FREEDOM OF EXPRESSION

1.

US v. BUSTOS

G.R. No. L-12592

March 8, 1918

THE UNITED STATES, plaintiff-appellee,

vs.
FELIPE BUSTOS, ET AL., defendants-appellants.
Kincaid and Perkins for appellants.
Acting Attorney-General Paredes, for appellee.

3.
That Leoncio Quiambao, having filed a complaint for assault against four
persons, on the day of the trial the justice called him over to his house, where he
secretly gave him (Quiambao) P30; and the complaint was thereupon shelved.
The Executive Secretary referred the papers to the judge of first instance for the
Seventh Judicial District requesting investigation, proper action, and report. The justice
of the peace was notified and denied the charges. The judge of first instance found the
first count not proved and counts 2 and 3 established. In view of this result, the judge,
the Honorable Percy M. Moir, was of the opinion "that it must be, and it is hereby,
recommended to the Governor-General that the respondent be removed from his
position as justice of the peace of Macabebe and Masantol, Province of Pampanga,
and it is ordered that the proceedings had in this case be transmitted to the Executive
Secretary."

MALCOLM, J.:
This appeal presents the specific question of whether or not the defendants and
appellants are guilty of a libel of Roman Punsalan, justice of the peace of Macabebe
and Masantol, Province of Pampanga. The appeal also submits the larger question of
the attitude which the judiciary should take interpreting and enforcing the Libel Law in
connection with the basic prerogatives of freedom of speech and press, and of
assembly and petition. For a better understanding, the facts in the present appeal are
the first narrated in the order of their occurrence, then certain suggestive aspects
relative to the rights of freedom of speech and press and of assembly and petition are
interpolated, then the facts are tested by these principles, and, finally, judgment is
rendered.
First, the facts. In the latter part of 1915, numerous citizens of the Province of
Pampanga assembled, and prepared and signed a petition to the Executive Secretary
through the law office of Crossfield and O'Brien, and five individuals signed affidavits,
charging Roman Punsalan, justice of the peace of Macabebe and Masantol,
Pampanga, with malfeasance in office and asking for his removal. Crossfield and
O'Brien submitted this petition and these affidavits with a complaint to the Executive
Secretary. The petition transmitted by these attorneys was signed by thirty-four citizens
apparently of considerable standing, including councilors and property owners (now the
defendants), and contained the statements set out in the information as libelous. Briefly
stated the specific charges against the justice of the peace were.
1.
That Francisca Polintan, desiring to make complaint against Mariano de los
Reyes, visited the justice of the peace, who first told her that he would draw up
complaint for P5; afterwards he said he would take P3 which she paid; also kept her in
the house for four days as a servant and took from her two chickens and twelve
"gandus;"
2.
That Valentin Sunga being interested in a case regarding land which was on
trial before the justice of the peace, went to see the justice of the peace to ascertain
the result of the trial, and was told by the justice of the peace that if he wished to win
he must give him P50. Not having this amount, Sunga gave the justice nothing, and a
few days later was informed that he had lost the case. Returning again to the office of
the justice of the peace in order to appeal, the justice told him that he could still win if
he would pay P50;

Later the justice of the peace filled a motion for a new trial; the judge of first instance
granted the motion and reopened the hearing; documents were introduced, including a
letter sent by the municipal president and six councilors of Masantol, Pampanga,
asserting that the justice of the peace was the victim of prosecution, and that one
Agustin Jaime, the auxiliary justice of the peace, had instituted the charges for personal
reasons; and the judge of first instance ordered a suppression of the charges against
Punsalan and acquitted him the same. Attorneys for complainants thereupon appealed
to the Governor-General, but whether the papers were forwarded to the GovernorGeneral as requested the record does not disclose.
Criminal action against the petitioners, now become the defendants, was instituted on
October 12, 1916, by virtue of the following information:
That on or about the month of December, 1915, in the municipality of Macabebe,
Pampanga, P. I., the said accused, voluntarily, illegally, and criminally and with
malicious intent to prejudice and defame Mr. Roman Punsalan Serrano who was at
said time and place justice of the peace of Macabebe and Masantol of this province,
wrote, signed, and published a writing which was false, scandalous, malicious,
defamatory, and libelous against the justice of the peace Mr. Roman Punsalan Serrano,
in which writing appear among other things the following:
That the justice of the peace, Mr. Roman Punsalan Serrano, of this town of Macabebe,
on account of the conduct observed by him heretofore, a conduct highly improper of
the office which he holds, is found to be a public functionary who is absolutely unfair,
eminently immoral and dangerous to the community, and consequently unworthy of the
office.
That this assertion of the undersigned is evidenced in a clear and positive manner by
facts so certain, so serious, and so denigrating which appear in the affidavits attached
hereto, and by other facts no less serious, but which the undersigned refrain from citing
herein for the sake of brevity and in order not to bother too much the attention of your
Honor and due to lack of sufficient proof to substantiate them.
That should the higher authorities allow the said justice of the peace of this town to
continue in his office, the protection of the rights and interests of its inhabitants will be
illusory and utopic; rights and interest solemnly guaranteed by the Philippine Bill of
Rights, and justice in this town will not be administered in accordance with law.

That on account of the wrongful discharge of his office and of his bad conducts as such
justice of the peace, previous to this time, some respectable citizens of this town of
Macabebe were compelled to present an administrative case against the said Roman
Punsalan Serrano before the judge of first instance of Pampanga, in which case there
were made against him various charges which were true and certain and of different
characters.
That after the said administrative case was over, the said justice of the peace, far from
charging his bad and despicable conduct, which has roused the indignation of this town
of Macabebe, subsequently performed the acts abovementioned, as stated in the
affidavits herewith attached, as if intending to mock at the people and to show his
mistaken valor and heroism.'
All of this has been written and published by the accused with deliberate purpose of
attacking the virtue, honor, and reputation of the justice of the peace, Mr. Roman
Punsalan Serrano, and thus exposing him to public hatred contempt, and ridicule. All
contrary to law.
It should be noted that the information omits paragraphs of the petition mentioning the
investigation before the judge of first instance, the affidavits upon which based and
concluding words, "To the Executive Secretary, through the office of Crossfield and
O'Brien."
The Honorable Percy M. Moir found all the defendants, with the exception of Felix
Fernandez, Juan S. Alfonso, Restituto Garcia, and Manuel Mallari, guilty and
sentenced each of them to pay a fine of P10 and one thirty-second part of the costs, or
to suffer subsidiary imprisonment in case of insolvency. New attorneys for the defense,
coming into the case, after the handing down of the decision, file on December 16,
1916, a motion for a new trial, the principal purpose of which was to retire the objection
interposed by the then counsel for the defendants to the admission of Exhibit A
consisting of the entire administrative proceedings. The trial court denied the motion.
All the defendants, except Melecio S. Sabado and Fortunato Macalino appealed
making the following assignments of error:
1.
trial.

The court erred in overruling the motion of the convicted defendants for a new

2.
The court erred in refusing to permit the defendants to retire the objection in
advertently interposed by their counsel to the admission in evidence of the expediente
administrativo out of which the accusation in this case arose.

7.
The evidence adduced fails to show the guilt of the defendants beyond a
reasonable doubt. This is especially true of all the defendants, except Felipe Bustos,
Dionisio Mallari, and Jose T. Reyes.
We have thus far taken it for granted that all the proceedings, administrative and
judicial, were properly before this court. As a matter of fact counsel for defendants in
the lower court made an improvident objection to the admission of the administrative
proceedings on the ground that the signatures were not identified and that the same
was immaterial, which objection was partially sustained by the trial court.
Notwithstanding this curious situation by reason of which the attorney for the defense
attempted to destroy through his objection the very foundation for the justification of his
clients, we shall continue to consider all the proceedings as before us. Not indicating
specifically the reason for this action, let the following be stated: The administrative
proceedings were repeatedly mentioned during the trial. These proceedings were the
basis of the accusation, the information, the evidence, and the judgment rendered. The
prosecution cannot be understood without knowledge of anterior action. Nothing more
unjust could be imagined than to pick out certain words which standing by themselves
and unexplained are libelous and then by shutting off all knowledge of facts which would
justify these words, to convict the accused. The records in question are attached to the
rollo, and either on the ground that the attorneys for the defense retired the objection
to the introduction of the administrative proceedings by the prosecution, or that a new
trial should have been had because under section 42 of the Code of Criminal Procedure
"a case may be reopened on account of errors at law committed at the trial," or because
of the right of this court to call in such records as are sufficiently incorporated into the
complaint and are essential to a determination of the case, or finally, because of our
conceded right to take judicial notice of official action in administrative cases and of
judicial proceedings supplemental to the basis action, we examine the record as before
us, containing not alone the trial for libel, but the proceedings previous to that trial giving
rise to it. To this action, the Government can not explain for it was the prosecution which
tried to incorporate Exhibit A into the record.
With these facts pleading justification, before testing them by certain principles which
make up the law of libel and slander, we feel warranted in seizing the opportunity to
intrude an introductory and general discussion of freedom of speech and press and
assembly and petition in the Philippine Islands. We conceive that the time is ripe thus
to clear up certain misapprehensions on the subject and to place these basic rights in
their proper light.

3.
The court erred in sustaining the objection of the prosecution to the
introduction in evidence by the accused of the affidavits upon which the petition forming
the basis of the libelous charge was based.

Turning to the pages of history, we state nothing new when we set down that freedom
of speech as cherished in democratic countries was unknown in the Philippine Islands
before 1900. A prime cause for revolt was consequently ready made. Jose Rizal in
"Filipinas Despues de Cien Aos" (The Philippines a Century Hence, pages 62 et seq.)
describing "the reforms sine quibus non," which the Filipinos insist upon, said: "

4.
The court erred in not holding that the alleged libelous statement was
unqualifiedly privileged.

The minister, . . . who wants his reforms to be reforms, must begin by declaring the
press in the Philippines free and by instituting Filipinos delegates.

5.
The court erred in assuming and impliedly holding that the burden was on the
defendants to show that the alleged libelous statements were true and free from malice.

The Filipino patriots in Spain, through the columns of "La Solidaridad" and by other
means invariably in exposing the wants of the Filipino people demanded "liberty of the
press, of cults, and associations." (See Mabini, La Revolucion Filipina.) The Malolos

6.

The court erred in not acquitting the defendants.

Constitution, the work of the Revolutionary Congress, in its Bill of Rights, zealously
guarded freedom of speech and press and assembly and petition.
Mention is made of the foregoing data only to deduce the proposition that a reform so
sacred to the people of these Islands and won at so dear a cost, should now be
protected and carried forward as one would protect and preserve the covenant of liberty
itself.
Next comes the period of American-Filipino cooperative effort. The Constitution of the
United States and the State constitutions guarantee to the right of freedom of speech
and press and the right of assembly and petition. We are therefore, not surprised to find
President McKinley in that Magna Charta of Philippine Liberty, the Instructions to the
Second Philippine Commission, of April 7, 1900, laying down the inviolable rule "That
no law shall be passed abridging the freedom of speech or of the press or of the rights
of the people to peaceably assemble and petition the Government for a redress of
grievances."
The Philippine Bill, the Act of Congress of July 1, 1902, and the Jones Law, the Act of
Congress of August 29, 1916, in the nature of organic acts for the Philippines, continued
this guaranty. The words quoted are not unfamiliar to students of Constitutional Law,
for they are the counterpart of the first amendment to the Constitution of the United
States, which the American people demanded before giving their approval to the
Constitution.
We mention the foregoing facts only to deduce the position never to be forgotten for an
instant that the guaranties mentioned are part and parcel of the Organic Law of the
Constitution of the Philippine Islands.
These paragraphs found in the Philippine Bill of Rights are not threadbare verbiage.
The language carries with all the applicable jurisprudence of great English and
American Constitutional cases. (Kepner vs. U. S. [1904], 195 U. S., 100; Serra vs.
Mortiga [1907], 204 U. S., 470.) And what are these principles? Volumes would
inadequately answer. But included are the following:
The interest of society and the maintenance of good government demand a full
discussion of public affairs. Completely liberty to comment on the conduct of public men
is a scalpel in the case of free speech. The sharp incision of its probe relieves the
abscesses of officialdom. Men in public life may suffer under a hostile and an unjust
accusation; the wound can be assuaged with the balm of a clear conscience. A public
officer must not be too thin-skinned with reference to comment upon his official acts.
Only thus can the intelligence and the dignity of the individual be exalted. Of course,
criticism does not authorize defamation. Nevertheless, as the individual is less than the
State, so must expected criticism be born for the common good. Rising superior to any
official or set of officials, to the Chief of Executive, to the Legislature, to the Judiciary
to any or all the agencies of Government public opinion should be the constant
source of liberty and democracy. (See the well considered cases of Wason vs. Walter,
4 L. R. 4 Q. B., 73; Seymour vs. Butterworth, 3F. and F., 372; The Queen vs. Sir R.
Carden, 5 Q. B. D., 1)
The guaranties of a free speech and a free press include the right to criticize judicial
conduct. The administration of the law is a matter of vital public concern. Whether the
law is wisely or badly enforced is, therefore, a fit subject for proper comment. If the

people cannot criticize a justice of the peace or a judge the same as any other public
officer, public opinion will be effectively muzzled. Attempted terrorization of public
opinion on the part of the judiciary would be tyranny of the basest sort. The sword of
Damocles in the hands of a judge does not hang suspended over the individual who
dares to assert his prerogative as a citizen and to stand up bravely before any official.
On the contrary, it is a duty which every one owes to society or to the State to assist in
the investigation of any alleged misconduct. It is further the duty of all who know of any
official dereliction on the part of a magistrate or the wrongful act of any public officer to
bring the facts to the notice of those whose duty it is to inquire into and punish them. In
the words of Mr. Justice Gayner, who contributed so largely to the law of libel. "The
people are not obliged to speak of the conduct of their officials in whispers or with bated
breath in a free government, but only in a despotism." (Howarth vs. Barlow [1906], 113
App. Div., N. Y., 510.)
The right to assemble and petition is the necessary consequence of republican
institutions and the complement of the part of free speech. Assembly means a right on
the part of citizens to meet peaceably for consultation in respect to public affairs.
Petition means that any person or group of persons can apply, without fear of penalty,
to the appropriate branch or office of the government for a redress of grievances. The
persons assembling and petitioning must, of course, assume responsibility for the
charges made.
Public policy, the welfare of society, and the orderly administration of government have
demanded protection for public opinion. The inevitable and incontestable result has
been the development and adoption of the doctrine of privilege.
The doctrine of privileged communications rests upon public policy, 'which looks to the
free and unfettered administration of justice, though, as an incidental result, it may in
some instances afford an immunity to the evil-disposed and malignant slanderer.'
(Abbott vs. National Bank of Commerce, Tacoma [1899], 175 U. S., 409, 411.)
Privilege is classified as either absolute or qualified. With the first, we are not
concerned. As to qualified privilege, it is as the words suggest a prima facie privilege
which may be lost by proof of malice. The rule is thus stated by Lord Campbell, C. J.
A communication made bona fide upon any subject-matter in which the party
communicating has an interest, or in reference to which has a duty, is privileged, if
made to a person having a corresponding interest or duty, although it contained
criminatory matter which without this privilege would be slanderous and actionable.
(Harrison vs. Bush, 5 E. and B., 344; 1 Jur.[N. S.], 846; 25 L. J. Q. B., 25; 3 W. R., 474;
85 E. C. L., 344.)
A pertinent illustration of the application of qualified privilege is a complaint made in
good faith and without malice in regard to the character or conduct of a public official
when addressed to an officer or a board having some interest or duty in the matter.
Even when the statements are found to be false, if there is probable cause for belief in
their truthfulness and the charge is made in good faith, the mantle of privilege may still
cover the mistake of the individual. But the statements must be made under an honest
sense of duty; a self-seeking motive is destructive. Personal injury is not necessary. All
persons have an interest in the pure and efficient administration of justice and of public
affairs. The duty under which a party is privileged is sufficient if it is social or moral in
its nature and this person in good faith believes he is acting in pursuance thereof

although in fact he is mistaken. The privilege is not defeated by the mere fact that the
communication is made in intemperate terms. A further element of the law of privilege
concerns the person to whom the complaint should be made. The rule is that if a party
applies to the wrong person through some natural and honest mistake as to the
respective functions of various officials such unintentional error will not take the case
out of the privilege.
In the usual case malice can be presumed from defamatory words. Privilege destroy
that presumption. The onus of proving malice then lies on the plaintiff. The plaintiff must
bring home to the defendant the existence of malice as the true motive of his conduct.
Falsehood and the absence of probable cause will amount to proof of malice. (See
White vs. Nicholls [1845], 3 How., 266.)
A privileged communication should not be subjected to microscopic examination to
discover grounds of malice or falsity. Such excessive scrutiny would defeat the
protection which the law throws over privileged communications. The ultimate test is
that of bona fides. (See White vs. Nicholls [1845], 3 How., 266; Bradley vs. Heath
[1831], 12 Pick. [Mass.], 163; Kent vs. Bongartz [1885], 15 R. I., 72; Street Foundations
of Legal Liability, vol. 1, pp. 308, 309; Newell, Slander and Libel, various citations; 25
Cyc. pages 385 et seq.)
Having ascertained the attitude which should be assumed relative to the basic rights of
freedom of speech and press and of assembly and petition, having emphasized the
point that our Libel Law as a statute must be construed with reference to the guaranties
of our Organic Law, and having sketched the doctrine of privilege, we are in a position
to test the facts of this case with these principles.
It is true that the particular words set out in the information, if said of a private person,
might well be considered libelous per se. The charges might also under certain
conceivable conditions convict one of a libel of a government official. As a general rule
words imputing to a judge or a justice of the peace dishonesty or corruption or
incapacity or misconduct touching him in his office are actionable. But as suggested in
the beginning we do not have present a simple case of direct and vicious accusations
published in the press, but of charges predicated on affidavits made to the proper
official and thus qualifiedly privileged. Express malice has not been proved by the
prosecution. Further, although the charges are probably not true as to the justice of the
peace, they were believed to be true by the petitioners. Good faith surrounded their
action. Probable cause for them to think that malfeasance or misfeasance in office
existed is apparent. The ends and the motives of these citizens to secure the removal
from office of a person thought to be venal were justifiable. In no way did they abuse
the privilege. These respectable citizens did not eagerly seize on a frivolous matter but
on instances which not only seemed to them of a grave character, but which were
sufficient in an investigation by a judge of first instance to convince him of their
seriousness. No undue publicity was given to the petition. The manner of commenting
on the conduct of the justice of the peace was proper. And finally the charges and the
petition were submitted through reputable attorneys to the proper functionary, the
Executive Secretary. In this connection it is sufficient to note that justices of the peace
are appointed by the Governor-General, that they may be removed by the GovernorGeneral upon the recommendation of a Judge of First Instance, or on the GovernorGeneral's own motion, and that at the time this action took place the Executive Bureau
was the office through which the Governor-General acted in such matter. (See
Administrative Code of 1917, secs. 203 and 229, in connection with the cases of U. S.

vs. Galesa [1915], 31 Phil., 365, and of Harrison vs. Bush, 5 E. and B., 344, holding
that where defendant was subject to removal by the sovereign, a communication to the
Secretary of State was privileged.)
The present facts are further essentially different from those established in other cases
in which private individuals have been convicted of libels of public officials. Malice,
traduction, falsehood, calumny, against the man and not the officer, have been the
causes of the verdict of guilty. (See U. S. vs. Senado [1909], 14 Phil., 338, 339; U. S.
vs. Contreras [1912], 23 Phil., 513; U. S. vs. Montalvo [1915], 29 Phil., 595.)
The Attorney-General bases his recommendation for confirmation on the case of the
United States vs. Julio Bustos ([1909], 13 Phil., 690). The Julio Bustos case, the
Attorney-General says, is identical with the Felipe Bustos case, with the exception that
there has been more publicity in the present instance and that the person to whom the
charge was made had less jurisdiction than had the Secretary of Justice in the Julio
Bustos case. Publicity is immaterial if the charge against Punsalan is in fact a privileged
communication. Moreover, in the Julio Bustos case we find wild statements, with no
basis in fact, made against reputable members of the judiciary, "to persons who could
not furnish protection." Malicious and untrue communications are not privileged. A later
case and one more directly in point to which we invite especial attention is United States
vs. Galeza ([1915], 31 Phil., 365). (Note also Yancey vs. Commonwealth [1909], 122
So. W., 123.)
We find the defendants and appellants entitled to the protection of the rules concerning
qualified privilege, growing out of constitutional guaranties in our bill of rights. Instead
of punishing citizens for an honest endeavor to improve the public service, we should
rather commend them for their good citizenship. The defendants and appellants are
acquitted with the costs de officio. So ordered.
Arellano, C.J., Johnson, Araullo, Street, and Fisher, JJ., concur.

2.

PEOPLE v. ALARCON

G.R. No. 46551

December 12, 1939

THE PEOPLE OF THE PHILIPPINES, plaintiff-appelle,

vs.
SALVADOR ALARCON, ET AL., accused.
FEDERICO MANGAHAS, respondent-appellant.
Araneta, Zaragoza & Araneta for appellant.
Assistant Solicitor-General Salvador Abad Santos for appellee.

LAUREL, J.:
As an aftermath of the decision rendered by the Court of first Instance of Pampanga in
criminal case No. 5733, The People of the Philippines vs. Salvador Alarcon, et al.,
convicting the accused therein except one of the crime of robbery committed in
band, a denunciatory letter, signed by Luis M. Taruc, was addressed to His Excellency,
the President of the Philippines. A copy of said letter found its way to the herein
respondent, Federico Magahas who, as columnist of the Tribune, a newspaper of
general circulation in the Philippines, quoted the letter in an article published by him in
the issue of that paper of September 23, 1937. The objectionable portion is inserted in
the following petition of the provincial fiscal of Pampanga, filed with the Court of First
Instance of that province on September 29, 1937:
PETICION PARA QUE FEDERICO MAGAHAS SEA CASTIGADO POR DESACATO
Comparece el fiscal provincial que suscribe y al Hon. Juzgado, como motivos de
accion, restuosamente alega:
1.
Que el 23 de julio de 1937, el que suscribe presento una querella en la causa
arriba titulada, por el delito de ROBO EN CUADRILLA, habiendose celebrado la vista
de esta causa durante los dias 28, 29 y 30 del mismo mes y ao;
2.
Que el 2 de agosto de 1937, el Hon. Juzgado dicto su decision declarando
culpables a los cincuenta y dos acusados, y condenando al acusado Ricardo Serrano
1. como jefe de la cuadrilla, a una pena indeterminada no menor de cuatro meses de
arresto mayor, ni mayor de cuatro aos de prision correccional, y a todos los demas
acusados a una pena indeterminada no menor de cuatro meses de arresto mayor, ni
mayor de cuatro a os de prision correccional, y a todos los demas acusados a una
pena indeterminada no menor de dos meses y un dia de arresto mayor, ni mayor de
tres aos, ocho meses y un dia de prision correccional y al pago proporcional de las
costas;
3.
Que el 9 de agosto de 1937, no estando conformes de esta decision, los
referidos acusados presentaron su escrito de apelacion para ante la Corte de
Apelaciones;
4.
Que el 23 de septiembre de 1937, el recurrido Federico Mangahas escribio,
redacto, imprimio y publico e hizo que se publicara en el periodico diario The Tribune

que se edite en la Ciudad de Manila y de general circulacion en las Islas Filipinas, en

su numero correspondiente a dicha fecha, un articulo que hacia referencia a este Hon.
Juzgado y a la actuacion de este en esta causa, cuyo articulo en parte es del tenor
siguiente:
'Fifty-two (52) tenants in Floridablanca, Pampanga, have been charged and convicted
on a trumped up charge of robbery in band because they took each a few cavans of
palay for which they issued the corresponding receipts, from the bodega in the
hacienda where they are working. These tenants contend that they have the right to
take the palay for their food as the hacienda owner has the obligation to give them
rations of palay for their maintenance and their families to be paid later with their share
of their crop. But this is not all. When the convicted tenants appealed the case and were
released on bail pending their appeal, court and public officials exerted pressure upon
one of their bondsmen, as this bondsman informed the tenants, to withdraw his bail for
them, and the fifty-two tenants were arrested again and put in jail.'lawphil.net
5.
Que la publicacion de este articulo acotado constituye un verdadero desacato
al Tribunal, porque tiene por objeto obstaculizar la recta administracion de justicia, y
tiende, ademas, a impresionar en el animo del Tribunal y a ejercer influencia en la
decision que se dictare en este causa;
6.
Que la publicacion de dicho articulo es igualmente un verdadero desacato a
este Hon. Juzgado, por ser completamente falsos y tendenciosos los hechos
expuestos en el mismo como hechos ejecutados por este Hon. Juzgado;
7.
Que el recurrido Federico Mangahas con dicho articulo acotado, voluntaria,
maliciosa y deliberadamente trato y se propuso atacar la honra, virtud y reputacion de
este Hon. Juzgado exponiendolo el menosprecio y ridiculo del publico por las
imputaciones falsas, maliciosas y difamatorias contenidas en dicho articulo.
Por tanto, pide se sirva ordenar el emplazamiento del recurrido Federico Mangahas,
c/o T.V.T. Publishing Corporation, Calle Florentino Torres, Manila, para que
comparezca ante este Hon. Juzgado y conteste a la presente peticion, y, previos los
tramites legales, dicho recurido sea castigado por desacato. Pide igualmente se sirva
dictar cualquier otra resolucion que en derecho proceda.
San Fernando, Pampanga, septiembre 23, 1937.
On the same date, the lower court ordered the respondent to appear and show cause.
The respondent appeared and filed an answer, alleging:
1.
That he did not draft and write the paragraph above quoted in the petition of
the Provincial Fiscal, but the same is merely a part of a letter addressed to the President
of the Philippines, certified copy of which is hereto attached, and marked Exhibit "1."
2.
That he caused the said letter to be copied without comments or remarks as
may be seen from the attached issue of the "The Tribune" on September 23, 1937,
marked Exhibit "2."
3.
That in having the said letter copied it was not the intention, much less the
purpose and design of the respondent to attack the honor, virtue and reputation of this

Honorable Court but merely cited it as an instance of the popular tendency to resort to
the President in everything.

II.
The lower court erred in considering the letter quoted in the article in question
as falling under the Rules on the Investigation of Judges of First Instance.

4.
That far from reflecting on the honor, virtue and reputation of this Honorable
Court, the publication of the letter to the President simply constitutes an indirect
criticism of the methods of the Popular Front in building up its political prestige.

III.

5.
That the publication of the letter in question did not and does not embarrass,
impede, intimidate or influence this Honorable Court in the exercise of its judicial
functions, or prevent an impartial trial in this case, inasmuch as the case has already
been decided.
6.
That the respondent alleges that this case is no longer pending before this
Hon. Court and therefore the Court has lost its jurisdiction over it.
7.
The respondents contends that the portion of the article quoted by the
provincial fiscal in his petition for contempt does not constitute contempt of court
because it does not attack nor question the judgment of the Court but only explain the
side of the defendant.
8.
"The general rule is that to constitute any publication a contempt it must have
reference to a matter then pending in court, and be of a character tending to the injury
of pending proceeding before if and of the subsequent proceeding. It is accordingly
held that libelous comments upon a sentence already passed in a criminal proceeding
is not a contempt." (Percival v. State, 45 Neb., 741 50 Am. St. Rept., 568; 64 NW. 221;
68 L. R.A., 255.)
9.
"But comment upon the lower court's decision was held not contemptous
because relating to a concluded matter, in Re Dalton, 46 Jan., 256; 26 Pac., 673 and
Dumhan v. State, 6 Iowa, 245; although the case was then pending on appeal." (68
L.R.A., 262.) (Underlining ours.)
10.
That the publication of the letter in question is in line with the constitutional
guarantee of freedom of the press.
On November 29, 2937, the lower court entered an order, the dispositive part of which
read thus:
Considerando, sin embargo, todas las circunstancias del case, el Juzgado solamente
impone al recurrido una multa nominal de P25, o en case de insolvencia, cinco dias de
prision sin perjuico de la accion por libelo que el fiscal creyere conviniente incoar contra
Luis M. Taruc.
Asi se ordena.
Respondent Magahas appealed from this order to the Court of Appeals which later
certified the case to this Court as involving only a question of law assigning the
following errors allegedly committed by the trial court;
I.

The lower court erred in finding the respondent guilty of contempt of court.

The lower court erred in taking jurisdiction of the motion for contempt.

Consideration of the first error is all that is necessary as the same will lead incidentally
to the disposition of the other two.
The elements of contempt by newspaper publications are well defined by the cases
adjudicated in this as in other jurisdictions. Newspaper publications tending to impede,
obstruct, embarrass, or influence the courts in administering justice in a pending suit or
proceeding constitutes criminal contempt which is summarily punishable by the courts.
The rule is otherwise after the cause is ended. (In re Lozano and Quevedo, 54 Phil.,
801; In re Abistado, 57 Phil., 668.) It must, however, clearly appear that such
publications do impede, interfere with, and embarrass the administration of justice
before the author of the publications should be held for contempt. (Nixon v. State 207
Ind., 426, 193 N.E., 591, 97 A.L.R., 894.) What is thus sought to be shielded against
the influence of newspaper comments is the all-important duty of the court to administer
justice in the decision of a pending case. There is no pending case to speak of when
and once the court has come upon a decision and has lost control either to reconsider
or amend it. That, we believe, is the case at bar, for here we have a concession that
the letter complained of was published after the Court of First Instance of Pampanga
had decided the aforesaid criminal case for robbery in band, and after that decision had
been appealed to the Court of Appeals. The fact that a motion to reconsider its order
confiscating the bond of the accused therein was subsequently filed may be admitted;
but, the important consideration is that it was then without power to reopen or modify
the decision which it had rendered upon the merits of the case, and could not have
been influenced by the questioned publication.
If it be contended, however, that the publication of the questioned letter constitutes
contempt of the Court of Appeals where the appeal in the criminal case was then
pending, as was the theory of the provincial fiscal below which was accepted by the
lower court, we take the view that in the interrelation of the different courts forming our
integrated judicial system, one court is not an agent or representative of another and
may not, for this reason, punish contempts in vindication of the authority and decorum
which are not its own. The appeal transfer the proceedings to the appellate court, and
this last word becomes thereby charged with the authority to deal with contempts
committed after the perfection of the appeal.
The Solicitor-General, in his brief, suggests that "even if there had been nothing more
pending before the trial court, this still had jurisdiction to punish the accused for
contempt, for the reason that the publication scandalized the court. (13 C.J., p. 37, 45;
6 R.C.L., 513.)" The rule suggested, which has its origin at common law, is involved in
some doubt under modern English law and in the United States, "the weight of authority,
however, is clearly to the effect that comment upon concluded cases is unrestricted
under our constitutional guaranty of the liberty of the press." (Annotations, 68 L.R.A.,
255.) Other considerations argue against our adoption of the suggested holding. As
stated, the rule imported into this jurisdiction is that "newspaper publications tending to
impede, obstruct, embarrass, or influence the courts in administering justice in a
pending suit or proceeding constitute criminal contempt which is summarily punishable
by the courts; that the rule is otherwise after the case is ended." (In re Lozano and
Quevedo, supra; In re Abistado, supra.) In at least two instances, this Court has

exercised the power to punish for contempt "on the preservative and on the vindicative
principle" (Villavicencio vs. Lukban, 39 Phil., 778), "on the corrective and not on the
retaliatory idea of punishment". In re Lozano and Quevedo, supra.) Contempt of court
is in the nature of a criminal offense (Lee Yick Hon vs. Collector of Customs, 41 Phil.,
548), and in considering the probable effects of the article alleged to be contemptuous,
every fair and reasonable inference consistent with the theory of defendant's innocence
will be indulged (State v. New Mexican Printing Co., 25 N. M., 102, 177 p. 751), and
where a reasonable doubt in fact or in law exists as to the guilt of one of constructive
contempt for interfering with the due administration of justice the doubt must be
resolved in his favor, and he must be acquitted. (State v. Hazeltine, 82 Wash., 81, 143
p. 436.) The appealed order is hereby reversed, and the respondent acquitted, without
pronouncement as to costs. So ordered.
Avancea, C.P., Villa-Real, Imperial, Diaz and Concepcion, JJ., concur.

3.

AYER PRODUCTIONS v. CAPULONG

G.R. No. 82380

April 29, 1988

AYER PRODUCTIONS PTY. LTD. and McELROY & McELROY

PRODUCTIONS, petitioners,
vs.
HON.IGNACIO M. CAPULONG and JUAN PONCE ENRILE, respondents.
G.R. No. 82398

and of Marcos' megalomania, for him, there appears to be no alternative to Marcos

except the Communists.
FILM

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.

April 29, 1988

HAL MCELROY petitioner,

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

FELICIANO, J.:
Petitioner Hal McElroy an Australian film maker, and his movie production company,
Petitioner Ayer Productions pty Ltd. (Ayer Productions), 1 envisioned, sometime in
1987, the for commercial viewing and for Philippine and international release, the
histolic peaceful struggle of the Filipinos at EDSA (Epifanio de los Santos Avenue).
Petitioners discussed this Project with local movie producer Lope V. Juban who
suggested th they consult with the appropriate government agencies and also with
General Fidel V. Ramos and Senator Juan Ponce Enrile, who had played major roles
in the events proposed to be filmed.

The fourth fictitious character is Ben Balano, a middle-aged editor of a Manila

newspaper who despises the Marcos regime and is a supporter an promoter of Cory
Aquino. Ben has two daughters, Cehea left wing lawyer who is a secret member of the
New People's Army, and Eva--a -P.R. girl, politically moderate and very much in love
with Tony. Ultimately, she must choose between her love and the revolution.
Through the interviews and experiences of these central characters, we show the
complex nature of Filipino society, and thintertwining series of events and characters
that triggered these remarkable changes. Through them also, we meet all of the
principal characters and experience directly dramatic recreation of the revolution. The
story incorporates actual documentary footage filmed during the period which we hope
will capture the unique atmosphere and forces that combined to overthrow President
Marcos.
David Williamson is Australia's leading playwright with some 14 hugely successful plays
to his credit(Don's Party,' 'The Club,' Travelling North) and 11 feature films (The Year
of Living Dangerously,' Gallipoli,' 'Phar Lap').

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.

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
.

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 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 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.

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.

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

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.

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.

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.

Private respondent seasonably filed his Consolidated Answer on 6 April 1988 invoking
in the main a right of privacy.

On 9 March 1988, Hal McElroy flied a Motion to Dismiss with Opposition to the Petition
for Preliminary Injunction contending that the mini-series fim would not involve the
private life of Juan Ponce Enrile nor that of his family and that a preliminary injunction
would amount to a prior restraint on their right of free expression. Petitioner Ayer
Productions also filed its own Motion to Dismiss alleging lack of cause of action as the
mini-series had not yet been completed.
In an Order 2 dated 16 March 1988, respondent court issued a writ of Preliminary
Injunction against the petitioners, the dispositive portion of which reads thus:
WHEREFORE, let a writ of preliminary injunction be issued, ordering defendants, and
all persons and entities employed or under contract with them, including actors,
actresses and members of the production staff and crew as well as all persons and
entities acting on defendants' behalf, to cease and desist from producing and filming
the mini-series entitled 'The Four Day Revolution" and from making any reference
whatsoever to plaintiff or his family and from creating any fictitious character in lieu of
plaintiff which nevertheless is based on, or bears rent substantial or marked
resemblance or similarity to, or is otherwise Identifiable with, plaintiff in the production
and any similar film or photoplay, until further orders from this Court, upon plaintiff's
filing of a bond in the amount of P 2,000,000.00, to answer for whatever damages
defendants may suffer by reason of the injunction if the Court should finally decide that
plaintiff was not entitled thereto.
xxx

xxx

xxx

(Emphasis supplied)
On 22 March 1988, petitioner Ayer Productions came to this Court by a Petition for
certiorari dated 21 March 1988 with an urgent prayer for Preliminary Injunction or
Restraining Order, which petition was docketed as G.R. No. L-82380.
A day later, or on 23 March 1988, petitiioner Hal McElroy also filed separate Petition
for certiorari with Urgent Prayer for a Restraining Order or Preliminary Injunction, dated
22 March 1988, docketed as G.R. No. L-82398.
By a Resolution dated 24 March 1988, the petitions were consolidated and private
respondent was required to file a consolidated Answer. Further, in the same Resolution,
the Court granted a Temporary Restraining Order partially enjoining the implementation
of the respondent Judge's Order of 16 March 1988 and the Writ of Preliminary Injunction

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

permissible where that person is a public figure and the information sought to be elicited
from him or to be published about him constitute of apublic character. 7 Succinctly put,
the right of privacy cannot be invoked resist publication and dissemination of matters
of public interest. 8 The interest sought to be protected by the right of privacy is the
right to be free from unwarranted publicity, from the wrongful publicizing of the private
affairs and activities of an individual which are outside the realm of legitimate public
concern. 9
Lagunzad v. Vda. de Gonzales, 10 on which private respondent relies heavily,
recognized a right to privacy in a context which included a claim to freedom of speech
and of expression. Lagunzad involved a suit fortion picture producer as licensee and
the widow and family of the late Moises Padilla as licensors. This agreement gave the
licensee the right to produce a motion Picture Portraying the life of Moises Padilla, a
mayoralty candidate of the Nacionalista Party for the Municipality of Magallon, Negros
Occidental during the November 1951 elections and for whose murder, Governor
Rafael Lacson, a member of the Liberal Party then in power and his men were tried
and convicted. 11 In the judgment of the lower court enforcing the licensing agreement
against the licensee who had produced the motion picture and exhibited it but refused
to pay the stipulated royalties, the Court, through Justice Melencio-Herrera, said:
Neither do we agree with petitioner's subon that the Licensing Agreement is null and
void for lack of, or for having an illegal cause or consideration, while it is true that
petitioner bad pled the rights to the book entitled "The Moises Padilla Story," that did
not dispense with the need for prior consent and authority from the deceased heirs to
portray publicly episodes in said deceased's life and in that of his mother and the
member of his family. As held in Schuyler v. Curtis, ([1895],147 NY 434,42 NE 31 LRA
286.49 Am St Rep 671), 'a privilege may be given the surviving relatives of a deperson
to protect his memory, but the privilege wts for the benefit of the living, to protect their
feelings and to preventa violation of their own rights in the character and memory of the
deceased.'

indeed, occupies a preferred position in the "hierarchy of civil liberties" (Philippine

Blooming Mills Employees Organization v. Philippine Blooming Mills Co., Inc., 51 SCRA
191 [1963]). It is not, however, without limitations. As held in Gonzales v. Commission
on Elections, 27 SCRA 835, 858 [1960]:
xxx

xxx

xxx

The prevailing doctine is that the clear and present danger rule is such a limitation.
Another criterion for permissible limitation on freedom of speech and the press, which
includes such vehicles of the mass media as radio, television and the movies, is the
"balancing of interest test" (Chief Justice Enrique M. Fernando on the Bill of Rights,
1970 ed. p. 79). The principle "requires a court to take conscious and detailed
consideration of the interplay of interests observable in given situation or type of
situation" (Separation Opinion of the late Chief Justice Castro in Gonzales v.
Commission on Elections, supra, p. 899).
In the case at bar, the interests observable are the right to privacy asserted by
respondent and the right of freedom of expression invoked by petitioner. taking into
account the interplay of those interests, we hold that under the particular circumstances
presented, and considering the obligations assumed in the Licensing Agreement
entered into by petitioner, the validity of such agreement will have to be upheld
particularly because the limits of freedom of expression are reached when expression
touches upon matters of essentially private concern." 13
Whether the "balancing of interests test" or the clear and present danger test" be
applied in respect of the instant Petitions, the Court believes that a different conclusion
must here be reached: The production and filming by petitioners of the projected motion
picture "The Four Day Revolution" does not, in the circumstances of this case,
constitute an unlawful intrusion upon private respondent's "right of privacy."

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:

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.

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,

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

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

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

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

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

4.

BORJAL v. CA

damages for writing and publishing certain articles claimed to be derogatory and
offensive to private respondent Francisco Wenceslao.

[G.R. No. 126466. January 14, 1999]

ARTURO BORJAL a.k.a. ART BORJAL and MAXIMO SOLIVEN, petitioners, vs.
COURT OF APPEALS and FRANCISCO WENCESLAO, respondents.
DECISION
"The question is not so much as who was aimed at as who was hit." (Pound, J., in
Corrigan v. Bobbs-Merill Co., 228 N.Y. 58 [1920]).
BELLOSILLO, J.:
PERPETUALLY HAGRIDDEN as the public is about losing one of the most basic yet
oft hotly contested freedoms of man, the issue of the right of free expression bestirs
and presents itself time and again, in cyclic occurrence, to inveigle, nay, challenge the
courts to re-survey its ever shifting terrain, explore and furrow its heretofore uncharted
moors and valleys and finally redefine the metes and bounds of its controversial
domain. This, prominently, is one such case.
Perhaps, never in jurisprudential history has any freedom of man undergone radical
doctrinal metamorphoses than his right to freely and openly express his views.
Blackstone's pontifical comment that "where blasphemous, immoral, treasonable,
schismatical, seditious, or scandalous libels are punished by English law . . . the liberty
of the press, properly understood, is by no means infringed or violated," found kindred
expression in the landmark opinion of England's Star Chamber in the Libelis Famosis
case in 1603.[1] That case established two major propositions in the prosecution of
defamatory remarks: first, that libel against a public person is a greater offense than
one directed against an ordinary man, and second, that it is immaterial that the libel be
true.
Until republicanism caught fire in early America, the view from the top on libel was no
less dismal. Even the venerable Justice Holmes appeared to waffle as he swayed from
the concept of criminal libel liability under the clear and present danger rule, to the other
end of the spectrum in defense of the constitutionally protected status of unpopular
opinion in free society.
Viewed in modern times and the current revolution in information and communication
technology, libel principles formulated at one time or another have waxed and waned
through the years in the constant ebb and flow of judicial review. At the very least, these
principles have lost much of their flavor, drowned and swamped as they have been by
the ceaseless cacophony and din of thought and discourse emanating from just about
every source and direction, aided no less by an increasingly powerful and irrepressible
mass media. Public discourse, laments Knight, has been devalued by its utter
commonality; and we agree, for its logical effect is to benumb thought and sensibility
on what may be considered as criminal illegitimate encroachments on the right of
persons to enjoy a good, honorable and reputable name. This may explain the
imperceptible demise of criminal prosecutions for libel and the trend to rely instead on
indemnity suits to repair any damage on one's reputation.
In this petition for review, we are asked to reverse the Court of Appeals in "Francisco
Wenceslao v. Arturo Borjal and Maximo Soliven," CA-G.R. No. 40496, holding on 25
March 1996 that petitioners Arturo Borjal and Maximo Soliven are solidarily liable for

Petitioners Arturo Borjal and Maximo Soliven are among the incorporators of
Philippines Today, Inc. (PTI), now PhilSTAR Daily, Inc., owner of The Philippine Star,
a daily newspaper. At the time the complaint was filed, petitioner Borjal was its
President while Soliven was (and still is) Publisher and Chairman of its Editorial Board.
Among the regular writers of The Philippine Star is Borjal who runs the column
Jaywalker.
Private respondent Francisco Wenceslao, on the other hand, is a civil engineer,
businessman, business consultant and journalist by profession. In 1988 he served as
a technical adviser of Congressman Fabian Sison, then Chairman of the House of
Representatives Sub-Committee on Industrial Policy.
During the congressional hearings on the transport crisis sometime in September 1988
undertaken by the House Sub-Committee on Industrial Policy, those who attended
agreed to organize the First National Conference on Land Transportation (FNCLT) to
be participated in by the private sector in the transport industry and government
agencies concerned in order to find ways and means to solve the transportation crisis.
More importantly, the objective of the FNCLT was to draft an omnibus bill that would
embody a long-term land transportation policy for presentation to Congress. The
conference which, according to private respondent, was estimated to cost around
P1,815,000.00 would be funded through solicitations from various sponsors such as
government agencies, private organizations, transport firms, and individual delegates
or participants.[2]
On 28 February 1989, at the organizational meeting of the FNCLT, private respondent
Francisco Wenceslao was elected Executive Director. As such, he wrote numerous
solicitation letters to the business community for the support of the conference.
Between May and July 1989 a series of articles written by petitioner Borjal was
published on different dates in his column Jaywalker. The articles dealt with the alleged
anomalous activities of an "organizer of a conference" without naming or identifying
private respondent. Neither did it refer to the FNCLT as the conference therein
mentioned. Quoted hereunder are excerpts from the articles of petitioner together with
the dates they were published[3] 31 May 1989
Another self-proclaimed hero of the EDSA Revolution goes around organizing seminars
and conferences for a huge fee. This is a simple ploy coated in jazzy letterheads and
slick prose. The hero has the gall to solicit fees from anybody with bucks to spare.
Recently, in his usual straightforward style, Transportation Secretary Rainerio Ray
Reyes, asked that his name be stricken off from the letterheads the hero has been
using to implement one of his pet seminars. Reyes said: I would like to reiterate my
request that you delete my name. Note that Ray Reyes is an honest man who would
confront anybody eyeball to eyeball without blinking.
9 June 1989

Another questionable portion of the so-called conference is its unauthorized use of the
names of President Aquino and Secretary Ray Reyes. The conference program being
circulated claims that President Aquino and Reyes will be main speakers in the
conference. Yet, the word is that Cory and Reyes have not accepted the invitation to
appear in this confab. Ray Reyes even says that the conference should be unmasked
as a moneymaking gimmick.

xxx

19 June 1989

xxx

x x x some 3,000 fund solicitation letters were sent by the organizer to every Tom, Dick
and Harry and to almost all government agencies. And the letterheads carried the
names of Reyes and Periquet. Agrarian Reform Secretary on leave Philip Juico
received one, but he decided to find out from Reyes himself what the project was all
about. Ray Reyes, in effect, advised Juico to put the fund solicitation letter in the waste
basket. Now, if the 3,000 persons and agencies approached by the organizer shelled
out 1,000 each, thats easily P3 million to a project that seems so unsophisticated. But
note that one garment company gave P100,000, after which the Garments Regulatory
Board headed by Trade and Industry Undersecretary Gloria Macapagal-Arroyo was
approached by the organizer to expedite the garment license application of the
P100,000 donor.

There seems to be no end to what a man could do to pursue his dubious ways. He has
tried to operate under a guise of a well-meaning reformist. He has intellectual
pretensions - and sometimes he succeeds in getting his thoughts in the inside pages
of some newspapers, with the aid of some naive newspaper people. He has been
turning out a lot of funny-looking advice on investments, export growth, and the like.

21 June 1989
A 'conference organizer' associated with shady deals seems to have a lot of trash
tucked inside his closet. The Jaywalker continues to receive information about the mans
dubious deals. His notoriety, according to reliable sources, has reached the Premier
Guest House where his name is spoken like dung.
xxx
The first information says that the 'organizer' tried to mulct half a million pesos from a
garment producer and exporter who was being investigated for violation of the rules of
the Garments, Textile, Embroidery and Apparel Board. The 'organizer' told the garment
exporter that the case could be fixed for a sum of P500,000.00. The organizer got the
shock of his life when the exporter told him: 'If I have that amount, I will hire the best
lawyers, not you.' The organizer left in a huff, his thick face very pale.
xxx
Friends in government and the private sector have promised the Jaywalker more 'dope'
on the 'organizer.' It seems that he was not only indiscreet; he even failed to cover his
tracks. You will be hearing more of the 'organizers' exploits from this corner soon.
22 June 1989
The scheming 'organizer' we have been writing about seems to have been spreading
his wings too far. A congressional source has informed the Jaywalker that the schemer
once worked for a congressman from the North as some sort of a consultant on
economic affairs. The first thing the organizer did was to initiate hearings and roundthe-table discussions with people from the business, export and -- his favorite -- the
garments sector.

The 'organizers' principal gamely went along, thinking that his 'consultant' had nothing
but the good of these sectors in mind. It was only later that he realized that the
'consultant' was acting with a burst of energy 'in aid of extortion.' The 'consultant' was
fired.

xxx
A cabinet secretary has one big wish. He is hoping for a broad power to ban crooks
and influence-peddlers from entering the premises of his department. But the Cabinet
man might not get his wish. There is one 'organizer' who, even if physically banned,
can still concoct ways of doing his thing. Without a tinge of remorse, the 'organizer'
could fill up his letterheads with names of Cabinet members, congressmen, and
reputable people from the private sector to shore up his shady reputation and cover up
his notoriety.
3 July 1989
A supposed conference on transportation was a big failure. The attendance was very
poor and the few who participated in the affair were mostly leaders of jeepney drivers
groups. None of the government officials involved in regulating public transportation
was there. The big names in the industry also did not participate. With such a poor
attendance, one wonders why the conference organizers went ahead with the affair
and tried so hard to convince 3,000 companies and individuals to contribute to the affair.
xxx
The conference was doomed from the start. It was bound to fail. The personalities who
count in the field of transportation refused to attend the affair or withdrew their support
after finding out the background of the organizer of the conference. How could a
conference on transportation succeed without the participation of the big names in the
industry and government policy-makers?
Private respondent reacted to the articles. He sent a letter to The Philippine Star
insisting that he was the organizer alluded to in petitioner Borjals columns.[4] In a
subsequent letter to The Philippine Star, private respondent refuted the matters
contained in petitioner Borjals columns and openly challenged him in this manner To test if Borjal has the guts to back up his holier than thou attitude, I am prepared to
relinquish this position in case it is found that I have misappropriated even one peso of
FNCLT money. On the other hand, if I can prove that Borjal has used his column as a
hammer to get clients for his PR Firm, AA Borjal Associates, he should resign from the
STAR and never again write a column. Is it a deal?[5]

Thereafter, private respondent filed a complaint with the National Press Club (NPC)
against petitioner Borjal for unethical conduct. He accused petitioner Borjal of using his
column as a form of leverage to obtain contracts for his public relations firm, AA Borjal
Associates.[6] In turn, petitioner Borjal published a rejoinder to the challenge of private
respondent not only to protect his name and honor but also to refute the claim that he
was using his column for character assassination.[7]
Apparently not satisfied with his complaint with the NPC, private respondent filed a
criminal case for libel against petitioners Borjal and Soliven, among others. However,
in a Resolution dated 7 August 1990, the Assistant Prosecutor handling the case
dismissed the complaint for insufficiency of evidence. The dismissal was sustained by
the Department of Justice and later by the Office of the President.
On 31 October 1990 private respondent instituted against petitioners a civil action for
damages based on libel subject of the instant case.[8] In their answer, petitioners
interposed compulsory counterclaims for actual, moral and exemplary damages, plus
attorneys fees and costs. After due consideration, the trial court decided in favor of
private respondent Wenceslao and ordered petitioners Borjal and Soliven to indemnify
private respondent P1,000,000.00 for actual and compensatory damages, in addition
to P200,000.00 for moral damages, P100,000.00 for exemplary damages, P200,000.00
for attorneys fees, and to pay the costs of suit.
The Court of Appeals affirmed the decision of the court a quo but reduced the amount
of the monetary award to P110,000.00 actual damages, P200,000.00 moral damages
and P75,000.00 attorney's fees plus costs. In a 20-page Decision promulgated 25
March 1996, the appellate court ruled inter alia that private respondent was sufficiently
identifiable, although not named, in the questioned articles; that private respondent was
in fact defamed by petitioner Borjal by describing him variously as a "self-proclaimed
hero," "a conference organizer associated with shady deals who has a lot of trash
tucked inside his closet," "thick face," and "a person with dubious ways;" that petitioners
claim of privilege communication was unavailing since the privileged character of the
articles was lost by their publication in a newspaper of general circulation; that petitioner
could have performed his office as a newspaperman without necessarily transgressing
the rights of Wenceslao by calling the attention of the government offices concerned to
examine the authority by which Wenceslao acted, warning the public against
contributing to a conference that, according to his perception, lacked the univocal
indorsement of the responsible government officials, or simply informing the public of
the letters Wenceslao wrote and the favors he requested or demanded; and, that when
he imputed dishonesty, falsehood and misrepresentation, shamelessness and
intellectual pretentions to Wenceslao, petitioner Borjal crossed the thin but clear line
that separated fair comment from actionable defamation.
Private respondent manifested his desire to appeal that portion of the appellate courts
decision which reduced the amount of damages awarded him by filing with this Court a
Petition for Extension of Time to File Petition and a Motion for Suspension of Time to
File Petition.[9] However, in a Resolution dated 27 May 1996, the Second Division
denied both motions: the first, for being premature, and the second, for being a wrong
remedy.
On 20 November 1996 when the First Division consolidated and transferred the present
case to the Second Division, there was no longer any case thereat with which to

consolidate this case since G.R. No. 124396 had already been disposed of by the
Second Division almost six (6) months earlier.
On their part, petitioners filed a motion for reconsideration but the Court of Appeals
denied the motion in its Resolution of 12 September 1996. Hence the instant petition
for review. The petitioners contend that the Court of Appeals erred: (a) in ruling that
private respondent Wenceslao was sufficiently identified by petitioner Borjal in the
questioned articles; (b) in refusing to accord serious consideration to the findings of the
Department of Justice and the Office of the President that private respondent
Wenceslao was not sufficiently identified in the questioned articles, this notwithstanding
that the degree of proof required in a preliminary investigation is merely prima facie
evidence which is significantly less than the preponderance of evidence required in civil
cases; (c) in ruling that the subject articles do not constitute qualifiedly privileged
communication; (d) in refusing to apply the "public official doctrine" laid down in New
York Times v. Sullivan; (e) in ruling that the questioned articles lost their privileged
character because of their publication in a newspaper of general circulation; (f) in ruling
that private respondent has a valid cause of action for libel against petitioners although
he failed to prove actual malice on their part, and that the prosecutors of the City of
Manila, the Department of Justice, and eventually, the Office of the President, had
already resolved that there was no sufficient evidence to prove the existence of libel;
and, (g) assuming arguendo that Borjal should be held liable, in adjudging petitioner
Soliven solidarily liable with him. Thus, petitioners pray for the reversal of the appellate
courts ruling, the dismissal of the complaint against them for lack of merit, and the
award of damages on their counterclaim.
The petition is impressed with merit. In order to maintain a libel suit, it is essential that
the victim be identifiable although it is not necessary that he be named. It is also not
sufficient that the offended party recognized himself as the person attacked or defamed,
but it must be shown that at least a third person could identify him as the object of the
libelous publication.[10] Regrettably, these requisites have not been complied with in
the case at bar.
In ruling for private respondent, the Court of Appeals found that Borjal's column writings
sufficiently identified Wenceslao as the "conference organizer." It cited the First
National Conference on Land Transportation, the letterheads used listing different
telephone numbers, the donation of P100,000.00 from Juliano Lim and the reference
to the "organizer of the conference" - the very same appellation employed in all the
column items - as having sufficiently established the identity of private respondent
Wenceslao for those who knew about the FNCLT who were present at its inception,
and who had pledged their assistance to it.
We hold otherwise. These conclusions are at variance with the evidence at hand. The
questioned articles written by Borjal do not identify private respondent Wenceslao as
the organizer of the conference. The first of the Jaywalker articles which appeared in
the 31 May 1989 issue of The Philippine Star yielded nothing to indicate that private
respondent was the person referred to therein. Surely, as observed by petitioners, there
were millions of "heroes" of the EDSA Revolution and anyone of them could be "selfproclaimed" or an "organizer of seminars and conferences." As a matter of fact, in his
9 June 1989 column petitioner Borjal wrote about the "so-called First National
Conference on Land Transportation whose principal organizers are not specified"
(italics supplied).[11] Neither did the FNCLT letterheads[12] disclose the identity of the
conference organizer since these contained only an enumeration of names where

private respondent Francisco Wenceslao was described as Executive Director and

Spokesman and not as a conference organizer.[13] The printout[14] and tentative
program[15] of the conference were devoid of any indication of Wenceslao as
organizer. The printout which contained an article entitled "Who Organized the NCLT?"
did not even mention private respondent's name, while the tentative program only
denominated private respondent as "Vice Chairman and Executive Director," and not
as organizer.

1) A private communication made by any person to another in the performance of any

legal, moral or social duty; and,

No less than private respondent himself admitted that the FNCLT had several
organizers and that he was only a part of the organization, thus -

Respondent court explained that the writings in question did not fall under any of the
exceptions described in the above-quoted article since these were neither "private
communications" nor "fair and true report x x x without any comments or remarks." But
this is incorrect.

I would like to clarify for the record that I was only a part of the organization. I was
invited then because I was the head of the technical panel of the House of
Representatives Sub-Committee on Industrial Policy that took care of congressional
hearings.[16]
Significantly, private respondent himself entertained doubt that he was the person
spoken of in Borjal's columns. The former even called up columnist Borjal to inquire if
he (Wenceslao) was the one referred to in the subject articles.[17] His letter to the editor
published in the 4 June 1989 issue of The Philippine Star even showed private
respondent Wenceslao's uncertainty Although he used a subterfuge, I was almost certain that Art Borjal referred to the First
National Conference on Land Transportation (June 29-30) and me in the second
paragraph of his May 31 column x x x[18]
Identification is grossly inadequate when even the alleged offended party is himself
unsure that he was the object of the verbal attack. It is well to note that the revelation
of the identity of the person alluded to came not from petitioner Borjal but from private
respondent himself when he supplied the information through his 4 June 1989 letter to
the editor. Had private respondent not revealed that he was the "organizer" of the
FNCLT referred to in the Borjal articles, the public would have remained in blissful
ignorance of his identity. It is therefore clear that on the element of identifiability alone
the case falls.
The above disquisitions notwithstanding, and on the assumption arguendo that private
respondent has been sufficiently identified as the subject of Borjal's disputed
comments, we now proceed to resolve the other issues and pass upon the pertinent
findings of the courts a quo.
The third, fourth, fifth and sixth assigned errors all revolve around the primary question
of whether the disputed articles constitute privileged communications as to exempt the
author from liability.
The trial court ruled that petitioner Borjal cannot hide behind the proposition that his
articles are privileged in character under the provisions of Art. 354 of The Revised Penal
Code which state Art. 354. Requirement for publicity. - Every defamatory imputation is presumed to be
malicious, even if it be true, if no good intention and justifiable motive for making it is
shown, except in the following cases:

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.

A privileged communication may be either absolutely privileged or qualifiedly privileged.

Absolutely privileged communications are those which are not actionable even if the
author has acted in bad faith. An example is found in Sec. 11, Art. VI, of the 1987
Constitution which exempts a member of Congress from liability for any speech or
debate in the Congress or in any Committee thereof. Upon the other hand, qualifiedly
privileged communications containing defamatory imputations are not actionable
unless found to have been made without good intention or justifiable motive. To this
genre belong "private communications" and "fair and true report without any comments
or remarks."
Indisputably, petitioner Borjals questioned writings are not within the exceptions of Art.
354 of The Revised Penal Code for, as correctly observed by the appellate court, they
are neither private communications nor fair and true report without any comments or
remarks. However this does not necessarily mean that they are not privileged. To be
sure, the enumeration under Art. 354 is not an exclusive list of qualifiedly privileged
communications since fair commentaries on matters of public interest are likewise
privileged. The rule on privileged communications had its genesis not in the nation's
penal code but in the Bill of Rights of the Constitution guaranteeing freedom of speech
and of the press.[19] As early as 1918, in United States v. Caete,[20] this Court ruled
that publications which are privileged for reasons of public policy are protected by the
constitutional guaranty of freedom of speech. This constitutional right cannot be
abolished by the mere failure of the legislature to give it express recognition in the
statute punishing libels.
The concept of privileged communications is implicit in the freedom of the press. As
held in Elizalde v. Gutierrez[21] and reiterated in Santos v. Court of Appeals[22] To be more specific, no culpability could be imputed to petitioners for the alleged
offending publication without doing violence to the concept of privileged
communications implicit in the freedom of the press. As was so well put by Justice
Malcolm in Bustos: Public policy, the welfare of society, and the orderly administration
of government have demanded protection of public opinion. The inevitable and
incontestable result has been the development and adoption of the doctrine of privilege.
The doctrine formulated in these two (2) cases resonates the rule that privileged
communications must, sui generis, be protective of public opinion. This closely adheres
to the democratic theory of free speech as essential to collective self-determination and
eschews the strictly libertarian view that it is protective solely of self- expression which,
in the words of Yale Sterling Professor Owen Fiss,[23] makes its appeal to the

individualistic ethos that so dominates our popular and political culture. It is therefore
clear that the restrictive interpretation vested by the Court of Appeals on the penal
provision exempting from liability only private communications and fair and true report
without comments or remarks defeats, rather than promotes, the objective of the rule
on privileged communications, sadly contriving as it does, to suppress the healthy
effloresence of public debate and opinion as shining linchpins of truly democratic
societies.
To reiterate, fair commentaries on matters of public interest are privileged and
constitute a valid defense in an action for libel or slander. The doctrine of fair comment
means that while in general every discreditable imputation publicly made is deemed
false, because every man is presumed innocent until his guilt is judicially proved, and
every false imputation is deemed malicious, nevertheless, when the discreditable
imputation is directed against a public person in his public capacity, it is not necessarily
actionable. In order that such discreditable imputation to a public official may be
actionable, it must either be a false allegation of fact or a comment based on a false
supposition. If the comment is an expression of opinion, based on established facts,
then it is immaterial that the opinion happens to be mistaken, as long as it might
reasonably be inferred from the facts.[24]
There is no denying that the questioned articles dealt with matters of public interest. In
his testimony, private respondent spelled out the objectives of the conference thus x x x x The principal conference objective is to come up with a draft of an Omnibus Bill
that will embody a long term land transportation policy for presentation to Congress in
its next regular session in July. Since last January, the National Conference on Land
Transportation (NCLT), the conference secretariat, has been enlisting support from all
sectors to ensure the success of the project.[25]
Private respondent likewise testified that the FNCLT was raising funds through
solicitation from the public Q: Now, in this first letter, you have attached a budget and it says here that in this
seminar of the First National Conference on Land Transportation, you will need around
One million eight hundred fifteen thousand pesos, is that right?
A: That was the budget estimate, sir.
Q: How do you intend as executive officer, to raise this fund of your seminar?
A: Well, from sponsors such as government agencies and private sectors or
organizations as well as individual transport firms and from individual
delegates/participants.[26]
The declared objective of the conference, the composition of its members and
participants, and the manner by which it was intended to be funded no doubt lend to its
activities as being genuinely imbued with public interest. An organization such as the
FNCLT aiming to reinvent and reshape the transportation laws of the country and
seeking to source its funds for the project from the public at large cannot dissociate
itself from the public character of its mission. As such, it cannot but invite close scrutiny
by the media obliged to inform the public of the legitimacy of the purpose of the activity
and of the qualifications and integrity of the personalities behind it.

This in effect is the strong message in New York Times v. Sullivan[27] which the
appellate court failed to consider or, for that matter, to heed. It insisted that private
respondent was not, properly speaking, a "public offical" nor a "public figure," which is
why the defamatory imputations against him had nothing to do with his task of
organizing the FNCLT.
New York Times v. Sullivan was decided by the U. S. Supreme Court in the 1960s at
the height of the bloody rioting in the American South over racial segregation. The then
City Commissioner L. B. Sullivan of Montgomery, Alabama, sued New York Times for
publishing a paid political advertisement espousing racial equality and describing police
atrocities committed against students inside a college campus. As commissioner
having charge over police actions Sullivan felt that he was sufficiently identified in the
ad as the perpetrator of the outrage; consequently, he sued New York Times on the
basis of what he believed were libelous utterances against him.
The U. S. Supreme Court speaking through Mr. Justice William J. Brennan Jr. ruled
against Sullivan holding that honest criticisms on the conduct of public officials and
public figures are insulated from libel judgments. The guarantees of freedom of speech
and press prohibit a public official or public figure from recovering damages for a
defamatory falsehood relating to his official conduct unless he proves that the statement
was made with actual malice, i.e., with knowledge that it was false or with reckless
disregard of whether it was false or not.
The raison d'etre for the New York Times doctrine was that to require critics of official
conduct to guarantee the truth of all their factual assertions on pain of libel judgments
would lead to self-censorship, since would-be critics would be deterred from voicing out
their criticisms even if such were believed to be true, or were in fact true, because of
doubt whether it could be proved or because of fear of the expense of having to prove
it.[28]
In the present case, we deem private respondent a public figure within the purview of
the New York Times ruling. At any rate, we have also defined "public figure" in Ayers
Production Pty., Ltd. v. Capulong[29] as x x x x a person who, by his accomplishments, fame, mode of living, or by adopting a
profession or calling which gives the public a legitimate interest in his doings, his affairs
and his character, has become a public personage. He is, in other words, a celebrity.
Obviously, to be included in this category are those who have achieved some degree
of reputation by appearing before the public, as in the case of an actor, a professional
baseball player, a pugilist, or any other entertainer. The list is, however, broader than
this. It includes public officers, famous inventors and explorers, war heroes and even
ordinary soldiers, infant prodigy, and no less a personage than the Great Exalted Ruler
of the lodge. It includes, in short, anyone who has arrived at a position where the public
attention is focused upon him as a person.
The FNCLT was an undertaking infused with public interest. It was promoted as a joint
project of the government and the private sector, and organized by top government
officials and prominent businessmen. For this reason, it attracted media mileage and
drew public attention not only to the conference itself but to the personalities behind as
well. As its Executive Director and spokesman, private respondent consequently
assumed the status of a public figure.

But even assuming ex-gratia argumenti that private respondent, despite the position he
occupied in the FNCLT, would not qualify as a public figure, it does not necessarily
follow that he could not validly be the subject of a public comment even if he was not a
public official or at least a public figure, for he could be, as long as he was involved in
a public issue. If a matter is a subject of public or general interest, it cannot suddenly
become less so merely because a private individual is involved or because in some
sense the individual did not voluntarily choose to become involved. The publics primary
interest is in the event; the public focus is on the conduct of the participant and the
content, effect and significance of the conduct, not the participant's prior anonymity or
notoriety.[30]
There is no denying that the questioned articles dealt with matters of public interest. A
reading of the imputations of petitioner Borjal against respondent Wenceslao shows
that all these necessarily bore upon the latter's official conduct and his moral and mental
fitness as Executive Director of the FNCLT. The nature and functions of his position
which included solicitation of funds, dissemination of information about the FNCLT in
order to generate interest in the conference, and the management and coordination of
the various activities of the conference demanded from him utmost honesty, integrity
and competence. These are matters about which the public has the right to be informed,
taking into account the very public character of the conference itself.
Concededly, petitioner Borjal may have gone overboard in the language employed
describing the "organizer of the conference." One is tempted to wonder if it was by
some mischievous gambit that he would also dare test the limits of the "wild blue
yonder" of free speech in this jurisdiction. But no matter how intemperate or deprecatory
the utterances appear to be, the privilege is not to be defeated nor rendered inutile for,
as succinctly expressed by Mr. Justice Brennan in New York Times v. Sullivan,
"[D]ebate on public issues should be uninhibited, robust and wide open, and that it may
well include vehement, caustic and sometimes unpleasantly sharp attacks on the
government and public officials.[31]
The Court of Appeals concluded that since malice is always presumed in the publication
of defamatory matters in the absence of proof to the contrary, the question of privilege
is immaterial.
We reject this postulate. While, generally, malice can be presumed from defamatory
words, the privileged character of a communication destroys the presumption of
malice.[32] The onus of proving actual malice then lies on plaintiff, private respondent
Wenceslao herein. He must bring home to the defendant, petitioner Borjal herein, the
existence of malice as the true motive of his conduct.[33]
Malice connotes ill will or spite and speaks not in response to duty but merely to injure
the reputation of the person defamed, and implies an intention to do ulterior and
unjustifiable harm.[34] Malice is bad faith or bad motive.[35] It is the essence of the
crime of libel.[36]
In the milieu obtaining, can it be reasonably inferred that in writing and publishing the
articles in question petitioner Borjal acted with malice?
Primarily, private respondent failed to substantiate by preponderant evidence that
petitioner was animated by a desire to inflict unjustifiable harm on his reputation, or that

the articles were written and published without good motives or justifiable ends. On the
other hand, we find petitioner Borjal to have acted in good faith. Moved by a sense of
civic duty and prodded by his responsibility as a newspaperman, he proceeded to
expose and denounce what he perceived to be a public deception. Surely, we cannot
begrudge him for that. Every citizen has the right to enjoy a good name and reputation,
but we do not consider that petitioner Borjal has violated that right in this case nor
abused his press freedom.
Furthermore, to be considered malicious, the libelous statements must be shown to
have been written or published with the knowledge that they are false or in reckless
disregard of whether they are false or not.[37] "Reckless disregard of what is false or
not" means that the defendant entertains serious doubt as to the truth of the
publication,[38] or that he possesses a high degree of awareness of their probable
falsity.[39]
The articles subject of the instant case can hardly be said to have been written with
knowledge that these are false or in reckless disregard of what is false or not. This is
not to say however that the very serious allegations of petitioner Borjal assumed by
private respondent to be directed against him are true. But we nevertheless find these
at least to have been based on reasonable grounds formed after the columnist
conducted several personal interviews and after considering the varied documentary
evidence provided him by his sources. Thus, the following are supported by
documentary evidence: (a) that private respondent requested Gloria MacapagalArroyo, then head of the Garments and Textile Export Board (GTEB), to expedite the
processing and release of the import approval and certificate of availability of a garment
firm in exchange for the monetary contribution of Juliano Lim, which necessitated a
reply from the office of Gloria Macapagal-Arroyo explaining the procedure of the GTEB
in processing applications and clarifying that all applicants were treated equally;[40] (b)
that Antonio Periquet was designated Chairman of the Executive Committee of the
FNCLT notwithstanding that he had previously declined the offer;[41] and, (c) that
despite the fact that then President Aquino and her Secretary of Transportation
Rainerio Reyes declined the invitation to be guest speakers in the conference, their
names were still included in the printout of the FNCLT.[42] Added to these are the
admissions of private respondent that: (a) he assisted Juliano Lim in his application for
a quota allocation with the GTEB in exchange for monetary contributions to the
FNCLT;[43] (b) he included the name of then Secretary of Transportation Rainerio
Reyes in the promotional materials of the conference notwithstanding the latter's refusal
to lend his name to and participate in the FNCLT;[44] and, (c) he used different
letterheads and telephone numbers.[45]
Even assuming that the contents of the articles are false, mere error, inaccuracy or
even falsity alone does not prove actual malice. Errors or misstatements are inevitable
in any scheme of truly free expression and debate. Consistent with good faith and
reasonable care, the press should not be held to account, to a point of suppression, for
honest mistakes or imperfections in the choice of language. There must be some room
for misstatement of fact as well as for misjudgment. Only by giving them much leeway
and tolerance can they courageously and effectively function as critical agencies in our
democracy.[46] In Bulletin Publishing Corp. v. Noel[47] we held A newspaper especially one national in reach and coverage, should be free to report
on events and developments in which the public has a legitimate interest with minimum
fear of being hauled to court by one group or another on criminal or civil charges for

libel, so long as the newspaper respects and keeps within the standards of morality and
civility prevailing within the general community.
To avoid the self-censorship that would necessarily accompany strict liability for
erroneous statements, rules governing liability for injury to reputation are required to
allow an adequate margin of error by protecting some inaccuracies. It is for the same
reason that the New York Times doctrine requires that liability for defamation of a public
official or public figure may not be imposed in the absence of proof of "actual malice"
on the part of the person making the libelous statement.
At any rate, it may be salutary for private respondent to ponder upon the advice of Mr.
Justice Malcolm expressed in U.S. v. Bustos,[48] that "the interest of society and the
maintenance of good government demand a full discussion of public affairs. Complete
liberty to comment on the conduct of public men is a scalpel in the case of free speech.
The sharp incision of its probe relieves the abscesses of officialdom. Men in public life
may suffer under a hostile and unjust accusation; the wound may be assuaged by the
balm of a clear conscience. A public official must not be too thin-skinned with reference
to comments upon his official acts.
The foregoing disposition renders the second and seventh assigned errors moot and
academic, hence, we find no necessity to pass upon them.

preponderantly established to entitle the victim to damages. The law could not have
meant to impose a penalty on the right to litigate, nor should counsels fees be awarded
every time a party wins a suit.[51]
For, concluding with the wisdom in Warren v. Pulitzer Publishing Co.[52] Every man has a right to discuss matters of public interest. A clergyman with his flock,
an admiral with his fleet, a general with his army, a judge with his jury, we are, all of us,
the subject of public discussion. The view of our court has been thus stated: It is only
in despotisms that one must speak sub rosa, or in whispers, with bated breath, around
the corner, or in the dark on a subject touching the common welfare. It is the brightest
jewel in the crown of the law to speak and maintain the golden mean between
defamation, on one hand, and a healthy and robust right of free public discussion, on
the other.
WHEREFORE, the petition is GRANTED. The Decision of the Court of Appeals of 25
March 1996 and its Resolution of 12 September 1996 denying reconsideration are
REVERSED and SET ASIDE, and the complaint for damages against petitioners is
DISMISSED. Petitioners counterclaim for damages is likewise DISMISSED for lack of
merit. No costs.
SO ORDERED.

We must however take this opportunity to likewise remind media practitioners of the
high ethical standards attached to and demanded by their noble profession. The danger
of an unbridled irrational exercise of the right of free speech and press, that is, in utter
contempt of the rights of others and in willful disregard of the cumbrous responsibilities
inherent in it, is the eventual self-destruction of the right and the regression of human
society into a veritable Hobbesian state of nature where life is short, nasty and brutish.
Therefore, to recognize that there can be no absolute "unrestraint" in speech is to truly
comprehend the quintessence of freedom in the marketplace of social thought and
action, genuine freedom being that which is limned by the freedom of others. If there is
freedom of the press, ought there not also be freedom from the press? It is in this sense
that self-regulation as distinguished from self-censorship becomes the ideal mean for,
as Mr. Justice Frankfurter has warned, "[W]ithout x x x a lively sense of responsibility,
a free press may readily become a powerful instrument of injustice."[49]
Lest we be misconstrued, this is not to diminish nor constrict that space in which
expression freely flourishes and operates. For we have always strongly maintained, as
we do now, that freedom of expression is man's birthright - constitutionally protected
and guaranteed, and that it has become the singular role of the press to act as its
"defensor fidei" in a democratic society such as ours. But it is also worth keeping in
mind that the press is the servant, not the master, of the citizenry, and its freedom does
not carry with it an unrestricted hunting license to prey on the ordinary citizen.[50]
On petitioners counterclaim for damages, we find the evidence too meager to sustain
any award. Indeed, private respondent cannot be said to have instituted the present
suit in abuse of the legal processes and with hostility to the press; or that he acted
maliciously, wantonly, oppressively, fraudulently and for the sole purpose of harassing
petitioners, thereby entitling the latter to damages. On the contrary, private respondent
acted within his rights to protect his honor from what he perceived to be malicious
imputations against him. Proof and motive that the institution of the action was
prompted by a sinister design to vex and humiliate a person must be clearly and

5.

REYES v. BAGATSING

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

JOSE B.L. REYES, in behalf of the ANTI-BASES COALITION (ABC), petitioner,
vs.
RAMON BAGATSING, as Mayor of the City of Manila, respondent.
Lorenzo M. Taada Jose W. Diokno and Haydee B. Yorac for petitioner.

The oral argument was heard on October 25, 1983, the very same day the answer was
filed. The Court then deliberated on the matter. That same afternoon, a minute
resolution was issued by the Court granting the mandatory injunction prayed for on the
ground that there was no showing of the existence of a clear and present danger of a
substantive evil that could justify the denial of a permit. On this point, the Court was
unanimous, but there was a dissent by Justice Aquino on the ground that the holding
of a rally in front of the US Embassy would be violative of Ordinance No. 7295 of the
City of Manila. The last sentence of such minute resolution reads: "This resolution is
without prejudice to a more extended opinion." 9 Hence this detailed exposition of the
Court's stand on the matter.

The Solicitor General for respondent.

FERNANDO, C.J.:+.wph!1
This Court, in this case of first impression, at least as to some aspects, is called upon
to delineate the boundaries of the protected area of the cognate rights to free speech
and peaceable assembly, 1 against an alleged intrusion by respondent Mayor Ramon
Bagatsing. Petitioner, retired Justice JB L. Reyes, on behalf of the Anti-Bases Coalition
sought a permit from the City of Manila to hold a peaceful march and rally on October
26, 1983 from 2:00 to 5:00 in the afternoon, starting from the Luneta, a public park, to
the gates of the United States Embassy, hardly two blocks away. Once there, and in
an open space of public property, a short program would be held. 2 During the course
of the oral argument, 3 it was stated that after the delivery of two brief speeches, a
petition based on the resolution adopted on the last day by the International Conference
for General Disbarmament, World Peace and the Removal of All Foreign Military Bases
held in Manila, would be presented to a representative of the Embassy or any of its
personnel who may be there so that it may be delivered to the United States
Ambassador. The march would be attended by the local and foreign participants of
such conference. There was likewise an assurance in the petition that in the exercise
of the constitutional rights to free speech and assembly, all the necessary steps would
be taken by it "to ensure a peaceful march and rally." 4
The filing of this suit for mandamus with alternative prayer for writ of preliminary
mandatory injunction on October 20, 1983 was due to the fact that as of that date,
petitioner had not been informed of any action taken on his request on behalf of the
organization to hold a rally. On October 25, 1983, the answer of respondent Mayor was
filed on his behalf by Assistant Solicitor General Eduardo G. Montenegro. 5 It turned
out that on October 19, such permit was denied. Petitioner was unaware of such a fact
as the denial was sent by ordinary mail. The reason for refusing a permit was due to
police intelligence reports which strongly militate against the advisability of issuing such
permit at this time and at the place applied for." 6 To be more specific, reference was
made to persistent intelligence reports affirm[ing] the plans of subversive/criminal
elements to infiltrate and/or disrupt any assembly or congregations where a large
number of people is expected to attend." 7 Respondent Mayor suggested, however, in
accordance with the recommendation of the police authorities, that "a permit may be
issued for the rally if it is to be held at the Rizal Coliseum or any other enclosed area
where the safety of the participants themselves and the general public may be
ensured." 8

1.
It is thus clear that the Court is called upon to protect the exercise of the
cognate rights to free speech and peaceful assembly, arising from the denial of a
permit. The Constitution is quite explicit: "No law shall be passed abridging the freedom
of speech, or of the press, or the right of the people peaceably to assemble and petition
the Government for redress of grievances." 10 Free speech, like free press, may be
Identified with the liberty to discuss publicly and truthfully any matter of public concern
without censorship or punishment. 11 There is to be then no previous restraint on the
communication of views or subsequent liability whether in libel suits, 12 prosecution for
sedition, 13 or action for damages, 14 or contempt proceedings 15 unless there be a
clear and present danger of a substantive evil that [the State] has a right to prevent."
16 Freedom of assembly connotes the right people to meet peaceably for consultation
and discussion of matters Of public concern. 17 It is entitled to be accorded the utmost
deference and respect. It is hot to be limited, much less denied, except on a showing,
as 's the case with freedom of expression, of a clear and present danger of a
substantive evil that the state has a right to prevent. 18 Even prior to the 1935
Constitution, Justice Maicolm had occasion to stress that it is a necessary consequence
of our republican institutions and complements the right of free speech. 19 To
paraphrase opinion of Justice Rutledge speaking for the majority of the American
Supreme Court Thomas v. Collins, 20 it was not by accident or coincidence that the
right to freedom of speech and of the press were toupled in a single guarantee with the
and to petition the rights of the people peaceably to assemble and to petition the
government for redress of grievances. All these rights, while not Identical, are
inseparable. the every case, therefo re there is a limitation placed on the exercise of
this right, the judiciary is called upon to examine the effects of the challenged
governmental actuation. The sole justification for a limitation on the exercise of this
right, so fundamental to the maintenance of democratic institutions, is the danger, of a
character both grave and imminent, of a serious evil to public safety, public morals,
public health, or any other legitimate public interest. 21
2.
Nowhere is the rationale that underlies the freedom of expression and
peaceable assembly better expressed than in this excerpt from an opinion of Justice
Frankfurter: "It must never be forgotten, however, that the Bill of Rights was the child
of the Enlightenment. Back of the guaranty of free speech lay faith in the power of an
appeal to reason by all the peaceful means for gaining access to the mind. It was in
order to avert force and explosions due to restrictions upon rational modes of
communication that the guaranty of free speech was given a generous scope. But
utterance in a context of violence can lose its significance as an appeal to reason and
become part of an instrument of force. Such utterance was not meant to be sheltered
by the Constitution." 22 What was rightfully stressed is the abandonment of reason, the
utterance, whether verbal or printed, being in a context of violence. It must always be
remembered that this right likewise provides for a safety valve, allowing parties the

opportunity to give vent to their-views, even if contrary to the prevailing climate of

opinion. For if the peaceful means of communication cannot be availed of, resort to
non-peaceful means may be the only alternative. Nor is this the sole reason for the
expression of dissent. It means more than just the right to be heard of the person who
feels aggrieved or who is dissatisfied with things as they are. Its value may lie in the
fact that there may be something worth hearing from the dissenter. That is to ensure a
true ferment of Ideas. There are, of course, well-defined limits. What is guaranteed is
peaceable assembly. One may not advocate disorder in the name of protest, much less
preach rebellion under the cloak of dissent. The Constitution frowns on disorder or
tumult attending a rally or assembly. resort to force is ruled out and outbreaks of
violence to be avoided. The utmost calm though is not required. As pointed out in an
early Philippine case, penned in 1907 to be precise, United States v. Apurado: 23 "It is
rather to be expected that more or less disorder will mark the public assembly of the
people to protest against grievances whether real or imaginary, because on such
occasions feeling is always wrought to a high pitch of excitement, and the greater the
grievance and the more intense the feeling, the less perfect, as a rule, will be the
disciplinary control of the leaders over their irresponsible followers." 24 It bears
repeating that for the constitutional right to be invoked, riotous conduct, injury to
property, and acts of vandalism must be avoided, To give free rein to one's destructive
urges is to call for condemnation. It is to make a mockery of the high estate occupied
by intellectual liberty in our scheme of values.
3.
There can be no legal objection, absent the existence of a clear and present
danger of a substantive evil, on the choice of Luneta as the place where the peace rally
would start. The Philippines is committed to the view expressed in the plurality opinion,
of 1939 vintage, of Justice Roberts in Hague v. CIO: 25 Whenever the title of streets
and parks may rest, they have immemorially been held in trust for the use of the public
and, time out of mind, have been used for purposes of assembly, communicating
thoughts between citizens, and discussing public questions. Such use of the streets
and public places has, from ancient times, been a part of the privileges, immunities,
rights, and liberties of citizens. The privilege of a citizen of the United States to use the
streets and parks for communication of views on national questions may be regulated
in the interest of all; it is not absolute, but relative, and must be exercised in
subordination to the general comfort and convenience, and in consonance with peace
and good order; but it must not, in the guise of regulation, be abridged or denied. 26
The above excerpt was quoted with approval in Primicias v. Fugoso. 27 Primicias made
explicit what was implicit in Municipality of Cavite v. Rojas," 28 a 1915 decision, where
this Court categorically affirmed that plazas or parks and streets are outside the
commerce of man and thus nullified a contract that leased Plaza Soledad of plaintiffmunicipality. Reference was made to such plaza "being a promenade for public use,"
29 which certainly is not the only purpose that it could serve. To repeat, there can be
no valid reason why a permit should not be granted for the or oposed march and rally
starting from a public dark that is the Luneta.
4.
Neither can there be any valid objection to the use of the streets, to the gates
of the US Embassy, hardly two block-away at the Roxas Boulevard. Primicias v. Fugoso
has resolved any lurking doubt on the matter. In holding that the then Mayor Fugoso of
the City of Manila should grant a permit for a public meeting at Plaza Miranda in Quiapo,
this Court categorically declared: "Our conclusion finds support in the decision in the
case of Willis Cox vs. State of New Hampshire, 312 U.S., 569. In that case, the statute
of New Hampshire P. L. chap. 145, section 2, providing that 'no parade or procession
upon any ground abutting thereon, shall 'De permitted unless a special license therefor

shall first be explained from the selectmen of the town or from licensing committee,'
was construed by the Supreme Court of New Hampshire as not conferring upon the
licensing board unfettered discretion to refuse to grant the license, and held valid. And
the Supreme Court of the United States, in its decision (1941) penned by Chief Justice
Hughes affirming the judgment of the State Supreme Court, held that 'a statute requiring
persons using the public streets for a parade or procession to procure a special license
therefor from the local authorities is not an unconstitutional abridgment of the rights of
assembly or of freedom of speech and press, where, as the statute is construed by the
state courts, the licensing authorities are strictly limited, in the issuance of licenses, to
a consideration of the time, place, and manner of the parade or procession, with a view
to conserving the public convenience and of affording an opportunity to provide proper
policing, and are not invested with arbitrary discretion to issue or refuse license, ... " 30
Nor should the point made by Chief Justice Hughes in a subsequent portion of the
opinion be ignored, "Civil liberties, as guaranteed by the Constitution, imply the
existence of an organized society maintaining public order without which liberty itself
would be lost in the excesses of unrestricted abuses. The authority of a municipality to
impose regulations in order to assure the safety and convenience of the people in the
use of public highways has never been regarded as inconsistent with civil liberties but
rather as one of the means of safeguarding the good order upon which they ultimately
depend. The control of travel on the streets of cities is the most familiar illustration of
this recognition of social need. Where a restriction of the use of highways in that relation
is designed to promote the public convenience in the interest of all, it cannot be
disregarded by the attempted exercise of some civil right which in other circumstances
would be entitled to protection." 31
5.
There is a novel aspect to this case, If the rally were confined to Luneta, no
question, as noted, would have arisen. So, too, if the march would end at another park.
As previously mentioned though, there would be a short program upon reaching the
public space between the two gates of the United States Embassy at Roxas Boulevard.
That would be followed by the handing over of a petition based on the resolution
adopted at the closing session of the Anti-Bases Coalition. The Philippines is a
signatory of the Vienna Convention on Diplomatic Relations adopted in 1961. It was
concurred in by the then Philippine Senate on May 3, 1965 and the instrument of
ratification was signed by the President on October 11, 1965, and was thereafter
deposited with the Secretary General of the United Nations on November 15. As of that
date then, it was binding on the Philippines. The second paragraph of the Article 22
reads: "2. The receiving State is under a special duty to take appropriate steps to
protect the premises of the mission against any intrusion or damage and to prevent any
disturbance of the peace of the mission or impairment of its dignity. " 32 The
Constitution "adopts the generally accepted principles of international law as part of the
law of the land. ..." 33 To the extent that the Vienna Convention is a restatement of the
generally accepted principles of international law, it should be a part of the law of the
land. 34 That being the case, if there were a clear and present danger of any intrusion
or damage, or disturbance of the peace of the mission, or impairment of its dignity,
there would be a justification for the denial of the permit insofar as the terminal point
would be the Embassy. Moreover, respondent Mayor relied on Ordinance No. 7295 of
the City of Manila prohibiting the holding or staging of rallies or demonstrations within
a radius of five hundred (500) feet from any foreign mission or chancery and for other
purposes. Unless the ordinance is nullified, or declared ultra vires, its invocation as a
defense is understandable but not decisive, in view of the primacy accorded the
constitutional rights of free speech and peaceable assembly. Even if shown then to be
applicable, that question the confronts this Court.

6.
There is merit to the observation that except as to the novel aspects of a
litigation, the judgment must be confined within the limits of previous decisions. The law
declared on past occasions is, on the whole, a safe guide, So it has been here. Hence,
as noted, on the afternoon of the hearing, October 25, 1983, this Court issued the
minute resolution granting the mandatory injunction allowing the proposed march and
rally scheduled for the next day. That conclusion was inevitable ill the absence of a
clear and present danger of a substantive, evil to a legitimate public interest. There was
no justification then to deny the exercise of the constitutional rights of tree speech and
peaceable assembly. These rights are assured by our Constitution and the Universal
Declaration of Human Rights. 35 The participants to such assembly, composed
primarily of those in attendance at the International Conference for General
Disbarmament, World Peace and the Removal of All Foreign Military Bases would start
from the Luneta. proceeding through Roxas Boulevard to the gates of the United States
Embassy located at the same street. To repeat, it is settled law that as to public places,
especially so as to parks and streets, there is freedom of access. Nor is their use
dependent on who is the applicant for the permit, whether an individual or a group. If it
were, then the freedom of access becomes discriminatory access, giving rise to an
equal protection question. The principle under American doctrines was given utterance
by Chief Justice Hughes in these words: "The question, if the rights of free speech and
peaceable assembly are to be preserved, is not as to the auspices under which the
meeting is held but as to its purpose; not as to The relations of the speakers, but
whether their utterances transcend the bounds of the freedom of speech which the
Constitution protects." 36 There could be danger to public peace and safety if such a
gathering were marked by turbulence. That would deprive it of its peaceful character.
Even then, only the guilty parties should be held accountable. It is true that the licensing
official, here respondent Mayor, is not devoid of discretion in determining whether or
not a permit would be granted. It is not, however, unfettered discretion. While prudence
requires that there be a realistic appraisal not of what may possibly occur but of what
may probably occur, given all the relevant circumstances, still the assumption
especially so where the assembly is scheduled for a specific public place is that the
permit must be for the assembly being held there. The exercise of such a right, in the
language of Justice Roberts, speaking for the American Supreme Court, is not to be
"abridged on the plea that it may be exercised in some other place." 37
7.
In fairness to respondent Mayor, he acted on the belief that Navarro v. Villegas
38 and Pagkakaisa ng Manggagawang Pilipino (PMP.) v. Bagatsing, 39 called for
application. While the General rule is that a permit should recognize the right of the
applicants to hold their assembly at a public place of their choice, another place may
be designated by the licensing authority if it be shown that there is a clear and present
danger of a substantive evil if no such change were made. In the Navarro and the
Pagkakaisa decisions, this Court was persuaded that the clear and present danger test
was satisfied. The present situation is quite different. Hence the decision reached by
the Court. The mere assertion that subversives may infiltrate the ranks of the
demonstrators does not suffice. Not that it should be overlooked. There was in this
case, however, the assurance of General Narciso Cabrera, Superintendent, Western
Police District, Metropolitan Police Force, that the police force is in a position to cope
with such emergency should it arise That is to comply with its duty to extend protection
to the participants of such peaceable assembly. Also from him came the commendable
admission that there were the least five previous demonstrations at the Bayview hotel
Area and Plaza Ferguson in front of the United States Embassy where no untoward
event occurred. It was made clear by petitioner, through counsel, that no act offensive

to the dignity of the United States Mission in the Philippines would take place and that,
as mentioned at the outset of this opinion, "all the necessary steps would be taken by
it 'to ensure a peaceful march and rally.' " 40 Assistant Solicitor General Montenegro
expressed the view that the presence of policemen may in itself be a provocation. It is
a sufficient answer that they should stay at a discreet distance, but ever ready and alert
to cope with any contingency. There is no need to repeat what was pointed out by Chief
Justice Hughes in Cox that precisely, it is the duty of the city authorities to provide the
proper police protection to those exercising their right to peaceable assembly and
freedom of expression.
8.
By way of a summary The applicants for a permit to hold an assembly should
inform the licensing authority of the date, the public place where and the time when it
will take place. If it were a private place, only the consent of the owner or the one entitled
to its legal possession is required. Such application should be filed well ahead in time
to enable the public official concerned to appraise whether there may be valid
objections to the grant of the permit or to its grant but at another public place. It is an
indispensable condition to such refusal or modification that the clear and present
danger test be the standard for the decision reached. If he is of the view that there is
such an imminent and grave danger of a substantive evil, the applicants must be heard
on the matter. Thereafter, his decision, whether favorable or adverse, must be
transmitted to them at the earliest opportunity. Thus if so minded, then, can have
recourse to the proper judicial authority. Free speech and peaceable assembly, along
with the other intellectual freedoms, are highly ranked in our scheme of constitutional
values. It cannot be too strongly stressed that on the judiciary, even more so than
on the other departments rests the grave and delicate responsibility of assuring
respect for and deference to such preferred rights. No verbal formula, no sanctifying
phrase can, of course, dispense with what has been so felicitiously termed by Justice
Holmes "as the sovereign prerogative of judgment." Nonetheless, the presumption
must be to incline the weight of the scales of justice on the side of such rights, enjoying
as they do precedence and primacy. Clearly then, to the extent that there may be
inconsistencies between this resolution and that of Navarro v. Villegas, that case is pro
tanto modified. So it was made clear in the original resolution of October 25, 1983.
9.
Respondent Mayor posed the issue of the applicability of Ordinance No. 7295
of the City of Manila prohibiting the holding or staging of rallies or demonstrations within
a radius of five hundred (500) feet from any foreign mission or chancery and for other
purposes. It is to be admitted that it finds support In the previously quoted Article 22 of
the Vienna Convention on Diplomatic Relations. There was no showing, however, that
the distance between the chancery and the embassy gate is less than 500 feet. Even
if it could be shown that such a condition is satisfied. it does not follow that respondent
Mayor could legally act the way he did. The validity of his denial of the permit sought
could still be challenged. It could be argued that a case of unconstitutional application
of such ordinance to the exercise of the right of peaceable assembly presents itself. As
in this case there was no proof that the distance is less than 500 feet, the need to pass
on that issue was obviated, Should it come, then the qualification and observation of
Justices Makasiar and Plana certainly cannot be summarily brushed aside. The high
estate accorded the rights to free speech and peaceable assembly demands nothing
less.
10.
Ordinarily, the remedy in cases of this character is to set aside the denial or
the modification of the permit sought and order the respondent official, to grant it.
Nonetheless, as there was urgency in this case, the proposed march and rally being

scheduled for the next day after the hearing, this Court. in the exercise of its conceded
authority, granted the mandatory injunction in the resolution of October 25, 1983. It may
be noted that the peaceful character of the peace march and rally on October 26 was
not marred by any untoward incident. So it has been in other assemblies held
elsewhere. It is quite reassuring such that both on the part of the national government
and the citizens, reason and moderation have prevailed. That is as it should be.
WHEREFORE, the mandatory injunction prayed for is granted. No costs.

6.

PITA v. CA

G.R. No. 80806

October 5, 1989

LEO PITA doing business under the name and style of PINOY PLAYBOY, petitioner,
vs.
THE COURT OF APPEALS, RAMON BAGATSING, and NARCISO CABRERA,
respondents.
William C. Arceno for petitioner.
Casibang, Perello and De Dios for private respondent.

"Pinoy Playboy" Magazines, pending hearing on the petition for preliminary injunction
in view of Mayor Bagatsing's pronouncement to continue the Anti-Smut Campaign. The
Court granted the temporary restraining order on December 14, 1983.
In his Answer and Opposition filed on December 27,1983 defendant Mayor Bagatsing
admitted the confiscation and burning of obscence reading materials on December 1
and 3, 1983, but claimed that the said materials were voluntarily surrendered by the
vendors to the police authorities, and that the said confiscation and seizure was (sic)
undertaken pursuant to P.D. No. 960, as amended by P.D. No. 969, which amended
Article 201 of the Revised Penal Code. In opposing the plaintiffs application for a writ
of preliminary injunction, defendant pointed out that in that anti- smut campaign
conducted on December 1 and 3, 1983, the materials confiscated belonged to the
magazine stand owners and peddlers who voluntarily surrendered their reading
materials, and that the plaintiffs establishment was not raided.

SARMIENTO, J.:

The other defendant, WPD Superintendent, Narcisco Cabrera, filed no answer.

The petitioner, publisher of Pinoy Playboy, a "men's magazine", seeks the review of the
decision of the Court of Appeals, 1 rejecting his appeal from the decision of the
Regional Trial Court, dismissing his complaint for injunctive relief. He invokes, in
particular, the guaranty against unreasonable searches and seizures of the
Constitution, as well as its prohibition against deprivation of property without due
process of law. There is no controversy as to the facts. We quote:

On January 5,1984, plaintiff filed his Memorandum in support of the issuance of the writ
of preliminary injunction, raising the issue as to "whether or not the defendants and/or
their agents can without a court order confiscate or seize plaintiffs magazine before any
judicial finding is made on whether said magazine is obscene or not".

On December 1 and 3, 1983, pursuing an Anti-Smut Campaign initiated by the Mayor

of the City of Manila, Ramon D. Bagatsing, elements of the Special Anti-Narcotics
Group, Auxilliary Services Bureau, Western Police District, INP of the Metropolitan
Police Force of Manila, seized and confiscated from dealers, distributors, newsstand
owners and peddlers along Manila sidewalks, magazines, publications and other
reading materials believed to be obscene, pornographic and indecent and later burned
the seized materials in public at the University belt along C.M. Recto Avenue, Manila,
in the presence of Mayor Bagatsing and several officers and members of various
student organizations.
Among the publications seized, and later burned, was "Pinoy Playboy" magazines
published and co-edited by plaintiff Leo Pita.
On December 7, 1983, plaintiff filed a case for injunction with prayer for issuance of the
writ of preliminary injunction against Mayor Bagatsing and Narcisco Cabrera, as
superintendent of Western Police District of the City of Manila, seeking to enjoin and/or
restrain said defendants and their agents from confiscating plaintiffs magazines or from
otherwise preventing the sale or circulation thereof claiming that the magazine is a
decent, artistic and educational magazine which is not per se obscene, and that the
publication is protected by the Constitutional guarantees of freedom of speech and of
the press.

The restraining order issued on December 14,1983 having lapsed on January 3,1984,
the plaintiff filed an urgent motion for issuance of another restraining order, which was
opposed by defendant on the ground that issuance of a second restraining order would
violate the Resolution of the Supreme Court dated January 11, 1983, providing for the
Interim Rules Relative to the Implementation of Batas Pambansa Blg. 129, which
provides that a temporary restraining order shall be effective only for twenty days from
date of its issuance.
On January 9, 1984 defendant filed his Comment and/or Rejoinder Memorandum in
support of his opposition to the issuance of a writ of preliminary injunction.
On January 11, 1984, the trial court issued an Order setting the case for hearing on
January 16, 1984 "for the parties to adduce evidence on the question of whether the
publication 'Pinoy Playboy Magazine alleged (sic) seized, confiscated and/or burned by
the defendants, are obscence per se or not".
On January 16, 1984, the Court issued an order granting plaintiffs motion to be given
three days "to file a reply to defendants' opposition dated January 9, 1984, serving a
copy thereof to the counsel for the defendants, who may file a rejoinder within the same
period from receipt, after which the issue of Preliminary Injunction shall be resolved".
Plaintiff's supplemental Memorandum was filed on January 18, 1984. Defendant filed
his Comment on plaintiff s supplemental Memorandum on January 20, 1984, and
plaintiff filed his "Reply-Memorandum" to defendants' Comment on January 25, 1984.

By order dated December 8, 1 983 the Court set the hearing on the petition for
preliminary injunction on December 14,1983 and ordered the defendants to show
cause not later than December 13, 1983 why the writ prayed for should not be granted.

On February 3, 1984, the trial court promulgated the Order appealed from denying the
motion for a writ of preliminary injunction, and dismissing the case for lack of merit. 2

On December 12, 1983, plaintiff filed an Urgent Motion for issuance of a temporary
restraining order. against indiscriminate seizure, confiscation and burning of plaintiff's

The Appellate Court dismissed the appeal upon the grounds, among other things, as
follows:

We cannot quarrel with the basic postulate suggested by appellant that seizure of
allegedly obscene publications or materials deserves close scrutiny because of the
constitutional guarantee protecting the right to express oneself in print (Sec. 9, Art. IV),
and the protection afforded by the constitution against unreasonable searches and
seizure (Sec. 3, Art.IV). It must be equally conceded, however, that freedom of the
press is not without restraint as the state has the right to protect society from
pornographic literature that is offensive to public morals, as indeed we have laws
punishing the author, publishers and sellers of obscene publications (Sec. I , Art. 201,
Revised Penal Code, as amended by P.D. No. 960 and P.D. No. 969). Also well settled
is the rule that the right against unreasonable searches and seizures recognizes certain
exceptions, as when there is consent to the search or seizure, (People vs. Malesugui
63 Phil. 22) or search is an incident to an arrest, (People vs. Veloso, 48 Phil. 169; Alvero
vs. Dizon, 76 Phil. 637) or is conducted in a vehicle or movable structure (See Papa
vs. Magno, 22 SCRA 857). 3
The petitioner now ascribes to the respondent court the following errors:
1.
The Court of Appeals erred in affirming the decision of the trial court and, in
effect, holding that the police officers could without any court warrant or order seize and
confiscate petitioner's magazines on the basis simply of their determination that they
are obscene.
2.
The Court of Appeals erred in affirming the decision of the trial court and, in
effect, holding that the trial court could dismiss the case on its merits without any
hearing thereon when what was submitted to it for resolution was merely the application
of petitioner for the writ of preliminary injunction. 4

About three decades later, this Court promulgated People v. Go Pin, 10 a prosecution
under Article 201 of the Revised Penal Code. Go Pin, was also even hazier:
...We agree with counsel for appellant in part. If such pictures, sculptures and paintings
are shown in art exhibit and art galleries for the cause of art, to be viewed and
appreciated by people interested in art, there would be no offense committed. However,
the pictures here in question were used not exactly for art's sake but rather for
commercial purposes. In other words, the supposed artistic qualities of said pictures
were being commercialized so that the cause of art was of secondary or minor
importance. Gain and profit would appear to have been the main, if not the exclusive
consideration in their exhibition; and it would not be surprising if the persons who went
to see those pictures and paid entrance fees for the privilege of doing so, were not
exactly artists and persons interested in art and who generally go to art exhibitions and
galleries to satisfy and improve their artistic tastes, but rather people desirous of
satisfying their morbid curiosity and taste, and lust, and for love for excitement,
including the youth who because of their immaturity are not in a position to resist and
shield themselves from the ill and perverting effects of these pictures. 11
xxx

xxx

xxx

As the Court declared, the issue is a complicated one, in which the fine lines have
neither been drawn nor divided. It is easier said than done to say, indeed, that if "the
pictures here in question were used not exactly for art's sake but rather for commercial
purposes," 12 the pictures are not entitled to any constitutional protection.
It was People v. Padan y Alova , 13 however, that introduced to Philippine jurisprudence
the "redeeming" element that should accompany the work, to save it from a valid
prosecution. We quote:

The Court states at the outset that it is not the first time that it is being asked to
pronounce what "obscene" means or what makes for an obscene or pornographic
literature. Early on, in People vs. Kottinger, 5 the Court laid down the test, in
determining the existence of obscenity, as follows: "whether the tendency of the matter
charged as obscene, is to deprave or corrupt those whose minds are open to such
immoral influences and into whose hands a publication or other article charged as being
obscene may fall." 6 "Another test," so Kottinger further declares, "is that which shocks
the ordinary and common sense of men as an indecency. " 7 Kottinger hastened to say,
however, that "[w]hether a picture is obscene or indecent must depend upon the
circumstances of the case, 8 and that ultimately, the question is to be decided by the
"judgment of the aggregate sense of the community reached by it." 9

...We have had occasion to consider offenses like the exhibition of still or moving
pictures of women in the nude, which we have condemned for obscenity and as
offensive to morals. In those cases, one might yet claim that there was involved the
element of art; that connoisseurs of the same, and painters and sculptors might find
inspiration in the showing of pictures in the nude, or the human body exhibited in sheer
nakedness, as models in tableaux vivants. But an actual exhibition of the sexual act,
preceded by acts of lasciviousness, can have no redeeming feature. In it, there is no
room for art. One can see nothing in it but clear and unmitigated obscenity, indecency,
and an offense to public morals, inspiring and causing as it does, nothing but lust and
lewdness, and exerting a corrupting influence specially on the youth of the land. ... 14

Yet Kottinger, in its effort to arrive at a "conclusive" definition, succeeded merely in

generalizing a problem that has grown increasingly complex over the years. Precisely,
the question is: When does a publication have a corrupting tendency, or when can it be
said to be offensive to human sensibilities? And obviously, it is to beg the question to
say that a piece of literature has a corrupting influence because it is obscene, and viceversa.

Padan y Alova, like Go Pin, however, raised more questions than answers. For one
thing, if the exhibition was attended by "artists and persons interested in art and who
generally go to art exhibitions and galleries to satisfy and improve their artistic tastes,"
15 could the same legitimately lay claim to "art"? For another, suppose that the
exhibition was so presented that "connoisseurs of [art], and painters and sculptors
might find inspiration," 16 in it, would it cease to be a case of obscenity?

Apparently, Kottinger was aware of its own uncertainty because in the same breath, it
would leave the final say to a hypothetical "community standard" whatever that is
and that the question must supposedly be judged from case to case.

Padan y Alova, like Go Pin also leaves too much latitude for judicial arbitrament, which
has permitted an ad lib of Ideas and "two-cents worths" among judges as to what is
obscene and what is art.

In a much later decision, Gonzalez v. Kalaw Katigbak, 17 the Court, following trends in
the United States, adopted the test: "Whether to the average person, applying
contemporary standards, the dominant theme of the material taken as a whole appeals
to prurient interest." 18 Kalaw-Katigbak represented a marked departure from Kottinger
in the sense that it measured obscenity in terms of the "dominant theme" of the work,
rather than isolated passages, which were central to Kottinger (although both cases are
agreed that "contemporary community standards" are the final arbiters of what is
"obscene"). Kalaw-Katigbak undertook moreover to make the determination of
obscenity essentially a judicial question and as a consequence, to temper the wide
discretion Kottinger had given unto law enforcers.
It is significant that in the United States, constitutional law on obscenity continues to
journey from development to development, which, states one authoritative
commentator (with ample sarcasm), has been as "unstable as it is unintelligible." 19
Memoirs v. Massachusettes, 20 a 1966 decision, which characterized obscenity as one
"utterly without any redeeming social value," 21 marked yet another development.
The latest word, however, is Miller v. California, 22 which expressly abandoned
Massachusettes, and established "basic guidelines," 23 to wit: "(a) whether 'the
average person, applying contemporary standards' would find the work, taken as a
whole, appeals to the prurient interest . . .; (b) whether the work depicts or describes,
in a patently offensive way, sexual conduct specifically defined by the applicable state
law; and (c) whether the work, taken as a whole, lacks serious literary, artistic, political,
or scientific value." 24
(A year later, the American Supreme Court decided Hamling v. United States 25 which
repeated Miller, and Jenkins v. Georgia, 26 yet another reiteration of Miller. Jenkins,
curiously, acquitted the producers of the motion picture, Carnal Knowledge, in the
absence of "genitals" portrayed on screen, although the film highlighted contemporary
American sexuality.)
The lack of uniformity in American jurisprudence as to what constitutes "obscenity" has
been attributed to the reluctance of the courts to recognize the constitutional dimension
of the problem . 27 Apparently, the courts have assumed that "obscenity" is not included
in the guaranty of free speech, an assumption that, as we averred, has allowed a
climate of opinions among magistrates predicated upon arbitrary, if vague theories of
what is acceptable to society. And "[t]here is little likelihood," says Tribe, "that this
development has reached a state of rest, or that it will ever do so until the Court
recognizes that obscene speech is speech nonetheless, although it is subject as in
all speech to regulation in the interests of [society as a whole] but not in the
interest of a uniform vision of how human sexuality should be regarded and portrayed."
28
In the case at bar, there is no challenge on the right of the State, in the legitimate
exercise of police power, to suppress smut provided it is smut. For obvious reasons,
smut is not smut simply because one insists it is smut. So is it equally evident that
individual tastes develop, adapt to wide-ranging influences, and keep in step with the
rapid advance of civilization. What shocked our forebears, say, five decades ago, is not
necessarily repulsive to the present generation. James Joyce and D.H. Lawrence were
censored in the thirties yet their works are considered important literature today. 29

Goya's La Maja desnuda was once banned from public exhibition but now adorns the
world's most prestigious museums.
But neither should we say that "obscenity" is a bare (no pun intended) matter of opinion.
As we said earlier, it is the divergent perceptions of men and women that have probably
compounded the problem rather than resolved it.
What the Court is impressing, plainly and simply, is that the question is not, and has
not been, an easy one to answer, as it is far from being a settled matter. We share
Tribe's disappointment over the discouraging trend in American decisional law on
obscenity as well as his pessimism on whether or not an "acceptable" solution is in
sight.
In the final analysis perhaps, the task that confronts us is less heroic than rushing to a
"perfect" definition of "obscenity", if that is possible, as evolving standards for proper
police conduct faced with the problem, which, after all, is the plaint specifically raised
in the petition.
However, this much we have to say.
Undoubtedly, "immoral" lore or literature comes within the ambit of free expression,
although not its protection. In free expression cases, this Court has consistently been
on the side of the exercise of the right, barring a "clear and present danger" that would
warrant State interference and action. 30 But, so we asserted in Reyes v. Bagatsing,
31 "the burden to show the existence of grave and imminent danger that would justify
adverse action ... lies on the. . . authorit[ies]." 32
"There must be objective and convincing, not subjective or conjectural, proof of the
existence of such clear and present danger." 33 "It is essential for the validity of ...
previous restraint or censorship that the ... authority does not rely solely on his own
appraisal of what the public welfare, peace or safety may require." 34
"To justify such a limitation, there must be proof of such weight and sufficiency to satisfy
the clear and present danger test." 35
The above disposition must not, however, be taken as a neat effort to arrive at a
solution-so only we may arrive at one-but rather as a serious attempt to put the question
in its proper perspective, that is, as a genuine constitutional issue.
It is also significant that in his petition, the petitioner asserts constitutional issues,
mainly, due process and illegal search and seizure.
As we so strongly stressed in Bagatsing, a case involving the delivery of a political
speech, the presumption is that the speech may validly be said. The burden is on the
State to demonstrate the existence of a danger, a danger that must not only be: (1)
clear but also, (2) present, to justify State action to stop the speech. Meanwhile, the
Government must allow it (the speech). It has no choice. However, if it acts
notwithstanding that (absence of evidence of a clear and present danger), it must come
to terms with, and be held accountable for, due process.
The Court is not convinced that the private respondents have shown the required proof
to justify a ban and to warrant confiscation of the literature for which mandatory

injunction had been sought below. First of all, they were not possessed of a lawful court
order: (1) finding the said materials to be pornography, and (2) authorizing them to carry
out a search and seizure, by way of a search warrant.
The Court of Appeals has no "quarrel that ... freedom of the press is not without
restraint, as the state has the right to protect society from pornographic literature that
is offensive to public morals." 36 Neither do we. But it brings us back to square one:
were the "literature" so confiscated "pornographic"? That we have laws punishing the
author, publisher and sellers of obscence publications (Sec. 1, Art. 201, Revised Penal
Code, as amended by P.D. No. 960 and P.D. No. 969)," 37 is also fine, but the question,
again, is: Has the petitioner been found guilty under the statute?
The fact that the former respondent Mayor's act was sanctioned by "police power" is
no license to seize property in disregard of due process. In Philippine Service
Exporters, Inc. v. Drilon, 38 We defined police power as "state authority to enact
legislation that may interfere with personal liberty or property in order to promote the
general welfare ." 39 Presidential Decrees Nos. 960 and 969 are, arguably, police
power measures, but they are not, by themselves, authorities for high-handed acts.
They do not exempt our law enforcers, in carrying out the decree of the twin presidential
issuances (Mr. Marcos'), from the commandments of the Constitution, the right to due
process of law and the right against unreasonable searches and seizures, specifically.
Significantly, the Decrees themselves lay down procedures for implementation. We
quote:
Sec. 2. Disposition of the Prohibited Articles. The disposition of the literature, films,
prints, engravings, sculptures, paintings, or other materials involved in the violation
referred to in Section 1 hereof (Art. 201), RPC as amended) shall be governed by the
following rules:
(a)
Upon conviction of the offender, to be forfeited in favor of the Government to
be destroyed.
(b)
Where the criminal case against any violator of this decree results in an
acquittal, the obscene/immoral literature, films, prints, engravings, sculptures, paintings
or other materials and articles involved in the violation referred to in Section 1 (referring
to Art. 201) hereof shall nevertheless be forfeited in favor of the government to be
destroyed, after forfeiture proceedings conducted by the Chief of Constabulary.
(c)
The person aggrieved by the forfeiture action of the Chief of Constabulary
may, within fifteen (15) days after his receipt of a copy of the decision, appeal the matter
to the Secretary of National Defense for review. The decision of the Secretary of
National Defense shall be final and unappealable. (Sec. 2, PD No, 960 as amended by
PD No. 969.)

SEC. 3. The right of the people to be secure in their persons, houses, papers, and
effects against unreasonable searches and seizures of whatever nature and for any
purpose shall not be violated, and no search warrant or warrant of arrest shall issue
except upon probable cause to be determined by the judge, or such other responsible
officer as may be authorized by law, after examination under oath or affirmation of the
complainant and the witnesses he may produce, and particularly describing the place
to be searched, and the persons or things to be seized.
It is basic that searches and seizures may be done only through a judicial warrant,
otherwise, they become unreasonable and subject to challenge. In Burgos v. Chief of
Staff, AFP, 43 We counter-minded the orders of the Regional Trial Court authorizing
the search of the premises of We Forum and Metropolitan Mail, two Metro Manila
dailies, by reason of a defective warrant. We have greater reason here to reprobate the
questioned raid, in the complete absence of a warrant, valid or invalid. The fact that the
instant case involves an obscenity rap makes it no different from Burgos, a political
case, because, and as we have indicated, speech is speech, whether political or
"obscene".
The Court is not ruling out warrantless searches, as the Rules of Court (1964 rev.) (the
Rules then prevailing), provide:
SEC. 12. Search without warrant of personarrested. A person charged with an
offense may be searched for dangerous weapons or anything which may be used as
proof of the commission of the offense. 44
but as the provision itself suggests, the search must have been an incident to a lawful
arrest, and the arrest must be on account of a crime committed. Here, no party has
been charged, nor are such charges being readied against any party, under Article 201,
as amended, of the Revised Penal Code.
We reject outright the argument that "[t]here is no constitutional nor legal provision
which would free the accused of all criminal responsibility because there had been no
warrant," 45 and that "violation of penal law [must] be punished." 46 For starters, there
is no "accused" here to speak of, who ought to be "punished". Second, to say that the
respondent Mayor could have validly ordered the raid (as a result of an anti-smut
campaign) without a lawful search warrant because, in his opinion, "violation of penal
laws" has been committed, is to make the respondent Mayor judge, jury, and
executioner rolled into one. And precisely, this is the very complaint of the petitioner.
We make this resume.
1.
The authorities must apply for the issuance of a search warrant from a judge,
if in their opinion, an obscenity rap is in order;

Sec. 4. Additional Penalties. Additional penalties shall be imposed as follows:

1.
In case the offender is a government official or employee who allows the
violations of Section I hereof, the penalty as provided herein shall be imposed in the
maximum period and, in addition, the accessory penalties provided for in the Revised
Penal Code, as amended, shall likewise be imposed . 40
Under the Constitution, on the other hand:

2.
The authorities must convince the court that the materials sought to be seized
are "obscene", and pose a clear and present danger of an evil substantive enough to
warrant State interference and action;
3.
The judge must determine whether or not the same are indeed "obscene:" the
question is to be resolved on a case-to-case basis and on His Honor's sound discretion.

4.
If, in the opinion of the court, probable cause exists, it may issue the search
warrant prayed for;
5.
The proper suit is then brought in the court under Article 201 of the Revised
Penal Code;
6.
Any conviction is subject to appeal. The appellate court may assess whether
or not the properties seized are indeed "obscene".
These do not foreclose, however, defenses under the Constitution or applicable
statutes, or remedies against abuse of official power under the Civil Code" 47 or the
Revised Penal code . 48
WHEREFORE, the petition is GRANTED. The decision of the respondent court is
REVERSED and SET ASIDE. It appearing, however, that the magazines subject of the
search and seizure ave been destroyed, the Court declines to grant affirmative relief.
To that extent, the case is moot and academic.
SO ORDERED.

7.

SWS v. COMELEC (2001)

[G.R. No. 147571. May 5, 2001]

SOCIAL WEATHER STATIONS, INCORPORATED and KAMAHALAN PUBLISHING
CORPORATION, doing business as MANILA STANDARD, petitioners, vs.
COMMISSION ON ELECTIONS, respondent.
DECISION
MENDOZA, J.:
Petitioner, Social Weather Stations, Inc. (SWS), is a private non-stock, non-profit social
research institution conducting surveys in various fields, including economics, politics,
demography, and social development, and thereafter processing, analyzing, and
publicly reporting the results thereof. On the other hand, petitioner Kamahalan
Publishing Corporation publishes the Manila Standard, a newspaper of general
circulation, which features newsworthy items of information including election surveys.
Petitioners brought this action for prohibition to enjoin the Commission on Elections
from enforcing 5.4 of R.A. No. 9006 (Fair Election Act), which provides:
Surveys affecting national candidates shall not be published fifteen (15) days before an
election and surveys affecting local candidates shall not be published seven (7) days
before an election.
The term election surveys is defined in 5.1 of the law as follows:
Election surveys refer to the measurement of opinions and perceptions of the voters as
regards a candidates popularity, qualifications, platforms or a matter of public
discussion in relation to the election, including voters preference for candidates or
publicly discussed issues during the campaign period (hereafter referred to as Survey).
To implement 5.4, Resolution 3636, 24(h), dated March 1, 2001, of the COMELEC
enjoins
Surveys affecting national candidates shall not be published fifteen (15) days before an
election and surveys affecting local candidates shall not be published seven (7) days
before an election.
Petitioner SWS states that it wishes to conduct an election survey throughout the period
of the elections both at the national and local levels and release to the media the results
of such survey as well as publish them directly. Petitioner Kamahalan Publishing
Corporation, on the other hand, states that it intends to publish election survey results
up to the last day of the elections on May 14, 2001.
Petitioners argue that the restriction on the publication of election survey results
constitutes a prior restraint on the exercise of freedom of speech without any clear and
present danger to justify such restraint. They claim that SWS and other pollsters
conducted and published the results of surveys prior to the 1992, 1995, and 1998
elections up to as close as two days before the election day without causing confusion
among the voters and that there is neither empirical nor historical evidence to support
the conclusion that there is an immediate and inevitable danger to the voting process
posed by election surveys. They point out that no similar restriction is imposed on

politicians from explaining their opinion or on newspapers or broadcast media from

writing and publishing articles concerning political issues up to the day of the election.
Consequently, they contend that there is no reason for ordinary voters to be denied
access to the results of election surveys which are relatively objective.
Respondent Commission on Elections justifies the restrictions in 5.4 of R.A. No. 9006
as necessary to prevent the manipulation and corruption of the electoral process by
unscrupulous and erroneous surveys just before the election. It contends that (1) the
prohibition on the publication of election survey results during the period proscribed by
law bears a rational connection to the objective of the law, i.e., the prevention of the
debasement of the electoral process resulting from manipulated surveys, bandwagon
effect, and absence of reply; (2) it is narrowly tailored to meet the evils sought to be
prevented; and (3) the impairment of freedom of expression is minimal, the restriction
being limited both in duration, i.e., the last 15 days before the national election and the
last 7 days before a local election, and in scope as it does not prohibit election survey
results but only require timeliness. Respondent claims that in National Press Club v.
COMELEC,[1] a total ban on political advertisements, with candidates being merely
allocated broadcast time during the so-called COMELEC space or COMELEC hour,
was upheld by this Court. In contrast, according to respondent, it states that the
prohibition in 5.4 of R.A. No. 9006 is much more limited.
For reasons hereunder given, we hold that 5.4 of R.A. No. 9006 constitutes an
unconstitutional abridgment of freedom of speech, expression, and the press.
To be sure, 5.4 lays a prior restraint on freedom of speech, expression, and the press
by prohibiting the publication of election survey results affecting candidates within the
prescribed periods of fifteen (15) days immediately preceding a national election and
seven (7) days before a local election. Because of the preferred status of the
constitutional rights of speech, expression, and the press, such a measure is vitiated
by a weighty presumption of invalidity.[2] Indeed, any system of prior restraints of
expression comes to this Court bearing a heavy presumption against its constitutional
validity. . . . The Government thus carries a heavy burden of showing justification for
the enforcement of such restraint.[3] There is thus a reversal of the normal presumption
of validity that inheres in every legislation.
Nor may it be argued that because of Art. IX-C, 4 of the Constitution, which gives the
COMELEC supervisory power to regulate the enjoyment or utilization of franchise for
the operation of media of communication, no presumption of invalidity attaches to a
measure like 5.4. For as we have pointed out in sustaining the ban on media political
advertisements, the grant of power to the COMELEC under Art. IX-C, 4 is limited to
ensuring equal opportunity, time, space, and the right to reply as well as uniform and
reasonable rates of charges for the use of such media facilities for public information
campaigns and forums among candidates.[4] This Court stated:
The technical effect of Article IX (C) (4) of the Constitution may be seen to be that no
presumption of invalidity arises in respect of exercises of supervisory or regulatory
authority on the part of the Comelec for the purpose of securing equal opportunity
among candidates for political office, although such supervision or regulation may result
in some limitation of the rights of free speech and free press.[5]
MR. JUSTICE KAPUNAN dissents. He rejects as inappropriate the test of clear and
present danger for determining the validity of 5.4. Indeed, as has been pointed out in

Osmea v. COMELEC,[6] this test was originally formulated for the criminal law and only
later appropriated for free speech cases. Hence, while it may be useful for determining
the validity of laws dealing with inciting to sedition or incendiary speech, it may not be
adequate for such regulations as the one in question. For such a test is concerned with
questions of the gravity and imminence of the danger as basis for curtailing free speech,
which is not the case of 5.4 and similar regulations.

States is a mature democracy. Neither are there laws imposing an embargo on survey
results, even for a limited period, in other countries. As pointed out by petitioners, the
United Kingdom, Austria, Belgium, Denmark, Estonia, Finland, Iceland, Ireland, Latvia,
Malta, Macedonia, the Netherlands, Norway, Sweden, and Ukraine, some of which are
no older nor more mature than the Philippines in political development, do not restrict
the publication of election survey results.

Instead, MR. JUSTICE KAPUNAN purports to engage in a form of balancing by

weighing and balancing the circumstances to determine whether public interest [in free,
orderly, honest, peaceful and credible elections] is served by the regulation of the free
enjoyment of the rights (page 7). After canvassing the reasons for the prohibition, i.e.,
to prevent last-minute pressure on voters, the creation of bandwagon effect to favor
candidates, misinformation, the junking of weak and losing candidates by their parties,
and the form of election cheating called dagdag-bawas and invoking the States power
to supervise media of information during the election period (pages 11-16), the
dissenting opinion simply concludes:

What test should then be employed to determine the constitutional validity of 5.4? The
United States Supreme Court, through Chief Justice Warren, held in United States v.
OBrien:

Viewed in the light of the legitimate and significant objectives of Section 5.4, it may be
seen that its limiting impact on the rights of free speech and of the press is not unduly
repressive or unreasonable. Indeed, it is a mere restriction, not an absolute prohibition,
on the publication of election surveys. It is limited in duration; it applies only during the
period when the voters are presumably contemplating whom they should elect and
when they are most susceptible to such unwarranted persuasion. These surveys may
be published thereafter. (Pages 17-18)
The dissent does not, however, show why, on balance, these considerations should
outweigh the value of freedom of expression. Instead, reliance is placed on Art. IX-C,
4. As already stated, the purpose of Art. IX-C, 4 is to ensure equal opportunity, time,
and space and the right of reply, including reasonable, equal rates therefor for public
information campaigns and forums among candidates. Hence the validity of the ban on
media advertising. It is noteworthy that R.A. No. 9006, 14 has lifted the ban and now
allows candidates to advertise their candidacies in print and broadcast media. Indeed,
to sustain the ban on the publication of survey results would sanction the censorship of
all speaking by candidates in an election on the ground that the usual bombasts and
hyperbolic claims made during the campaigns can confuse voters and thus debase the
electoral process.
In sum, the dissent has engaged only in a balancing at the margin. This form of ad hoc
balancing predictably results in sustaining the challenged legislation and leaves
freedom of speech, expression, and the press with little protection. For anyone who can
bring a plausible justification forward can easily show a rational connection between
the statute and a legitimate governmental purpose. In contrast, the balancing of interest
undertaken by then Justice Castro in Gonzales v. COMELEC,[7] from which the dissent
in this case takes its cue, was a strong one resulting in his conclusion that 50-B of R.A.
No. 4880, which limited the period of election campaign and partisan political activity,
was an unconstitutional abridgment of freedom of expression.
Nor can the ban on election surveys be justified on the ground that there are other
countries 78, according to the Solicitor General, while the dissent cites 28 which
similarly impose restrictions on the publication of election surveys. At best this survey
is inconclusive. It is noteworthy that in the United States no restriction on the publication
of election survey results exists. It cannot be argued that this is because the United

[A] government regulation is sufficiently justified [1] if it is within the constitutional power
of the Government; [2] if it furthers an important or substantial governmental interest;
[3] if the governmental interest is unrelated to the suppression of free expression; and
[4] if the incidental restriction on alleged First Amendment freedoms [of speech,
expression and press] is no greater than is essential to the furtherance of that
interest.[8]
This is so far the most influential test for distinguishing content-based from contentneutral regulations and is said to have become canonical in the review of such laws.[9]
It is noteworthy that the OBrien test has been applied by this Court in at least two
cases.[10]
Under this test, even if a law furthers an important or substantial governmental interest,
it should be invalidated if such governmental interest is not unrelated to the suppression
of free expression. Moreover, even if the purpose is unrelated to the suppression of
free speech, the law should nevertheless be invalidated if the restriction on freedom of
expression is greater than is necessary to achieve the governmental purpose in
question.
Our inquiry should accordingly focus on these two considerations as applied to 5.4.
First. Sec. 5.4 fails to meet criterion [3] of the OBrien test because the causal
connection of expression to the asserted governmental interest makes such interest
not unrelated to the suppression of free expression. By prohibiting the publication of
election survey results because of the possibility that such publication might undermine
the integrity of the election, 5.4 actually suppresses a whole class of expression, while
allowing the expression of opinion concerning the same subject matter by newspaper
columnists, radio and TV commentators, armchair theorists, and other opinion makers.
In effect, 5.4 shows a bias for a particular subject matter, if not viewpoint, by preferring
personal opinion to statistical results. The constitutional guarantee of freedom of
expression means that the government has no power to restrict expression because of
its message, its ideas, its subject matter, or its content.[11] The inhibition of speech
should be upheld only if the expression falls within one of the few unprotected
categories dealt with in Chaplinsky v. New Hampshire,[12] thus:
There are certain well-defined and narrowly limited classes of speech, the prevention
and punishment of which have never been thought to raise any Constitutional problem.
These include the lewd and obscene, the profane, the libelous, and the insulting or
fighting words those which by their very utterance inflict injury or tend to incite an
immediate breach of the peace. [S]uch utterances are no essential part of any
exposition of ideas, and are of such slight social value as a step to truth that any benefit

that may be derived from them is clearly outweighed by the social interest in order and
morality.
Nor is there justification for the prior restraint which 5.4 lays on protected speech. In
Near v. Minnesota,[13] it was held:
[The] protection even as to previous restraint is not absolutely unlimited. But the
limitation has been recognized only in exceptional cases. . . . No one would question
but that a government might prevent actual obstruction to its recruiting service or the
publication of the sailing dates of transports or the number and location of troops. On
similar grounds, the primary requirements of decency may be enforced against
obscene publications. The security of the community life may be protected against
incitements to acts of violence and the overthrow by force of orderly government . . . .
Thus, contrary to the claim of the Solicitor General, the prohibition imposed by 5.4
cannot be justified on the ground that it is only for a limited period and is only incidental.
The prohibition may be for a limited time, but the curtailment of the right of expression
is direct, absolute, and substantial. It constitutes a total suppression of a category of
speech and is not made less so because it is only for a period of fifteen (15) days
immediately before a national election and seven (7) days immediately before a local
election.
This sufficiently distinguishes 5.4 from R.A. No. 6646, 11(b), which this Court found to
be valid in National Press Club v. COMELEC[14] and Osmea v. COMELEC.[15] For
the ban imposed by R.A. No. 6646, 11(b) is not only authorized by a specific
constitutional provision,[16] but it also provided an alternative so that, as this Court
pointed out in Osmea, there was actually no ban but only a substitution of media
advertisements by the COMELEC space and COMELEC hour.
Second. Even if the governmental interest sought to be promoted is unrelated to the
suppression of speech and the resulting restriction of free expression is only incidental,
5.4 nonetheless fails to meet criterion [4] of the OBrien test, namely, that the restriction
be not greater than is necessary to further the governmental interest. As already stated,
5.4 aims at the prevention of last-minute pressure on voters, the creation of bandwagon
effect, junking of weak or losing candidates, and resort to the form of election cheating
called dagdag-bawas. Praiseworthy as these aims of the regulation might be, they
cannot be attained at the sacrifice of the fundamental right of expression, when such
aim can be more narrowly pursued by punishing unlawful acts, rather than speech
because of apprehension that such speech creates the danger of such evils. Thus,
under the Administrative Code of 1987,[17] the COMELEC is given the power:
To stop any illegal activity, or confiscate, tear down, and stop any unlawful, libelous,
misleading or false election propaganda, after due notice and hearing.
This is surely a less restrictive means than the prohibition contained in 5.4. Pursuant to
this power of the COMELEC, it can confiscate bogus survey results calculated to
mislead voters. Candidates can have their own surveys conducted. No right of reply
can be invoked by others. No principle of equality is involved. It is a free market to which
each candidate brings his ideas. As for the purpose of the law to prevent bandwagon
effects, it is doubtful whether the Government can deal with this natural-enough
tendency of some voters. Some voters want to be identified with the winners. Some are
susceptible to the herd mentality. Can these be legitimately prohibited by suppressing

the publication of survey results which are a form of expression? It has been held that
[mere] legislative preferences or beliefs respecting matters of public convenience may
well support regulation directed at other personal activities, but be insufficient to justify
such as diminishes the exercise of rights so vital to the maintenance of democratic
institutions.[18]
To summarize then, we hold that 5.4 is invalid because (1) it imposes a prior restraint
on the freedom of expression, (2) it is a direct and total suppression of a category of
expression even though such suppression is only for a limited period, and (3) the
governmental interest sought to be promoted can be achieved by means other than the
suppression of freedom of expression.
On the other hand, the COMELEC contends that under Art. IX-A, 7 of the Constitution,
its decisions, orders, or resolutions may be reviewed by this Court only by certiorari.
The flaws in this argument is that it assumes that its Resolution 3636, dated March 1,
2001 is a decision, order, or resolution within the meaning of Art. IX-A, 7. Indeed,
counsel for COMELEC maintains that Resolution 3636 was rendered by the
Commission. However, the Resolution does not purport to adjudicate the right of any
party. It is not an exercise by the COMELEC of its adjudicatory power to settle the
claims of parties. To the contrary, Resolution 3636 clearly states that it is promulgated
to implement the provisions of R.A. No. 9006. Hence, there is no basis for the
COMELECs claim that this petition for prohibition is inappropriate. Prohibition has been
found appropriate for testing the constitutionality of various election laws, rules, and
regulations.[19]
WHEREFORE, the petition for prohibition is GRANTED and 5.4 of R.A. No. 9006 and
24(h) of COMELEC Resolution 3636, dated March 1, 2001, are declared
unconstitutional.
SO ORDERED.

8.

SWS v. COMELEC (2015)

EN BANC

[SWS] to either comply with the directive in the Fair Election Act and COMELEC
Resolution No. 9[6]1[5] and give the names or identities of the subscribers who paid for
the [pre-election survey conducted from February 15 to February 17, 2013], or be liable
for the violation thereof, an act constitutive of an election offense."11

G.R. No. 208062, April 07, 2015

SOCIAL WEATHER STATIONS, INC. AND PULSE ASIA, INC., Petitioners, v.
COMMISSION ON ELECTIONS, Respondent.
DECISION

Tiangco recounted that on February 28, 2013, he wrote to SWS requesting, among
others, that he "be furnished the identity of persons who paid for the [pre-election survey
conducted from February 15 to February 17, 2013] as well as those who subscribed to
it."12 Sometime in March 2013, SWS supposedly replied to Tiangco, "furnishing [him]
with some particulars about the survey but [without] disclosing] the identity of the
persons who commissioned or subscribed to the survey."13

LEONEN, J.:
This resolves the Petition1 for certiorari and prohibition under Rule 64, in relation to
Rule 65, of the 1997 Rules of Civil Procedure praying that respondent Commission on
Elections' Resolution No. 96742 dated April 23, 2013 be nullified and set aside and that
the Commission on Elections be permanently enjoined from enforcing the same
Resolution, as well as prosecuting Social Weather Stations, Inc. and Pulse Asia, Inc.
for violating it or otherwise compelling compliance with it.3
Commission on Elections' (COMELEC) Resolution No. 9674 directed Social Weather
Stations, Inc. (SWS) and Pulse Asia, Inc. (Pulse Asia), as well as "other survey firms
of similar circumstance"4 to submit to COMELEC the names of all commissioners and
payors of all surveys published from February 12, 2013 to April 23, 2013, including
those of their "subscribers."5
SWS and Pulse Asia are social research and public polling firms. Among their activities
is the conduct of pre-election surveys.6
As recounted by SWS and Pulse Asia, on February 15 to February 17, 2013, SWS
conducted a pre-election survey on voters' preferences for senatorial candidates.
Thereafter, it published its findings.7 The following question was asked in the survey:
Kung ang eleksyon ay gaganapin ngayon, sino ang pinakamalamang ninyong iboboto
bilang mga SENADOR ng PILIPINAS? Narito ang listahan ng mga kandidato. Pakishade o itiman po ang naaangkop na oval katabi ng pangalan hg mga taong
pinakamalamang ninyong iboboto. Maaari po kayong pumili ng hanggang
labindalawang (12) kandidato.

Acting on Tiangco's letter and on the COMELEC Law Department's recommendation,

the COMELEC En Bane issued the Order14 dated April 10, 2013 setting the matter for
hearing on April 16, 2013. The same Order directed SWS to submit its Comment within
three (3) days of receipt.15 On April 12, 2013, Pulse Asia received a letter from
COMELEC "requesting its representative to attend the COMELEC hearing on 16 April
2013."16
SWS and Pulse Asia recounted that during the hearing, COMELEC Chairman Sixto S.
Brillantes, Jr. (COMELEC Chairman Brillantes) stated that the proceeding was merely
a clarificatory hearing and not a formal hearing or an investigation.17
On April 23, 2013, COMELEC issued the assailed Resolution No. 9674. The entire
dispositive portion of this Resolution reads:
WHEREFORE, premises considered, the Commis[s]ion RESOLVED, as it hereby
RESOLVES, to DIRECT the SWS, Pulse Asia and other survey firms of similar
circumstance to submit within three (3) days from receipt of this Resolution the names
of all commissioners and payors of surveys published from February 12, 2013 to the
date of the promulgation of this Resolution for copying and verification by the
Commission. The submission shall include the names of all "subscribers" of those
published surveys. Such information/data shall be for the exclusive and confidential use
of the Commission;
RESOLVED FURTHER, that all surveys published subsequent to the promulgation of
this Resolution must be accompanied by all the information required in Republic Act
no. 9006, including the names of commissioners, payors and subscribers.
This resolution shall take effect immediately after publication.

(LIST OF CANDIDATES OMITTED)

If the elections were held today, whom would you most probably vote for as
SENATORS of the PHILIPPINES? Here is a list of candidates. Please shade the oval
beside the name of the persons you would most likely vote for. You may choose up to
twelve (12) candidates.

A violation of these rules shall constitu[t]e an election offense as provided in Republic

Act no. 9006, or the Fair Election Act.18 (Emphasis in the original)
As basis for Resolution No. 9674, COMELEC cited Article IX-C, Section 2(1)19 of the
1987 Constitution and Sections 5.1 to 5.320 of Republic Act No. 9006, otherwise known
as the Fair Election Act, as implemented by COMELEC Resolution No. 9615.21

(LIST OF CANDIDATES OMITTED)8 (Emphasis in the original)

On March 20, 2013, Representative Tobias M. Tiangco (Tiangco), Secretary-General
of the United Nationalist Alliance (UNA), wrote Atty. Esmeralda Ladra, Director of
COMELEC's Law Department.9 In his letter,10 Tiangco asked COMELEC to "compel

SWS and Pulse Asia alleged that following the issuance of Resolution No. 9674 and as
of their filing before this court of the present Petition, they had not been furnished copies
of Resolution No. 9674.22 (They emphasized that while a certified true copy of this
Resolution was attached to their Petition, this was a copy which they themselves

secured "for the purpose of complying.with the requirement that Rule 65 petitions must
be accompanied by a certified true copy of the assailed order or resolution[.]"23)
In the letter24 dated April 30, 2013, SWS and Pulse Asia informed COMELEC
Chairman Brillantes that they had not received a copy of Resolution No. 9674. They
also articulated their view that Resolution No. 9674 was tainted with irregularities,
having been issued ultra vires (i.e., in excess of what the Fair Election Act allows) and
in violation of the non-impairment of contracts clause of the Constitution. They also
expressed their intention to bring the matter before this court on account of these
supposed irregularities. Thus, they requested that COMELEC defer or hold in abeyance
Resolution No. 9674's enforcement.25
On May 8, 2013, the COMELEC Law Department issued a Notice26 to SWS (and also
to Pulse Asia) directing it to furnish COMELEC with a list of the names of all
"commissioners, subscribers, and payors of surveys published from February 12, 2013
until April 23, 2013."27 SWS was warned that failure to comply with the Notice shall
constitute an election offense punishable under the Omnibus Election Code.28
On July 1, 2013, COMELEC issued a Subpoena29 notifying SWS and Pulse Asia that
a Complaint "for violation of Section 264[,] par. 1 and 2 of the Omnibus Election Code30
in relation to R.A. 9006"31 was filed against them. (This was docketed as E.O. Case
No. 13-222). They were also directed to appear and to submit their counter-affidavits
and other supporting documents at the hearing set on August 6, 2013.32
SWS and Pulse Asia maintained that before receiving the Subpoena, they were never
informed that a criminal case had been filed against them. They added that they were
never furnished copies of the relevant criminal Complaint.33
On July 26, 2013, petitioners Social Weather Stations, Inc. and Pulse Asia, Inc. filed
the present Petition.34 They assail Resolution No. 9674 as having been issued ultra
vires. They are of the position that Resolution No. 9674, in requiring the submission of
information on subscribers, is in excess of what the Fair Election Act requires.35
Likewise, they, assert that Resolution No. 9674 transgresses the Fair Election Act in
making itself executory immediately after publication.36 Moreover, they claim that it
violates the non-impairment of contracts clause of the Constitution,37 and was
enforced in violation of their right to due process (as they were charged with its violation
despite not having been properly served with copies of the complaint filed against
them).38 Petitioners pray for the issuance of a temporary restraining order and/or writ
of preliminary injunction in the interim.39
In this court's July 30, 2013 Resolution,40 COMELEC was required to file a Comment
on the Petition. In the same Resolution, this court issued a temporary restraining order
"enjoining the enforcement of COMELEC Resolution No. 9674 with respect to
submission of the names of regular subscribers but not to the submission of (1) the
names of specific subscribers for the limited period of February 12, 2013 to April 23,
2013 who have paid a substantial amount of money for access to survey results and
privileged survey data; and (2) the names of all commissioners and payors of surveys
published within the same period."41
On October 10, 2013, COMELEC filed its Comment.42 On February 12, 2014,
petitioners filed their Joint Reply.43

In this court's February 18, 2014 Resolution,44 the present Petition was given due
course, and the parties were directed to file their memoranda. Petitioners complied on
May 16, 201445 and COMELEC on June 25, 2014.46
For resolution are the following issues:
First, whether Resolution No. 9674 is invalid in that it requires the disclosure of the
names of "subscribers" of election surveys;
Second, whether the rights of petitioners to free speech will be curtailed by the
requirement to submit the names of their subscribers;
Third, whether Resolution No. 9674, insofar as it compels petitioners to submit the
names of their subscribers, violates the constitutional proscription against the
impairment of contracts (Article II, Section 10);
Fourth, whether at the time petitioners were required by COMELEC to reveal the names
of the subscribers to their election surveys, Resolution No. 9674 was already in force
and effect; and
Lastly, whether COMELEC deprived petitioners of due process of law when it:
a) failed to provide them with a copy of Resolution No. 9674 and the criminal complaint
for an election offense; and
b) refused to specify the election offense under which they were being prosecuted.
We sustain the validity of Resolution No. 9674. The names of those who commission
or pay for election surveys, including subscribers of survey firms, must be disclosed
pursuant to Section 5.2(a) of the Fair Election Act. This requirement is a valid regulation
in the exercise of police power and effects the constitutional policy of "guarantee[ing]
equal access to opportunities for public service[.]"47 Section 5.2(a)'s requirement of
disclosing subscribers neither curtails petitioners' free speech rights nor violates the
constitutional proscription against the impairment of contracts.
However, it is evident that Resolution No. 9674 was promulgated in violation of the
period set by the Fair Election Act. Petitioners were also not served a copy of
Resolution No. 9674 with which they were asked to comply. They were neither shown
nor served copies of the criminal Complaint subject of E.O. Case No. 13-222.
Petitioners' right to due process was, thus, violated.
Petitioners assail Resolution No. 9674's requirement of submission of names of
subscribers, including those who did not commission or pay for a specific survey or
cause its publication, for being ultra vires. They maintain that the Fair Election Act "as
it was written by Congress covers only those who commission or pay for a particular
election survey, and requires disclosure of their names only when that particular survey
is published."48 From this, they add that COMELEC exceeded its authority "creating]
an election offense where there was none before"49 in considering as an election
offense any violation of Resolution No. 9674.
COMELEC, for its part, insists on the "wide latitude of discretion"50 granted to it in the
performance of its constitutional duty to "[e]nforce and administer all laws and

regulations relative to the conduct of an election[.]"51 It adds that "as the specialized
constitutional body charged with the enforcement and administration of election
laws,"52 its contemporaneous construction of Section 5.2(a) of the Fair Election Act is
"entitled to great weight and respect."53 Citing the supposed legislative intent of
Section 5.2 as "broaden[ing] the subject of disclosure,"54 COMELEC claims that
Section 5.2(a) "draws no distinction between the direct payors and the indirect payors
of the survey."55 It adds that requiring the disclosure of survey subscribers addresses
the requirement of reporting election expenditures by candidates and political parties,
thereby helping COMELEC check compliance with this requirement.56
Section 5.2(a) of the Fair Election Act, read in a manner consistent not only with its text
but also with the purpose for which it, along with the Fair Election Act, was adopted,
sustains COMELEC's position.
Republic Act No. 9006 was adopted with the end in mind of "guarantee[ing] or ensuring]
equal opportunity for public service"57 and to this end, stipulates mechanisms for the
"supervision] or regulation of] the enjoyment or utilization of all franchises or permits for
the operation of media of communication or information[.]"58 Hence, its short title: Fair
Election Act.
Situated within the constitutional order, the Fair Election Act provides means to realize
the policy articulated in Article II, Section 26 of the 1987 Constitution to "guarantee
equal access to opportunities for public service[.]" Article II, Section 26 models an
understanding of Philippine political and electoral reality. It is not merely hortatory or a
statement of value. Among others, it sums up an aversion to the perpetuation of political
power through electoral contests skewed in favor of those with resources to dominate
the deliberative space in any media.
Apart from making real Article II, Section 26's constitutional policy, the Fair Election Act
represents the legislature's compliance with the requirement of Article XIII, Section 1:
"Congress . . . give[s] highest priority to the enactment of measures that. . . reduce . . .
political inequalities ... by equitably diffusing wealth and political power for the common
good."59
Moreover, the constitutional desire to "guarantee equal access to opportunities for
public service"60 is the same intent that animates the Constitution's investiture in
COMELEC of the power to "supervise or regulate the enjoyment or utilization of all
franchises or permits for the operation of transportation and other public utilities, media
of communication or information, all grants, special privileges, or concessions granted
by the Government or any subdivision, agency, or instrumentality thereof, including any
government-owned or controlled corporation or its subsidiary."61
Specific provisions in the Fair Election Act regulate the means through which
candidates for elective public office, as well as political parties and groups participating
in the party-list system, are able to make themselves known to voters, the same means
through which they earn votes.
Section 3 permits the use of lawful election propaganda.62 Section 4 regulates
published or printed, and broadcast election propaganda.63 Section 6 governs access
to media time and space.64 Sections 7 and 8 provide for COMELEC's competencies
(i.e., affirmative action, and the so-called "COMELEC Space" and "COMELEC Time")
that enable it to equalize candidates' exposure to voters.65 Section 9 regulates venues

for the posting of campaign materials.66 Section 10 provides for parties' and
candidates' right to reply.67 Section 11 requires media outlets to make available the
use of their facilities for election propaganda at discounted rates.68
The Fair Election Act also governs published surveys during elections.
Section 5.1 defines election surveys-as "the measurement of opinions and perceptions
of the voters as regards a candidate's popularity, qualifications, platforms or a matter
of public discussion in relation to the election, including voters' preference for
candidates or publicly discussed issues during the campaign period[.]" Sections 5.2
and 5.3 provide regulations that facilitate transparency with respect to ' election
surveys. Section 5.469 is no longer in effect, having been declared unconstitutional in
this court's May 5, 2001 Decision in Social Weather Stations and Kamahalan Publishing
Corp. v. COMELEC.70 Section 5.571 pertains to exit polls.
Section 5.2 enumerates the information that a person publishing an election survey
must publish along with the survey itself:
5.2 During the election period, any person, natural as well as juridical, candidate or
organization who publishes a survey must likewise publish the following
information:chanroblesvirtuallawlibrary
The name of the person, candidate, party or. organization who commissioned or paid
for the survey;
The name of the person, polling firm or survey organization who conducted the survey;
The period during which the survey was conducted, the methodology used, including
the number of individual respondents and the areas from which they were selected,
and the specific questions asked;
The margin of error of the survey;
For each question for which the margin of error is greater than that reported under
paragraph (d), the margin of error for that question; and
A mailing address and telephone number, indicating it as an address or telephone
number at which the sponsor can be contacted to obtain a written report regarding the
survey in accordance with Subsection 5.3. (Emphasis supplied)
Section 5.3 facilitates the inspection, copying, and verification not only of an election
survey but also of the raw data used as bases for its conclusions:
5.3 The survey together with raw data gathered to support its conclusions shall be
available for inspection, copying and verification by the COMELEC or by a registered
political party or a bona fide candidate, or by any COMELEC-accredited citizen's arm.
A reasonable fee sufficient to cover the costs of inspection, copying and verification
may be charged.
As with all the other provisions of the Fair Election Act, Section 5 is a means to
guarantee equal access to the deliberative forums essential to win an elective public
office. Any reading of Section 5 and of its individual components, such as Section
5.2(a), cannot be divorced from this purpose.
The inclusion of election surveys in the list of items regulated by the Fair Election Act
is a recognition that election surveys are not a mere descriptive aggregation of data.
Publishing surveys are a means to shape the preference of voters, inform the strategy
of campaign machineries, and ultimately, affect the outcome of elections. Election

surveys have a similar nature as election propaganda. They are expensive, normally
paid for by those interested in the outcome of elections, and have tremendous
consequences on election results.
II
Views vary on the precise extent to which surveys or "polls" shape voter preferences,
if at all.
Election surveys have been critiqued for amplifying the notion of an election as a "horse
race"72 and for reducing elections to the lowest common denominator of percentage
points or a candidate's erstwhile share in the vote market rather than focusing on
issues, principles, programs, and platforms.
Several possible, albeit conflicting, effects of surveys on voter behavior have been
postulated:
First, there is the bandwagon effect where "electors rally to support the candidate
leading in the polls."73 This "assumes that knowledge of a popular 'tide' will likely
change voting intentions in [favor] of the frontrunner, that many electors feel more
comfortable supporting a popular choice or that people accept the perceived collective
wisdom of others as being enough reason for supporting a candidate."74
Second, there is the underdog effect where "electors rally to support the candidate
trailing in the polls."75 This shift can be motivated by sympathy for the perceived
underdog.76
Third, there is the motivating effect where "individuals who had not intended to vote are
persuaded to do so,"77 having been alerted to the fact of an election's imminence.78
Fourth, there is also the demotivating effect where "voters abstain from voting out of
certainty that their candidate or party will win[.]"79
Fifth, there are reports of a behavior known as strategic voting where "voting is
influenced by the chances of winning[.]"80
Lastly, there is also the theory of a free-will effect where "voters cast their ballots to
prove the polls wrong[.]"81
Election surveys published during election periods create the "politics of
expectations."82 Voters act in accordance with what is perceived to be an existing or
emerging state of affairs with respect to how candidates are faring.
Of the six (6) effects, the bandwagon effect has a particular resonance and has been
of concern. Surveys, or opinion polls, "by directly influencing individual-level support . .
. , can be self-fulfilling prophecies and produce opinion cascades."83 "[A] poll's
prediction may come to pass not only because it measures public opinion but also
because it may influence public opinion."84
The bandwagon effect is of particular concern because of the observed human
tendency to conform. Three (3) mechanisms through which survey results may induce
conformity have been posited:

(1) normative social influence, or people's desire to adopt the majority position in order
to feel liked and accepted or believe they are on the winning team;
(2) informational social influence, or people learning from the 'wisdom of crowds' via
social proof because they 'believe that others' interpretation of an ambiguous situation
is more accurate . . . and will help [them] choose an appropriate course of action'; and
(3) people resolving cognitive dissonance by switching to the side they infer is going to
win based on the poll.85cralawlawlibrary
Likewise, it has been argued that the bandwagon effect is but the obverse of the socalled false-consensus effect or false-consensus bias:
The bandwagon effect, a form of conformity, is the mirror image of the false consensus
effect, where people misperceive that their own behaviors and attitudes are more
popular than they actually are. In the political domain, one mechanism underlying the
false consensus effect is wishful thinking - people gaining utility from thinking their
candidate is ahead or their opinions are popular.86
The bandwagon effect induced by election surveys assumes even greater significance
in considering the health of a democracy.
Integral to our appreciation of democracy is the recognition that democracy is
fundamentally deliberative. It is rooted in the exchange and dialogue of ideas.
Accordingly, free expression, not least of all from the minority and from those who do
not conform, i.e., those who dissent and criticize, is indispensable:
Proponents of the political theory on "deliberative democracy" submit that "substantial,
open, [and] ethical dialogue is a critical, and indeed defining, feature of a good polity."
This theory may be considered broad, but it definitely "includes [a] collective decision
making with the participation of all who will be affected by the decision." It anchors on
the principle that the cornerstone of every democracy is that sovereignty resides in the
people. To ensure order in running the state's affairs, sovereign powers were delegated
and individuals would be elected or nominated in key government positions to represent
the people. On this note, the theory on deliberative democracy may evolve to the right
of the people to make government accountable. Necessarily, this includes the right of
the people to criticize acts made pursuant to governmental functions.
Speech that promotes dialogue on public affairs, or airs out grievances and political
discontent, should thus be protected and encouraged.
Borrowing the words of Justice Brandeis, "it is hazardous to discourage thought, hope
and imagination; that fear breeds repression; that repression breeds hate; that hate
menaces stable government; that the path of safety lies in the opportunity to discuss
freely supposed grievances and proposed remedies."
In this jurisdiction, this court held that "[t]he interest of society and the maintenance of
good government demand a full discussion of public affairs." This court has, thus,
adopted the principle that "debate on public issues should be uninhibited, robust, and
wide open . . . [including even] unpleasantly sharp attacks on government and public
officials."87cralawlawlibrary

However, "conformity pressures can suppress minority opinion."88 The bandwagon

effect conjures images of an impregnable majority, thereby tending to push farther
toward the peripheries those who are already marginalized. Worse, the bandwagon
effect foments the illusion of a homogenous monolith denying the very existence of
those in the minority. This undermines the "normative conceptions of democracy"89
substituting the democratic dialogue with acquiescence to perceived or projected
orthodoxy.
Surveys, far from being a passive "snapshot of many viewpoints held by a segment of
the population at a given time,"90 can warp existing public opinion and can mould public
opinion. They are constitutive. Published election surveys offer valuable insight into
public opinion not just because they represent it but more so because they also tend to
make it.
Appreciating this tendency to both entrench and marginalize is of acute relevance in
the context of Philippine political reality. This is the same reality that our policymakers,
primarily the framers of the Constitution, have seen fit to address.
III
The constitutional dictum to "guarantee equal access to opportunities for public
service"91 and (even more specifically and explicitly) to "prohibit political dynasties"92
does not exist in a vacuum.
Politics in the Philippines has been criticized as "a lucrative means of selfaggrandizement."93 Ours is an exclusive system that perpetuates power and provides
sanctuary to those who have already secured their place. Traditional Filipino politics
connotes elite families that, with the state, are "engaged in a reciprocal relationship that
constantly defines and redefines both."94 As recounted by Alfred McCoy, this
reciprocal relationship, typified by rent-seeking (i.e., "taking advantage of their access
to state privileges to expand proprietary wealth"95), is a vicious cycle propagated for
as long as the Philippines has been a republic: "The emergence of the Republic as a
weak postcolonial state augmented the power of rent-seeking political families a
development that further weakened the state's own resources."96
The Philippines, as it emerged in the wake of Ferdinand Marcos' presidency and the
adoption of the 1987 Constitution, saw the "celebritification"97 of political office. On the
legislature and studying emerging contrasts in the composition of its two chambers
the Senate and the House of Representatives it has been noted:
The old political families, however are not as strong in the Senate as they are in the
House. This could be read, if not as a total repudiation by voters of family power, then
at least as an attempt by them to tap other sources of national leadership. Celebrities
and military and police officers have emerged as alternatives to traditional politicians.
It could be that these new men and women have captured the popular imagination or
that they are more in tune with the public pulse. But their emergence could very well be
seen as an indication of the paucity of choices: Political parties, for one, have not
succeeded in proffering a wider range of options to an electorate weary of trapos.98
This celebritification nurtures misleading notions of an enhanced or healthier
democracy, one that opens avenues to a crop of political leaders not belonging to

oligarchic families. Viewed critically however, this is nothing more than a pipe dream.
New elites now share the political stage with the old. The tension between two contrary
tendencies actually serves to preserve the status quo of elitism an expanded elitism
perhaps, but elitism no less. To evoke a truism, "the more things change, the more they
stay the same":
But the "celebritification" of the Senate can also be interpreted as the democratization
of an exclusive body once reserved only for the very rich, the politically experienced,
and the intellectually brilliant. In a sense, the bar of entry has been lowered, and anyone
with national renown can contest a seat in a chamber once famous for sharp debates
and polysyllabic peroration.
The main criterion for a Senate seat is now name recall. This is where celebrities have
the edge even over older political families with bankable names. . . .
....
The diminishing clout of old families in the Senateand their continued dominance in
the Houseshows the push and pull of two contrary tendencies. The first tendency is
toward the new: The importance of name recall in national elections taking place in a
media-inundated environment makes it easier for movie and media personalities, and
harder for old-style politicians, to be elected. The second tendency is veering toward
the old: At the district level, trapo-style patronage and machine politics remain deeply
entrenched, giving political families the edge in elections."99
Thus, where once there was elitism solely along lines of kinship Alfred McCoy's socalled "anarchy of families" now there is also elitism demarcated by name recall,
populist projection, and media exposure, arguably, an "anarchy of celebrities."
Certainly, it is not the business of this court to engage in its own determination of the
wisdom of policy. Nevertheless, having to grapple with the tasks of adjudication and
interpretation, it has become necessary to bring to light the intent that underlies the
disputed statutory provision, as well as the constitutional regime and social context, in
which this provision is situated.
To reiterate, the inclusion of published election surveys in a statute that regulates
election propaganda and other means through which candidates may shape voter
preferences is itself telling of the recognition that published election surveys, too, may
influence voter preferences. This inclusion is similarly telling of a recognition that, left
unregulated, election surveys can undermine the purposes of ensuring "fair" elections.
These recognitions are embedded in the Fair Election Act; they are not judicial
constructs. In adjudicating with these' as bases, this court is merely adhering to the
legislative imperative.
IV
It is necessary that the Fair Election Act be appreciated for what it is: a mechanism for
ensuring equality. The Fair Election Act is a means to effect the "necessary condition"
to a genuine democratic dialogue, to realizing a deliberative democracy. The concept
of this "necessary condition" was previously considered by this court in Diocese of
Bacolod v. COMELEC:100

In his seminal work, Repressive Tolerance, philosopher and social theorist Herbert
Marcuse recognized how institutionalized inequality exists as a background limitation,
rendering freedoms exercised within such limitation as merely "protecting] the already
established machinery of discrimination." In his view, any improvement "in the normal
course of events" within an unequal society, without subversion, only strengthens
existing interests of those in power and control.

protecting, even implicitly subsidizing, unpopular or dissenting voices often

systematically subdued within society's ideological ladder. This view acknowledges that
there are dominant political actors who, through authority, power, resources, identity,
or status, have capabilities that may drown out the messages of others. This is
especially true in a developing or emerging economy that is part of the majoritarian
world like ours.

In other words, abstract guarantees of fundamental rights like freedom of expression

may become meaningless if not taken in a real context. This tendency to tackle rights
in the abstract compromises liberties. In his words:

...

Liberty is selfi-determination, autonomythis is almost a tautology, but a tautology

which results from a whole series of synthetic judgments. It stipulates the ability to
determine one's own life: to be able to determine what to do and what not to do, what
to suffer and what not. But the subject of this autonomy is never the contingent, private
individual as that which he actually is or happens to be; it is rather the individual as a
human being who is capable of being free with the others. And the problem of making
possible such a harmony between every individual liberty and the other is not that of
finding a compromise between competitors, or between freedom and law, between
general and individual interest, common and private welfare in an established society,
but of creating the society in which man is no longer enslaved by institutions which
vitiate self-determination from the beginning. In other words, freedom is still to be
created even for the freest of the existing societies.
Marcuse suggests that the democratic argument with all opinions presented to and
deliberated by the people "implies a necessary condition, namely, that the people
must be capable of deliberating and choosing on the basis of knowledge, that they must
have access to authentic information, and that, on this basis, their evaluation must be
the result of autonomous thought'." He submits that "[different opinions and
'philosophies' can no longer compete peacefully for adherence and persuasion on
rational grounds: the 'marketplace of ideas' is organized and delimited by those who
determine the national and the individual interest."
A slant toward left manifests from his belief that "there is a 'natural right' of resistance
for oppressed and overpowered minorities to use extralegal means if the legal ones
have proved to be inadequate." Marcuse, thus, stands for an equality that breaks away
and transcends from established hierarchies, power structures, and indoctrinations.
The tolerance of libertarian society he refers to as "repressive tolerance."101
What is involved here is petitioners' freedom of speech and of expression, that is, to
publish their findings. More specifically, what is involved here is their right to political
speech, that which "refers to speech 'both intended and received as a contribution to
public deliberation about some issue,' 'foster[ing] informed and civic-minded
deliberation."102
The nature of the speech involved, as well as the Fair Election Act's purpose of ensuring
political equality, calls into operation the equality-based approach to weighing liberty to
express vis-a-vis equality of opportunities. As explained in Diocese of Bacolod:103
In an equality-based approach, "politically disadvantaged speech prevails over
regulation[,] but regulation promoting political equality prevails over speech." This view
allows the government leeway to redistribute or equalize 'speaking power,' such as

The scope of the guarantee of free expression takes into consideration the
constitutional respect for human potentiality and the effect of speech. It valorizes the
ability of human beings to express and their necessity to relate. On the other hand, a
complete guarantee must also take into consideration the effects it will have in a
deliberative democracy. Skewed distribution of resources as well as the cultural
hegemony of the majority may have the effect of drowning out the speech and the
messages of those in the minority. In a sense, social inequality does have its effect on
the exercise and effect of the guarantee of free speech. Those who have more will have
better access to media that reaches a wider audience than those who have less. Those
who espouse the more popular ideas will have better reception than the subversive and
the dissenters of society. To be really heard and understood, the marginalized view
normally undergoes its own degree of struggle.
The traditional view has been to tolerate the viewpoint of the speaker and the content
of his or her expression. This view, thus, restricts laws or regulation that allows public
officials to make judgments of the value of such viewpoint or message content. This
should still be the principal approach.
However, the requirements of the Constitution regarding equality in opportunity must
provide limits to some expression during electoral campaigns.104
The required judicial temperament in appraising speech in the context of electoral
campaigns which is principally designed to endorse a candidate, both by candidates
and / or political parties, on the one hand, and private citizens, on the other, has thus
been articulated:
Thus clearly, regulation of speech in the context of electoral campaigns made by
candidates or the members of their political parties or their political parties may be
regulated as to time, place, and manner. This is the effect of our rulings in Osmea v.
COMELEC and National Press Club v. COMELEC.
Regulation of speech in the context of electoral campaigns made by persons who are
not candidates or who do not speak as members of a political party which are, taken
as a whole, principally advocacies of a social issue that the public must consider during
elections is unconstitutional. Such regulation is inconsistent with the guarantee of
according the fullest possible range of opinions coming from the electorate including
those that can catalyze candid, uninhibited, and robust debate in the criteria for the
choice of a candidate.
This does not mean that there cannot be a specie of speech by a private citizen which
will not amount to an election paraphernalia to be validly regulated by law.

Regulation of election paraphernalia will still be constitutionally valid if it reaches into

speech of persons who are not candidates or who do not speak as members of a
political party if they are not candidates, only if what is regulated is declarative speech
that, taken as a whole, has for its principal object the endorsement of a candidate only.
The regulation (a) should be provided by law, (b) reasonable, (c) narrowly tailored to
meet the objective of enhancing the opportunity of all candidates to be heard and
considering the primacy of the guarantee of free expression, and (d) demonstrably the
least restrictive means to achieve that object. The regulation must only be with respect
to the time, place, and manner of the rendition of the message. In no situation may the
speech be prohibited or censored on the basis of its content. For this purpose, it will
not matter whether the speech is made with or on private property.105 [Emphasis in
the original]
V
Concededly, what is involved here is not election propaganda per se. Election surveys,
on their face, do not state or allude to preferred candidates. As a means, election
surveys are ambivalent. To an academician, they are an aggrupation of data. To a
journalist, they are matters for reportage. To a historian, they form part of a chronicle.
Election surveys thus become unambiguous only when viewed in relation to the end for
which they are employed. To those whose end is to get a candidate elected, election
surveys, when limited to their own private consumption, are a means to formulate
strategy. When published, however, the tendency to shape voter preferences comes
into play. In this respect, published election surveys partake of the nature of election
propaganda. It is then declarative speech in the context of an electoral campaign
properly subject to regulation. Hence, Section 5.2 of the Fair Election Act's regulation
of published surveys.
We thus proceed to evaluate Resolution No. 9674's requirement of disclosing the
names of subscribers to election surveys in light of the requisites for valid regulation of
declarative speech by private entities in the context of an election campaign:
First, the text of Section 5.2(a) of the Fair Election Act supports the inclusion of
subscribers among those persons who "paid for the survey[.]"106 Thus, Resolution No.
9674 is a regulation finding basis in statute.

Thus, regardless of whether an intermediate or a strict standard is used, Resolution

No. 9674 passes scrutiny.
It is settled that constitutionally declared principles are a compelling state interest:
Compelling governmental interest would include constitutionally declared principles.
We have held, for example, that "the welfare of children and the State's mandate to
protect and care for them, as parens patriae, constitute a substantial and compelling
government interest in regulating . . . utterances in TV broadcast."111
Here, we have established that the regulation of election surveys effects the
constitutional policy, articulated in Article II, Section 26, and reiterated and affirmed in
Article IX-C, Section 4 and Article XIII, Section 26 of the 1987 Constitution, of
"guarantee[ing] equal access to opportunities for public service[.]"112
Resolution No. 9674 addresses the reality that an election survey is formative as it is
descriptive. It can be a means to shape the preference of voters and, thus, the outcome
of elections. In the hands of those whose end is to get a candidate elected, it is a means
for such end and partakes of the nature of election propaganda. Accordingly, the
imperative of "fair" elections impels their regulation.
Lastly, Resolution No. 9674 is "narrowly tailored to meet the objective of enhancing the
opportunity of all candidates to be heard and considering the primacy of the guarantee
of free expression"113 and is "demonstrably the least restrictive means to achieve that
object."114
While it does regulate expression (i.e., petitioners' publication of election surveys), it
does not go so far as to suppress desired expression. There is neither prohibition nor
censorship specifically aimed at election surveys. The freedom to publish election
surveys remains. All Resolution No. 9674 does is articulate a regulation as regards the
manner of publication, that is, that the disclosure of those who commissioned and/or
paid for, including those subscribed to, published election surveys must be
made.cralawlawlibrary
VI

COMELEC correctly points out that in Section 5.2(a) of the Fair Election Act, those who
"commissioned" and those who "paid for" the published survey are separated by the
disjunctive term "or."107 This disassociates those who "commissioned" from those who
"paid for" and identifies them as alternatives to each other.108 Section 5.2(a) thus
requires the disclosure of two (2) classes of persons: "[first,] those who commissioned
or sponsored the survey; and [second,] those who paid for the survey."109

Petitioners harp on what they claim to be Section 5.2(a)'s "plain meaning" and assert
that there is no room to entertain COMELEC's construction of Section 5.2(a).115

The second class makes no distinction between those who pay for a specific survey
and those who pay for election surveys in general. Indeed, subscribers do not escape
the burden of paying for the component articles comprising a subscription. They may
pay for them in aggregate, but they pay for them just the same. From the text of Section
5.2(a), the legislative intent or regulatory concern is clear: "those who have financed,
one way or another, the [published] survey"110 must be disclosed.

Clarifications, however, are in order.

Second, not only an important or substantial state interest but even a compelling one
reasonably grounds Resolution No. 9674's inclusion of subscribers to election surveys.

It has been said that "[a] cardinal rule in statutory construction is that when the law is
clear and free from any doubt or ambiguity, there is no room for construction or
interpretation. There is only room for application."116

First, verba legis or the so-called plain-meaning rule applies only when the law is
completely clear, such that there is absolutely no room for interpretation. Its application
is premised on a situation where the words of the legislature are clear that its intention,
insofar as the facts of a case demand from the point of view of a contemporary
interpretative community, is neither vague nor ambiguous. This is a matter of judicial
appreciation. It cannot apply merely on a party's contention of supposed clarity and lack
of room for interpretation.

This is descriptive of the situation here.

COMELEC, as the framers of the Constitution intended to place the COMELEC

created and explicitly made independent by the Constitution itselfon a level higher
than statutory administrative organs.123

Interestingly, both COMELEC and petitioners appeal to what they (respectively)

construe to be plainly evident from Section 5.2(a)'s text: on the part of COMELEC, that
the use of the words "paid for" evinces no distinction between direct purchasers and
those who purchase via subscription schemes; and, on the part of petitioners, that
Section 5.2(a)'s desistance from actually using the word "subscriber" means that
subscribers are beyond its contemplation.117 The variance in the parties' positions,
considering that they are both banking on what they claim to be the Fair Election Act's
plain meaning, is the best evidence of an extant ambiguity.

Proceeding from this, we emphasize that this norm of deference applies not only to
factual findings. This applies with equal force to independent constitutional organs'
general exercise of their functions. The constitutional placing of independent
constitutional organs on a plane higher than those of administrative agencies created
only by statute is not restricted to competence in fact-finding. It extends to all purposes
for which the Constitution created them.

Second, statutory construction cannot lend itself to pedantic rigor that foments
absurdity. The dangers of inordinate insistence on literal interpretation are
commonsensical and need not be belabored. These dangers are by no means endemic
to legal interpretation. Even in everyday conversations, misplaced literal interpretations
are fodder for humor. A fixation on technical rules of grammar is no less innocuous. A
pompously doctrinaire' approach to text can stifle, rather than facilitate, the legislative
wisdom that unbridled textualism purports to bolster.118
Third, the assumption that there is, in all cases, a universal plain language is erroneous.
In reality, universality and uniformity of meaning is a rarity. A contrary belief wrongly
assumes that language is static.
The more appropriate and more effective approach is, thus, holistic rather than
parochial: to consider context and the interplay of the historical, the contemporary, and
even the envisioned. Judicial interpretation entails the convergence of social realities
and social ideals. The latter are meant to be effected by the legal apparatus, chief of
which is the bedrock of the prevailing legal order: the Constitution. Indeed, the word in
the vernacular that describes the Constitution saligan demonstrates this
imperative of constitutional primacy.
Thus, we refuse to read Section 5.2(a) of the Fair Election Act in isolation. Here, we
consider not an abstruse provision but a stipulation that is part of the whole, i.e., the
statute of which it is a part, that is aimed at realizing the ideal of fair elections. We
consider not a cloistered provision but a norm that should have a present authoritative
effect to achieve the ideals of those who currently read, depend on, and demand fealty
from the Constitution.cralawlawlibrary
VII
We note with favor COMELEC's emphasis on the "wide latitude of discretion"119
granted to it in the performance of its constitutional duty to "[e]nforce and administer all
laws arid regulations relative to the conduct of an election[.]"120 But this is with the
caution that it does not reach "grave abuse of discretion[.]121

We reiterate, however, that our recognition of this deferential norm is made with
caution. This rule of deference does not give independent constitutional organs, like
COMELEC, license to gravely abuse their discretion. With respect to rule-making, while
the wisdom of "subordinate legislation" or the rule-making power of agencies tasked
with the administration of government is acknowledged, rule-making agencies are not
given unfettered power to promulgate rules. As explained in Gerochi v. Department of
Energy,124 it is imperative that subordinate legislation "be germane to the objects and
purposes of the law and that the regulation be not in contradiction to, but in conformity
with, the standards prescribed by the law."125 A regulation that purports to effect a
statute but goes beyond the bounds of that statute is ultra vires; it is in excess of the
rule-making agency's competence. Thus, it is void and ineffectual.
This is not the case here. There is no grave abuse of discretion. Resolution No. 9674
serves a constitutional purpose and works well within the bounds of the Constitution
and of statute.cralawlawlibrary
VIII
Petitioners argue that Resolution No. 9674 constitutes a prior restraint in that:
Resolution No. 9674 makes it an election offense for a survey firm not to disclose the
names of subscribers who have paid substantial amounts to them, even if ihe survey
portions provided to them have not been published. 1'his requirement is unduly
burdensome and onerous and constitutes a prior restraint on the right of survey firms
to gather information on public opinion and disseminate it to the citizenry.
. . . If Resolution No. 9674 is allowed to stand, survey firms will no longer be able to
operate because they will not have enough clients and will not be financially
sustainable. COMELEC will finally be able to do indirectly what it could not do directly,
which is to prohibit the conduct of election surveys and the publication or dissemination
of the results to the public.126
Petitioners' assertions are erroneous.
Chavez v. Gonzales127 explained the concept of prior restraint as follows:

Alliance for Nationalism and Democracy v. COMELEC122 had the following to say
regarding factual findings made by COMELEC, an independent constitutional organ:
[T]he rule that factual findings of administrative bodies will not be disturbed by courts
of justice except when there is absolutely no evidence or no substantial evidence in
support of such findings should be applied with greater force when it concerns the

Prior restraint refers to official governmental restrictions on the press or other forms of
expression in advance of actual publication or dissemination. Freedom from prior
restraint is largely freedom from government censorship of publications, whatever the
form of censorship, and regardless of whether it is wielded by the executive, legislative
or judicial branch of the government. Thus, it precludes governmental acts that required

approval of a proposal to publish; licensing or permits as prerequisites to publication

including the payment of license taxes for the privilege to publish; and even injunctions
against publication. Even the closure of the business and printing offices of certain
newspapers, resulting in the discontinuation of their printing and publication, are
deemed as previous restraint or censorship. Any law or official that requires some form
of permission to be had before publication can be made, commits an infringement of
the constitutional right, and remedy can be had at the courts.128 (Emphasis supplied,
citations omitted)

that "[petitioners' existing contracts with third parties must be understood to have been
made in reference to the possible exercise of the COMELEC's regulatory powers."134

The very definition of "prior restraint" negates petitioner's assertions. Resolution No.
9674 poses no prohibition or censorship specifically aimed at election surveys. Apart
from regulating the manner of publication, petitioners remain free to publish election
surveys. COMELEC correctly points out that "[t]he disclosure requirement kicks in only
upon, not prior to, publication."129

The relation of the state's police power to the principle of non-impairment of contracts
was thoroughly explained in Ortigas and Co. V. Feati Bank:138

In any case, the requirement of disclosing subscribers is neither unduly burdensome

nor onerous. Prior to the promulgation of Resolution No. 9674, survey firms were
already understood to be bound by the requirement to disclose those who
commissioned or paid for published election surveys. Petitioners have been complying
with this without incident since the Fair Election Act was enacted in 2001. After more
than a decade of compliance, it is odd for petitioners to suddenly assail the disclosure
requirement as unduly burdensome or onerous.
Petitioners' claim that "[i]f Resolution No. 9674 is allowed to stand, survey firms will no
longer be able to operate because they will not have enough clients and will not be
financially sustainable"130 is too speculative and conjectural to warrant our
consideration. The assumption is that persons who want to avail of election survey
results will automatically be dissuaded from doing so when there is a requirement of
submission of their names during the campaign period. This is neither self-evident, nor
a presumption that is susceptible to judicial notice. There is no evidence to establish a
causal connection.
Petitioners' free speech rights must be weighed in relation to the Fair Election Act's
purpose of ensuring political equality and, therefore, the speech of others who want to
participate unencumbered in our political spaces. On one hand, there are petitioners'
right to publish and publications which are attended by the interests of those who can
employ published data to their partisan ends. On the other, there is regulation that may
effect equality and, thus, strengthen the capacity of those on society's margins or those
who grope for resources to engage in the democratic dialogue. The latter fosters the
ideals of deliberative democracy. It does not trump the former; rather, it provides the
environment
where
the
survey
group's
free
speech
rights
should
reside.cralawlawlibrary
IX
Petitioners argue that Resolution No. 9674 violates Article III, Section 10 of the 1987
Constitution.131 They claim that it "unduly interferes with [their] existing contracts . . .
by forcing [them] to disclose information that, under the contracts, is confidential or
privileged."132
For its part, COMELEC argues that "[t]he non-impairment clause of the Constitution
must yield to the loftier purposes sought to be achieved by the government."133 It adds

It is settled that "the constitutional guaranty of non-impairment... is limited by the

exercise of the police power of the State, in the interest of public health, safety, morals
and general welfare."135 "It is a basic rule in contracts that the law is deemed written
into the contract between the parties."136 The incorporation of regulations into
contracts is "a postulate of the police power of the State."137

[W]hile non-impairment of contracts is constitutionally guaranteed, the rule is not

absolute, since it has to be reconciled with the legitimate exercise of police power, i.e.,
"the power to prescribe regulations to promote the health, morals, peace, education,
good order or safety and general welfare of the people." Invariably described as "the
most essential, insistent, and illimitable of powers" and "in a sense, the greatest and
most powerful attribute of government," the exercise of the power may be judicially
inquired into and corrected only if it is capricious, whimsical, unjust or unreasonable,
there having been a denial of due process or a violation of any other applicable
constitutional guarantee. As this Court held through Justice Jose P. Bengzon in
Philippine Long Distance Company vs. City of Davao, et al. police power "is elastic and
must be responsive to various social conditions; it is not confined within narrow
circumscriptions of precedents resting on past conditions; it must follow the legal
progress of a democratic way of life." We were even more emphatic in Vda. de Genuino
vs. The Court of Agrarian Relations, et al, when We declared: "We do not see why
public welfare when clashing with the individual right to property should not be made to
prevail through the state's exercise of its police power."139 (Citations omitted)
This case does not involve a "capricious, whimsical, unjust or unreasonable"140
regulation. We have demonstrated that not only an important or substantial state
interest, but even a compelling one anchors Resolution No. 9674's requirement of
disclosing subscribers to election surveys. It effects the constitutional policy of
"guarantee[ing] equal access to opportunities for public service"141 and is impelled by
the imperative of "fair" elections.
As a valid exercise of COMELEC's regulatory powers, Resolution No. 9674 is correctly
deemed written into petitioners' existing contracts.
Parenthetically, the obligations of agreements manifested in the concept of contracts
are creations of law. This right to demand performance not only involves its requisites,
privileges, and regulation in the Civil Code or special laws, but is also subject to the
Constitution. The expectations inherent in a contract may be compelling, but so are the
normative frameworks demanded by law and the provisions of the
Constitution.cralawlawlibrary
X
Petitioners point out that Section 13 of the Fair Election Act provides that "[r]ules and
regulations promulgated by the COMELEC under and by authority of this Section shall
take effect on the seventh day after their publication in at least two (2) daily newspapers
of general circulation." In contrast, Resolution No. 9674 provides that it "shall take effect

immediately after publication."142 Thus, they assert that Resolution No. 9674's
effectivity clause is invalid. From this, they argue that Resolution No. 9674 has not
taken effect and cannot be enforced against them or against other persons.143
COMELEC counters that Section 13 of the Fair Election Act's provision that rules shall
take effect "on the seventh day after their publication" applies only to Resolution No.
9615, the Implementing Rules and Regulations (IRR) of the Fair Election Act, and not
to Resolution No. 9674, which "merely enforces Section 26144 of Resolution No.
9615."145
Noting that Resolution No. 9674 was nevertheless published in the Philippine Daily
Inquirer and the Philippine Star both on April 25, 2013, COMELEC adds that, in any
case, "the lapse of the seven-day period from the date of its publication has rendered
the instant issue moot and academic."146
It is COMELEC which is in error on this score. Section 13 of the Fair Election Act reads:
Section 13. Authority of the COMELEC to Promulgate Rules; Election Offenses. - The
COMELEC shall promulgate and furnish all political parties and candidates and the
mass media entities the rules and regulations for the implementation of this Act,
consistent with the criteria established in Article IX-C, Section 4 of the Constitution and
Section 86 of the Omnibus Election Code (Batas Pambansa Bldg. 881).
Rules and regulations promulgated by the COMELEC under and by authority of this
Section shall take effect on the seventh day after their publication in at least two (2)
daily newspapers of general circulation. Prior to effectivity of said rules and regulations,
no political advertisement or propaganda for or against any candidate or political party
shall be published or broadcast through mass media.
Violation of this Act and the rules and regulations of the COMELEC issued to implement
this Act shall be an election offense punishable under the first and second paragraphs
of Section 264 of the Omnibus Election Code (Batas Pambansa Bldg. 881). (Emphasis
supplied)
Resolution No. 9615 is denominated "Rules and Regulations Implementing Republic
Act No. 9006, otherwise known as the 'Fair Election Act', in connection to [sic] the 13
May 2013 National and Local Elections, and Subsequent Elections[.]"
The only conceivable reason that would lead COMELEC to the conclusion that it is only
Resolution No. 9615 (and not the assailed Resolution No. 9674) that needs to comply
with the requirement of Section 13 of the Fair Election Act is Section 13's use of the
phrase "rules and regulations for the implementation of this Act[.]" That is, since
Resolution No. 9615 is the Resolution which, by name, is called the "Rules and
Regulations Implementing Republic Act No. 9006," COMELEC seems to think that
other rules named differently need not comply.

COMELEC's reasoning is its own admission that the assailed Resolution supplements
what the Implementing Rules and Regulations of the Fair Election Act provides.
Ultimately, Resolution No. 9674 also implements the Fair Election Act and must, thus,
comply with the requirements of its Section 13.
Accordingly, Resolution No. 9674 could not have become effective as soon as it was
published in the Philippine Daily Inquirer and the Philippine Star on April 25, 2013.
Taking into consideration the seven-day period required by Section 13, the soonest that
it could have come into effect was on May 2, 2013.
This notwithstanding, petitioners were not bound to comply with the requirement "to
submit within three (3) days from receipt of this Resolution the names of all
commissioners and payors of surveys published from February 12, 2013 to the date of
the promulgation of this Resolution[.]"147 As shall be discussed, COMELEC's
(continuing) failure to serve copies of Resolution No. 9674 on petitioners prevented this
three-day period from even commencing.cralawlawlibrary
XI
Petitioners point out that they were never served copies of Resolution No. 9674. Thus,
they claim that this Resolution's self-stated three-day period within which they must
comply has not begun to run and that COMELEC's insistence on their compliance
violates their right to due process. They add that COMELEC has also failed to provide
them with copies of the criminal complaint subject of E.O. Case No. 13-222 for which
the Subpoena dated July 1, 2013 was issued against them.
COMELEC, however, insists that "[petitioners were given fair notice of the
Resolution"148 in that:
[t]he-Notice dated 08 May 2013 sent to and received by petitioners not only makes
reference to the Resolution by its number and title but also indicates its date of
promulgation, the two newspapers of general circulation in which it was published, it
date of publication, and, more important [sic], reproduces in full its dispositive
portion[.]149
COMELEC adds that, in any case, petitioners were "able to secure a certified true copy
of the [assailed] Resolution."150 On the filing of a criminal complaint, COMELEC
asserts that attached to the Subpoena served on petitioners was a copy of Resolution
No. 13-0739 of the COMELEC En Bane which "provides a verbatim reproduction of the
Memorandum of the Director of the Law Department detailing petitioners' failure to
comply with the assailed Resolution and of the Memorandum of Commissioner
[Christian Robert S.] Lim submitting the matter for the appropriate action of the
COMELEC en bane."151

It is an error to insist on this literal reasoning.

COMELEC relies on infirm reasoning and reveals how, in criminally charging

petitioners, it acted arbitrarily, whimsically, and capriciously, and violated petitioners'
right to due process.

Section 13 applies to all rules and regulations implementing the Fair Election Act,
regardless of how they are denominated or called. COMELEC's further reasoning that
what Resolution No. 9674 intends to implement is Resolution No. 9615 and not the Fair
Election Act itself is nothing but a circuitous denial of Resolution No. 9674's true nature.

By its own reasoning, COMELEC admits that petitioners were never actually served
copies of Resolution No. 9674 after it was promulgated on April 23, 2013. It insists,
however, that this flaw has been remedied by service to petitioners of the May 8, 2013
Notice which reproduced Resolution No. 9674's dispositive portion.

Dismembering an official issuance by producing only a portion of it (even if the

reproduced portion is the most significant, i.e., dispositive, portion) is not the same as
serving on the concerned parties a copy of the official issuance itself. Petitioners may
have been informed of what the dispositive portion stated, but it remains that they were
never notified and served copies of the assailed Resolution itself. In Resolution No.
9674's own words, compliance was expected "within three (3) days from receipt of this
Resolution[,]"152 not of its partial, dismembered, reproduction.
Not having been served with copies of Resolution No. 9674 itself, petitioners are right
in construing the three-day period for compliance as not having begun to run. From
this, it follows that no violation of the requirement "to submit within three (3) days from
receipt of this Resolution the names of all commissioners and payors of surveys
published from February 12, 2013 to the date of the promulgation of this
Resolution[.]"153 could have been committed. Thus, there was no basis for considering
petitioners to have committed an election offense arising from this alleged violation.
It is of no consequence that the May 8, 2013 Notice warned petitioners that failure to
comply with it "shall constitute an election offense punishable under the first and second
paragraphs of Section 264 of the Omnibus Election Code."154 It is true that the
Omnibus Election Code has been in force and effect long before Resolution No. 9674
was promulgated; nevertheless, the supposed violation of the Omnibus Election Code
rests on petitioners' alleged non-compliance with Resolution No. 9674. This is a matter
which, as we have demonstrated, is baseless, the three-day period for compliance not
having even commenced.
It is similarly inconsequential that petitioners were subsequently able to obtain certified
true copies of Resolution No. 9674. Petitioners' own diligence in complying with the
formal requirements of Rule 65 petitions filed before this court cannot possibly be the
cure for COMELEC's inaction. These certified true copies were secured precisely to
enable petitioners to assail COMELEC's actions, not to validate them. It would be
misguided to subscribe to COMELEC's suggestion that petitioners' diligence should be
their own undoing. To accede to this would be to effectively intimidate parties with
legitimate grievances against government actions from taking the necessary steps to
comply with (formal) requisites for judicial remedies and, ultimately, prevent them from
protecting their rights.
COMELEC's error is compounded by its failure to provide petitioners with copies of the
criminal complaint subject of E.O. Case No. 13-222. COMELEC has neither alleged nor
proven that it has done so. Per its own allegations, all it did was serve petitioners with
the May 8, 2013 Notice and the July 1, 2013 Subpoena.
These facts considered, it was not only grave error, but grave abuse of discretion, for
COMELEC to pursue unfounded criminal charges against petitioners. In so doing,
COMELEC violated petitioners' right to due process.
WHEREFORE, the Petition is PARTIALLY GRANTED in that COMELEC Resolution
No. 9674 is upheld, and respondent Commission on Elections is ENJOINED from
prosecuting petitioners Social Weather Stations, Inc. and Pulse Asia, Inc. for their
supposed violation of COMELEC Resolution No. 9674 in respect of their nonsubmission of the names of all commissioners and payors, including subscribers, of
surveys published during the campaign period for the 2013 elections.

SO ORDERED.chanroblesvirtuallawlibrary

9.

1-UNITED TRANSPORT v. COMELEC

G.R. No. 206020

April 14, 2015

1-UNITED TRANSPORT KOALISYON (1-UTAK), Petitioner,

vs.
COMMISSION ON ELECTIONS, Respondent.

xxxx
(f) To post, display or exhibit any election campaign or propaganda material outside of
authorized common poster areas, in public places, or in private properties without the
consent of the owner thereof.
(g) Public places referred to in the previous subsection (f) include any of the following:

DECISION

xxxx

REYES, J.:

5. Public utility vehicles such as buses, jeepneys, trains, taxi cabs, ferries, pedicabs
and tricycles, whether motorized or not;

The right to participate in electoral processes is a basic and fundamental right in any
democracy. It includes not only the right to vote, but also the right to urge others to vote
for a particular candidate. The right to express ones preference for a candidate is
likewise part of the fundamental right to free speech. Thus, any governmental restriction
on the right to convince others to vote for a candidate carries with it a heavy
presumption of invalidity.
This is a petition for certiorari1 under Rule 64 and Rule 65 of the Rules of Court filed
by 1-United Transport Koalisyon (petitioner), a party-list organization, assailing Section
7(g) items (5) and (6), in relation to Section 7(f), of Resolution No. 96152 of the
Commission on Elections (COMELEC).
The Facts
On February 12, 2001, Republic Act (R.A.) No. 9006, otherwise known as the "Fair
Elections Act", was passed. Section 9 thereof provides:
Sec. 9. Posting of Campaign Materials. The COMELEC may authorize political parties
and party-list groups to erect common poster areas for their candidates in not more
than ten (10) public places such as plazas, markets, barangay centers and the like,
wherein candidates can post, display or exhibit election propaganda: Provided that the
size of the poster areas shall not exceed twelve (12) by sixteen (16) feet or its
equivalent.
Independent candidates with no political parties may likewise be authorized to erect
common poster areas in not more than ten (10) public places, the size of which shall
not exceed four (4) by six (6) feet or its equivalent.
Candidates may post any lawful propaganda material in private places with the consent
of the owner thereof, and in public places or property which shall be allocated equitably
and impartially among the candidates.
On January 15, 2013, the COMELEC promulgated Resolution No. 9615, which
provided for the rules implementing R.A. No. 9006 in connection with the May 13, 2013
national and local elections and subsequent elections. Section 7 thereof, which
enumerates the prohibited forms of election propaganda, pertinently provides:
SEC. 7. Prohibited Forms of Election Propaganda. During the campaign period, it is
unlawful:

6. Within the premises of public transport terminals, such as bus terminals, airports,
seaports, docks, piers, train stations, and the like.
The violation of items [5 and 6]under subsection (g) shall be a cause for the revocation
of the public utility franchise and will make the owner and/or operator of the
transportation service and/or terminal liable for an election offense under Section 9 of
Republic Act No. 9006 as implemented by Section 18 (n) of these Rules.3
In its letter4 dated January 30, 2013, the petitioner, through its president, Melencio F.
Vargas, sought clarification from the COMELEC as regards the application of
Resolution No. 9615, particularly Section 7(g) items (5) and (6), in relation to Section
7(f), vis--vis privately owned public utility vehicles (PUVs) and transport terminals. The
petitioner explained that the prohibition stated in the aforementioned provisions
impedes the right to free speech of the private owners of PUVs and transport terminals.
The petitioner then requested the COMELEC to reconsider the implementation of the
assailed provisions and allow private owners of PUVs and transport terminals to post
election campaign materials on their vehicles and transport terminals. On February 5,
2013, the COMELEC en banc issued Minute Resolution No. 13-0214,5 which denied
the petitioners request to reconsider the implementation of Section 7(g) items(5) and
(6), in relation to Section 7(f), of Resolution No. 9615. The COMELEC en banc,
adopting the recommendation of Commissioner Christian Robert S. Lim, opined that:
From the foregoing, x x x the primary fact in consideration here is actually whether 1UTAK or any other [PUV] owners in the same position do in fact possess a franchise
and/or certificate of public convenience and operate as a public utility. If it does not,
then the ruling in Adiong applies squarely. If it does, then its operations, pursuant to
Section 4, Article IX-C of the Constitution, will be placed directly under the supervision
and regulation of the Commission for the duration of the election period so as to ensure
equality of opportunity, time, and space for all candidates in the placement of political
advertisements. Having placed their property for use by the general public and having
secured a license or permit to do so, 1-UTAK and other PUV owners, as well as
transport terminal owners, cannot now complain that their property is subject to
regulation by the State. Securing a franchise or a certificate of public convenience in
their favor does not exempt them from the burdens imposed by the Constitution,
Republic Act No. 9006 x x x, and other related statutes. It must be stressed that the
Constitution itself, under Section 6, Article XII, commands that the use of property bears
a social function and all economic agents shall contribute to the common good; and
there is no higher common good than that as espoused in R.A. No. 9006 the

equalization of opportunities for all candidates for political office during elections a
policy which Res. No. 9615 merely implements.
As required in Adiong, and in compliance with the OBrien standards, the prohibition
furthers two important and substantial governmental interests equalizing opportunity,
time, and space for all candidates, and putting to a stop excessive campaign spending.
The regulation bears a clear and reasonable nexus with these Constitutionally- and
statutorily-sanctioned objectives, and the infringement of freedom is merely incidental
and limited as to time. The Commission has not taken away all avenues of expression
available to PUV and transport terminal owners. They may express their political
preferences elsewhere.
The exact purpose for placing political advertisements on a PUV or in transport
terminals is exactly because it is public and can be seen by all; and although it is true
that private vehicles ply the same route as public vehicles, the exposure of a [PUV]
servicing the general, riding public is much more compared to private vehicles.
Categorizing PUVs and transport terminals as public places under Section 7 (f) of
Reso. No. 9615 is therefore logical. The same reasoning for limiting political
advertisements in print media, in radio, and in television therefore holds true for political
advertisements in PUVs and transport terminals.6
Hence, the instant petition.

propaganda. Thus, the COMELEC avers, it is within its constitutional authority to

prevent privately-owned PUVs and transport terminals from concurrently serving
campaign materials to the captive audience that they transport.
The COMELEC further claims that Resolution No. 9615 is a valid content-neutral
regulation and, thus, does not impinge on the constitutional right to freedom of speech.
It avers that the assailed regulation is within the constitutional power of the COMELEC
pursuant to Section 4, Article IX-C of the Constitution. The COMELEC alleges that the
regulation simply aims to ensure equal campaign opportunity, time, and space for all
candidates an important and substantial governmental interest, which is totally
unrelated to the suppression of free expression; that any restriction on free speech is
merely incidental and is no greater than is essential to the furtherance of the said
governmental interest.
The Issue
The petitioner presents the following issues for the Courts resolution:
I. [WHETHER] RESOLUTIONNO. 9615 VIOLATES THE RIGHT TO FREE SPEECH
OF THE OWNERS OF [PUVs] AND TRANSPORT TERMINALS.
II. [WHETHER] RESOLUTION NO. 9615 IS VOID AS A RESTRAINT TO FREE
SPEECH AND EXPRESSION FOR FAILURE TO SATISFY THE OBRIEN TEST.

Arguments of the Petitioner

The petitioner maintains that Section 7(g) items (5) and (6), in relation to Section 7(f),
of Resolution No. 9615 violate the right to free speech of the owners of PUVs and
transport terminals; that the prohibition curtails their ideas of who should be voted by
the public. The petitioner also claims that there is no substantial public interest
threatened by the posting of political advertisements on PUVs and transport terminals
to warrant the prohibition imposed by the COMELEC. Further, the petitioner posits that
the ownership of the PUVs per se, as well as the transport terminals, remains private
and, hence, the owners thereof could not be prohibited by the COMELEC from
expressing their political opinion lest their property rights be unduly intruded upon.
Further, assuming that substantial public interest exists in the said prohibition imposed
under Resolution No. 9615, the petitioner claims that the curtailment of the right to free
speech of the owners of PUVs and transport terminals is much greater than is
necessary to achieve the desired governmental purpose, i.e., ensuring equality of
opportunity to all candidates in elective office.

III. [WHETHER] THE CONSTITUTIONAL OBJECTIVE TO GIVE AN EQUAL

OPPORTUNITY TO INFORM THE ELECTORATE IS NOT IMPAIRED BY POSTING
POLITICAL ADVERTISEMENTS ON PUVs AND TRANSPORT TERMINALS.
IV. [WHETHER] THE OWNERSHIP OF FACILITIES IS DIFFERENT AND
INDEPENDENT FROM THE FRANCHISE OR OPERATION OFTHE PUBLIC UTILITY,
THE FORMER BEING BEYOND THE POWER OF REGULATION BYTHE
COMELEC.7
In sum, the issue presented for the Courts resolution is whether Section 7(g) items (5)
and (6), in relation to Section 7(f),of Resolution No. 9615, which prohibits the posting
of any election campaign or propaganda material, inter alia, in PUVs and public
transport terminals are valid regulations.
Ruling of the Court
The petition is meritorious.

Arguments of COMELEC
On the other hand, the COMELEC posits that privately-owned PUVs and transport
terminals are public spaces that are subject to its regulation. It explains that under the
Constitution, the COMELEC has the power to enforce and administer all laws and
regulations relative to the conduct of an election, including the power to regulate the
enjoyment or utilization of all franchises and permits for the operation of transportation
utilities.
The COMELEC points out that PUVs and private transport terminals hold a captive
audience the commuters, who have no choice but be subjected to the blare of political

Resolution No. 9615, which was promulgated pursuant to Section 4, Article IX-C of the
Constitution and the provisions of R.A. No. 9006, lays down the administrative rules
relative to the COMELECs exercise of its supervisory and regulatory powers over all
franchises and permits for the operation of transportation and other public utilities,
media of communication or information, and all grants, special privileges, or
concessions granted by the Government.
Like any other administrative regulations, Resolution No. 9615, or any part thereof,
must not run counter to the Constitution. It is basic that if a law or an administrative rule
violates any norm of the Constitution, that issuance is null and void and has no effect.

The Constitution is the basic law to which all laws must conform; no act shall be valid if
it conflicts with the Constitution.8 In this regard, an administrative regulation, even if it
purports to advance a legitimate governmental interest, may not be permitted to run
roughshod over the cherished rights of the people enshrined in the Constitution.
Section 7(g) items (5) and (6), in
relation to Section 7(f), of
Resolution No. 9615 are prior
restraints on speech.
Free speech may be identified with the liberty to discuss publicly and truthfully any
matter of public concern without prior restraint or censorship and subsequent
punishment.9 Prior restraint refers to official governmental restrictions on the press or
other forms of expression in advance of actual publication or dissemination. Freedom
from prior restraint is largely freedom from government censorship of publications,
whatever the form of censorship, and regardless of whether it is wielded by the
executive, legislative or judicial branch of the government.10 Any system of prior
restraints of expression comes to this Court bearing a heavy presumption against its
validity.11

owner agrees to have it placed on his private vehicle, the expression becomes a
statement by the owner, primarily his own and not of anybody else. If, in the National
Press Club case, the Court was careful to rule out restrictions on reporting by
newspaper or radio and television stations and commentators or columnists as long as
these are not correctly paid-for advertisements or purchased opinions with less reason
can we sanction the prohibition against a sincere manifestation of support and a
proclamation of belief by an individual person who pastes a sticker or decal on his
private property.15 (Emphases ours)
The assailed prohibition on posting
election campaign materials is an
invalid content-neutral regulation
repugnant to the free speech clause.
The COMELEC claims that while Section 7(g) items (5) and (6) of Resolution No. 9615
may incidentally restrict the right to free speech of owners of PUVs and transport
terminals, the same is nevertheless constitutionally permissible since it is a valid
content-neutral regulation.
The Court does not agree.

Section 7(g) items (5) and (6), in relation to Section 7(f), of Resolution No. 9615 unduly
infringe on the fundamental right of the people to freedom of speech. Central to the
prohibition is the freedom of individuals, i.e., the owners of PUVs and private transport
terminals, to express their preference, through the posting of election campaign
material in their property, and convince others to agree with them.
Pursuant to the assailed provisions of Resolution No. 9615, posting an election
campaign material during an election period in PUVs and transport terminals carries
with it the penalty of revocation of the public utility franchise and shall make the owner
thereof liable for an election offense.
The prohibition constitutes a clear prior restraint on the right to free expression of the
owners of PUVs and transport terminals. As a result of the prohibition, owners of PUVs
and transport terminals are forcefully and effectively inhibited from expressing their
preferences under the pain of indictment for an election offense and the revocation of
their franchise or permit to operate.
It is now deeply embedded in our jurisprudence that freedom of speech and of the press
enjoys a preferred status in our hierarchy of rights. The rationale is that the preservation
of other rights depends on how well we protect our freedom of speech and of the
press.12 It has been our constant holding that this preferred freedom calls all the more
for utmost respect when what may be curtailed is the dissemination of information to
make more meaningful the equally vital right of suffrage.13
Thus, in Adiong v. COMELEC,14 the Court struck down the COMELECs prohibition
against the posting of decals and stickers on "mobile places." The Court ratiocinated
that:
Significantly, the freedom of expression curtailed by the questioned prohibition is not
so much that of the candidate or the political party. The regulation strikes at the freedom
of an individual to express his preference and, by displaying it on his car, to convince
others to agree with him. A sticker may be furnished by a candidate but once the car

A content-neutral regulation, i.e., which is merely concerned with the incidents of the
speech, or one that merely controls the time, place or manner, and under well-defined
standards,16 is constitutionally permissible, even if it restricts the right to free speech,
provided that the following requisites concur: first, the government regulation is within
the constitutional power of the Government; second, it furthers an important or
substantial governmental interest; third, the governmental interest is unrelated to the
suppression of free expression; and fourth, the incidental restriction on freedom of
expression is no greater than is essential to the furtherance of that interest.17
Section 7(g) items (5) and (6) of Resolution No. 9615 are content-neutral regulations
since they merely control the place where election campaign materials may be posted.
However, the prohibition is still repugnant to the free speech clause as it fails to satisfy
all of the requisites for a valid content-neutral regulation.
It is conceded that Resolution No. 9615, including the herein assailed provisions,
furthers an important and substantial governmental interest, i.e., ensuring equal
opportunity, time and space among candidates aimed at the holding of free, orderly,
honest, peaceful, and credible elections. It is further conceded that the governmental
interest in imposing the said prohibition is unrelated to the suppression of free
expression. However, Section 7(g) items (5) and (6), in relation to Section 7(f), of
Resolution No. 9615, are not within the constitutionally delegated power of the
COMELEC under Section 4, Article IX-C of the Constitution. Also, there is absolutely
no necessity to restrict the right to free speech of the owners of PUVs and transport
terminals.
The COMELEC may only regulate
the franchise or permit to operate
and not the ownership per se of
PUVs and transport terminals.

The prohibition under Section 7(g) items (5) and (6), in relation to Section 7(f), of
Resolution No. 9615is not within the COMELECs constitutionally delegated power of
supervision or regulation. It is not disputed that the COMELEC has the power to
supervise or regulate the enjoyment or utilization of all franchises or permits for the
operation of transportation utilities during an election period. Section 4, Article IX-C of
the Constitution, thus provides:
Section 4. The Commission may, during the election period, supervise or regulate the
enjoyment or utilization of all franchises or permits for the operation of transportation
and other public utilities, media of communication or information, all grants, special
privileges, or concessions granted by the Government or any subdivision, agency, or
instrumentality thereof, including any government-owned or controlled corporation or
its subsidiary. Such supervision or regulation shall aim to ensure equal opportunity,
time, and space, and the right to reply, including reasonable, equal rates therefor, for
public information campaigns and forums among candidates in connection with the
objective of holding free, orderly, honest, peaceful, and credible elections.
Nevertheless, the constitutional grant of supervisory and regulatory powers to the
COMELEC over franchises and permits to operate, though seemingly unrestrained, has
its limits. Notwithstanding the ostensibly broad supervisory and regulatory powers
granted to the COMELEC during an election period under Section 4, Article IX-C of the
Constitution, the Court had previously set out the limitations thereon. In Adiong, the
Court, while recognizing that the COMELEC has supervisory power vis--vis the
conduct and manner of elections under Section 4, Article IX-C of the Constitution,
nevertheless held that such supervisory power does not extend to the very freedom of
an individual to express his preference of candidates in an election by placing election
campaign stickers on his vehicle.
In National Press Club v. COMELEC,18 while the Court upheld the constitutionality of
a prohibition on the selling or giving free of charge, except to the COMELEC, of
advertising space and commercial time during an election period, it was emphasized
that the grant of supervisory and regulatory powers to the COMELEC under Section 4,
Article IX-C of the Constitution, is limited to ensuring equal opportunity, time, space,
and the right to reply among candidates. Further, in Social Weather Stations, Inc. v.
COMELEC,19 the Court, notwithstanding the grant of supervisory and regulatory
powers to the COMELEC under Section 4, Article IX-C of the Constitution, declared
unconstitutional a regulation prohibiting the release of election surveys prior to the
election since it "actually suppresses a whole class of expression, while allowing the
expression of opinion concerning the same subject matter by newspaper columnists,
radio and [television (TV)] commentators, armchair theorists, and other opinion
makers."20
In the instant case, the Court further delineates the constitutional grant of supervisory
and regulatory powers to the COMELEC during an election period. As worded, Section
4, Article IX-C of the Constitution only grants COMELEC supervisory and regulatory
powers over the enjoyment or utilization "of all franchises or permits for the operation,"
inter alia, of transportation and other public utilities. The COMELECs constitutionally
delegated powers of supervision and regulation do not extend to the ownership per se
of PUVs and transport terminals, but only to the franchise or permit to operate the
same.1wphi1

There is a marked difference between the franchise or permit to operate transportation

for the use of the public and the ownership per se of the vehicles used for public
transport. Thus, in Tatad v. Garcia, Jr.,21 the Court explained that:
What private respondent owns are the rail tracks, rolling stocks like the coaches, rail
stations, terminals and the power plant, not a public utility. While a franchise is needed
to operate these facilities to serve the public, they do not by themselves constitute a
public utility. What constitutes a public utility is not their ownership but their use to serve
the public x x x.
The Constitution, in no uncertain terms, requires a franchise for the operation of a public
utility. However, it does not require a franchise before one can own the facilities needed
to operate a public utility so long as it does not operate them to serve the public.
xxxx
In law, there is a clear distinction between the "operation" of a public utility and the
ownership of the facilities and equipment used to serve the public.
xxxx
The right to operate a public utility may exist independently and separately from the
ownership of the facilities thereof. One can own said facilities without operating them
as a public utility, or conversely, one may operate a public utility without owning the
facilities used to serve the public. The devotion of property to serve the public may be
done by the owner or by the person in control thereof who may not necessarily be the
owner thereof.
This dichotomy between the operation of a public utility and the ownership of the
facilities used to serve the public can be very well appreciated when we consider the
transportation industry. Enfranchised airline and shipping companies may lease their
aircraft and vessels instead of owning them themselves.22 (Emphases ours)
The franchise or permit to operate transportation utilities is a privilege granted to certain
persons to engage in the business of transporting people or goods; it does not refer to
the ownership of the vehicle per se. Ownership is a relation in private law by virtue of
which a thing pertaining to one person is completely subjected to his will in everything
not prohibited by public law or the concurrence with the rights of another.23 Thus, the
owner of a thing has the right to enjoy and dispose of a thing, without other limitations
than those established by law.24
One such limitation established by law, as regards PUVs, is the franchise or permit to
operate. However, a franchise or permit to operate a PUV is a limitation only on certain
aspects of the ownership of the vehicle pertinent to the franchise or permit granted, but
not on the totality of the rights of the owner over the vehicle. Otherwise stated, a
restriction on the franchise or permit to operate transportation utilities is necessarily a
limitation on ownership, but a limitation on the rights of ownership over the PUV is not
necessarily a regulation on the franchise or permit to operate the same.
A franchise or permit to operate transportation utilities pertains to considerations
affecting the operation of the PUV as such, e.g., safety of the passengers, routes or
zones of operation, maintenance of the vehicle, of reasonable fares, rates, and other

charges, or, in certain cases, nationality.25 Thus, a government issuance, which

purports to regulate a franchise or permit to operate PUVs, must pertain to the
considerations affecting its operation as such. Otherwise, it becomes a regulation or
supervision not on the franchise or permit to operate, but on the very ownership of the
vehicle used for public transport.
The expression of ideas or opinion of an owner of a PUV, through the posting of election
campaign materials on the vehicle, does not affect considerations pertinent to the
operation of the PUV. Surely, posting a decal expressing support for a certain candidate
in an election will not in any manner affect the operation of the PUV as such. Regulating
the expression of ideas or opinion in a PUV, through the posting of an election
campaign material thereon, is not a regulation of the franchise or permit to operate, but
a regulation on the very ownership of the vehicle.
The dichotomy between the regulation of the franchise or permit to operate of a PUV
and that of the very ownership thereof is better exemplified in the case of commercial
advertisements posted on the vehicle. A prohibition on the posting of commercial
advertisements on a PUV is considered a regulation on the ownership of the vehicle
per se; the restriction on the enjoyment of the ownership of the vehicle does not have
any relation to its operation as a PUV.
On the other hand, prohibitions on the posting of commercial advertisements on
windows of buses, because it hinders police authorities from seeing whether the
passengers inside are safe, is a regulation on the franchise or permit to operate. It has
a direct relation to the operation of the vehicle as a PUV, i.e., the safety of the
passengers.
In the same manner, the COMELEC does not have the constitutional power to regulate
public transport terminals owned by private persons. The ownership of transport
terminals, even if made available for use by the public commuters, likewise remains
private. Although owners of public transport terminals may be required by local
governments to obtain permits in order to operate, the permit only pertains to
circumstances affecting the operation of the transport terminal as such. The regulation
of such permit to operate should similarly be limited to circumstances affecting the
operation of the transport terminal. A regulation of public transport terminals based on
extraneous circumstances, such as prohibiting the posting of election campaign
materials thereon, amounts to regulating the ownership of the transport terminal and
not merely the permit to operate the same.
Accordingly, Section 7(g) items (5) and (6) of Resolution No. 9615 are not within the
constitutionally delegated power of the COMELEC to supervise or regulate the
franchise or permit to operate of transportation utilities. The posting of election
campaign material on vehicles used for public transport or on transport terminals is not
only a form of political expression, but also an act of ownership it has nothing to do
with the franchise or permit to operate the PUV or transport terminal.
The rulings in National Press Club
and Osmea v. COMELEC26 find no
application to this case.
The COMELEC pointed out that the issue presented in the instant case is akin to the
Courts rulings in National Press Club and Osmea. It explained that in both cases, the

Court sustained Section 11(b) of R.A. No. 6646 or the Electoral Reforms Law of1997,
which prohibits newspapers, radio broadcasting or TV stations, and other mass media
from selling or giving print space or airtime for campaign or other political purposes,
except to the COMELEC, during the election campaign. The COMELEC averred that if
the legislature can empower it to impose an advertising ban on mass media, it could
likewise empower it to impose a similar ban on PUVs and transport terminals.
The Court does not agree.
The restriction imposed under Section 11(b) of R.A. No. 6646 has a direct relation to
the enjoyment and utilization of the franchise or permit to operate of newspapers, radio
broadcasting and TV stations, and other mass media, which the COMELEC has the
power to regulate pursuant to Section 4, Article IX-C of the Constitution. The print space
or airtime is an integral part of the franchise or permit to operate of mass media utilities.
Thus, the restriction under Section 11(b) of R.A. No. 6646 is within the confines of the
constitutionally delegated power of the COMELEC under Section 4, Article IX-C of the
Constitution.
On the other hand, the prohibition on the posting of election campaign materials under
Section 7(g) items (5) and (6) of Resolution No. 9615, as already explained, does not
have any relation to the franchise or permit of PUVs and transport terminals to operate
as such and, hence, is beyond the power of the COMELEC under Section 4,Article IXC of the Constitution.
The restriction on free speech of
owners of PUVs and transport
terminals is not necessary to further
the stated governmental interest.
Section 7(g) items (5) and (6) of Resolution No. 9615 likewise failed to satisfy the fourth
requisite of a valid content-neutral regulation, i.e., the incidental restriction on freedom
of expression is no greater than is essential to the furtherance of that interest. There is
absolutely no necessity to restrict the right of the owners of PUVs and transport
terminals to free speech to further the governmental interest. While ensuring equality
of time, space, and opportunity to candidates is an important and substantial
governmental interest and is essential to the conduct of an orderly election, this lofty
aim may be achieved sans any intrusion on the fundamental right of expression.
First, while Resolution No. 9615 was promulgated by the COMELEC to implement the
provisions of R.A. No. 9006, the prohibition on posting of election campaign materials
on PUVs and transport terminals was not provided for therein.
Second, there are more than sufficient provisions in our present election laws that
would ensure equal time, space, and opportunity to candidates in elections. Section 6
of R.A. No. 9006 mandates that "all registered parties and bona fide candidates shall
have equal access to media time and space" and outlines the guidelines to be observed
in the implementation thereof, viz: Section 6. Equal Access to Media Time and Space.
All registered parties and bona fide candidates shall have equal access to media time
and space. The following guidelines may be amplified on by the COMELEC:

6.1 Print advertisements shall not exceed one-fourth (1/4) page in broad sheet and onehalf (1/2) page in tabloids thrice a week per newspaper, magazine or other publications,
during the campaign period.
6.2 a. Each bona fide candidate or registered political party for a nationally elective
office shall be entitled to not more than one hundred twenty (120) minutes of television
advertisement and one hundred eighty (180) minutes of radio advertisement whether
by purchase or donation.
b. Each bona fide candidate or registered political party for a locally elective office shall
be entitled to not more than sixty (60) minutes of television advertisement and
ninety(90) minutes of radio advertisement whether by purchase or donation.
For this purpose, the COMELEC shall require any broadcast station or entity to submit
to the COMELEC a copy of its broadcast logs and certificates of performance for the
review and verification of the frequency, date, time and duration of advertisements
broadcast for any candidate or political party.
6.3 All mass media entities shall furnish the COMELEC with a copy of all contracts for
advertising, promoting or opposing any political party or the candidacy of any person
for public office within five (5) days after its signing. In every case, it shall be signed by
the donor, the candidate concerned or by the duly authorized representative of the
political party.
6.4 No franchise or permit to operate a radio or television station shall be granted or
issued, suspended or cancelled during the election period. In all instances, the
COMELEC shall supervise the use and employment of press, radio and television
facilities insofar as the placement of political advertisements is concerned to ensure
that candidates are given equal opportunities under equal circumstances to make
known their qualifications and their stand on public issues within the limits set forth in
the Omnibus Election Code and Republic Act No. 7l66 on election spending.
The COMELEC shall ensure that radio or television or cable television broadcasting
entities shall not allow the scheduling of any program or permit any sponsor to
manifestly favor or oppose any candidate or political party by unduly or repeatedly
referring to or including said candidate and/or political party in such program respecting,
however, in all instances the right of said broadcast entities to air accounts of significant
news or news worthy events and views on matters of public interest.
6.5 All members of media, television, radio or print, shall scrupulously report and
interpret the news, taking care not to suppress essential facts nor to distort the truth by
omission or improper emphasis. They shall recognize the duty to air the other side and
the duty to correct substantive errors promptly.

6.7 No movie, cinematograph or documentary portraying the life or biography of a

candidate shall be publicly exhibited in a theater, television station or any public forum
during the campaign period.
6.8 No movie, cinematograph or documentary portrayed by an actor or media
personality who is himself a candidate shall likewise be publicly exhibited in a theater
or any public forum during the campaign period.
Section 9 of R.A. No. 9006 authorizes political parties and party-list groups and
independent candidates to erect common poster areas and candidates to post lawful
election campaign materials in private places, with the consent of the owner thereof,
and in public places or property, which are allocated equitably and impartially.
Further, Section 1327 of R.A. No. 716628 provides for the authorized expenses of
registered political parties and candidates for every voter; it affords candidates equal
opportunity in their election campaign by regulating the amount that should be spent
for each voter.
Likewise, Section 1429 of R.A. No. 7166 requires all candidates and treasurers of
registered political parties to submit a statement of all contributions and expenditures
in connection with the election. Section 14 is a post-audit measure that aims to ensure
that the candidates did not overspend in their election campaign, thereby enforcing the
grant of equal opportunity to candidates under Section 13.
A strict implementation of the foregoing provisions of law would suffice to achieve the
governmental interest of ensuring equal time, space, and opportunity for candidates in
elections. There is thus no necessity of still curtailing the right to free speech of the
owners of PUVs and transport terminals by prohibiting them from posting election
campaign materials on their properties.
Section 7(g) items (5) and (6) of
Resolution No. 9615 are not
justified under the captive-audience
doctrine.
The COMELEC further points out that PUVs and transport terminals hold a "captive
audience" commuters who have no choice but be subjected to the blare of political
propaganda. The COMELEC further claims that while owners of privately owned PUVs
and transport terminals have a right to express their views to those who wish to listen,
they have no right to force their message upon an audience incapable of declining to
receive it.
The COMELECs claim is untenable.

6.6 Any mass media columnist, commentator, announcer, reporter, on-air

correspondent or personality who is a candidate for any elective public office or is a
campaign volunteer for or employed or retained in any capacity by any candidate or
political party shall be deemed resigned, if so required by their employer, or shall take
a leave of absence from his/her work as such during the campaign period: Provided,
That any media practitioner who is an official of a political party or a member of the
campaign staff of a candidate or political party shall not use his/her time or space to
favor any candidate or political party.

The captive-audience doctrine states that when a listener cannot, as a practical matter,
escape from intrusive speech, the speech can be restricted.30 The "captive-audience"
doctrine recognizes that a listener has a right not to be exposed to an unwanted
message in circumstances in which the communication cannot be avoided.31
A regulation based on the captive-audience doctrine is in the guise of censorship, which
undertakes selectively to shield the public from some kinds of speech on the ground

that they are more offensive than others. Such selective restrictions have been upheld
only when the speaker intrudes on the privacy of the home or the degree of captivity
makes it either impossible or impractical for the unwilling viewer or auditor to avoid
exposure.32
In Consolidated Edison Co. v. Public Service Commission,33 the Supreme Court of the
United States of America (U.S. Supreme Court) struck down the order of New York
Public Service Commission, which prohibits public utility companies from including
inserts in monthly bills discussing controversial issues of public policy. The U.S.
Supreme Court held that "[t]he prohibition cannot be justified as being necessary to
avoid forcing appellants views on a captive audience, since customers may escape
exposure to objectionable material simply by throwing the bill insert into a
wastebasket."34
Similarly, in Erznoznik v. City of Jacksonville,35 the U.S. Supreme Court nullified a city
ordinance, which made it a public nuisance and a punishable offense for a drive-in
movie theater to exhibit films containing nudity, when the screen is visible from a public
street or place. The U.S. Supreme Court opined that the degree of captivity is not so
great as to make it impracticable for an unwilling viewer to avoid exposure, thus:
The Jacksonville ordinance discriminates among movies solely on the basis of content.
Its effect is to deter drive-in theaters from showing movies containing any nudity,
however innocent or even educational. This discrimination cannot be justified as a
means of preventing significant intrusions on privacy. The ordinance seeks only to keep
these films from being seen from public streets and places where the offended viewer
readily can avert his eyes. In short, the screen of a drive-in theater is not "so obtrusive
as to make it impossible for an unwilling individual to avoid exposure to it." x x x Thus,
we conclude that the limited privacy interest of persons on the public streets cannot
justify this censorship of otherwise protected speech on the basis of its content.36
(Emphasis ours)
Thus, a government regulation based on the captive-audience doctrine may not be
justified if the supposed "captive audience" may avoid exposure to the otherwise
intrusive speech. The prohibition under Section 7(g) items (5) and (6) of Resolution No.
9615 is not justified under the captive-audience doctrine; the commuters are not forced
or compelled to read the election campaign materials posted on PUVs and transport
terminals. Nor are they incapable of declining to receive the messages contained in the
posted election campaign materials since they may simply avert their eyes if they find
the same unbearably intrusive.
The COMELEC, in insisting that it has the right to restrict the posting of election
campaign materials on PUVs and transport terminals, cites Lehman v. City of Shaker
Heights,37 a case decided by the U.S. Supreme Court. In Lehman, a policy of the city
government, which prohibits political advertisements on government-run buses, was
upheld by the U.S. Supreme Court. The U.S. Supreme Court held that the advertising
space on the buses was not a public forum, pointing out that advertisement space on
government-run buses, "although incidental to the provision of public transportation, is
a part of commercial venture."38 In the same way that other commercial ventures need
not accept every proffer of advertising from the general public, the citys transit system
has the discretion on the type of advertising that may be displayed on its vehicles.

Concurring in the judgment, Justice Douglas opined that while Lehman, a candidate for
state office who sought to avail himself of advertising space on government-run buses,
"clearly has a right to express his views to those who wish to listen, he has no right to
force his message upon an audience incapable of declining to receive it."39 Justice
Douglas concluded: "the right of the commuters to be free from forced intrusions on
their privacy precludes the city from transforming its vehicles of public transportation
into forums for the dissemination of ideas upon this captive audience."40
The COMELECs reliance on Lehman is utterly misplaced.
In Lehman, the political advertisement was intended for PUVs owned by the city
government; the city government, as owner of the buses, had the right to decide which
type of advertisements would be placed on its buses. The U.S. Supreme Court gave
primacy to the city governments exercise of its managerial decision, viz:
Revenue earned from long-term commercial advertising could be jeopardized by a
requirement that short-term candidacy or issue-oriented advertisements be displayed
on car cards. Users would be subjected to the blare of political propaganda. There could
be lurking doubts about favoritism, and sticky administrative problems might arise in
parceling out limited space to eager politicians. In these circumstances, the managerial
decision to limit car card space to innocuous and less controversial commercial and
service-oriented advertising does not rise to the dignity of First Amendment violation.
Were we to hold to the contrary, display cases in public hospitals, libraries, office
buildings, military compounds, and other public facilities immediately would become
Hyde Parks open to every would be pamphleteer and politician. This the Constitution
does not require.41 (Emphasis ours)
Lehman actually upholds the freedom of the owner of the utility vehicles, i.e., the city
government, in choosing the types of advertisements that would be placed on its
properties. In stark contrast, Section 7(g) items (5) and (6) of Resolution No. 9615
curtail the choice of the owners of PUVs and transport terminals on the advertisements
that may be posted on their properties.
Also, the city government in Lehman had the right, nay the duty, to refuse political
advertisements on their buses. Considering that what were involved were facilities
owned by the city government, impartiality, or the appearance thereof, was a necessity.
In the instant case, the ownership of PUVs and transport terminals remains private;
there exists no valid reason to suppress their political views by proscribing the posting
of election campaign materials on their properties.
Prohibiting owners of PUVs and
transport terminals from posting
election campaign materials violates
the equal protection clause.
Section 7(g) items (5) and (6) of Resolution No. 9615 do not only run afoul of the free
speech clause, but also of the equal protection clause. One of the basic principles on
which this government was founded is that of the equality of right, which is embodied
in Section 1, Article III of the 1987 Constitution.42 "Equal protection requires that all
persons or things similarly situated should be treated alike, both as to rights conferred
and responsibilities imposed. Similar subjects, in other words, should not be treated

differently, so as to give undue favor to some and unjustly discriminate against

others."43
"The equal protection clause is aimed at all official state actions, not just those of the
legislature. Its inhibitions cover all the departments of the government including the
political and executive departments, and extend to all actions of a state denying equal
protection of the laws, through whatever agency or whatever guise is taken."44
Nevertheless, the guaranty of equal protection of the laws is not a guaranty of equality
in the application of the laws to all citizens of the state. Equality of operation of statutes
does not mean their indiscriminate operation on persons merely as such, but on
persons according to the circumstances surrounding them. It guarantees equality, not
identity of rights. The Constitution does not require that things, which are different in
fact, be treated in law as though they were the same. The equal protection clause does
not forbid discrimination as to things that are different.45
In order that there can be valid classification so that a discriminatory governmental act
may pass the constitutional norm of equal protection, it is necessary that the four
requisites of valid classification be complied with, namely: (1) it must be based upon
substantial distinctions; (2) it must be germane to the purposes of the law; (3) it must
not be limited to existing conditions only; and (4) it must apply equally to all members
of the class.46
It is conceded that the classification under Section 7(g) items (5) and (6) of Resolution
No. 9615 is not limited to existing conditions and applies equally to the members of the
purported class. However, the classification remains constitutionally impermissible
since it is not based on substantial distinction and is not germane to the purpose of the
law.
A distinction exists between PUVs and transport terminals and private vehicles and
other properties in that the former, to be considered as such, needs to secure from the
government either a franchise or a permit to operate. Nevertheless, as pointed out
earlier, the prohibition imposed under Section 7(g) items (5) and (6) of Resolution No.
9615 regulates the ownership per se of the PUV and transport terminals; the prohibition
does not in any manner affect the franchise or permit to operate of the PUV and
transport terminals.
As regards ownership, there is no substantial distinction between owners of PUVs and
transport terminals and owners of private vehicles and other properties. As already
explained, the ownership of PUVs and transport terminals, though made available for
use by the public, remains private. If owners of private vehicles and other properties
are allowed to express their political ideas and opinion by posting election campaign
materials on their properties, there is no cogent reason to deny the same preferred right
to owners of PUVs and transport terminals. In terms of ownership, the distinction
between owners of PUVs and transport terminals and owners of private vehicles and
properties is merely superficial. Superficial differences do not make for a valid
classification.47
The fact that PUVs and transport terminals are made available for use by the public is
likewise not substantial justification to set them apart from private vehicles and other
properties. Admittedly, any election campaign material that would be posted on PUVs
and transport terminals would be seen by many people. However, election campaign

materials posted on private vehicles and other places frequented by the public, e.g.,
commercial establishments, would also be seen by many people. Thus, there is no
reason to single out owners of PUVs and transport terminals in the prohibition against
posting of election campaign materials.
Further, classifying owners of PUVs and transport terminals apart from owners of
private vehicles and other properties bears no relation to the stated purpose of Section
7(g) items(5) and (6) of Resolution No. 9615, i.e., to provide equal time, space and
opportunity to candidates in elections. To stress, PUVs and transport terminals are
private properties. Indeed, the nexus between the restriction on the freedom of
expression of owners of PUVs and transport terminals and the governments interest
in ensuring equal time, space, and opportunity for candidates in elections was not
established by the COMELEC.
In sum, Section 7(g) items (5) and (6), in relation to Section 7(f), of Resolution No. 9615
violate the free speech clause; they are content-neutral regulations, which are not within
the constitutional power of the COMELEC issue and are not necessary to further the
objective of ensuring equal time, space and opportunity to the candidates. They are not
only repugnant to the free speech clause, but are also violative of the equal protection
clause, as there is no substantial distinction between owners of PUV s and transport
terminals and owners of private vehicles and other properties.
On a final note, it bears stressing that the freedom to advertise one's political candidacy
is clearly a significant part of our freedom of expression. A restriction on this freedom
without rhyme or reason is a violation of the most valuable feature of the democratic
way of life.48 WHEREFORE, in light of the foregoing disquisitions, the instant petition
is hereby GRANTED. Section 7(g) items (5) and (6), in relation to Section 7(f), of
Resolution No. 9615 issued by the Commission on Elections are hereby declared NULL
and VOID for being repugnant to Sections 1 and 4, Article III of the 1987 Constitution.
SO ORDERED.

10. DIOCESE OF BACOLOD v. COMELEC

G.R. No. 205728

January 21, 2015

THE DIOCESE OF BACOLOD, REPRESENTED BY THE MOST REV. BISHOP

VICENTE M. NAVARRA and THE BISHOP HIMSELF IN HIS PERSONAL CAPACITY,
Petitioners,
vs.
COMMISSION ON ELECTIONS AND THE ELECTION OFFICER OF BACOLOD CITY,
ATTY. MAVIL V. MAJARUCON, Respondents.
DECISION
LEONEN, J.:
"The Philippines is a democratic and republican State. Sovereignty resides in the
people and all government authority emanates from them." Article II, Section 1,
Constitution
All governmental authority emanates from our people. No unreasonable restrictions of
the fundamental and preferred right to expression of the electorate during political
contests no matter how seemingly benign will be tolerated.
This case defines the extent that our people may shape the debates during elections.
It is significant and of first impression. We are asked to decide whether the Commission
on Elections (COMELEC) has the competence to limit expressions made by the citizens
who are not candidates during elections.
Before us is a special civil action for certiorari and prohibition with application for
preliminary injunction and temporary restraining order1 under Rule 65 of the Rules of
Court seeking to nullify COMELECs Notice to Remove Campaign Materials2 dated
February 22, 2013 and letter3 issued on February 27, 2013.
The facts are not disputed.
On February 21, 2013, petitioners posted two (2) tarpaulins within a private compound
housing the San Sebastian Cathedral of Bacolod. Each tarpaulin was approximately
six feet (6') by ten feet (10') in size. They were posted on the front walls of the cathedral
within public view. The first tarpaulin contains the message "IBASURA RH Law"
referring to the Reproductive Health Law of 2012 or Republic Act No. 10354. The
second tarpaulin is the subject of the present case.4 This tarpaulin contains the heading
"Conscience Vote" and lists candidates as either "(Anti-RH) Team Buhay" with a check
mark, or "(Pro-RH) Team Patay" with an "X" mark.5 The electoral candidates were
classified according to their vote on the adoption of Republic Act No. 10354, otherwise
known as the RH Law.6 Those who voted for the passing of the law were classified by
petitioners as comprising "Team Patay," while those who voted against it form "Team
Buhay":7
TEAM BUHAY
TEAM PATAY
Estrada, JV
Angara, Juan Edgardo
Honasan, Gregorio
Casio, Teddy
Magsaysay, Mitos
Cayetano, Alan Peter

Pimentel, Koko Enrile, Jackie

Trillanes, Antonio Escudero, Francis
Villar, Cynthia
Hontiveros, Risa
Party List Buhay Legarda, Loren
Party List Ang Pamilya
Party List Gabriela
Party List Akbayan
Party List Bayan Muna
Party List Anak Pawis
During oral arguments, respondents conceded that the tarpaulin was neither sponsored
nor paid for by any candidate. Petitioners also conceded that the tarpaulin contains
names ofcandidates for the 2013 elections, but not of politicians who helped in the
passage of the RH Law but were not candidates for that election.
On February 22, 2013, respondent Atty. Mavil V. Majarucon, in her capacity as Election
Officer of Bacolod City, issued a Notice to Remove Campaign Materials8 addressed to
petitioner Most Rev. Bishop Vicente M. Navarra. The election officer ordered the
tarpaulins removal within three (3) days from receipt for being oversized. COMELEC
Resolution No. 9615 provides for the size requirement of two feet (2) by three feet (3).9
On February 25, 2013, petitioners replied10 requesting, among others, that (1)
petitioner Bishop be given a definite ruling by COMELEC Law Department regarding
the tarpaulin; and (2) pending this opinion and the availment of legal remedies, the
tarpaulin be allowed to remain.11
On February 27, 2013, COMELEC Law Department issued a letter12 ordering the
immediate removal of the tarpaulin; otherwise, it will be constrained to file an election
offense against petitioners. The letter of COMELEC Law Department was silenton the
remedies available to petitioners. The letter provides as follows:
Dear Bishop Navarra:
It has reached this Office that our Election Officer for this City, Atty. Mavil Majarucon,
had already given you notice on February 22, 2013 as regards the election propaganda
material posted on the church vicinity promoting for or against the candidates and partylist groups with the following names and messages, particularly described as follows:
Material size : six feet (6) by ten feet (10)
Description : FULL COLOR TARPAULIN
Image of : SEE ATTACHED PICTURES
Message : CONSCIENCE VOTE (ANTI RH) TEAM
BUHAY; (PRO RH) TEAM PATAY
Location : POSTED ON THE CHURCH VICINITY
OF THE DIOCESE OF BACOLOD CITY
The three (3) day notice expired on February 25, 2013.

Considering that the above-mentioned material is found to be in violation of Comelec

Resolution No. 9615 promulgated on January 15, 2013 particularly on the size (even
with the subsequent division of the said tarpaulin into two), as the lawful size for election
propaganda material is only two feet (2) by three feet (3), please order/cause the
immediate removal of said election propaganda material, otherwise, we shall be
constrained to file an election offense case against you.

A. WHETHER PETITIONERS VIOLATED THE HIERARCHY OF COURTS DOCTRINE

AND JURISPRUDENTIAL RULES GOVERNING APPEALS FROM COMELEC
DECISIONS;

We pray that the Catholic Church will be the first institution to help the Commission on
Elections inensuring the conduct of peaceful, orderly, honest and credible elections.

B. ASSUMING ARGUENDO THAT THE AFOREMENTIONED ORDERS ARE NOT

CONSIDERED JUDGMENTS/FINAL ORDERS/RESOLUTIONS OF THE COMELEC,
WHETHER THERE ARE EXCEPTIONAL CIRCUMSTANCES WHICH WOULD
ALLOW THIS COURT TO TAKE COGNIZANCE OF THE CASE[;]

Thank you and God Bless!

II.

[signed]
ATTY. ESMERALDA AMORA-LADRA
Director IV13

WHETHER IT IS RELEVANT TODETERMINE WHETHER THE TARPAULINS ARE

"POLITICAL ADVERTISEMENT" OR "ELECTION PROPAGANDA" CONSIDERING
THAT PETITIONER IS NOT A POLITICAL CANDIDATE[;]

Concerned about the imminent threatof prosecution for their exercise of free speech,
petitioners initiated this case through this petition for certiorari and prohibition with
application for preliminary injunction and temporary restraining order.14 They question
respondents notice dated February 22, 2013 and letter issued on February 27, 2013.
They pray that: (1) the petition be given due course; (2) a temporary restraining order
(TRO) and/or a writ of preliminary injunction be issued restraining respondents from
further proceeding in enforcing their orders for the removal of the Team Patay tarpaulin;
and (3) after notice and hearing, a decision be rendered declaring the questioned
orders of respondents as unconstitutional and void, and permanently restraining
respondents from enforcing them or any other similar order.15

III.

After due deliberation, this court, on March 5, 2013, issued a temporary restraining
order enjoining respondents from enforcing the assailed notice and letter, and set oral
arguments on March 19, 2013.16

IV.

On March 13, 2013, respondents filed their comment17 arguing that (1) a petition for
certiorari and prohibition under Rule 65 of the Rules of Court filed before this court is
not the proper remedy to question the notice and letter of respondents; and (2) the
tarpaulin is an election propaganda subject to regulation by COMELEC pursuant to its
mandate under Article IX-C, Section 4 of the Constitution. Hence, respondents claim
that the issuances ordering its removal for being oversized are valid and
constitutional.18

WHETHER THE TARPAULINS ARE A FORM OR EXPRESSION (PROTECTED

SPEECH), OR ELECTION PROPAGANDA/POLITICAL ADVERTISEMENT[;]
A. ASSUMING ARGUENDO THAT THE TARPAULINS ARE A FORM OF
EXPRESSION, WHETHER THE COMELEC POSSESSES THE AUTHORITY TO
REGULATE THE SAME[;]
B. WHETHER THIS FORM OF EXPRESSION MAY BE REGULATED[;]

WHETHER THE 22 FEBRUARY 2013 NOTICE/ ORDER BY ELECTION OFFICER

MAJARUCON AND THE 27 FEBRUARY 2013 ORDER BY THE COMELEC LAW
DEPARTMENT VIOLATES THE PRINCIPLE OF SEPARATION OF CHURCH AND
STATE[;] [AND]
V.
WHETHER THE ACTION OF THE PETITIONERS IN POSTING ITS TARPAULIN
VIOLATES THE CONSTITUTIONAL PRINCIPLE OF SEPARATION OF CHURCH
AND STATE.

During the hearing held on March 19, 2013, the parties were directed to file their
respective memoranda within 10 days or by April 1, 2013, taking into consideration the
intervening holidays.19

I
PROCEDURAL ISSUES

The issues, which also served as guide for the oral arguments, are:20

I.A

I.

This courts jurisdiction over COMELEC cases

WHETHER THE 22 FEBRUARY 2013 NOTICE/ORDER BY ELECTION OFFICER

MAJARUCON AND THE 27 FEBRUARY 2013 ORDER BY THE COMELEC LAW
DEPARTMENT ARE CONSIDERED JUDGMENTS/FINAL ORDERS/RESOLUTIONS
OF THE COMELEC WHICH WOULD WARRANT A REVIEW OF THIS COURT VIA
RULE 65 PETITION[;]

Respondents ask that this petition be dismissed on the ground that the notice and letter
are not final orders, decisions, rulings, or judgments of the COMELEC En Banc issued
in the exercise of its adjudicatory powers, reviewable via Rule 64 of the Rules of
Court.21

Rule 64 is not the exclusive remedy for all acts of the COMELEC. Rule 65 is applicable
especially to raise objections relating to a grave abuse of discretion resulting in the
ouster of jurisdiction.22 As a special civil action, there must also be a showing that there
be no plain, speedy, and adequate remedy in the ordinary course of the law.
Respondents contend that the assailed notice and letter are not subject to review by
this court, whose power to review is "limited only to final decisions, rulings and orders
of the COMELEC En Banc rendered in the exercise of its adjudicatory or quasi-judicial
power."23 Instead, respondents claim that the assailed notice and letter are reviewable
only by COMELEC itself pursuant to Article IX-C, Section 2(3) of the Constitution24 on
COMELECs power to decide all questions affecting elections.25 Respondents invoke
the cases of Ambil, Jr. v. COMELEC,26 Repol v. COMELEC,27 Soriano, Jr. v.
COMELEC,28 Blanco v. COMELEC,29 and Cayetano v. COMELEC,30 to illustrate
how judicialintervention is limited to final decisions, orders, rulings and judgments of
the COMELEC En Banc.31
These cases are not applicable.
In Ambil, Jr. v. COMELEC, the losing party in the gubernatorial race of Eastern Samar
filed the election protest.32 At issue was the validity of the promulgation of a COMELEC
Division resolution.33 No motion for reconsideration was filed to raise this issue before
the COMELEC En Banc. This court declared that it did not have jurisdiction and
clarified:
We have interpreted [Section 7, Article IX-A of the Constitution]34 to mean final orders,
rulings and decisionsof the COMELEC rendered in the exercise of its adjudicatory or
quasi-judicial powers." This decision must be a final decision or resolution of the
Comelec en banc, not of a division, certainly not an interlocutory order of a division.The
Supreme Court has no power to review viacertiorari, an interlocutory order or even a
final resolution of a Division of the Commission on Elections.35 (Emphasis in the
original, citations omitted)
However, in the next case cited by respondents, Repol v. COMELEC, this court
provided exceptions to this general rule. Repolwas another election protest case,
involving the mayoralty elections in Pagsanghan, Samar.36 This time, the case was
brought to this court because the COMELEC First Division issued a status quo ante
order against the Regional Trial Court executing its decision pending appeal.37 This
courts ponencia discussed the general rule enunciated in Ambil, Jr. that it cannot take
jurisdiction to review interlocutory orders of a COMELEC Division.38 However,
consistent with ABS-CBN Broadcasting Corporation v. COMELEC,39 it clarified the
exception:
This Court, however, has ruled in the past that this procedural requirement [of filing a
motion for reconsideration] may be glossed over to prevent miscarriage of justice, when
the issue involves the principle of social justice or the protection of labor, when the
decision or resolution sought to be set aside is a nullity, or when the need for relief is
extremely urgent and certiorari is the only adequate and speedy remedy available.40

2) The issue involves a principle of social justice;

3) The issue involves the protection of labor;
4) The decision or resolution sought tobe set aside is a nullity; or
5) The need for relief is extremely urgent and certiorari is the only adequate and speedy
remedy available.
Ultimately, this court took jurisdiction in Repoland decided that the status quo anteorder
issued by the COMELEC Division was unconstitutional.
Respondents also cite Soriano, Jr. v. COMELEC.This case was also an election protest
case involving candidates for the city council of Muntinlupa City.41 Petitioners in
Soriano, Jr.filed before this court a petition for certiorari against an interlocutory order
of the COMELEC First
Division.42 While the petition was pending in this court, the COMELEC First Division
dismissed the main election protest case.43 Sorianoapplied the general rule that only
final orders should be questioned with this court. The ponencia for this court, however,
acknowledged the exceptions to the general rule in ABS-CBN.44
Blanco v. COMELEC, another case cited by respondents, was a disqualification case
of one of the mayoralty candidates of Meycauayan, Bulacan.45 The COMELEC
Second Division ruled that petitioner could not qualify for the 2007 elections due to the
findings in an administrative case that he engaged in vote buying in the 1995
elections.46 No motion for reconsideration was filed before the COMELEC En Banc.
This court, however, took cognizance of this case applying one of the exceptions in
ABS-CBN: The assailed resolution was a nullity.47
Finally, respondents cited Cayetano v. COMELEC, a recent election protest case
involving the mayoralty candidates of Taguig City.48 Petitioner assailed a resolution of
the COMELEC denying her motion for reconsideration to dismiss the election protest
petition for lack of form and substance.49 This court clarified the general rule and
refused to take cognizance of the review of the COMELEC order. While recognizing
the exceptions in ABS-CBN, this court ruled that these exceptions did not apply.50
Ambil, Jr., Repol, Soriano, Jr., Blanco, and Cayetano cited by respondents do not
operate as precedents to oust this court from taking jurisdiction over this case. All these
cases cited involve election protests or disqualification cases filed by the losing
candidate against the winning candidate.
In the present case, petitioners are not candidates seeking for public office. Their
petition is filed to assert their fundamental right to expression.

Based on ABS-CBN, this court could review orders and decisions of COMELEC in
electoral contests despite not being reviewed by the COMELEC En Banc, if:

Furthermore, all these cases cited by respondents pertained to COMELECs exercise

of its adjudicatory or quasi-judicial power. This case pertains to acts of COMELEC in
the implementation of its regulatory powers. When it issued the notice and letter, the
COMELEC was allegedly enforcingelection laws.

1) It will prevent the miscarriage of justice;

I.B

Rule 65, grave abuse of discretion,

Sec. 2. The Commission on Elections shall exercise the following powers and functions:

and limitations on political speech

....

The main subject of thiscase is an alleged constitutional violation: the infringement on

speech and the "chilling effect" caused by respondent COMELECs notice and letter.

(3) Decide, except those involving the right to vote, all questions affecting elections,
including determination of the number and location of polling places, appointment of
election officials and inspectors, and registration of voters.

Petitioners allege that respondents committed grave abuse of discretion amounting to

lack or excess of jurisdiction in issuing the notice51 dated February 22,2013 and
letter52 dated February 27, 2013 ordering the removal of the tarpaulin.53 It is their
position that these infringe on their fundamental right to freedom of expression and
violate the principle of separation of church and state and, thus, are unconstitutional.54
The jurisdiction of this court over the subject matter is determined from the allegations
in the petition. Subject matter jurisdiction is defined as the authority "to hear and
determine cases of the general class to which the proceedings in question belong and
is conferred by the sovereign authority which organizes the court and defines its
powers."55 Definitely, the subject matter in this case is different from the cases cited
by respondents.
Nothing less than the electorates political speech will be affected by the restrictions
imposed by COMELEC. Political speech is motivated by the desire to be heard and
understood, to move people to action. It is concerned with the sovereign right to change
the contours of power whether through the election of representatives in a republican
government or the revision of the basic text of the Constitution. The zeal with which we
protect this kind of speech does not depend on our evaluation of the cogency of the
message. Neither do we assess whether we should protect speech based on the
motives of COMELEC. We evaluate restrictions on freedom of expression from their
effects. We protect both speech and medium because the quality of this freedom in
practice will define the quality of deliberation in our democratic society.

Respondents reliance on this provision is misplaced.

We are not confronted here with the question of whether the COMELEC, in its exercise
of jurisdiction, gravely abused it. We are confronted with the question as to whether the
COMELEC had any jurisdiction at all with its acts threatening imminent criminal action
effectively abridging meaningful political speech.
It is clear that the subject matter of the controversy is the effect of COMELECs notice
and letter on free speech. This does not fall under Article IX-C, Section 2(3) of the
Constitution. The use of the word "affecting" in this provision cannot be interpreted to
mean that COMELEC has the exclusive power to decide any and allquestions that arise
during elections. COMELECs constitutional competencies during elections should not
operate to divest this court of its own jurisdiction.
The more relevant provision for jurisdiction in this case is Article VIII, Section 5(1) of
the Constitution.This provision provides for this courts original jurisdiction over petitions
for certiorari and prohibition. This should be read alongside the expanded jurisdiction
of the court in Article VIII, Section 1 of the Constitution.
Certainly, a breach of the fundamental right of expression by COMELEC is grave abuse
of discretion. Thus, the constitutionality of the notice and letter coming from COMELEC
is within this courts power to review.

COMELECs notice and letter affect preferred speech. Respondents acts are capable
of repetition. Under the conditions in which it was issued and in view of the novelty of
this case,it could result in a "chilling effect" that would affect other citizens who want
their voices heard on issues during the elections. Other citizens who wish to express
their views regarding the election and other related issues may choose not to, for fear
of reprisal or sanction by the COMELEC. Direct resort to this court is allowed to avoid
such proscribed conditions. Rule 65 is also the procedural platform for raising grave
abuse of discretion.

During elections, we have the power and the duty to correct any grave abuse of
discretion or any act tainted with unconstitutionality on the part of any government
branch or instrumentality. This includes actions by the COMELEC. Furthermore, it is
this courts constitutional mandate to protect the people against governments
infringement of their fundamental rights. This constitutional mandate out weighs the
jurisdiction vested with the COMELEC.

Both parties point to constitutional provisions on jurisdiction. For petitioners, it referred

to this courts expanded exercise of certiorari as provided by the Constitution as follows:

I.C

It will, thus, be manifest injustice if the court does not take jurisdiction over this case.

Hierarchy of courts
Judicial power includes the duty of the courts of justice to settle actual controversies
involving rights which are legally demandable and enforceable, and to determine
whether ornot there has been a grave abuse of discretion amounting to lack or excess
of jurisdiction on the part of any branch or instrumentality of the Government.56
(Emphasis supplied)
On the other hand, respondents relied on its constitutional mandate to decide all
questions affectingelections. Article IX-C, Section 2(3) of the Constitution, provides:

This brings us to the issue of whether petitioners violated the doctrine of hierarchy of
courts in directly filing their petition before this court.
Respondents contend that petitioners failure to file the proper suit with a lower court of
concurrent jurisdiction is sufficient ground for the dismissal of their petition.57 They add
that observation of the hierarchy of courts is compulsory, citing Heirs of Bertuldo Hinog

v. Melicor.58 While respondents claim that while there are exceptions to the general
rule on hierarchy of courts, none of these are present in this case.59

considering their decisions could still be appealed before the higher courts, such as the
Court of Appeals.

On the other hand, petitioners cite Fortich v. Corona60 on this courts discretionary
power to take cognizance of a petition filed directly to it if warranted by "compelling
reasons, or [by] the nature and importance of the issues raised. . . ."61 Petitioners
submit that there are "exceptional and compelling reasons to justify a direct resort [with]
this Court."62

The Court of Appeals is primarily designed as an appellate court that reviews the
determination of facts and law made by the trial courts. It is collegiate in nature. This
nature ensures more standpoints in the review of the actions of the trial court. But the
Court of Appeals also has original jurisdiction over most special civil actions. Unlike the
trial courts, its writs can have a nationwide scope. It is competent to determine facts
and, ideally, should act on constitutional issues thatmay not necessarily be novel unless
there are factual questions to determine.

In Baez, Jr. v. Concepcion,63 we explained the necessity of the application of the

hierarchy of courts:
The Court must enjoin the observance of the policy on the hierarchy of courts, and now
affirms that the policy is not to be ignored without serious consequences. The strictness
of the policy is designed to shield the Court from having to deal with causes that are
also well within the competence of the lower courts, and thus leave time to the Court to
deal with the more fundamental and more essential tasks that the Constitution has
assigned to it. The Court may act on petitions for the extraordinary writs of certiorari,
prohibition and mandamus only when absolutely necessary or when serious and
important reasons exist to justify an exception to the policy.64
In Baez, we also elaborated on the reasons why lower courts are allowed to issue
writs of certiorari, prohibition, and mandamus, citing Vergara v. Suelto:65
The Supreme Court is a court of lastresort, and must so remain if it is to satisfactorily
perform the functions assigned to it by the fundamental charter and immemorial
tradition. It cannot and should not be burdened with the task of dealing with causes in
the first instance. Its original jurisdiction to issue the so-called extraordinary writs should
be exercised only where absolutely necessary or where serious and important reasons
exist therefore. Hence, that jurisdiction should generally be exercised relative to actions
or proceedings before the Court of Appeals, or before constitutional or other tribunals,
bodies or agencies whose acts for some reason or another are not controllable by the
Court of Appeals. Where the issuance of an extraordinary writ is also within the
competence of the Court of Appeals or a Regional Trial Court, it is in either of these
courts that the specific action for the writs procurement must be presented. This is and
should continue to be the policy in this regard, a policy that courts and lawyers must
strictly observe.66 (Emphasis omitted)
The doctrine that requires respect for the hierarchy of courts was created by this court
to ensure that every level of the judiciary performs its designated roles in an effective
and efficient manner. Trial courts do not only determine the facts from the evaluation of
the evidence presented before them. They are likewise competent to determine issues
of law which may include the validity of an ordinance, statute, or even an executive
issuance in relation to the Constitution.67 To effectively perform these functions, they
are territorially organized into regions and then into branches. Their writs generally
reach within those territorial boundaries. Necessarily, they mostly perform the allimportant task of inferring the facts from the evidence as these are physically presented
before them. In many instances, the facts occur within their territorial jurisdiction, which
properly present the actual case that makes ripe a determination of the constitutionality
of such action. The consequences, of course, would be national in scope. There are,
however, some cases where resort to courts at their level would not be practical

This court, on the other hand, leads the judiciary by breaking new ground or further
reiterating in the light of new circumstances or in the light of some confusions of
bench or bar existing precedents. Rather than a court of first instance or as a
repetition of the actions of the Court of Appeals, this court promulgates these doctrinal
devices in order that it truly performs that role.
In other words, the Supreme Courts role to interpret the Constitution and act in order
to protect constitutional rights when these become exigent should not be emasculated
by the doctrine in respect of the hierarchy of courts. That has never been the purpose
of such doctrine.
Thus, the doctrine of hierarchy of courts is not an iron-clad rule.68 This court has "full
discretionary power to take cognizance and assume jurisdiction [over] special civil
actions for certiorari . . .filed directly with it for exceptionally compelling reasons69 or if
warranted by the nature of the issues clearly and specifically raised in the petition."70
As correctly pointed out by petitioners,71 we have provided exceptions to this doctrine:
First, a direct resort to this court is allowed when there are genuine issues of
constitutionality that must be addressed at the most immediate time. A direct resort to
this court includes availing of the remedies of certiorari and prohibition toassail the
constitutionality of actions of both legislative and executive branches of the
government.72
In this case, the assailed issuances of respondents prejudice not only petitioners right
to freedom of expression in the present case, but also of others in future similar cases.
The case before this court involves an active effort on the part of the electorate to reform
the political landscape. This has become a rare occasion when private citizens actively
engage the public in political discourse. To quote an eminent political theorist:
[T]he theory of freedom of expression involves more than a technique for arriving at
better social judgments through democratic procedures. It comprehends a vision of
society, a faith and a whole way of life. The theory grew out of an age that was
awakened and invigorated by the idea of new society in which man's mind was free,
his fate determined by his own powers of reason, and his prospects of creating a
rational and enlightened civilization virtually unlimited. It is put forward as a prescription
for attaining a creative, progressive, exciting and intellectually robust community. It
contemplates a mode of life that, through encouraging toleration, skepticism, reason
and initiative, will allow man to realize his full potentialities.It spurns the alternative of a
society that is tyrannical, conformist, irrational and stagnant.73

In a democracy, the citizens right tofreely participate in the exchange of ideas in

furtherance of political decision-making is recognized. It deserves the highest
protection the courts may provide, as public participation in nation-building isa
fundamental principle in our Constitution. As such, their right to engage in free
expression of ideas must be given immediate protection by this court.
A second exception is when the issuesinvolved are of transcendental importance.74 In
these cases, the imminence and clarity of the threat to fundamental constitutional rights
outweigh the necessity for prudence. The doctrine relating to constitutional issues of
transcendental importance prevents courts from the paralysis of procedural niceties
when clearly faced with the need for substantial protection.
In the case before this court, there is a clear threat to the paramount right of freedom
of speech and freedom of expression which warrants invocation of relief from this court.
The principles laid down in this decision will likely influence the discourse of freedom of
speech in the future, especially in the context of elections. The right to suffrage not only
includes the right to vote for ones chosen candidate, but also the right to vocalize that
choice to the public in general, in the hope of influencing their votes. It may be said that
in an election year, the right to vote necessarily includes the right to free speech and
expression. The protection of these fundamental constitutional rights, therefore, allows
for the immediate resort to this court.
Third, cases of first impression75 warrant a direct resort to this court. In cases of first
impression, no jurisprudence yet exists that will guide the lower courts on this matter.
In Government of the United States v. Purganan,76 this court took cognizance of the
case as a matter of first impression that may guide the lower courts:
In the interest of justice and to settle once and for all the important issue of bail in
extradition proceedings, we deem it best to take cognizance of the present case. Such
proceedings constitute a matter of first impression over which there is, as yet, no local
jurisprudence to guide lower courts.77
This court finds that this is indeed a case of first impression involving as it does the
issue of whether the right of suffrage includes the right of freedom of expression. This
is a question which this court has yet to provide substantial answers to, through
jurisprudence. Thus, direct resort to this court is allowed.
Fourth, the constitutional issues raisedare better decided by this court. In Drilon v.
Lim,78 this court held that:
. . . it will be prudent for such courts, if only out of a becoming modesty, to defer to the
higher judgmentof this Court in the consideration of its validity, which is better
determined after a thorough deliberation by a collegiate body and with the concurrence
of the majority of those who participated in its discussion.79 (Citation omitted)

future cases may be filed that necessitate urgency in its resolution. Exigency in certain
situations would qualify as an exception for direct resort to this court.
Sixth, the filed petition reviews the act of a constitutional organ. COMELEC is a
constitutional body. In Albano v. Arranz,80 cited by petitioners, this court held that "[i]t
is easy to realize the chaos that would ensue if the Court of First Instance ofeach and
every province were [to] arrogate itself the power to disregard, suspend, or contradict
any order of the Commission on Elections: that constitutional body would be speedily
reduced to impotence."81
In this case, if petitioners sought to annul the actions of COMELEC through pursuing
remedies with the lower courts, any ruling on their part would not have been binding for
other citizens whom respondents may place in the same situation. Besides, thiscourt
affords great respect to the Constitution and the powers and duties imposed upon
COMELEC. Hence, a ruling by this court would be in the best interest of respondents,
in order that their actions may be guided accordingly in the future.
Seventh, petitioners rightly claim that they had no other plain, speedy, and adequate
remedy in the ordinary course of law that could free them from the injurious effects of
respondents acts in violation of their right to freedom of expression.
In this case, the repercussions of the assailed issuances on this basic right constitute
an exceptionally compelling reason to justify the direct resort to this court. The lack of
other sufficient remedies in the course of law alone is sufficient ground to allow direct
resort to this court.
Eighth, the petition includes questionsthat are "dictated by public welfare and the
advancement of public policy, or demanded by the broader interest of justice, or the
orders complained of were found to be patent nullities, or the appeal was consideredas
clearly an inappropriate remedy."82 In the past, questions similar to these which this
court ruled on immediately despite the doctrine of hierarchy of courts included citizens
right to bear arms,83 government contracts involving modernization of voters
registration lists,84 and the status and existence of a public office.85
This case also poses a question of similar, if not greater import. Hence, a direct action
to this court is permitted.
It is not, however, necessary that all of these exceptions must occur at the same time
to justify a direct resort to this court. While generally, the hierarchy of courts is
respected, the present case falls under the recognized exceptions and, as such, may
be resolved by this court directly.
I.D
The concept of a political question

In this case, it is this court, with its constitutionally enshrined judicial power, that can
rule with finality on whether COMELEC committed grave abuse of discretion or
performed acts contrary to the Constitution through the assailed issuances.
Fifth, the time element presented in this case cannot be ignored. This case was filed
during the 2013 election period. Although the elections have already been concluded,

Respondents argue further that the size limitation and its reasonableness is a political
question, hence not within the ambit of this courts power of review. They cite Justice
Vitugs separate opinion in Osmea v. COMELEC86 to support their position:
It might be worth mentioning that Section 26, Article II, of the Constitution also states
that the "State shall guarantee equal access to opportunities for public service, and

prohibit political dynasties as may be defined by law." I see neither Article IX (C)(4) nor
Section 26, Article II, of the Constitution to be all that adversarial or irreconcilably
inconsistent with the right of free expression. In any event, the latter, being one of
general application, must yield to the specific demands of the Constitution. The freedom
of expression concededly holds, it is true, a vantage point in hierarchy of
constitutionally-enshrined rights but, like all fundamental rights, it is not without
limitations.

cannot rush to invalidate a law or rule. Prudence dictates that we are careful not to veto
political acts unless we can craft doctrine narrowly tailored to the circumstances of the
case.

The case is not about a fight between the "rich" and the "poor" or between the
"powerful" and the "weak" in our society but it is to me a genuine attempt on the part of
Congress and the Commission on Elections to ensure that all candidates are given an
equal chance to media coverage and thereby be equally perceived as giving real life to
the candidates right of free expression rather than being viewed as an undue restriction
of that freedom. The wisdom in the enactment of the law, i.e., that which the legislature
deems to be best in giving life to the Constitutional mandate, is not for the Court to
question; it is a matter that lies beyond the normal prerogatives of the Court to pass
upon.87

A political question arises in constitutional issues relating to the powers or competence

of different agencies and departments of the executive or those of the legislature. The
political question doctrine is used as a defense when the petition asks this court to
nullify certain acts that are exclusively within the domain of their respective
competencies, as provided by the Constitution or the law. In such situation,
presumptively, this court should act with deference. It will decline to void an act unless
the exercise of that power was so capricious and arbitrary so as to amount to grave
abuse of discretion.

This separate opinion is cogent for the purpose it was said. But it is not in point in this
case.
The present petition does not involve a dispute between the rich and poor, or the
powerful and weak, on their equal opportunities for media coverage of candidates and
their right to freedom of expression. This case concerns the right of petitioners, who are
non-candidates, to post the tarpaulin in their private property, asan exercise of their
right of free expression. Despite the invocation of the political question doctrine by
respondents, this court is not proscribed from deciding on the merits of this case.
In Taada v. Cuenco,88 this court previously elaborated on the concept of what
constitutes a political question:
What is generally meant, when it is said that a question is political, and not judicial, is
that it is a matter which is to be exercised by the people in their primary political
capacity, or that it has been specifically delegated to some other department or
particular officer of the government, withdiscretionary power to act.89 (Emphasis
omitted)
It is not for this court to rehearse and re-enact political debates on what the text of the
law should be. In political forums, particularly the legislature, the creation of the textof
the law is based on a general discussion of factual circumstances, broadly construed
in order to allow for general application by the executive branch. Thus, the creation of
the law is not limited by particular and specific facts that affect the rights of certain
individuals, per se.
Courts, on the other hand, rule on adversarial positions based on existing facts
established on a specific case-to-case basis, where parties affected by the legal
provision seek the courts understanding of the law.
The complementary nature of the political and judicial branches of government is
essential in order to ensure that the rights of the general public are upheld at all times.
In order to preserve this balance, branches of government must afford due respectand
deference for the duties and functions constitutionally delegated to the other. Courts

The case before this court does not call for the exercise of prudence or modesty. There
is no political question. It can be acted upon by this court through the expanded
jurisdiction granted to this court through Article VIII, Section 1 of the Constitution.

The concept of a political question, however, never precludes judicial review when the
act of a constitutional organ infringes upon a fundamental individual or collective right.
Even assuming arguendo that the COMELEC did have the discretion to choose the
manner of regulation of the tarpaulin in question, it cannot do so by abridging the
fundamental right to expression.
Marcos v. Manglapus90 limited the use of the political question doctrine:
When political questions are involved, the Constitution limits the determination to
whether or not there has been a grave abuse of discretion amounting to lack or excess
of jurisdiction on the part of the official whose action is being questioned. If grave abuse
is not established, the Court will not substitute its judgment for that of the official
concerned and decide a matter which by its nature or by law is for the latter alone to
decide.91
How this court has chosen to address the political question doctrine has undergone an
evolution since the timethat it had been first invoked in Marcos v. Manglapus.
Increasingly, this court has taken the historical and social context of the case and the
relevance of pronouncements of carefully and narrowly tailored constitutional doctrines.
This trend was followed in cases such as Daza v. Singson92 and Coseteng v. Mitra
Jr.93
Daza and Coseteng involved a question as to the application of Article VI, Section 18
of the 1987 Constitution involving the removal of petitioners from the Commission on
Appointments. In times past, this would have involved a quint essentially political
question as it related to the dominance of political parties in Congress. However, in
these cases, this court exercised its power of judicial review noting that the requirement
of interpreting the constitutional provision involved the legality and not the wisdom of a
manner by which a constitutional duty or power was exercised. This approach was
again reiterated in Defensor Santiago v. Guingona, Jr.94
In Integrated Bar of the Philippines v. Zamora,95 this court declared again that the
possible existence ofa political question did not bar an examination of whether the
exercise of discretion was done with grave abuse of discretion. In that case, this court

ruled on the question of whether there was grave abuse of discretion in the Presidents
use of his power to call out the armed forces to prevent and suppress lawless violence.
In Estrada v. Desierto,96 this court ruled that the legal question as to whether a former
President resigned was not a political question even if the consequences would be to
ascertain the political legitimacy of a successor President.
Many constitutional cases arise from political crises. The actors in such crises may use
the resolution of constitutional issues as leverage. But the expanded jurisdiction of this
court now mandates a duty for it to exercise its power of judicial review expanding on
principles that may avert catastrophe or resolve social conflict.
This courts understanding of the political question has not been static or unbending. In
Llamas v. Executive Secretary Oscar Orbos,97 this court held:
While it is true that courts cannot inquire into the manner in which the President's
discretionary powers are exercised or into the wisdom for its exercise, it is also a settled
rule that when the issue involved concerns the validity of such discretionary powers or
whether said powers are within the limits prescribed by the Constitution, We will not
decline to exercise our power of judicial review. And such review does not constitute a
modification or correction of the act of the President, nor does it constitute interference
with the functions of the President.98
The concept of judicial power in relation to the concept of the political question was
discussed most extensively in Francisco v. HRET.99 In this case, the House of
Representatives arguedthat the question of the validity of the second impeachment
complaint that was filed against former Chief Justice Hilario Davide was a political
question beyond the ambit of this court. Former Chief Justice Reynato Puno elaborated
on this concept in his concurring and dissenting opinion:
To be sure, the force to impugn the jurisdiction of this Court becomes more feeble in
light of the new Constitution which expanded the definition of judicial power as including
"the duty of the courts of justice to settle actual controversies involving rights which are
legally demandable and enforceable, and to determine whether or not there has been
a grave abuse of discretion amounting to lack or excess of jurisdiction on the part of
any branch or instrumentality of the Government." As well observed by retired Justice
Isagani Cruz, this expanded definition of judicial power considerably constricted the
scope of political question. He opined that the language luminously suggests that this
duty (and power) is available even against the executive and legislative departments
including the President and the Congress, in the exercise of their discretionary
powers.100 (Emphasis in the original, citations omitted)
Francisco also provides the cases which show the evolution of the political question,
as applied in the following cases:
In Marcos v. Manglapus, this Court, speaking through Madame Justice Irene Cortes,
held: The present Constitution limits resort to the political question doctrine and
broadens the scope of judicial inquiry into areas which the Court,under previous
constitutions, would have normally left to the political departments to decide. x x x
In Bengzon v. Senate Blue Ribbon Committee, through Justice Teodoro Padilla, this
Court declared:

The "allocation of constitutional boundaries" is a task that this Court must perform under
the Constitution. Moreover, as held in a recent case, "(t)he political question doctrine
neither interposes an obstacle to judicial determination of the rival claims. The
jurisdiction to delimit constitutional boundaries has been given to this Court. It cannot
abdicate that obligation mandated by the 1987 Constitution, although said provision by
no means does away with the applicability of the principle in appropriate cases."
(Emphasis and italics supplied)
And in Daza v. Singson, speaking through Justice Isagani Cruz, this Court ruled:
In the case now before us, the jurisdictional objection becomes even less tenable and
decisive. The reason is that, even if we were to assume that the issue presented before
us was political in nature, we would still not be precluded from resolving it under the
expanded jurisdiction conferred upon us that now covers, in proper cases, even the
political question.x x x (Emphasis and italics supplied.)
....
In our jurisdiction, the determination of whether an issue involves a truly political and
non-justiciable question lies in the answer to the question of whether there are
constitutionally imposed limits on powers or functions conferred upon political bodies.
If there are, then our courts are duty-bound to examine whether the branch or
instrumentality of the government properly acted within such limits.101 (Citations
omitted)
As stated in Francisco, a political question will not be considered justiciable if there are
no constitutionally imposed limits on powers or functions conferred upon political
bodies. Hence, the existence of constitutionally imposed limits justifies subjecting the
official actions of the body to the scrutiny and review of this court.
In this case, the Bill of Rights gives the utmost deference to the right to free speech.
Any instance that this right may be abridged demands judicial scrutiny. It does not fall
squarely into any doubt that a political question brings.
I.E
Exhaustion of administrative remedies
Respondents allege that petitioners violated the principle of exhaustion of
administrative remedies. Respondents insist that petitioners should have first brought
the matter to the COMELEC En Banc or any of its divisions.102
Respondents point out that petitioners failed to comply with the requirement in Rule 65
that "there is no appeal, or any plain, speedy, and adequate remedy in the ordinary
course of law."103 They add that the proper venue to assail the validity of the assailed
issuances was in the course of an administrative hearing to be conducted by
COMELEC.104 In the event that an election offense is filed against petitioners for
posting the tarpaulin, they claim that petitioners should resort to the remedies
prescribed in Rule 34 of the COMELEC Rules of Procedure.105
The argument on exhaustion of administrative remedies is not proper in this case.

Despite the alleged non-exhaustion of administrative remedies, it is clear that the

controversy is already ripe for adjudication. Ripeness is the "prerequisite that
something had by then been accomplished or performed by either branch [or in this
case, organ of government] before a court may come into the picture."106
Petitioners exercise of their rightto speech, given the message and their medium, had
understandable relevance especially during the elections. COMELECs letter
threatening the filing of the election offense against petitioners is already an actionable
infringement of this right. The impending threat of criminal litigation is enough to curtail
petitioners speech.
In the context of this case, exhaustion of their administrative remedies as COMELEC
suggested in their pleadings prolongs the violation of their freedom of speech.
Political speech enjoys preferred protection within our constitutional order. In Chavez
v. Gonzales,107 Justice Carpio in a separate opinion emphasized: "[i]f everthere is a
hierarchy of protected expressions, political expression would occupy the highest rank,
and among different kinds of political expression, the subject of fair and honest
elections would be at the top."108 Sovereignty resides in the people.109 Political
speech is a direct exercise of the sovereignty. The principle of exhaustion of
administrative remedies yields in order to protect this fundamental right.
Even assuming that the principle of exhaustion of administrative remedies is applicable,
the current controversy is within the exceptions to the principle. In Chua v. Ang,110 this
court held:
On the other hand, prior exhaustion of administrative remedies may be dispensed with
and judicial action may be validly resorted to immediately: (a) when there is a violation
of due process; (b) when the issue involved is purely a legal question; (c) when the
administrative action is patently illegal amounting to lack or excess of jurisdiction; (d)
when there is estoppel on the part ofthe administrative agency concerned; (e) when
there is irreparable injury; (f) when the respondent is a department secretary whose
acts as analter ego of the President bear the implied and assumed approval of the
latter; (g) when to require exhaustion of administrative remedies would be
unreasonable; (h) when it would amount to a nullification of a claim; (i) when the subject
matter is a private land in land case proceedings; (j) whenthe rule does not provide a
plain, speedy and adequate remedy; or (k) when there are circumstances indicating the
urgency of judicial intervention."111 (Emphasis supplied, citation omitted)
The circumstances emphasized are squarely applicable with the present case. First,
petitioners allegethat the assailed issuances violated their right to freedom of
expression and the principle of separation of church and state. This is a purely legal
question. Second, the circumstances of the present case indicate the urgency of judicial
intervention considering the issue then on the RH Law as well as the upcoming
elections. Thus, to require the exhaustion of administrative remedies in this case would
be unreasonable.
Time and again, we have held that this court "has the power to relax or suspend the
rules or to except a case from their operation when compelling reasons so warrant, or
whenthe purpose of justice requires it, [and when] [w]hat constitutes [as] good and
sufficient cause that will merit suspension of the rules is discretionary upon the

court".112 Certainly, this case of first impression where COMELEC has threatenedto
prosecute private parties who seek to participate in the elections by calling attention to
issues they want debated by the publicin the manner they feel would be effective is one
of those cases.
II
SUBSTANTIVE ISSUES
II.A
COMELEC had no legal basis to regulate expressions made by private citizens
Respondents cite the Constitution, laws, and jurisprudence to support their position that
they had the power to regulate the tarpaulin.113 However, all of these provisions
pertain to candidates and political parties. Petitioners are not candidates. Neither do
theybelong to any political party. COMELEC does not have the authority to regulate the
enjoyment of the preferred right to freedom of expression exercised by a non-candidate
in this case.
II.A.1
First, respondents cite Article IX-C, Section 4 of the Constitution, which provides:
Section 4. The Commission may,during the election period, supervise or regulate the
enjoyment or utilization of all franchises or permits for the operation of transportation
and other public utilities, media of communication or information, all grants, special
privileges, or concessions granted by the Government or any subdivision, agency, or
instrumentality thereof, including any government-owned or controlled corporation or
its subsidiary. Such supervision or regulation shall aim to ensure equal opportunity,
time, and space, and the right to reply, including reasonable, equal rates therefor, for
public information campaigns and forums among candidates in connection with the
objective of holding free, orderly, honest, peaceful, and credible elections.114
(Emphasis supplied)
Sanidad v. COMELEC115 involved the rules promulgated by COMELEC during the
plebiscite for the creation of the Cordillera Autonomous Region.116 Columnist Pablito
V. Sanidad questioned the provision prohibiting journalists from covering plebiscite
issues on the day before and on plebiscite day.117 Sanidad argued that the prohibition
was a violation of the "constitutional guarantees of the freedom of expression and of
the press. . . ."118 We held that the "evil sought to be prevented by this provision is the
possibility that a franchise holder may favor or give any undue advantage to a candidate
in terms of advertising space or radio or television time."119 This court found that
"[m]edia practitioners exercising their freedom of expression during plebiscite periods
are neither the franchise holders nor the candidates[,]"120 thus, their right to expression
during this period may not be regulated by COMELEC.121
Similar to the media, petitioners in the case at bar are neither franchise holders nor
candidates. II.A.2
Respondents likewise cite Article IX-C, Section 2(7) of the Constitution as follows:122
Sec. 2. The Commission on Elections shall exercise the following powers and functions:

....
(7) Recommend to the Congress effective measures to minimize election spending,
including limitation of places where propaganda materials shall be posted, and to
prevent and penalize all forms of election frauds, offenses, malpractices, and nuisance
candidates. (Emphasis supplied) Based on the enumeration made on actsthat may be
penalized, it will be inferred that this provision only affects candidates.
Petitioners assail the "Notice to Remove Campaign Materials" issued by COMELEC.
This was followed bythe assailed letter regarding the "election propaganda material
posted on the church vicinity promoting for or against the candidates and party-list
groups. . . ."123
Section 9 of the Fair Election Act124 on the posting of campaign materials only
mentions "parties" and "candidates":
Sec. 9. Posting of Campaign Materials. - The COMELEC may authorize political parties
and party-list groups to erect common poster areas for their candidates in not more
than ten (10) public places such as plazas, markets, barangay centers and the like,
wherein candidates can post, display or exhibit election propaganda: Provided, That
the size ofthe poster areas shall not exceed twelve (12) by sixteen (16) feet or its
equivalent. Independent candidates with no political parties may likewise be authorized
to erect common poster areas in not more than ten (10) public places, the size of which
shall not exceed four (4) by six (6) feet or its equivalent. Candidates may post any lawful
propaganda material in private places with the consent of the owner thereof, and in
public places or property which shall be allocated equitably and impartially among the
candidates. (Emphasis supplied)
Similarly, Section 17 of COMELEC Resolution No. 9615, the rules and regulations
implementing the Fair Election Act, provides as follows:
SECTION 17. Posting of Campaign Materials. - Parties and candidates may post any
lawful campaign material in:
a. Authorized common poster areasin public places subject to the requirements and/or
limitations set forth in the next following section; and
b. Private places provided it has the consent of the owner thereof.
The posting of campaign materials in public places outside of the designated common
poster areas and those enumerated under Section 7 (g) of these Rules and the like is
prohibited. Persons posting the same shall be liable together with the candidates and
other persons who caused the posting. It will be presumed that the candidates and
parties caused the posting of campaign materials outside the common poster areas if
they do not remove the same within three (3) days from notice which shall be issued
by the Election Officer of the city or municipality where the unlawful election
propaganda are posted or displayed.
Members of the PNP and other law enforcement agencies called upon by the Election
Officeror other officials of the COMELEC shall apprehend the violators caught in the
act, and file the appropriate charges against them. (Emphasis supplied)

Respondents considered the tarpaulin as a campaign material in their issuances. The

above provisions regulating the posting of campaign materials only apply to candidates
and political parties, and petitioners are neither of the two.
Section 3 of Republic Act No. 9006on "Lawful Election Propaganda" also states that
these are "allowed for all registered political parties, national, regional, sectoral parties
or organizations participating under the party-list elections and for all bona fide
candidates seeking national and local elective positions subject to the limitation on
authorized expenses of candidates and political parties. . . ." Section 6 of COMELEC
Resolution No. 9615 provides for a similar wording. These provisions show that election
propaganda refers to matter done by or on behalf of and in coordination with candidates
and political parties. Some level of coordination with the candidates and political parties
for whom the election propaganda are released would ensure that these candidates
and political parties maintain within the authorized expenses limitation.
The tarpaulin was not paid for byany candidate or political party.125 There was no
allegation that petitioners coordinated with any of the persons named in the tarpaulin
regarding its posting. On the other hand, petitioners posted the tarpaulin as part of their
advocacy against the RH Law. Respondents also cite National Press Club v.
COMELEC126 in arguing that its regulatory power under the Constitution, to some
extent, set a limit on the right to free speech during election period.127
National Press Club involved the prohibition on the sale and donation of space and time
for political advertisements, limiting political advertisements to COMELEC-designated
space and time. This case was brought by representatives of mass media and two
candidates for office in the 1992 elections. They argued that the prohibition on the sale
and donation of space and time for political advertisements is tantamount to censorship,
which necessarily infringes on the freedom of speech of the candidates.128
This court upheld the constitutionality of the COMELEC prohibition in National Press
Club. However, this case does not apply as most of the petitioners were electoral
candidates, unlike petitioners in the instant case. Moreover, the subject matter of
National Press Club, Section 11(b) of Republic Act No. 6646,129 only refers to a
particular kind of media such as newspapers, radio broadcasting, or television.130
Justice Feliciano emphasized that the provision did not infringe upon the right of
reporters or broadcasters to air their commentaries and opinions regarding the
candidates, their qualifications, and program for government. Compared to
Sanidadwherein the columnists lost their ability to give their commentary on the issues
involving the plebiscite, National Press Clubdoes not involve the same infringement.
In the case at bar, petitioners lost their ability to give a commentary on the candidates
for the 2013 national elections because of the COMELEC notice and letter. It was not
merelya regulation on the campaigns of candidates vying for public office. Thus,
National Press Clubdoes not apply to this case.
Finally, Section 79 of Batas Pambansa Blg. 881, otherwise known as the Omnibus
Election Code, defines an"election campaign" as follows:
....

(b) The term "election campaign" or "partisan political activity" refers to an act designed
to promote the election or defeat of a particular candidate or candidates to a public
office which shall include:

II.B.1

(1) Forming organizations, associations, clubs, committees or other groups of persons

for the purpose of soliciting votes and/or undertaking any campaign for or against a
candidate;

Section 4. No law shall be passed abridging the freedom of speech, of expression, or

of the press, or the right of the people peaceably to assemble and petition the
government for redress of grievances.132

(2) Holding political caucuses, conferences, meetings, rallies, parades, or other similar
assemblies, for the purpose of soliciting votes and/or undertaking any campaign or
propaganda for or against a candidate;

No law. . .

(3) Making speeches, announcements or commentaries, or holding interviews for or

against the election of any candidate for public office;
(4) Publishing or distributing campaign literature or materials designed to support or
oppose the election of any candidate; or
(5) Directly or indirectly soliciting votes, pledges or support for or against a candidate.
The foregoing enumerated acts ifperformed for the purpose of enhancing the chances
of aspirants for nomination for candidacy to a public office by a political party,
aggroupment, or coalition of parties shall not be considered as election campaign or
partisan election activity. Public expressions or opinions or discussions of probable
issues in a forthcoming electionor on attributes of or criticisms against probable
candidates proposed to be nominated in a forthcoming political party convention shall
not be construed as part of any election campaign or partisan political activity
contemplated under this Article. (Emphasis supplied)
True, there is no mention whether election campaign is limited only to the candidates
and political parties themselves. The focus of the definition is that the act must be
"designed to promote the election or defeat of a particular candidate or candidates to a
public office."

Fundamental to the consideration of this issue is Article III, Section 4 of the Constitution:

While it is true that the present petition assails not a law but an opinion by the
COMELEC Law Department, this court has applied Article III, Section 4 of the
Constitution even to governmental acts.
In Primicias v. Fugoso,133 respondent Mayor applied by analogy Section 1119 of the
Revised Ordinances of 1927 of Manila for the public meeting and assembly organized
by petitioner Primicias.134 Section 1119 requires a Mayors permit for the use of streets
and public places for purposes such as athletic games, sports, or celebration of national
holidays.135 What was questioned was not a law but the Mayors refusal to issue a
permit for the holding of petitioners public meeting.136 Nevertheless, this court
recognized the constitutional right to freedom of speech, to peaceful assembly and to
petition for redress of grievances, albeit not absolute,137 and the petition for
mandamus to compel respondent Mayor to issue the permit was granted.138
In ABS-CBN v. COMELEC, what was assailed was not a law but COMELEC En Banc
Resolution No. 98-1419 where the COMELEC resolved to approve the issuance of a
restraining order to stop ABS-CBN from conducting exit surveys.139 The right to
freedom of expression was similarly upheld in this case and, consequently, the assailed
resolution was nullified and set aside.140
. . . shall be passed abridging. . .

In this case, the tarpaulin contains speech on a matter of public concern, that is, a
statement of either appreciation or criticism on votes made in the passing of the RH
law. Thus, petitioners invoke their right to freedom of expression.

All regulations will have an impact directly or indirectly on expression. The prohibition
against the abridgment of speech should not mean an absolute prohibition against
regulation. The primary and incidental burden on speech must be weighed against a
compelling state interest clearly allowed in the Constitution. The test depends on the
relevant theory of speech implicit in the kind of society framed by our Constitution.

II.B

. . . of expression. . .

The violation of the constitutional right

Our Constitution has also explicitly included the freedom of expression, separate and
in addition to the freedom of speech and of the press provided in the US Constitution.
The word "expression" was added in the 1987 Constitution by Commissioner Brocka
for having a wider scope:

to freedom of speech and expression

Petitioners contend that the assailed notice and letter for the removal of the tarpaulin
violate their fundamental right to freedom of expression.
On the other hand, respondents contend that the tarpaulin is an election propaganda
subject to their regulation pursuant to their mandate under Article IX-C, Section 4 of the
Constitution. Thus, the assailed notice and letter ordering itsremoval for being
oversized are valid and constitutional.131

MR. BROCKA: This is a very minor amendment, Mr. Presiding Officer. On Section 9,
page 2, line 29, it says: "No law shall be passed abridging the freedom of speech." I
would like to recommend to the Committee the change of the word "speech" to
EXPRESSION; or if not, add the words AND EXPRESSION after the word "speech,"
because it is more expansive, it has a wider scope, and it would refer to means of
expression other than speech.

THE PRESIDING OFFICER (Mr.Bengzon): What does the Committee say?

impose it on the petitioners is to deny them the right not to speak when their religion
bids them to be silent. This coercion of conscience has no place in the free society.

FR. BERNAS: "Expression" is more broad than speech. We accept it.

MR. BROCKA: Thank you.
THE PRESIDING OFFICER (Mr.Bengzon): Is it accepted?
FR. BERNAS: Yes.
THE PRESIDING OFFICER (Mr.Bengzon): Is there any objection? (Silence) The Chair
hears none; the amendment is approved.
FR. BERNAS: So, that provision will now read: "No law shall be passed abridging the
freedom of speech, expression or of the press . . . ."141 Speech may be said to be
inextricably linked to freedom itself as "[t]he right to think is the beginning of freedom,
and speech must be protected from the government because speech is the beginning
of thought."142
II.B.2
Communication is an essential outcome of protected speech.143 Communication
exists when "(1) a speaker, seeking to signal others, uses conventional actions
because he orshe reasonably believes that such actions will be taken by the audience
in the manner intended; and (2) the audience so takes the actions."144 "[I]n
communicative action[,] the hearer may respond to the claims by . . . either accepting
the speech acts claims or opposing them with criticism or requests for justification."145

The democratic system provides for the accommodation of diverse ideas, including the
unconventional and even the bizarre or eccentric. The will of the majority prevails, but
it cannot regiment thought by prescribing the recitation by rote of its opinions or
proscribing the assertion of unorthodox or unpopular views as inthis case. The
conscientious objections of the petitioners, no less than the impatience of those who
disagree with them, are protected by the Constitution. The State cannot make the
individual speak when the soul within rebels.151
Even before freedom "of expression" was included in Article III, Section 4 of the present
Constitution,this court has applied its precedent version to expressions other than
verbal utterances.
In the 1985 case of Gonzalez v. Chairman Katigbak,152 petitioners objected to the
classification of the motion picture "Kapit sa Patalim" as "For Adults Only." They
contend that the classification "is without legal and factual basis and is exercised as
impermissible restraint of artistic expression."153 This court recognized that "[m]otion
pictures are important both as a medium for the communication of ideas and the
expression of the artistic impulse."154 It adds that "every writer,actor, or producer, no
matter what medium of expression he may use, should be freed from the censor."155
This court found that "[the Boards] perception of what constitutes obscenity appears to
be unduly restrictive."156 However, the petition was dismissed solely on the ground
that there were not enough votes for a ruling of grave abuse of discretion in the
classification made by the Board.157
II.B.3

Speech is not limited to vocal communication. "[C]onduct is treated as a form of speech

sometimes referred to as symbolic speech[,]"146 such that "when speech and
nonspeech elements are combined in the same course of conduct, the
communicative element of the conduct may be sufficient to bring into play the [right to
freedom of expression]."147
The right to freedom of expression, thus, applies to the entire continuum of speech from
utterances made to conduct enacted, and even to inaction itself as a symbolic manner
of communication.
In Ebralinag v. The Division Superintendent of Schools of Cebu,148 students who were
members of the religious sect Jehovahs Witnesses were to be expelled from school
for refusing to salute the flag, sing the national anthem, and recite the patriotic
pledge.149 In his concurring opinion, Justice Cruz discussed how the salute is a
symbolic manner of communication and a valid form of expression.150 He adds that
freedom of speech includes even the right to be silent:
Freedom of speech includes the right to be silent. Aptly has it been said that the Bill of
Rights that guarantees to the individual the liberty to utter what is in his mind also
guarantees to him the liberty not to utter what is not in his mind. The salute is a symbolic
manner of communication that conveys its messageas clearly as the written or spoken
word. As a valid form of expression, it cannot be compelled any more than it can be
prohibited in the face of valid religious objections like those raised in this petition. To

Size does matter

The form of expression is just as important as the information conveyed that it forms
part of the expression. The present case is in point.
It is easy to discern why size matters.
First, it enhances efficiency in communication. A larger tarpaulin allows larger fonts
which make it easier to view its messages from greater distances. Furthermore, a larger
tarpaulin makes it easier for passengers inside moving vehicles to read its content.
Compared with the pedestrians, the passengers inside moving vehicles have lesser
time to view the content of a tarpaulin. The larger the fonts and images, the greater the
probability that it will catch their attention and, thus, the greater the possibility that they
will understand its message.
Second, the size of the tarpaulin may underscore the importance of the message to the
reader. From an ordinary persons perspective, those who post their messages in larger
fonts care more about their message than those who carry their messages in smaller
media. The perceived importance given by the speakers, in this case petitioners, to
their cause is also part of the message. The effectivity of communication sometimes
relies on the emphasis put by the speakers and onthe credibility of the speakers
themselves. Certainly, larger segments of the public may tend to be more convinced of

the point made by authoritative figures when they make the effort to emphasize their
messages.

menaces stable government; that the path of safety lies in the opportunity to discuss
freely supposed grievances and proposed remedies."162

Third, larger spaces allow for more messages. Larger spaces, therefore, may translate
to more opportunities to amplify, explain, and argue points which the speakers might
want to communicate. Rather than simply placing the names and images of political
candidates and an expression of support, larger spaces can allow for brief but
memorable presentations of the candidates platforms for governance. Larger spaces
allow for more precise inceptions of ideas, catalyze reactions to advocacies, and
contribute more to a more educated and reasoned electorate. A more educated
electorate will increase the possibilities of both good governance and accountability in
our government.

In this jurisdiction, this court held that "[t]he interest of society and the maintenance of
good government demand a full discussion of public affairs."163 This court has, thus,
adopted the principle that "debate on public issues should be uninhibited, robust,and
wide open . . . [including even] unpleasantly sharp attacks on government and public
officials."164

These points become more salient when it is the electorate, not the candidates or the
political parties, that speaks. Too often, the terms of public discussion during elections
are framed and kept hostage by brief and catchy but meaningless sound bites extolling
the character of the candidate. Worse, elections sideline political arguments and
privilege the endorsement by celebrities. Rather than provide obstacles to their speech,
government should in fact encourage it. Between the candidates and the electorate,
the latter have the better incentive to demand discussion of the more important issues.
Between the candidates and the electorate, the former have better incentives to avoid
difficult political standpoints and instead focus on appearances and empty promises.

When men have realized that time has upset many fighting faiths, they may come to
believe even more than they believe the very foundations of their own conduct that the
ultimate good desired is better reached by free trade in ideas - that the best test of truth
is the power of the thought to get itself accepted in the competition of the market, and
that truth is the only ground upon which their wishes safely can be carried out.166

Large tarpaulins, therefore, are not analogous to time and place.158 They are
fundamentally part of expression protected under Article III, Section 4 of the
Constitution.
II.B.4
There are several theories and schools of thought that strengthen the need to protect
the basic right to freedom of expression.
First, this relates to the right ofthe people to participate in public affairs, including the
right to criticize government actions.
Proponents of the political theory on "deliberative democracy" submit that "substantial,
open, [and] ethical dialogue isa critical, and indeed defining, feature of a good
polity."159 This theory may be considered broad, but it definitely "includes [a] collective
decision making with the participation of all who will beaffected by the decision."160 It
anchors on the principle that the cornerstone of every democracy is that sovereignty
resides in the people.161 To ensure order in running the states affairs, sovereign
powers were delegated and individuals would be elected or nominated in key
government positions to represent the people. On this note, the theory on deliberative
democracy may evolve to the right of the people to make government accountable.
Necessarily, this includes the right of the people to criticize acts made pursuant to
governmental functions.
Speech that promotes dialogue on publicaffairs, or airs out grievances and political
discontent, should thus be protected and encouraged.
Borrowing the words of Justice Brandeis, "it is hazardous to discourage thought, hope
and imagination; that fear breeds repression; that repression breeds hate; that hate

Second, free speech should be encouraged under the concept of a market place of
ideas. This theory was articulated by Justice Holmes in that "the ultimate good desired
is better reached by [the] free trade in ideas:"165

The way it works, the exposure to the ideas of others allows one to "consider, test, and
develop their own conclusions."167 A free, open, and dynamic market place of ideas is
constantly shaping new ones. This promotes both stability and change where recurring
points may crystallize and weak ones may develop. Of course, free speech is more
than the right to approve existing political beliefs and economic arrangements as it
includes, "[t]o paraphrase Justice Holmes, [the] freedom for the thought that we hate,
no less than for the thought that agrees with us."168 In fact, free speech may "best
serve its high purpose when it induces a condition of unrest, creates dissatisfaction with
conditions as they are, or even stirs people to anger."169 It is in this context that we
should guard against any curtailment of the peoples right to participate in the free trade
of ideas.
Third, free speech involves self-expression that enhances human dignity. This right is
"a means of assuring individual self-fulfillment,"170 among others. In Philippine
Blooming Mills Employees Organization v. Philippine Blooming Mills Co., Inc,171 this
court discussed as follows:
The rights of free expression, free assembly and petition, are not only civil rights but
also political rights essential to man's enjoyment of his life, to his happiness and to his
full and complete fulfillment.Thru these freedoms the citizens can participate not merely
in the periodic establishment of the government through their suffrage but also in the
administration of public affairs as well as in the discipline of abusive public officers. The
citizen is accorded these rights so that he can appeal to the appropriate governmental
officers or agencies for redress and protection as well as for the imposition of the lawful
sanctions on erring public officers and employees.172 (Emphasis supplied)
Fourth, expression is a marker for group identity. For one, "[v]oluntary associations
perform [an] important democratic role [in providing] forums for the development of civil
skills, for deliberation, and for the formation of identity and community spirit[,] [and] are
largely immune from [any] governmental interference."173 They also "provide a buffer
between individuals and the state - a free space for the development of individual
personality, distinct group identity, and dissident ideas - and a potential source of
opposition to the state."174 Free speech must be protected as the vehicle to find those

who have similar and shared values and ideals, to join together and forward common
goals.
Fifth, the Bill of Rights, free speech included, is supposed to "protect individuals and
minorities against majoritarian abuses perpetrated through [the] framework [of
democratic governance]."175 Federalist framers led by James Madison were
concerned about two potentially vulnerable groups: "the citizenry at large - majorities who might be tyrannized or plundered by despotic federal officials"176 and the
minorities who may be oppressed by "dominant factions of the electorate [that] capture
[the] government for their own selfish ends[.]"177 According to Madison, "[i]t is of great
importance in a republic not only to guard the society against the oppression of its
rulers, but to guard one part of the society against the injustice of the other part."178
We should strive to ensure that free speech is protected especially in light of any
potential oppression against those who find themselves in the fringes on public issues.
Lastly, free speech must be protected under the safety valve theory.179 This provides
that "nonviolent manifestations of dissent reduce the likelihood of violence[.]"180 "[A]
dam about to burst . . . resulting in the banking up of a menacing flood of sullen anger
behind the walls of restriction"181 has been used to describe the effect of repressing
nonviolent outlets.182 In order to avoid this situation and prevent people from resorting
to violence, there is a need for peaceful methods in making passionate dissent. This
includes "free expression and political participation"183 in that they can "vote for
candidates who share their views, petition their legislatures to [make or] change laws,
. . . distribute literature alerting other citizens of their concerns[,]"184 and conduct
peaceful rallies and other similar acts.185 Free speech must, thus, be protected as a
peaceful means of achieving ones goal, considering the possibility that repression of
nonviolent dissent may spill over to violent means just to drive a point.
II.B.5
Every citizens expression with political consequences enjoys a high degree of
protection. Respondents argue that the tarpaulinis election propaganda, being
petitioners way of endorsing candidates who voted against the RH Law and rejecting
those who voted for it.186 As such, it is subject to regulation by COMELEC under its
constitutional mandate.187 Election propaganda is defined under Section 1(4) of
COMELEC Resolution No. 9615 as follows: SECTION 1. Definitions . . .
....
4. The term "political advertisement" or "election propaganda" refers to any matter
broadcasted, published, printed, displayed or exhibited, in any medium, which contain
the name, image, logo, brand, insignia, color motif, initials, and other symbol or graphic
representation that is capable of being associated with a candidate or party, and is
intended to draw the attention of the public or a segment thereof to promote or oppose,
directly or indirectly, the election of the said candidate or candidates to a public office.
In broadcast media, political advertisements may take the form of spots, appearances
on TV shows and radio programs, live or taped announcements, teasers, and other
forms of advertising messages or announcements used by commercial advertisers.
Political advertising includes matters, not falling within the scope of personal opinion,
that appear on any Internet website, including, but not limited to, social networks,
blogging sites, and micro-blogging sites, in return for consideration, or otherwise
capable of pecuniary estimation.

On the other hand, petitioners invoke their "constitutional right to communicate their
opinions, views and beliefs about issues and candidates."188 They argue that the
tarpaulin was their statement of approval and appreciation of the named public officials
act of voting against the RH Law, and their criticism toward those who voted in its
favor.189 It was "part of their advocacy campaign against the RH Law,"190 which was
not paid for by any candidate or political party.191 Thus, "the questioned orders which
. . . effectively restrain[ed] and curtail[ed] [their] freedom of expression should be
declared unconstitutional and void."192
This court has held free speech and other intellectual freedoms as "highly ranked in our
scheme of constitutional values."193 These rights enjoy precedence and primacy.194
In Philippine Blooming Mills, this court discussed the preferred position occupied by
freedom of expression:
Property and property rights can belost thru prescription; but human rights are
imprescriptible. If human rights are extinguished by the passage of time, then the Bill
of Rights is a useless attempt to limit the power of government and ceases to be an
efficacious shield against the tyranny of officials, of majorities, ofthe influential and
powerful, and of oligarchs - political, economic or otherwise.
In the hierarchy of civil liberties, the rights of free expression and of assembly occupy
a preferred position as they are essential to the preservation and vitality of our civil and
political institutions; and such priority "gives these liberties the sanctity and the sanction
not permitting dubious intrusions."195 (Citations omitted)
This primordial right calls for utmost respect, more so "when what may be curtailed is
the dissemination of information to make more meaningful the equally vital right of
suffrage."196 A similar idea appeared in our jurisprudence as early as 1969, which was
Justice Barredos concurring and dissenting opinion in Gonzales v. COMELEC:197
I like to reiterate over and over, for it seems this is the fundamental point others miss,
that genuine democracy thrives only where the power and right of the people toelect
the men to whom they would entrust the privilege to run the affairs of the state exist. In
the language of the declaration of principles of our Constitution, "The Philippines is a
republican state. Sovereignty resides in the people and all government authority
emanates from them" (Section 1, Article II). Translating this declaration into actuality,
the Philippines is a republic because and solely because the people in it can be
governed only by officials whom they themselves have placed in office by their votes.
And in it is on this cornerstone that I hold it tobe self-evident that when the freedoms of
speech, press and peaceful assembly and redress of grievances are being exercised
in relation to suffrage or asa means to enjoy the inalienable right of the qualified citizen
to vote, they are absolute and timeless. If our democracy and republicanism are to be
worthwhile, the conduct of public affairs by our officials must be allowed to suffer
incessant and unabating scrutiny, favorable or unfavorable, everyday and at all times.
Every holder of power in our government must be ready to undergo exposure any
moment of the day or night, from January to December every year, as it is only in this
way that he can rightfully gain the confidence of the people. I have no patience for those
who would regard public dissection of the establishment as an attribute to be indulged
by the people only at certain periods of time. I consider the freedoms of speech, press
and peaceful assembly and redress of grievances, when exercised in the name of
suffrage, as the very means by which the right itself to vote can only be properly

enjoyed.It stands to reason therefore, that suffrage itself would be next to useless if
these liberties cannot be untrammelled [sic] whether as to degree or time.198
(Emphasis supplied)
Not all speech are treated the same. In Chavez v. Gonzales, this court discussed that
some types of speech may be subject to regulation:

It is clear that this paragraph suggests that personal opinions are not included, while
sponsored messages are covered.
Thus, the last paragraph of Section 1(1) of COMELEC Resolution No. 9615 states:
SECTION 1. Definitions - As used in this Resolution:

Some types of speech may be subjected to some regulation by the State under its
pervasive police power, in order that it may not be injurious to the equal right of others
or those of the community or society. The difference in treatment is expected because
the relevant interests of one type of speech, e.g., political speech, may vary from those
of another, e.g., obscene speech. Distinctionshave therefore been made in the
treatment, analysis, and evaluation ofthe permissible scope of restrictions on various
categories of speech. We have ruled, for example, that in our jurisdiction slander or
libel, lewd and obscene speech, as well as "fighting words" are not entitled to
constitutional protection and may be penalized.199 (Citations omitted)
We distinguish between politicaland commercial speech. Political speech refers to
speech "both intended and received as a contribution to public deliberation about some
issue,"200 "foster[ing] informed and civicminded deliberation."201 On the other hand,
commercial speech has been defined as speech that does "no more than propose a
commercial transaction."202 The expression resulting from the content of the tarpaulin
is, however, definitely political speech. In Justice Brions dissenting opinion, he
discussed that "[t]he content of the tarpaulin, as well as the timing of its posting, makes
it subject of the regulations in RA 9006 and Comelec Resolution No. 9615."203 He
adds that "[w]hile indeed the RH issue, by itself,is not an electoralmatter, the slant that
the petitioners gave the issue converted the non-election issue into a live election one
hence, Team Buhay and Team Patay and the plea to support one and oppose the
other."204
While the tarpaulin may influence the success or failure of the named candidates and
political parties, this does not necessarily mean it is election propaganda. The tarpaulin
was not paid for or posted "in return for consideration" by any candidate, political party,
or party-list group.
The second paragraph of Section 1(4) of COMELEC Resolution No. 9615, or the rules
and regulations implementing Republic Act No. 9006 as an aid to interpret the law
insofar as the facts of this case requires, states:
4. The term "political advertisement" or "election propaganda" refers to any matter
broadcasted, published, printed, displayed or exhibited, in any medium, which contain
the name, image, logo, brand, insignia, color motif, initials, and other symbol or graphic
representation that is capable of being associated with a candidate or party, and is
intended to draw the attention of the public or a segment thereof to promote or oppose,
directly or indirectly, the election of the said candidate or candidates to a public office.
In broadcast media, political advertisements may take the form of spots, appearances
on TV shows and radio programs, live or taped announcements, teasers, and other
forms of advertising messages or announcements used by commercial advertisers.
Political advertising includes matters, not falling within the scope of personal opinion,
that appear on any Internet website, including, but not limited to, social networks,
blogging sites, and micro-blogging sites, in return for consideration, or otherwise
capable of pecuniary estimation. (Emphasis supplied)

1. The term "election campaign" or "partisan political activity" refers to an act designed
to promote the election or defeat of a particular candidate or candidates to a public
office, and shall include any of the following:
....
Personal opinions, views, and preferences for candidates, contained in blogs shall not
be considered acts of election campaigning or partisan politicalactivity unless
expressed by government officials in the Executive Department, the Legislative
Department, the Judiciary, the Constitutional Commissions, and members of the Civil
Service.
In any event, this case does not refer to speech in cyberspace, and its effects and
parameters should be deemed narrowly tailored only in relation to the facts and issues
in this case. It also appears that such wording in COMELEC Resolution No. 9615 does
not similarly appear in Republic Act No. 9006, the law it implements.
We should interpret in this manner because of the value of political speech.
As early as 1918, in United States v. Bustos,205 this court recognized the need for full
discussion of public affairs. We acknowledged that free speech includes the right to
criticize the conduct of public men:
The interest of society and the maintenance of good government demand a full
discussion of public affairs. Complete liberty to comment on the conduct of public men
is a scalpel in the case of free speech. The sharp incision of its probe relieves the
abscesses of official dom. Men in public life may suffer under a hostile and an unjust
accusation; the wound can be assuaged with the balm of a clear conscience. A public
officer must not be too thin-skinned with reference to comment upon his official acts.
Only thus can the intelligence and dignity of the individual be exalted.206
Subsequent jurisprudence developed the right to petition the government for redress of
grievances, allowing for criticism, save for some exceptions.207 In the 1951 case of
Espuelas v. People,208 this court noted every citizens privilege to criticize his or her
government, provided it is "specific and therefore constructive, reasoned or tempered,
and not a contemptuous condemnation of the entire government set-up."209
The 1927 case of People v. Titular210 involved an alleged violation of the Election Law
provision "penaliz[ing] the anonymous criticism of a candidate by means of posters or
circulars."211 This court explained that it is the posters anonymous character that is
being penalized.212 The ponente adds that he would "dislike very muchto see this
decision made the vehicle for the suppression of public opinion."213

In 1983, Reyes v. Bagatsing214 discussed the importance of allowing individuals to

vent their views. According to this court, "[i]ts value may lie in the fact that there may
be something worth hearing from the dissenter [and] [t]hat is to ensurea true ferment of
ideas."215
Allowing citizens to air grievances and speak constructive criticisms against their
government contributes to every societys goal for development. It puts forward matters
that may be changed for the better and ideas that may be deliberated on to attain that
purpose. Necessarily, it also makes the government accountable for acts that violate
constitutionally protected rights.
In 1998, Osmea v. COMELEC found Section 11(b) of Republic Act No. 6646, which
prohibits mass media from selling print space and air time for campaign except to the
COMELEC, to be a democracy-enhancing measure.216 This court mentioned how
"discussion of public issues and debate on the qualifications of candidates in an election
are essential to the proper functioning of the government established by our
Constitution."217
As pointed out by petitioners, "speech serves one of its greatest public purposes in the
context of elections when the free exercise thereof informs the people what the issues
are, and who are supporting what issues."218 At the heart of democracy is every
advocates right to make known what the people need to know,219 while the meaningful
exercise of ones right of suffrage includes the right of every voter to know what they
need to know in order to make their choice.
Thus, in Adiong v. COMELEC,220 this court discussed the importance of debate on
public issues, and the freedom of expression especially in relation to information that
ensures the meaningful exercise of the right of suffrage:
We have adopted the principle that debate on public issues should be uninhibited,
robust, and wide open and that it may well include vehement, caustic and sometimes
unpleasantly sharp attacks on government and public officials. Too many restrictions
will deny to people the robust, uninhibited, and wide open debate, the generating of
interest essential if our elections will truly be free, clean and honest.
We have also ruled that the preferred freedom of expression calls all the more for the
utmost respect when what may be curtailed is the dissemination of information to make
more meaningful the equally vital right of suffrage.221 (Emphasis supplied, citations
omitted)
Speech with political consequences isat the core of the freedom of expression and must
be protected by this court.
Justice Brion pointed out that freedomof expression "is not the god of rights to which
all other rights and even government protection of state interest must bow."222
The right to freedom of expression isindeed not absolute. Even some forms of protected
speech are still subjectto some restrictions. The degree of restriction may depend on
whether the regulation is content-based or content-neutral.223 Content-based
regulations can either be based on the viewpoint of the speaker or the subject of the
expression.

II.B.6
Content-based regulation
COMELEC contends that the order for removal of the tarpaulin is a content-neutral
regulation. The order was made simply because petitioners failed to comply with the
maximum size limitation for lawful election propaganda.224
On the other hand, petitioners argue that the present size regulation is content-based
as it applies only to political speech and not to other forms of speech such as
commercial speech.225 "[A]ssuming arguendo that the size restriction sought to be
applied . . . is a mere time, place, and manner regulation, its still unconstitutional for
lack of a clear and reasonable nexus with a constitutionally sanctioned objective."226
The regulation may reasonably be considered as either content-neutral or contentbased.227 Regardless, the disposition of this case will be the same. Generally,
compared with other forms of speech, the proposed speech is content-based.
As pointed out by petitioners, the interpretation of COMELEC contained in the
questioned order applies only to posters and tarpaulins that may affect the elections
because they deliver opinions that shape both their choices. It does not cover, for
instance, commercial speech.
Worse, COMELEC does not point to a definite view of what kind of expression of noncandidates will be adjudged as "election paraphernalia." There are no existing bright
lines to categorize speech as election-related and those that are not. This is especially
true when citizens will want to use their resources to be able to raise public issues that
should be tackled by the candidates as what has happened in this case. COMELECs
discretion to limit speech in this case is fundamentally unbridled.
Size limitations during elections hit ata core part of expression. The content of the
tarpaulin is not easily divorced from the size of its medium.
Content-based regulation bears a heavy presumption of invalidity, and this court has
used the clear and present danger rule as measure.228 Thus, in Chavez v. Gonzales:
A content-based regulation, however, bears a heavy presumption of invalidity and is
measured against the clear and present danger rule. The latter will pass constitutional
muster only if justified by a compelling reason, and the restrictions imposedare neither
overbroad nor vague.229 (Citations omitted)
Under this rule, "the evil consequences sought to be prevented must be substantive,
extremely serious and the degree of imminence extremely high."230 "Only when the
challenged act has overcome the clear and present danger rule will it pass
constitutional muster, with the government having the burden of overcoming the
presumed unconstitutionality."231
Even with the clear and present danger test, respondents failed to justify the regulation.
There is no compelling and substantial state interest endangered by the posting of the
tarpaulinas to justify curtailment of the right of freedom of expression. There is no
reason for the state to minimize the right of non-candidate petitioners to post the

tarpaulin in their private property. The size of the tarpaulin does not affect anyone elses
constitutional rights.
Content-based restraint or censorship refers to restrictions "based on the subject matter
of the utterance or speech."232 In contrast, content-neutral regulation includes controls
merely on the incidents of the speech such as time, place, or manner of the speech.233

If we apply the test for content-neutral regulation, the questioned acts of COMELEC
will not pass the three requirements for evaluating such restraints on freedom of
speech.249 "When the speech restraints take the form of a content-neutral regulation,
only a substantial governmental interest is required for its validity,"250 and it is subject
only to the intermediate approach.251

This court has attempted to define "content-neutral" restraints starting with the 1948
case of Primicias v. Fugoso.234 The ordinance in this case was construed to grant the
Mayor discretion only to determine the public places that may be used for the
procession ormeeting, but not the power to refuse the issuance of a permit for such
procession or meeting.235 This court explained that free speech and peaceful
assembly are "not absolute for it may be so regulated that it shall not beinjurious to the
equal enjoyment of others having equal rights, nor injurious to the rights of the
community or society."236

This intermediate approach is based on the test that we have prescribed in several
cases.252 A content-neutral government regulation is sufficiently justified:

The earlier case of Calalang v. Williams237 involved the National Traffic Commission
resolution that prohibited the passing of animal-drawn vehicles along certain roads at
specific hours.238 This court similarly discussed police power in that the assailed rules
carry outthe legislative policy that "aims to promote safe transit upon and avoid
obstructions on national roads, in the interest and convenience of the public."239

On the first requisite, it is not within the constitutional powers of the COMELEC to
regulate the tarpaulin. As discussed earlier, this is protected speech by petitioners who
are non-candidates. On the second requirement, not only must the governmental
interest be important or substantial, it must also be compelling as to justify the
restrictions made.

As early as 1907, United States v. Apurado240 recognized that "more or less disorder
will mark the public assembly of the people to protest against grievances whether real
or imaginary, because on such occasions feeling is always wrought to a high pitch of
excitement. . . ."241 It is with this backdrop that the state is justified in imposing
restrictions on incidental matters as time, place, and manner of the speech.

Compelling governmental interest would include constitutionally declared principles.

We have held, for example, that "the welfare of children and the States mandate to
protect and care for them, as parens patriae,254 constitute a substantial and compelling
government interest in regulating . . . utterances in TV broadcast."255

In the landmark case of Reyes v. Bagatsing, this court summarized the steps that permit
applicants must follow which include informing the licensing authority ahead of time as
regards the date, public place, and time of the assembly.242 This would afford the
public official time to inform applicants if there would be valid objections, provided that
the clear and present danger test is the standard used for his decision and the
applicants are given the opportunity to be heard.243 This ruling was practically codified
in Batas Pambansa No. 880, otherwise known as the Public Assembly Act of 1985.
Subsequent jurisprudence have upheld Batas Pambansa No. 880 as a valid contentneutral regulation. In the 2006 case of Bayan v. Ermita,244 this court discussed how
Batas Pambansa No. 880 does not prohibit assemblies but simply regulates their time,
place, and manner.245 In 2010, this court found in Integrated Bar of the Philippines v.
Atienza246 that respondent Mayor Atienza committed grave abuse of discretion when
he modified the rally permit by changing the venue from Mendiola Bridge to Plaza
Miranda without first affording petitioners the opportunity to be heard.247
We reiterate that the regulation involved at bar is content-based. The tarpaulin content
is not easily divorced from the size of its medium.
II.B.7
Justice Carpio and Justice Perlas-Bernabe suggest that the provisions imposing a size
limit for tarpaulins are content-neutral regulations as these "restrict the mannerby which
speech is relayed but not the content of what is conveyed."248

[1] if it is within the constitutional power of the Government; [2] if it furthers an important
or substantial governmental interest; [3] if the governmental interest is unrelated to the
suppression of free expression; and [4] if the incident restriction on alleged [freedom of
speech & expression] is no greater than is essential to the furtherance of that
interest.253

Respondent invokes its constitutional mandate to ensure equal opportunity for public
information campaigns among candidates in connection with the holding of a free,
orderly, honest, peaceful, and credible election.256
Justice Brion in his dissenting opinion discussed that "[s]ize limits to posters are
necessary to ensure equality of public information campaigns among candidates, as
allowing posters with different sizes gives candidates and their supporters the incentive
to post larger posters[,] [and] [t]his places candidates with more money and/or with
deep-pocket supporters at an undue advantage against candidates with more humble
financial capabilities."257
First, Adiong v. COMELEC has held that this interest is "not as important as the right
of [a private citizen] to freely express his choice and exercise his right of free
speech."258 In any case, faced with both rights to freedom of speech and equality, a
prudent course would be to "try to resolve the tension in a way that protects the right of
participation."259
Second, the pertinent election lawsrelated to private property only require that the
private property owners consent be obtained when posting election propaganda in the
property.260 This is consistent with the fundamental right against deprivation of
property without due process of law.261 The present facts do not involve such posting
of election propaganda absent consent from the property owner. Thus, this regulation
does not apply in this case.

Respondents likewise cite the Constitution262 on their authority to recommend

effective measures to minimize election spending. Specifically, Article IX-C, Section
2(7) provides:

III
Freedom of expression and equality

Sec. 2. The Commission on Elections shall exercise the following powers and functions:

III.A

....

The possibility of abuse

(7) Recommend to the Congress effective measures to minimize election spending,

including limitation of places where propaganda materials shall be posted, and to
prevent and penalize all forms of election frauds, offenses, malpractices, and nuisance
candidates. (Emphasis supplied) This does not qualify as a compelling and substantial
government interest to justify regulation of the preferred right to freedom of expression.

Of course, candidates and political parties do solicit the help of private individuals for
the endorsement of their electoral campaigns.

The assailed issuances for the removal of the tarpaulin are based on the two feet (2)
by three feet (3) size limitation under Section 6(c) of COMELEC Resolution No. 9615.
This resolution implements the Fair Election Act that provides for the same size
limitation.263
This court held in Adiong v. COMELEC that "[c]ompared to the paramount interest of
the State in guaranteeing freedom of expression, any financial considerations behind
the regulation are of marginal significance."264 In fact, speech with political
consequences, as in this case, should be encouraged and not curtailed. As petitioners
pointed out, the size limitation will not serve the objective of minimizing election
spending considering there is no limit on the number of tarpaulins that may be
posted.265
The third requisite is likewise lacking. We look not only at the legislative intent or motive
in imposing the restriction, but more so at the effects of such restriction, if implemented.
The restriction must not be narrowly tailored to achieve the purpose. It must be
demonstrable. It must allow alternative avenues for the actor to make speech.
In this case, the size regulation is not unrelated to the suppression of speech. Limiting
the maximum sizeof the tarpaulin would render ineffective petitioners message and
violate their right to exercise freedom of expression.
The COMELECs act of requiring the removal of the tarpaulin has the effect of
dissuading expressions with political consequences. These should be encouraged,
more so when exercised to make more meaningful the equally important right to
suffrage.
The restriction in the present case does not pass even the lower test of intermediate
scrutiny for content-neutral regulations.
The action of the COMELEC in thiscase is a strong deterrent to further speech by the
electorate. Given the stature of petitioners and their message, there are indicators that
this will cause a "chilling effect" on robust discussion during elections.
The form of expression is just as important as the message itself. In the words of
Marshall McLuhan, "the medium is the message."266 McLuhans colleague and mentor
Harold Innis has earlier asserted that "the materials on which words were written down
have often counted for more than the words themselves."267

On the one extreme, this can take illicit forms such as when endorsement materials in
the form of tarpaulins, posters, or media advertisements are made ostensibly by
"friends" but in reality are really paid for by the candidate or political party. This skirts
the constitutional value that provides for equal opportunities for all candidates.
However, as agreed by the parties during the oral arguments in this case, this is not
the situation that confronts us. In such cases, it will simply be a matter for investigation
and proof of fraud on the part of the COMELEC.
The guarantee of freedom of expression to individuals without any relationship to any
political candidate should not be held hostage by the possibility of abuse by those
seeking to be elected. It is true that there can be underhanded, covert, or illicit dealings
so as to hide the candidates real levels of expenditures. However, labelling all
expressions of private parties that tend to have an effect on the debate in the elections
as election paraphernalia would be too broad a remedy that can stifle genuine speech
like in this case. Instead, to address this evil, better and more effective enforcement will
be the least restrictive means to the fundamental freedom.
On the other extreme, moved by the credentials and the message of a candidate, others
will spend their own resources in order to lend support for the campaigns. This may be
without agreement between the speaker and the candidate or his or her political party.
In lieu of donating funds to the campaign, they will instead use their resources directly
in a way that the candidate or political party would have doneso. This may effectively
skirt the constitutional and statutory limits of campaign spending.
Again, this is not the situation in this case.
The message of petitioners in thiscase will certainly not be what candidates and political
parties will carry in their election posters or media ads. The message of petitioner, taken
as a whole, is an advocacy of a social issue that it deeply believes. Through rhetorical
devices, it communicates the desire of Diocese that the positions of those who run for
a political position on this social issue be determinative of how the public will vote. It
primarily advocates a stand on a social issue; only secondarily even almost
incidentally will cause the election or non-election of a candidate.
The twin tarpaulins consist of satire of political parties. Satire is a "literary form that
employs such devices as sarcasm, irony and ridicule to deride prevailing vices or
follies,"268 and this may target any individual or group in society, private and
government alike. It seeks to effectively communicate a greater purpose, often used for
"political and social criticism"269 "because it tears down facades, deflates stuffed
shirts, and unmasks hypocrisy. . . . Nothing is more thoroughly democratic than to have

the high-and-mighty lampooned and spoofed."270 Northrop Frye, wellknown in this

literary field, claimed that satire had two defining features: "one is wit or humor founded
on fantasy or a sense of the grotesque and absurd, the other is an object of attack."271
Thus, satire frequently uses exaggeration, analogy, and other rhetorical devices.
The tarpaulins exaggerate. Surely, "Team Patay" does not refer to a list of dead
individuals nor could the Archbishop of the Diocese of Bacolod have intended it to mean
that the entire plan of the candidates in his list was to cause death intentionally. The
tarpaulin caricatures political parties and parodies the intention of those in the list.
Furthermore, the list of "Team Patay" is juxtaposed with the list of "Team Buhay" that
further emphasizes the theme of its author: Reproductive health is an important marker
for the church of petitioners to endorse.
The messages in the tarpaulins are different from the usual messages of candidates.
Election paraphernalia from candidates and political parties are more declarative and
descriptive and contain no sophisticated literary allusion to any social objective. Thus,
they usually simply exhort the public to vote for a person with a brief description of the
attributes of the candidate. For example "Vote for [x], Sipag at Tiyaga," "Vote for [y],
Mr. Palengke," or "Vote for [z], Iba kami sa Makati."
This courts construction of the guarantee of freedom of expression has always been
wary of censorship or subsequent punishment that entails evaluation of the speakers
viewpoint or the content of ones speech. This is especially true when the expression
involved has political consequences. In this case, it hopes to affect the type of
deliberation that happens during elections. A becoming humility on the part of any
human institution no matter how endowed with the secular ability to decide legal
controversies with finality entails that we are not the keepers of all wisdom.
Humanitys lack of omniscience, even acting collectively, provides space for the
weakest dissent. Tolerance has always been a libertarian virtue whose version is
embedded in our Billof Rights. There are occasional heretics of yesterday that have
become our visionaries. Heterodoxies have always given us pause. The unforgiving
but insistent nuance that the majority surely and comfortably disregards provides us
with the checks upon reality that may soon evolve into creative solutions to grave social
problems. This is the utilitarian version. It could also be that it is just part of human
necessity to evolve through being able to express or communicate.
However, the Constitution we interpret is not a theoretical document. It contains other
provisions which, taken together with the guarantee of free expression, enhances each
others value. Among these are the provisions that acknowledge the idea of equality. In
shaping doctrine construing these constitutional values, this court needs to exercise
extraordinary prudence and produce narrowly tailored guidance fit to the facts as given
so as not to unwittingly cause the undesired effect of diluting freedoms as exercised in
reality and, thus, render them meaningless.
III.B.
Speech and equality:
Some considerations We first establish that there are two paradigms of free speech
that separate at the point of giving priority to equality vis--vis liberty.272

In an equality-based approach, "politically disadvantaged speech prevails over

regulation[,] but regulation promoting political equality prevails over speech."273 This
view allows the government leeway to redistribute or equalize speaking power, such
as protecting, even implicitly subsidizing, unpopular or dissenting voices often
systematically subdued within societys ideological ladder.274 This view acknowledges
that there are dominant political actors who, through authority, power, resources,
identity, or status, have capabilities that may drown out the messages of others. This
is especially true in a developing or emerging economy that is part of the majoritarian
world like ours.
The question of libertarian tolerance
This balance between equality and the ability to express so as to find ones authentic
self or to participate in the self determination of ones communities is not new only to
law. It has always been a philosophical problematique.
In his seminal work, Repressive Tolerance, philosopher and social theorist Herbert
Marcuse recognized how institutionalized inequality exists as a background limitation,
rendering freedoms exercised within such limitation as merely "protect[ing] the already
established machinery of discrimination."275 In his view, any improvement "in the
normal course of events" within an unequal society, without subversion, only
strengthens existing interests of those in power and control.276
In other words, abstract guarantees of fundamental rights like freedom of expression
may become meaningless if not taken in a real context. This tendency to tackle rights
in the abstract compromises liberties. In his words:
Liberty is self-determination, autonomythis is almost a tautology, but a tautology
which results from a whole series of synthetic judgments. It stipulates the ability to
determine ones own life: to be able to determine what to do and what not to do, what
to suffer and what not. But the subject of this autonomy is never the contingent, private
individual as that which he actually is or happens to be; it is rather the individual as a
human being who is capable of being free with the others. And the problem of making
possible such a harmony between every individual liberty and the other is not that of
finding a compromise between competitors, or between freedom and law, between
general and individual interest, common and private welfare in an established society,
but of creating the society in which man is no longer enslaved by institutions which
vitiate self-determination from the beginning. In other words, freedom is still to be
created even for the freest of the existing societies.277 (Emphasis in the original)
Marcuse suggests that the democratic argument with all opinions presented to and
deliberated by the people "implies a necessary condition, namely, that the people
must be capable of deliberating and choosing on the basis of knowledge, that they must
have access to authentic information, and that, on this basis, their evaluation must be
the result of autonomous thought."278 He submits that "[d]ifferent opinions and
philosophies can no longer compete peacefully for adherence and persuasion on
rational grounds: the marketplace of ideas is organized and delimited by those who
determine the national and the individual interest."279 A slant toward left manifests
from his belief that "there is a natural right of resistance for oppressed and
overpowered minorities to use extralegal means if the legal ones have proved to be
inadequate."280 Marcuse, thus, stands for an equality that breaks away and

transcends from established hierarchies, power structures, and indoctrinations. The

tolerance of libertarian society he refers to as "repressive tolerance."

public information campaigns and forums among candidates in connection with the
objective of holding free, orderly, honest, peaceful, and credible elections. (Emphasis
supplied)

Legal scholars
Article XIII, Section 1
The 20th century also bears witness to strong support from legal scholars for "stringent
protections of expressive liberty,"281 especially by political egalitarians. Considerations
such as "expressive, deliberative, and informational interests,"282 costs or the price of
expression, and background facts, when taken together, produce bases for a system
of stringent protections for expressive liberties.283
Many legal scholars discuss the interest and value of expressive liberties. Justice
Brandeis proposed that "public discussion is a political duty."284 Cass Sustein placed
political speech on the upper tier of his twotier model for freedom of expression, thus,
warranting stringent protection.285 He defined political speech as "both intended and
received as a contribution to public deliberation about some issue."286
But this is usually related also tofair access to opportunities for such liberties.287 Fair
access to opportunity is suggested to mean substantive equality and not mere formal
equalitysince "favorable conditions for realizing the expressive interest will include
some assurance of the resources required for expression and some guarantee that
efforts to express views on matters of common concern will not be drowned out by the
speech of betterendowed citizens."288 Justice Brandeis solution is to "remedy the
harms of speech with more speech."289 This view moves away from playing down the
danger as merely exaggerated, toward "tak[ing] the costs seriously and embrac[ing]
expression as the preferred strategy for addressing them."290 However, in some
cases, the idea of more speech may not be enough. Professor Laurence Tribe
observed the need for context and "the specification of substantive values before
[equality] has full meaning."291 Professor Catherine A. MacKinnon adds that "equality
continues to be viewed in a formal rather than a substantive sense."292 Thus, more
speech can only mean more speech from the few who are dominant rather than those
who are not.

Section 1. The Congress shall give highest priorityto the enactment of measures that
protect and enhance the right of all the people to human dignity, reducesocial,
economic, and political inequalities, and remove cultural inequities by equitably
diffusing wealth and political power for the common good.
To this end, the State shall regulate the acquisition, ownership, use, and disposition of
property and its increments. (Emphasis supplied)
Article II, Section 26
Section 26. The State shall guarantee equal access to opportunities for public service,
and prohibit political dynasties as may be defined by law. (Emphasis supplied)
Thus, in these cases, we have acknowledged the Constitutions guarantee for more
substantive expressive freedoms that take equality of opportunities into consideration
during elections.
The other view
However, there is also the other view. This is that considerations of equality of
opportunity or equality inthe ability of citizens as speakers should not have a bearing in
free speech doctrine. Under this view, "members of the public are trusted to make their
own individual evaluations of speech, and government is forbidden to intervene for
paternalistic or redistributive reasons . . . [thus,] ideas are best left to a freely
competitive ideological market."297 This is consistent with the libertarian suspicion on
the use of viewpoint as well as content to evaluate the constitutional validity or invalidity
of speech.

Our jurisprudence
This court has tackled these issues.
Osmea v. COMELEC affirmed National Press Club v. COMELEC on the validity of
Section 11(b) ofthe Electoral Reforms Law of 1987.293 This section "prohibits mass
media from selling or giving free of charge print space or air time for campaign or other
political purposes, except to the Commission on Elections."294 This court explained
that this provision only regulates the time and manner of advertising in order to ensure
media equality among candidates.295 This court grounded this measure on
constitutional provisions mandating political equality:296 Article IX-C, Section 4
Section 4. The Commission may, during the election period, supervise or regulate the
enjoyment or utilization of all franchises or permits for the operation of transportation
and other public utilities, media of communication or information, all grants, special
privileges, or concessions granted by the Government or any subdivision, agency, or
instrumentality thereof, including any government-owned or controlled corporation or
its subsidiary. Such supervision or regulation shall aim to ensure equal opportunity,
time, and space, and the right to reply, including reasonable, equal rates therefor, for

The textual basis of this view is that the constitutional provision uses negative rather
than affirmative language. It uses speech as its subject and not speakers.298
Consequently, the Constitution protects free speech per se, indifferent to the types,
status, or associations of its speakers.299 Pursuant to this, "government must leave
speakers and listeners in the private order to their own devices in sorting out the relative
influence of speech."300
Justice Romeros dissenting opinion in Osmea v. COMELEC formulates this view that
freedom of speech includes "not only the right to express ones views, but also other
cognate rights relevant to the free communication [of] ideas, not excluding the right to
be informed on matters of public concern."301 She adds:
And since so many imponderables may affect the outcome of elections qualifications
of voters and candidates, education, means of transportation, health, public discussion,
private animosities, the weather, the threshold of a voters resistance to pressure
the utmost ventilation of opinion of men and issues, through assembly, association and
organizations, both by the candidate and the voter, becomes a sine qua non for
elections to truly reflect the will of the electorate.302 (Emphasis supplied)

Justice Romeros dissenting opinion cited an American case, if only to emphasize free
speech primacy such that"courts, as a rule are wary to impose greater restrictions as
to any attempt to curtail speeches with political content,"303 thus:
the concept that the government may restrict the speech of some elements in our
society in order to enhance the relative voice of the others is wholly foreign to the First
Amendment which was designed to "secure the widest possible dissemination of
information from diverse and antagonistic sources" and "to assure unfettered
interchange of ideas for the bringing about of political and social changes desired by
the people."304
This echoes Justice Oliver Wendell Holmes submission "that the market place of ideas
is still the best alternative to censorship."305
Parenthetically and just to provide the whole detail of the argument, the majority of the
US Supreme Court in the campaign expenditures case of Buckley v. Valeo "condemned
restrictions (even if content-neutral) on expressive liberty imposed in the name of
enhanc[ing] the relative voice of others and thereby equaliz[ing] access to the political
arena."306 The majority did not use the equality-based paradigm.
One flaw of campaign expenditurelimits is that "any limit placed on the amount which a
person can speak, which takes out of his exclusive judgment the decision of when
enough is enough, deprives him of his free speech."307
Another flaw is how "[a]ny quantitative limitation on political campaigning inherently
constricts the sum of public information and runs counter to our profound national
commitment that debate on public issues should be uninhibited, robust, and wideopen."308
In fact, "[c]onstraining those who have funds or have been able to raise funds does not
ease the plight of those without funds in the first place . . . [and] even if ones main
concern isslowing the increase in political costs, it may be more effective torely on
market forces toachieve that result than on active legal intervention."309 According to
Herbert Alexander, "[t]o oppose limitations is not necessarily to argue that the skys the
limit [because in] any campaign there are saturation levels and a point where spending
no longer pays off in votes per dollar."310
III. C.

better access to media that reaches a wider audience than those who have less. Those
who espouse the more popular ideas will have better reception than the subversive and
the dissenters of society.To be really heard and understood, the marginalized view
normally undergoes its own degree of struggle.
The traditional view has been to tolerate the viewpoint of the speaker and the content
of his or her expression. This view, thus, restricts laws or regulation that allows public
officials to make judgments of the value of such viewpoint or message content. This
should still be the principal approach.
However, the requirements of the Constitution regarding equality in opportunity must
provide limits to some expression during electoral campaigns.
Thus clearly, regulation of speech in the context of electoral campaigns made by
candidates or the members of their political parties or their political parties may be
regulated as to time, place, and manner. This is the effect of our rulings in Osmea v.
COMELEC and National Press Club v. COMELEC.
Regulation of speech in the context of electoral campaigns made by persons who are
not candidates or who do not speak as members of a political party which are, taken
as a whole, principally advocacies of a social issue that the public must consider during
elections is unconstitutional. Such regulation is inconsistent with the guarantee of
according the fullest possible range of opinions coming from the electorate including
those that can catalyze candid, uninhibited, and robust debate in the criteria for the
choice of a candidate.
This does not mean that there cannot be a specie of speech by a private citizen which
will not amount toan election paraphernalia to be validly regulated by law.
Regulation of election paraphernalia will still be constitutionally valid if it reaches into
speech of persons who are not candidates or who do not speak as members of a
political party if they are not candidates, only if what is regulated is declarative speech
that, taken as a whole, has for its principal object the endorsement of a candidate only.
The regulation (a) should be provided by law, (b) reasonable, (c) narrowly tailored to
meet the objective of enhancing the opportunity of all candidates to be heard and
considering the primacy of the guarantee of free expression, and (d) demonstrably the
least restrictive means to achieve that object. The regulation must only be with respect
to the time, place, and manner of the rendition of the message. In no situation may the
speech be prohibited or censored onthe basis of its content. For this purpose, it will
notmatter whether the speech is made with or on private property.

When private speech amounts

to election paraphernalia
The scope of the guarantee of free expression takes into consideration the
constitutional respect for human potentiality and the effect of speech. It valorizes the
ability of human beings to express and their necessity to relate. On the other hand, a
complete guarantee must also take into consideration the effects it will have in a
deliberative democracy. Skewed distribution of resources as well as the cultural
hegemony of the majority may have the effect of drowning out the speech and the
messages of those in the minority. In a sense, social inequality does have its effect on
the exercise and effect of the guarantee of free speech. Those who have more will have

This is not the situation, however, in this case for two reasons. First, as discussed, the
principal message in the twin tarpaulins of petitioners consists of a social advocacy.
Second, as pointed out in the concurring opinion of Justice Antonio Carpio, the present
law Section 3.3 of Republic Act No. 9006 and Section 6(c) of COMELEC Resolution
No. 9615 if applied to this case, will not pass the test of reasonability. A fixed size
for election posters or tarpaulins without any relation to the distance from the intended
average audience will be arbitrary. At certain distances, posters measuring 2 by 3 feet
could no longer be read by the general public and, hence, would render speech
meaningless. It will amount to the abridgement of speech with political consequences.

IV
Right to property
Other than the right to freedom of expression311 and the meaningful exercise of the
right to suffrage,312 the present case also involves ones right to property.313
Respondents argue that it is the right of the state to prevent the circumvention of
regulations relating to election propaganda by applying such regulations to private
individuals.314 Certainly, any provision or regulation can be circumvented. But we are
not confronted with this possibility. Respondents agree that the tarpaulin in question
belongs to petitioners. Respondents have also agreed, during the oral arguments, that
petitioners were neither commissioned nor paid by any candidate or political party to
post the material on their walls.
Even though the tarpaulin is readily seen by the public, the tarpaulin remains the private
property of petitioners. Their right to use their property is likewise protected by the
Constitution.
In Philippine Communications Satellite Corporation v. Alcuaz:315
Any regulation, therefore, which operates as an effective confiscation of private
property or constitutes an arbitrary or unreasonable infringement of property rights is
void, because it is repugnant to the constitutional guaranties of due process and equal
protection of the laws.316 (Citation omitted)
This court in Adiong held that a restriction that regulates where decals and stickers
should be posted is "so broad that it encompasses even the citizens private
property."317 Consequently, it violates Article III, Section 1 of the Constitution which
provides thatno person shall be deprived of his property without due process of law.
This court explained:
Property is more than the mere thing which a person owns, it includes the right to
acquire, use, and dispose of it; and the Constitution, in the 14th Amendment, protects
these essential attributes.
Property is more than the mere thing which a person owns. It is elementary that it
includes the right to acquire, use, and dispose of it. The Constitution protects these
essential attributes of property. Holden v. Hardy, 169 U.S. 366, 391, 41 L. ed. 780, 790,
18 Sup. Ct. Rep. 383. Property consists of the free use, enjoyment, and disposal of a
persons acquisitions without control or diminution save by the law of the land. 1
Cooleys Bl. Com. 127. (Buchanan v. Warley 245 US 60 [1917])318
This court ruled that the regulation in Adiong violates private property rights:
The right to property may be subject to a greater degree of regulation but when this
right is joined by a "liberty" interest, the burden of justification on the part of the
Government must be exceptionally convincing and irrefutable. The burden is not met
in this case.
Section 11 of Rep. Act 6646 is so encompassing and invasive that it prohibits the
posting or display of election propaganda in any place, whether public or private, except
inthe common poster areas sanctioned by COMELEC. This means that a private

person cannot post his own crudely prepared personal poster on his own front dooror
on a post in his yard. While the COMELEC will certainly never require the absurd, there
are no limits to what overzealous and partisan police officers, armed with a copy of the
statute or regulation, may do.319 Respondents ordered petitioners, who are private
citizens, to remove the tarpaulin from their own property. The absurdity of the situation
is in itself an indication of the unconstitutionality of COMELECs interpretation of its
powers.
Freedom of expression can be intimately related with the right to property. There may
be no expression when there is no place where the expression may be made.
COMELECs infringement upon petitioners property rights as in the present case also
reaches out to infringement on their fundamental right to speech.
Respondents have not demonstrated thatthe present state interest they seek to
promote justifies the intrusion into petitioners property rights. Election laws and
regulations must be reasonable. It must also acknowledge a private individuals right to
exercise property rights. Otherwise, the due process clause will be violated.
COMELEC Resolution No. 9615 and the Fair Election Act intend to prevent the posting
of election propaganda in private property without the consent of the owners of such
private property. COMELEC has incorrectly implemented these regulations. Consistent
with our ruling in Adiong, we find that the act of respondents in seeking to restrain
petitioners from posting the tarpaulin in their own private property is an impermissible
encroachments on the right to property.
V
Tarpaulin and its message are not religious speech
We proceed to the last issues pertaining to whether the COMELEC in issuing the
questioned notice and letter violated the right of petitioners to the free exercise of their
religion.
At the outset, the Constitution mandates the separation of church and state.320 This
takes many forms. Article III, Section 5 of the Constitution, for instance provides:
Section 5. No law shall be made respecting an establishment of religion, or prohibiting
the free exercise thereof. The free exercise and enjoyment of religious profession and
worship, without discrimination or preference, shall forever be allowed. Noreligious test
shall be required for the exercise of civil or political rights.
There are two aspects of this provision.321 The first is the none stablishment
clause.322 Second is the free exercise and enjoyment of religious profession and
worship.323
The second aspect is atissue in this case.
Clearly, not all acts done by those who are priests, bishops, ustadz, imams, or any
other religious make such act immune from any secular regulation.324 The religious
also have a secular existence. They exist within a society that is regulated by law.
The Bishop of Bacolod caused the posting of the tarpaulin. But not all acts of a bishop
amounts to religious expression. This notwithstanding petitioners claim that "the views

and position of the petitioners, the Bishop and the Diocese of Bacolod, on the RH Bill
is inextricably connected to its Catholic dogma, faith, and moral teachings. . . ."325
The difficulty that often presents itself in these cases stems from the reality that every
act can be motivated by moral, ethical, and religious considerations. In terms of their
effect on the corporeal world, these acts range from belief, to expressions of these
faiths, to religious ceremonies, and then to acts of a secular character that may, from
the point of view of others who do not share the same faith or may not subscribe to any
religion, may not have any religious bearing.
Definitely, the characterizations ofthe religious of their acts are not conclusive on this
court. Certainly, our powers of adjudication cannot be blinded by bare claims that acts
are religious in nature.
Petitioners erroneously relied on the case of Ebralinag v. The Division Superintendent
of Schools of Cebu326 in claiming that the court "emphatically" held that the adherents
ofa particular religion shall be the ones to determine whether a particular matter shall
be considered ecclesiastical in nature.327 This court in Ebralinagexempted Jehovahs
Witnesses from participating in the flag ceremony "out of respect for their religious
beliefs, [no matter how] "bizarre" those beliefsmay seem to others."328 This court found
a balance between the assertion of a religious practice and the compelling necessities
of a secular command. It was an early attempt at accommodation of religious beliefs.

religious speech solely on such basis. The enumeration of candidates on the face of
the tarpaulin precludes any doubtas to its nature as speech with political consequences
and not religious speech.
Furthermore, the definition of an "ecclesiastical affair" in Austria v. National Labor
Relations Commission333 cited by petitioners finds no application in the present case.
The posting of the tarpaulin does not fall within the category of matters that are beyond
the jurisdiction of civil courts as enumerated in the Austriacase such as "proceedings
for excommunication, ordinations of religious ministers, administration of sacraments
and other activities withattached religious significance."334
A FINAL NOTE
We maintain sympathies for the COMELEC in attempting to do what it thought was its
duty in this case. However, it was misdirected.
COMELECs general role includes a mandate to ensure equal opportunities and reduce
spending among candidates and their registered political parties. It is not to regulate or
limit the speech of the electorate as it strives to participate inthe electoral exercise.
The tarpaulin in question may be viewed as producing a caricature of those who are
running for public office.Their message may be construed generalizations of very
complex individuals and party-list organizations.

In Estrada v. Escritor,329 this court adopted a policy of benevolent neutrality:

With religion looked upon with benevolence and not hostility, benevolent neutrality
allows accommodation of religion under certain circumstances. Accommodations are
government policies that take religion specifically intoaccount not to promote the
governments favored form of religion, but to allow individuals and groups to exercise
their religion without hindrance. Their purpose or effect therefore is to remove a burden
on, or facilitate the exercise of, a persons or institutions religion. As Justice Brennan
explained, the "government [may] take religion into account . . . to exempt, when
possible, from generally applicable governmental regulation individuals whose religious
beliefs and practices would otherwise thereby be infringed, or to create without state
involvement an atmosphere in which voluntary religious exercise may flourish."330
This court also discussed the Lemon test in that case, such that a regulation is
constitutional when: (1) it has a secular legislative purpose; (2) it neither advances nor
inhibits religion; and (3) it does not foster an excessive entanglement with religion.331
As aptly argued by COMELEC, however, the tarpaulin, on its face, "does not convey
any religious doctrine of the Catholic church."332 That the position of the Catholic
church appears to coincide with the message of the tarpaulin regarding the RH Law
does not, by itself, bring the expression within the ambit of religious speech. On the
contrary, the tarpaulin clearly refers to candidates classified under "Team Patay" and
"Team Buhay" according to their respective votes on the RH Law.
The same may be said of petitioners reliance on papal encyclicals to support their claim
that the expression onthe tarpaulin is an ecclesiastical matter. With all due respect to
the Catholic faithful, the church doctrines relied upon by petitioners are not binding
upon this court. The position of the Catholic religion in the Philippines as regards the
RH Law does not suffice to qualify the posting by one of its members of a tarpaulin as

They are classified into black and white: as belonging to "Team Patay" or "Team
Buhay."
But this caricature, though not agreeable to some, is still protected speech.
That petitioners chose to categorize them as purveyors of death or of life on the basis
of a single issue and a complex piece of legislation at that can easily be
interpreted as anattempt to stereo type the candidates and party-list organizations. Not
all may agree to the way their thoughts were expressed, as in fact there are other
Catholic dioceses that chose not to follow the example of petitioners.
Some may have thought that there should be more room to consider being more broadminded and non-judgmental. Some may have expected that the authors would give
more space to practice forgiveness and humility.
But, the Bill of Rights enumerated in our Constitution is an enumeration of our
fundamental liberties. It is not a detailed code that prescribes good conduct. It provides
space for all to be guided by their conscience, not only in the act that they do to others
but also in judgment of the acts of others.
Freedom for the thought we can disagree with can be wielded not only by those in the
minority. This can often be expressed by dominant institutions, even religious ones.
That they made their point dramatically and in a large way does not necessarily mean
that their statements are true, or that they have basis, or that they have been expressed
in good taste.
Embedded in the tarpaulin, however, are opinions expressed by petitioners. It is a
specie of expression protected by our fundamental law. It is an expression designed to

invite attention, cause debate, and hopefully, persuade. It may be motivated by the
interpretation of petitioners of their ecclesiastical duty, but their parishioners actions
will have very real secular consequences. Certainly, provocative messages do matter
for the elections.
What is involved in this case is the most sacred of speech forms: expression by the
electorate that tends to rouse the public to debate contemporary issues. This is not
speechby candidates or political parties to entice votes. It is a portion of the electorate
telling candidates the conditions for their election. It is the substantive content of the
right to suffrage.
This. is a form of speech hopeful of a quality of democracy that we should all deserve.
It is protected as a fundamental and primordial right by our Constitution. The expression
in the medium chosen by petitioners deserves our protection.
WHEREFORE, the instant petition is GRANTED. The temporary restraining order
previously issued is hereby made permanent. The act of the COMELEC in issuing the
assailed notice dated February 22, 2013 and letter dated February 27, 2013 is declared
unconstitutional.
SO ORDERED.