitution also provides that the peoples right to know is limited to matters of
public concern and is further subject to such limitations as may be provided by law.

This could only mean that while no prohibition could stand against access to official
records, such as the SALN, the same is undoubtedly subject to regulation.

In this regard, Section 8 (c) and (d) of R.A. No. 6713 provides for the limitation and
prohibition on the regulated access to SALNs of government officials and employees,
viz:

(C) Accessibility of documents. - (1) Any and all statements filed under this Act, shall be
made available for inspection at reasonable hours.
(2) Such statements shall be made available for copying or reproduction after ten (10)
working days from the time they are filed as required by law.
(3) Any person requesting a copy of a statement shall be required to pay a reasonable fee
to cover the cost of reproduction and mailing of such statement, as well as the cost of
certification.
(4) Any statement filed under this Act shall be available to the public for a period of ten
(10) years after receipt of the statement. After such period, the statement may be
destroyed unless needed in an ongoing investigation.
(D) Prohibited acts. - It shall be unlawful for any person to obtain or use any statement
filed under this Act for:
(a) any purpose contrary to morals or public policy; or
(b) any commercial purpose other than by news and communications media for
dissemination to the general public.
Moreover, the following provisions in the Implementing Rules and Regulations of R.A.
No. 6713 provide:

Jurisprudence[54] has provided the following limitations to that right: (1) national
security matters and intelligence information; (2) trade secrets and banking transactions;
(3) criminal matters; and (4) other confidential information such as confidential or
classified information officially known to public officers and employees by reason of
their office and not made available to the public as well as diplomatic correspondence,
closed door Cabinet meetings and executive sessions of either house of Congress, and the
internal deliberations of the Supreme Court.

Rule IV
Transparency of Transactions and Access to Information

xxxx

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Section 3. Every department, office or agency shall provide official information, records
or documents to any requesting public, except if:

(a) such information, record or document must be kept secret in the interest of national
defense or security or the conduct of foreign affairs;

(g) it would disclose information the premature disclosure of which would (i) in the case
of a department, office or agency which agency regulates currencies, securities,
commodities, of financial institutions, be likely to lead to significant financial speculation
in currencies, securities, or commodities or significantly endanger the stability of any
financial institution, or (ii) in the case of any department, office or agency be likely or
significantly to frustrate implementation of a proposed official action, except that
subparagraph (f) (ii) shall not apply in any instance where the department, office or
agency has already disclosed to the public the content or nature of its proposed action, or
where the department, office or agency is required by law to make such disclosure on its
own initiative prior to taking final official action on such proposal.

(b) such disclosure would put the life and safety of an individual in imminent danger;
xxxx
(c) the information, record or document sought falls within the concepts of established
privilege or recognized exceptions as may be provided by law or settled policy or
jurisprudence;

Rule VI
Duties of Public Officials and Employees

(d) such information, record or document compromises drafts or decisions, orders,

rulings, policy, decisions, memoranda, etc;

(e) it would disclose information of a personal nature where disclosure would constitute a
clearly unwarranted invasion of personal privacy;

(f) it would disclose investigatory records complied for law enforcement purposes, or
information which if written would be contained in such records or information would (i)
interfere with enforcement proceedings, (ii) deprive a person of a right to a fair trial or an
impartial adjudication, (iii) disclose the identity of a confidential source and, in the case
of a record compiled by a criminal law enforcement authority in the course of a criminal
investigation, or by an agency conducting a lawful national security intelligence
investigation, confidential information furnished only by the confidential source, or (iv)
unjustifiably disclose investigative techniques and procedures; or

Section 6. All public documents must be made accessible to, and readily available for
inspection by, the public during working hours, except those provided in Section 3, Rule
IV.

The power to regulate the access by the public to these documents stems from the
inherent power of the Court, as custodian of these personal documents, to control its very
office to the end that damage to, or loss of, the records may be avoided; that undue
interference with the duties of the custodian of the books and documents and other
employees may be prevented; and that the right of other persons entitled to make
inspection may be insured.[55]

In this connection, Section 11 of the same law provides for the penalties in case there
should be a misuse of the SALN and the information contained therein, viz:

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Section 11. Penalties. - (a) Any public official or employee, regardless of whether or not
he holds office or employment in a casual, temporary, holdover, permanent or regular
capacity, committing any violation of this Act shall be punished with a fine not exceeding
the equivalent of six (6) months' salary or suspension not exceeding one (1) year, or
removal depending on the gravity of the offense after due notice and hearing by the
appropriate body or agency. If the violation is punishable by a heavier penalty under
another law, he shall be prosecuted under the latter statute. Violations of Sections 7, 8 or
9 of this Act shall be punishable with imprisonment not exceeding five (5) years, or a fine
not exceeding five thousand pesos (5,000), or both, and, in the discretion of the court of
competent jurisdiction, disqualification to hold public office.
(b) Any violation hereof proven in a proper administrative proceeding shall be sufficient
cause for removal or dismissal of a public official or employee, even if no criminal
prosecution is instituted against him.
(c) Private individuals who participate in conspiracy as co-principals, accomplices or
accessories, with public officials or employees, in violation of this Act, shall be subject to
the same penal liabilities as the public officials or employees and shall be tried jointly
with them.
(d) The official or employee concerned may bring an action against any person who
obtains or uses a report for any purpose prohibited by Section 8 (d) of this Act. The Court
in which such action is brought may assess against such person a penalty in any amount
not to exceed twenty-five thousand pesos (25,000.00). If another sanction hereunder or
under any other law is heavier, the latter shall apply.

Considering the foregoing legal precepts vis--vis the various requests made, the Court
finds no cogent reason to deny the public access to the SALN, PDS and CV of the
Justices of the Court and other magistrates of the Judiciary subject, of course, to the
limitations and prohibitions provided in R.A. No. 6713, its implementing rules and
regulations, and in the guidelines set forth in the decretal portion.

The Court notes the valid concerns of the other magistrates regarding the possible illicit
motives of some individuals in their requests for access to such personal information and
their publication. However, custodians of public documents must not concern themselves
with the motives, reasons and objects of the persons seeking access to the records. The
moral or material injury which their misuse might inflict on others is the requestors
responsibility and lookout. Any publication is made subject to the consequences of the
law.[56] While public officers in the custody or control of public records have the
discretion to regulate the manner in which records may be inspected, examined or copied
by interested persons, such discretion does not carry with it the authority to prohibit

access, inspection, examination, or copying of the records.[57] After all, public office is a
public trust. Public officers and employees must, at all times, be accountable to the
people, serve them with utmost responsibility, integrity, loyalty, and efficiency, act with
patriotism and justice, and lead modest lives.[58]

WHEREFORE, the Court resolves to GRANT the requests contained in the (1) Letter,
dated July 30, 2009, of Rowena C. Paraan; (2) Letter, dated August 13, 2009, of Karol M.
Ilagan; (3) Letter, dated April 21, 2010, of the Philippine Public Transparency Reporting
Project; (4) Letter, filed on August 24, 2011, by Marvin Lim; (5) Letter, dated August 26,
2011, of Rawnna Crisostomo; (6) Letter, dated October 11, 2011, of Bala S. Tamayo; (7)
Letters, all dated December 19, 2011, of Harvey S. Keh; (8) Letter, dated December 21,
2011, of Glenda M. Gloria; (9) Letters, all dated January 3, 2012, of Phillipe Manalang;
(10) Letter, dated December 19, 2011, of Malou Mangahas; (11) Letter, dated January 16,
2012, of Nilo Ka Nilo H. Baculo; (12) Letter, dated January 25, 2012, of Roxanne
Escaro-Alegre; (13) Letter, dated January 27, 2012, of David Jude Sta. Ana; (14) Letter,
dated January 31, 2012, of Michael G. Aguinaldo; (15) undated Letter of Benise P.
Balaoing; (16) Letter, dated April 27, 2012, of Maria A. Ressa; (17) Letter, dated May 2,
2012, of Mary Ann A. Seir; (18) Letter, dated May 4, 2012, of Edward Gabud, Sr., Desk
Editor of Solar Network, Inc.; (19) Letter, dated May 30, 2012, of Gerry Lirio, Senior
News Editor, TV5; (20) Letter, dated May 31, 2002, of Atty. Joselito P. Fangon of the
Office of the Ombudsman; and (21) Letter, dated June 7, 2012, of Thea Marie S. Pias,
insofar as copies of the 2011 SALN, PDS, and CV of the Justices of the Supreme Court,
the Court of Appeals, the Sandiganbayan, and the Court of Tax Appeals; Judges of lower
courts; and other members of the Judiciary, are concerned, subject to the limitations and
prohibitions provided in R.A. No. 6713, its implementing rules and regulations, and the
following guidelines:

1. All requests shall be filed with the Office of the Clerk of Court of the Supreme
Court, the Court of Appeals, the Sandiganbayan, the Court of Tax Appeals; for the lower
courts, with the Office of the Court Administrator; and for attached agencies, with their
respective heads of offices.
2. Requests shall cover only copies of the latest SALN, PDS and CV of the members,
officials and employees of the Judiciary, and may cover only previous records if so
specifically requested and considered as justified, as determined by the officials
mentioned in par. 1 above, under the terms of these guidelines and the Implementing
Rules and Regulations of R.A. No. 6713.

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3. In the case of requests for copies of SALN of the Justices of the Supreme Court, the
Court of Appeals, the Sandiganbayan and the Court of Tax Appeals, the authority to
disclose shall be made by the Court En Banc.

6. In the case of the members of the media, the request shall additionally be supported
by proof under oath of their media affiliation and by a similar certification of the
accreditation of their respective organizations as legitimate media practitioners.

4. Every request shall explain the requesting partys specific purpose and their
individual interests sought to be served; shall state the commitment that the request shall
only be for the stated purpose; and shall be submitted in a duly accomplished request
form secured from the SC website. The use of the information secured shall only be for
the stated purpose.

7. The requesting party, whether as individuals or as members of the media, must have
no derogatory record of having misused any requested information previously furnished
to them.

5. In the case of requesting individuals other than members of the media, their interests
should go beyond pure or mere curiosity.

The requesting parties shall complete their requests in accordance with these guidelines.
The custodians of these documents[59] (the respective Clerks of Court of the Supreme
Court, Court of Appeals, Sandiganbayan, and Court of Tax Appeals for the Justices; and
the Court Administrator for the Judges of various trial courts) shall preliminarily
determine if the requests are not covered by the limitations and prohibitions provided in
R.A. No. 6713 and its implementing rules and regulations, and in accordance with the
aforecited guidelines. Thereafter, the Clerk of Court shall refer the matter pertaining to
Justices to the Court En Banc for final determination.

SO ORDERED.
SUPREME COURT
Manila
EN BANC

G.R. Nos. L-32613-14 December 27, 1972

PEOPLE OF THE PHILIPPINES, petitioner,
vs.
HON. SIMEON. FERRER (in his capacity as Judge of the Court of First Instance of
Tarlac, Branch I), FELICIANO CO alias LEONCIO CO alias "Bob," and NILO S.
TAYAG alias Romy Reyes alias "Taba," respondents.
Solicitor R. Mutuc for respondent Feliciano Co.
Jose W. Diokno for respondent Nilo Tayag.

CASTRO, J.:p
I. Statement of the Case

Posed in issue in these two cases is the constitutionality of the Anti-Subversion

Act, 1 which outlaws the Communist Party of the Philippines and other "subversive
associations," and punishes any person who "knowingly, willfully and by overt acts
affiliates himself with, becomes or remains a member" of the Party or of any other similar
"subversive" organization.
On March 5, 1970 a criminal complaint for violation of section 4 of the Anti-Subversion
Act was filed against the respondent Feliciano Co in the Court of First Instance of Tarlac.
On March 10 Judge Jose C. de Guzman conducted a preliminary investigation and,
finding a prima facie case against Co, directed the Government prosecutors to file the
corresponding information. The twice-amended information, docketed as Criminal Case
No. 27, recites:
That on or about May 1969 to December 5, 1969, in the Municipality of Capas, Province
of Tarlac, Philippines, and within the jurisdiction of this Honorable Court, the
abovenamed accused, feloniously became an officer and/or ranking leader of the
Communist Party of the Philippines, an outlawed and illegal organization aimed to
overthrow the Government of the Philippines by means of force, violence, deceit,
subversion, or any other illegal means for the purpose of establishing in the Philippines a
totalitarian regime and placing the government under the control and domination of an
alien power, by being an instructor in the Mao Tse Tung University, the training school of
recruits of the New People's Army, the military arm of the said Communist Party of the
Philippines.

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That in the commission of the above offense, the following aggravating circumstances
are present, to wit:
(a) That the crime has been committed in contempt of or with insult to public authorities;
(b) That the crime was committed by a band; and afford impunity.
(c) With the aid of armed men or persons who insure or afford impunity.
Co moved to quash on the ground that the Anti-Subversion Act is a bill of attainder.
Meanwhile, on May 25, 1970, another criminal complaint was filed with the same court,
sharing the respondent Nilo Tayag and five others with subversion. After preliminary
investigation was had, an information was filed, which, as amended, reads:
The undersigned provincial Fiscal of Tarlac and State Prosecutors duly designated by the
Secretary of Justice to collaborate with the Provincial Fiscal of Tarlac, pursuant to the
Order dated June 5, above entitled case, hereby accuse Nilo S. Tayag, alias Romy Reyes
alias TABA, ARTHUR GARCIA, RENATO (REY) CASIPE, ABELARDO GARCIA,
MANUEL ALAVADO, BENJAMIN BIE alias COMMANDER MELODY and several
JOHN DOES, whose identities are still unknown, for violation of REPUBLIC ACT No.
1700, otherwise known as the Anti-Subversion Law, committed as follows:
That in or about March 1969 and for sometime prior thereto and thereafter, in the
Province of Tarlac, within the jurisdiction of this Honorable Court, and elsewhere in the
Philippines, the above-named accused knowingly, willfully and by overt acts organized,
joined and/or remained as offices and/or ranking leaders, of the KABATAANG
MAKABAYAN, a subversive organization as defined in Republic Act No. 1700; that
BENJAMIN BIE and COMMANDER MELODY, in addition thereto, knowingly,
willfully and by over acts joined and/or remained as a member and became an officer
and/or ranking leader not only of the Communist Party of the Philippines but also of the
New People's Army, the military arm of the Communist Party of the Philippines; and that
all the above-named accused, as such officers and/or ranking leaders of the aforestated
subversive organizations, conspiring, confederating and mutually helping one another,
did then and there knowingly, willfully and feloniously commit subversive and/or
seditious acts, by inciting, instigating and stirring the people to unite and rise publicly
and tumultuously and take up arms against the government, and/or engage in rebellious
conspiracies and riots to overthrow the government of the Republic of the Philippines by
force, violence, deceit, subversion and/or other illegal means among which are the
following:
1. On several occasions within the province of Tarlac, the accused conducted meetings
and/or seminars wherein the said accused delivered speeches instigating and inciting the
people to unite, rise in arms and overthrow the Government of the Republic of the
Philippines, by force, violence, deceit, subversion and/or other illegal means; and toward

this end, the said accused organized, among others a chapter of the KABATAANG
MAKABAYAN in barrio Motrico, La Paz, Tarlac for the avowed purpose of undertaking
or promoting an armed revolution, subversive and/or seditious propaganda, conspiracies,
and/or riots and/or other illegal means to discredit and overthrow the Government of the
Republic of the Philippines and to established in the Philippines a Communist regime.
2. The accused NILO TAYAG alias ROMY REYES alias TABA, together with
FRANCISCO PORTEM alias KIKO Gonzales and others, pursued the above subversive
and/or seditious activities in San Pablo City by recruiting members for the New People's
Army, and/or by instigating and inciting the people to organize and unite for the purpose
of overthrowing the Government of the Republic of the Philippines through armed
revolution, deceit, subversion and/or other illegal means, and establishing in the
Philippines a Communist Government.
That the following aggravating circumstances attended the commission of the offense: (a)
aid of armed men or persons to insure or afford impunity; and (b) craft, fraud, or disguise
was employed.
On July 21, 1970 Tayag moved to quash, impugning the validity of the statute on the
grounds that (1) it is a bill of attainder; (2) it is vague; (3) it embraces more than one
subject not expressed in the title thereof; and (4) it denied him the equal protection of the
laws.
Resolving the constitutional issues raised, the trial court, in its resolution of September
15, 1970, declared the statute void on the grounds that it is a bill of attainder and that it is
vague and overboard, and dismissed the informations against the two accused. The
Government appealed. We resolved to treat its appeal as a special civil action for
certiorari.
II. Is the Act a Bill of Attainder?
Article III, section 1 (11) of the Constitution states that "No bill of attainder or ex port
facto law shall be enacted." 2 A bill of attainder is a legislative act which inflicts
punishment without trial. 3 Its essence is the substitution of a legislative for a judicial
determination of guilt. 4 The constitutional ban against bills of attainder serves to
implement the principle of separation of powers 5 by confining legislatures to
rule-making 6 and thereby forestalling legislative usurpation of the judicial function. 7
History in perspective, bills of attainder were employed to suppress unpopular causes and
political minorities, 8 and it is against this evil that the constitutional prohibition is
directed. The singling out of a definite class, the imposition of a burden on it, and a
legislative intent, suffice to stigmatizea statute as a bill of attainder. 9
In the case at bar, the Anti-Subversion Act was condemned by the court a quo as a bill of
attainder because it "tars and feathers" the Communist Party of the Philippines as a
"continuing menace to the freedom and security of the country; its existence, a 'clear,
present and grave danger to the security of the Philippines.'" By means of the Act, the

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trial court said, Congress usurped "the powers of the judge," and assumed "judicial
magistracy by pronouncing the guilt of the CCP without any of the forms or safeguards of
judicial trial." Finally, according to the trial court, "if the only issue [to be determined] is
whether or not the accused is a knowing and voluntary member, the law is still a bill of
attainder because it has expressly created a presumption of organizational guilt which the
accused can never hope to overthrow."
1. When the Act is viewed in its actual operation, it will be seen that it does not specify
the Communist Party of the Philippines or the members thereof for the purpose of
punishment. What it does is simply to declare the Party to be an organized conspiracy for
the overthrow of the Government for the purposes of the prohibition, stated in section 4,
against membership in the outlawed organization. The term "Communist Party of the
Philippines" issued solely for definitional purposes. In fact the Act applies not only to the
Communist Party of the Philippines but also to "any other organization having the same
purpose and their successors." Its focus is not on individuals but on conduct. 10
This feature of the Act distinguishes it from section 504 of the U.S. Federal LaborManagement Reporting and Disclosure Act of 1959 11 which, in U.S. vs. Brown, 12 was
held to be a bill of attainder and therefore unconstitutional. Section 504 provided in its
pertinent parts as follows:
(a) No person who is or has been a member of the Communist
Party ... shall serve
(1) as an officer, director, trustee, member of any executive board or similar governing
body, business agent, manager, organizer, or other employee (other than as an employee
performing exclusively clerical or custodial duties) of any labor organization.
during or for five years after the termination of his membership in the Communist
Party....
(b) Any person who willfully violates this section shall be fined not more than $10,000 or
imprisoned for not more than one year, or both.
This statute specified the Communist Party, and imposes disability and penalties on its
members. Membership in the Party, without more, ipso facto disqualifies a person from
becoming an officer or a member of the governing body of any labor organization. As the
Supreme Court of the United States pointed out:
Under the line of cases just outlined, sec. 504 of the Labor Management Reporting and
Disclosure Act plainly constitutes a bill of attainder. Congress undoubtedly possesses
power under the Commerce Clause to enact legislation designed to keep from positions
affecting interstate commerce persons who may use of such positions to bring about
political strikes. In section 504, however, Congress has exceeded the authority granted it
by the Constitution. The statute does not set forth a generally applicable rule decreeing

that any person who commits certain acts or possesses certain characteristics (acts and
characteristics which, in Congress' view, make them likely to initiate political strikes)
shall not hold union office, and leaves to courts and juries the job of deciding what
persons have committed the specified acts or possessed the specified characteristics.
Instead, it designates in no uncertain terms the persons who possess the feared
characteristics and therefore cannot hold union office without incurring criminal liability
members of the Communist Party.
Communist Party v. Subversive Activities Control Board, 367 US 1, 6 L ed 2d 625, 81 S
CT 1357, lend a support to our conclusion. That case involved an appeal from an order by
the Control Board ordering the Communist Party to register as a "Communist-action
organization," under the Subversive Activities Control Act of 1950, 64 Stat 987, 50 USC
sec. 781 et seq. (1958 ed). The definition of "Communist-action organization" which the
Board is to apply is set forth in sec. 3 of the Act:
[A]ny organization in the United States ... which (i)is substantially directed, dominated,
or controlled by the foreign government or foreign organization controlling the world
Communist movement referred to in section 2 of this title, and(ii) operates primarily to
advance the objectives of such world Communist movement... 64 Stat 989, 50 USC sec.
782 (1958 ed.)
A majority of the Court rejected the argument that the Act was a bill of attainder,
reasoning that sec. 3 does not specify the persons or groups upon which the deprivations
setforth in the Act are to be imposed, but instead sets forth a general definition. Although
the Board has determined in 1953 that the Communist Party was a "Communist-action
organization," the Court found the statutory definition not to be so narrow as to insure
that the Party would always come within it:
In this proceeding the Board had found, and the Court of Appeals has sustained its
conclusion, that the Communist Party, by virtud of the activities in which it now engages,
comes within the terms of the Act. If the Party should at anytime choose to abandon these
activities, after it is once registered pursuant to sec. 7, the Act provides adequate means of
relief. (367 US, at 87, 6 L ed 2d at 683)
Indeed, were the Anti-Subversion Act a bill of attainder, it would be totally unnecessary
to charge Communists in court, as the law alone, without more, would suffice to secure
their punishment. But the undeniable fact is that their guilt still has to be judicially
established. The Government has yet to prove at the trial that the accused joined the Party
knowingly, willfully and by overt acts, and that they joined the Party, knowing its
subversive character and with specific intent to further its basic objective, i.e., to
overthrow the existing Government by force deceit, and other illegal means and place the
country under the control and domination of a foreign power.
As to the claim that under the statute organizationl guilt is nonetheless imputed despite
the requirement of proof of knowing membership in the Party, suffice it to say that is
precisely the nature of conspiracy, which has been referred to as a "dragneet device"

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whereby all who participate in the criminal covenant are liable. The contention would be
correct if the statute were construed as punishing mere membership devoid of any
specific intent to further the unlawful goals of the Party. 13 But the statute specifically
required that membership must be knowing or active, with specific intent to further the
illegal objectives of the Party. That is what section 4 means when it requires that
membership, to be unlawful, must be shown to have been acquired "knowingly, willfully
and by overt acts." 14 The ingredient of specific intent to pursue the unlawful goals of the
Party must be shown by "overt acts." 15 This constitutes an element of "membership"
distinct from the ingredient of guilty knowledge. The former requires proof of direct
participation in the organization's unlawful activities, while the latter requires proof of
mere adherence to the organization's illegal objectives.
2. Even assuming, however, that the Act specifies individuals and not activities, this
feature is not enough to render it a bill of attainder. A statute prohibiting partners or
employees of securities underwriting firms from serving as officers or employees of
national banks on the basis of a legislative finding that the persons mentioned would be
subject to the temptation to commit acts deemed inimical to the national economy, has
been declared not to be a bill of attainder. 16 Similarly, a statute requiring every secret,
oath-bound society having a membership of at least twenty to register, and punishing any
person who becomes a member of such society which fails to register or remains a
member thereof, was declared valid even if in its operation it was shown to apply only to
the members of the Ku Klux Klan. 17
In the Philippines the validity of section 23 (b) of the Industrial Peace Act, 18 requiring
labor unions to file with the Department of Labor affidavits of union officers "to the
effect that they are not members of the Communist Party and that they are not members
of any organization which teaches the overthrow of the Government by force or by any
illegal or unconstitutional method," was upheld by this Court. 19
Indeed, it is only when a statute applies either to named individuals or to easily
ascertainable members of a group in such a way as to inflict punishment on them without
a judicial trial does it become a bill of attainder. 20 It is upon this ground that statutes
which disqualified those who had taken part in the rebellion against the Government of
the United States during the Civil War from holding office, 21 or from exercising their
profession, 22 or which prohibited the payment of further compensation to individuals
named in the Act on the basis of a finding that they had engages in subversive activities,
23 or which made it a crime for a member of the Communist Party to serve as an officer
or employee of a labor union, 24 have been invalidated as bills of attainder.
But when the judgment expressed in legislation is so universally acknowledged to be
certain as to be "judicially noticeable," the legislature may apply its own rules, and
judicial hearing is not needed fairly to make such determination. 25
In New York ex rel. Bryant vs. Zimmerman, 26 the New York legislature passed a law
requiring every secret, oath-bound society with a membership of at least twenty to
register, and punishing any person who joined or remained a member of such a society

failing to register. While the statute did not specify the Ku Klux Klan, in its operation the
law applied to the KKK exclusively. In sustaining the statute against the claim that it
discriminated against the Ku Klux Klan while exempting other secret, oath-bound
organizations like masonic societies and the Knights of Columbus, the United States
Supreme Court relied on common knowledge of the nature and activities of the Ku Klux
Klan. The Court said:
The courts below recognized the principle shown in the cases just cited and reached the
conclusion that the classification was justified by a difference between the two classes of
associations shown by experience, and that the difference consisted (a) in a manifest
tendency on the part of one class to make the secrecy surrounding its purpose and
membership a cloak for acts and conduct inimical to personal rights and public welfare,
and (b) in the absence of such a tendency on the part of the other class. In pointing out
this difference one of the courts said of the Ku Klux Klan, the principal association in the
included class: "It is a matter of common knowledge that this organization functions
largely at night, its members disguised by hoods and gowns and doing things calculated
to strike terror into the minds of the people;" and later said of the other class: "These
organizations and their purposes are well known, many of them having been in existence
for many years. Many of them are oath-bound and secret. But we hear no complaint
against them regarding violation of the peace or interfering with the rights of others."
Another of the courts said: "It is a matter of common knowledge that the association or
organization of which the relator is concededly a member exercises activities tending to
the prejudice and intimidation of sundry classes of our citizens. But the legislation is not
confined to this society;" and later said of the other class: "Labor unions have a
recognized lawful purpose. The benevolent orders mentioned in the Benevolent Orders
Law have already received legislative scrutiny and have been granted special privileges
so that the legislature may well consider them beneficial rather than harmful agencies."
The third court, after recognizing "the potentialities of evil in secret societies," and
observing that "the danger of certain organizations has been judicially demonstrated,"
meaning in that state, said: "Benevolent orders, labor unions and college fraternities
have existed for many years, and, while not immune from hostile criticism, have on the
whole justified their existence."
We assume that the legislature had before it such information as was readily available
including the published report of a hearing, before a committee of the House of
Representatives of the 57th Congress relating to the formation, purposes and activities of
the Klu Klux Klan. If so it was advised putting aside controverted evidence that the
order was a revival of the Ku Klux Klan of an earlier time with additional features
borrowed from the Know Nothing and the A. P. A. orders of other periods; that its
memberships was limited to native-born, gentile, protestant whites; that in part of its
constitution and printed creed it proclaimed the widest freedom for all and full adherence
to the Constitution of the United States; in another exacted of its member an oath to
shield and preserve "white supremacy;" and in still another declared any person actively
opposing its principles to be "a dangerous ingredient in the body politic of our country
and an enemy to the weal of our national commonwealth;" that it was conducting a
crusade against Catholics, Jews, and Negroes, and stimulating hurtful religious and race

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prejudices; that it was striving for political power and assuming a sort of guardianship
over the administration of local, state and national affairs; and that at times it was taking
into its own hands the punishment of what some of its members conceived to be crimes.
27
In the Philippines the character of the Communist Party has been the object of continuing
scrutiny by this Court. In 1932 we found the Communist Party of the Philippines to be an
illegal association. 28 In 1969 we again found that the objective of the Party was the
"overthrow of the Philippine Government by armed struggle and to establish in the
Philippines a communist form of government similar to that of Soviet Russia and Red
China." 29 More recently, in Lansang vs. Garcia, 30 we noted the growth of the
Communist Party of the Philippines and the organization of Communist fronts among
youth organizations such as the Kabataang Makabayan (KM) and the emergence of the
New People's Army. After meticulously reviewing the evidence, we said: "We entertain,
therefore, no doubts about the existence of a sizeable group of men who have publicly
risen in arms to overthrow the government and have thus been and still are engaged in
rebellion against the Government of the Philippines.
3. Nor is it enough that the statute specify persons or groups in order that it may fall
within the ambit of the prohibition against bills of attainder. It is also necessary that it
must apply retroactively and reach past conduct. This requirement follows from the
nature of a bill of attainder as a legislative adjudication of guilt. As Justice Frankfurter
observed, "frequently a bill of attainder was ... doubly objectionable because of its ex
post facto features. This is the historic explanation for uniting the two mischiefs in one
clause 'No Bill of Attainder or ex post facto law shall be passed.' ... Therefore, if [a
statute] is a bill of attainder it is also an ex post facto law. But if it is not an ex post facto
law, the reasons that establish that it is not are persuasive that it cannot be a bill of
attainder." 31
Thus in Gardner vs. Board of Public Works, 32 the U.S. Supreme Court upheld the
validity of the Charter of the City of Los Angeles which provided:
... [N]o person shall hold or retain or be eligible for any public office or employment in
the service of the City of Los Angeles, in any office or department thereof, either elective
or appointive, who has within five (5) years prior to the effective date of this section
advised, advocated, or taught, or who may, after this section becomes effective, become a
member of or affiliated with any group, society, association, organization or party which
advises, advocates or teaches or has within said period of five (5) years advised,
advocated, or taught the overthrow by force or violence of the Government of the United
States of America or of the State of California.

that under the Federal Constitution the Charter Amendment is valid to the extent that it
bars from the city's public service persons who, subsequently to its adoption in 1941,
advise, advocate, or reach the violent overthrow of the Government or who are or become
affiliated with any group doing so. The provisions operating thus prospectively were a
reasonable regulation to protect the municipal service by establishing an employment
qualification of loyalty to the State and the United States.
... Unlike the provisions of the charter and ordinance under which petitioners were
removed, the statute in the Lovett case did not declare general and prospectively
operative standards of qualification and eligibility for public employment. Rather, by its
terms it prohibited any further payment of compensationto named individuals or
employees. Under these circumstances, viewed against the legislative background, the
statutewas held to have imposed penalties without judicial trial.
Indeed, if one objection to the bill of attainder is thatCongress thereby assumed judicial
magistracy, them it mustbe demonstrated that the statute claimed to be a bill of
attainderreaches past conduct and that the penalties it imposesare inescapable. As the
U.S. Supreme Court observedwith respect to the U.S. Federal Subversive Activities
ControlAct of 1950:
Nor is the statute made an act of "outlawry" or of attainderby the fact that the conduct
which it regulates is describedwith such particularity that, in probability, few
organizationswill come within the statutory terms. Legislatures may act tocurb behaviour
which they regard as harmful to the public welfare,whether that conduct is found to be
engaged in by manypersons or by one. So long as the incidence of legislation issuch that
the persons who engage in the regulated conduct, bethey many or few, can escape
regulation merely by altering thecourse of their own present activities, there can be no
complaintof an attainder. 33
This statement, mutatis mutandis, may be said of theAnti-Subversion Act. Section 4
thereof expressly statesthat the prohibition therein applies only to acts committed"After
the approval of this Act." Only those who "knowingly,willfully and by overt acts affiliate
themselves with,become or remain members of the Communist Party of thePhilippines
and/or its successors or of any subversive association"after June 20, 1957, are punished.
Those whowere members of the Party or of any other subversive associationat the time of
the enactment of the law, weregiven the opportunity of purging themselves of liability
byrenouncing in writing and under oath their membershipin the Party. The law expressly
provides that such renunciationshall operate to exempt such persons from penalliability.
34 The penalties prescribed by the Act are thereforenot inescapable.
III. The Act and the Requirements of Due Process

In upholding the statute, the Court stressed the prospective application of the Act to the
petitioner therein, thus:
... Immaterial here is any opinion we might have as to the charter provision insofar as it
purported to apply restrospectively for a five-year period to its effective date. We assume

1. As already stated, the legislative declaration in section 2 of the Act that the Communist
Party of the Philippinesis an organized conspiracy for the overthrow of theGovernment is
inteded not to provide the basis for a legislativefinding of guilt of the members of the
Party butrather to justify the proscription spelled out in section 4. Freedom of expression

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and freedom of association are sofundamental that they are thought by some to occupy
a"preferred position" in the hierarchy of constitutional values. 35 Accordingly, any
limitation on their exercise mustbe justified by the existence of a substantive evil. This
isthe reason why before enacting the statute in question Congressconducted careful
investigations and then stated itsfindings in the preamble, thus:
... [T]he Communist Party of the Philippines althoughpurportedly a political party, is in
fact an organized conspiracyto overthrow the Government of the Republic of the
Philippinesnot only by force and violence but also by deceit, subversionand other illegal
means, for the purpose of establishing in thePhilippines a totalitarian regime subject to
alien dominationand control;
... [T]he continued existence and activities of the CommunistParty of the Philippines
constitutes a clear, present andgrave danger to the security of the Philippines;
... [I]n the face of the organized, systematice and persistentsubversion, national in scope
but international in direction,posed by the Communist Party of the Philippines and its
activities,there is urgent need for special legislation to cope withthis continuing menace
to the freedom and security of the country.
In truth, the constitutionality of the Act would be opento question if, instead of making
these findings in enactingthe statute, Congress omitted to do so.

satisfied, and judicial determination to that effect renders a court functus officio." The
recital of legislative findings implements this test.
With respect to a similar statement of legislative findingsin the U.S. Federal Subversive
Activities Control Actof 1950 (that "Communist-action organizations" are controlledby
the foreign government controlling the worldCommunist movement and that they operate
primarily to"advance the objectives of such world Communist movement"),the U.S.
Supreme Court said:
It is not for the courts to reexamine the validity of theselegislative findings and reject
them....They are the productof extensive investigation by Committes of Congress over
morethan a decade and a half. Cf. Nebbia v. New York, 291 U.S.502, 516, 530. We
certainly cannot dismiss them as unfoundedirrational imaginings. ... And if we accept
them, as we mustas a not unentertainable appraisal by Congress of the threatwhich
Communist organizations pose not only to existing governmentin the United States, but
to the United States as asovereign, independent Nation. ...we must recognize that
thepower of Congress to regulate Communist organizations of thisnature is
extensive. 39
This statement, mutatis mutandis, may be said of thelegislative findings articulated in the
Anti-Subversion Act.

In saying that by means of the Act Congress has assumed judicial magistracy, the trial
courd failed to takeproper account of the distinction between legislative fact and
adjudicative fact. Professor Paul Freund elucidatesthe crucial distinction, thus:

That the Government has a right to protect itself againstsubversion is a proposition too
plain to require elaboration.Self-preservation is the "ultimate value" of society. It
surpasses and transcendes every other value, "forif a society cannot protect its very
structure from armedinternal attack, ...no subordinate value can be protected" 40 As Chief
Justice Vinson so aptly said in Dennis vs. United States: 41

... A law forbidding the sale of beverages containingmore than 3.2 per cent of alcohol
would raise a question of legislativefact, i.e., whether this standard has a reasonable
relationto public health, morals, and the enforcement problem. Alaw forbidding the sale
of intoxicating beverages (assuming itis not so vague as to require supplementation by
rule-making)would raise a question of adjudicative fact, i.e., whether thisor that beverage
is intoxicating within the meaning of the statuteand the limits on governmental action
imposed by the Constitution. Of course what we mean by fact in each case is itselfan
ultimate conclusion founded on underlying facts and oncriteria of judgment for weighing
them.

Whatever theoretical merit there may be to the argumentthat there is a 'right' to rebellion
against dictatorial governmentsis without force where the existing structure of
government provides for peaceful and orderly change. We rejectany principle of
governmental helplessness in the face of preparationfor revolution, which principle,
carried to its logical conclusion,must lead to anarchy. No one could conceive that it isnot
within the power of Congress to prohibit acts intended tooverthrow the government by
force and violence.

A conventional formulation is that legislative facts those facts which are relevant to
the legislative judgment will not be canvassed save to determine whether there is a
rationalbasis for believing that they exist, while adjudicativefacts those which tie the
legislative enactment to the litigant are to be demonstrated and found according to the
ordinarystandards prevailing for judicial trials. 36

2. By carefully delimiting the reach of the Act to conduct (as explicitly described in sectin
4 thereof), Congressreaffirmed its respect for the rule that "even throughthe governmental
purpose be legitimate and substantial,that purpose cannot be pursued by means that
broadly stiflefundamental personal liberties when the end can be more narrowly
achieved." 42 The requirement of knowing membership,as distinguished from nominal
membership, hasbeen held as a sufficient basis for penalizing membershipin a subversive
organization. 43 For, as has been stated:

The test formulated in Nebbia vs. new York, 37 andadopted by this Court in Lansang vs.
Garcia, 38 is that 'if laws are seen to have a reasonable relation to a proper legislative
purpose, and are neither arbitrary nor discriminatory, the requirements of due process are

Membership in an organization renders aid and encouragement to the organization; and

when membership is acceptedor retained with knowledge that the organization is engaged

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inan unlawful purpose, the one accepting or retaining membershipwith such knowledge
makes himself a party to the unlawfulenterprise in which it is engaged. 44
3. The argument that the Act is unconstitutionallyoverbroad because section 2 merely
speaks of "overthrow"of the Government and overthrow may be achieved by peaceful
means, misconceives the function of the phrase"knowingly, willfully and by overt acts" in
section 4. Section 2 is merely a legislative declaration; the definitionsof and the penalties
prescribed for the different acts prescribedare stated in section 4 which requires that
membershipin the Communist Party of the Philippines, to be unlawful, must be acquired
"knowingly, willfully and by overt acts." Indeed, the first "whereas" clause makes clear
thatthe overthrow contemplated is "overthrow not only by forceand violence but also be
deceit, subversion and other illegalmeans." The absence of this qualificatio in section 2
appearsto be due more to an oversight rather than to deliberateomission.
Moreover, the word "overthrow' sufficiently connotesthe use of violent and other illegal
means. Only in a metaphoricalsense may one speak of peaceful overthrow
ofgovernments, and certainly the law does not speak in metaphors.In the case of the AntiSubversion Act, the use ofthe word "overthrow" in a metaphorical sense is
hardlyconsistent with the clearly delineated objective of the "overthrow,"namely,
"establishing in the Philippines a totalitarianregime and place [sic] the Government under
thecontrol and domination of an alien power." What thisCourt once said in a prosecution
for sedition is appropos: "The language used by the appellant clearly imported
anoverthrow of the Government by violence, and it should beinterpreted in the plain and
obvious sense in which it wasevidently intended to be understood. The word
'overthrow'could not have been intended as referring to an ordinarychange by the exercise
of the elective franchise. The useof the whip [which the accused exhorted his audience to
useagainst the Constabulary], an instrument designed toleave marks on the sides of
adversaries, is inconsistentwith the mild interpretation which the appellant wouldhave us
impute to the language." 45
IV. The Act and the Guaranty of Free Expression
As already pointed out, the Act is aimed against conspiracies to overthrow the
Government by force, violence orother illegal means. Whatever interest in freedom of
speechand freedom of association is infringed by the prohibitionagainst knowing
membership in the Communist Party ofthe Philippines, is so indirect and so insubstantial
as to beclearly and heavily outweighed by the overriding considerationsof national
security and the preservartion of democraticinstitutions in his country.

Shall be fined not more than $20,000 or imprisoned notmore than twenty years, or both,
and shall be ineligible for emplymentby the United States or any department or
agencythereof, for the five years next following his conviction.... 46
In sustaining the validity of this provision, the "Court said in Scales vs. United States: 47
It was settled in Dennis that advocacy with which we arehere concerned is not
constitutionally protected speech, and itwas further established that a combination to
promote suchadvocacy, albeit under the aegis of what purports to be a politicalparty, is
not such association as is protected by the firstAmendment. We can discern no reason
why membership, whenit constitutes a purposeful form of complicity in a group
engagingin this same forbidden advocacy, should receive anygreater degree of protection
from the guarantees of that Amendment.
Moreover, as was held in another case, where the problemsof accommodating the
exigencies of self-preservationand the values of liberty are as complex and intricate as
inthe situation described in the legislative findings stated inthe U.S. Federal Subversive
Activities Control Act of 1950,the legislative judgment as to how that threat may best
bemet consistently with the safeguards of personal freedomsis not to be set aside merely
because the judgment of judgeswould, in the first instance, have chosen other methods.
48 For in truth, legislation, "whether it restrains freedom tohire or freedom to speak, is
itself an effort at compromisebetween the claims of the social order and individual
freedom,and when the legislative compromise in either case isbrought to the judicial test
the court stands one step removedfrom the conflict and its resolution through law." 49
V. The Act and its Title
The respondent Tayag invokes the constitutional commandthat "no bill which may be
enacted into law shall embrace more than one subject which shall be expressed in the title
of the bill." 50
What is assailed as not germane to or embraced in thetitle of the Act is the last proviso of
section 4 which reads:

The membership clause of the U.S. Federal Smith Actis similar in many respects to the
membership provision ofthe Anti-Subversion Act. The former provides:

And provided, finally, That one who conspires with anyother person to overthrow the
Government of the Republic ofthe Philippines, or the government of any of its political
subdivisionsby force, violence, deceit, subversion or illegal means,for the purpose of
placing such Government or political subdivisionunder the control and domination of any
lien power, shallbe punished by prision correccional to prision mayor with allthe
accessory penalties provided therefor in the same code.

Whoever organizes or helps or attempts to organize anysociety, group, or assembly of

persons who teach, advocate, orencourage the overthrow or destruction of any such
governmentby force or violence; or becomes or is a member of, or affiliatedwith, any
such society, group or assembly of persons, knowingthe purpose thereof

It is argued that the said proviso, in reality, punishes notonly membership in the
Communist Party of the Philippinesor similar associations, but as well "any conspiracyby
two persons to overthrow the national or any local governmentby illegal means, even if
their intent is not to establisha totalitarian regime, burt a democratic regime, evenif their

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purpose is not to place the nation under an aliencommunist power, but under an alien
democratic power likethe United States or England or Malaysia or even an anticommunistpower like Spain, Japan, Thailand or Taiwanor Indonesia."
The Act, in addition to its main title ("An Act to Outlawthe Communist Party of the
Philippines and SimilarAssociations, Penalizing Membership Therein, and forOther
Purposes"), has a short title. Section 1 providesthat "This Act shall be known as the
Anti-Subversion Act."Together with the main title, the short title of the
statuteunequivocally indicates that the subject matter is subversionin general which has
for its fundamental purpose the substitutionof a foreign totalitarian regime in place of
theexisting Government and not merely subversion by Communistconspiracies..
The title of a bill need not be a catalogue or an indexof its contents, and need not recite
the details of the Act. 51 It is a valid title if it indicates in broad but clear termsthe nature,
scope, and consequences of the proposed lawand its operation. 52 A narrow or technical
construction isto be avoided, and the statute will be read fairly and reasonablyin order not
to thwart the legislative intent. We holdthat the Anti-Subversion Act fully satisfies these
requirements.
VI. Conclusion and Guidelines
In conclusion, even as we uphold the validity of theAnti-Subversion Act, we cannot
overemphasize the needfor prudence and circumspection in its enforcement, operatingas
it does in the sensitive area of freedom of expressionand belief. Accordingly, we set the
following basic guidelines to be observed in any prosecution under the Act.The
Government, in addition to proving such circumstancesas may affect liability, must

establish the following elementsof the crime of joining the Communist Party of the
Philippinesor any other subversive association:
(1) In the case of subversive organizations other thanthe Communist Party of the
Philippines, (a) that thepurpose of the organization is to overthrow the
presentGovernment of the Philippines and to establish in thiscountry a totalitarian regime
under the domination of aforeign power; (b) that the accused joined such
organization;and (c) that he did so knowingly, willfully and byovert acts; and
(2) In the case of the Communist Party of the Philippines,(a) that the CPP continues to
pursue the objectiveswhich led Congress in 1957 to declare it to be an
organizedconspiracy for the overthrow of the Government by illegalmeans for the
purpose of placing the country under thecontrol of a foreign power; (b) that the accused
joined theCPP; and (c) that he did so willfully, knowingly and byovert acts.
We refrain from making any pronouncement as to thecrime or remaining a member of the
Communist Party ofthe Philippines or of any other subversive association: weleave this
matter to future determination.
ACCORDINGLY, the questioned resolution of September15, 1970 is set aside, and these
two cases are herebyremanded to the court a quo for trial on the merits. Costs de oficio.
Makalintal, Zaldivar, Teehankee, Barredo and Esguerra, JJ., concur.
Concepcion, C.J., concurs in the result.
Makasiar and Antonio, JJ., took no part.

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