EN BANC

IN THE MATTER OF THE PETITION FOR

THE WRIT OF AMPARO AND HABEAS
DATA IN FAVOR OF NORIEL H.
RODRIGUEZ,
NORIEL H. RODRIGUEZ,
Petitioner,

- versus -

GLORIA
MACAPAGAL-ARROYO,
GEN. VICTOR S. IBRADO, PDG JESUS
AME VERSOZA, LT. GEN. DELFIN
BANGIT, MAJ. GEN. NESTOR Z.
OCHOA,
P/CSUPT.
AMETO
G.
TOLENTINO,
P/SSUPT.
JUDE
W.
SANTOS, COL. REMIGIO M. DE VERA,
an officer named MATUTINA, LT. COL.
MINA, CALOG, GEORGE PALACPAC
under the name HARRY, ANTONIO
CRUZ, ALDWIN BONG PASICOLAN
and VINCENT CALLAGAN,
Respondents.
x - - - - - - - - - - - - - - - - - - - - - - - - -x

G.R. No. 191805

IN THE MATTER OF THE PETITION FOR

THE WRIT OF AMPARO AND HABEAS
DATA IN FAVOR OF NORIEL H.
RODRIGUEZ,
POLICE DIR. GEN. JESUS A. VERSOZA,
P/SSUPT. JUDE W. SANTOS, BGEN.
REMEGIO M. DE VERA, 1ST LT. RYAN S.
MATUTINA, LT. COL. LAURENCE E.
MINA, ANTONIO C. CRUZ, ALDWIN C.
PASICOLAN
and
VICENTE
A.
CALLAGAN,
Petitioners,

- versus -

G.R. No. 193160

Present:
CORONA, C.J.,
CARPIO,
VELASCO, JR.,
LEONARDO-DE CASTRO,*
BRION,
PERALTA,
BERSAMIN,
DEL CASTILLO,*
ABAD,
VILLARAMA, JR.,
PEREZ,
MENDOZA,
SERENO,
REYES, and
PERLAS-BERNABE, JJ.

NORIEL H. RODRIGUEZ,
Respondent.
Promulgated:
November 15, 2011
x - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -x
DECISION
SERENO, J.:
Before this Court are two consolidated cases, namely, (1) Petition for Partial
Review on Certiorari dated 20 April 2010 (G.R. No. 191805), and (2) Petition for
Review on Certiorari dated 19 August 2010 (G.R. No. 193160).[1] Both Petitions assail
the 12 April 2010 Decision of the Court of Appeals, the dispositive portion of which
reads:
WHEREFORE, the petition for writ of amparo and writ of habeas
data is GRANTED.
Respondents Gen. Victor S. Ibrado, Lt. Gen. Delfin Bangit, Maj.
Gen. Nestor Z. Ochoa, PCSupt. Ameto G. Tolentino, PSSupt. Jude W.
Santos, Col. Remigio M. De Vera, Lt. Col. Laurence E. Mina and 1Lt.

Ryan S. Matutina, or their replacements in their official posts if they

have already vacated the same, are ORDERED to furnish this Court
within five (5) days from notice of this decision, official or unofficial
reports pertaining to petitioner covering but not limited to
intelligence reports, operation reports and provost marshal reports
prior to, during and subsequent to September 6, 2009 made by the
5th Infantry Division, Philippine Army, its branches and subsidiaries,
including the 17th Infantry Battalion, Philippine Army.
The above-named respondents are also DIRECTED to refrain
from using the said reports in any transaction or operation of the
military. Necessarily, the afore-named respondents are ORDERED to
expunge from the records of the military all documents having any
reference to petitioner.
Likewise, the afore-named respondents, as well as respondents
Police Director General Jesus Ame Versoza, Antonio Cruz, Aldwin
Pasicolan and Vicente Callagan are DIRECTED to ensure that no
further violation of petitioners rights to life, liberty and security is
committed against the latter or any member of his family.
The petition is DISMISSED with respect to President Gloria
Macapagal-Arroyo on account of her presidential immunity from suit.
Similarly, the petition is DISMISSED with respect to respondents Calog
and George Palacpac or Harry for lack of merit.
Petitioners prayer for issuance of a temporary protection order
and inspection order is DENIED.
Noriel Rodriguez (Rodriguez) is petitioner in G.R. No. 191805 and respondent
in G.R. No. 193160. He is a member ofAlyansa Dagiti Mannalon Iti Cagayan
(Kagimungan), a peasant organization affiliated with Kilusang Magbubukid ng
Pilipinas(KMP).
On the other hand, Gloria Macapagal-Arroyo (former President Arroyo),
Police Director General (PDG.) Jesus A. Verzosa, Police Senior Superintendent
(P/SSupt.) Jude W. Santos, Brigadier General (Brig. Gen.) Remegio M. De Vera,
First Lieutenant (1stLt.) Ryan S. Matutina, Lieutenant Colonel (Lt. Col.) Laurence E.
Mina, Antonio C. Cruz (Cruz), Aldwin C. Pasicolan (Pasicolan) and Vicente A.
Callagan (Callagan) are respondents in G.R. No. 191805 and petitioners in G.R.
No. 193160. At the time the events relevant to the present Petitions occurred,
former President Arroyo was the President of the Philippines. PDG. Verzosa,

P/SSupt. Santos, Brig. Gen. De Vera, 1st Lt. Matutina and Lt. Col. Mina were officers
of the Philippine National Police (PNP). Cruz, Pasicolan and Callagan were
Special Investigators of the Commission on Human Rights (CHR) in Region II.
Antecedent Facts
Rodriguez claims that the military tagged KMP as an enemy of the State
under the Oplan Bantay Laya, making its members targets of extrajudicial killings
and enforced disappearances.[2]
On 6 September 2009, at 5:00 p.m., Rodriguez had just reached Barangay Tapel,
Cagayan onboard a tricycle driven by Hermie Antonio Carlos (Carlos), when four
men forcibly took him and forced him into a car. Inside the vehicle were several
men in civilian clothes, one of whom was holding a .45 caliber pistol.
Subsequently, three more persons arrived, and one of them carried a gun at his
side. Two men boarded the car, while the others rode on the tricycle.[3]
The men tied the hands of Rodriguez, ordered him to lie on his stomach, sat on his
back and started punching him. The car travelled towards the direction of Sta.
Teresita-Mission and moved around the area until about 2:00 a.m. During the
drive, the men forced Rodriguez to confess to being a member of the New
Peoples Army (NPA), but he remained silent. The car then entered a place that
appeared to be a military camp. There were soldiers all over the area, and there
was a banner with the word Bravo written on it. Rodriguez later on learned that
the camp belonged to the 17th Infantry Battalion of the Philippine Army.[4]
Rodriguez was brought to a canteen, where six men confronted him,
ordering him to confess to his membership in the NPA. Due to his exhaustion, he
unintentionally fell asleep. As a result, the men hit him on the head to wake him
up. After the interrogation, two of the men guarded him, but did not allow him to
sleep.[5]
In the morning of 7 September 2009, the men tied the hands of Rodriguez,
blindfolded him and made him board a vehicle. While they were in transit, the
soldiers repeatedly hit him in the head and threatened to kill him. When the car
stopped after about ten minutes, the soldiers brought him to a room, removed his
blindfold, and forced him to confess to being a member of the NPA. During the
interrogation, the soldiers repeatedly hit him on the head. Thereafter, he was
detained inside the room for the entire day. The soldiers tied his stomach to
a papag, and gave him rice and viand. Fearing that the food might be poisoned,

he refused to eat anything. He slept on the papag while being tied to it at the
waist.[6]
On 8 September 2009, the men forced Rodriguez into a vehicle, which brought
them to Buguey and Mission. While passing houses along the way, the men asked
him if his contacts lived in those houses. When he failed to answer, a soldier
pointed a gun to his head and threatened to kill him and his family. Because he
remained silent, the soldiers beat him and tied him up. The vehicle returned to the
military camp at past 1:00 p.m., where he was again subjected to tactical
interrogation about the location of an NPA camp and his alleged NPA comrades.
He suffered incessant mauling every time he failed to answer.[7]
At dawn on 9 September 2009, soldiers armed with rifles took Rodriguez and made
him their guide on their way to an NPA camp in Birao. Accompanying them was
a man named Harry, who, according to the soldiers, was an NPA member who
had surrendered to the military. Harry pointed to Rodriguez and called him a
member of the NPA. He also heard Harry tell the soldiers that the latter knew the
area well and was acquainted with a man named Elvis. The soldiers loaded
Rodriguez into a military truck and drove to Tabbak, Buguey. While he was walking
with the soldiers, he noticed a soldier with the name tag Matutina, who appeared
to be an official because the other soldiers addressed him as sir.[8]
Upon reaching Birao on foot, the soldiers looked for and was able to locate a
certain Elvis and told him that Rodriguez had identified his whereabouts location.
The soldiers forced Rodriguez to convince Elvis to disclose the location of the NPA
camp. They brought the two to the mountains, where both were threatened with
death. When the soldiers punched Elvis, Rodriguez told them that he would reveal
the location of the NPA camp if they let Elvis go home. They finally released Elvis
around 3:00 p.m. that day. The soldiers and Rodriguez spent the next three nights
in the mountains.[9]
On 12 September 2009, the soldiers again hit Rodriguez and forced him to identify
the location of the NPA camp. He was blindfolded and warned to get ready
because they would beat him up again in the military camp. Upon arrival therein,
they brought him to the same room where he had first been detained, and two
soldiers mauled him again. They repeatedly punched and kicked him. In the
afternoon, they let him rest and gave him an Alaxan tablet. Thereafter, he fell
asleep due to over-fatigue and extreme body pain. The soldiers, however, hit him
again. After giving him a pen and a piece of paper, they ordered him to write

down his request for rice from the people. When he refused, the soldiers
maltreated him once more.[10]
On 13 September 2009, the soldiers forced Rodriguez to sign documents declaring
that he had surrendered in an encounter in Cumao, and

that the soldiers did not shoot him because he became a military asset in May.
When he refused to sign the document, he received another beating. Thus, he
was compelled to sign, but did so using a different signature to show that he was
merely coerced.[11]
The soldiers showed Rodriguez photographs of different persons and asked him if
he knew the men appearing therein. When he told them that he did not
recognize the individuals on the photos, the soldiers instructed him to write down
the name of his school and organization, but he declined. The soldiers then wrote
something on the paper, making it appear that he was the one who had written
it, and forced him to sign the document. The soldiers took photographs of him
while he was signing. Afterwards, the soldiers forced him down, held his hands,
and sat on his feet. He did not only receive another beating, but was also
electrocuted. The torture lasted for about an hour.[12]
At 11:00 p.m. on 15 September 2009, the soldiers brought Rodriguez to a military
operation in the mountains, where he saw Matutina again. They all spent the night
there.[13]
In the morning of 16 September 2009, the soldiers and Rodriguez started their
descent. When they stopped, the soldiers took his photograph and asked him to
name the location of the NPA camp. Thereafter, they all returned to the military
camp. The soldiers asked him to take a bath and wear a white polo shirt handed
to him. He was then brought to the Enrile Medical Center, where Dr. Juliet Ramil
(Dr. Ramil) examined him.[14] When the doctor asked him why he had bruises and
contusions, he lied and told her that he sustained them when he slipped, as he
noticed a soldier observing him. Dr. Ramils medical certificate indicated that he
suffered from four hematomas in the epigastric area, chest and sternum.[15]
Back at the camp, the soldiers let Rodriguez eat with several military officials and
took pictures of him while he was eating with them. They also asked him to point
to a map in front of him and again took his photograph. Later, they told him that
he would finally see his mother. [16]

Rodriguez was brought to another military camp, where he was ordered to sign a
piece of paper stating that he was a surrenderee and was never beaten up.
Scared and desperate to end his ordeal, he signed the paper and was warned
not to report anything to the media.[17]
Around 6:00 a.m. on 17 September 2009, the soldiers instructed petitioner to take
a bath. They gave him a pair of jeans and perfume. While he was having
breakfast, the two soldiers guarding him repeatedly reminded him not to disclose
to the media his experience in the camp and to say instead that he had
surrendered to the military.[18]
At 9:00 a.m. on the same day, the mother and the brother of Rodriguez arrived
surrounded by several men. His mother, Wilma Rodriguez (Wilma), talked to Lt.
Col. Mina. Rodriguez heard one of the soldiers tell Wilma that he had surrendered
to the military and had long been its asset. His brother, Rodel Rodriguez (Rodel),
informed him that the men accompanying them were from the CHR, namely,
Pasicolan, Cruz and Callagan. Upon seeing Rodriguez, Cruz instructed him to lift
up his shirt, and one of the CHR employees took photographs of his bruises.[19]
A soldier tried to convince Wilma to let Rodriguez stay in the camp for another
two weeks to supposedly prevent the NPA from taking revenge on him.
Respondent Calog also approached Rodriguez and Rodel and asked them to
become military assets. Rodel refused and insisted that they take Rodriguez home
to Manila. Again, the soldiers reminded them to refrain from facing the media.
The soldiers also told them that the latter will be taken to the Tuguegarao Airport
and guarded until they reached home.[20]
Rodriguez and his family missed their flight. Subsequently, the soldiers
accompanied them to the CHR office, where Rodriguez was made to sign an
affidavit stating that he was neither abducted nor tortured. Afraid and desperate
to return home, he was forced to sign the document. Cruz advised him not to file
a case against his abductors because they had already freed him. The CHR
personnel then led him and his family to the CHR Toyota Tamaraw FX service
vehicle. He noticed that a vehicle with soldiers on board followed them.[21]
The Tamaraw FX pulled over and respondent 1st Lt. Matutina boarded the
vehicle. Upon reaching a mall in Isabela, Rodriguez, his family, Callagan, 1st Lt.
Matutina and two other soldiers transferred to an orange Toyota Revo with plate
number WTG 579. Upon reaching the boundary of Nueva Ecija and Nueva
Viscaya, 1st Lt. Matutina alighted and called Rodriguez to a diner. A certain Alan

approached Rodriguez and handed him a cellphone with a SIM card. The latter
and his family then left and resumed their journey back home.[22]
Rodriguez reached his house in Sta. Ana, Manila at 3:00 a.m. on 18 September 2010.
Callagan and two soldiers went inside the house, and took photographs and a video
footage thereof. The soldiers explained that the photos and videos would serve as
evidence of the fact that Rodriguez and his family were able to arrive home safely.
Despite Rodriguezs efforts to confront the soldiers about their acts, they still continued
and only left thirty minutes later.[23]
On 19 September 2009, Dr. Reginaldo Pamugas, a physician trained by the
International Committee on Torture and Rehabilitation, examined Rodriguez and
issued a Medical Certificate stating that the latter had been a victim of torture.[24]
Around 7:00 a.m. on 3 November 2010, Rodriguez and his girlfriend, Aileen Hazel
Robles, noticed that several suspicious-looking men followed them at the Metro
Rail Transit (MRT), in the streets and on a jeepney.[25]
On 7 December 2009, Rodriguez filed before this Court a Petition for the Writ
of Amparo and Petition for the Writ of Habeas Datawith Prayers for Protection
Orders, Inspection of Place, and Production of Documents and Personal
Properties dated 2 December 2009.[26] The petition was filed against former
President Arroyo, Gen. Ibrado, PDG. Versoza, Lt. Gen. Bangit, Major General (Maj.
Gen.) Nestor Z. Ochoa, P/CSupt. Tolentino, P/SSupt. Santos, Col. De Vera, 1st Lt.
Matutina, Calog, George Palacpac (Palacpac), Cruz, Pasicolan and Callagan.
The petition prayed for the following reliefs:
a.
The issuance of the writ of amparo ordering respondents to
desist from violating Rodriguezs right to life, liberty and security.
b.
The issuance of an order to enjoin respondents from doing harm
to or approaching Rodriguez, his family and his witnesses.
c.
Allowing the inspection of the detention areas of the
Headquarters of Bravo Co., 5th Infantry Division, Maguing, Gonzaga,
Cagayan and another place near where Rodriguez was brought.
d.
Ordering respondents to produce documents submitted to them
regarding any report on Rodriguez, including operation reports and

provost marshall reports of the 5th Infantry Division, the Special Operations
Group of the Armed Forces of the Philippines (AFP), prior to, on and
subsequent to 6 September 2009.
e.
Ordering records pertinent or in any way connected to
Rodriguez, which are in the custody of respondents, to be expunged,
disabused, and forever barred from being used.[27]
On 15 December 2009, we granted the respective writs after finding that
the petition sufficiently alleged that Rodriguez had been abducted, tortured and
later released by members of the 17th Infantry Battalion of the Philippine
Army.[28] We likewise ordered respondents therein to file a verified return on the
writs on or before 22 December 2009 and to comment on the petition on or before
4 January 2010.[29] Finally, we directed the Court of Appeals to hear the petition
on 4 January 2010 and decide on the case within 10 days after its submission for
decision.[30]
During the initial hearing on 4 January 2010, the Court of Appeals required
the parties to submit affidavits and other pieces of evidence at the next
scheduled hearing on 27 January 2010.[31]
On 8 January 2010, respondents therein, through the Office of the Solicitor
General (OSG), filed their Return of the Writ, which was likewise considered as their
comment on the petition.[32] In their Return, respondents therein alleged that
Rodriguez had surrendered to the military on 28 May 2009 after he had been put
under surveillance and identified as Ka Pepito by former rebels.[33] According to
his military handlers, Corporal (Cpl.) Rodel

B. Cabaccan and Cpl. Julius P. Navarro, Rodriguez was a former member of the
NPA operating in Cagayan Valley.[34] Wanting to bolt from the NPA, he told Cpl.
Cabaccan and Cpl. Navarro that he would help the military in exchange for his
protection.[35]
Upon his voluntary surrender on 28 May 2009, Rodriguez was made to sign
an Oath of Loyalty and an Agents Agreement/Contract, showing his willingness
to return to society and become a military asset.[36] Since then, he acted as a
double agent, returning to the NPA to gather information.[37] However, he feared
that his NPA comrades were beginning to suspect him of being an
infiltrator.[38] Thus, with his knowledge and consent, the soldiers planned to stage

a sham abduction to erase any suspicion about him being a double

agent.[39] Hence, the abduction subject of the instant petition was conducted.[40]
Meanwhile, Cruz, Pasicolan and Callagan filed a Consolidated Return of the Writ
dated 15 January 2010,[41] alleging that they had exercised extraordinary diligence
in locating Rodriguez, facilitating his safe turnover to his family and securing their
journey back home to Manila. More specifically, they alleged that, on 16
September 2009, after Wilma sought their assistance in ascertaining the
whereabouts of her son, Cruz made phone calls to the military and law
enforcement agencies to determine his location.[42] Cruz was able to speak with Lt.
Col. Mina, who confirmed that Rodriguez was in their custody.[43] This information
was transmitted to CHR Regional Director Atty. Jimmy P. Baliga. He, in turn, ordered
Cruz, Pasicolan and Callagan to accompany Wilma to the 17th Infantry Division.[44]
When the CHR officers, along with Wilma and Rodel, arrived at the
17th Infantry Battalion at Masin, Alcala, Cagayan, Brigade Commander Col. de
Vera and Battalion Commander Lt. Col. Mina alleged that Rodriguez had
become one of their assets, as evidenced by the Summary on the Surrender of
Noriel Rodriguez and the latters Contract as Agent.[45] The CHR officers observed
his casual and cordial demeanor with the soldiers.[46] In any case, Cruz asked him
to raise his shirt to see if he had been subjected to any maltreatment. Cruz and
Pasicolan did not see any traces of torture. Thereafter, Rodriguez was released to
his family, and they were made to sign a certification to this effect. During the
signing of the document, herein CHR officers did not witness any threat,
intimidation or force employed against Rodriguez or his family. [47]
During their journey back to the home of Rodriguez, the CHR officers
observed that he was very much at ease with his military escorts, especially with
1st Lt. Matutina.[48] Neither was there any force or intimidation when the soldiers
took pictures of his house, as the taking of photographs was performed with
Wilmas consent.[49]
During the hearing on 27 January 2010, the parties agreed to file additional
affidavits and position papers and to have the case considered submitted for
decision after the filing of these pleadings.[50]
On 12 April 2010, the Court of Appeals rendered its assailed
Decision.[51] Subsequently, on 28 April 2010, respondents therein filed their
Motion for Reconsideration.[52] Before the Court of Appeals could resolve this

Motion for Reconsideration, Rodriguez filed the instant Petition for Partial Review on
Certiorari (G.R. No. 191805), raising the following assignment of errors:
a.
The Court of Appeals erred in not granting the Interim
Relief for temporary protection order.
b.
The Court of Appeals erred in saying: (H)owever, given
the nature of the writ of amparo, which has the effect of enjoining
the commission by respondents of violation to petitioners right to life,
liberty and security, the safety of petitioner is ensured with the
issuance of the writ, even in the absence of an order preventing
respondent from approaching petitioner.
c.
The Court of Appeals erred in not finding that respondent
Gloria Macapagal Arroyo had command responsibility.[53]

On the other hand, respondents therein, in their Comment dated 30 July

2010, averred:
a.
The Court of Appeals properly dropped then President
Gloria Macapagal Arroyo as a party-respondent, as she may not be
sued in any case during her tenure of office or actual incumbency.
b.
Petitioner had not presented any adequate and
competent evidence, much less substantial evidence, to establish his
claim that public respondents had violated, were violating or
threatening to violate his rights to life, liberty and security, as well as
his right to privacy. Hence, he was not entitled to the privilege of the
writs of amparo and habeas data or to the corresponding interim
reliefs (i.e. inspection order, production order and temporary
protection order) provided under the rule on the writ of amparo and
the rule on the writ of habeas data.[54]

On 19 August 2010, PDG. Verzosa, P/SSupt. Santos, BGen. De Vera, 1st Lt.
Matutina, Lt. Col. Mina, Cruz, Pasicolan and Callagan filed a Petition for Review
on Certiorari, seeking the reversal of the 12 April 2010 Decision of the Court of
Appeals.[55]They alleged that Rodriguez
Has not presented any adequate and competent evidence,
must less substantial evidence, to establish his claim that petitioners
have violated, are violating or threatening with violation his rights to

life, liberty and security, as well as his right to privacy; hence, he is not
entitled to the privilege of the writs of amparo and habeas data and
their corresponding interim reliefs (i.e., inspection order, production
order and temporary protection order) provided under the Rule on
the Writ of Amparo and the Rule on the Writ of Habeas Data.[56]

In ascertaining whether the Court of Appeals committed reversible error in

issuing its assailed Decision and Resolution, the following issues must be resolved:
I.

Whether the interim reliefs prayed for by Rodriguez may be

granted after the writs of amparo and habeas data have already
been issued in his favor.

II.

Whether former President Arroyo should be dropped as a respondent

on the basis of the presidenti

al immunity from suit.

III.

Whether the doctrine of command responsibility can be used in

amparo and habeas data cases.

IV.

Whether the rights to life, liberty and property of Rodriguez were

violated or threatened by respondents in G.R. No. 191805.

At the outset, it must be emphasized that the writs of amparo and habeas
data were promulgated to ensure the protection of the peoples rights to life,
liberty and security.[57] The rules on these writs were issued in light of the alarming
prevalence of extrajudicial killings and enforced disappearances.[58] The Rule on
the Writ of Amparo took effect on 24 October 2007,[59] and the Rule on the Writ
of Habeas Data on 2 February 2008.[60]
The writ of amparo is an extraordinary and independent remedy that
provides rapid judicial relief, as it partakes of a summary proceeding that requires
only substantial evidence to make the appropriate interim and permanent reliefs
available to the petitioner.[61] It is not an action to determine criminal guilt
requiring proof beyond reasonable doubt, or liability for damages requiring
preponderance of evidence, or administrative responsibility requiring substantial
evidence that will require full and exhaustive proceedings.[62] Rather, it serves
both preventive and curative roles in addressing the problem of extrajudicial
killings and enforced disappearances.[63] It is preventive in that it breaks the
expectation of impunity in the commission of these offenses, and it is curative in

that it facilitates the subsequent punishment of perpetrators by inevitably leading

to subsequent investigation and action.[64]
Meanwhile, the writ of habeas data provides a judicial remedy to protect
a persons right to control information regarding oneself, particularly in instances
where such information is being collected through unlawful means in order to
achieve unlawful ends.[65] As an independent and summary remedy to protect
the right to privacy especially the right to informational privacy[66]the proceedings
for the issuance of the writ of habeas data does not entail any finding of criminal,
civil or administrative culpability. If the allegations in the petition are proven
through substantial evidence, then the Court may (a) grant access to the
database or information; (b) enjoin the act complained of; or (c) in case the
database or information contains erroneous data or information, order its
deletion, destruction or rectification.[67]

First issue: Grant of interim reliefs

In the petition in G.R. No. 191805, Rodriguez prays for the issuance of a
temporary protection order. It must be underscored that this interim relief is only
available before final judgment. Section 14 of the Rule on the Writ
of Amparo clearly provides:
Interim Reliefs. Upon filing of the petition or at anytime before
final judgment, the court, justice or judge may grant any of the
following reliefs:
Temporary Protection Order. The court, justice or judge, upon
motion or motu proprio, may order that the petitioner or the
aggrieved party and any member of the immediate family be
protected in a government agency or by an accredited person or
private institution capable of keeping and securing their safety. If the
petitioner is an organization, association or institution referred to in
Section 3(c) of this Rule, the protection may be extended to the
officers involved.

The Supreme Court shall accredit the persons and private

institutions that shall extend temporary protection to the petitioner or

the aggrieved party and any member of the immediate family, in

accordance with guidelines which it shall issue.
The accredited persons and private institutions shall comply
with the rules and conditions that may be imposed by the court,
justice or judge.
(a)
Inspection Order. The court, justice or judge, upon
verified motion and after due hearing, may order any person in
possession or control of a designated land or other property, to
permit entry for the purpose of inspecting, measuring, surveying, or
photographing the property or any relevant object or operation
thereon.
The motion shall state in detail the place or places to be
inspected. It shall be supported by affidavits or testimonies of
witnesses having personal knowledge of the enforced
disappearance or whereabouts of the aggrieved party.
If the motion is opposed on the ground of national security or
of the privileged nature of the information, the court, justice or judge
may c
onduct a hearing in chambers to determine the merit of the
opposition.
The movant must show that the inspection order is necessary
to establish the right of the aggrieved party alleged to be threatened
or violated.
The inspection order shall specify the person or persons
authorized to make the inspection and the date, time, place and
manner of making the inspection and may prescribe other conditions
to protect the constitutional rights of all parties. The order shall expire
five (5) days after the date of its issuance, unless extended for
justifiable reasons.
(b)
Production Order. The court, justice, or judge, upon
verified motion and after due hearing, may order any person in
possession, custody or control of any designated documents, papers,
books, accounts, letters, photographs, objects or tangible things, or
objects in digitized or electronic form, which constitute or contain
evidence relevant to the petition or the return, to produce and
permit their inspection, copying or photographing by or on behalf of
the movant.

The motion may be opposed on the ground of national

security or of the privileged nature of the information, in which case
the court, justice or judge may conduct a hearing in chambers to
determine the merit of the opposition.
The court, justice or judge shall prescribe other conditions to
protect the constitutional rights of all the parties.
(c)
Witness Protection Order. The court, justice or judge,
upon motion or motu proprio, may refer the witnesses to the
Department of Justice for admission to the Witness Protection,
Security and Benefit Program, pursuant to Republic Act No. 6981.
The court, justice or judge may also refer the witnesses to other
government agencies, or to accredited persons or private institutions
capable of keeping and securing their safety. (Emphasis supplied)

We held in Yano v. Sanchez[68] that [t]hese provisional reliefs are intended to

assist the court before it arrives at a judicious determination of
the amparo petition. Being interim reliefs, they can only be granted before a final
adjudication of the case is made. In any case, it must be underscored that the
privilege of the writ of amparo, once granted, necessarily entails the protection of
the aggrieved party. Thus, since we grant petitioner the privilege of the writ
of amparo, there is no need to issue a temporary protection order independently
of the former. The order restricting respondents from going near Rodriguez is
subsumed under the privilege of the writ.
Second issue: Presidential immunity from
suit
It bears stressing that since there is no determination of administrative, civil
or criminal liability in amparo and habeas data proceedings, courts can only go
as far as ascertaining responsibility or accountability for the enforced
disappearance or extrajudicial killing. As we held in Razon v. Tagitis:[69]
It does not determine guilt nor pinpoint criminal culpability for
the disappearance; rather, it determines responsibility, or at least
accountability, for the enforced disappearance for purposes of
imposing the appropriate remedies to address the disappearance.
Responsibility refers to the extent the actors have been established

by substantial evidence to have participated in whatever way, by

action or omission, in an enforced disappearance, as a measure of
the remedies this Court shall craft, among them, the directive to file
the appropriate criminal and civil cases against the responsible
parties in the proper courts. Accountability, on the other hand, refers
to the measure of remedies that should be addressed to those who
exhibited involvement in the enforced disappearance without
bringing the level of their complicity to the level of
responsibility defined above; or who are imputed with
knowledge relating to the enforced disappearance and who carry
the burden of disclosure; or those who carry, but have failed to
discharge, the burden of extraordinary diligence in the
investigation of the enforced disappearance. In all these cases, the
issuance of the Writ of Amparo is justified by our primary goal of
addressing the disappearance, so that the life of the victim is
preserved and his liberty and security are restored.[70](Emphasis
supplied.)

Thus, in the case at bar, the Court of Appeals, in its Decision[71] found
respondents in G.R. No. 191805 with the exception of Calog, Palacpac or Harry to
be accountable for the violations of Rodriguezs right to life, liberty and security
committed by the 17thInfantry Battalion, 5th Infantry Division of the Philippine
Army. [72] The Court of Appeals dismissed the petition with respect to former President
Arroyo on account of her presidential immunity from suit. Rodriguez contends,
though, that she should remain a respondent in this case to enable the courts to
determine whether she is responsible or accountable therefor. In this regard, it must
be clarified that the Court of Appeals rationale for dropping her from the list of
respondents no longer stands since her presidential immunity is limited only to her
incumbency.
In Estrada v. Desierto,[73] we clarified the doctrine that a non-sitting
President does not enjoy immunity from suit, even for acts committed during the
latters tenure. We emphasize our ruling therein that courts should look with
disfavor upon the presidential privilege of immunity, especially when it impedes
the search for truth or impairs the vindication of a right, to wit:
We reject [Estradas] argument that he cannot be prosecuted
for the reason that he must first be convicted in the impeachment
proceedings. The impeachment trial of petitioner Estrada was
aborted by the walkout of the prosecutors and by the events that led
to his loss of the presidency. Indeed, on February 7, 2001, the Senate

passed Senate Resolution No. 83 Recognizing that the Impeachment

Court is Functus Officio. Since the Impeachment Court is now functus
officio, it is untenable for petitioner to demand that he should first be
impeached and then convicted before he can be prosecuted. The
plea if granted, would put a perpetual bar against his prosecution.
Such a submission has nothing to commend itself for it will place him
in a better situation than a non-sitting President who has not been
subjected to impeachment proceedings and yet can be the object
of a criminal prosecution. To be sure, the debates in the
Constitutional Commission make it clear that when impeachment
proceedings have become moot due to the resignation of the
President, the proper criminal and civil cases may already be filed
against him, viz:
xxx xxx xxx
Mr. Aquino. On another point, if an impeachment
p
roceeding has been filed against the President, for
example, and the President resigns before judgment of
conviction has been rendered by the impeachment
court or by the body, how does it affect the
impeachment proceeding? Will it be necessarily
dropped?
Mr. Romulo. If we decide the purpose of
impeachment to remove one from office, then his
resignation would render the case moot and academic.
However, as the provision says, the criminal and civil
aspects of it may continue in the ordinary courts.
This is in accord with our ruling in In Re: Saturnino Bermudez
that incumbent Presidents are immune from suit or from being
brought to court during the period of their incumbency and tenure
but not beyond. xxx
We now come to the scope of immunity that can be claimed
by petitioner as a non-sitting President. The cases filed against
petitioner Estrada are criminal in character. They involve plunder,
bribery and graft and corruption. By no stretch of the imagination
can these crimes, especially plunder which carries the death
penalty, be covered by the alleged mantle of immunity of a nonsitting president. Petitioner cannot cite any decision of this Court
licensing the President to commit criminal acts and wrapping him

with post-tenure immunity from liability. It will be anomalous to hold

that immunity is an inoculation from liability for unlawful acts and
omissions. The rule is that unlawful acts of public officials are not acts
of the State and the officer who acts illegally is not acting as such but
stands in the same footing as any other trespasser.
Indeed, a critical reading of current literature on executive
immunity will reveal a judicial disinclination to expand the privilege
especially when it impedes the search for truth or impairs the
vindication of a right. In the 1974 case of US v. Nixon, US President
Richard Nixon, a sitting President, was subpoenaed to produce
certain recordings and documents relating to his conversations with
aids and advisers. Seven advisers of President Nixon's associates were
facing charges of conspiracy to obstruct justice and other offenses
which were committed in a burglary of the Democratic National
Headquarters in Washington's Watergate Hotel during the 1972
presidential campaign. President Nixon himself was named an
unindicted co-conspirator. President Nixon moved to quash the
subpoena on the ground, among others, that the President was not
subject to judicial process and that he should first be impeached and
removed from office before he could be made amenable to judicial
proceedings. The claim was rejected by the US Supreme Court. It
concluded that when the ground for asserting privilege as to
subpoenaed materials sought for use in a criminal trial is based only
on the generalized interest in confidentiality, it cannot prevail over
the fundamental demands of due process of law in the fair
administration of criminal justice. In the 1982 case of Nixon v.
Fitzgerald, the US Supreme Court further held that the immunity of the
President from civil damages covers only official acts. Recently, the
US Supreme Court had the occasion to reiterate this doctrine in the
case of Clinton v. Jones where it held that the US President's immunity
from suits for money damages arising out of their official acts is
inapplicable to unofficial conduct.[74](Emphasis supplied)

Further, in our Resolution in Estrada v. Desierto,[75] we reiterated that the

presidential immunity from suit exists only in concurrence with the presidents
incumbency:
Petitioner stubbornly clings to the contention that he is entitled
to absolute immunity from suit. His arguments are merely recycled
and we need not prolong the longevity of the debate on the subject.
In our Decision, we exhaustively traced the origin of executive

immunity in our jurisdiction and its bends and turns up to the present
time. We held that given the intent of the 1987 Constitution to breathe
life to the policy that a public office is a public trust, the petitioner, as
a non-sitting President, cannot claim executive immunity for his
alleged criminal acts committed while a sitting President. Petitioner's
rehashed arguments including their thinly disguised new spins are
based on the rejected contention that he is still President, albeit, a
President on leave. His stance that his immunity covers his entire term
of office or until June 30, 2004 disregards the reality that he has
relinquished the presidency and there is now a new de jurePresident.
Petitioner goes a step further and avers that even a non-sitting
President enjoys immunity from suit during his term of office. He
buttresses his position with the deliberations of the Constitutional
Commission, viz:
Mr. Suarez. Thank you.
The last question is with reference to the
Committee's omitting in the draft proposal the immunity
provision for the President. I agree with Commissioner
Nolledo that the Committee did very well in striking out
this second sentence, at the very least, of the original
provision on immunity from suit under the 1973
Constitution. But would the Committee members not
agree to a restoration of at least the first sentence that
the president shall be immune from suit during his tenure,
considering that if we do not provide him that kind of an
immunity, he might be spending all his time facing
litigations, as the President-in-exile in Hawaii is now
facing litigations almost daily?
Fr. Bernas:
The reason for the omission is that we consider it
understood in present jurisprudence that during his
tenure he is immune from suit.
Mr. Suarez:
So there is no need to express it here.
Fr. Bernas:

There is no need. It was that way before. The only

innovation made by the 1973 Constitution was to make
that explicit and to add other things.
Mr. Suarez:
On the understanding, I will not press for any more
query, madam President.
I thank the Commissioner for the clarification.
Petitioner, however, fails to distinguish between term and
tenure. The term means the time during which the officer may claim
to hold the office as of right, and fixes the interval after which the
several incumbents shall succeed one another. The tenure represents
the term during which the incumbent actually holds office. The tenure
may be shorter than the term for reasons within or beyond the power
of the incumbent. From the deliberations, the intent of the framers is
clear that the immunity of the president from suit is concurrent only
with his tenure and not his term.[76] (Emphasis supplied)

Applying the foregoing rationale to the case at bar, it is clear that former
President Arroyo cannot use the presidential immunity from suit to shield herself from
judicial
scrutiny
that
would
assess
whether,
within
the
context
of amparo proceedings, she was responsible or accountable for the abduction of
Rodriguez.
Third
issue:
Command
in amparo proceedings

responsibility

To attribute responsibility or accountability to former President Arroyo,

Rodriguez contends that the doctrine of command responsibility may be applied.
As we explained in Rubrico v. Arroyo,[77] command responsibility pertains to the
responsibility of commanders for crimes committed by subordinate members of
the armed forces or other persons subject to their control in international wars or
domestic conflict.[78] Although originally used for ascertaining criminal complicity,
the command responsibility doctrine has also found application in civil cases for
human rights abuses.[79] In the United States, for example, command responsibility
was used in Ford v. Garcia and Romagoza v. Garcia civil actions filed under the
Alien Tort Claims Act and the Torture Victim Protection Act.[80] This development
in the use of command responsibility in civil proceedings shows that the

application of this doctrine has been liberally extended even to cases not criminal
in nature. Thus, it is our view that command responsibility may likewise find
application in proceedings seeking the privilege of the writ of amparo. As we held
in Rubrico:
It may plausibly be contended that command responsibility, as
legal basis to hold military/police commanders liable for extra-legal
killings, enforced disappearances, or threats, may be made
applicable to this jurisdiction on the theory that the command
responsibility doctrine now constitutes a principle of international law
or customary international law in accordance with the incorporation
clause of the Constitution.
If command responsibility were to be invoked and applied to
these proceedings, it should, at most, be only to determine the author
who, at the first instance, is accountable for, and has the duty to
address, the disappearance and harassments complained of, so as
to enable the Court to devise remedial measures that may be
appropriate under the premises to protect rights covered by the writ
of amparo. As intimated earlier, however, the determination should
not be pursued to fix criminal liability on respondents preparatory to
criminal prosecution, or as a prelude to administrative disciplinary
proceedings under existing administrative issuances, if there be
any.[81] (Emphasis supplied.)

Precisely in the case at bar, the doctrine of command responsibility may be

used to determine whether respondents are accountable for and have the duty
to address the abduction of Rodriguez in order to enable the courts to devise
remedial measures to protect his rights. Clearly, nothing precludes this Court from
applying the doctrine of command responsibility in amparo proceedings to
ascertain responsibility and accountability in extrajudicial killings and enforced
disappearances. In this regard, the Separate Opinion of Justice Conchita CarpioMorales in Rubrico is worth noting, thus:
That proceedings under the Rule on the Writ of Amparo do not
determine criminal, civil or administrative liability should not abate
the applicability of the doctrine of command responsibility. Taking
Secretary of National Defense v. Manalo and Razon v. Tagitis in
proper context, they do not preclude the application of the doctrine
of command responsibility to Amparo cases.

Manalo was actually emphatic on the importance of the right

to security of person and its contemporary signification as a
guarantee of protection of ones rights by the government. It further
stated that protection includes conducting effective investigations,
organization of the government apparatus to extend protection to
victims of extralegal killings or enforced disappearances, or threats
thereof, and/or their families, and bringing offenders to the bar of
justice.
Tagitis, on the other hand, cannot be more categorical on the
application, at least in principle, of the doctrine of command
responsibility:
Given their mandates, the PNP and PNP-CIDG
officials and members were the ones who were remiss in
their duties when the government completely failed to
exercise the extraordinary diligence that the Amparo
Rule requires. We hold these organizations accountable
through their incumbent Chiefs who, under this
Decision, shall carry the personal responsibility of seeing
to it that extraordinary diligence, in the manner the
Amparo Rule requires, is applied in addressing the
enforced disappearance of Tagitis.
Neither does Republic Act No. 9851 emasculate the
applicability of the command responsibility doctrine to Amparo
cases. The short title of the law is the Philippine Act on Crimes Against
International Humanitarian Law, Genocide, and Other Crimes
Against Humanity. Obviously, it should, as it did, only treat of superior
responsibility as a ground for criminal responsibility for the crimes
covered. Such limited treatment, however, is merely in keeping with
the statutes purpose and not intended to rule out the application of
the doctrine of command responsibility to other appropriate cases.
Indeed, one can imagine the innumerable dangers of
insulating high-ranking military and police officers from the coverage
of reliefs available under the Rule on the Writ of Amparo. The explicit
adoption of the doctrine of command responsibility in the present
case will only bring Manalo and Tagitis to their logical conclusion.
In fine, I submit that the Court should take this opportunity to
state what the law ought to be if it truly wants to make the Writ of
Amparo an effective remedy for victims of extralegal killings and
enforced disappearances or threats thereof. While there is a genuine
dearth of evidence to hold respondents Gen. Hermogenes Esperon

and P/Dir. Gen. Avelino Razon accountable under the command

responsibility doctrine, the ponencias hesitant application of the
doctrine itself is replete with implications abhorrent to the rationale
behind the Rule on the Writ of Amparo.[82] (Emphasis supplied.)
This Separate Opinion was reiterated in the recently decided case of Boac
v. Cadapan,[83] likewise penned by Justice Carpio-Morales, wherein this Court
ruled:
Rubrico categorically denies the application of command
responsibility in amparo cases to determine criminal liability. The
Court maintains its adherence to this pronouncement as far
as amparo cases are concerned.
Rubrico, however, recognizes a preliminary yet limited
application of command responsibility in amparo cases to instances
of determining the responsible or accountable individuals or entities
that are duty-bound to abate any transgression on the life, liberty or
security of the aggrieved party.
If command responsibility were to be invoked and
applied to these proceedings, it should, at most, be
only to determine the author who, at the first instance, is
accountable for, and has the duty to address, the
disappearance and harassments complained of, so
as to enable the Court to devise remedial measures that
may be appropriate under the premises to protect rights
covered by the writ of amparo. As intimated earlier,
however, the determination should not be pursued to fix
criminal liability on respondents preparatory to criminal
prosecution, or as a prelude to administrative
disciplinary proceedings under existing administrative
issuances, if there be any.
In other words, command responsibility may be loosely
applied in amparo cases in order to identify those accountable
individuals that have the power to effectively implement whatever
processes an amparo court would issue. In such application,
the amparo court does not impute criminal responsibility but merely
pinpoint the superiors it considers to be in the best position to protect
the rights of the aggrieved party.

Such identification of the responsible and accountable

superiors may well be a preliminary determination of criminal liability
which, of course, is still subject to further investigation by the
appropriate government agency. (Emphasis supplied.)
As earlier pointed out, amparo proceedings determine (a) responsibility, or
the extent the actors have been established by substantial evidence to
have participated in whatever way, by action or omission, in an enforced
disappearance, and (b) accountability, or the measure of remedies that should
be addressed to those (i) who exhibited involvement in the enforced
disappearance without bringing the level of their complicity to the level of
responsibility defined above; or (ii) who are imputed with knowledge relating to
the enforced disappearance and who carry the burden of disclosure; or (iii) those
who carry, but have failed to discharge, the burden of extraordinary diligence in
the investigation of the enforced disappearance. Thus, although there is no
determination of criminal, civil or administrative liabilities, the doctrine of
command responsibility may nevertheless be applied to ascertain responsibility
and accountability within these foregoing definitions.
a.
Command responsibility
of the President
Having established the applicability of the doctrine of command
responsibility in amparo proceedings, it must now be resolved whether the
president, as commander-in-chief of the military, can be held responsible or
accountable for extrajudicial killings and enforced disappearances. We rule in
the affirmative.
To hold someone liable under the doctrine of command responsibility, the
following elements must obtain:
a.

the existence of a superior-subordinate relationship between

the accused as superior and the perpetrator of the crime as his
subordinate;

b.

the superior knew or had reason to know that the crime was
about to be or had been committed; and

c.

the superior failed to take the necessary and reasonable

measures to prevent the criminal acts or punish the perpetrators
thereof.[84]

The president, being the commander-in-chief of all armed

forces,[85] necessarily possesses control over the military that qualifies him as a
superior within the purview of the command responsibility doctrine. [86]
On the issue of knowledge, it must be pointed out that although
international tribunals apply a strict standard of knowledge, i.e., actual
knowledge, such may nonetheless be established through circumstantial
evidence.[87] In the Philippines, a more liberal view is adopted and superiors may
be charged with constructive knowledge. This view is buttressed by the
enactment of Executive Order No. 226, otherwise known as the Institutionalization
of the Doctrine of Command Responsibility in all Government Offices, particularly
at all Levels of Command in the Philippine National Police and other Law
Enforcement Agencies (E.O. 226).[88]Under E.O. 226, a government official may
be held liable for neglect of duty under the doctrine of command responsibility if
he has knowledge that a crime or offense shall be committed, is being
committed, or has been committed by his subordinates, or by others within his
area of responsibility and, despite such knowledge, he did not take preventive or
corrective action either before, during, or immediately after its
commission.[89] Knowledge of the commission of irregularities, crimes or offenses is
presumed when (a) the acts are widespread within the government officials area
of jurisdiction; (b) the acts have been repeatedly or regularly committed within
his area of responsibility; or (c) members of his immediate staff or office personnel
are involved.[90]
Meanwhile, as to the issue of failure to prevent or punish, it is important to note
that as the commander-in-chief of the armed forces, the president has the power to
effectively command, control and discipline the military.[91]
b.
Responsibility or
accountability of former President
Arroyo
The next question that must be tackled is whether Rodriguez has proven
through substantial evidence that former President Arroyo is responsible or
accountable for his abduction. We rule in the negative.
Rodriguez anchors his argument on a general allegation that on the basis
of the Melo Commission and the Alston Report, respondents in G.R. No. 191805
already had knowledge of and information on, and should have known that a
climate of enforced disappearances had been perpetrated on members of the

NPA.[92] Without even attaching, or at the very least, quoting these reports,
Rodriguez contends that the Melo Report points to rogue military men as the
perpetrators. While the Alston Report states that there is a policy allowing
enforced disappearances and pins the blame on the President, we do not
automatically impute responsibility to former President Arroyo for each and every
count of forcible disappearance.[93] Aside from Rodriguezs general averments,
there is no piece of evidence that could establish her responsibility or
accountability for his abduction. Neither was there even a clear attempt to show
that she should have known about the violation of his right to life, liberty or security,
or that she had failed to investigate, punish or prevent it.
Fourth issue: Responsibility or accountability
of respondents in G.R. No. 191805
The doctrine of totality of evidence in amparo cases was first laid down in
this Courts ruling in Razon,[94] to wit:
The fair and proper rule, to our mind, is to consider all the pieces
of evidence adduced in their totality, and to consider any evidence
otherwise inadmissible under our usual rules to be admissible if it is
consistent with the admissible evidence adduced. In other words, we
reduce our rules to the most basic test of reason i.e., to the relevance
of the evidence to the issue at hand and its consistency with all other
pieces of adduced evidence. Thus, even hearsay evidence can be
admitted if it satisfies this basic minimum test.[95] (Emphasis supplied.)

In the case at bar, we find no reason to depart from the factual findings of
the Court of Appeals, the same being supported by substantial evidence. A
careful examination of the records of this case reveals that the totality of the
evidence adduced by Rodriguez indubitably prove the responsibility and
accountability of some respondents in G.R. No. 191805 for violating his right to life,
liberty and security.

a.
The totality of evidence
proved by substantial evidence the
responsibility or accountability of
respondents for the violation of or
threat to Rodriguezs right to life, liberty
and security.
After a careful examination of the records of these cases, we are
convinced that the Court of Appeals correctly found sufficient evidence proving
that the soldiers of the 17th Infantry Battalion, 5th Infantry Division of the military
abducted Rodriguez on 6 September 2009, and detained and tortured him until
17 September 2009.
Rodriguezs Sinumpaang Salaysay dated 4 December 2009 was a
meticulous and straightforward account of his horrific ordeal with the military,
detailing the manner in which he was captured and maltreated on account of
his suspected membership in the NPA.[96] His narration of his suffering included an
exhaustive description of his physical surroundings, personal circumstances and
perceived observations. He likewise positively identified respondents 1st Lt.
Matutina and Lt. Col. Mina to be present during his abduction, detention and
torture,[97] and respondents Cruz, Pasicolan and Callagan as the CHR
representatives who appeared during his release.[98]
More particularly, the fact of Rodriguezs abduction was corroborated by
Carlos in his Sinumpaang Salaysay dated 16 September 2009,[99] wherein he
recounted in detail the circumstances surrounding the victims capture.
As regards the allegation of torture, the respective Certifications of Dr. Ramil
and Dr. Pamugas validate the physical maltreatment Rodriguez suffered in the
hands of the soldiers of the 17th Infantry Battalion, 5th Infantry Division. According
to the Certification dated 12 October 2009 executed by Dr. Ramil,[100] she
examined Rodriguez in the Alfonso Ponce Enrile Memorial District Hospital on 16
September 2009 and arrived at the following findings:
FACE
-

10cm healed scar face right side

2cm healed scar right eyebrow (lateral area)
2cm healed scar right eye brow (median area)
4cm x 2cm hematoma anterior chest at the sternal area right side
3cm x 2cm hematoma sternal area left side

6cm x 1cm hematoma from epigastric area to ant. chest left side
6cm x 1cm hematoma from epigastric area to ant. chest right side
Multiple healed rashes (brownish discoloration) both forearm
Multiple healed rashes (brownish discoloration)
both leg arm
hip area/lumbar area[101]

Dr. Pamugas performed a separate medical examination of Rodriguez on

19 September 2009, the results of which confirmed that the injuries suffered by the
latter were inflicted through torture. Dr. Pamugas thus issued a Medical Report
dated 23 September 2009,[102] explicitly stating that Rodriguez had been tortured
during his detention by the military, to wit:
X. Interpretation of Findings
The above physical and psychological findings sustained by
the subject are related to the torture and ill-treatment done to him.
The multiple circular brown to dark brown spots found on both legs
and arms were due to the insect bites that he sustained when he was
forced to join twice in the military operations. The abrasions could
also be due to the conditions related during military operations. The
multiple pin-point blood spots found on his left ear is a result of an
unknown object placed inside his left ear. The areas of tenderness he
felt during the physical examination were due to the overwhelming
punching and kicking on his body. The occasional difficulty of
sleeping is a symptom experience (sic) by the subject as a result of
the psychological trauma he encountered during his detention.
XI. Conclusions and Recommendations
The physical injuries and psychological trauma suffered by the
subject are secondary to the torture and ill-treatment done to him
while in detention for about 11 days. The physical injuries sustained
by the subject, of which the age is compatible with the alleged date
of infliction (sic).[103] (Emphasis supplied.)

In assessing the weight of the Certifications, the Court of Appeals correctly

relied on the medical finding that the injuries suffered by Rodriguez matched his
account of the maltreatment inflicted on him by the soldiers of the 17th Infantry
Battalion, 5thInfantry Division of the Philippine Army. Further, the kind of injuries he

sustained showed that he could not have sustained them from merely falling, thus
making respondents claim highly implausible.
Despite these medical findings that overwhelmingly supported and lent
credibility to the allegations of Rodriguez in hisSinumpaang Salaysay, respondents
in G.R. No. 191805 still stubbornly clung to their argument that he was neither
abducted nor detained. Rather, they claimed that he was a double agent,
whose relationship with the military was at all times congenial. This contention
cannot be sustained, as it is far removed from ordinary human experience.
If it were true that Rodriguez maintained amicable relations with the
military, then he should have unhesitatingly assured his family on 17 September
2009 that he was among friends. Instead, he vigorously pleaded with them to get
him out of the military facility. In fact, in the Sinumpaang Salaysay dated 4
December 2009[104] Wilma executed, she made the following averments:
18. Na nang Makita ko ang aking anak ay nakaramdam ako
sa kanya ng awa dahil sa mukha syang pagod at malaki ang
kanyang ipinayat.
19. Na niyakap ko sya at sa aming pagkakayakap ay
binulungan nya ako na wag ko syang iiwan sa lugar na iyon;
xxx xxx xxx
23. Na sinabihan ako ng mga sundalo na kung pwede daw ay
maiwan muna ng dalawang linggo sa kampo ako at si Noriel para
daw matrain pa si Noriel sa loob ng kampo;
24. Na hindi ako pumayag na maiwan ang aking anak;
xxx xxx xxx
33. Na sa kasalukuhan, hanggang ngayon ay nag-aalala pa
ako sa paa (sic) sa kaligtasan ng aming buong pamilya, lalo na kay
Noriel; xxx[105]

Also, Rodel made the following supporting averments in his Sinumpaang

Salaysay dated 3 December 2009:[106]

24. Na nang makita ko si Noriel, hindi sya makalakad ng

diretso, hinang-hina sya, malaki ang ipinayat at nanlalalim ang mga
mata;
25. Na nang makita ko ang aking kapatid ay nakaramdam
ako ng awa dahil nakilala ko syang masigla at masayahin;
26. Na ilang minuto lang ay binulugan nya ako ng Kuya, ilabas
mo ako dito, papatayin nila ako.
27. Na sinabihan kami ni Lt. Col. Mina na baka pwedeng
maiwan pa ng dalwang linggo ang aking kapatid sa kanila para raw
ma-train sya.

28. Na hindi kami pumayag ng aking nanay; xxx[107]

Moreover, the Court of Appeals likewise aptly pointed out the illogical, if
not outrightly contradictory, contention of respondents in G.R. No. 191805 that
while Rodriguez had complained of his exhaustion from his activities as a member
of the CPP-NPA, he nevertheless willingly volunteered to return to his life in the NPA
to become a double-agent for the military. The lower court ruled in this manner:
In the Return of the Writ, respondent AFP members alleged that
petitioner confided to his military handler, Cpl. Navarro, that
petitioner could no longer stand the hardships he experienced in the
wilderness, and that he wanted to become an ordinary citizen again
because of the empty promises of the CPP-NPA. However, in the
same Return, respondents state that petitioner agreed to become a
double agent for the military and wanted to re-enter the CPP-NPA,
so that he could get information regarding the movement directly
from the source. If petitioner was tired of life in the wilderness and
desired to become an ordinary citizen again, it defies logic that he
would agree to become an undercover agent and work alongside
soldiers in the mountains or the wilderness he dreads to locate the
hideout of his alleged NPA comrades.[108] (Emphasis supplied.)

Furthermore, the appellate court also properly ruled that aside from the
abduction, detention and torture of Rodriguez, respondents, specifically 1st Lt.
Matutina, had violated and threatened the formers right to security when they
made a visual recording of his house, as well as the photos of his relatives, to wit:

In the videos taken by the soldiers one of whom was

respondent Matutina in the house of petitioner on September 18,
2009, the soldiers even went as far as taking videos of the photos of
petitioners relatives hung on the wall of the house, as well as videos
of the innermost part of the house. This Court notes that 1Lt. Matutina,
by taking the said videos, did not merely intend to make proofs of the
safe arrival of petitioner and his family in their home. 1Lt. Matutina
also desired to instill fear in the minds of petitioner and his family by
showing them that the sanctity of their home, from then on, will not
be free from the watchful eyes of the military, permanently captured
through the medium of a seemingly innocuous cellhpone video
camera. The Court cannot and will not condone such act, as it
intrudes into the very core of petitioners right to security guaranteed
by the fundamental law.[109] (Emphasis supplied.)

Taken in their totality, the pieces of evidence adduced by Rodriguez, as

well as the contradictory defenses presented by respondents in G.R. No. 191805,
give credence to his claim that he had been abducted, detained and tortured
by soldiers belonging to the 17th Infantry Battalion, 5th Infantry Division of the
military.
It must be pointed out, however, that as to respondents Cruz, Pasicolan and
Callagan, there was no substantial evidence to show that they violated, or
threatened with violation, Rodriguezs right to life, liberty and security. Despite the
dearth of evidence to show the CHR officers responsibility or accountability, this
Court nonetheless emphasizes its criticism as regards their capacity to recognize
torture or any similar form of abuse. The CHR, being constitutionally mandated to
protect human rights and investigate violations thereof,[110] should ensure that its
officers are well-equipped to respond effectively to and address human rights
violations. The actuations of respondents unmistakably showed their insufficient
competence in facilitating and ensuring the safe release of Rodriguez after his
ordeal.

b.
The failure to conduct a fair and
effect investigation amounted to a
violation of or threat to Rodriguezs
rights to life, liberty and security.
The Rule on the Writ of Amparo explicitly states that the violation of or threat
to the right to life, liberty and security may be caused by either an act or
an omission of a public official.[111] Moreover, in the context of amparo

proceedings, responsibility may refer to the participation of the respondents, by

action or omission, in enforced disappearance.[112]Accountability, on the other
hand, may attach to respondents who are imputed with knowledge relating to
the enforced disappearance and who carry the burden of disclosure; or those
who carry, but have failed to discharge, the burden of extraordinary diligence in
the investigation of the enforced disappearance.[113]
In this regard, we emphasize our ruling in Secretary of National Defense v.
Manalo[114] that the right to security of a person includes the positive obligation of
the government to ensure the observance of the duty to investigate, viz:
Third, the right to security of person is a guarantee of protection
of one's rights by the government. In the context of the writ
of Amparo, this right is built into the guarantees of the right to life and
liberty under Article III, Section 1 of the 1987 Constitution and the right
to security of person (as freedom from threat and guarantee of
bodily and psychological integrity) under Article III, Section 2. The
right to security of person in this third sense is a corollary of the policy
that the State guarantees full respect for human rights under Article
II, Section 11 of the 1987 Constitution. As the government is the chief
guarantor of order and security, the Constitutional guarantee of the
rights to life, liberty and security of person is rendered ineffective if
government does not afford protection to these rights especially
when they are under threat. Protection includes conducting effective
investigations, organization of the government apparatus to extend
protection to victims of extralegal killings or enforced
disappearances (or threats thereof) and/or their families, and
bringing offenders to the bar of justice. The Inter-American Court of
Human Rights stressed the importance of investigation in
the Velasquez Rodriguez Case, viz:

(The duty to investigate) must be undertaken in a

serious manner and not as a mere formality preordained
to be ineffective. An investigation must have an
objective and be assumed by the State as its own legal
duty, not as a step taken by private interests that
depends upon the initiative of the victim or his family or
upon their offer of proof, without an effective search for
the truth by the government.
xxx xxx xxx
Similarly, the European Court of Human Rights (ECHR) has
interpreted the right to security not only as prohibiting the State from
arbitrarily depriving liberty, but imposing a positive duty on the State
to afford protection of the right to liberty. The ECHR interpreted the
right to security of person under Article 5(1) of the European
Convention of Human Rights in the leading case on disappearance
of persons, Kurt v. Turkey. In this case, the claimant's son had been
arrested by state authorities and had not been seen since. The
family's requests for information and investigation regarding his
whereabouts proved futile. The claimant suggested that this was a
violation of her son's right to security of person. The ECHR ruled, viz:
... any deprivation of liberty must not only have
been effected in conformity with the substantive and
procedural rules of national law but must equally be in
keeping with the very purpose of Article 5, namely to
protect the individual from arbitrariness... Having
assumed control over that individual it is incumbent on
the authorities to account for his or her whereabouts. For
this reason, Article 5 must be seen as requiring the
authorities to take effective measures to safeguard
against the risk of disappearance and to conduct a
prompt effective investigation into an arguable claim
that a person has been taken into custody and has not
been seen since.[115] (Emphasis supplied)

In the instant case, this Court rules that respondents in G.R. No. 191805 are
responsible or accountable for the violation of Rodriguezs right to life, liberty and
security on account of their abject failure to conduct a fair and effective official
investigation of his ordeal in the hands of the military. Respondents Gen. Ibrado,
PDG. Verzosa, Lt. Gen. Bangit, Maj. Gen. Ochoa, Col. De Vera and Lt. Col. Mina

only conducted a perfunctory investigation, exerting no efforts to take Ramirezs

account of the events into consideration. Rather, these respondents solely relied
on the reports and narration of the military. The ruling of the appellate court must
be emphasized:
In this case, respondents Ibrado, Verzosa, Bangit, Tolentino,
Santos, De Vera, and Mina are accountable, for while they were
charged with the investigation of the subject incident, the
investigation they conducted and/or relied on is superficial and onesided.The records disclose that the military, in investigating the
incident complained of, depended on the Comprehensive Report of
Noriel Rodriguez @Pepito prepared by 1Lt. Johnny Calub for the
Commanding Officer of the 501st Infantry Brigade, 5th Infantry Division,
Philippine Army. Such report, however, is merely based on the
narration of the military. No efforts were undertaken to solicit
petitioners version of the subject incident and no witnesses were
questioned regarding the alleged abduction of petitioner.
Respondent PDG Verzosa, as Chief of the PNP, is accountable
because Section 24 of Republic Act No. 6975, otherwise known as
the PNP Law, specifies the PNP as the governmental office with the
mandate to investigate and prevent crimes, effect the arrest of
criminal offenders, bring offenders to justice and assist in their
prosecution. In this case, PDG Verzosa failed to order the police to
conduct the necessary investigation to unmask the mystery
surrounding petitioners abduction and disappearance. Instead, PDG
Verzosa disclaims accountability by merely stating that petitioner has
no cause of action against him. Palpable, however, is the lack of any
effort on the part of PDG Verzosa to effectively and aggressively
investigate the violations of petitioners right to life, liberty and security
by members of the 17th Infantry Battalion, 17th Infantry Division,
Philippine Army.[116] (Emphasis supplied.)

Clearly, the absence of a fair and effective official investigation into the
claims of Rodriguez violated his right to security, for which respondents in G.R. No.
191805 must be held responsible or accountable.
Nevertheless, it must be clarified that Rodriguez was unable to establish any
responsibility or accountability on the part of respondents P/CSupt. Tolentino,
P/SSupt. Santos, Calog and Palacpac. Respondent P/CSupt. Tolentino had
already retired when the abduction and torture of Rodriguez was perpetrated,

while P/SSupt. Santos had already been reassigned and transferred to the
National Capital Regional Police Office six months before the subject incident
occurred. Meanwhile, no sufficient allegations were maintained against
respondents Calog and Palacpac.
From all the foregoing, we rule that Rodriguez was successful in proving
through substantial evidence that respondents Gen. Ibrado, PDG. Verzosa, Lt.
Gen. Bangit, Maj. Gen. Ochoa, Brig. Gen. De Vera, 1st Lt. Matutina, and Lt. Col.
Mina were responsible and accountable for the violation of Rodriguezs rights to
life, liberty and security on the basis of (a) his abduction, detention and torture
from 6 September to 17 September 2009, and (b) the lack of any fair and effective
official investigation as to his allegations. Thus, the privilege of the writs
of amparo and habeas data must be granted in his favor. As a result, there is no
longer any need to issue a temporary protection order, as the privilege of these
writs already has the effect of enjoining respondents in G.R. No. 191805 from
violating his rights to life, liberty and security.
It is also clear from the above discussion that despite (a) maintaining former
President Arroyo in the list of respondents in G.R. No. 191805, and (b) allowing the
application of the command responsibility doctrine to amparo and habeas
data proceedings, Rodriguez failed to prove through substantial evidence that
former President Arroyo was responsible or accountable for the violation of his
rights to life, liberty and property. He likewise failed to prove through substantial
evidence the accountability or responsibility of respondents Maj. Gen. Ochoa,
Cruz, Pasicolan and Callagan.
WHEREFORE, we resolve to GRANT the Petition for Partial Review in G.R. No.
191805 and DENY the Petition for Review in G.R. No. 193160. The Decision of the
Court of Appeals is hereby AFFIRMED WITH MODIFICATION.
The case is dismissed with respect to respondents former President Gloria
Macapagal-Arroyo, P/CSupt. Ameto G. Tolentino, and P/SSupt. Jude W. Santos,
Calog, George Palacpac, Antonio Cruz, Aldwin Pasicolan and Vicent Callagan
for lack of merit.
This Court directs the Office of the Ombudsman (Ombudsman) and the
Department of Justice (DOJ) to take the appropriate action with respect to any
possible liability or liabilities, within their respective legal competence, that may
have been incurred by respondents Gen. Victor Ibrado, PDG. Jesus Verzosa, Lt.
Gen. Delfin Bangit, Maj. Gen. Nestor Ochoa, Brig. Gen. Remegio De Vera, 1st Lt.

Ryan Matutina, and Lt. Col. Laurence Mina. The Ombudsman and the DOJ are
ordered to submit to this Court the results of their action within a period of six
months from receipt of this Decision.
In the event that herein respondents no longer occupy their respective
posts, the directives mandated in this Decision and in the Court of Appeals are
enforceable against the incumbent officials holding the relevant positions. Failure
to comply with the foregoing shall constitute contempt of court.
SO ORDERED.

G.R. No. 179267

June 25, 2013

JESUS C. GARCIA, Petitioner,

vs.
THE HONORABLE RAY ALAN T. DRILON, Presiding Judge, Regional Trial CourtBranch 41, Bacolod City, and ROSALIE JAYPE-GARCIA, for herself and in behalf of
minor children, namely: JO-ANN, JOSEPH EDUARD, JESSE ANTHONE, all surnamed
GARCIA, Respondents.
DECISION
PERLAS-BERNABE, J.:
Hailed as the bastion of Christianity in Asia, the Philippines boasts of 86.8 million
Filipinos- or 93 percent of a total population of 93.3 million adhering to the
teachings of Jesus Christ.1 Yet, the admonition for husbands to love their wives as
their own bodies just as Christ loved the church and gave himself up for
her2 failed to prevent, or even to curb, the pervasiveness of violence against
Filipino women. The National Commission on the Role of Filipino Women
(NCRFW) reported that, for the years 2000-2003, "female violence comprised
more than 90o/o of all forms of abuse and violence and more than 90% of these
reported cases were committed by the women's intimate partners such as their
husbands and live-in partners."3

Thus, on March 8, 2004, after nine (9) years of spirited advocacy by women's
groups, Congress enacted Republic Act (R.A.) No. 9262, entitled "An Act
Defining Violence Against Women and Their Children, Providing for Protective
Measures for Victims, Prescribing Penalties Therefor, and for Other Purposes." It
took effect on March 27, 2004.4
R.A. 9262 is a landmark legislation that defines and criminalizes acts of violence
against women and their children (VAWC) perpetrated by women's intimate
partners, i.e, husband; former husband; or any person who has or had a sexual
or dating relationship, or with whom the woman has a common child.5 The law
provides for protection orders from the barangay and the courts to prevent the
commission of further acts of VAWC; and outlines the duties and responsibilities
of barangay officials, law enforcers, prosecutors and court personnel, social
workers, health care providers, and other local government officials in
responding to complaints of VAWC or requests for assistance.
A husband is now before the Court assailing the constitutionality of R.A. 9262 as
being violative of the equal protection and due process clauses, and an undue
delegation of judicial power to barangay officials.
The Factual Antecedents
On March 23, 2006, Rosalie Jaype-Garcia (private respondent) filed, for herself
and in behalf of her minor children, a verified petition6 (Civil Case No. 06-797)
before the Regional Trial Court (RTC) of Bacolod City for the issuance of a
Temporary Protection Order (TPO) against her husband, Jesus C. Garcia
(petitioner), pursuant to R.A. 9262. She claimed to be a victim of physical abuse;
emotional, psychological, and economic violence as a result of marital infidelity
on the part of petitioner, with threats of deprivation of custody of her children
and of financial support.7
Private respondent's claims
Private respondent married petitioner in 2002 when she was 34 years old and the
former was eleven years her senior. They have three (3) children, namely: Jo-Ann
J. Garcia, 17 years old, who is the natural child of petitioner but whom private
respondent adopted; Jessie Anthone J. Garcia, 6 years old; and Joseph Eduard
J. Garcia, 3 years old.8
Private respondent described herself as a dutiful and faithful wife, whose life
revolved around her husband. On the other hand, petitioner, who is of FilipinoChinese descent, is dominant, controlling, and demands absolute obedience
from his wife and children. He forbade private respondent to pray, and
deliberately isolated her from her friends. When she took up law, and even when

she was already working part time at a law office, petitioner trivialized her
ambitions and prevailed upon her to just stay at home. He was often jealous of
the fact that his attractive wife still catches the eye of some men, at one point
threatening that he would have any man eyeing her killed.9
Things turned for the worse when petitioner took up an affair with a bank
manager of Robinson's Bank, Bacolod City, who is the godmother of one of their
sons. Petitioner admitted to the affair when private respondent confronted him
about it in 2004. He even boasted to the household help about his sexual
relations with said bank manager. Petitioner told private respondent, though,
that he was just using the woman because of their accounts with the bank.10
Petitioner's infidelity spawned a series of fights that left private respondent
physically and emotionally wounded. In one of their quarrels, petitioner grabbed
private respondent on both arms and shook her with such force that caused
bruises and hematoma. At another time, petitioner hit private respondent
forcefully on the lips that caused some bleeding. Petitioner sometimes turned his
ire on their daughter, Jo-Ann, who had seen the text messages he sent to his
paramour and whom he blamed for squealing on him. He beat Jo-Ann on the
chest and slapped her many times. When private respondent decided to leave
petitioner, Jo-Ann begged her mother to stay for fear that if the latter leaves,
petitioner would beat her up. Even the small boys are aware of private
respondent's sufferings. Their 6-year-old son said that when he grows up, he
would beat up his father because of his cruelty to private respondent.11
All the emotional and psychological turmoil drove private respondent to the
brink of despair. On December 17, 2005, while at home, she attempted suicide
by cutting her wrist. She was found by her son bleeding on the floor. Petitioner
simply fled the house instead of taking her to the hospital. Private respondent
was hospitalized for about seven (7) days in which time petitioner never
bothered to visit, nor apologized or showed pity on her. Since then, private
respondent has been undergoing therapy almost every week and is taking antidepressant medications.12
When private respondent informed the management of Robinson's Bank that
she intends to file charges against the bank manager, petitioner got angry with
her for jeopardizing the manager's job. He then packed his things and told
private respondent that he was leaving her for good. He even told private
respondent's mother, who lives with them in the family home, that private
respondent should just accept his extramarital affair since he is not cohabiting
with his paramour and has not sired a child with her.13
Private respondent is determined to separate from petitioner but she is afraid
that he would take her children from her and deprive her of financial support.

Petitioner had previously warned her that if she goes on a legal battle with him,
she would not get a single centavo.14
Petitioner controls the family businesses involving mostly the construction of
deep wells. He is the President of three corporations 326 Realty Holdings, Inc.,
Negros Rotadrill Corporation, and J-Bros Trading Corporation of which he and
private respondent are both stockholders. In contrast to the absolute control of
petitioner over said corporations, private respondent merely draws a monthly
salary of P20,000.00 from one corporation only, the Negros Rotadrill Corporation.
Household expenses amounting to not less than P200,000.00 a month are paid
for by private respondent through the use of credit cards, which, in turn, are
paid by the same corporation together with the bills for utilities.15
On the other hand, petitioner receives a monthly salary of P60,000.00 from
Negros Rotadrill Corporation, and enjoys unlimited cash advances and other
benefits in hundreds of thousands of pesos from the corporations.16After private
respondent confronted him about the affair, petitioner forbade her to hold
office at JBTC Building, Mandalagan, where all the businesses of the
corporations are conducted, thereby depriving her of access to full information
about said businesses. Until the filing of the petition a quo, petitioner has not
given private respondent an accounting of the businesses the value of which
she had helped raise to millions of pesos.17
Action of the RTC of Bacolod City
Finding reasonable ground to believe that an imminent danger of violence
against the private respondent and her children exists or is about to recur, the
RTC issued a TPO18 on March 24, 2006 effective for thirty (30) days, which is
quoted hereunder:
Respondent (petitioner herein), Jesus Chua Garcia, is hereby:
a) Ordered to remove all his personal belongings from the conjugal
dwelling or family home within 24 hours from receipt of the Temporary
Restraining Order and if he refuses, ordering that he be removed by
police officers from the conjugal dwelling; this order is enforceable
notwithstanding that the house is under the name of 236 Realty Holdings
Inc. (Republic Act No. 9262 states "regardless of ownership"), this is to allow
the Petitioner (private respondent herein) to enter the conjugal dwelling
without any danger from the Respondent.
After the Respondent leaves or is removed from the conjugal dwelling, or
anytime the Petitioner decides to return to the conjugal dwelling to

remove things, the Petitioner shall be assisted by police officers when reentering the family home.
The Chief of Police shall also give the Petitioner police assistance on
Sunday, 26 March 2006 because of the danger that the Respondent will
attempt to take her children from her when he arrives from Manila and
finds out about this suit.
b) To stay away from the petitioner and her children, mother and all her
household help and driver from a distance of 1,000 meters, and shall not
enter the gate of the subdivision where the Petitioner may be temporarily
residing.
c) Not to harass, annoy, telephone, contact or otherwise communicate
with the Petitioner, directly or indirectly, or through other persons, or
contact directly or indirectly her children, mother and household help, nor
send gifts, cards, flowers, letters and the like. Visitation rights to the
children may be subject of a modified TPO in the future.
d) To surrender all his firearms including a .9MM caliber firearm and a
Walther PPK and ordering the Philippine National Police Firearms and
Explosives Unit and the Provincial Director of the PNP to cancel all the
Respondent's firearm licenses. He should also be ordered to surrender any
unlicensed firearms in his possession or control.
e) To pay full financial support for the Petitioner and the children,
including rental of a house for them, and educational and medical
expenses.
f) Not to dissipate the conjugal business.
g) To render an accounting of all advances, benefits, bonuses and other
cash he received from all the corporations from 1 January 2006 up to 31
March 2006, which himself and as President of the corporations and his
Comptroller, must submit to the Court not later than 2 April 2006.
Thereafter, an accounting of all these funds shall be reported to the court
by the Comptroller, copy furnished to the Petitioner, every 15 days of the
month, under pain of Indirect Contempt of Court.
h) To ensure compliance especially with the order granting support
pendente lite, and considering the financial resources of the Respondent
and his threat that if the Petitioner sues she will not get a single centavo,
the Respondent is ordered to put up a BOND TO KEEP THE PEACE in the
amount of FIVE MILLION PESOS, in two sufficient sureties.

On April 24, 2006, upon motion19 of private respondent, the trial court
issued an amended TPO,20 effective for thirty (30) days, which included
the following additional provisions:
i) The petitioners (private respondents herein) are given the continued use
of the Nissan Patrol and the Starex Van which they are using in Negros
Occidental.
j) The petitioners are given the continued use and occupation of the
house in Paraaque, the continued use of the Starex van in Metro Manila,
whenever they go to Manila.
k) Respondent is ordered to immediately post a bond to keep the peace,
in two sufficient sureties.
l) To give monthly support to the petitioner provisionally fixed in the sum of
One Hundred Fifty Thousand Pesos (Php 150,000.00) per month plus rental
expenses of Fifty Thousand Pesos (Php 50,000.00) per month until the
matter of support could be finally resolved.
Two days later, or on April 26, 2006, petitioner filed an Opposition to the Urgent
Ex-Parte Motion for Renewal of the TPO21 seeking the denial of the renewal of
the TPO on the grounds that it did not (1) comply with the three-day notice rule,
and (2) contain a notice of hearing. He further asked that the TPO be modified
by (1) removing one vehicle used by private respondent and returning the same
to its rightful owner, the J-Bros Trading Corporation, and (2) cancelling or
reducing the amount of the bond from P5,000,000.00 to a more manageable
level at P100,000.00.
Subsequently, on May 23, 2006, petitioner moved22 for the modification of the
TPO to allow him visitation rights to his children.
On May 24, 2006, the TPO was renewed and extended yet again, but subject
only to the following modifications prayed for by private respondent:
a) That respondent (petitioner herein) return the clothes and other
personal belongings of Rosalie and her children to Judge Jesus Ramos,
co-counsel for Petitioner, within 24 hours from receipt of the Temporary
Protection Order by his counsel, otherwise be declared in Indirect
Contempt of Court;
b) Respondent shall make an accounting or list of furniture and
equipment in the conjugal house in Pitimini St., Capitolville Subdivision,

Bacolod City within 24 hours from receipt of the Temporary Protection

Order by his counsel;
c) Ordering the Chief of the Women's Desk of the Bacolod City Police
Headquarters to remove Respondent from the conjugal dwelling within
eight (8) hours from receipt of the Temporary Protection Order by his
counsel, and that he cannot return until 48 hours after the petitioners have
left, so that the petitioner Rosalie and her representatives can remove
things from the conjugal home and make an inventory of the household
furniture, equipment and other things in the conjugal home, which shall
be submitted to the Court.
d) Deliver full financial support of Php200,000.00 and Php50,000.00 for
rental and Php25,000.00 for clothes of the three petitioners (sic) children
within 24 hours from receipt of the Temporary Protection Order by his
counsel, otherwise be declared in indirect contempt of Court;
e) That respondent surrender his two firearms and all unlicensed firearms
to the Clerk of Court within 24 hours from receipt of the Temporary
Protection Order by his counsel;
f) That respondent shall pay petitioner educational expenses of the
children upon presentation of proof of payment of such expenses.23
Claiming that petitioner continued to deprive them of financial support; failed to
faithfully comply with the TPO; and committed new acts of harassment against
her and their children, private respondent filed another application24for the
issuance of a TPO ex parte. She alleged inter
alia that petitioner contrived a replevin suit against himself by J-Bros Trading,
Inc., of which the latter was purportedly no longer president, with the end in
view of recovering the Nissan Patrol and Starex Van used by private respondent
and the children. A writ of replevin was served upon private respondent by a
group of six or seven policemen with long firearms that scared the two small
boys, Jessie Anthone and Joseph Eduard.25
While Joseph Eduard, then three years old, was driven to school, two men
allegedly attempted to kidnap him, which incident traumatized the boy
resulting in his refusal to go back to school. On another occasion, petitioner
allegedly grabbed their daughter, Jo-Ann, by the arm and threatened
her.26 The incident was reported to the police, and Jo-Ann subsequently filed a
criminal complaint against her father for violation of R.A. 7610, also known as the
"Special Protection of Children Against Child Abuse, Exploitation and
Discrimination Act."

Aside from the replevin suit, petitioner's lawyers initiated the filing by the
housemaids working at the conjugal home of a complaint for kidnapping and
illegal detention against private respondent. This came about after private
respondent, armed with a TPO, went to said home to get her and her children's
belongings. Finding some of her things inside a housemaid's (Sheryl Jamola) bag
in the maids' room, private respondent filed a case for qualified theft against
Jamola.27
On August 23, 2006, the RTC issued a TPO,28 effective for thirty (30) days, which
reads as follows:
Respondent (petitioner herein), Jesus Chua Garcia, is hereby:
1) Prohibited from threatening to commit or committing, personally or
through another, acts of violence against the offended party;
2) Prohibited from harassing, annoying, telephoning, contacting or
otherwise communicating in any form with the offended party, either
directly or indirectly;
3) Required to stay away, personally or through his friends, relatives,
employees or agents, from all the Petitioners Rosalie J. Garcia and her
children, Rosalie J. Garcia's three brothers, her mother Primitiva Jaype,
cook Novelita Caranzo, driver Romeo Hontiveros, laundrywoman
Mercedita Bornales, security guard Darwin Gayona and the petitioner's
other household helpers from a distance of 1,000 meters, and shall not
enter the gate of the subdivision where the Petitioners are temporarily
residing, as well as from the schools of the three children; Furthermore,
that respondent shall not contact the schools of the children directly or
indirectly in any manner including, ostensibly to pay for their tuition or
other fees directly, otherwise he will have access to the children through
the schools and the TPO will be rendered nugatory;
4) Directed to surrender all his firearms including .9MM caliber firearm and
a Walther PPK to the Court;
5) Directed to deliver in full financial support of Php200,000.00 a month
and Php50,000.00 for rental for the period from August 6 to September 6,
2006; and support in arrears from March 2006 to August 2006 the total
amount of Php1,312,000.00;
6) Directed to deliver educational expenses for 2006-2007 the amount of
Php75,000.00 and Php25,000.00;

7) Directed to allow the continued use of a Nissan Patrol with Plate No.
FEW 508 and a Starex van with Plate No. FFD 991 and should the
respondent fail to deliver said vehicles, respondent is ordered to provide
the petitioner another vehicle which is the one taken by J Bros Tading;
8) Ordered not to dissipate, encumber, alienate, sell, lease or otherwise
dispose of the conjugal assets, or those real properties in the name of
Jesus Chua Garcia only and those in which the conjugal partnership of
gains of the Petitioner Rosalie J. Garcia and respondent have an interest
in, especially the conjugal home located in No. 14, Pitimini St., Capitolville
Subdivision, Bacolod City, and other properties which are conjugal assets
or those in which the conjugal partnership of gains of Petitioner Rosalie J.
Garcia and the respondent have an interest in and listed in Annexes "I," "I1," and "I-2," including properties covered by TCT Nos. T-186325 and T168814;
9) Ordered that the Register of Deeds of Bacolod City and E.B. Magalona
shall be served a copy of this TEMPORARY PROTECTION ORDER and are
ordered not to allow the transfer, sale, encumbrance or disposition of
these above-cited properties to any person, entity or corporation without
the personal presence of petitioner Rosalie J. Garcia, who shall affix her
signature in the presence of the Register of Deeds, due to the fear of
petitioner Rosalie that her signature will be forged in order to effect the
encumbrance or sale of these properties to defraud her or the conjugal
partnership of gains.
In its Order29 dated September 26, 2006, the trial court extended the
aforequoted TPO for another ten (10) days, and gave petitioner a period of five
(5) days within which to show cause why the TPO should not be renewed,
extended, or modified. Upon petitioner's manifestation,30 however, that he has
not received a copy of private respondent's motion to modify/renew the TPO,
the trial court directed in its Order31 dated October 6, 2006 that petitioner be
furnished a copy of said motion. Nonetheless, an Order32 dated a day earlier,
October 5, had already been issued renewing the TPO dated August 23, 2006.
The pertinent portion is quoted hereunder:
xxxx
x x x it appearing further that the hearing could not yet be finally terminated, the
Temporary Protection Order issued on August 23, 2006 is hereby renewed and
extended for thirty (30) days and continuously extended and renewed for thirty
(30) days, after each expiration, until further orders, and subject to such
modifications as may be ordered by the court.

After having received a copy of the foregoing Order, petitioner no longer

submitted the required comment to private respondent's motion for renewal of
the TPO arguing that it would only be an "exercise in futility."33
Proceedings before the CA
During the pendency of Civil Case No. 06-797, petitioner filed before the Court
of Appeals (CA) a petition34 for prohibition (CA-G.R. CEB-SP. No. 01698), with
prayer for injunction and temporary restraining order, challenging (1) the
constitutionality of R.A. 9262 for being violative of the due process and the equal
protection clauses, and (2) the validity of the modified TPO issued in the civil
case for being "an unwanted product of an invalid law."
On May 26, 2006, the appellate court issued a 60-day Temporary Restraining
Order36 (TRO) against the enforcement of the TPO, the amended TPOs and
other orders pursuant thereto.
Subsequently, however, on January 24, 2007, the appellate court dismissed36 the
petition for failure of petitioner to raise the constitutional issue in his pleadings
before the trial court in the civil case, which is clothed with jurisdiction to resolve
the same. Secondly, the challenge to the validity
of R.A. 9262 through a petition for prohibition seeking to annul the protection
orders issued by the trial court constituted a collateral attack on said law.
His motion for reconsideration of the foregoing Decision having been denied in
the Resolution37 dated August 14, 2007, petitioner is now before us alleging that

The Issues
I.
THE COURT OF APPEALS ERRED IN DISMISSING THE PETITION ON THE THEORY THAT
THE ISSUE OF CONSTITUTIONALITY WAS NOT RAISED AT THE EARLIEST OPPORTUNITY
AND THAT, THE PETITION CONSTITUTES A COLLATERAL ATTACK ON THE VALIDITY OF
THE LAW.
II.
THE COURT OF APPEALS COMMITTED SERIOUS ERROR IN FAILING TO CONCLUDE
THAT R.A. 9262 IS DISCRIMINATORY, UNJUST, AND VIOLATIVE OF THE EQUAL
PROTECTION CLAUSE.

III.
THE COURT OF APPEALS COMMITTED GRAVE MISTAKE IN NOT FINDING THAT R.A.
9262 RUNS COUNTER TO THE DUE PROCESS CLAUSE OF THE CONSTITUTION.
IV.
THE COURT OF APPEALS ERRED IN NOT FINDING THAT THE LAW DOES VIOLENCE
TO THE POLICY OF THE STATE TO PROTECT THE FAMILY AS A BASIC SOCIAL
INSTITUTION.
V.
THE COURT OF APPEALS SERIOUSLY ERRED IN NOT DECLARING R.A. No. 9262 AS
INVALID AND UNCONSTITUTIONAL BECAUSE IT ALLOWS AN UNDUE DELEGATION
OF JUDICIAL POWER TO THE BARANGAY OFFICIALS.38
The Ruling of the Court
Before delving into the arguments propounded by petitioner against the
constitutionality of R.A. 9262, we shall first tackle the propriety of the dismissal by
the appellate court of the petition for prohibition (CA-G.R. CEB-SP. No. 01698)
filed by petitioner.
As a general rule, the question of constitutionality must be raised at the earliest
opportunity so that if not raised in the pleadings, ordinarily it may not be raised in
the trial, and if not raised in the trial court, it will not be considered on
appeal.39 Courts will not anticipate a question of constitutional law in advance
of the necessity of deciding it.40
In defending his failure to attack the constitutionality of R.A. 9262 before the RTC
of Bacolod City, petitioner argues that the Family Court has limited authority and
jurisdiction that is "inadequate to tackle the complex issue of constitutionality."41
We disagree.
Family Courts have authority and jurisdiction to consider the constitutionality of a
statute.
At the outset, it must be stressed that Family Courts are special courts, of the
same level as Regional Trial Courts. Under R.A. 8369, otherwise known as the
"Family Courts Act of 1997," family courts have exclusive original jurisdiction to
hear and decide cases of domestic violence against women and children.42 In
accordance with said law, the Supreme Court designated from among the

branches of the Regional Trial Courts at least one Family Court in each of several
key cities identified.43 To achieve harmony with the first mentioned law, Section 7
of R.A. 9262 now provides that Regional Trial Courts designated as Family Courts
shall have original and exclusive jurisdiction over cases of VAWC defined under
the latter law, viz:
SEC. 7. Venue. The Regional Trial Court designated as a Family Court shall have
original and exclusive jurisdiction over cases of violence against women and
their children under this law. In the absence of such court in the place where the
offense was committed, the case shall be filed in the Regional Trial Court where
the crime or any of its elements was committed at the option of the
complainant. (Emphasis supplied)
Inspite of its designation as a family court, the RTC of Bacolod City remains
possessed of authority as a court of general original jurisdiction to pass upon all
kinds of cases whether civil, criminal, special proceedings, land registration,
guardianship, naturalization, admiralty or insolvency.44 It is settled that RTCs have
jurisdiction to resolve the constitutionality of a statute,45 "this authority being
embraced in the general definition of the judicial power to determine what are
the valid and binding laws by the criterion of their conformity to the
fundamental law."46 The Constitution vests the power of judicial review or the
power to declare the constitutionality or validity of a law, treaty, international or
executive agreement, presidential decree, order, instruction, ordinance, or
regulation not only in this Court, but in all RTCs.47 We said in J.M. Tuason and Co.,
Inc. v. CA48 that, "plainly the Constitution contemplates that the inferior courts
should have jurisdiction in cases involving constitutionality of any treaty or law,
for it speaks of appellate review of final judgments of inferior courts in cases
where such constitutionality happens to be in issue." Section 5, Article VIII of the
1987 Constitution reads in part as follows:
SEC. 5. The Supreme Court shall have the following powers:
xxx
2. Review, revise, reverse, modify, or affirm on appeal or certiorari, as the law or
the Rules of Court may provide, final judgments and orders of lower courts in:
a. All cases in which the constitutionality or validity of any treaty, international or
executive agreement, law, presidential decree, proclamation, order, instruction,
ordinance, or regulation is in question.
xxxx

Thus, contrary to the posturing of petitioner, the issue of constitutionality of R.A.

9262 could have been raised at the earliest opportunity in his Opposition to the
petition for protection order before the RTC of Bacolod City, which had
jurisdiction to determine the same, subject to the review of this Court.
Section 20 of A.M. No. 04-10-11-SC, the Rule on Violence Against Women and
Their Children, lays down a new kind of procedure requiring the respondent to
file an opposition to the petition and not an answer.49 Thus:
SEC. 20. Opposition to petition. (a) The respondent may file an opposition to
the petition which he himself shall verify. It must be accompanied by the
affidavits of witnesses and shall show cause why a temporary or permanent
protection order should not be issued.
(b) Respondent shall not include in the opposition any counterclaim, cross-claim
or third-party complaint, but any cause of action which could be the subject
thereof may be litigated in a separate civil action. (Emphasis supplied)
We cannot subscribe to the theory espoused by petitioner that, since a
counterclaim, cross-claim and third-party complaint are to be excluded from
the opposition, the issue of constitutionality cannot likewise be raised therein. A
counterclaim is defined as any claim for money or other relief which a
defending party may have against an opposing party.50 A cross-claim, on the
other hand, is any claim by one party against a co-party arising out of the
transaction or occurrence that is the subject matter either of the original action
or of a counterclaim therein.51Finally, a third-party complaint is a claim that a
defending party may, with leave of court, file against a person not a party to
the action for contribution, indemnity, subrogation or any other relief, in respect
of his opponent's claim.52 As pointed out by Justice Teresita J. Leonardo-De
Castro, the unconstitutionality of a statute is not a cause of action that could be
the subject of a counterclaim, cross-claim or a third-party complaint. Therefore,
it is not prohibited from being raised in the opposition in view of the familiar
maxim expressio unius est exclusio alterius.
Moreover, it cannot be denied that this issue affects the resolution of the case a
quo because the right of private respondent to a protection order is founded
solely on the very statute the validity of which is being attacked53 by petitioner
who has sustained, or will sustain, direct injury as a result of its enforcement. The
alleged unconstitutionality of R.A. 9262 is, for all intents and purposes, a valid
cause for the non-issuance of a protection order.
That the proceedings in Civil Case No. 06-797 are summary in nature should not
have deterred petitioner from raising the same in his Opposition. The question
relative to the constitutionality of a statute is one of law which does not need to

be supported by evidence.54 Be that as it may, Section 25 of A.M. No. 04-10-11SC nonetheless allows the conduct of a hearing to determine legal issues,
among others, viz:
SEC. 25. Order for further hearing. - In case the court determines the need for
further hearing, it may issue an order containing the following:
(a) Facts undisputed and admitted;
(b) Factual and legal issues to be resolved;
(c) Evidence, including objects and documents that have been marked
and will be presented;
(d) Names of witnesses who will be ordered to present their direct
testimonies in the form of affidavits; and
(e) Schedule of the presentation of evidence by both parties which shall
be done in one day, to the extent possible, within the 30-day period of the
effectivity of the temporary protection order issued. (Emphasis supplied)
To obviate potential dangers that may arise concomitant to the conduct of a
hearing when necessary, Section 26 (b) of A.M. No. 04-10-11-SC provides that if
a temporary protection order issued is due to expire, the trial court may extend
or renew the said order for a period of thirty (30) days each time until final
judgment is rendered. It may likewise modify the extended or renewed
temporary protection order as may be necessary to meet the needs of the
parties. With the private respondent given ample protection, petitioner could
proceed to litigate the constitutional issues, without necessarily running afoul of
the very purpose for the adoption of the rules on summary procedure.
In view of all the foregoing, the appellate court correctly dismissed the petition
for prohibition with prayer for injunction and temporary restraining order (CAG.R. CEB - SP. No. 01698). Petitioner may have proceeded upon an honest belief
that if he finds succor in a superior court, he could be granted an injunctive
relief. However, Section 22(j) of A.M. No. 04-10-11-SC expressly disallows the filing
of a petition for certiorari, mandamus or prohibition against any interlocutory
order issued by the trial court. Hence, the 60-day TRO issued by the appellate
court in this case against the enforcement of the TPO, the amended TPOs and
other orders pursuant thereto was improper, and it effectively hindered the case
from taking its normal course in an expeditious and summary manner.
As the rules stand, a review of the case by appeal or certiorari before judgment
is prohibited. Moreover, if the appeal of a judgment granting permanent

protection shall not stay its enforcement,55 with more reason that a TPO, which is
valid only for thirty (30) days at a time,56 should not be enjoined.
The mere fact that a statute is alleged to be unconstitutional or invalid, does not
of itself entitle a litigant to have the same enjoined.57 In Younger v. Harris,
Jr.,58 the Supreme Court of the United States declared, thus:
Federal injunctions against state criminal statutes, either in their entirety or with
respect to their separate and distinct prohibitions, are not to be granted as a
matter of course, even if such statutes are unconstitutional. No citizen or
member of the community is immune from prosecution, in good faith, for his
alleged criminal acts. The imminence of such a prosecution even though
alleged to be unauthorized and, hence, unlawful is not alone ground for relief in
equity which exerts its extraordinary powers only to prevent irreparable injury to
the plaintiff who seeks its aid. (Citations omitted)
The sole objective of injunctions is to preserve the status quo until the trial court
hears fully the merits of the case. It bears stressing, however, that protection
orders are granted ex parte so as to protect women and their children from acts
of violence. To issue an injunction against such orders will defeat the very
purpose of the law against VAWC.
Notwithstanding all these procedural flaws, we shall not shirk from our obligation
to determine novel issues, or issues of first impression, with far-reaching
implications. We have, time and again, discharged our solemn duty as final
arbiter of constitutional issues, and with more reason now, in view of private
respondent's plea in her Comment59 to the instant Petition that we should put
the challenge to the constitutionality of R.A. 9262 to rest. And so we shall.
Intent of Congress in enacting R.A. 9262.
Petitioner claims that since R.A. 9262 is intended to prevent and criminalize
spousal and child abuse, which could very well be committed by either the
husband or the wife, gender alone is not enough basis to deprive the
husband/father of the remedies under the law.60
A perusal of the deliberations of Congress on Senate Bill No. 2723,61 which
became R.A. 9262, reveals that while the sponsor, Senator Luisa Pimentel-Ejercito
(better known as Senator Loi Estrada), had originally proposed what she called
a "synthesized measure"62 an amalgamation of two measures, namely, the
"Anti-Domestic Violence Act" and the "Anti-Abuse of Women in Intimate
Relationships Act"63 providing protection to "all family members, leaving no one
in isolation" but at the same time giving special attention to women as the "usual
victims" of violence and abuse,64 nonetheless, it was eventually agreed that

men be denied protection under the same measure. We quote pertinent

portions of the deliberations:
Wednesday, December 10, 2003
Senator Pangilinan. I just wanted to place this on record, Mr. President. Some
women's groups have expressed concerns and relayed these concerns to me
that if we are to include domestic violence apart from against women as well as
other members of the household, including children or the husband, they fear
that this would weaken the efforts to address domestic violence of which the
main victims or the bulk of the victims really are the wives, the spouses or the
female partners in a relationship. We would like to place that on record. How
does the good Senator respond to this kind of observation?
Senator Estrada. Yes, Mr. President, there is this group of women who call
themselves "WIIR" Women in Intimate Relationship. They do not want to include
men in this domestic violence. But plenty of men are also being abused by
women. I am playing safe so I placed here members of the family, prescribing
penalties therefor and providing protective measures for victims. This includes
the men, children, live-in, common-law wives, and those related with the
family.65
xxx
Wednesday, January 14, 2004
xxxx
The President Pro Tempore. x x x
Also, may the Chair remind the group that there was the discussion whether to
limit this to women and not to families which was the issue of the AWIR group.
The understanding that I have is that we would be having a broader scope
rather than just women, if I remember correctly, Madam sponsor.
Senator Estrada. Yes, Mr. President.
As a matter of fact, that was brought up by Senator Pangilinan during the
interpellation period.
I think Senator Sotto has something to say to that.

Senator Legarda. Mr. President, the reason I am in support of the measure. Do

not get me wrong. However, I believe that there is a need to protect women's
rights especially in the domestic environment.
As I said earlier, there are nameless, countless, voiceless women who have not
had the opportunity to file a case against their spouses, their live-in partners after
years, if not decade, of battery and abuse. If we broaden the scope to include
even the men, assuming they can at all be abused by the women or their
spouses, then it would not equalize the already difficult situation for women, Mr.
President.
I think that the sponsor, based on our earlier conversations, concurs with this
position. I am sure that the men in this Chamber who love their women in their
lives so dearly will agree with this representation. Whether we like it or not, it is an
unequal world. Whether we like it or not, no matter how empowered the
women are, we are not given equal opportunities especially in the domestic
environment where the macho Filipino man would always feel that he is
stronger, more superior to the Filipino woman.
xxxx
The President Pro Tempore. What does the sponsor say?
Senator Estrada. Mr. President, before accepting this, the committee came up
with this bill because the family members have been included in this proposed
measure since the other members of the family other than women are also
possible victims of violence. While women are most likely the intended victims,
one reason incidentally why the measure focuses on women, the fact remains
that in some relatively few cases, men also stand to be victimized and that
children are almost always the helpless victims of violence. I am worried that
there may not be enough protection extended to other family members
particularly children who are excluded. Although Republic Act No. 7610, for
instance, more or less, addresses the special needs of abused children. The
same law is inadequate. Protection orders for one are not available in said law.
I am aware that some groups are apprehensive about granting the same
protection to men, fearing that they may use this law to justify their abusive
behavior against women. However, we should also recognize that there are
established procedures and standards in our courts which give credence to
evidentiary support and cannot just arbitrarily and whimsically entertain baseless
complaints.
Mr. President, this measure is intended to harmonize family relations and to
protect the family as the basic social institution. Though I recognize the unequal

power relations between men and women in our society, I believe we have an
obligation to uphold inherent rights and dignity of both husband and wife and
their immediate family members, particularly children.
While I prefer to focus mainly on women, I was compelled to include other
family members as a critical input arrived at after a series of
consultations/meetings with various NGOs, experts, sports groups and other
affected sectors, Mr. President.
Senator Sotto. Mr. President.
The President Pro Tempore. Yes, with the permission of the other senators.
Senator Sotto. Yes, with the permission of the two ladies on the Floor.
The President Pro Tempore. Yes, Sen. Vicente C. Sotto III is recognized.
Senator Sotto. I presume that the effect of the proposed amendment of Senator
Legarda would be removing the "men and children" in this particular bill and
focus specifically on women alone. That will be the net effect of that proposed
amendment. Hearing the rationale mentioned by the distinguished sponsor, Sen.
Luisa "Loi" Ejercito Estrada, I am not sure now whether she is inclined to accept
the proposed amendment of Senator Legarda.
I am willing to wait whether she is accepting this or not because if she is going to
accept this, I will propose an amendment to the amendment rather than object
to the amendment, Mr. President.
xxxx
Senator Estrada. The amendment is accepted, Mr. President.
The President Pro Tempore. Is there any objection?
xxxx
Senator Sotto. x x x May I propose an amendment to the amendment.
The President Pro Tempore. Before we act on the amendment?
Senator Sotto. Yes, Mr. President.
The President Pro Tempore. Yes, please proceed.

Senator Sotto. Mr. President, I am inclined to believe the rationale used by the
distinguished proponent of the amendment. As a matter of fact, I tend to agree.
Kung may maaabuso, mas malamang iyong babae kaysa sa lalake. At saka
iyong mga lalake, puwede na talagang magulpi iyan. Okey lang iyan. But I
cannot agree that we remove the children from this particular measure.
So, if I may propose an amendment
The President Pro Tempore. To the amendment.
Senator Sotto. more than the women, the children are very much abused. As a
matter of fact, it is not limited to minors. The abuse is not limited to seven, six, 5year-old children. I have seen 14, 15-year-old children being abused by their
fathers, even by their mothers. And it breaks my heart to find out about these
things.
Because of the inadequate existing law on abuse of children, this particular
measure will update that. It will enhance and hopefully prevent the abuse of
children and not only women.
SOTTO-LEGARDA AMENDMENTS
Therefore, may I propose an amendment that, yes, we remove the aspect of
the men in the bill but not the children.
Senator Legarda. I agree, Mr. President, with the Minority Leader.
The President Pro Tempore. Effectively then, it will be women AND CHILDREN.
Senator Sotto. Yes, Mr. President.
Senator Estrada. It is accepted, Mr. President.
The President Pro Tempore. Is there any objection? [Silence] There being none,
the amendment, as amended, is approved.66
It is settled that courts are not concerned with the wisdom, justice, policy, or
expediency of a statute.67 Hence, we dare not venture into the real motivations
and wisdom of the members of Congress in limiting the protection against
violence and abuse under R.A. 9262 to women and children only. No proper
challenge on said grounds may be entertained in this proceeding. Congress has
made its choice and it is not our prerogative to supplant this judgment. The
choice may be perceived as erroneous but even then, the remedy against it is
to seek its amendment or repeal by the legislative. By the principle of separation

of powers, it is the legislative that determines the necessity, adequacy, wisdom

and expediency of any law.68 We only step in when there is a violation of the
Constitution. However, none was sufficiently shown in this case.
R.A. 9262 does not violate the guaranty of equal protection of the laws.
Equal protection simply requires that all persons or things similarly situated should
be treated alike, both as to rights conferred and responsibilities imposed. The oftrepeated disquisition in the early case of Victoriano v. Elizalde Rope Workers'
Union69 is instructive:
The guaranty of equal protection of the laws is not a guaranty of equality in the
application of the laws upon all citizens of the state. It is not, therefore, a
requirement, in order to avoid the constitutional prohibition against inequality,
that every man, woman and child should be affected alike by a statute.
Equality of operation of statutes does not mean 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. It does not prohibit legislation which
is limited either in the object to which it is directed or by the territory within which
it is to operate.
The equal protection of the laws clause of the Constitution allows classification.
Classification in law, as in the other departments of knowledge or practice, is
the grouping of things in speculation or practice because they agree with one
another in certain particulars. A law is not invalid because of simple inequality.
The very idea of classification is that of inequality, so that it goes without saying
that the mere fact of inequality in no manner determines the matter of
constitutionality. All that is required of a valid classification is that it be
reasonable, which means that the classification should be based on substantial
distinctions which make for real differences; that it must be germane to the
purpose of the law; that it must not be limited to existing conditions only; and
that it must apply equally to each member of the class. This Court has held that
the standard is satisfied if the classification or distinction is based on a
reasonable foundation or rational basis and is not palpably arbitrary. (Emphasis
supplied)
Measured against the foregoing jurisprudential yardstick, we find that R.A. 9262
is based on a valid classification as shall hereinafter be discussed and, as such,
did not violate the equal protection clause by favoring women over men as
victims of violence and abuse to whom the State extends its protection.

I. R.A. 9262 rests on substantial distinctions.

The unequal power relationship between women and men; the fact that
women are more likely than men to be victims of violence; and the widespread
gender bias and prejudice against women all make for real differences justifying
the classification under the law. As Justice McIntyre succinctly states, "the
accommodation of differences ... is the essence of true equality."70
A. Unequal power relationship between men and women
According to the Philippine Commission on Women (the National Machinery for
Gender Equality and Women's Empowerment), violence against women (VAW)
is deemed to be closely linked with the unequal power relationship between
women and men otherwise known as "gender-based violence". Societal norms
and traditions dictate people to think men are the leaders, pursuers, providers,
and take on dominant roles in society while women are nurturers, men's
companions and supporters, and take on subordinate roles in society. This
perception leads to men gaining more power over women. With power comes
the need to control to retain that power. And VAW is a form of men's expression
of controlling women to retain power.71
The United Nations, which has long recognized VAW as a human rights issue,
passed its Resolution 48/104 on the Declaration on Elimination of Violence
Against Women on December 20, 1993 stating that "violence against women is
a manifestation of historically unequal power relations between men and
women, which have led to domination over and discrimination against women
by men and to the prevention of the full advancement of women, and that
violence against women is one of the crucial social mechanisms by which
women are forced into subordinate positions, compared with men."72
Then Chief Justice Reynato S. Puno traced the historical and social context of
gender-based violence and developments in advocacies to eradicate VAW, in
his remarks delivered during the Joint Launching of R.A. 9262 and its
Implementing Rules last October 27, 2004, the pertinent portions of which are
quoted hereunder:
History reveals that most societies sanctioned the use of violence against
women. The patriarch of a family was accorded the right to use force on
members of the family under his control. I quote the early studies:
Traditions subordinating women have a long history rooted in patriarchy the
institutional rule of men. Women were seen in virtually all societies to be naturally
inferior both physically and intellectually. In ancient Western societies, women

whether slave, concubine or wife, were under the authority of men. In law, they
were treated as property.
The Roman concept of patria potestas allowed the husband to beat, or even
kill, his wife if she endangered his property right over her. Judaism, Christianity
and other religions oriented towards the patriarchal family strengthened the
male dominated structure of society.
English feudal law reinforced the tradition of male control over women. Even the
eminent Blackstone has been quoted in his commentaries as saying husband
and wife were one and that one was the husband. However, in the late 1500s
and through the entire 1600s, English common law began to limit the right of
husbands to chastise their wives. Thus, common law developed the rule of
thumb, which allowed husbands to beat their wives with a rod or stick no thicker
than their thumb.
In the later part of the 19th century, legal recognition of these rights to chastise
wives or inflict corporeal punishment ceased. Even then, the preservation of the
family was given more importance than preventing violence to women.
The metamorphosis of the law on violence in the United States followed that of
the English common law. In 1871, the Supreme Court of Alabama became the
first appellate court to strike down the common law right of a husband to beat
his wife:
The privilege, ancient though it may be, to beat one's wife with a stick, to pull
her hair, choke her, spit in her face or kick her about the floor, or to inflict upon
her like indignities, is not now acknowledged by our law... In person, the wife is
entitled to the same protection of the law that the husband can invoke for
himself.
As time marched on, the women's advocacy movement became more
organized. The temperance leagues initiated it. These leagues had a simple
focus. They considered the evils of alcoholism as the root cause of wife abuse.
Hence, they demonstrated and picketed saloons, bars and their husbands'
other watering holes. Soon, however, their crusade was joined by suffragette
movements, expanding the liberation movement's agenda. They fought for
women's right to vote, to own property, and more. Since then, the feminist
movement was on the roll.
The feminist movement exposed the private invisibility of the domestic violence
to the public gaze. They succeeded in transforming the issue into an important
public concern. No less than the United States Supreme Court, in 1992 case
Planned Parenthood v. Casey, noted:

In an average 12-month period in this country, approximately two million women

are the victims of severe assaults by their male partners. In a 1985 survey, women
reported that nearly one of every eight husbands had assaulted their wives
during the past year. The [American Medical Association] views these figures as
"marked underestimates," because the nature of these incidents discourages
women from reporting them, and because surveys typically exclude the very
poor, those who do not speak English well, and women who are homeless or in
institutions or hospitals when the survey is conducted. According to the AMA,
"researchers on family violence agree that the true incidence of partner
violence is probably double the above estimates; or four million severely
assaulted women per year."
Studies on prevalence suggest that from one-fifth to one-third of all women will
be physically assaulted by a partner or ex-partner during their lifetime... Thus on
an average day in the United States, nearly 11,000 women are severely
assaulted by their male partners. Many of these incidents involve sexual assault...
In families where wife beating takes place, moreover, child abuse is often
present as well.
Other studies fill in the rest of this troubling picture. Physical violence is only the
most visible form of abuse. Psychological abuse, particularly forced social and
economic isolation of women, is also common.
Many victims of domestic violence remain with their abusers, perhaps because
they perceive no superior alternative...Many abused women who find
temporary refuge in shelters return to their husbands, in large part because they
have no other source of income... Returning to one's abuser can be dangerous.
Recent Federal Bureau of Investigation statistics disclose that 8.8 percent of all
homicide victims in the United States are killed by their spouses...Thirty percent of
female homicide victims are killed by their male partners.
Finally in 1994, the United States Congress enacted the Violence Against Women
Act.
In the International front, the women's struggle for equality was no less
successful. The United States Charter and the Universal Declaration of Human
Rights affirmed the equality of all human beings. In 1979, the UN General
Assembly adopted the landmark Convention on the Elimination of all Forms of
Discrimination Against Women (CEDAW). In 1993, the UN General Assembly also
adopted the Declaration on the Elimination of Violence Against Women. World
conferences on the role and rights of women have been regularly held in
Mexico City, Copenhagen, Nairobi and Beijing. The UN itself established a
Commission on the Status of Women.

The Philippines has been in cadence with the half and full steps of all these
women's movements. No less than Section 14, Article II of our 1987 Constitution
mandates the State to recognize the role of women in nation building and to
ensure the fundamental equality before the law of women and men. Our
Senate has ratified the CEDAW as well as the Convention on the Rights of the
Child and its two protocols. To cap it all, Congress, on March 8, 2004, enacted
Rep. Act No. 9262, entitled "An Act Defining Violence Against Women and Their
Children, Providing for Protective Measures for Victims, Prescribing Penalties
therefor and for other Purposes." (Citations omitted)
B. Women are the "usual" and "most likely"
victims of violence.
At the time of the presentation of Senate Bill No. 2723, official statistics on
violence against women and children show that
x x x physical injuries had the highest number of cases at 5,058 in 2002
representing 55.63% of total cases reported (9,903). And for the first semester of
2003, there were 2,381 reported cases out of 4,354 cases which represent
54.31%. xxx (T)he total number of women in especially difficult circumstances
served by the Department of Social Welfare and Development (DSWD) for the
year 2002, there are 1,417 physically abused/maltreated cases out of the total
of 5,608 cases. xxx (T)here are 1,091 DSWD cases out of a total number of 3,471
cases for the first semester of 2003. Female violence comprised more than 90%
of all forms of abuse and violence and more than 90% of these reported cases
were committed by the women's intimate partners such as their husbands and
live-in partners.73
Recently, the Philippine Commission on Women presented comparative
statistics on violence against women across an eight-year period from 2004 to
August of 2011 with violations under R.A. 9262 ranking first among the different
VAW categories since its implementation in 2004,74 thus:
Table 1. Annual Comparative Statistics on Violence Against Women, 2004 - 2011*

Reported
Cases

200
4

200
5

200
6

200
7

200
8

200
9

2010

2011

Rape

997

927

659

837

811

770

1,04
2

832

Incestuou
s Rape

38

46

26

22

28

27

19

23

Attempte
d Rape

194

148

185

147

204

167

268

201

Acts of
Lascivious
ness

580

536

382

358

445

485

745

625

Physical
Injuries

3,5
53

2,3
35

1,8
92

1,5
05

1,3
07

1,4
98

2,01
8

1,58
8

Sexual
Harassme
nt

53

37

38

46

18

54

83

63

RA 9262

218

924

1,2
69

2,3
87

3,5
99

5,2
85

9,97
4

9,02
1

Threats

319

223

199

182

220

208

374

213

Seduction

62

19

29

30

19

19

25

15

Concubin
age

121

102

93

109

109

99

158

128

RA 9208

17

11

16

24

34

152

190

62

Abductio
n
/Kidnappi
ng 29

16

34

23

28

18

25

22

Unjust
Vexation

90

50

59

59

83

703

183

155

Total

6,2
71

5,3
74

4,8
81

5,7
29

6,9
05

9,4
85

15,1
04

12,9
48

*2011 report covers only from January to August

Source: Philippine National Police Women and Children Protection Center
(WCPC)
On the other hand, no reliable estimates may be obtained on domestic abuse
and violence against men in the Philippines because incidents thereof are
relatively low and, perhaps, because many men will not even attempt to report
the situation. In the United Kingdom, 32% of women who had ever experienced
domestic violence did so four or five (or more) times, compared with 11% of the
smaller number of men who had ever experienced domestic violence; and
women constituted 89% of all those who had experienced 4 or more incidents of
domestic violence.75 Statistics in Canada show that spousal violence by a
woman against a man is less likely to cause injury than the other way around (18
percent versus 44 percent). Men, who experience violence from their spouses
are much less likely to live in fear of violence at the hands of their spouses, and
much less likely to experience sexual assault. In fact, many cases of physical
violence by a woman against a spouse are in self-defense or the result of many
years of physical or emotional abuse.76
While there are, indeed, relatively few cases of violence and abuse perpetrated
against men in the Philippines, the same cannot render R.A. 9262 invalid.
In a 1960 case involving the violation of a city ordinance requiring drivers of
animal-drawn vehicles to pick up, gather and deposit in receptacles the
manure emitted or discharged by their vehicle-drawing animals in any public
highways, streets, plazas, parks or alleys, said ordinance was challenged as
violative of the guaranty of equal protection of laws as its application is limited
to owners and drivers of vehicle-drawing animals and not to those animals,
although not utilized, but similarly pass through the same streets.
The ordinance was upheld as a valid classification for the reason that, while
there may be non-vehicle-drawing animals that also traverse the city roads, "but
their number must be negligible and their appearance therein merely
occasional, compared to the rig-drawing ones, as not to constitute a menace
to the health of the community."77 The mere fact that the legislative

classification may result in actual inequality is not violative of the right to equal
protection, for every classification of persons or things for regulation by law
produces inequality in some degree, but the law is not thereby rendered
invalid.78
C. Gender bias and prejudices
From the initial report to the police through prosecution, trial, and sentencing,
crimes against women are often treated differently and less seriously than other
crimes. This was argued by then United States Senator Joseph R. Biden, Jr., now
Vice President, chief sponsor of the Violence Against Women Act (VAWA), in
defending the civil rights remedy as a valid exercise of the U.S. Congress'
authority under the Commerce and Equal Protection Clauses. He stressed that
the widespread gender bias in the U.S. has institutionalized historic prejudices
against victims of rape or domestic violence, subjecting them to "double
victimization" first at the hands of the offender and then of the legal system.79
Our own Senator Loi Estrada lamented in her Sponsorship Speech for Senate Bill
No. 2723 that "(w)henever violence occurs in the family, the police treat it as a
private matter and advise the parties to settle the conflict themselves. Once the
complainant brings the case to the prosecutor, the latter is hesitant to file the
complaint for fear that it might later be withdrawn. This lack of response or
reluctance to be involved by the police and prosecution reinforces the
escalating, recurring and often serious nature of domestic violence."80
Sadly, our own courts, as well, have exhibited prejudices and biases against our
women.
In a recent case resolved on March 9, 2011, we fined RTC Judge Venancio J.
Amila for Conduct Unbecoming of a Judge. He used derogatory and irreverent
language in reference to the complainant in a petition for TPO and PPO under
R.A. 9262, calling her as "only a live-in partner" and presenting her as an
"opportunist" and a "mistress" in an "illegitimate relationship." Judge Amila even
called her a "prostitute," and accused her of being motivated by "insatiable
greed" and of absconding with the contested property.81 Such remarks
betrayed Judge Amila's prejudices and lack of gender sensitivity.
The enactment of R.A. 9262 aims to address the discrimination brought about by
biases and prejudices against women. As emphasized by the CEDAW
Committee on the Elimination of Discrimination against Women, addressing or
correcting discrimination through specific measures focused on women does
not discriminate against men.82 Petitioner's contention,83 therefore, that R.A.
9262 is discriminatory and that it is an "anti-male," "husband-bashing," and "hatemen" law deserves scant consideration. As a State Party to the CEDAW, the

Philippines bound itself to take all appropriate measures "to modify the social
and cultural patterns of conduct of men and women, with a view to achieving
the elimination of prejudices and customary and all other practices which are
based on the idea of the inferiority or the superiority of either of the sexes or on
stereotyped roles for men and women."84 Justice Puno correctly pointed out
that "(t)he paradigm shift changing the character of domestic violence from a
private affair to a public offense will require the development of a distinct
mindset on the part of the police, the prosecution and the judges."85
II. The classification is germane to the purpose of the law.
The distinction between men and women is germane to the purpose of R.A.
9262, which is to address violence committed against women and children,
spelled out in its Declaration of Policy, as follows:
SEC. 2. Declaration of Policy. It is hereby declared that the State values the
dignity of women and children and guarantees full respect for human rights. The
State also recognizes the need to protect the family and its members
particularly women and children, from violence and threats to their personal
safety and security.
Towards this end, the State shall exert efforts to address violence committed
against women and children in keeping with the fundamental freedoms
guaranteed under the Constitution and the provisions of the Universal
Declaration of Human Rights, the Convention on the Elimination of All Forms of
Discrimination Against Women, Convention on the Rights of the Child and other
international human rights instruments of which the Philippines is a party.
In 1979, the U.N. General Assembly adopted the CEDAW, which the Philippines
ratified on August 5, 1981. Subsequently, the Optional Protocol to the CEDAW
was also ratified by the Philippines on October 6, 2003.86 This Convention
mandates that State parties shall accord to women equality with men before
the law87 and shall take all appropriate measures to eliminate discrimination
against women in all matters relating to marriage and family relations on the
basis of equality of men and women.88 The Philippines likewise ratified the
Convention on the Rights of the Child and its two protocols.89 It is, thus, bound by
said Conventions and their respective protocols.
III. The classification is not limited to existing
conditions only, and apply equally to all members
Moreover, the application of R.A. 9262 is not limited to the existing conditions
when it was promulgated, but to future conditions as well, for as long as the

safety and security of women and their children are threatened by violence
and abuse.
R.A. 9262 applies equally to all women and children who suffer violence and
abuse. Section 3 thereof defines VAWC as:
x x x any act or a series of acts committed by any person against a woman who
is his wife, former wife, or against a woman with whom the person has or had a
sexual or dating relationship, or with whom he has a common child, or against
her child whether legitimate or illegitimate, within or without the family abode,
which result in or is likely to result in physical, sexual, psychological harm or
suffering, or economic abuse including threats of such acts, battery, assault,
coercion, harassment or arbitrary deprivation of liberty. It includes, but is not
limited to, the following acts:
A. "Physical Violence" refers to acts that include bodily or physical harm;
B. "Sexual violence" refers to an act which is sexual in nature, committed against
a woman or her child. It includes, but is not limited to:
a) rape, sexual harassment, acts of lasciviousness, treating a
woman or her child as a sex object, making demeaning and
sexually suggestive remarks, physically attacking the sexual parts of
the victim's body, forcing her/him to watch obscene publications
and indecent shows or forcing the woman or her child to do
indecent acts and/or make films thereof, forcing the wife and
mistress/lover to live in the conjugal home or sleep together in the
same room with the abuser;
b) acts causing or attempting to cause the victim to engage in any
sexual activity by force, threat of force, physical or other harm or
threat of physical or other harm or coercion;
c) Prostituting the woman or child.
C. "Psychological violence" refers to acts or omissions causing or likely to cause
mental or emotional suffering of the victim such as but not limited to
intimidation, harassment, stalking, damage to property, public ridicule or
humiliation, repeated verbal abuse and marital infidelity. It includes causing or
allowing the victim to witness the physical, sexual or psychological abuse of a
member of the family to which the victim belongs, or to witness pornography in
any form or to witness abusive injury to pets or to unlawful or unwanted
deprivation of the right to custody and/or visitation of common children.

D. "Economic abuse" refers to acts that make or attempt to make a woman

financially dependent which includes, but is not limited to the following:
1. withdrawal of financial support or preventing the victim from
engaging in any legitimate profession, occupation, business or
activity, except in cases wherein the other spouse/partner objects
on valid, serious and moral grounds as defined in Article 73 of the
Family Code;
2. deprivation or threat of deprivation of financial resources and the
right to the use and enjoyment of the conjugal, community or
property owned in common;
3. destroying household property;
4. controlling the victims' own money or properties or solely
controlling the conjugal money or properties.
It should be stressed that the acts enumerated in the aforequoted provision are
attributable to research that has exposed the dimensions and dynamics of
battery. The acts described here are also found in the U.N. Declaration on the
Elimination of Violence Against Women.90 Hence, the argument advanced by
petitioner that the definition of what constitutes abuse removes the difference
between violent action and simple marital tiffs is tenuous.
There is nothing in the definition of VAWC that is vague and ambiguous that will
confuse petitioner in his defense. The acts enumerated above are easily
understood and provide adequate contrast between the innocent and the
prohibited acts. They are worded with sufficient definiteness that persons of
ordinary intelligence can understand what conduct is prohibited, and need not
guess at its meaning nor differ in its application.91 Yet, petitioner insists92 that
phrases like "depriving or threatening to deprive the woman or her child of a
legal right," "solely controlling the conjugal or common money or properties,"
"marital infidelity," and "causing mental or emotional anguish" are so vague that
they make every quarrel a case of spousal abuse. However, we have stressed
that the "vagueness" doctrine merely requires a reasonable degree of certainty
for the statute to be upheld not absolute precision or mathematical
exactitude, as petitioner seems to suggest. Flexibility, rather than meticulous
specificity, is permissible as long as the metes and bounds of the statute are
clearly delineated. An act will not be held invalid merely because it might have
been more explicit in its wordings or detailed in its provisions.93
There is likewise no merit to the contention that R.A. 9262 singles out the husband
or father as the culprit. As defined above, VAWC may likewise be committed

"against a woman with whom the person has or had a sexual or dating
relationship." Clearly, the use of the gender-neutral word "person" who has or
had a sexual or dating relationship with the woman encompasses even lesbian
relationships. Moreover, while the law provides that the offender be related or
connected to the victim by marriage, former marriage, or a sexual or dating
relationship, it does not preclude the application of the principle of conspiracy
under the Revised Penal Code (RPC). Thus, in the case of Go-Tan v. Spouses
Tan,94 the parents-in-law of Sharica Mari L. Go-Tan, the victim, were held to be
proper respondents in the case filed by the latter upon the allegation that they
and their son (Go-Tan's husband) had community of design and purpose in
tormenting her by giving her insufficient financial support; harassing and
pressuring her to be ejected from the family home; and in repeatedly abusing
her verbally, emotionally, mentally and physically.
R.A. 9262 is not violative of the
due process clause of the Constitution.
Petitioner bewails the disregard of R.A. 9262, specifically in the issuance of POs,
of all protections afforded by the due process clause of the Constitution. Says
he: "On the basis of unsubstantiated allegations, and practically no opportunity
to respond, the husband is stripped of family, property, guns, money, children,
job, future employment and reputation, all in a matter of seconds, without an
inkling of what happened."95
A protection order is an order issued to prevent further acts of violence against
women and their children, their family or household members, and to grant
other necessary reliefs. Its purpose is to safeguard the offended parties from
further harm, minimize any disruption in their daily life and facilitate the
opportunity and ability to regain control of their life.96
"The scope of reliefs in protection orders is broadened to ensure that the victim
or offended party is afforded all the remedies necessary to curtail access by a
perpetrator to the victim. This serves to safeguard the victim from greater risk of
violence; to accord the victim and any designated family or household member
safety in the family residence, and to prevent the perpetrator from committing
acts that jeopardize the employment and support of the victim. It also enables
the court to award temporary custody of minor children to protect the children
from violence, to prevent their abduction by the perpetrator and to ensure their
financial support."97
The rules require that petitions for protection order be in writing, signed and
verified by the petitioner98 thereby undertaking full responsibility, criminal or civil,
for every allegation therein. Since "time is of the essence in cases of VAWC if
further violence is to be prevented,"99 the court is authorized to issue ex parte a

TPO after raffle but before notice and hearing when the life, limb or property of
the victim is in jeopardy and there is reasonable ground to believe that the
order is necessary to protect the victim from the immediate and imminent
danger of VAWC or to prevent such violence, which is about to recur.100
There need not be any fear that the judge may have no rational basis to issue
an ex parte order. The victim is required not only to verify the allegations in the
petition, but also to attach her witnesses' affidavits to the petition.101
The grant of a TPO ex parte cannot, therefore, be challenged as violative of the
right to due process. Just like a writ of preliminary attachment which is issued
without notice and hearing because the time in which the hearing will take
could be enough to enable the defendant to abscond or dispose of his
property,102 in the same way, the victim of VAWC may already have suffered
harrowing experiences in the hands of her tormentor, and possibly even death,
if notice and hearing were required before such acts could be prevented. It is a
constitutional commonplace that the ordinary requirements of procedural due
process must yield to the necessities of protecting vital public interests,103 among
which is protection of women and children from violence and threats to their
personal safety and security.
It should be pointed out that when the TPO is issued ex parte, the court shall
likewise order that notice be immediately given to the respondent directing him
to file an opposition within five (5) days from service. Moreover, the court shall
order that notice, copies of the petition and TPO be served immediately on the
respondent by the court sheriffs. The TPOs are initially effective for thirty (30) days
from service on the respondent.104
Where no TPO is issued ex parte, the court will nonetheless order the immediate
issuance and service of the notice upon the respondent requiring him to file an
opposition to the petition within five (5) days from service. The date of the
preliminary conference and hearing on the merits shall likewise be indicated on
the notice.105
The opposition to the petition which the respondent himself shall verify, must be
accompanied by the affidavits of witnesses and shall show cause why a
temporary or permanent protection order should not be issued.106
It is clear from the foregoing rules that the respondent of a petition for
protection order should be apprised of the charges imputed to him and
afforded an opportunity to present his side. Thus, the fear of petitioner of being
"stripped of family, property, guns, money, children, job, future employment and
reputation, all in a matter of seconds, without an inkling of what happened" is a
mere product of an overactive imagination. The essence of due process is to be

found in the reasonable opportunity to be heard and submit any evidence one
may have in support of one's defense. "To be heard" does not only mean verbal
arguments in court; one may be heard also through pleadings. Where
opportunity to be heard, either through oral arguments or pleadings, is
accorded, there is no denial of procedural due process.107
It should be recalled that petitioner filed on April 26, 2006 an Opposition to the
Urgent Ex-Parte Motion for Renewal of the TPO that was granted only two days
earlier on April 24, 2006. Likewise, on May 23, 2006, petitioner filed a motion for
the modification of the TPO to allow him visitation rights to his children. Still, the
trial court in its Order dated September 26, 2006, gave him five days (5) within
which to show cause why the TPO should not be renewed or extended. Yet, he
chose not to file the required comment arguing that it would just be an "exercise
in futility," conveniently forgetting that the renewal of the questioned TPO was
only for a limited period (30 days) each time, and that he could prevent the
continued renewal of said order if he can show sufficient cause therefor. Having
failed to do so, petitioner may not now be heard to complain that he was
denied due process of law.
Petitioner next laments that the removal and exclusion of the respondent in the
VAWC case from the residence of the victim, regardless of ownership of the
residence, is virtually a "blank check" issued to the wife to claim any property as
her conjugal home.108
The wording of the pertinent rule, however, does not by any stretch of the
imagination suggest that this is so. It states:
SEC. 11. Reliefs available to the offended party. -- The protection order shall
include any, some or all of the following reliefs:
xxxx
(c) Removing and excluding the respondent from the residence of the offended
party, regardless of ownership of the residence, either temporarily for the
purpose of protecting the offended party, or permanently where no property
rights are violated. If the respondent must remove personal effects from the
residence, the court shall direct a law enforcement agent to accompany the
respondent to the residence, remain there until the respondent has gathered his
things and escort him from the residence;
xxxx
Indubitably, petitioner may be removed and excluded from private
respondent's residence, regardless of ownership, only temporarily for the

purpose of protecting the latter. Such removal and exclusion may be

permanent only where no property rights are violated. How then can the private
respondent just claim any property and appropriate it for herself, as petitioner
seems to suggest?
The non-referral of a VAWC case
to a mediator is justified.
Petitioner argues that "by criminalizing run-of-the-mill arguments, instead of
encouraging mediation and counseling, the law has done violence to the
avowed policy of the State to "protect and strengthen the family as a basic
autonomous social institution."109
Under Section 23(c) of A.M. No. 04-10-11-SC, the court shall not refer the case or
any issue thereof to a mediator. The reason behind this provision is wellexplained by the Commentary on Section 311 of the Model Code on Domestic
and Family Violence as follows:110
This section prohibits a court from ordering or referring parties to mediation in a
proceeding for an order for protection. Mediation is a process by which parties
in equivalent bargaining positions voluntarily reach consensual agreement
about the issue at hand. Violence, however, is not a subject for compromise. A
process which involves parties mediating the issue of violence implies that the
victim is somehow at fault. In addition, mediation of issues in a proceeding for
an order of protection is problematic because the petitioner is frequently unable
to participate equally with the person against whom the protection order has
been sought. (Emphasis supplied)
There is no undue delegation of
judicial power to barangay officials.
Petitioner contends that protection orders involve the exercise of judicial power
which, under the Constitution, is placed upon the "Supreme Court and such
other lower courts as may be established by law" and, thus, protests the
delegation of power to barangay officials to issue protection orders.111 The
pertinent provision reads, as follows:
SEC. 14. Barangay Protection Orders (BPOs); Who May Issue and How.
Barangay Protection Orders (BPOs) refer to the protection order issued by the
Punong Barangay ordering the perpetrator to desist from committing acts under
Section 5 (a) and (b) of this Act.1wphi1 A Punong Barangay who receives
applications for a BPO shall issue the protection order to the applicant on the
date of filing after ex parte determination of the basis of the application. If the
Punong Barangay is unavailable to act on the application for a BPO, the

application shall be acted upon by any available Barangay Kagawad. If the

BPO is issued by a Barangay Kagawad, the order must be accompanied by an
attestation by the Barangay Kagawad that the Punong Barangay was
unavailable at the time of the issuance of the BPO. BPOs shall be effective for
fifteen (15) days. Immediately after the issuance of an ex parte BPO, the Punong
Barangay or Barangay Kagawad shall personally serve a copy of the same on
the respondent, or direct any barangay official to effect its personal service.
The parties may be accompanied by a non-lawyer advocate in any
proceeding before the Punong Barangay.
Judicial power includes the duty of the courts of justice to settle actual
controversies involving rights which are legally demandable and enforceable,
and to determine whether or not there has been a grave abuse of discretion
amounting to lack or excess of jurisdiction on the part of any branch or
instrumentality of the Government.112 On the other hand, executive power "is
generally defined as the power to enforce and administer the laws. It is the
power of carrying the laws into practical operation and enforcing their due
observance."113
As clearly delimited by the aforequoted provision, the BPO issued by the Punong
Barangay or, in his unavailability, by any available Barangay Kagawad, merely
orders the perpetrator to desist from (a) causing physical harm to the woman or
her child; and (2) threatening to cause the woman or her child physical harm.
Such function of the Punong Barangay is, thus, purely executive in nature, in
pursuance of his duty under the Local Government Code to "enforce all laws
and ordinances," and to "maintain public order in the barangay."114
We have held that "(t)he mere fact that an officer is required by law to inquire
into the existence of certain facts and to apply the law thereto in order to
determine what his official conduct shall be and the fact that these acts may
affect private rights do not constitute an exercise of judicial powers."115
In the same manner as the public prosecutor ascertains through a preliminary
inquiry or proceeding "whether there is reasonable ground to believe that an
offense has been committed and the accused is probably guilty thereof," the
Punong Barangay must determine reasonable ground to believe that an
imminent danger of violence against the woman and her children exists or is
about to recur that would necessitate the issuance of a BPO. The preliminary
investigation conducted by the prosecutor is, concededly, an executive, not a
judicial, function. The same holds true with the issuance of a BPO.
We need not even belabor the issue raised by petitioner that since barangay
officials and other law enforcement agencies are required to extend assistance

to victims of violence and abuse, it would be very unlikely that they would
remain objective and impartial, and that the chances of acquittal are nil. As
already stated, assistance by barangay officials and other law enforcement
agencies is consistent with their duty to enforce the law and to maintain peace
and order.
Conclusion
Before a statute or its provisions duly challenged are voided, an unequivocal
breach of, or a clear conflict with the Constitution, not merely a doubtful or
argumentative one, must be demonstrated in such a manner as to leave no
doubt in the mind of the Court. In other words, the grounds for nullity must be
beyond reasonable doubt.116 In the instant case, however, no concrete
evidence and convincing arguments were presented by petitioner to warrant a
declaration of the unconstitutionality of R.A. 9262, which is an act of Congress
and signed into law by the highest officer of the co-equal executive
department. As we said in Estrada v. Sandiganbayan, 117 courts must assume
that the legislature is ever conscious of the borders and edges of its plenary
powers, and passed laws with full knowledge of the facts and for the purpose of
promoting what is right and advancing the welfare of the majority.
We reiterate here Justice Puno's observation that "the history of the women's
movement against domestic violence shows that one of its most difficult
struggles was the fight against the violence of law itself. If we keep that in mind,
law will not again be a hindrance to the struggle of women for equality but will
be its fulfillment."118Accordingly, the constitutionality of R.A. 9262 is, as it should
be, sustained.
WHEREFORE, the instant petition for review on certiorari is hereby DENIED for lack
of merit.
SO ORDERED.
G.R. No. 205728

January 21, 2015

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

NAVARRA and THE BISHOP HIMSELF IN HIS PERSONAL CAPACITY, Petitioners,
vs.
COMMISSION ON ELECTIONS AND THE ELECTION OFFICER OF BACOLOD CITY,
ATTY. MAVIL V. MAJARUCON, Respondents.
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.6Those who voted for the passing of the law were classified
by petitioners as comprising "Team Patay," while those who voted against it form
"Team Buhay":7
TEAM BUHAY

TEAM PATAY

Estrada, JV

Angara, Juan Edgardo

Honasan, Gregorio

Casio, Teddy

Magsaysay, Mitos

Cayetano, Alan Peter

Pimentel, Koko

Enrile, Jackie

Trillanes, Antonio

Escudero, Francis

Villar, Cynthia

Hontiveros, Risa

Party List Buhay

Legarda, Loren

Party List Ang Pamilya

Party List Gabriela

Party List Akbayan
Party List Bayan Muna
Party List Anak Pawis

During oral arguments, respondents conceded that the tarpaulin was neither
sponsored nor paid for by any candidate. Petitioners also conceded that the
tarpaulin contains names ofcandidates for the 2013 elections, but not of
politicians who helped in the passage of the RH Law but were not candidates
for that election.
On February 22, 2013, respondent Atty. Mavil V. Majarucon, in her capacity as
Election Officer of Bacolod City, issued a Notice to Remove Campaign
Materials8 addressed to petitioner Most Rev. Bishop Vicente M. Navarra. The
election officer ordered the tarpaulins removal within three (3) days from
receipt for being oversized. COMELEC Resolution No. 9615 provides for the size
requirement of two feet (2) by three feet (3).9
On February 25, 2013, petitioners replied10 requesting, among others, that (1)
petitioner Bishop be given a definite ruling by COMELEC Law Department
regarding the tarpaulin; and (2) pending this opinion and the availment of legal
remedies, the tarpaulin be allowed to remain.11
On February 27, 2013, COMELEC Law Department issued a letter12 ordering the
immediate removal of the tarpaulin; otherwise, it will be constrained to file an
election offense against petitioners. The letter of COMELEC Law Department
was silenton the remedies available to petitioners. The letter provides as follows:
Dear Bishop Navarra:
It has reached this Office that our Election Officer for this City, Atty. Mavil
Majarucon, had already given you notice on February 22, 2013 as regards the
election propaganda material posted on the church vicinity promoting for or
against the candidates and party-list groups with the following names and
messages, particularly described as follows:
Material size : six feet (6) by ten feet (10)
Description : FULL COLOR TARPAULIN

Image of : SEE ATTACHED PICTURES

Message : CONSCIENCE VOTE (ANTI RH) TEAM
BUHAY; (PRO RH) TEAM PATAY
Location : POSTED ON THE CHURCH VICINITY
OF THE DIOCESE OF BACOLOD CITY
The three (3) day notice expired on February 25, 2013.
Considering that the above-mentioned material is found to be in violation of
Comelec Resolution No. 9615 promulgated on January 15, 2013 particularly on
the size (even with the subsequent division of the said tarpaulin into two), as the
lawful size for election propaganda material is only two feet (2) by three feet
(3), please order/cause the immediate removal of said election propaganda
material, otherwise, we shall be constrained to file an election offense case
against you.
We pray that the Catholic Church will be the first institution to help the
Commission on Elections inensuring the conduct of peaceful, orderly, honest
and credible elections.
Thank you and God Bless!
[signed]
ATTY. ESMERALDA AMORA-LADRA
Director IV13
Concerned about the imminent threatof prosecution for their exercise of free
speech, petitioners initiated this case through this petition for certiorari and
prohibition with application for preliminary injunction and temporary restraining
order.14 They question respondents notice dated February 22, 2013 and letter
issued on February 27, 2013. They pray that: (1) the petition be given due course;
(2) a temporary restraining order (TRO) and/or a writ of preliminary injunction be
issued restraining respondents from further proceeding in enforcing their orders
for the removal of the Team Patay tarpaulin; and (3) after notice and hearing, a
decision be rendered declaring the questioned orders of respondents as
unconstitutional and void, and permanently restraining respondents from
enforcing them or any other similar order.15
After due deliberation, this court, on March 5, 2013, issued a temporary
restraining order enjoining respondents from enforcing the assailed notice and
letter, and set oral arguments on March 19, 2013.16

On March 13, 2013, respondents filed their comment17 arguing that (1) a petition
for certiorari and prohibition under Rule 65 of the Rules of Court filed before this
court is not the proper remedy to question the notice and letter of respondents;
and (2) the tarpaulin is an election propaganda subject to regulation by
COMELEC pursuant to its mandate under Article IX-C, Section 4 of the
Constitution. Hence, respondents claim that the issuances ordering its removal
for being oversized are valid and constitutional.18
During the hearing held on March 19, 2013, the parties were directed to file their
respective memoranda within 10 days or by April 1, 2013, taking into
consideration the intervening holidays.19
The issues, which also served as guide for the oral arguments, are:20
I.
WHETHER THE 22 FEBRUARY 2013 NOTICE/ORDER BY ELECTION OFFICER
MAJARUCON AND THE 27 FEBRUARY 2013 ORDER BY THE COMELEC LAW
DEPARTMENT ARE CONSIDERED JUDGMENTS/FINAL ORDERS/RESOLUTIONS OF THE
COMELEC WHICH WOULD WARRANT A REVIEW OF THIS COURT VIA RULE 65
PETITION[;]
A. WHETHER PETITIONERS VIOLATED THE HIERARCHY OF COURTS
DOCTRINE AND JURISPRUDENTIAL RULES GOVERNING APPEALS
FROM COMELEC DECISIONS;
B. ASSUMING ARGUENDO THAT THE AFOREMENTIONED ORDERS ARE
NOT CONSIDERED JUDGMENTS/FINAL ORDERS/RESOLUTIONS OF THE
COMELEC, WHETHER THERE ARE EXCEPTIONAL CIRCUMSTANCES
WHICH WOULD ALLOW THIS COURT TO TAKE COGNIZANCE OF THE
CASE[;]
II.
WHETHER IT IS RELEVANT TODETERMINE WHETHER THE TARPAULINS ARE "POLITICAL
ADVERTISEMENT" OR "ELECTION PROPAGANDA" CONSIDERING THAT PETITIONER IS
NOT A POLITICAL CANDIDATE[;]
III.
WHETHER THE TARPAULINS ARE A FORM OR EXPRESSION (PROTECTED SPEECH), OR
ELECTION PROPAGANDA/POLITICAL ADVERTISEMENT[;]

A. ASSUMING ARGUENDO THAT THE TARPAULINS ARE A FORM OF

EXPRESSION, WHETHER THE COMELEC POSSESSES THE AUTHORITY TO
REGULATE THE SAME[;]
B. WHETHER THIS FORM OF EXPRESSION MAY BE REGULATED[;]
IV.
WHETHER THE 22 FEBRUARY 2013 NOTICE/ ORDER BY ELECTION OFFICER
MAJARUCON AND THE 27 FEBRUARY 2013 ORDER BY THE COMELEC LAW
DEPARTMENT VIOLATES THE PRINCIPLE OF SEPARATION OF CHURCH AND STATE[;]
[AND]
V.
WHETHER THE ACTION OF THE PETITIONERS IN POSTING ITS TARPAULIN VIOLATES
THE CONSTITUTIONAL PRINCIPLE OF SEPARATION OF CHURCH AND STATE.
I
PROCEDURAL ISSUES
I.A
This courts jurisdiction over COMELEC cases
Respondents ask that this petition be dismissed on the ground that the notice
and letter are not final orders, decisions, rulings, or judgments of the COMELEC
En Banc issued in the exercise of its adjudicatory powers, reviewable via Rule 64
of the Rules of Court.21
Rule 64 is not the exclusive remedy for all acts of the COMELEC. Rule 65 is
applicable especially to raise objections relating to a grave abuse of discretion
resulting in the ouster of jurisdiction.22 As a special civil action, there must also be
a showing that there be no plain, speedy, and adequate remedy in the ordinary
course of the law.
Respondents contend that the assailed notice and letter are not subject to
review by this court, whose power to review is "limited only to final decisions,
rulings and orders of the COMELEC En Banc rendered in the exercise of its
adjudicatory or quasi-judicial power."23 Instead, respondents claim that the
assailed notice and letter are reviewable only by COMELEC itself pursuant to
Article IX-C, Section 2(3) of the Constitution24 on COMELECs power to decide all
questions affecting elections.25 Respondents invoke the cases of Ambil, Jr. v.
COMELEC,26Repol 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.32At 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.36This 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
Based on ABS-CBN, this court could review orders and decisions of COMELEC
in electoral contests despite not being reviewed by the COMELEC En Banc, if:
1) It will prevent the miscarriage of justice;
2) The issue involves a principle of social justice;

3) The issue involves the protection of labor;

4) The decision or resolution sought tobe set aside is a nullity; or
5) The need for relief is extremely urgent and certiorari is the only
adequate and speedy remedy available.
Ultimately, this court took jurisdiction in Repoland decided that the status quo
anteorder issued by the COMELEC Division was unconstitutional.
Respondents also cite Soriano, Jr. v. COMELEC.This case was also an election
protest case involving candidates for the city council of Muntinlupa
City.41 Petitioners in Soriano, Jr.filed before this court a petition for certiorari
against an interlocutory order of the COMELEC First
Division.42 While the petition was pending in this court, the COMELEC First Division
dismissed the main election protest case.43 Sorianoapplied the general rule that
only final orders should be questioned with this court. The ponencia for this court,
however, acknowledged the exceptions to the general rule in ABS-CBN.44
Blanco v. COMELEC, another case cited by respondents, was a disqualification
case of one of the mayoralty candidates of Meycauayan, Bulacan.45 The
COMELEC Second Division ruled that petitioner could not qualify for the 2007
elections due to the findings in an administrative case that he engaged in vote
buying in the 1995 elections.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.

Furthermore, all these cases cited by respondents pertained to COMELECs

exercise of its adjudicatory or quasi-judicial power. This case pertains to acts of
COMELEC in the implementation of its regulatory powers. When it issued the
notice and letter, the COMELEC was allegedly enforcingelection laws.
I.B
Rule 65, grave abuse of discretion,
and limitations on political speech
The main subject of thiscase is an alleged constitutional violation: the
infringement on speech and the "chilling effect" caused by respondent
COMELECs notice and letter.
Petitioners allege that respondents committed grave abuse of discretion
amounting to lack or excess of jurisdiction in issuing the notice51 dated February
22,2013 and letter52 dated February 27, 2013 ordering the removal of the
tarpaulin.53 It is their position that these infringe on their fundamental right to
freedom of expression and violate the principle of separation of church and
state and, thus, are unconstitutional.54
The jurisdiction of this court over the subject matter is determined from the
allegations in the petition. Subject matter jurisdiction is defined as the authority
"to hear and determine cases of the general class to which the proceedings in
question belong and is conferred by the sovereign authority which organizes the
court and defines its powers."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.
COMELECs notice and letter affect preferred speech. Respondents acts are
capable of repetition. Under the conditions in which it was issued and in view of
the novelty of this case,it could result in a "chilling effect" that would affect other

citizens who want their voices heard on issues during the elections. Other citizens
who wish to express their views regarding the election and other related issues
may choose not to, for fear of reprisal or sanction by the COMELEC. Direct resort
to this court is allowed to avoid such proscribed conditions. Rule 65 is also the
procedural platform for raising grave abuse of discretion.
Both parties point to constitutional provisions on jurisdiction. For petitioners, it
referred to this courts expanded exercise of certiorari as provided by the
Constitution as follows:
Judicial power includes the duty of the courts of justice to settle actual
controversies involving rights which are legally demandable and enforceable,
and to determine whether ornot there has been a grave abuse of discretion
amounting to lack or excess of jurisdiction on the part of any branch or
instrumentality of the Government.56(Emphasis supplied)
On the other hand, respondents relied on its constitutional mandate to decide
all questions affectingelections. Article IX-C, Section 2(3) of the Constitution,
provides:
Sec. 2. The Commission on Elections shall exercise the following powers and
functions:
....
(3) Decide, except those involving the right to vote, all questions affecting
elections, including determination of the number and location of polling places,
appointment of election officials and inspectors, and registration of voters.
Respondents reliance on this provision is misplaced.
We are not confronted here with the question of whether the COMELEC, in its
exercise of jurisdiction, gravely abused it. We are confronted with the question
as to whether the COMELEC had any jurisdiction at all with its acts threatening
imminent criminal action effectively abridging meaningful political speech.
It is clear that the subject matter of the controversy is the effect of COMELECs
notice and letter on free speech. This does not fall under Article IX-C, Section
2(3) of the Constitution. The use of the word "affecting" in this provision cannot
be interpreted to mean that COMELEC has the exclusive power to decide any
and allquestions that arise during elections. COMELECs constitutional
competencies during elections should not operate to divest this court of its own
jurisdiction.

The more relevant provision for jurisdiction in this case is Article VIII, Section 5(1)
of the Constitution.This provision provides for this courts original jurisdiction over
petitions for certiorari and prohibition. This should be read alongside the
expanded jurisdiction of the court in Article VIII, Section 1 of the Constitution.
Certainly, a breach of the fundamental right of expression by COMELEC is grave
abuse of discretion. Thus, the constitutionality of the notice and letter coming
from COMELEC is within this courts power to review.
During elections, we have the power and the duty to correct any grave abuse
of discretion or any act tainted with unconstitutionality on the part of any
government branch or instrumentality. This includes actions by the COMELEC.
Furthermore, it is this courts constitutional mandate to protect the people
against governments infringement of their fundamental rights. This constitutional
mandate out weighs the jurisdiction vested with the COMELEC.
It will, thus, be manifest injustice if the court does not take jurisdiction over this
case.
I.C
Hierarchy of courts
This brings us to the issue of whether petitioners violated the doctrine of
hierarchy of courts in directly filing their petition before this court.
Respondents contend that petitioners failure to file the proper suit with a lower
court of concurrent jurisdiction is sufficient ground for the dismissal of their
petition.57 They add that observation of the hierarchy of courts is compulsory,
citing Heirs of Bertuldo Hinog v. Melicor.58 While respondents claim that while
there are exceptions to the general rule on hierarchy of courts, none of these
are present in this case.59
On the other hand, petitioners cite Fortich v. Corona60 on this courts
discretionary power to take cognizance of a petition filed directly to it if
warranted by "compelling reasons, or [by] the nature and importance of the
issues raised. . . ."61 Petitioners submit that there are "exceptional and compelling
reasons to justify a direct resort [with] this Court."62
In Baez, Jr. v. Concepcion,63 we explained the necessity of the application of
the hierarchy of courts:
The Court must enjoin the observance of the policy on the hierarchy of courts,
and now affirms that the policy is not to be ignored without serious

consequences. The strictness of the policy is designed to shield the Court from
having to deal with causes that are also well within the competence of the
lower courts, and thus leave time to the Court to deal with the more
fundamental and more essential tasks that the Constitution has assigned to it.
The Court may act on petitions for the extraordinary writs of certiorari, prohibition
and mandamus only when absolutely necessary or when serious and important
reasons exist to justify an exception to the policy.64
In Baez, we also elaborated on the reasons why lower courts are allowed to
issue writs of certiorari, prohibition, and mandamus, citing Vergara v. Suelto:65
The Supreme Court is a court of lastresort, and must so remain if it is to
satisfactorily perform the functions assigned to it by the fundamental charter
and immemorial tradition. It cannot and should not be burdened with the task
of dealing with causes in the first instance. Its original jurisdiction to issue the socalled extraordinary writs should be exercised only where absolutely necessary
or where serious and important reasons exist therefore. Hence, that jurisdiction
should generally be exercised relative to actions or proceedings before the
Court of Appeals, or before constitutional or other tribunals, bodies or agencies
whose acts for some reason or another are not controllable by the Court of
Appeals. Where the issuance of an extraordinary writ is also within the
competence of the Court of Appeals or a Regional Trial Court, it is in either of
these courts that the specific action for the writs procurement must be
presented. This is and should continue to be the policy in this regard, a policy
that courts and lawyers must strictly observe.66 (Emphasis omitted)
The doctrine that requires respect for the hierarchy of courts was created by this
court to ensure that every level of the judiciary performs its designated roles in
an effective and efficient manner. Trial courts do not only determine the facts
from the evaluation of the evidence presented before them. They are likewise
competent to determine issues of law which may include the validity of an
ordinance, statute, or even an executive issuance in relation to the
Constitution.67 To effectively perform these functions, they are territorially
organized into regions and then into branches. Their writs generally reach within
those territorial boundaries. Necessarily, they mostly perform the all-important
task of inferring the facts from the evidence as these are physically presented
before them. In many instances, the facts occur within their territorial jurisdiction,
which properly present the actual case that makes ripe a determination of the
constitutionality of such action. The consequences, of course, would be national
in scope. There are, however, some cases where resort to courts at their level
would not be practical considering their decisions could still be appealed
before the higher courts, such as the Court of Appeals.

The Court of Appeals is primarily designed as an appellate court that reviews the
determination of facts and law made by the trial courts. It is collegiate in nature.
This nature ensures more standpoints in the review of the actions of the trial
court. But the Court of Appeals also has original jurisdiction over most special
civil actions. Unlike the trial courts, its writs can have a nationwide scope. It is
competent to determine facts and, ideally, should act on constitutional issues
thatmay not necessarily be novel unless there are factual questions to
determine.
This court, on the other hand, leads the judiciary by breaking new ground or
further reiterating in the light of new circumstances or in the light of some
confusions of bench or bar existing precedents. Rather than a court of first
instance or as a repetition of the actions of the Court of Appeals, this court
promulgates these doctrinal devices in order that it truly performs that role.
In other words, the Supreme Courts role to interpret the Constitution and act in
order to protect constitutional rights when these become exigent should not be
emasculated by the doctrine in respect of the hierarchy of courts. That has
never been the purpose of such doctrine.
Thus, the doctrine of hierarchy of courts is not an iron-clad rule.68 This court has
"full discretionary power to take cognizance and assume jurisdiction [over]
special civil actions for certiorari . . .filed directly with it for exceptionally
compelling reasons69 or if warranted by the nature of the issues clearly and
specifically raised in the petition."70 As correctly pointed out by petitioners,71 we
have provided exceptions to this doctrine:
First, a direct resort to this court is allowed when there are genuine issues of
constitutionality that must be addressed at the most immediate time. A direct
resort to this court includes availing of the remedies of certiorari and prohibition
toassail the constitutionality of actions of both legislative and executive
branches of the government.72
In this case, the assailed issuances of respondents prejudice not only petitioners
right to freedom of expression in the present case, but also of others in future
similar cases. The case before this court involves an active effort on the part of
the electorate to reform the political landscape. This has become a rare
occasion when private citizens actively engage the public in political discourse.
To quote an eminent political theorist:
[T]he theory of freedom of expression involves more than a technique for
arriving at better social judgments through democratic procedures. It
comprehends a vision of society, a faith and a whole way of life. The theory
grew out of an age that was awakened and invigorated by the idea of new

society in which man's mind was free, his fate determined by his own powers of
reason, and his prospects of creating a rational and enlightened civilization
virtually unlimited. It is put forward as a prescription for attaining a creative,
progressive, exciting and intellectually robust community. It contemplates a
mode of life that, through encouraging toleration, skepticism, reason and
initiative, will allow man to realize his full potentialities.It spurns the alternative of
a society that is tyrannical, conformist, irrational and stagnant.73
In a democracy, the citizens right tofreely participate in the exchange of ideas
in furtherance of political decision-making is recognized. It deserves the highest
protection the courts may provide, as public participation in nation-building isa
fundamental principle in our Constitution. As such, their right to engage in free
expression of ideas must be given immediate protection by this court.
A second exception is when the issuesinvolved are of transcendental
importance.74 In these cases, the imminence and clarity of the threat to
fundamental constitutional rights outweigh the necessity for prudence. The
doctrine relating to constitutional issues of transcendental importance prevents
courts from the paralysis of procedural niceties when clearly faced with the
need for substantial protection.
In the case before this court, there is a clear threat to the paramount right of
freedom of speech and freedom of expression which warrants invocation of
relief from this court. The principles laid down in this decision will likely influence
the discourse of freedom of speech in the future, especially in the context of
elections. The right to suffrage not only includes the right to vote for ones
chosen candidate, but also the right to vocalize that choice to the public in
general, in the hope of influencing their votes. It may be said that in an election
year, the right to vote necessarily includes the right to free speech and
expression. The protection of these fundamental constitutional rights, therefore,
allows for the immediate resort to this court.
Third, cases of first impression75 warrant a direct resort to this court. In cases of
first impression, no jurisprudence yet exists that will guide the lower courts on this
matter. In Government of the United States v. Purganan,76 this court took
cognizance of the case as a matter of first impression that may guide the lower
courts:
In the interest of justice and to settle once and for all the important issue of bail
in extradition proceedings, we deem it best to take cognizance of the present
case. Such proceedings constitute a matter of first impression over which there
is, as yet, no local jurisprudence to guide lower courts.77

This court finds that this is indeed a case of first impression involving as it does the
issue of whether the right of suffrage includes the right of freedom of expression.
This is a question which this court has yet to provide substantial answers to,
through jurisprudence. Thus, direct resort to this court is allowed.
Fourth, the constitutional issues raisedare better decided by this court. In Drilon v.
Lim,78 this court held that:
. . . it will be prudent for such courts, if only out of a becoming modesty, to defer
to the higher judgmentof this Court in the consideration of its validity, which is
better determined after a thorough deliberation by a collegiate body and with
the concurrence of the majority of those who participated in its
discussion.79 (Citation omitted)
In this case, it is this court, with its constitutionally enshrined judicial power, that
can rule with finality on whether COMELEC committed grave abuse of discretion
or performed acts contrary to the Constitution through the assailed issuances.
Fifth, the time element presented in this case cannot be ignored. This case was
filed during the 2013 election period. Although the elections have already been
concluded, future cases may be filed that necessitate urgency in its resolution.
Exigency in certain situations would qualify as an exception for direct resort to
this court.
Sixth, the filed petition reviews the act of a constitutional organ. COMELEC is a
constitutional body. In Albano v. Arranz,80 cited by petitioners, this court held
that "[i]t is easy to realize the chaos that would ensue if the Court of First Instance
ofeach and every province were [to] arrogate itself the power to disregard,
suspend, or contradict any order of the Commission on Elections: that
constitutional body would be speedily reduced to impotence."81
In this case, if petitioners sought to annul the actions of COMELEC through
pursuing remedies with the lower courts, any ruling on their part would not have
been binding for other citizens whom respondents may place in the same
situation. Besides, thiscourt affords great respect to the Constitution and the
powers and duties imposed upon COMELEC. Hence, a ruling by this court would
be in the best interest of respondents, in order that their actions may be guided
accordingly in the future.
Seventh, petitioners rightly claim that they had no other plain, speedy, and
adequate remedy in the ordinary course of law that could free them from the
injurious effects of respondents acts in violation of their right to freedom of
expression.

In this case, the repercussions of the assailed issuances on this basic right
constitute an exceptionally compelling reason to justify the direct resort to this
court. The lack of other sufficient remedies in the course of law alone is sufficient
ground to allow direct resort to this court.
Eighth, the petition includes questionsthat are "dictated by public welfare and
the advancement of public policy, or demanded by the broader interest of
justice, or the orders complained of were found to be patent nullities, or the
appeal was consideredas clearly an inappropriate remedy."82 In the past,
questions similar to these which this court ruled on immediately despite the
doctrine of hierarchy of courts included citizens right to bear
arms,83government contracts involving modernization of voters registration
lists,84 and the status and existence of a public office.85
This case also poses a question of similar, if not greater import. Hence, a direct
action to this court is permitted.
It is not, however, necessary that all of these exceptions must occur at the same
time to justify a direct resort to this court. While generally, the hierarchy of courts
is respected, the present case falls under the recognized exceptions and, as
such, may be resolved by this court directly.
I.D
The concept of a political question
Respondents argue further that the size limitation and its reasonableness is a
political question, hence not within the ambit of this courts power of review.
They cite Justice Vitugs separate opinion in Osmea v. COMELEC86 to support
their position:
It might be worth mentioning that Section 26, Article II, of the Constitution also
states that the "State shall guarantee equal access to opportunities for public
service, and prohibit political dynasties as may be defined by law." I see neither
Article IX (C)(4) nor Section 26, Article II, of the Constitution to be all that
adversarial or irreconcilably inconsistent with the right of free expression. In any
event, the latter, being one of general application, must yield to the specific
demands of the Constitution. The freedom of expression concededly holds, it is
true, a vantage point in hierarchy of constitutionally-enshrined rights but, like all
fundamental rights, it is not without limitations.
The case is not about a fight between the "rich" and the "poor" or between the
"powerful" and the "weak" in our society but it is to me a genuine attempt on the
part of Congress and the Commission on Elections to ensure that all candidates

are given an equal chance to media coverage and thereby be equally

perceived as giving real life to the candidates right of free expression rather
than being viewed as an undue restriction of that freedom. The wisdom in the
enactment of the law, i.e., that which the legislature deems to be best in giving
life to the Constitutional mandate, is not for the Court to question; it is a matter
that lies beyond the normal prerogatives of the Court to pass upon.87
This separate opinion is cogent for the purpose it was said. But it is not in point in
this case.
The present petition does not involve a dispute between the rich and poor, or
the powerful and weak, on their equal opportunities for media coverage of
candidates and their right to freedom of expression. This case concerns the right
of petitioners, who are non-candidates, to post the tarpaulin in their private
property, asan exercise of their right of free expression. Despite the invocation of
the political question doctrine by respondents, this court is not proscribed from
deciding on the merits of this case.
In Taada v. Cuenco,88 this court previously elaborated on the concept of what
constitutes a political question:
What is generally meant, when it is said that a question is political, and not
judicial, is that it is a matter which is to be exercised by the people in their
primary political capacity, or that it has been specifically delegated to some
other department or particular officer of the government, withdiscretionary
power to act.89 (Emphasis omitted)
It is not for this court to rehearse and re-enact political debates on what the text
of the law should be. In political forums, particularly the legislature, the creation
of the textof the law is based on a general discussion of factual circumstances,
broadly construed in order to allow for general application by the executive
branch. Thus, the creation of the law is not limited by particular and specific
facts that affect the rights of certain individuals, per se.
Courts, on the other hand, rule on adversarial positions based on existing facts
established on a specific case-to-case basis, where parties affected by the legal
provision seek the courts understanding of the law.
The complementary nature of the political and judicial branches of government
is essential in order to ensure that the rights of the general public are upheld at
all times. In order to preserve this balance, branches of government must afford
due respectand deference for the duties and functions constitutionally
delegated to the other. Courts cannot rush to invalidate a law or rule. Prudence

dictates that we are careful not to veto political acts unless we can craft
doctrine narrowly tailored to the circumstances of the case.
The case before this court does not call for the exercise of prudence or
modesty. There is no political question. It can be acted upon by this court
through the expanded jurisdiction granted to this court through Article VIII,
Section 1 of the Constitution.
A political question arises in constitutional issues relating to the powers or
competence of different agencies and departments of the executive or those
of the legislature. The political question doctrine is used as a defense when the
petition asks this court to nullify certain acts that are exclusively within the
domain of their respective competencies, as provided by the Constitution or the
law. In such situation, presumptively, this court should act with deference. It will
decline to void an act unless the exercise of that power was so capricious and
arbitrary so as to amount to grave abuse of discretion.
The concept of a political question, however, never precludes judicial review
when the act of a constitutional organ infringes upon a fundamental individual
or collective right. Even assuming arguendo that the COMELEC did have the
discretion to choose the manner of regulation of the tarpaulin in question, it
cannot do so by abridging the fundamental right to expression.
Marcos v. Manglapus90 limited the use of the political question doctrine:
When political questions are involved, the Constitution limits the determination
to whether or not there has been a grave abuse of discretion amounting to lack
or excess of jurisdiction on the part of the official whose action is being
questioned. If grave abuse is not established, the Court will not substitute its
judgment for that of the official concerned and decide a matter which by its
nature or by law is for the latter alone to decide.91
How this court has chosen to address the political question doctrine has
undergone an evolution since the timethat it had been first invoked in Marcos v.
Manglapus. Increasingly, this court has taken the historical and social context of
the case and the relevance of pronouncements of carefully and narrowly
tailored constitutional doctrines. This trend was followed in cases such as Daza v.
Singson92 and Coseteng v. Mitra Jr.93
Daza and Coseteng involved a question as to the application of Article VI,
Section 18 of the 1987 Constitution involving the removal of petitioners from the
Commission on Appointments. In times past, this would have involved a quint
essentially political question as it related to the dominance of political parties in
Congress. However, in these cases, this court exercised its power of judicial

review noting that the requirement of interpreting the constitutional provision

involved the legality and not the wisdom of a manner by which a constitutional
duty or power was exercised. This approach was again reiterated in Defensor
Santiago v. Guingona, Jr.94
In Integrated Bar of the Philippines v. Zamora,95 this court declared again that
the possible existence ofa political question did not bar an examination of
whether the exercise of discretion was done with grave abuse of discretion. In
that case, this court ruled on the question of whether there was grave abuse of
discretion in the Presidents use of his power to call out the armed forces to
prevent and suppress lawless violence.
In Estrada v. Desierto,96 this court ruled that the legal question as to whether a
former President resigned was not a political question even if the consequences
would be to ascertain the political legitimacy of a successor President.
Many constitutional cases arise from political crises. The actors in such crises may
use the resolution of constitutional issues as leverage. But the expanded
jurisdiction of this court now mandates a duty for it to exercise its power of
judicial review expanding on principles that may avert catastrophe or resolve
social conflict.
This courts understanding of the political question has not been static or
unbending. In Llamas v. Executive Secretary Oscar Orbos,97 this court held:
While it is true that courts cannot inquire into the manner in which the President's
discretionary powers are exercised or into the wisdom for its exercise, it is also a
settled rule that when the issue involved concerns the validity of such
discretionary powers or whether said powers are within the limits prescribed by
the Constitution, We will not decline to exercise our power of judicial review.
And such review does not constitute a modification or correction of the act of
the President, nor does it constitute interference with the functions of the
President.98
The concept of judicial power in relation to the concept of the political question
was discussed most extensively in Francisco v. HRET.99 In this case, the House of
Representatives arguedthat the question of the validity of the second
impeachment complaint that was filed against former Chief Justice Hilario
Davide was a political question beyond the ambit of this court. Former Chief
Justice Reynato Puno elaborated on this concept in his concurring and
dissenting opinion:
To be sure, the force to impugn the jurisdiction of this Court becomes more
feeble in light of the new Constitution which expanded the definition of judicial

power as including "the duty of the courts of justice to settle actual controversies
involving rights which are legally demandable and enforceable, and to
determine whether or not there has been a grave abuse of discretion
amounting to lack or excess of jurisdiction on the part of any branch or
instrumentality of the Government." As well observed by retired Justice Isagani
Cruz, this expanded definition of judicial power considerably constricted the
scope of political question. He opined that the language luminously suggests
that this duty (and power) is available even against the executive and
legislative departments including the President and the Congress, in the exercise
of their discretionary powers.100 (Emphasis in the original, citations omitted)
Francisco also provides the cases which show the evolution of the political
question, as applied in the following cases:
In Marcos v. Manglapus, this Court, speaking through Madame Justice Irene
Cortes, held: The present Constitution limits resort to the political question
doctrine and broadens the scope of judicial inquiry into areas which the
Court,under previous constitutions, would have normally left to the political
departments to decide. x x x
In Bengzon v. Senate Blue Ribbon Committee, through Justice Teodoro Padilla,
this Court declared:
The "allocation of constitutional boundaries" is a task that this Court must perform
under the Constitution. Moreover, as held in a recent case, "(t)he political
question doctrine neither interposes an obstacle to judicial determination of the
rival claims. The jurisdiction to delimit constitutional boundaries has been given
to this Court. It cannot abdicate that obligation mandated by the 1987
Constitution, although said provision by no means does away with the
applicability of the principle in appropriate cases." (Emphasis and italics
supplied)
And in Daza v. Singson, speaking through Justice Isagani Cruz, this Court ruled:
In the case now before us, the jurisdictional objection becomes even less
tenable and decisive. The reason is that, even if we were to assume that the
issue presented before us was political in nature, we would still not be precluded
from resolving it under the expanded jurisdiction conferred upon us that now
covers, in proper cases, even the political question.x x x (Emphasis and italics
supplied.)
....

In our jurisdiction, the determination of whether an issue involves a truly political

and non-justiciable question lies in the answer to the question of whether there
are constitutionally imposed limits on powers or functions conferred upon
political bodies. If there are, then our courts are duty-bound to examine whether
the branch or instrumentality of the government properly acted within such
limits.101 (Citations omitted)
As stated in Francisco, a political question will not be considered justiciable if
there are no constitutionally imposed limits on powers or functions conferred
upon political bodies. Hence, the existence of constitutionally imposed limits
justifies subjecting the official actions of the body to the scrutiny and review of
this court.
In this case, the Bill of Rights gives the utmost deference to the right to free
speech. Any instance that this right may be abridged demands judicial scrutiny.
It does not fall squarely into any doubt that a political question brings.
I.E
Exhaustion of administrative remedies
Respondents allege that petitioners violated the principle of exhaustion of
administrative remedies. Respondents insist that petitioners should have first
brought the matter to the COMELEC En Banc or any of its divisions.102
Respondents point out that petitioners failed to comply with the requirement in
Rule 65 that "there is no appeal, or any plain, speedy, and adequate remedy in
the ordinary course of law."103 They add that the proper venue to assail the
validity of the assailed issuances was in the course of an administrative hearing
to be conducted by COMELEC.104 In the event that an election offense is filed
against petitioners for posting the tarpaulin, they claim that petitioners should
resort to the remedies prescribed in Rule 34 of the COMELEC Rules of
Procedure.105
The argument on exhaustion of administrative remedies is not proper in this case.
Despite the alleged non-exhaustion of administrative remedies, it is clear that
the controversy is already ripe for adjudication. Ripeness is the "prerequisite that
something had by then been accomplished or performed by either branch [or
in this case, organ of government] before a court may come into the picture."106
Petitioners exercise of their rightto speech, given the message and their
medium, had understandable relevance especially during the elections.
COMELECs letter threatening the filing of the election offense against

petitioners is already an actionable infringement of this right. The impending

threat of criminal litigation is enough to curtail petitioners speech.
In the context of this case, exhaustion of their administrative remedies as
COMELEC suggested in their pleadings prolongs the violation of their freedom of
speech.
Political speech enjoys preferred protection within our constitutional order. In
Chavez v. Gonzales,107 Justice Carpio in a separate opinion emphasized: "[i]f
everthere is a hierarchy of protected expressions, political expression would
occupy the highest rank, and among different kinds of political expression, the
subject of fair and honest elections would be at the top."108 Sovereignty resides
in the people.109 Political speech is a direct exercise of the sovereignty. The
principle of exhaustion of administrative remedies yields in order to protect this
fundamental right.
Even assuming that the principle of exhaustion of administrative remedies is
applicable, the current controversy is within the exceptions to the principle. In
Chua v. Ang,110 this court held:
On the other hand, prior exhaustion of administrative remedies may be
dispensed with and judicial action may be validly resorted to immediately: (a)
when there is a violation of due process; (b) when the issue involved is purely a
legal question; (c) when the administrative action is patently illegal amounting
to lack or excess of jurisdiction; (d) when there is estoppel on the part ofthe
administrative agency concerned; (e) when there is irreparable injury; (f) when
the respondent is a department secretary whose acts as analter ego of the
President bear the implied and assumed approval of the latter; (g) when to
require exhaustion of administrative remedies would be unreasonable; (h) when
it would amount to a nullification of a claim; (i) when the subject matter is a
private land in land case proceedings; (j) whenthe rule does not provide a
plain, speedy and adequate remedy; or (k) when there are circumstances
indicating the urgency of judicial intervention."111 (Emphasis supplied, citation
omitted)
The circumstances emphasized are squarely applicable with the present case.
First, petitioners allegethat the assailed issuances violated their right to freedom
of expression and the principle of separation of church and state. This is a purely
legal question. Second, the circumstances of the present case indicate the
urgency of judicial intervention considering the issue then on the RH Law as well
as the upcoming elections. Thus, to require the exhaustion of administrative
remedies in this case would be unreasonable.

Time and again, we have held that this court "has the power to relax or suspend
the rules or to except a case from their operation when compelling reasons so
warrant, or whenthe purpose of justice requires it, [and when] [w]hat constitutes
[as] good and sufficient cause that will merit suspension of the rules is
discretionary upon the court".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 governmentowned 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:

(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;
(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;
(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."
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.
II.B
The violation of the constitutional right
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
II.B.1
Fundamental to the consideration of this issue is Article III, Section 4 of the
Constitution:
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
No law. . .
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. . .
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.
. . . of expression. . .
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:
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?
FR. BERNAS: "Expression" is more broad than speech. We accept it.
MR. BROCKA: Thank you.
THE PRESIDING OFFICER (Mr.Bengzon): Is it accepted?
FR. BERNAS: Yes.
THE PRESIDING OFFICER (Mr.Bengzon): Is there any objection? (Silence) The Chair
hears none; the amendment is approved.
FR. BERNAS: So, that provision will now read: "No law shall be passed abridging
the freedom of speech, expression or of the press . . . ."141 Speech may be said
to be inextricably linked to freedom itself as "[t]he right to think is the beginning
of freedom, and speech must be protected from the government because
speech is the beginning of thought."142
II.B.2
Communication is an essential outcome of protected
speech.143 Communication exists when "(1) a speaker, seeking to signal others,
uses conventional actions because he orshe reasonably believes that such
actions will be taken by the audience in the manner intended; and (2) the
audience so takes the actions."144 "[I]n communicative action[,] the hearer may

respond to the claims by . . . either accepting the speech acts claims or

opposing them with criticism or requests for justification."145
Speech is not limited to vocal communication. "[C]onduct is treated as a form
of speech sometimes referred to as symbolic speech[,]"146 such that "when
speech and nonspeech elements are combined in the same course of
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 impose it on the petitioners is to
deny them the right not to speak when their religion bids them to be silent. This
coercion of conscience has no place in the free society.
The democratic system provides for the accommodation of diverse ideas,
including the unconventional and even the bizarre or eccentric. The will of the
majority prevails, but it cannot regiment thought by prescribing the recitation by
rote of its opinions or proscribing the assertion of unorthodox or unpopular views
as inthis case. The conscientious objections of the petitioners, no less than the
impatience of those who disagree with them, are protected by the Constitution.
The State cannot make the individual speak when the soul within rebels.151
Even before freedom "of expression" was included in Article III, Section 4 of the
present Constitution,this court has applied its precedent version to expressions
other than verbal utterances.

In the 1985 case of Gonzalez v. Chairman Katigbak,152 petitioners objected to

the classification of the motion picture "Kapit sa Patalim" as "For Adults Only."
They contend that the classification "is without legal and factual basis and is
exercised as impermissible restraint of artistic expression."153 This court recognized
that "[m]otion pictures are important both as a medium for the communication
of ideas and the expression of the artistic impulse."154 It adds that "every
writer,actor, or producer, no matter what medium of expression he may use,
should be freed from the censor."155 This court found that "[the Boards]
perception of what constitutes obscenity appears to be unduly
restrictive."156 However, the petition was dismissed solely on the ground that
there were not enough votes for a ruling of grave abuse of discretion in the
classification made by the Board.157
II.B.3
Size does matter
The form of expression is just as important as the information conveyed that it
forms part of the expression. The present case is in point.
It is easy to discern why size matters.
First, it enhances efficiency in communication. A larger tarpaulin allows larger
fonts which make it easier to view its messages from greater distances.
Furthermore, a larger tarpaulin makes it easier for passengers inside moving
vehicles to read its content. Compared with the pedestrians, the passengers
inside moving vehicles have lesser time to view the content of a tarpaulin. The
larger the fonts and images, the greater the probability that it will catch their
attention and, thus, the greater the possibility that they will understand its
message.
Second, the size of the tarpaulin may underscore the importance of the
message to the reader. From an ordinary persons perspective, those who post
their messages in larger fonts care more about their message than those who
carry their messages in smaller media. The perceived importance given by the
speakers, in this case petitioners, to their cause is also part of the message. The
effectivity of communication sometimes relies on the emphasis put by the
speakers and onthe credibility of the speakers themselves. Certainly, larger
segments of the public may tend to be more convinced of the point made by
authoritative figures when they make the effort to emphasize their messages.
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.
These points become more salient when it is the electorate, not the candidates
or the political parties, that speaks. Too often, the terms of public discussion
during elections are framed and kept hostage by brief and catchy but
meaningless sound bites extolling the character of the candidate. Worse,
elections sideline political arguments and privilege the endorsement by
celebrities. Rather than provide obstacles to their speech, government should in
fact encourage it. Between the candidates and the electorate, the latter have
the better incentive to demand discussion of the more important issues.
Between the candidates and the electorate, the former have better incentives
to avoid difficult political standpoints and instead focus on appearances and
empty promises.
Large tarpaulins, therefore, are not analogous to time and place.158 They are
fundamentally part of expression protected under Article III, Section 4 of the
Constitution.
II.B.4
There are several theories and schools of thought that strengthen the need to
protect the basic right to freedom of expression.
First, this relates to the right ofthe people to participate in public affairs, including
the right to criticize government actions.
Proponents of the political theory on "deliberative democracy" submit that
"substantial, open, [and] ethical dialogue isa critical, and indeed defining,
feature of a good polity."159 This theory may be considered broad, but it
definitely "includes [a] collective decision making with the participation of all
who will beaffected by the decision."160It anchors on the principle that the
cornerstone of every democracy is that sovereignty resides in the people.161 To
ensure order in running the states affairs, sovereign powers were delegated and
individuals would be elected or nominated in key government positions to
represent the people. On this note, the theory on deliberative democracy may
evolve to the right of the people to make government accountable.
Necessarily, this includes the right of the people to criticize acts made pursuant
to governmental functions.

Speech that promotes dialogue on publicaffairs, or airs out grievances and

political discontent, should thus be protected and encouraged.
Borrowing the words of Justice Brandeis, "it is hazardous to discourage thought,
hope and imagination; that fear breeds repression; that repression breeds hate;
that hate menaces stable government; that the path of safety lies in the
opportunity to discuss freely supposed grievances and proposed remedies."162
In this jurisdiction, this court held that "[t]he interest of society and the
maintenance of good government demand a full discussion of public
affairs."163 This court has, thus, adopted the principle that "debate on public
issues should be uninhibited, robust,and wide open . . . [including even]
unpleasantly sharp attacks on government and public officials."164
Second, free speech should be encouraged under the concept of a market
place of ideas. This theory was articulated by Justice Holmes in that "the ultimate
good desired is better reached by [the] free trade in ideas:"165
When men have realized that time has upset many fighting faiths, they may
come to believe even more than they believe the very foundations of their own
conduct that the ultimate good desired is better reached by free trade in ideas
- that the best test of truth is the power of the thought to get itself accepted in
the competition of the market, and that truth is the only ground upon which
their wishes safely can be carried out.166
The way it works, the exposure to the ideas of others allows one to "consider,
test, and develop their own conclusions."167 A free, open, and dynamic market
place of ideas is constantly shaping new ones. This promotes both stability and
change where recurring points may crystallize and weak ones may develop. Of
course, free speech is more than the right to approve existing political beliefs
and economic arrangements as it includes, "[t]o paraphrase Justice Holmes,
[the] freedom for the thought that we hate, no less than for the thought that
agrees with us."168 In fact, free speech may "best serve its high purpose when it
induces a condition of unrest, creates dissatisfaction with conditions as they are,
or even stirs people to anger."169 It is in this context that we should guard against
any curtailment of the peoples right to participate in the free trade of ideas.
Third, free speech involves self-expression that enhances human dignity. This
right is "a means of assuring individual self-fulfillment,"170 among others. In
Philippine Blooming Mills Employees Organization v. Philippine Blooming Mills Co.,
Inc,171 this court discussed as follows:
The rights of free expression, free assembly and petition, are not only civil rights
but also political rights essential to man's enjoyment of his life, to his happiness

and to his full and complete fulfillment.Thru these freedoms the citizens can
participate not merely in the periodic establishment of the government through
their suffrage but also in the administration of public affairs as well as in the
discipline of abusive public officers. The citizen is accorded these rights so that
he can appeal to the appropriate governmental officers or agencies for redress
and protection as well as for the imposition of the lawful sanctions on erring
public officers and employees.172 (Emphasis supplied)
Fourth, expression is a marker for group identity. For one, "[v]oluntary associations
perform [an] important democratic role [in providing] forums for the
development of civil skills, for deliberation, and for the formation of identity and
community spirit[,] [and] are largely immune from [any] governmental
interference."173 They also "provide a buffer between individuals and the state a free space for the development of individual personality, distinct group
identity, and dissident ideas - and a potential source of opposition to the
state."174 Free speech must be protected as the vehicle to find those who have
similar and shared values and ideals, to join together and forward common
goals.
Fifth, the Bill of Rights, free speech included, is supposed to "protect individuals
and minorities against majoritarian abuses perpetrated through [the] framework
[of democratic governance]."175 Federalist framers led by James Madison were
concerned about two potentially vulnerable groups: "the citizenry at large majorities - who might be tyrannized or plundered by despotic federal
officials"176 and the minorities who may be oppressed by "dominant factions of
the electorate [that] capture [the] government for their own selfish
ends[.]"177 According to Madison, "[i]t is of great importance in a republic not
only to guard the society against the oppression of its rulers, but to guard one
part of the society against the injustice of the other part."178 We should strive to
ensure that free speech is protected especially in light of any potential
oppression against those who find themselves in the fringes on public issues.
Lastly, free speech must be protected under the safety valve theory.179 This
provides that "nonviolent manifestations of dissent reduce the likelihood of
violence[.]"180 "[A] dam about to burst . . . resulting in the banking up of a
menacing flood of sullen anger behind the walls of restriction"181 has been used
to describe the effect of repressing nonviolent outlets.182 In order to avoid this
situation and prevent people from resorting to violence, there is a need for
peaceful methods in making passionate dissent. This includes "free expression
and political participation"183 in that they can "vote for candidates who share
their views, petition their legislatures to [make or] change laws, . . . distribute
literature alerting other citizens of their concerns[,]"184 and conduct peaceful
rallies and other similar acts.185 Free speech must, thus, be protected as a
peaceful means of achieving ones goal, considering the possibility that

repression of nonviolent dissent may spill over to violent means just to drive a
point.
II.B.5
Every citizens expression with political consequences enjoys a high degree of
protection. Respondents argue that the tarpaulinis election propaganda, being
petitioners way of endorsing candidates who voted against the RH Law and
rejecting those who voted for it.186 As such, it is subject to regulation by
COMELEC under its constitutional mandate.187 Election propaganda is defined
under Section 1(4) of COMELEC Resolution No. 9615 as follows: SECTION 1.
Definitions . . .
....
4. The term "political advertisement" or "election propaganda" refers to any
matter broadcasted, published, printed, displayed or exhibited, in any medium,
which contain the name, image, logo, brand, insignia, color motif, initials, and
other symbol or graphic representation that is capable of being associated with
a candidate or party, and is intended to draw the attention of the public or a
segment thereof to promote or oppose, directly or indirectly, the election of the
said candidate or candidates to a public office. In broadcast media, political
advertisements may take the form of spots, appearances on TV shows and radio
programs, live or taped announcements, teasers, and other forms of advertising
messages or announcements used by commercial advertisers. Political
advertising includes matters, not falling within the scope of personal opinion,
that appear on any Internet website, including, but not limited to, social
networks, blogging sites, and micro-blogging sites, in return for consideration, or
otherwise capable of pecuniary estimation.
On the other hand, petitioners invoke their "constitutional right to communicate
their opinions, views and beliefs about issues and candidates."188 They argue
that the tarpaulin was their statement of approval and appreciation of the
named public officials act of voting against the RH Law, and their criticism
toward those who voted in its favor.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:
Some types of speech may be subjected to some regulation by the State under
its pervasive police power, in order that it may not be injurious to the equal right
of others or those of the community or society. The difference in treatment is
expected because the relevant interests of one type of speech, e.g., political
speech, may vary from those of another, e.g., obscene speech.
Distinctionshave therefore been made in the treatment, analysis, and evaluation
ofthe permissible scope of restrictions on various categories of speech. We have
ruled, for example, that in our jurisdiction slander or libel, lewd and obscene
speech, as well as "fighting words" are not entitled to constitutional protection
and may be penalized.199 (Citations omitted)
We distinguish between politicaland commercial speech. Political speech refers
to speech "both intended and received as a contribution to public deliberation
about some issue,"200 "foster[ing] informed and civicminded deliberation."201 On
the other hand, commercial speech has been defined as speech that does "no
more than propose a commercial transaction."202 The expression resulting from
the content of the tarpaulin is, however, definitely political speech. In Justice
Brions dissenting opinion, he discussed that "[t]he content of the tarpaulin, as
well as the timing of its posting, makes it subject of the regulations in RA 9006
and Comelec Resolution No. 9615."203 He adds that "[w]hile indeed the RH issue,
by itself,is not an electoralmatter, the slant that the petitioners gave the issue
converted the non-election issue into a live election one hence, Team Buhay
and Team Patay and the plea to support one and oppose the other."204
While the tarpaulin may influence the success or failure of the named
candidates and political parties, this does not necessarily mean it is election
propaganda. The tarpaulin was not paid for or posted "in return for
consideration" by any candidate, political party, or party-list group.
The second paragraph of Section 1(4) of COMELEC Resolution No. 9615, or the
rules and regulations implementing Republic Act No. 9006 as an aid to interpret
the law insofar as the facts of this case requires, states:
4. The term "political advertisement" or "election propaganda" refers to any
matter broadcasted, published, printed, displayed or exhibited, in any medium,
which contain the name, image, logo, brand, insignia, color motif, initials, and
other symbol or graphic representation that is capable of being associated with
a candidate or party, and is intended to draw the attention of the public or a

segment thereof to promote or oppose, directly or indirectly, the election of the

said candidate or candidates to a public office. In broadcast media, political
advertisements may take the form of spots, appearances on TV shows and radio
programs, live or taped announcements, teasers, and other forms of advertising
messages or announcements used by commercial advertisers. Political
advertising includes matters, not falling within the scope of personal opinion,
that appear on any Internet website, including, but not limited to, social
networks, blogging sites, and micro-blogging sites, in return for consideration, or
otherwise capable of pecuniary estimation. (Emphasis supplied)
It is clear that this paragraph suggests that personal opinions are not included,
while sponsored messages are covered.
Thus, the last paragraph of Section 1(1) of COMELEC Resolution No. 9615 states:
SECTION 1. Definitions - As used in this Resolution:
1. The term "election campaign" or "partisan political activity" refers to an act
designed to promote the election or defeat of a particular candidate or
candidates to a public office, and shall include any of the following:
....
Personal opinions, views, and preferences for candidates, contained in blogs
shall not be considered acts of election campaigning or partisan politicalactivity
unless expressed by government officials in the Executive Department, the
Legislative Department, the Judiciary, the Constitutional Commissions, and
members of the Civil Service.
In any event, this case does not refer to speech in cyberspace, and its effects
and parameters should be deemed narrowly tailored only in relation to the facts
and issues in this case. It also appears that such wording in COMELEC Resolution
No. 9615 does not similarly appear in Republic Act No. 9006, the law it
implements.
We should interpret in this manner because of the value of political speech.
As early as 1918, in United States v. Bustos,205 this court recognized the need for
full discussion of public affairs. We acknowledged that free speech includes the
right to criticize the conduct of public men:
The interest of society and the maintenance of good government demand a full
discussion of public affairs. Complete liberty to comment on the conduct of
public men is a scalpel in the case of free speech. The sharp incision of its probe

relieves the abscesses of official dom. Men in public life may suffer under a
hostile and an unjust accusation; the wound can be assuaged with the balm of
a clear conscience. A public officer must not be too thin-skinned with reference
to comment upon his official acts. Only thus can the intelligence and dignity of
the individual be exalted.206
Subsequent jurisprudence developed the right to petition the government for
redress of grievances, allowing for criticism, save for some exceptions.207 In the
1951 case of Espuelas v. People,208 this court noted every citizens privilege to
criticize his or her government, provided it is "specific and therefore constructive,
reasoned or tempered, and not a contemptuous condemnation of the entire
government set-up."209
The 1927 case of People v. Titular210 involved an alleged violation of the Election
Law provision "penaliz[ing] the anonymous criticism of a candidate by means of
posters or circulars."211 This court explained that it is the posters anonymous
character that is being penalized.212 The ponente adds that he would "dislike
very muchto see this decision made the vehicle for the suppression of public
opinion."213
In 1983, Reyes v. Bagatsing214 discussed the importance of allowing individuals to
vent their views. According to this court, "[i]ts value may lie in the fact that there
may be something worth hearing from the dissenter [and] [t]hat is to ensurea
true ferment of ideas."215
Allowing citizens to air grievances and speak constructive criticisms against their
government contributes to every societys goal for development. It puts forward
matters that may be changed for the better and ideas that may be deliberated
on to attain that purpose. Necessarily, it also makes the government
accountable for acts that violate constitutionally protected rights.
In 1998, Osmea v. COMELEC found Section 11(b) of Republic Act No. 6646,
which prohibits mass media from selling print space and air time for campaign
except to the COMELEC, to be a democracy-enhancing measure.216This court
mentioned how "discussion of public issues and debate on the qualifications of
candidates in an election are essential to the proper functioning of the
government established by our Constitution."217
As pointed out by petitioners, "speech serves one of its greatest public purposes
in the context of elections when the free exercise thereof informs the people
what the issues are, and who are supporting what issues."218 At the heart of
democracy is every advocates right to make known what the people need to
know,219 while the meaningful exercise of ones right of suffrage includes the

right of every voter to know what they need to know in order to make their
choice.
Thus, in Adiong v. COMELEC,220 this court discussed the importance of debate
on public issues, and the freedom of expression especially in relation to
information that ensures the meaningful exercise of the right of suffrage:
We have adopted the principle that debate on public issues should be
uninhibited, robust, and wide open and that it may well include vehement,
caustic and sometimes unpleasantly sharp attacks on government and public
officials. Too many restrictions will deny to people the robust, uninhibited, and
wide open debate, the generating of interest essential if our elections will truly
be free, clean and honest.
We have also ruled that the preferred freedom of expression calls all the more
for the utmost respect when what may be curtailed is the dissemination of
information to make more meaningful the equally vital right of
suffrage.221(Emphasis supplied, citations omitted)
Speech with political consequences isat the core of the freedom of expression
and must be protected by this court.
Justice Brion pointed out that freedomof expression "is not the god of rights to
which all other rights and even government protection of state interest must
bow."222
The right to freedom of expression isindeed not absolute. Even some forms of
protected speech are still subjectto some restrictions. The degree of restriction
may depend on whether the regulation is content-based or contentneutral.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 contentneutral 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 contentbased as it applies only to political speech and not to other forms of speech
such as commercial speech.225 "[A]ssuming arguendo that the size restriction
sought to be applied . . . is a mere time, place, and manner regulation, its still

unconstitutional for lack of a clear and reasonable nexus with a constitutionally

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

candidate petitioners to post the tarpaulin in their private property. The size of
the tarpaulin does not affect anyone elses constitutional rights.
Content-based restraint or censorship refers to restrictions "based on the subject
matter of the utterance or speech."232 In contrast, content-neutral regulation
includes controls merely on the incidents of the speech such as time, place, or
manner of the speech.233
This court has attempted to define "content-neutral" restraints starting with the
1948 case of Primicias v. Fugoso.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
The earlier case of Calalang v. Williams237 involved the National Traffic
Commission resolution that prohibited the passing of animal-drawn vehicles
along certain roads at specific hours.238 This court similarly discussed police
power in that the assailed rules carry outthe legislative policy that "aims to
promote safe transit upon and avoid obstructions on national roads, in the
interest and convenience of the public."239
As early as 1907, United States v. Apurado240 recognized that "more or less
disorder will mark the public assembly of the people to protest against
grievances whether real or imaginary, because on such occasions feeling is
always wrought to a high pitch of excitement. . . ."241 It is with this backdrop that
the state is justified in imposing restrictions on incidental matters as time, place,
and manner of the speech.
In the landmark case of Reyes v. Bagatsing, this court summarized the steps that
permit applicants must follow which include informing the licensing authority
ahead of time as regards the date, public place, and time of the
assembly.242 This would afford the public official time to inform applicants if there
would be valid objections, provided that the clear and present danger test is
the standard used for his decision and the applicants are given the opportunity
to be heard.243 This ruling was practically codified in Batas Pambansa No. 880,
otherwise known as the Public Assembly Act of 1985.
Subsequent jurisprudence have upheld Batas Pambansa No. 880 as a valid
content-neutral regulation. In the 2006 case of Bayan v. Ermita,244 this court
discussed how Batas Pambansa No. 880 does not prohibit assemblies but simply
regulates their time, place, and manner.245 In 2010, this court found in Integrated

Bar of the Philippines v. Atienza246 that respondent Mayor Atienza committed

grave abuse of discretion when he modified the rally permit by changing the
venue from Mendiola Bridge to Plaza Miranda without first affording petitioners
the opportunity to be heard.247
We reiterate that the regulation involved at bar is content-based. The tarpaulin
content is not easily divorced from the size of its medium.
II.B.7
Justice Carpio and Justice Perlas-Bernabe suggest that the provisions imposing a
size limit for tarpaulins are content-neutral regulations as these "restrict the
mannerby which speech is relayed but not the content of what is conveyed."248
If we apply the test for content-neutral regulation, the questioned acts of
COMELEC will not pass the three requirements for evaluating such restraints on
freedom of speech.249 "When the speech restraints take the form of a contentneutral regulation, only a substantial governmental interest is required for its
validity,"250 and it is subject only to the intermediate approach.251
This intermediate approach is based on the test that we have prescribed in
several cases.252 A content-neutral government regulation is sufficiently justified:
[1] if it is within the constitutional power of the Government; [2] if it furthers an
important or substantial governmental interest; [3] if the governmental interest is
unrelated to the suppression of free expression; and [4] if the incident restriction
on alleged [freedom of speech & expression] is no greater than is essential to
the furtherance of that interest.253
On the first requisite, it is not within the constitutional powers of the COMELEC to
regulate the tarpaulin. As discussed earlier, this is protected speech by
petitioners who are non-candidates. On the second requirement, not only must
the governmental interest be important or substantial, it must also be compelling
as to justify the restrictions made.
Compelling governmental interest would include constitutionally declared
principles. We have held, for example, that "the welfare of children and the
States mandate to protect and care for them, as parens patriae,254 constitute a
substantial and compelling government interest in regulating . . . utterances in
TV broadcast."255
Respondent invokes its constitutional mandate to ensure equal opportunity for
public information campaigns among candidates in connection with the
holding of a free, orderly, honest, peaceful, and credible election.256

Justice Brion in his dissenting opinion discussed that "[s]ize limits to posters are
necessary to ensure equality of public information campaigns among
candidates, as allowing posters with different sizes gives candidates and their
supporters the incentive to post larger posters[,] [and] [t]his places candidates
with more money and/or with deep-pocket supporters at an undue advantage
against candidates with more humble financial capabilities."257
First, Adiong v. COMELEC has held that this interest is "not as important as the
right of [a private citizen] to freely express his choice and exercise his right of
free speech."258 In any case, faced with both rights to freedom of speech and
equality, a prudent course would be to "try to resolve the tension in a way that
protects the right of participation."259
Second, the pertinent election lawsrelated to private property only require that
the private property owners consent be obtained when posting election
propaganda in the property.260 This is consistent with the fundamental right
against deprivation of property without due process of law.261 The present facts
do not involve such posting of election propaganda absent consent from the
property owner. Thus, this regulation does not apply in this case.
Respondents likewise cite the Constitution262 on their authority to recommend
effective measures to minimize election spending. Specifically, Article IX-C,
Section 2(7) provides:
Sec. 2. The Commission on Elections shall exercise the following powers and
functions:
....
(7) Recommend to the Congress effective measures to minimize election
spending, including limitation of places where propaganda materials shall be
posted, and to prevent and penalize all forms of election frauds, offenses,
malpractices, and nuisance candidates. (Emphasis supplied) This does not
qualify as a compelling and substantial government interest to justify regulation
of the preferred right to freedom of expression.
The assailed issuances for the removal of the tarpaulin are based on the two
feet (2) by three feet (3) size limitation under Section 6(c) of COMELEC
Resolution No. 9615. This resolution implements the Fair Election Act that provides
for the same size limitation.263
This court held in Adiong v. COMELEC that "[c]ompared to the paramount
interest of the State in guaranteeing freedom of expression, any financial
considerations behind the regulation are of marginal significance."264 In fact,

speech with political consequences, as in this case, should be encouraged and

not curtailed. As petitioners pointed out, the size limitation will not serve the
objective of minimizing election spending considering there is no limit on the
number of tarpaulins that may be posted.265
The third requisite is likewise lacking. We look not only at the legislative intent or
motive in imposing the restriction, but more so at the effects of such restriction, if
implemented. The restriction must not be narrowly tailored to achieve the
purpose. It must be demonstrable. It must allow alternative avenues for the
actor to make speech.
In this case, the size regulation is not unrelated to the suppression of speech.
Limiting the maximum sizeof the tarpaulin would render ineffective petitioners
message and violate their right to exercise freedom of expression.
The COMELECs act of requiring the removal of the tarpaulin has the effect of
dissuading expressions with political consequences. These should be
encouraged, more so when exercised to make more meaningful the equally
important right to suffrage.
The restriction in the present case does not pass even the lower test of
intermediate scrutiny for content-neutral regulations.
The action of the COMELEC in thiscase is a strong deterrent to further speech by
the electorate. Given the stature of petitioners and their message, there are
indicators that this will cause a "chilling effect" on robust discussion during
elections.
The form of expression is just as important as the message itself. In the words of
Marshall McLuhan, "the medium is the message."266 McLuhans colleague and
mentor Harold Innis has earlier asserted that "the materials on which words were
written down have often counted for more than the words themselves."267
III
Freedom of expression and equality
III.A
The possibility of abuse
Of course, candidates and political parties do solicit the help of private
individuals for the endorsement of their electoral campaigns.

On the one extreme, this can take illicit forms such as when endorsement
materials in the form of tarpaulins, posters, or media advertisements are made
ostensibly by "friends" but in reality are really paid for by the candidate or
political party. This skirts the constitutional value that provides for equal
opportunities for all candidates.
However, as agreed by the parties during the oral arguments in this case, this is
not the situation that confronts us. In such cases, it will simply be a matter for
investigation and proof of fraud on the part of the COMELEC.
The guarantee of freedom of expression to individuals without any relationship to
any political candidate should not be held hostage by the possibility of abuse
by those seeking to be elected. It is true that there can be underhanded,
covert, or illicit dealings so as to hide the candidates real levels of expenditures.
However, labelling all expressions of private parties that tend to have an effect
on the debate in the elections as election paraphernalia would be too broad a
remedy that can stifle genuine speech like in this case. Instead, to address this
evil, better and more effective enforcement will be the least restrictive means to
the fundamental freedom.
On the other extreme, moved by the credentials and the message of a
candidate, others will spend their own resources in order to lend support for the
campaigns. This may be without agreement between the speaker and the
candidate or his or her political party. In lieu of donating funds to the campaign,
they will instead use their resources directly in a way that the candidate or
political party would have doneso. This may effectively skirt the constitutional
and statutory limits of campaign spending.
Again, this is not the situation in this case.
The message of petitioners in thiscase will certainly not be what candidates and
political parties will carry in their election posters or media ads. The message of
petitioner, taken as a whole, is an advocacy of a social issue that it deeply
believes. Through rhetorical devices, it communicates the desire of Diocese that
the positions of those who run for a political position on this social issue be
determinative of how the public will vote. It primarily advocates a stand on a
social issue; only secondarily even almost incidentally will cause the
election or non-election of a candidate.
The twin tarpaulins consist of satire of political parties. Satire is a "literary form that
employs such devices as sarcasm, irony and ridicule to deride prevailing vices or
follies,"268 and this may target any individual or group in society, private and
government alike. It seeks to effectively communicate a greater purpose, often
used for "political and social criticism"269 "because it tears down facades,

deflates stuffed shirts, and unmasks hypocrisy. . . . Nothing is more thoroughly

democratic than to have the high-and-mighty lampooned and
spoofed."270 Northrop Frye, wellknown in this literary field, claimed that satire had
two defining features: "one is wit or humor founded on fantasy or a sense of the
grotesque and absurd, the other is an object of attack."271 Thus, satire frequently
uses exaggeration, analogy, and other rhetorical devices.
The tarpaulins exaggerate. Surely, "Team Patay" does not refer to a list of dead
individuals nor could the Archbishop of the Diocese of Bacolod have intended it
to mean that the entire plan of the candidates in his list was to cause death
intentionally. The tarpaulin caricatures political parties and parodies the
intention of those in the list. Furthermore, the list of "Team Patay" is juxtaposed
with the list of "Team Buhay" that further emphasizes the theme of its author:
Reproductive health is an important marker for the church of petitioners to
endorse.
The messages in the tarpaulins are different from the usual messages of
candidates. Election paraphernalia from candidates and political parties are
more declarative and descriptive and contain no sophisticated literary allusion
to any social objective. Thus, they usually simply exhort the public to vote for a
person with a brief description of the attributes of the candidate. For example
"Vote for [x], Sipag at Tiyaga," "Vote for [y], Mr. Palengke," or "Vote for [z], Iba
kami sa Makati."
This courts construction of the guarantee of freedom of expression has always
been wary of censorship or subsequent punishment that entails evaluation of
the speakers viewpoint or the content of ones speech. This is especially true
when the expression involved has political consequences. In this case, it hopes
to affect the type of deliberation that happens during elections. A becoming
humility on the part of any human institution no matter how endowed with the
secular ability to decide legal controversies with finality entails that we are not
the keepers of all wisdom.
Humanitys lack of omniscience, even acting collectively, provides space for the
weakest dissent. Tolerance has always been a libertarian virtue whose version is
embedded in our Billof Rights. There are occasional heretics of yesterday that
have become our visionaries. Heterodoxies have always given us pause. The
unforgiving but insistent nuance that the majority surely and comfortably
disregards provides us with the checks upon reality that may soon evolve into
creative solutions to grave social problems. This is the utilitarian version. It could
also be that it is just part of human necessity to evolve through being able to
express or communicate.

However, the Constitution we interpret is not a theoretical document. It contains

other provisions which, taken together with the guarantee of free expression,
enhances each others value. Among these are the provisions that
acknowledge the idea of equality. In shaping doctrine construing these
constitutional values, this court needs to exercise extraordinary prudence and
produce narrowly tailored guidance fit to the facts as given so as not to
unwittingly cause the undesired effect of diluting freedoms as exercised in reality
and, thus, render them meaningless.
III.B.
Speech and equality:
Some considerations We first establish that there are two paradigms of free
speech that separate at the point of giving priority to equality vis--vis liberty.272
In an equality-based approach, "politically disadvantaged speech prevails over
regulation[,] but regulation promoting political equality prevails over
speech."273 This view allows the government leeway to redistribute or equalize
speaking power, such as protecting, even implicitly subsidizing, unpopular or
dissenting voices often systematically subdued within societys ideological
ladder.274 This view acknowledges that there are dominant political actors who,
through authority, power, resources, identity, or status, have capabilities that
may drown out the messages of others. This is especially true in a developing or
emerging economy that is part of the majoritarian world like ours.
The question of libertarian tolerance
This balance between equality and the ability to express so as to find ones
authentic self or to participate in the self determination of ones communities is
not new only to law. It has always been a philosophical problematique.
In his seminal work, Repressive Tolerance, philosopher and social theorist Herbert
Marcuse recognized how institutionalized inequality exists as a background
limitation, rendering freedoms exercised within such limitation as merely
"protect[ing] the already established machinery of discrimination."275 In his view,
any improvement "in the normal course of events" within an unequal society,
without subversion, only strengthens existing interests of those in power and
control.276
In other words, abstract guarantees of fundamental rights like freedom of
expression may become meaningless if not taken in a real context. This
tendency to tackle rights in the abstract compromises liberties. In his words:

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

tautology which results from a whole series of synthetic judgments. It stipulates
the ability to determine ones own life: to be able to determine what to do and
what not to do, what to suffer and what not. But the subject of this autonomy is
never the contingent, private individual as that which he actually is or happens
to be; it is rather the individual as a human being who is capable of being free
with the others. And the problem of making possible such a harmony between
every individual liberty and the other is not that of finding a compromise
between competitors, or between freedom and law, between general and
individual interest, common and private welfare in an established society, but of
creating the society in which man is no longer enslaved by institutions which
vitiate self-determination from the beginning. In other words, freedom is still to be
created even for the freest of the existing societies.277 (Emphasis in the original)
Marcuse suggests that the democratic argument with all opinions presented
to and deliberated by the people "implies a necessary condition, namely,
that the people must be capable of deliberating and choosing on the basis of
knowledge, that they must have access to authentic information, and that, on
this basis, their evaluation must be the result of autonomous thought."278 He
submits that "[d]ifferent opinions and philosophies can no longer compete
peacefully for adherence and persuasion on rational grounds: the marketplace
of ideas is organized and delimited by those who determine the national and
the individual interest."279 A slant toward left manifests from his belief that "there is
a natural right of resistance for oppressed and overpowered minorities to use
extralegal means if the legal ones have proved to be inadequate."280 Marcuse,
thus, stands for an equality that breaks away and transcends from established
hierarchies, power structures, and indoctrinations. The tolerance of libertarian
society he refers to as "repressive tolerance."
Legal scholars
The 20th century also bears witness to strong support from legal scholars for
"stringent protections of expressive liberty,"281 especially by political egalitarians.
Considerations such as "expressive, deliberative, and informational
interests,"282 costs or the price of expression, and background facts, when taken
together, produce bases for a system of stringent protections for expressive
liberties.283
Many legal scholars discuss the interest and value of expressive liberties. Justice
Brandeis proposed that "public discussion is a political duty."284 Cass Sustein
placed political speech on the upper tier of his twotier model for freedom of
expression, thus, warranting stringent protection.285 He defined political speech
as "both intended and received as a contribution to public deliberation about
some issue."286

But this is usually related also tofair access to opportunities for such
liberties.287 Fair access to opportunity is suggested to mean substantive equality
and not mere formal equalitysince "favorable conditions for realizing the
expressive interest will include some assurance of the resources required for
expression and some guarantee that efforts to express views on matters of
common concern will not be drowned out by the speech of betterendowed
citizens."288 Justice Brandeis solution is to "remedy the harms of speech with
more speech."289This view moves away from playing down the danger as merely
exaggerated, toward "tak[ing] the costs seriously and embrac[ing] expression as
the preferred strategy for addressing them."290 However, in some cases, the idea
of more speech may not be enough. Professor Laurence Tribe observed the
need for context and "the specification of substantive values before [equality]
has full meaning."291 Professor Catherine A. MacKinnon adds that "equality
continues to be viewed in a formal rather than a substantive sense."292 Thus,
more speech can only mean more speech from the few who are dominant
rather than those who are not.
Our jurisprudence
This court has tackled these issues.
Osmea v. COMELEC affirmed National Press Club v. COMELEC on the validity
of Section 11(b) ofthe Electoral Reforms Law of 1987.293 This section "prohibits
mass media from selling or giving free of charge print space or air time for
campaign or other political purposes, except to the Commission on
Elections."294 This court explained that this provision only regulates the time and
manner of advertising in order to ensure media equality among
candidates.295 This court grounded this measure on constitutional provisions
mandating political equality:296 Article IX-C, Section 4
Section 4. The Commission may, during the election period, supervise or regulate
the enjoyment or utilization of all franchises or permits for the operation of
transportation and other public utilities, media of communication or information,
all grants, special privileges, or concessions granted by the Government or any
subdivision, agency, or instrumentality thereof, including any governmentowned or controlled corporation or its subsidiary. Such supervision or regulation
shall aim to ensure equal opportunity, time, and space, and the right to reply,
including reasonable, equal rates therefor, for public information campaigns
and forums among candidates in connection with the objective of holding free,
orderly, honest, peaceful, and credible elections. (Emphasis supplied)
Article XIII, Section 1

Section 1. The Congress shall give highest priorityto the enactment of measures
that protect and enhance the right of all the people to human dignity,
reducesocial, economic, and political inequalities, and remove cultural
inequities by equitably diffusing wealth and political power for the common
good.
To this end, the State shall regulate the acquisition, ownership, use, and
disposition of property and its increments. (Emphasis supplied)
Article II, Section 26
Section 26. The State shall guarantee equal access to opportunities for public
service, and prohibit political dynasties as may be defined by law. (Emphasis
supplied)
Thus, in these cases, we have acknowledged the Constitutions guarantee for
more substantive expressive freedoms that take equality of opportunities into
consideration during elections.
The other view
However, there is also the other view. This is that considerations of equality of
opportunity or equality inthe ability of citizens as speakers should not have a
bearing in free speech doctrine. Under this view, "members of the public are
trusted to make their own individual evaluations of speech, and government is
forbidden to intervene for paternalistic or redistributive reasons . . . [thus,] ideas
are best left to a freely competitive ideological market."297 This is consistent with
the libertarian suspicion on the use of viewpoint as well as content to evaluate
the constitutional validity or invalidity of speech.
The textual basis of this view is that the constitutional provision uses negative
rather than affirmative language. It uses speech as its subject and not
speakers.298 Consequently, the Constitution protects free speech per se,
indifferent to the types, status, or associations of its speakers.299 Pursuant to this,
"government must leave speakers and listeners in the private order to their own
devices in sorting out the relative influence of speech."300
Justice Romeros dissenting opinion in Osmea v. COMELEC formulates this view
that freedom of speech includes "not only the right to express ones views, but
also other cognate rights relevant to the free communication [of] ideas, not
excluding the right to be informed on matters of public concern."301 She adds:
And since so many imponderables may affect the outcome of elections
qualifications of voters and candidates, education, means of transportation,

health, public discussion, private animosities, the weather, the threshold of a

voters resistance to pressure the utmost ventilation of opinion of men and
issues, through assembly, association and organizations, both by the candidate
and the voter, becomes a sine qua non for elections to truly reflect the will of
the electorate.302 (Emphasis supplied)
Justice Romeros dissenting opinion cited an American case, if only to
emphasize free speech primacy such that"courts, as a rule are wary to impose
greater restrictions as to any attempt to curtail speeches with political
content,"303 thus:
the concept that the government may restrict the speech of some elements in
our society in order to enhance the relative voice of the others is wholly foreign
to the First Amendment which was designed to "secure the widest possible
dissemination of information from diverse and antagonistic sources" and "to
assure unfettered interchange of ideas for the bringing about of political and
social changes desired by the people."304
This echoes Justice Oliver Wendell Holmes submission "that the market place of
ideas is still the best alternative to censorship."305
Parenthetically and just to provide the whole detail of the argument, the
majority of the US Supreme Court in the campaign expenditures case of Buckley
v. Valeo "condemned restrictions (even if content-neutral) on expressive liberty
imposed in the name of enhanc[ing] the relative voice of others and thereby
equaliz[ing] access to the political arena."306 The majority did not use the
equality-based paradigm.
One flaw of campaign expenditurelimits is that "any limit placed on the amount
which a person can speak, which takes out of his exclusive judgment the
decision of when enough is enough, deprives him of his free speech."307
Another flaw is how "[a]ny quantitative limitation on political campaigning
inherently constricts the sum of public information and runs counter to our
profound national commitment that debate on public issues should be
uninhibited, robust, and wide-open."308
In fact, "[c]onstraining those who have funds or have been able to raise funds
does not ease the plight of those without funds in the first place . . . [and] even if
ones main concern isslowing the increase in political costs, it may be more
effective torely on market forces toachieve that result than on active legal
intervention."309 According to Herbert Alexander, "[t]o oppose limitations is not
necessarily to argue that the skys the limit [because in] any campaign there are

saturation levels and a point where spending no longer pays off in votes per
dollar."310
III. C.
When private speech amounts
to election paraphernalia
The scope of the guarantee of free expression takes into consideration the
constitutional respect for human potentiality and the effect of speech. It
valorizes the ability of human beings to express and their necessity to relate. On
the other hand, a complete guarantee must also take into consideration the
effects it will have in a deliberative democracy. Skewed distribution of resources
as well as the cultural hegemony of the majority may have the effect of
drowning out the speech and the messages of those in the minority. In a sense,
social inequality does have its effect on the exercise and effect of the
guarantee of free speech. Those who have more will have better access to
media that reaches a wider audience than those who have less. Those who
espouse the more popular ideas will have better reception than the subversive
and the dissenters of society.To be really heard and understood, the
marginalized view normally undergoes its own degree of struggle.
The traditional view has been to tolerate the viewpoint of the speaker and the
content of his or her expression. This view, thus, restricts laws or regulation that
allows public officials to make judgments of the value of such viewpoint or
message content. This should still be the principal approach.
However, the requirements of the Constitution regarding equality in opportunity
must provide limits to some expression during electoral campaigns.
Thus clearly, regulation of speech in the context of electoral campaigns made
by candidates or the members of their political parties or their political parties
may be regulated as to time, place, and manner. This is the effect of our rulings
in Osmea v. COMELEC and National Press Club v. COMELEC.
Regulation of speech in the context of electoral campaigns made by persons
who are not candidates or who do not speak as members of a political party
which are, taken as a whole, principally advocacies of a social issue that the
public must consider during elections is unconstitutional. Such regulation is
inconsistent with the guarantee of according the fullest possible range of
opinions coming from the electorate including those that can catalyze candid,
uninhibited, and robust debate in the criteria for the choice of a candidate.

This does not mean that there cannot be a specie of speech by a private citizen
which will not amount toan election paraphernalia to be validly regulated by
law.
Regulation of election paraphernalia will still be constitutionally valid if it reaches
into speech of persons who are not candidates or who do not speak as
members of a political party if they are not candidates, only if what is regulated
is declarative speech that, taken as a whole, has for its principal object the
endorsement of a candidate only. The regulation (a) should be provided by
law, (b) reasonable, (c) narrowly tailored to meet the objective of enhancing
the opportunity of all candidates to be heard and considering the primacy of
the guarantee of free expression, and (d) demonstrably the least restrictive
means to achieve that object. The regulation must only be with respect to the
time, place, and manner of the rendition of the message. In no situation may
the speech be prohibited or censored onthe basis of its content. For this
purpose, it will notmatter whether the speech is made with or on private
property.
This is not the situation, however, in this case for two reasons. First, as discussed,
the principal message in the twin tarpaulins of petitioners consists of a social
advocacy.
Second, as pointed out in the concurring opinion of Justice Antonio Carpio, the
present law Section 3.3 of Republic Act No. 9006 and Section 6(c) of
COMELEC Resolution No. 9615 if applied to this case, will not pass the test of
reasonability. A fixed size for election posters or tarpaulins without any relation to
the distance from the intended average audience will be arbitrary. At certain
distances, posters measuring 2 by 3 feet could no longer be read by the general
public and, hence, would render speech meaningless. It will amount to the
abridgement of speech with political consequences.
IV
Right to property
Other than the right to freedom of expression311 and the meaningful exercise of
the right to suffrage,312 the present case also involves ones right to property.313
Respondents argue that it is the right of the state to prevent the circumvention
of regulations relating to election propaganda by applying such regulations to
private individuals.314 Certainly, any provision or regulation can be
circumvented. But we are not confronted with this possibility. Respondents
agree that the tarpaulin in question belongs to petitioners. Respondents have
also agreed, during the oral arguments, that petitioners were neither

commissioned nor paid by any candidate or political party to post the material
on their walls.
Even though the tarpaulin is readily seen by the public, the tarpaulin remains the
private property of petitioners. Their right to use their property is likewise
protected by the Constitution.
In Philippine Communications Satellite Corporation v. Alcuaz:315
Any regulation, therefore, which operates as an effective confiscation of private
property or constitutes an arbitrary or unreasonable infringement of property
rights is void, because it is repugnant to the constitutional guaranties of due
process and equal protection of the laws.316 (Citation omitted)
This court in Adiong held that a restriction that regulates where decals and
stickers should be posted is "so broad that it encompasses even the citizens
private property."317 Consequently, it violates Article III, Section 1 of the
Constitution which provides thatno person shall be deprived of his property
without due process of law. This court explained:
Property is more than the mere thing which a person owns, it includes the right
to acquire, use, and dispose of it; and the Constitution, in the 14th Amendment,
protects these essential attributes.
Property is more than the mere thing which a person owns. It is elementary that it
includes the right to acquire, use, and dispose of it. The Constitution protects
these essential attributes of property. Holden v. Hardy, 169 U.S. 366, 391, 41 L. ed.
780, 790, 18 Sup. Ct. Rep. 383. Property consists of the free use, enjoyment, and
disposal of a persons acquisitions without control or diminution save by the law
of the land. 1 Cooleys Bl. Com. 127. (Buchanan v. Warley 245 US 60 [1917])318
This court ruled that the regulation in Adiong violates private property rights:
The right to property may be subject to a greater degree of regulation but when
this right is joined by a "liberty" interest, the burden of justification on the part of
the Government must be exceptionally convincing and irrefutable. The burden
is not met in this case.
Section 11 of Rep. Act 6646 is so encompassing and invasive that it prohibits the
posting or display of election propaganda in any place, whether public or
private, except inthe common poster areas sanctioned by COMELEC. This
means that a private person cannot post his own crudely prepared personal
poster on his own front dooror on a post in his yard. While the COMELEC will
certainly never require the absurd, there are no limits to what overzealous and

partisan police officers, armed with a copy of the statute or regulation, may
do.319 Respondents ordered petitioners, who are private citizens, to remove the
tarpaulin from their own property. The absurdity of the situation is in itself an
indication of the unconstitutionality of COMELECs interpretation of its powers.
Freedom of expression can be intimately related with the right to property. There
may be no expression when there is no place where the expression may be
made. COMELECs infringement upon petitioners property rights as in the
present case also reaches out to infringement on their fundamental right to
speech.
Respondents have not demonstrated thatthe present state interest they seek to
promote justifies the intrusion into petitioners property rights. Election laws and
regulations must be reasonable. It must also acknowledge a private individuals
right to exercise property rights. Otherwise, the due process clause will be
violated.
COMELEC Resolution No. 9615 and the Fair Election Act intend to prevent the
posting of election propaganda in private property without the consent of the
owners of such private property. COMELEC has incorrectly implemented these
regulations. Consistent with our ruling in Adiong, we find that the act of
respondents in seeking to restrain petitioners from posting the tarpaulin in their
own private property is an impermissible encroachments on the right to
property.
V
Tarpaulin and its message are not religious speech
We proceed to the last issues pertaining to whether the COMELEC in issuing the
questioned notice and letter violated the right of petitioners to the free exercise
of their religion.
At the outset, the Constitution mandates the separation of church and
state.320 This takes many forms. Article III, Section 5 of the Constitution, for
instance provides:
Section 5. No law shall be made respecting an establishment of religion, or
prohibiting the free exercise thereof. The free exercise and enjoyment of
religious profession and worship, without discrimination or preference, shall
forever be allowed. Noreligious test shall be required for the exercise of civil or
political rights.

There are two aspects of this provision.321 The first is the none stablishment
clause.322 Second is the free exercise and enjoyment of religious profession and
worship.323
The second aspect is atissue in this case.
Clearly, not all acts done by those who are priests, bishops, ustadz, imams, or
any other religious make such act immune from any secular regulation.324 The
religious also have a secular existence. They exist within a society that is
regulated by law.
The Bishop of Bacolod caused the posting of the tarpaulin. But not all acts of a
bishop amounts to religious expression. This notwithstanding petitioners claim
that "the views and position of the petitioners, the Bishop and the Diocese of
Bacolod, on the RH Bill is inextricably connected to its Catholic dogma, faith,
and moral teachings. . . ."325
The difficulty that often presents itself in these cases stems from the reality that
every act can be motivated by moral, ethical, and religious considerations. In
terms of their effect on the corporeal world, these acts range from belief, to
expressions of these faiths, to religious ceremonies, and then to acts of a secular
character that may, from the point of view of others who do not share the same
faith or may not subscribe to any religion, may not have any religious bearing.
Definitely, the characterizations ofthe religious of their acts are not conclusive on
this court. Certainly, our powers of adjudication cannot be blinded by bare
claims that acts are religious in nature.
Petitioners erroneously relied on the case of Ebralinag v. The Division
Superintendent of Schools of Cebu326 in claiming that the court "emphatically"
held that the adherents ofa particular religion shall be the ones to determine
whether a particular matter shall be considered ecclesiastical in nature.327 This
court in Ebralinagexempted Jehovahs Witnesses from participating in the flag
ceremony "out of respect for their religious beliefs, [no matter how] "bizarre"
those beliefsmay seem to others."328 This court found a balance between the
assertion of a religious practice and the compelling necessities of a secular
command. It was an early attempt at accommodation of religious beliefs.
In Estrada v. Escritor,329 this court adopted a policy of benevolent neutrality:
With religion looked upon with benevolence and not hostility, benevolent
neutrality allows accommodation of religion under certain circumstances.
Accommodations are government policies that take religion specifically
intoaccount not to promote the governments favored form of religion, but to

allow individuals and groups to exercise their religion without hindrance. Their
purpose or effect therefore is to remove a burden on, or facilitate the exercise
of, a persons or institutions religion. As Justice Brennan explained, the
"government [may] take religion into account . . . to exempt, when possible,
from generally applicable governmental regulation individuals whose religious
beliefs and practices would otherwise thereby be infringed, or to create without
state involvement an atmosphere in which voluntary religious exercise may
flourish."330
This court also discussed the Lemon test in that case, such that a regulation is
constitutional when: (1) it has a secular legislative purpose; (2) it neither
advances nor inhibits religion; and (3) it does not foster an excessive
entanglement with religion.331
As aptly argued by COMELEC, however, the tarpaulin, on its face, "does not
convey any religious doctrine of the Catholic church."332 That the position of the
Catholic church appears to coincide with the message of the tarpaulin
regarding 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 religious speech solely on such basis. The
enumeration of candidates on the face of the tarpaulin precludes any doubtas
to its nature as speech with political consequences and not religious speech.
Furthermore, the definition of an "ecclesiastical affair" in Austria v. National Labor
Relations Commission333 cited by petitioners finds no application in the present
case. The posting of the tarpaulin does not fall within the category of matters
that are beyond the jurisdiction of civil courts as enumerated in the Austriacase
such as "proceedings for excommunication, ordinations of religious ministers,
administration of sacraments and other activities withattached religious
significance."334
A FINAL NOTE
We maintain sympathies for the COMELEC in attempting to do what it thought
was its duty in this case. However, it was misdirected.

COMELECs general role includes a mandate to ensure equal opportunities and

reduce spending among candidates and their registered political parties. It is
not to regulate or limit the speech of the electorate as it strives to participate
inthe electoral exercise.
The tarpaulin in question may be viewed as producing a caricature of those
who are running for public office.Their message may be construed
generalizations of very complex individuals and party-list organizations.
They are classified into black and white: as belonging to "Team Patay" or "Team
Buhay."
But this caricature, though not agreeable to some, is still protected speech.
That petitioners chose to categorize them as purveyors of death or of life on the
basis of a single issue and a complex piece of legislation at that can easily
be interpreted as anattempt to stereo type the candidates and party-list
organizations. Not all may agree to the way their thoughts were expressed, as in
fact there are other Catholic dioceses that chose not to follow the example of
petitioners.
Some may have thought that there should be more room to consider being
more broad-minded and non-judgmental. Some may have expected that the
authors would give more space to practice forgiveness and humility.
But, the Bill of Rights enumerated in our Constitution is an enumeration of our
fundamental liberties. It is not a detailed code that prescribes good conduct. It
provides space for all to be guided by their conscience, not only in the act that
they do to others but also in judgment of the acts of others.
Freedom for the thought we can disagree with can be wielded not only by
those in the minority. This can often be expressed by dominant institutions, even
religious ones. That they made their point dramatically and in a large way does
not necessarily mean that their statements are true, or that they have basis, or
that they have been expressed in good taste.
Embedded in the tarpaulin, however, are opinions expressed by petitioners. It is
a specie of expression protected by our fundamental law. It is an expression
designed to invite attention, cause debate, and hopefully, persuade. It may be
motivated by the interpretation of petitioners of their ecclesiastical duty, but
their parishioners actions will have very real secular consequences. Certainly,
provocative messages do matter for the elections.

What is involved in this case is the most sacred of speech forms: expression by
the electorate that tends to rouse the public to debate contemporary issues.
This is not speechby candidates or political parties to entice votes. It is a portion
of the electorate telling candidates the conditions for their election. It is the
substantive content of the right to suffrage.
This. is a form of speech hopeful of a quality of democracy that we should all
deserve. It is protected as a fundamental and primordial right by our
Constitution. The expression in the medium chosen by petitioners deserves our
protection.
WHEREFORE, the instant petition is GRANTED. The temporary restraining order
previously issued is hereby made permanent. The act of the COMELEC in issuing
the assailed notice dated February 22, 2013 and letter dated February 27, 2013
is declared unconstitutional.
SO ORDERED.
MARVIC M.V.F. LEONEN
Associate Justice

EN BANC
G.R. No. 205357, September 02, 2014
GMA NETWORK, INC., Petitioner, v. COMMISSION ON ELECTIONS, RESPONDENT.
SENATOR ALAN PETER COMPAERO S. CAYETANO, Petitioner-Intervenor.
G.R. NO. 205374
ABC DEVELOPMENT CORPORATION, Petitioner, v. COMMISSION ON
ELECTIONS, Respondent.
G.R. NO. 205592
MANILA BROADCASTING COMPANY, INC. AND NEWSOUNDS BROADCASTING
NETWORK, INC.,Petitioner, v. COMMISSION ON ELECTIONS, Respondent.
G.R. NO. 205852
KAPISANAN NG MGA BRODKASTER NG PILIPINAS (KBP) AND ABS-CBN
CORPORATION,Petitioners, v. COMMISSION ON ELECTIONS, Respondent.
G.R. NO. 206360
RADIO MINDANAO NETWORK, INC., Petitioner, v. COMMISSION ON
ELECTIONS, Respondent.
DECISION
PERALTA, J.:
The clash of rights demands a delicate balancing of interests approach which
is a fundamental postulate of constitutional law.1
Once again the Court is asked to draw a carefully drawn balance in the
incessant conflicts between rights and regulations, liberties and limitations, and
competing demands of the different segments of society. Here, we are

confronted with the need to strike a workable and viable equilibrium between a
constitutional mandate to maintain free, orderly, honest, peaceful and credible
elections, together with the aim of ensuring equal opportunity, time and space,
and the right to reply, including reasonable, equal rates therefor, for public
information campaigns and forums among candidates,2on one hand, and the
imperatives of a republican and democratic state,3 together with its
guaranteed rights of suffrage,4 freedom of speech and of the press,5 and the
peoples right to information,6 on the other.
In a nutshell, the present petitions may be seen as in search of the answer to the
question how does the Charter of a republican and democratic State achieve
a viable and acceptable balance between liberty, without which, government
becomes an unbearable tyrant, and authority, without which, society becomes
an intolerable and dangerous arrangement?
Assailed in these petitions are certain regulations promulgated by the
Commission on Elections(COMELEC) relative to the conduct of the 2013 national
and local elections dealing with political advertisements. Specifically, the
petitions question the constitutionality of the limitations placed on aggregate
airtime allowed to candidates and political parties, as well as the requirements
incident thereto, such as the need to report the same, and the sanctions
imposed for violations.
The five (5) petitions before the Court put in issue the alleged unconstitutionality
of Section 9 (a) of COMELEC Resolution No. 9615 (Resolution) limiting the
broadcast and radio advertisements of candidates and political parties for
national election positions to an aggregate total of one hundred twenty (120)
minutes and one hundred eighty (180) minutes, respectively. They contend that
such restrictive regulation on allowable broadcast time violates freedom of the
press, impairs the peoples right to suffrage as well as their right to information
relative to the exercise of their right to choose who to elect during the
forthcoming elections.
The heart of the controversy revolves upon the proper interpretation of the
limitation on the number of minutes that candidates may use for television and
radio advertisements, as provided in Section 6 of Republic Act No. 9006 (R.A.
No. 9006), otherwise known as the Fair Election Act. Pertinent portions of said
provision state, thus:ChanRoblesVirtualawlibrary
Sec. 6. Equal Access to Media Time and Space. - All registered parties and bona
fide candidates shall have equal access to media time and space. The
following guidelines may be amplified on by the COMELEC:
x x x x

6.2 (a) Each bona fide candidate or registered political party for a nationally
elective office shall be entitled to not more than one hundred twenty (120)
minutes of television advertisement and one hundred eighty (180) minutes of
radio advertisement whether by purchase or donation.
b. Each bona fide candidate or registered political party for a locally elective
office shall be entitled to not more than sixty (60) minutes of television
advertisement and ninety (90) minutes of radio advertisement whether by
purchase or donation.
For this purpose, the COMELEC shall require any broadcast station or entity to
submit to the COMELEC a copy of its broadcast logs and certificates of
performance for the review and verification of the frequency, date, time and
duration of advertisements broadcast for any candidate or political party.
During the previous elections of May 14, 2007 and May 10, 2010, COMELEC
issued Resolutions implementing and interpreting Section 6 of R.A. No. 9006,
regarding airtime limitations, to mean that a candidate is entitled to the
aforestated number of minutes per station.7 For the May 2013 elections,
however, respondent COMELEC promulgated Resolution No. 9615 dated
January 15, 2013, changing the interpretation of said candidates' and political
parties' airtime limitation for political campaigns or advertisements from a per
station basis, to a total aggregate basis.
Petitioners ABS-CBN Corporation (ABS-CBN), ABC Development Corporation
(ABC), GMA Network, Incorporated (GMA), Manila Broadcasting Company, Inc.
(MBC), Newsounds Broadcasting Network, Inc. (NBN), and Radio Mindanao
Network, Inc. (RMN) are owners/operators of radio and television networks in the
Philippines, while petitioner Kapisanan ng mga Brodkaster ng Pilipinas (KBP) is the
national organization of broadcasting companies in the Philippines representing
operators of radio and television stations and said stations themselves. They sent
their respective letters to the COMELEC questioning the provisions of the
aforementioned Resolution, thus, the COMELEC held public
hearings. Thereafter, on February 1, 2013, respondent issued Resolution No. 9631
amending provisions of Resolution No. 9615. Nevertheless, petitioners still found
the provisions objectionable and oppressive, hence, the present petitions.
All of the petitioners assail the following provisions of the
Resolution:ChanRoblesVirtualawlibrary
a) Section 7 (d),8 which provides for a penalty of suspension or revocation of an
offender's franchise or permit, imposes criminal liability against broadcasting
entities and their officers in the event they sell airtime in excess of the size,

duration, or frequency authorized in the new rules;

b) Section 9 (a),9 which provides for an aggregate total airtime
instead of the previous per station airtime for political campaigns or
advertisements, and also required prior COMELEC approval for candidates'
television and radio guestings and appearances; and
c) Section 14,10 which provides for a candidate's right to reply.
In addition, petitioner ABC also questions Section 1 (4)11 thereof, which defines
the term political advertisement or election propaganda, while petitioner
GMA further assails Section 35,12 which states that any violation of said Rules shall
constitute an election offense.
On March 15, 2013, Senator Alan Peter S. Cayetano (Petitioner-Intervenor) filed
a Motion for Leave to Intervene and to File and Admit the Petition-inIntervention, which was granted by the Court per its Resolution dated March 19,
2013. Petitioner-Intervenor also assails Section 9 (a) of the Resolution changing
the interpretation of candidates' and political parties' airtime limitation for
political campaigns or advertisements from a per station basis, to a total
aggregate basis.
Petitioners allege that Resolutions No. 9615 and 9631, amending the earlier
Resolution, are unconstitutional and issued without jurisdiction or with grave
abuse of discretion amounting to lack or excess of jurisdiction, for the reasons set
forth hereunder.
Petitioners posit that Section 9 (a) of the assailed Resolution provides for a very
restrictive aggregate airtime limit and a vague meaning for a proper
computation of aggregate total airtime, and violates the equal protection
guarantee, thereby defeating the intent and purpose of R.A. No. 9006.
Petitioners contend that Section 9 (a), which imposes a notice requirement, is
vague and infringes on the constitutionally protected freedom of speech, of the
press and of expression, and on the right of people to be informed on matters of
public concern
Also, Section 9 (a) is a cruel and oppressive regulation as it imposes an
unreasonable and almost impossible burden on broadcast mass media of
monitoring a candidate's or political party's aggregate airtime, otherwise, it may
incur administrative and criminal liability.
Further, petitioners claim that Section 7 (d) is null and void for unlawfully
criminalizing acts not prohibited and penalized as criminal offenses by R.A. No.

9006.
Section 14 of Resolution No. 9615, providing for a candidate's or political party's
right to reply, is likewise assailed to be unconstitutional for being an improper
exercise of the COMELEC's regulatory powers; for constituting prior restraint and
infringing petitioners' freedom of expression, speech and the press; and for
being violative of the equal protection guarantee.
In addition to the foregoing, petitioner GMA further argues that the Resolution
was promulgated without public consultations, in violation of petitioners' right to
due process. Petitioner ABC also avers that the Resolution's definition of the
terms political advertisement and election propaganda suffers from
overbreadth, thereby producing a chilling effect, constituting prior restraint.
On the other hand, respondent posits in its Comment and Opposition13 dated
March 8, 2013, that the petition should be denied based on the following
reasons:ChanRoblesVirtualawlibrary
Respondent contends that the remedies of certiorari and prohibition are not
available to petitioners, because the writ of certiorari is only available against
the COMELEC's adjudicatory or quasi-judicial powers, while the writ of
prohibition only lies against the exercise of judicial, quasi-judicial or ministerial
functions. Said writs do not lie against the COMELECs administrative or rulemaking powers.
Respondent likewise alleges that petitioners do not have locus standi, as the
constitutional rights and freedoms they enumerate are not personal to them,
rather, they belong to candidates, political parties and the Filipino electorate in
general, as the limitations are imposed on candidates, not on media outlets. It
argues that petitioners' alleged risk of exposure to criminal liability is insufficient to
give them legal standing as said fear of injury is highly speculative and
contingent on a future act.
Respondent then parries petitioners' attack on the alleged infirmities of the
Resolution's provisions.
Respondent maintains that the per candidate rule or total aggregate airtime
limit is in accordance with R.A. No. 9006 as this would truly give life to the
constitutional objective to equalize access to media during elections. It sees this
as a more effective way of levelling the playing field between
candidates/political parties with enormous resources and those without
much. Moreover, the Comelecs issuance of the assailed Resolution is pursuant
to Section 4, Article IX (C) of the Constitution which vests on the Comelec the

power to supervise and regulate, during election periods, transportation and

other public utilities, as well as mass media, to wit:ChanRoblesVirtualawlibrary
Sec. 4. The Commission may, during the election period, supervise or regulate
the enjoyment or utilization of all franchises or permits for the operation of
transportation and other public utilities, media of communication or information,
all grants, special privileges, or concessions granted by the Government or any
subdivision, agency, or instrumentality thereof, including any governmentowned or controlled corporation or its subsidiary. Such supervision or regulation
shall aim to ensure equal opportunity, and equal rates therefor, for public
information campaigns and forums among candidates in connection with the
objective of holding free, orderly, honest, peaceful, and credible elections.
This being the case, then the Resolutions cannot be said to have been issued
with grave abuse of discretion amounting to lack of jurisdiction.
Next, respondent claims that the provisions are not vague because the assailed
Resolutions have given clear and adequate mechanisms to protect broadcast
stations from potential liability arising from a candidate's or party's violation of
airtime limits by putting in the proviso that the station may require buyer to
warrant under oath that such purchase [of airtime] is not in excess of size,
duration or frequency authorized by law or these rules. Furthermore, words
should be understood in the sense that they have in common usage, and
should be given their ordinary meaning. Thus, in the provision for the right to
reply, charges against candidates or parties must be understood in the
ordinary sense, referring to accusations or criticisms.
Respondent also sees no prior restraint in the provisions requiring notice to the
Comelec for appearances or guestings of candidates in bona fide news
broadcasts. It points out that the fact that notice may be given 24 hours after
first broadcast only proves that the mechanism is for monitoring purposes only,
not for censorship. Further, respondent argues, that for there to be prior restraint,
official governmental restrictions on the press or other forms of expression must
be done in advance of actual publication or dissemination. Moreover,
petitioners are only required to inform the Comelec of candidates'/parties'
guestings, but there is no regulation as to the content of the news or the
expressions in news interviews or news documentaries. Respondent then
emphasized that the Supreme Court has held that freedom of speech and the
press may be limited in light of the duty of the Comelec to ensure equal access
to opportunities for public service.
With regard to the right to reply provision, respondent also does not consider it
as restrictive of the airing of bona fide news broadcasts. More importantly, it

stressed, the right to reply is enshrined in the Constitution, and the assailed
Resolutions provide that said right can only be had after going through
administrative due process. The provision was also merely lifted from Section 10
of R.A. No. 9006, hence, petitioner ABC is actually attacking the constitutionality
of R.A. No. 9006, which cannot be done through a collateral attack.
Next, respondent counters that there is no merit to ABC's claim that the
Resolutions' definition of political advertisement or election propaganda
suffers from overbreadth, as the extent or scope of what falls under said terms is
clearly stated in Section 1 (4) of Resolution No. 9615.
It is also respondent's view that the nationwide aggregate total airtime does not
violate the equal protection clause, because it does not make any substantial
distinctions between national and regional and/or local broadcast stations, and
even without the aggregate total airtime rule, candidates and parties are likely
to be more inclined to advertise in national broadcast stations.
Respondent likewise sees no merit in petitioners' claim that the Resolutions
amount to taking of private property without just compensation. Respondent
emphasizes that radio and television broadcasting companies do not own the
airwaves and frequencies through which they transmit broadcast signals; they
are merely given the temporary privilege to use the same. Since they are
merely enjoying a privilege, the same may be reasonably burdened with some
form of public service, in this case, to provide candidates with the opportunity to
reply to charges aired against them.
Lastly, respondent contends that the public consultation requirement does not
apply to constitutional commissions such as the Comelec, pursuant to Section 1,
Chapter I, Book VII of the Administrative Code of 1987. Indeed, Section 9,
Chapter II, Book VII of said Code provides, thus:ChanRoblesVirtualawlibrary
Section 9. Public Participation. - (1) If not otherwise required by law, an agency
shall, as far as practicable, publish or circulate notices of proposed rules and
afford interested parties the opportunity to submit their views prior to the
adoption of any rule.
However, Section 1, Chapter 1, Book VII of said Code clearly
provides:ChanRoblesVirtualawlibrary
Section 1. Scope. - This Book shall be applicable to all agencies as defined in
the next succeeding section, except the Congress, the Judiciary, the
Constitutional Commissions, military establishments in all matters relating
exclusively to Armed Forces personnel, the Board of Pardons and Parole, and
state universities and colleges.

Nevertheless, even if public participation is not required, respondent still

conducted a meeting with representatives of the KBP and various media outfits
on December 26, 2012, almost a month before the issuance of Resolution No.
9615.
On April 2, 2013, petitioner GMA filed its Reply,14 where it advanced the
following counter-arguments:ChanRoblesVirtualawlibrary
According to GMA, a petition for certiorari is the proper remedy to question the
herein assailed Resolutions, which should be considered as a decision, order or
ruling of the Commission as mentioned in Section 1, Rule 37 of the COMELEC
Rules of Procedure which provides:ChanRoblesVirtualawlibrary
Section 1. Petition for Certiorari; and Time to File. - Unless otherwise provided by
law, or by any specific provisions in these Rules, any decision, order or ruling of
the Commission may be brought to the Supreme Court on certiorari by the
aggrieved party within thirty (30) days from its promulgation.
GMA further stressed that this case involves national interest, and the urgency of
the matter justifies its resort to the remedy of a petition for certiorari.
Therefore, GMA disagrees with the COMELEC's position that the proper remedy
is a petition for declaratory relief because such action only asks the court to
make a proper interpretation of the rights of parties under a statute or
regulation. Such a petition does not nullify the assailed statute or regulation, or
grant injunctive relief, which petitioners are praying for in their petition. Thus,
GMA maintains that a petition for certiorari is the proper remedy.
GMA further denies that it is making a collateral attack on the Fair Election Act,
as it is not attacking said law. GMA points out that it has stated in its petition
that the law in fact allows the sale or donation of airtime for political
advertisements and does not impose criminal liability against radio and
television stations. What it is assailing is the COMELEC's erroneous interpretation
of the law's provisions by declaring such sale and/or donation of airtime
unlawful, which is contrary to the purpose of the Fair Election Act.
GMA then claims that it has legal standing to bring the present suit
because:ChanRoblesVirtualawlibrary
x x x First, it has personally suffered a threatened injury in the form of risk of
criminal liability because of the alleged unconstitutional and unlawful conduct
of respondent COMELEC in expanding what was provided for in R.A. No.
9006. Second, the injury is traceable to the challenged action of respondent

COMELEC, that is, the issuance of the assailed Resolutions. Third, the injury is
likely to be redressed by the remedy sought in petitioner GMA's Petition, among
others, for the Honorable Court to nullify the challenged pertinent provisions of
the assailed Resolutions.15cralawred
On substantive issues, GMA first argues that the questioned Resolutions are
contrary to the objective and purpose of the Fair Election Act. It points out that
the Fair Election Act even repealed the political ad ban found in the earlier law,
R.A. No. 6646. The Fair Election Act also speaks of equal opportunity and
equal access, but said law never mentioned equalizing the economic station
of the rich and the poor, as a declared policy. Furthermore, in its opinion, the
supposed correlation between candidates' expenditures for TV ads and actually
winning the elections, is a mere illusion, as there are other various factors
responsible for a candidate's winning the election. GMA then cites portions of
the deliberations of the Bicameral Conference Committee on the bills that led
to the enactment of the Fair Election Act, and alleges that this shows the
legislative intent that airtime allocation should be on a per station basis. Thus,
GMA claims it was arbitrary and a grave abuse of discretion for the COMELEC to
issue the present Resolutions imposing airtime limitations on an aggregate
total basis.
It is likewise insisted by GMA that the assailed Resolutions impose an
unconstitutional burden on them, because their failure to strictly monitor the
duration of total airtime that each candidate has purchased even from other
stations would expose their officials to criminal liability and risk losing the station's
good reputation and goodwill, as well as its franchise. It argues that the
wordings of the Resolutions belie the COMELEC's claim that petitioners would
only incur liability if they knowingly sell airtime beyond the limits imposed by
the Resolutions, because the element of knowledge is clearly absent from the
provisions thereof. This makes the provisions have the nature of malum
prohibitum.
Next, GMA also says that the application of the aggregate airtime limit
constitutes prior restraint and is unconstitutional, opining that [t]he reviewing
power of respondent COMELEC and its sole judgment of a news event as a
political advertisement are so pervasive under the assailed Resolutions, and
provoke the distastes or chilling effect of prior restraint16 as even a legitimate
exercise of a constitutional right might expose it to legal sanction. Thus, the
governmental interest of leveling the playing field between rich and poor
candidates cannot justify the restriction on the freedoms of expression, speech
and of the press.
On the issue of lack of prior public participation, GMA cites Section 82 of the

Omnibus Election Code, pertinent portions of which provide,

thus:ChanRoblesVirtualawlibrary
Section 82. Lawful election propaganda. - Lawful election propaganda shall
include:
xxxx
All other forms of election propaganda not prohibited by this Code as the
Commission may authorize after due notice to all interested parties and hearing
where all the interested parties were given an equal opportunity to be heard:
Provided, That the Commission's authorization shall be published in two
newspapers of general circulation throughout the nation for at least twice within
one week after the authorization has been granted.
There having been no prior public consultation held, GMA contends that the
COMELEC is guilty of depriving petitioners of its right to due process of law.
GMA then concludes that it is also entitled to a temporary restraining order,
because the implementation of the Resolutions in question will cause grave and
irreparable damage to it by disrupting and emasculating its mandate to provide
television and radio services to the public, and by exposing it to the risk of
incurring criminal and administrative liability by requiring it to perform the
impossible task of surveillance and monitoring, or the broadcasts of other radio
and television stations.
Thereafter, on April 4, 2013, the COMELEC, through the Office of the Solicitor
General (OSG), filed a Supplemental Comment and Opposition17 where it
further expounded on the legislative intent behind the Fair Election Act, also
quoting portions of the deliberations of the Bicameral Conference Committee,
allegedly adopting the Senate Bill version setting the computation of airtime
limits on a per candidate, not per station, basis. Thus, as enacted into law, the
wordings of Section 6 of the Fair Election Act shows that the airtime limit is
imposed on a per candidate basis, rather than on a per station
basis. Furthermore, the COMELEC states that petitioner-intervenor Senator
Cayetano is wrong in arguing that there should be empirical data to support the
need to change the computation of airtime limits from a per station basis to a
per candidate basis, because nothing in law obligates the COMELEC to support
its Resolutions with empirical data, as said airtime limit was a policy decision
dictated by the legislature itself, which had the necessary empirical and other
data upon which to base said policy decision.
The COMELEC then points out that Section 2 (7),18 Article IX (C) of the
Constitution empowers it to recommend to Congress effective measures to

minimize election spending and in furtherance of such constitutional power, the

COMELEC issued the questioned Resolutions, in faithful implementation of the
legislative intent and objectives of the Fair Election Act.
The COMELEC also dismisses Senator Cayetano's fears that unauthorized or
inadvertent inclusion of his name, initial, image, brand, logo, insignia and/or
symbol in tandem advertisements will be charged against his airtime limits by
pointing out that what will be counted against a candidate's airtime and
expenditures are those advertisements that have been paid for or donated to
them to which the candidate has given consent.
With regard to the attack that the total aggregate airtime limit constitutes prior
restraint or undue abridgement of the freedom of speech and expression, the
COMELEC counters that the Resolutions enjoy constitutional and congressional
imprimatur. It is the Constitution itself that imposes the restriction on the
freedoms of speech and expression, during election period, to promote an
important and significant governmental interest, which is to equalize, as far as
practicable, the situation of rich and poor candidates by preventing the former
from enjoying the undue advantage offered by huge campaign 'war
chests.'19cralawred
Lastly, the COMELEC also emphasizes that there is no impairment of the people's
right to information on matters of public concern, because in this case, the
COMELEC is not withholding access to any public record.
On April 16, 2013, this Court issued a Temporary Restraining Order20 (TRO) in view
of the urgency involved and to prevent irreparable injury that may be caused to
the petitioners if respondent COMELEC is not enjoined from implementing
Resolution No. 9615.
On April 19, 2013 respondent filed an Urgent Motion to Lift Temporary Restraining
Order and Motion for Early Resolution of the Consolidated Petitions.21cralawred
On May 8, 2013, petitioners ABS-CBN and the KBP filed its
Opposition/Comment22 to the said Motion. Not long after, ABC followed suit
and filed its own Opposition to the Motion23 filed by the respondent.
In the interim, respondent filed a Second Supplemental Comment and
Opposition24 dated April 8, 2013.
In the Second Supplemental Comment and Opposition, respondent delved on
points which were not previously discussed in its earlier Comment and
Supplemental Comment, particularly those raised in the petition filed by
petitioner ABS-CBN and KBP.

Respondent maintains that certiorari in not the proper remedy to question the
Constitutionality of the assailed Resolutions and that petitioners ABS-CBN and
KBP have no locus standi to file the present petition.
Respondent posits that contrary to the contention of petitioners, the legislative
history of R.A. No. 9006 conclusively shows that congress intended the airtime
limits to be computed on a per candidate and not on a per station basis. In
addition, the legal duty of monitoring lies with the COMELEC. Broadcast stations
are merely required to submit certain documents to aid the COMELEC in
ensuring that candidates are not sold airtime in excess of the allowed limits.
Also, as discussed in the earlier Comment, the prior notice requirement is a
mechanism designed to inform the COMELEC of the appearances or guesting
of candidates in bona fide news broadcasts. It is for monitoring purposes only,
not censorship. It does not control the subject matter of news broadcasts in
anyway. Neither does it prevent media outlets from covering candidates in
news interviews, news events, and news documentaries, nor prevent the
candidates from appearing thereon.
As for the right to reply, respondent insists that the right to reply provision cannot
be considered a prior restraint on the freedoms of expression, speech and the
press, as it does not in any way restrict the airing of bona fide new
broadcasts. Media entities are free to report any news event, even if it should
turn out to be unfavourable to a candidate or party. The assailed Resolutions
merely give the candidate or party the right to reply to such charges published
or aired against them in news broadcasts.
Moreover, respondent contends that the imposition of the penalty of suspension
and revocation of franchise or permit for the sale or donation of airtime beyond
the allowable limits is sanctioned by the Omnibus Election Code.
Meanwhile, RMN filed its Petition on April 8, 2013. On June 4, 2013, the Court
issued a Resolution25consolidating the case with the rest of the petitions and
requiring respondent to comment thereon.
On October 10, 2013, respondent filed its Third Supplemental Comment and
Opposition.26 Therein, respondent stated that the petition filed by RMN repeats
the issues that were raised in the previous petitions. Respondent, likewise,
reiterated its arguments that certiorari in not the proper remedy to question the
assailed resolutions and that RMN has no locus standi to file the present
petition. Respondent maintains that the arguments raised by RMN, like those
raised by the other petitioners are without merit and that RMN is not entitled to
the injunctive relief sought.

The petition is partly meritorious.

At the outset, although the subject of the present petitions are Resolutions
promulgated by the COMELEC relative to the conduct of the 2013 national and
local elections, nevertheless the issues raised by the petitioners have not been
rendered moot and academic by the conclusion of the 2013
elections. Considering that the matters elevated to the Court for resolution are
susceptible to repetition in the conduct of future electoral exercises, these issues
will be resolved in the present action.
PROCEDURAL ASPECTS
Matters of procedure and technicalities normally take a backseat when issues of
substantial and transcendental importance are presented before the Court. So
the Court does again in this particular case.
Proper Remedy
Respondent claims that certiorari and prohibition are not the proper remedies
that petitioners have taken to question the assailed Resolutions of the Comelec.
Technically, respondent may have a point. However, considering the very
important and pivotal issues raised, and the limited time, such technicality
should not deter the Court from having to make the final and definitive
pronouncement that everyone else depends for enlightenment and guidance.
[T]his Court has in the past seen fit to step in and resolve petitions despite their
being the subject of an improper remedy, in view of the public importance of
the issues raised therein.27cralawred
It has been in the past, we do so again.
Locus Standi
Every time a constitutional issue is brought before the Court, the issue of locus
standi is raised to question the personality of the parties invoking the Courts
jurisdiction. The Court has routinely made reference to a liberalized stance
when it comes to petitions raising issues of transcendental importance to the
country. Invariably, after some discussions, the Court would eventually grant
standing.28cralawred
In this particular case, respondent also questions the standing of the petitioners.
We rule for the petitioners. For petitioner-intervenor Senator Cayetano, he
undoubtedly has standing since he is a candidate whose ability to reach out to
the electorate is impacted by the assailed Resolutions.

For the broadcast companies, they similarly have the standing in view of the
direct injury they may suffer relative to their ability to carry out their tasks of
disseminating information because of the burdens imposed on them.
Nevertheless, even in regard to the broadcast companies invoking the injury
that may be caused to their customers or the public those who buy
advertisements and the people who rely on their broadcasts what the Court
said in White Light Corporation v. City of Manila29 may dispose of the question. In
that case, there was an issue as to whether owners of establishments offering
wash-up rates may have the requisite standing on behalf of their patrons
equal protection claims relative to an ordinance of the City of Manila which
prohibited short-time or wash-up accommodation in motels and similar
establishments. The Court essentially condensed the issue in this manner: [T]he
crux of the matter is whether or not these establishments have the requisite
standing to plead for protection of their patrons equal protection rights.30 The
Court then went on to hold:ChanRoblesVirtualawlibrary
Standing or locus standi is the ability of a party to demonstrate to the court
sufficient connection to and harm from the law or action challenged to support
that partys participation in the case. More importantly, the doctrine of standing
is built on the principle of separation of powers, sparing as it does unnecessary
interference or invalidation by the judicial branch of the actions rendered by its
co-equal branches of government.
The requirement of standing is a core component of the judicial system derived
directly from the Constitution. The constitutional component of standing
doctrine incorporates concepts which concededly are not susceptible of
precise definition. In this jurisdiction, the extancy of a direct and personal
interest presents the most obvious cause, as well as the standard test for a
petitioners standing. In a similar vein, the United States Supreme Court reviewed
and elaborated on the meaning of the three constitutional standing
requirements of injury, causation, and redressability in Allen v. Wright.
Nonetheless, the general rules on standing admit of several exceptions such as
the overbreadth doctrine, taxpayer suits, third party standing and, especially in
the Philippines, the doctrine of transcendental importance.
For this particular set of facts, the concept of third party standing as an
exception and the overbreadth doctrine are appropriate. x x x
xxxx
American jurisprudence is replete with examples where parties-in-interest were
allowed standing to advocate or invoke the fundamental due process or equal

protection claims of other persons or classes of persons injured by state action. x

xx
xxxx
Assuming arguendo that petitioners do not have a relationship with their patrons
for the former to assert the rights of the latter, the overbreadth doctrine comes
into play. In overbreadth analysis, challengers to government action are in
effect permitted to raise the rights of third parties. Generally applied to statutes
infringing on the freedom of speech, the overbreadth doctrine applies when a
statute needlessly restrains even constitutionally guaranteed rights. In this case,
the petitioners claim that the Ordinance makes a sweeping intrusion into the
right to liberty of their clients. We can see that based on the allegations in the
petition, the Ordinance suffers from overbreadth.
We thus recognize that the petitioners have a right to assert the constitutional
rights of their clients to patronize their establishments for a wash-rate time
frame.31
If in regard to commercial undertakings, the owners may have the right to assert
a constitutional right of their clients, with more reason should establishments
which publish and broadcast have the standing to assert the constitutional
freedom of speech of candidates and of the right to information of the public,
not to speak of their own freedom of the press. So, we uphold the standing of
petitioners on that basis.
SUBSTANTIVE ASPECTS
Aggregate Time Limits
COMELEC Resolution No. 9615 introduced a radical departure from the previous
COMELEC resolutions relative to the airtime limitations on political
advertisements. This essentially consists in computing the airtime on
an aggregate basis involving all the media of broadcast communications
compared to the past where it was done on a per station basis. Thus, it becomes
immediately obvious that there was effected a drastic reduction of the
allowable minutes within which candidates and political parties would be able
to campaign through the air. The question is accordingly whether this is within
the power of the Comelec to do or not. The Court holds that it is not within the
power of the Comelec to do so.
a. Past elections and airtime limits

The authority of the COMELEC to impose airtime limits directly flows from the Fair
Election Act (R.A. No. 9006 [2001])32 one hundred (120) minutes of television
advertisement and one-hundred eighty (180) minutes for radio advertisement.
For the 2004 elections, the respondent COMELEC promulgated Resolution No.
652033 implementing the airtime limits by applying said limitation on a per
stationbasis.34 Such manner of determining airtime limits was likewise adopted
for the 2007 elections, through Resolution No. 7767.35 In the 2010 elections, under
Resolution No. 8758,36 the same was again adopted. But for the 2013 elections,
the COMELEC, through Resolution No. 9615, as amended by Resolution No.
9631, chose to aggregate the total broadcast time among the different
broadcast media, thus:ChanRoblesVirtualawlibrary
Section 9. Requirements and/or Limitations on the Use of Election Propaganda
through Mass Media. All parties and bona fide candidates shall have equal
access to media time and space for their election propaganda during the
campaign period subject to the following requirements and/or
limitations:ChanRoblesVirtualawlibrary
a. Broadcast Election Propaganda
The duration of an air time that a candidate, or party may use for their
broadcast advertisements or election propaganda shall be, as follows:
For
Candidates/Registered
Political parties for a
National Elective
Position

Not more than an aggregate total of one hundred

(120) minutes of television advertising, whether
appearing on national, regional, or local, free or
cable television, and one hundred eighty (180)
minutes of radio advertising, whether airing on
national, regional, or local radio, whether by
purchase or donation

Not more than an aggregate total of sixty (60)

For
Candidates/Registered
minutes of television advertising, whether appearing
Political parties for a Local on national, regional, or local, free or cable television,
Elective Position
and ninety (90) minutes of radio advertising, whether
airing on national, regional, or local radio, whether by
purchase or donation.
In cases where two or more candidates or parties whose names, initials, images,
brands, logos, insignias, color motifs, symbols, or forms of graphical
representations are displayed, exhibited, used, or mentioned together in the
broadcast election propaganda or advertisements, the length of time during
which they appear or are being mentioned or promoted will be counted
against the airtime limits allotted for the said candidates or parties and the cost

of the said advertisement will likewise be considered as their expenditures,

regardless of whoever paid for the advertisements or to whom the said
advertisements were donated.
x x x x37cralawred
Corollarily, petitioner-intervenor, Senator Cayetano, alleges:
6.15. The change in the implementation of Section 6 of R.A. 9006 was
undertaken by respondent Comelec without consultation with the candidates
for the 2013 elections, affected parties such as media organizations, as well as
the general public. Worse, said change was put into effect without explaining
the basis therefor and without showing any data in support of such change.
Respondent Comelec merely maintained that such action is meant to level the
playing field between the moneyed candidates and those who dont have
enough resources, without particularizing the empirical data upon which such
a sweeping statement was based. This was evident in the public hearing held on
31 January 2013 where petitioner GMA, thru counsel, explained that no
empirical data on the excesses or abuses of broadcast media were brought to
the attention of the public by respondent Comelec, or even stated in the
Comelec Resolution No. 9615. Thus
xxxx
Chairman Brillantes
So if we can regulate and amplify, we may amplify meaning we can expand if
we want to. But the authority of the Commission is if we do not want to amplify
and we think that the 120 or 180 is okay we cannot be compelled to amplify.
We think that 120 or 180 is okay, is enough.
Atty. Lucila
But with due respect Your Honor, I think the basis of the resolution is found in the
law and the law has been enterpreted (sic) before in 2010 to be 120 per station,
so why the change, your Honor?
Chairman Brillantes
No, the change is not there, the right to amplify is with the Commission on
Elections. Nobody can encroach in our right to amplify. Now, if in 2010 the
Commission felt that per station or per network is the rule then that is the
prerogative of the Commission then they could amplify it to expand it. If the
current Commission feels that 120 is enough for the particular medium like TV
and 180 for radio, that is our prerogative. How can you encroach and what is
unconstitutional about it?

Atty. Lucila
We are not questioning the authority of the Honorable Commission to regulate
Your Honor, we are just raising our concern on the manner of regulation
because as it is right now, there is a changing mode or sentiments of the
Commission and the public has the right to know, was there rampant
overspending on political ads in 2010, we were not informed Your Honor. Was
there abuse of the media in 2010, we were not informed Your Honor. So we
would like to know what is the basis of the sudden change in this limitation, Your
Honor. . And law must have a consistent interpretation that [is]our position, Your
Honor.
Chairman Brillantes
But my initial interpretation, this is personal to this representation counsel, is that if
the Constitution allows us to regulate and then it gives us the prerogative to
amplify then the prerogative to amplify you should leave this to the discretion of
the Commission. Which means if previous Commissions felt that expanding it
should be part of our authority that was a valid exercise if we reduce it to what is
provided for by law which is 120-180 per medium, TV, radio, that is also within
the law and that is still within our prerogative as provided for by the Constitution.
If you say we have to expose the candidates to the public then I think the
reaction should come, the negative reaction should come from the candidates
not from the media, unless you have some interest to protect directly. Is there
any interest on the part of the media to expand it?
Atty. Lucila
Well, our interest Your Honor is to participate in this election Your Honor and we
have been constantly (sic) as the resolution says and even in the part involved
because you will be getting some affirmative action time coming from the
media itself and Comelec time coming from the media itself. So we could like to
be both involved in the whole process of the exercise of the freedom of suffrage
Your Honor.
Chairman Brillantes
Yes, but the very essence of the Constitutional provision as well as the provision
of 9006 is actually to level the playing field. That should be the paramount
consideration. If we allow everybody to make use of all their time and all radio
time and TV time then there will be practically unlimited use of the mass
media....
Atty. Lucila
Was there in 2010 Your Honor, was there any data to support that there was an
unlimited and abuse of a (sic) political ads in the mass media that became the
basis of this change in interpretation Your Honor? We would like to know about it
Your Honor.

Chairman Brillantes
What do you think there was no abuse in 2010?
Atty. Lucila
As far as the network is concern, there was none Your Honor.
Chairman Brillantes
There was none......
Atty. Lucila
Im sorry, Your Honor...
Chairman Brillantes
Yes, there was no abuse, okay, but there was some advantage given to those
who took... who had the more moneyed candidates took advantage of it.
Atty. Lucila
But that is the fact in life, Your Honor there are poor candidates, there are rich
candidates. No amount of law or regulation can even level the playing filed
(sic) as far as the economic station in life of the candidates are concern (sic) our
Honor.38
Given the foregoing observations about what happened during the hearing,
Petitioner-Intervenor went on to allege that:ChanRoblesVirtualawlibrary
6.16. Without any empirical data upon which to base the regulatory measures in
Section 9 (a), respondent Comelec arbitrarily changed the rule from per station
basis to aggregate airtime basis. Indeed, no credence should be given to the
cliched explanation of respondent Comelec (i.e. leveling the playing field) in its
published statements which in itself is a mere reiteration of the rationale for the
enactment of the political ad ban of Republic Act No. 6646, and which has
likewise been foisted when said political ad ban was lifted by R.A. 9006.39
From the foregoing, it does appear that the Comelec did not have any other
basis for coming up with a new manner of determining allowable time limits
except its own idea as to what should be the maximum number of minutes
based on its exercise of discretion as to how to level the playing field. The same
could be encapsulized in the remark of the Comelec Chairman that if the
Constitution allows us to regulate and then it gives us the prerogative to amplify
then the prerogative to amplify you should leave this to the discretion of the
Commission.40cralawred
The Court could not agree with what appears as a nonchalant exercise of
discretion, as expounded anon.
COMELEC is duty bound to come up

with reasonable basis for changing the

interpretation and implementation of
the airtime limits
There is no question that the COMELEC is the office constitutionally and
statutorily authorized to enforce election laws but it cannot exercise its powers
without limitations or reasonable basis. It could not simply adopt measures or
regulations just because it feels that it is the right thing to do, in so far as it might
be concerned. It does have discretion, but such discretion is something that
must be exercised within the bounds and intent of the law. The COMELEC is not
free to simply change the rules especially if it has consistently interpreted a legal
provision in a particular manner in the past. If ever it has to change the rules, the
same must be properly explained with sufficient basis.
Based on the transcripts of the hearing conducted by the COMELEC after it had
already promulgated the Resolution, the respondent did not fully explain or
justify the change in computing the airtime allowed candidates and political
parties, except to make reference to the need to level the playing field. If the
per station basis was deemed enough to comply with that objective in the
past, why should it now be suddenly inadequate? And, the short answer to that
from the respondent, in a manner which smacks of overbearing exercise of
discretion, is that it is within the discretion of the COMELEC. As quoted in the
transcript, the right to amplify is with the COMELEC. Nobody can encroach in
our right to amplify. Now, if in 2010 the Commission felt that per station or per
network is the rule then that is the prerogative of the Commission then they
could amplify it to expand it. If the current Commission feels that 120 is enough
for the particular medium like TV and 180 for radio, that is our prerogative. How
can you encroach and what is unconstitutional about it?41cralawred
There is something basically wrong with that manner of explaining changes in
administrative rules. For one, it does not really provide a good basis for change.
For another, those affected by such rules must be given a better explanation
why the previous rules are no longer good enough. As the Court has said in one
case:ChanRoblesVirtualawlibrary
While stability in the law, particularly in the business field, is desirable, there is no
demand that the NTC slavishly follow precedent. However, we think it essential,
for the sake of clarity and intellectual honesty, that if an administrative agency
decides inconsistently with previous action, that it explain thoroughly why a
different result is warranted, or if need be, why the previous standards should no
longer apply or should be overturned. Such explanation is warranted in order to
sufficiently establish a decision as having rational basis. Any inconsistent decision
lacking thorough, ratiocination in support may be struck down as being
arbitrary. And any decision with absolutely nothing to support it is a nullity.42

What the COMELEC came up with does not measure up to that level of
requirement and accountability which elevates administrative rules to the level
of respectability and acceptability. Those governed by administrative
regulations are entitled to a reasonable and rational basis for any changes in
those rules by which they are supposed to live by, especially if there is a radical
departure from the previous ones.
The COMELEC went beyond the
authority granted it by the law in
adopting aggregate basis in the
determination of allowable airtime
The law, which is the basis of the regulation subject of these petitions, pertinently
provides:ChanRoblesVirtualawlibrary
6.2. (a) Each bona fide candidate or registered political party for a nationally
elective office shall be entitled to not more than one hundred twenty (120)
minutes of television advertisement and one hundred eighty (180) minutes of
radio advertisement whether by purchase or donation.
(b) Each bona fide candidate or registered political party for a locally elective
office shall be entitled to not more than sixty (60) minutes of television
advertisement and ninety (90) minutes of radio advertisement whether by
purchase or donation; x x x
The law, on its face, does not justify a conclusion that the maximum allowable
airtime should be based on the totality of possible broadcast in all television or
radio stations. Senator Cayetano has called our attention to the legislative intent
relative to the airtime allowed that it should be on a per station
basis.43cralawred
This is further buttressed by the fact that the Fair Election Act (R.A. No. 9006)
actually repealed the previous provision, Section 11(b) of Republic Act No.
6646,44 which prohibited direct political advertisements the so-called political
ad ban. If under the previous law, no candidate was allowed to directly buy or
procure on his own his broadcast or print campaign advertisements, and that
he must get it through the COMELEC Time or COMELEC Space, R.A. No. 9006
relieved him or her from that restriction and allowed him or her to broadcast
time or print space subject to the limitations set out in the law. Congress, in
enacting R.A. No. 9006, felt that the previous law was not an effective and
efficient way of giving voice to the people. Noting the debilitating effects of the
previous law on the right of suffrage and Philippine democracy, Congress
decided to repeal such rule by enacting the Fair Election Act.

In regard to the enactment of the new law, taken in the context of the
restrictive nature of the previous law, the sponsorship speech of Senator Raul
Roco is enlightening:ChanRoblesVirtualawlibrary
The bill seeks to repeal Section 85 of the Omnibus Election Code and Sections 10
and 11 of RA 6646. In view of the importance of their appeal in connection with
the thrusts of the bill, I hereby quote these sections in
full:ChanRoblesVirtualawlibrary
SEC. 85. Prohibited forms of election propaganda. It shall be
unlawful:ChanRoblesVirtualawlibrary
(a) To print, publish, post or distribute any poster, pamphlet, circular, handbill,
or printed matter urging voters to vote for or against any candidate unless they
hear the names and addresses of the printed and payor as required in Section
84 hereof;
(b) To erect, put up, make use of, attach, float or display any billboard,
tinplate-poster, balloons and the like, of whatever size, shape, form or kind,
advertising for or against any candidate or political party;
(c) To purchase, manufacture, request, distribute or accept electoral
propaganda gadgets, such as pens, lighters, fans of whatever nature, flashlights,
athletic goods or materials, wallets, shirts, hats, bandannas, matches, cigarettes
and the like, except that campaign supporters accompanying a candidate
shall be allowed to wear hats and/or shirts or T-shirts advertising a candidate;
(d) To show or display publicly any advertisement or propaganda for or
against any candidate by means of cinematography, audio-visual units or other
screen projections except telecasts which may be allowed as hereinafter
provided; and
(e) For any radio broadcasting or television station to sell or give free of charge
airtime for campaign and other political purposes except as authorized in this
Code under the rules and regulations promulgated by the Commission pursuant
thereto;
Any prohibited election propaganda gadget or advertisement shall be
stopped, confiscated or torn down by the representative of the Commission
upon specific authority of the Commission.
SEC. 10. Common Poster Areas. The Commission shall designate common
poster areas in strategic public places such as markets, barangay centers and

the like wherein candidates can post, display or exhibit election propaganda to
announce or further their candidacy.
Whenever feasible common billboards may be installed by the Commission
and/or non-partisan private or civic organizations which the Commission may
authorize whenever available, after due notice and hearing, in strategic areas
where it may readily be seen or read, with the heaviest pedestrian and/or
vehicular traffic in the city or municipality.
The space in such common poster areas or billboards shall be allocated free of
charge, if feasible, equitably and impartially among the candidates in the
province, city or municipality.
SEC. 11. Prohibited Forms of Election Propaganda. In addition to the forms of
election propaganda prohibited under Section 85 of Batas Pambansa Blg. 881, it
shall be unlawful: (a) to draw, paint, inscribe, write, post, display or publicly
exhibit any election propaganda in any place, whether private or public,
except in common poster areas and/or billboards provided in the immediately
preceding section, at the candidates own residence, or at the campaign
headquarters of the candidate or political party: Provided, That such posters or
election propaganda shall in no case exceed two (2) feet by three (3) feet in
area; Provided, further, That at the site of and on the occasion of a public
meeting or rally, streamers, not more than two (2) feet and not exceeding three
(3) feet by eight (8) each may be displayed five (5) days before the date of the
meeting or rally, and shall be removed within twenty-four (24) hours after said
meeting or rally; and
(b) For any newspapers, radio broadcasting or television station, or other mass
media, or any person making use of the mass media to sell or give for free of
charge print space or air time for campaign or other political purposes except
to the Commission as provided under Section 90 and 92 of Batas Pambansa Blg.
881. Any mass media columnist, commentator, announcer or personality who is
a candidate for any elective public office shall take a leave of absence from his
work as such during the campaign.
The repeal of the provision on the Common Poster Area implements the strong
recommendations of the Commission on Elections during the hearings. It also
seeks to apply the doctrine enunciated by the Supreme Court in the case of Blo
Umpar Adiong vs. Commission on Elections, 207 SCRA 712, 31 March 1992. Here
a unanimous Supreme Court ruled: The COMELECs prohibition on the posting of
decals and stickers on mobile places whether public or private except [in]
designated areas provided for by the COMELEC itself is null and void on
constitutional grounds.

For the foregoing reasons, we commend to our colleagues the early passage of
Senate Bill No. 1742. In so doing, we move one step towards further ensuring
free, orderly, honest, peaceful and credible elections as mandated by the
Constitution.45
Given the foregoing background, it is therefore ineluctable to conclude that
Congress intended to provide a more expansive and liberal means by which the
candidates, political parties, citizens and other stake holders in the periodic
electoral exercise may be given a chance to fully explain and expound on their
candidacies and platforms of governance, and for the electorate to be given a
chance to know better the personalities behind the candidates. In this regard,
the media is also given a very important part in that undertaking of providing
the means by which the political exercise becomes an interactive process. All of
these would be undermined and frustrated with the kind of regulation that the
respondent came up with.
The respondent gave its own understanding of the import of the legislative
deliberations on the adoption of R.A. No. 9006 as
follows:ChanRoblesVirtualawlibrary
The legislative history of R.A. 9006 clearly shows that Congress intended to
impose the per candidate or political party aggregate total airtime limits on
political advertisements and election propaganda. This is evidenced by the
dropping of the per day per station language embodied in both versions of
the House of Representatives and Senate bills in favour of the each candidate
and not more than limitations now found in Section 6 of R.A. 9006.
The pertinent portions of House Bill No. 9000 and Senate Bill No. 1742 read as
follows:ChanRoblesVirtualawlibrary
House Bill No. 9000:
SEC. 4. Section 86 of the same Batas is hereby amended to read as follows:
Sec. 86. Regulation of Election Propaganda Through Mass Media.
xxx

xxx

xxx

A) The total airtime available to the candidate and political party, whether by
purchase or by donation, shall be limited to five (5) minutes per day in each
television, cable television and radio stations during the applicable campaign
period.
Senate Bill No. 1742:

SEC. 5. Equal Access to Media Space and Time. All registered parties and
bona fide candidates shall have equal access to media space and time. The
following guidelines may be amplified by the COMELEC.
xxx

xxx

xxx

2. The total airtime available for each registered party and bona fide
candidate whether by purchase or donation shall not exceed a total of one (1)
minute per day per television or radio station. (Emphasis supplied.)
As Section 6 of R.A. 9006 is presently worded, it can be clearly seen that the
legislature intended the aggregate airtime limits to be computed on per
candidate or party basis. Otherwise, if the legislature intended the computation
to be on per station basis, it could have left the original per day per station
formulation.46
The Court does not agree. It cannot bring itself to read the changes in the bill as
disclosing an intent that the COMELEC wants this Court to put on the final
language of the law. If anything, the change in language meant that the
computation must not be based on a per day basis for each television or
radio station. The same could not therefore lend itself to an understanding that
the total allowable time is to be done on an aggregate basis for all television or
radio stations.
Clearly, the respondent in this instance went beyond its legal mandate when it
provided for rules beyond what was contemplated by the law it is supposed to
implement. As we held in Lokin, Jr. v. Commission on Elections:47cralawred
The COMELEC, despite its role as the implementing arm of the Government in
the enforcement and administration of all laws and regulations relative to the
conduct of an election, has neither the authority nor the license to expand,
extend, or add anything to the law it seeks to implement thereby. The IRRs the
COMELEC issued for that purpose should always be in accord with the law to be
implemented, and should not override, supplant, or modify the law. It is basic
that the IRRs should remain consistent with the law they intend to carry out.
Indeed, administrative IRRs adopted by a particular department of the
Government under legislative authority must be in harmony with the provisions
of the law, and should be for the sole purpose of carrying the laws general
provisions into effect. The law itself cannot be expanded by such IRRs, because
an administrative agency cannot amend an act of Congress.48
In the case of Lokin, Jr., the COMELECs explanation that the Resolution then in

question did not add anything but merely reworded and rephrased the
statutory provision did not persuade the Court. With more reason here since the
COMELEC not only reworded or rephrased the statutory provision it practically
replaced it with its own idea of what the law should be, a matter that certainly is
not within its authority. As the Court said in Villegas v. Subido:
One last word. Nothing is better settled in the law than that a public official
exercises power, not rights. The government itself is merely an agency through
which the will of the state is expressed and enforced. Its officers therefore are
likewise agents entrusted with the responsibility of discharging its functions. As
such there is no presumption that they are empowered to act. There must be a
delegation of such authority, either express or implied. In the absence of a valid
grant, they are devoid of power. What they do suffers from a fatal infirmity. That
principle cannot be sufficiently stressed. In the appropriate language of Chief
Justice Hughes: It must be conceded that departmental zeal may not be
permitted to outrun the authority conferred by statute. Neither the high dignity
of the office nor the righteousness of the motive then is an acceptable
substitute. Otherwise the rule of law becomes a myth. Such an eventuality, we
must take all pains to avoid.50
So it was then. So does the rule still remains the same.
Section 9 (a) of COMELEC Resolution
No. 9615 on airtime limits also goes
against the constitutional guaranty of
freedom of expression, of speech
and of the press
The guaranty of freedom to speak is useless without the ability to communicate
and disseminate what is said. And where there is a need to reach a large
audience, the need to access the means and media for such dissemination
becomes critical. This is where the press and broadcast media come along. At
the same time, the right to speak and to reach out would not be meaningful if it
is just a token ability to be heard by a few. It must be coupled with substantially
reasonable means by which the communicator and the audience could
effectively interact. Section 9 (a) of COMELEC Resolution No. 9615, with its
adoption of the aggregate-based airtime limits unreasonably restricts the
guaranteed freedom of speech and of the press.
Political speech is one of the most important expressions protected by the
Fundamental Law. [F]reedom of speech, of expression, and of the press are at
the core of civil liberties and have to be protected at all costs for the sake of
democracy.51 Accordingly, the same must remain unfettered unless otherwise
justified by a compelling state interest.

In regard to limitations on political speech relative to other state interests, an

American case observed:ChanRoblesVirtualawlibrary
A restriction on the amount of money a person or group can spend on political
communication during a campaign necessarily reduces the quantity of
expression by restricting the number of issues discussed, the depth of their
exploration, and the size of the audience reached. This is because virtually every
means of communicating ideas in todays mass society requires the expenditure
of money. The distribution of the humblest handbill or leaflet entails printing,
paper, and circulation costs. Speeches and rallies generally necessitate hiring a
hall and publicizing the event. The electorates increasing dependence on
television, radio, and other mass media for news and information has made
these expensive modes of communication indispensable instruments of
effective political speech.
The expenditure limitations contained in the Act represent substantial, rather
than merely theoretical restraints on the quantity and diversity of political
speech. The $1,000 ceiling on spending relative to a clearly identified
candidate, 18 U.S.C. 608(e)(1) (1970 ed., Supp. IV), would appear to exclude
all citizens and groups except candidates, political parties, and the institutional
press from any significant use of the most effective modes of communication.
Although the Acts limitations on expenditures by campaign organizations and
political parties provide substantially greater room for discussion and debate,
they would have required restrictions in the scope of a number of past
congressional and Presidential campaigns and would operate to constrain
campaigning by candidates who raise sums in excess of the spending ceiling.52
Section 9 (a) of COMELEC Resolution No. 9615 comes up with what is
challenged as being an unreasonable basis for determining the allowable air
time that candidates and political parties may avail of. Petitioner GMA came
up with its analysis of the practical effects of such a
regulation:ChanRoblesVirtualawlibrary
5.8. Given the reduction of a candidates airtime minutes in the New Rules,
petitioner GMA estimates that a national candidate will only have 120 minutes
to utilize for his political advertisements in television during the whole campaign
period of 88 days, or will only have 81.81 seconds per day TV exposure
allotment. If he chooses to place his political advertisements in the 3 major TV
networks in equal allocation, he will only have 27.27 seconds of airtime per
network per day. This barely translates to 1 advertisement spot on a 30-second
spot basis in television.
5.9. With a 20-hour programming per day and considering the limits of a

stations coverage, it will be difficult for 1 advertising spot to make a sensible

and feasible communication to the public, or in political propaganda, to make
known [a candidates] qualifications and stand on public issues.
5.10 If a candidate loads all of his 81.81 seconds per day in one network, this will
translate to barely three 30-second advertising spots in television on a daily basis
using the same assumptions above.
5.11 Based on the data from the 2012 Nielsen TV audience measurement in
Mega Manila, the commercial advertisements in television are viewed by
only 39.2% of the average total day household audience if such advertisements
are placed with petitioner GMA, the leading television network nationwide and
in Mega Manila. In effect, under the restrictive aggregate airtime limits in the
New Rules, the three 30-second political advertisements of a candidate in
petitioner GMA will only be communicated to barely 40% of the viewing
audience, not even the voting population, but only in Mega Manila, which is
defined by AGB Nielsen Philippines to cover Metro Manila and certain urban
areas in the provinces of Bulacan, Cavite, Laguna, Rizal, Batangas and
Pampanga. Consequently, given the voting population distribution and the
drastically reduced supply of airtime as a result of the New Rules aggregate
airtime limits, a national candidate will be forced to use all of his airtime for
political advertisements in television only in urban areas such as Mega Manila as
a political campaign tool to achieve maximum exposure.
5.12 To be sure, the people outside of Mega Manila or other urban areas
deserve to be informed of the candidates in the national elections, and the said
candidates also enjoy the right to be voted upon by these informed populace.53
The Court agrees. The assailed rule on aggregate-based airtime limits is
unreasonable and arbitrary as it unduly restricts and constrains the ability of
candidates and political parties to reach out and communicate with the
people. Here, the adverted reason for imposing the aggregate-based airtime
limits leveling the playing field does not constitute a compelling state interest
which would justify such a substantial restriction on the freedom of candidates
and political parties to communicate their ideas, philosophies, platforms and
programs of government. And, this is specially so in the absence of a clear-cut
basis for the imposition of such a prohibitive measure. In this particular instance,
what the COMELEC has done is analogous to letting a bird fly after one has
clipped its wings.
It is also particularly unreasonable and whimsical to adopt the aggregatebased time limits on broadcast time when we consider that the Philippines is not
only composed of so many islands. There are also a lot of languages and

dialects spoken among the citizens across the country. Accordingly, for a
national candidate to really reach out to as many of the electorates as possible,
then it might also be necessary that he conveys his message through his
advertisements in languages and dialects that the people may more readily
understand and relate to. To add all of these airtimes in different dialects would
greatly hamper the ability of such candidate to express himself a form of
suppression of his political speech.
Respondent itself states that [t]elevision is arguably the most cost-effective
medium of dissemination. Even a slight increase in television exposure can
significantly boost a candidate's popularity, name recall and electability.54 If
that be so, then drastically curtailing the ability of a candidate to effectively
reach out to the electorate would unjustifiably curtail his freedom to speak as a
means of connecting with the people.
Finally on this matter, it is pertinent to quote what Justice Black wrote in his
concurring opinion in the landmark Pentagon Papers case: In the First
Amendment, the Founding Fathers gave the free press the protection it must
have to fulfill its essential role in our democracy. The press was to serve the
governed, not the governors. The Government's power to censor the press was
abolished so that the press would remain forever free to censure the
Government. The press was protected so that it could bare the secrets of
government and inform the people. Only a free and unrestrained press can
effectively expose deception in government.55cralawred
In the ultimate analysis, when the press is silenced, or otherwise muffled in its
undertaking of acting as a sounding board, the people ultimately would be the
victims.
Section 9 (a) of Resolution 9615 is
violative of the peoples
right to suffrage
Fundamental to the idea of a democratic and republican state is the right of
the people to determine their own destiny through the choice of leaders they
may have in government. Thus, the primordial importance of suffrage and the
concomitant right of the people to be adequately informed for the intelligent
exercise of such birthright. It was said that:ChanRoblesVirtualawlibrary
x x x As long as popular government is an end to be achieved and
safeguarded, suffrage, whatever may be the modality and form devised, must
continue to be the means by which the great reservoir of power must be
emptied into the receptacular agencies wrought by the people through their
Constitution in the interest of good government and the common weal.

Republicanism, in so far as it implies the adoption of a representative type of

government, necessarily points to the enfranchised citizen as a particle of
popular sovereignty and as the ultimate source of the established authority. He
has a voice in his Government and whenever possible it is the solemn duty of the
judiciary, when called upon to act in justifiable cases, to give it efficacy and not
to stifle or frustrate it. This, fundamentally, is the reason for the rule that ballots
should be read and appreciated, if not with utmost, with reasonable, liberality. x
x x56
It has also been said that [c]ompetition in ideas and governmental policies is at
the core of our electoral process and of the First Amendment
freedoms.57 Candidates and political parties need adequate breathing space
including the means to disseminate their ideas. This could not be reasonably
addressed by the very restrictive manner by which the respondent implemented
the time limits in regard to political advertisements in the broadcast media.
Resolution No. 9615 needs
prior hearing before adoption
The COMELEC promulgated Resolution No. 9615 on January 15, 2013 then came
up with a public hearing on January 31, 2013 to explain what it had done,
particularly on the aggregate-based air time limits. This circumstance also
renders the new regulation, particularly on the adoption of theaggregatebased airtime limit, questionable. It must not be overlooked that the new
Resolution introduced a radical change in the manner in which the rules on
airtime for political advertisements are to be reckoned. As such there is a need
for adequate and effective means by which they may be adopted,
disseminated and implemented. In this regard, it is not enough that they be
published or explained after they have been adopted.
While it is true that the COMELEC is an independent office and not a mere
administrative agency under the Executive Department, rules which apply to
the latter must also be deemed to similarly apply to the former, not as a matter
of administrative convenience but as a dictate of due process. And this assumes
greater significance considering the important and pivotal role that the
COMELEC plays in the life of the nation. Thus, whatever might have been said
in Commissioner of Internal Revenue v. Court of Appeals,58 should also
apply mutatis mutandis to the COMELEC when it comes to promulgating rules
and regulations which adversely affect, or impose a heavy and substantial
burden on, the citizenry in a matter that implicates the very nature of
government we have adopted:ChanRoblesVirtualawlibrary
It should be understandable that when an administrative rule is merely
interpretative in nature, its applicability needs nothing further than its bare

issuance for it gives no real consequence more than what the law itself has
already prescribed. When, upon the other hand, the administrative rule goes
beyond merely providing for the means that can facilitate or render least
cumbersome the implementation of the law butsubstantially adds to or
increases the burden of those governed, it behooves the agency to accord at
least to those directly affected a chance to be heard, and thereafter to be duly
informed, before that new issuance is given the force and effect of law.
A reading of RMC 3793, particularly considering the circumstances under
which it has been issued, convinces us that the circular cannot be viewed
simply as a corrective measure (revoking in the process the previous holdings of
past Commissioners) or merely as construing Section 142(c)(1) of the NIRC, as
amended, but has, in fact and most importantly, been made in order to place
Hope Luxury, Premium More and Champion within the classification
of locally manufactured cigarettes bearing foreign brands and to thereby have
them covered by RA 7654. Specifically, the new law would have its amendatory
provisions applied to locally manufactured cigarettes which at the time of its
effectivity were not so classified as bearing foreign brands. x x x In so doing, the
BIR not simply interpreted the law; verily, it legislated under its quasi-legislative
authority. The due observance of the requirements of notice, of hearing, and of
publication should not have been then ignored.59
For failing to conduct prior hearing before coming up with Resolution No. 9615,
said Resolution, specifically in regard to the new rule on aggregate airtime is
declared defective and ineffectual.
Resolution No. 9615 does not impose
an unreasonable burden on the
broadcast industry
It is a basic postulate of due process, specifically in relation to its substantive
component, that any governmental rule or regulation must be reasonable in its
operations and its impositions. Any restrictions, as well as sanctions, must be
reasonably related to the purpose or objective of the government in a manner
that would not work unnecessary and unjustifiable burdens on the citizenry.
Petitioner GMA assails certain requirements imposed on broadcast stations as
unreasonable. It explained:ChanRoblesVirtualawlibrary
5.40 Petitioner GMA currently operates and monitors 21 FM and AM radio
stations nationwide and 8 originating television stations (including its main
transmitter in Quezon City) which are authorized to dechain national programs
for airing and insertion of local content and advertisements.
5.41 In light of the New Rules wherein a candidates airtime minutes are applied
on an aggregate basis and considering that said Rules declare it unlawful in

Section 7(d) thereof for a radio, television station or other mass media to sell or
give for free airtime to a candidate in excess of that allowed by law or by said
New Rules:ChanRoblesVirtualawlibrary
Section 7. Prohibited Forms of Election Propaganda During the campaign
period, it is unlawful:ChanRoblesVirtualawlibrary
xxx xxx xxx
(d) for any newspaper or publication, radio, television or cable television station,
or other mass media, or any person making use of the mass media to sell or to
give free of charge print space or air time for campaign or election
propaganda purposes to any candidate or party in excess of the size, duration
or frequency authorized by law or these rules;
xxx xxx xxx
(Emphasis supplied)
petitioner GMA submits that compliance with the New Rules in order to avoid
administrative or criminal liability would be unfair, cruel and oppressive.
x x x x.
5.43 In the present situation wherein airtime minutes shall be shared by all
television and radio stations, broadcast mass media organizations would surely
encounter insurmountable difficulties in monitoring the airtime minutes spent by
the numerous candidates for various elective positions, in real time.
5.44 An inquiry with the National Telecommunications Commission (NTC) bears
out that there are 372 television stations and 398 AM and 800 FM radio stations
nationwide as of June 2012. In addition, there are 1,113 cable TV providers
authorized by the NTC to operate within the country as of the said date.
5.45 Given such numbers of broadcast entities and the necessity to monitor
political advertisements pursuant to the New Rules, petitioner GMA estimates
that monitoring television broadcasts of all authorized television station would
involve 7,440 manhours per day. To aggravate matters, since a candidate may
also spend his/her broadcasting minutes on cable TV,
additional 281,040 manhours per day would have to be spent in monitoring the
various channels carried by cable TV throughout the Philippines. As far as radio
broadcasts (both AM and FM stations) are concerned, around 23,960manhours
per day would have to be devoted by petitioner GMA to obtain an accurate
and timely determination of a political candidates remaining airtime

minutes. During the campaign period, petitioner GMA would have to spend an
estimated 27,494,720manhours in monitoring the election campaign
commercials of the different candidates in the country.
5.46 In order to carry-out the obligations imposed by the New Rules, petitioner
GMA further estimates that it would need to engage and train 39,055 additional
persons on an eight-hour shift, and assign them all over the country to perform
the required monitoring of radio, television and cable TV broadcasts. In
addition, it would likewise need to allot radio, television, recording equipment
and computers, as well as telecommunications equipment, for this surveillance
and monitoring exercise, thus imputing additional costs to the
company. Attached herewith are the computations explaining how the aforesaid figures were derived and the conservative assumptions made by petitioner
GMA in reaching said figures, as Annex H.
5.47 Needless to say, such time, manpower requirements, expense and effort
would have to be replicated by each and every radio station to ensure that
they have properly monitored around 33 national and more than 40,000 local
candidates airtime minutes and thus, prevent any risk of administrative and
criminal liability.60
The Court cannot agree with the contentions of GMA. The apprehensions of the
petitioner appear more to be the result of a misappreciation of the real import
of the regulation rather than a real and present threat to its broadcast activities.
The Court is more in agreement with the respondent when it explained
that:ChanRoblesVirtualawlibrary
The legal duty of monitoring lies with the Comelec. Broadcast stations are
merely required to submit certain documents to aid the Comelec in ensuring
that candidates are not sold airtime in excess of the allowed limits. These
documents include: (1) certified true copies of broadcast logs, certificates of
performance, and certificates of acceptance, or other analogous record on
specified dates (Section 9[d]3, Resolution No. 9615, in relation to Section 6.2, R.A.
9006; and (2) copies of all contract for advertising, promoting or opposing any
political party or the candidacy of any person for public office within five (5)
days after its signing (Section 6.3, R.A. 9006).
*****
[T]here is absolutely no duty on the broadcast stations to do monitoring, much
less monitoring in real time. GMA grossly exaggerates when it claims that the
non-existent duty would require them to hire and train an astounding additional
39,055 personnel working on eight-hour shifts all over the country.61

The Court holds, accordingly, that, contrary to petitioners contention, the

Reporting Requirement for the Comelecs monitoring is reasonable.
Further, it is apropos to note that, pursuant to Resolution No. 9631,62 the
respondent revised the third paragraph of Section 9 (a). As revised, the provision
now reads:ChanRoblesVirtualawlibrary
Appearance or guesting by a candidate on any bona fide newscast, bona
fide news interview, bona fide news documentary, if the appearance of the
candidate is incidental to the presentation of the subject or subjects covered by
the news documentary, or on-the-spot coverage of bona fide news events,
including but not limited to events sanctioned by the Commission on Elections,
political conventions, and similar activities, shall not be deemed to be
broadcast election propaganda within the meaning of this provision. For
purposes of monitoring by the COMELEC and ensuring that parties and
candidates were afforded equal opportunities to promote their candidacy, the
media entity shall give prior notice to the COMELEC, through the appropriate
Regional Election Director (RED), or in the case of the National Capital Region
(NCR), the Education and Information Department (EID). If such prior notice is not
feasible or practicable, the notice shall be sent within twenty-four (24) hours
from the first broadcast or publication. Nothing in the foregoing sentence shall
be construed as relieving broadcasters, in connection with the presentation of
newscasts, news interviews, news documentaries, and on-the-spot coverage of
news events, from the obligation imposed upon them under Sections 10 and 14
of these Rules. 63
Further, the petitioner in G.R. No. 205374 assails the constitutionality of such
monitoring requirement, contending, among others, that it constitutes prior
restraint. The Court finds otherwise. Such a requirement is a reasonable means
adopted by the COMELEC to ensure that parties and candidates are afforded
equal opportunities to promote their respective candidacies. Unlike the
restrictive aggregate-based airtime limits, the directive to give prior notice is not
unduly burdensome and unreasonable, much less could it be characterized as
prior restraint since there is no restriction on dissemination of information before
broadcast.
Additionally, it is relevant to point out that in the original Resolution No. 9615, the
paragraph in issue was worded in this wise:ChanRoblesVirtualawlibrary
Appearance or guesting by a candidate on any bona fide newscast, bona fide
news interview, bona fide news documentary, if the appearance of the
candidate is incidental to the presentation of the subject or subjects covered by
the news documentary, or on-the-spot coverage of bona fide news events,

including but not limited to events sanctioned by the Commission on Elections,

political conventions, and similar activities, shall not be deemed to be
broadcast election propaganda within the meaning of this provision. To
determine whether the appearance or guesting in a program is bona fide, the
broadcast stations or entities must show that (1) prior approval of the
Commission was secured; and (2) candidates and parties were afforded equal
opportunities to promote their candidacy. Nothing in the foregoing sentence
shall be construed as relieving broadcasters, in connection with the presentation
of newscasts, news interviews, news documentaries, and on-the-spot coverage
of news events, from the obligation imposed upon them under Sections 10 and
14 of these Rules. 64
Comparing the original with the revised paragraph, one could readily
appreciate what the COMELEC had done to modify the requirement from
prior approval to prior notice. While the former may be suggestive of a
censorial tone, thus inviting a charge of prior restraint, the latter is more in the
nature of a content-neutral regulation designed to assist the poll body to
undertake its job of ensuring fair elections without having to undertake any
chore of approving or disapproving certain expressions.
Also, the right to reply provision is reasonable
In the same way that the Court finds the prior notice requirement as not
constitutionally infirm, it similarly concludes that the right to reply provision is
reasonable and consistent with the constitutional mandate.
Section 14 of Resolution No. 9615, as revised by Resolution No. 9631,
provides:ChanRoblesVirtualawlibrary
SECTION 14. Right to Reply. All registered political parties, party-list groups or
coalitions and bona fide candidates shall have the right to reply to charges
published or aired against them. The reply shall be given publicity by the
newspaper, television, and/or radio station which first printed or aired the
charges with the same prominence or in the same page or section or in the
same time slot as the first statement.
Registered political parties, party-list groups or coalitions and bona
fide candidates may invoke the right to reply by submitting within a nonextendible period of forty-eight hours from first broadcast or publication, a
formal verified claim against the media outlet to the COMELEC, through the
appropriate RED. The claim shall include a detailed enumeration of the
circumstances and occurrences which warrant the invocation of the right to
reply and must be accompanied by supporting evidence, such a copy of the
publication or recording of the television or radio broadcast, as the case may

be. If the supporting evidence is not yet available due to circumstances

beyond the power of the claimant, the latter shall supplement his claim as soon
as the supporting evidence becomes available, without delay on the part of the
claimant. The claimant must likewise furnish a copy of the verified claim and its
attachments to the media outlet concerned prior to the filing of the claim with
the COMELEC.
The COMELEC, through the RED, shall view the verified claim within forty-eight
(48) hours from receipt thereof, including supporting evidence, and if
circumstances warrant, give notice to the media outlet involved for appropriate
action, which shall, within forty-eight (48) hours, submit its comment, answer or
response to the RED, explaining the action it has taken to address the claim. The
media outlet must likewise furnish a copy of the said comment, answer or
response to the claimant invoking the right to reply.
Should the claimant insist that his/her right to reply was not addressed, he/she
may file the appropriate petition and/or complaint before the Commission on
Elections or its field offices, which shall be endorsed to the Clerk of Court.
The attack on the validity of the right to reply provision is primarily anchored
on the alleged ground of prior restraint, specifically in so far as such a
requirement may have a chilling effect on speech or of the freedom of the
press.
Petitioner ABC states, inter alia:
5.145. A conscious and detailed consideration of the interplay of the relevant
interests the constitutional mandate granting candidates the right to reply and
the inviolability of the constitutional freedom of expression, speech, and the
press will show that the Right to Reply, as provided for in the Assailed
Resolution, is an impermissible restraint on these fundamental freedoms.
5.146. An evaluation of the factors set forth in Soriano (for the balancing of
interests test) with respect to the present controversy will show that the
Constitution does not tilt the balance in favor of the Right to Reply provision in
the Assailed Resolution and the supposed governmental interest it attempts to
further.65
The Constitution itself provides as part of the means to ensure free, orderly,
honest, fair and credible elections, a task addressed to the COMELEC to provide
for a right to reply.66 Given that express constitutional mandate, it could be seen
that the Fundamental Law itself has weighed in on the balance to be struck
between the freedom of the press and the right to reply. Accordingly, one is not

merely to see the equation as purely between the press and the right to reply.
Instead, the constitutionally-mandated desiderata of free, orderly, honest,
peaceful, and credible elections would necessarily have to be factored in trying
to see where the balance lies between press and the demands of a right-toreply.
Moreover, as already discussed by the Court in Telecommunications and
Broadcast Attorneys of the Philippines, Inc. v. Commission on
Elections.67cralawred
In truth, radio and television broadcasting companies, which are given
franchises, do not own the airwaves and frequencies through which they
transmit broadcast signals and images. They are merely given the temporary
privilege of using them. Since a franchise is a mere privilege, the exercise of the
privilege may reasonably be burdened with the performance by the grantee of
some form of public service. x x x68
Relevant to this aspect are these passages from an American Supreme Court
decision with regard to broadcasting, right to reply requirements, and the
limitations on speech:ChanRoblesVirtualawlibrary
We have long recognized that each medium of expression presents special First
Amendment problems. Joseph Burstyn, Inc. v. Wilson, 343 U.S. 495, 502-503, 96 L
Ed 1098, 72 S Ct 777. And of all forms of communication, it is broadcasting that
has received the most limited First Amendment protection. Thus, although other
speakers cannot be licensed except under laws that carefully define and
narrow official discretion, a broadcaster may be deprived of his license and his
forum if the Commission decides that such an action would serve the public
interest, convenience, and necessity. Similarly, although the First Amendment
protects newspaper publishers from being required to print the replies of those
whom they criticize, Miami Herald Publishing Co. v. Tornillo, 418 U.S. 241, 41 L Ed
2d 730, 94 S Ct 2831, it affords no such protection to broadcasters; on the
contrary, they must give free time to the victims of their criticism. Red Lion
Broadcasting Co. v. FCC, 395 U.S. 367, 23 L Ed 2d 371, 89 S Ct 1794.
The reasons for these distinctions are complex, but two have relevance to the
present case. First, the broadcast media have established a uniquely pervasive
presence in the lives of all Americans. Patently offensive, indecent material
presented over the airwaves confronts the citizen not only in public, but also in
the privacy of the home, where the individual's right to be left alone plainly
outweighs the First Amendment rights of an intruder. Rowan v. Post Office Dept.,
397 U.S. 728, 25 L Ed 2d 736, 90 S Ct 1484. Because the broadcast audience is
constantly tuning in and out, prior warnings cannot completely protect the
listener or viewer from unexpected program content. To say that one may avoid

further offense by turning off the radio when he hears indecent language is like
saying that the remedy for an assault is to run away after the first blow. One may
hang up on an indecent phone call, but that option does not give the caller a
constitutional immunity or avoid a harm that has already taken place.
Second, broadcasting is uniquely accessible to children, even those too young
to read. Although Cohen's written message might have been incomprehensible
to a first grader, Pacifica's broadcast could have enlarged a child's vocabulary
in an instant. Other forms of offensive expression may be withheld from the
young without restricting the expression at its source. Bookstores and motion
picture theaters, for example, may be prohibited from making indecent material
available to children. We held in Ginsberg v. New York, 390 U.S. 629, that the
government's interest in the well-being of its youth and in supporting parents'
claim to authority in their own household justified the regulation of otherwise
protected expression. The ease with which children may obtain access to
broadcast material, coupled with the concerns recognized in Ginsberg, amply
justify special treatment of indecent broadcasting.69
Given the foregoing considerations, the traditional notions of preferring speech
and the press over so many other values of society do not readily lend itself to
this particular matter. Instead, additional weight should be accorded on the
constitutional directive to afford a right to reply. If there was no such mandate,
then the submissions of petitioners may more easily commend themselves for this
Courts acceptance. But as noted above, this is not the case. Their arguments
simplistically provide minimal importance to that constitutional command to the
point of marginalizing its importance in the equation.
In fine, when it comes to election and the exercise of freedom of speech, of
expression and of the press, the latter must be properly viewed in context as
being necessarily made to accommodate the imperatives of fairness by giving
teeth and substance to the right to reply requirement.
WHEREFORE, premises considered, the petitions are PARTIALLY GRANTED, Section
9 (a) of Resolution No. 9615, as amended by Resolution No. 9631, is
declared UNCONSTITUTIONAL and, therefore, NULL and VOID. The
constitutionality of the remaining provisions of Resolution No. 9615, as amended
by Resolution No. 9631, is upheld and remain in full force and effect.
In view of this Decision, the Temporary Restraining Order issued by the Court on
April 16, 2013 is hereby made PERMANENT.
SO ORDERED.cralawlaw lib

SEPARATE CONCURRING OPINION

CARPIO, Acting C.J.:

I join the ponencias holding striking down Section 9(a) of COMELEC Resolution
No. 9615, as amended, (Resolution) for being violative of the Free Speech
Clause of the Constitution. In addition, however, I vote to strike down Section 6.2
of the Fair Elections Act (Republic Act No. 9006 [RA 9006]) for similarly trenching
on the freedoms of speech and of expression of candidates and political
parties. I find this conclusion inevitable as Section 9(a) of the Resolution is merely
the administrative rule implementing Section 6.2 of RA 9006.

Minimizing Election Spending the Intended Government Interest

in Capping Campaign Air Time
The COMELEC grounds its issuance of the Resolution not only on RA 9006 but also
on two provisions of the Constitution,1 namely, Section 2(7) and Section 4, both
of Article IX-C. Section 2(7) concerns the power of the COMELEC to
[r]ecommend to the Congress effective measures to minimize election
spending, x x x.2 On the other hand, Section 4 authorizes the COMELEC, during
the election period, to supervise or regulate the enjoyment and utilization of all
franchises x x x for the operation of x x x media of communication or information
x x x.3 Different constitutional values underpin these two provisions. Section 2(7)
advances the government interest of keeping election spending to a minimum
to maximize competition in electoral exercises while Section 4 ensures equal
opportunity, time and space, including reasonable, equal rates to candidates
and political parties during the campaign period.
In capping the broadcast advertising time of candidates and political parties,
neither Congress nor the COMELEC (under Section 6.2 of RA 9006 and Section
9(a) of the Resolution, respectively) supervised or regulated the enjoyment and
utilization of franchises of media outfits under Section 4, Article IX-C. Media firms
continue to operate under their franchises free of restrictions notwithstanding
the imposition of these air time caps. Section 6.2 of RA 9006 and Section 9(a) of
the Resolution do not approximate the rule barring media firms from sell[ing] x x
x print space or air time for campaign or other political purposes except to the
Commission [on Elections],4 a clear statutory implementation of Section 4.5 On

the other hand, by regulating the length of broadcast advertising of candidates

and political parties, a propaganda activity with correlative financial effect,
Section 6.2 of RA 9006 and Section 9(a) of the Resolution enforce Section 2(7),
Article IX-C. They are meant to advance the government interest of minimizing
election spending.

Section 6.2 of RA 9006 and Section 9(a) of the Resolution

Restrict Free Speech and Free Expression Excessively
and Minimize Election Spending Arbitrarily
Section 6.2 of RA 9006 and Section 9(a) of the Resolution are content-neutral
time regulations which do not reach the content of campaign speech but
merely limit its cumulative broadcast time or length during the campaign
period. Such content-neutral regulations are subjected to the intermediate, not
heightened, level of scrutiny under the four-pronged OBrien test, originally
crafted by the U.S. Supreme Court and later adopted by this
Court.6 Under OBrien, Section 6.2 of RA 9006 and Section 9(a) of the Resolution
will pass constitutional muster 1 [if they are] within the constitutional power of
the Government; 2 if [they] further[] 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 the x x x freedoms [of speech,
expression and press] is no greater than is essential to the furtherance of that
interest.7cralawred
Section 6.2 of RA 9006 provides:ChanRoblesVirtualawlibrary

Equal
x

Access

to

Media
x

Time

and

Space.
x

x
x

6.2. (a) Each bona fide candidate or registered political party for a nationally
elective office shall be entitled to not more than one hundred twenty (120)
minutes of television advertisement and one hundred eighty (180) minutes of
radio
advertisement
whether
by
purchase
or
donation.
(b) Each bona fide candidate or registered political party for a locally elective
office shall be entitled to not more than sixty (60) minutes of television
advertisement and ninety (90) minutes of radio advertisement whether by
purchase
or
donation.
xxxx

Section 9(a) of the Resolution, implementing Section 6.2 for last years election,
provides:ChanRoblesVirtualawlibrary

Requirements and/or Limitations on the Use of Election Propaganda through Mass

Media. - All parties and bona fide candidates shall have equal access to media
time and space for their election propaganda during the campaign period
subject
to
the
following
requirements
and/or
limitations:ChanRoblesVirtualawlibrary
a.

Broadcast

Election

Propaganda

The duration of air time that a candidate, or party may use for their broadcast
advertisements
or
election
propaganda
shall
be,
as
follows:ChanRoblesVirtualawlibrary
For Candidates/Registered Political parties for a National Elective Position [-] [n]ot
more than an aggregate total of one hundred (120) minutes of television
advertising, whether appearing on national, regional, or local, free or cable
television, and one hundred eighty (180) minutes of radio advertising, whether
airing on national, regional, or local radio, whether by purchase or donation.
For Candidates/Registered Political parties for a Local Elective Position [-] [n]ot
more than an aggregate total of sixty (60) minutes of television advertising,
whether appearing on national, regional, or local, free or cable television, and
ninety (90) minutes of radio advertising, whether airing on national, regional, or
local radio, whether by purchase or donation.
These provisions pass the first and third prongs of OBrien. Undoubtedly, it was
within the power of Congress to enact Section 6.2 of RA 9006 and of COMELEC
to adopt Section 9(a) of the Resolution to enforce Section 2(7), Article IX-C of
the Constitution. Nor is there any question that the government interest of
minimizing election spending under Section 2(7) of Article IX-C is unrelated to the
suppression of free expression, concerned as it is in the non-speech government
interest of maximizing competition in the political arena. As explained below,
however, the capping of campaign air time by Section 6.2 of RA 9006 and
Section 9(a) of the Resolution advances the state interest of minimizing election
spending arbitrarily and the incidental restriction on the freedoms of speech
and expression these provisions impose is greater than is essential to the
furtherance of such state interest, thus failing the second and fourth prongs
of OBrien.

Under Section 6.2 of RA 9006, the ban in broadcast campaign kicks-in once the
limits of the air time caps are reached regardless of the amount of money
actually spent by candidates or political parties. Section 9(a) of the Resolution
tightens the regulatory noose by reckoning the air time caps for the entire
campaign period cumulatively.8 By divorcing the amount of campaign air time
logged by candidates and political parties during the campaign period from
the amount of expenses they incur to do so, Section 6.2 of RA 9006 and Section
9(a) of the Resolution operate under the assumption that advertising rates in TV
and radio are uniform, regardless of the broadcast coverage and time.
The fact of the matter is, advertising rates for each medium vastly vary
depending on the extent and time of broadcast. Even if the statutorily
mandated discounts are factored,9 a 30-second campaign ad placed in
petitioner GMA, Inc.s national TV station GMA-7 on a weekday evening
primetime slot will cost a candidate or political party 96% more than a 30second campaign ad placed by another candidate or party in any of GMA,
Inc.s provincial TV stations.10 If the ad is placed on a weekend non-primetime
slot (afternoon), the price variation dips slightly to 93%.11 The rates charged by
petitioner ABS-CBN Corporation reflect substantially the same price variance. A
30-second campaign ad placed in its national TV station ABS-CBN on a
primetime slot will cost a candidate or political party 97% more than a 30second campaign ad placed by another candidate or party in any of ABS-CBN
Corporations mid-level local stations.12 For non-primetime placement, the price
difference is 92%.13cralawred
Substantially the same level of rate variance obtains in radio advertising. A 30second campaign ad placed in petitioner GMA, Inc.s DZBB AM radio station for
national broadcast is, on average, 93% more expensive than a 30-second
campaign ad placed by another candidate or political party aired at GMA,
Inc.s AM radio stations in Puerto Princesa City (DYSP), Iloilo City (DYSI), and
Davao City (DXGM).14 For petitioner ABS-CBN Corporation, a 30-second
campaign ad placed in its DZMM AM radio station for national broadcast on a
primetime slot (club rate) is 91% more expensive than a 30-second campaign
ad placed by another candidate or political party aired at ABS-CBN
Corporations AM radio stations in Cebu City and Davao City.15cralawred
The non-uniform rates in broadcast advertising mean that candidate A for a
national position who opts to place campaign ads only in strategic provincial TV
and radio stations of the top two networks will have spent at least 90% less than
candidate B for the same position who places campaign ads in national TV and
radio stations of such networks for the same amount of time as candidate A.
Nevertheless, as Section 6.2 of RA 9006 and Section 9(a) of the Resolution do not
take broadcast rate variances into account, candidate A will have no choice
but to stop airing campaign ads once he reaches the limits of the air time caps

even though, compared to candidate B, his expenses for the ad placements

are drastically lower. The government interest of minimizing election spending is
furthered only in the case of candidate B but not with candidate A. On the
other hand, the candidate As right to make known his candidacy and program
of government to the voters the heart of the freedoms of (political) speech
and (political) expression guaranteed by the Constitution is unduly restricted
even though, compared to candidate B, his campaign expenses for airing ads
are enormously lower. The system of value-neutral air time capping cuts deep
into the core of fundamental rights while advancing a state interest arbitrarily.
The same excessive rights restrictions and arbitrary advancement of public
policy unfold for candidates at the local level. Metro Manila, unlike the other
provinces, is not covered by local TV or radio stations. To broadcast a
campaign ad on TV or radio, a candidate for any local position in Metro Manila
will have to pay the rates for a national broadcast. The dilemma faced by Metro
Manila candidates to either (a) inhibit from broadcasting their campaign ads to
save money or (b) spend large amounts of campaign funds to air ads unduly
restricts their expressive rights and at the same time negates the government
interest of minimizing campaign spending.
The value-neutral capping system under Section 6.2 of RA 9006 and Section 9(a)
of the Resolution also operates under the false assumption that candidates at
the national and local levels are subject to the same general campaign
spending limits, thus the uniform air time caps imposed for each category of
candidates. Under Batas Pambansa Blg. 881 (BP 881), as amended by Section
13 of Republic Act No. 7166, however, candidates spending limits are
computed based on the size of the voting population, with the rates
proportional to the size of a candidates constituency.16 Because all local
candidates under Section 6.2 of RA 9006 and Section 9(a) of the Resolution are
allotted the same air time, a candidate for mayor in Catbalogan City (which
had 54,459 registered voters in 2010) has the same 60 minutes of TV ad time
and 90 minutes of radio ad time as a candidate for mayor in Davao City (which
had 909,442 registered voters in 2010) even though their spending limits are,
under the 2010 census, P163,377 and P2,728,326, respectively (at P3 per
registered voter). As ad rates in Davao-based radio and TV stations are relatively
low, it could happen that the Davao City mayoral candidate will have
consumed her allotted campaign air time while keeping clear of the maximum
spending limit, yet, under Section 6.2 of RA 9006 and Section 9(a) of the
Resolution she has to stop airing campaign ads.

Section 6.2 of RA 9006 and Section 9(a) of the Resolution

Not Reasonably Related to the State Interest of Minimizing
Election Spending

Even if we subject Section 6.2 of RA 9006 and Section 9(a) of the Resolution to
the lowest level of scrutiny under the rational basis test, they still fail to withstand
analysis. Rules survive this minimal level of scrutiny if the means drawn by
Congress or administrative bodies are reasonably related to a legitimate state
interest. The government interest Section 6.2 of RA 9006 and Section 9(a) of the
Resolution are meant to advance is the minimization of campaign spending.
The means Congress and the COMELEC adopted to do so was to place uniform
campaign air caps for national and local candidates, without taking into
account the amount of money spent by candidates and political parties to air
campaign ads. By ignoring the amount of broadcasting expenses incurred by
candidates and political parties, Section 6.2 of RA 9006 and Section 9(a) of the
Resolution lack any rational relation to the state policy of minimizing election
spending under Section 2(7), Article IX-C of the Constitution. Their enforcement
will only result in substantial variation in election spending among national and
local candidates for airing campaign ads.
Legislative measures aimed at limiting campaign air time to advance the state
policy of minimizing campaign spending under Section 2(7), Article IX-C of the
Constitution must necessarily be pegged to spending caps for campaign
broadcasting. Such caps, in turn, will depend on the size of the voting
population for each category of candidates (national or local), consistent with
the existing method for capping general campaign spending under BP 881, as
amended. The monetary limit must be set at say P2.00 per registered voter for
local candidates and P4.00 per registered voter for national candidates. Once
the total monetary limits are reached, the ban on broadcast advertising takes
effect, regardless of the amount of air time logged. This scheme grants to
candidates and political parties greater space for the exercise of
communicative freedoms while, at the same time, allows the state to uniformly
flag profligate campaigns.
Accordingly, I vote to GRANT the petitions in part and DECLARE Section 9(a) of
COMELEC Resolution No. 9615 dated 15 January 2013, as amended by
Resolution No. 9631 dated 1 February 2013, and Section 6.2 of Republic Act No.
9006 UNCONSTITUTIONAL for being violative of Section 4, Article III of the 1987
Constitution.

EN BANC
G.R. No. 206020, April 14, 2015
1-UNITED TRANSPORT KOALISYON (1-UTAK), Petitioner, v. COMMISSION ON
ELECTIONS,Respondent.
DECISION
REYES, J.:
The right to participate in electoral processes is a basic and fundamental right in
any democracy. It includes not only the right to vote, but also the right to urge
others to vote for a particular candidate. The right to express one's preference
for a candidate is likewise part of the fundamental right to free speech. Thus,
any governmental restriction on the right to convince others to vote for a
candidate carries with it a heavy presumption of invalidity.
This is a petition for certiorari1 under Rule 64 and Rule 65 of the Rules of Court
filed by 1-United Transport Koalisyon (petitioner), a party-list organization,
assailing Section 7(g) items (5) and (6), in relation to Section 7(f), of Resolution
No. 96152 of the Commission on Elections (COMELEC).
The Facts
On February 12, 2001, Republic Act (R.A.) No. 9006, otherwise known as the "Fair
Elections Act", was passed. Section 9 thereof provides:
Sec. 9. Posting of Campaign Materials. - The COMELEC may authorize political
parties and party-list groups to erect common poster areas for their candidates
in not more than ten (10) public places such as plazas, markets, barangay
centers and the like, wherein candidates can post, display or exhibit election
propaganda: Provided that the size of the poster areas shall not exceed twelve
(12) by sixteen (16) feet or its equivalent.

Independent candidates with no political parties may likewise be authorized to

erect common poster areas in not more than ten (10) public places, the size of
which shall not exceed four (4) by six (6) feet or its equivalent.
Candidates may post any lawful propaganda material in private places with
the consent of the owner thereof, and in public places or property which shall
be allocated equitably and impartially among the candidates.
On January 15, 2013, the COMELEC promulgated Resolution No. 9615, which
provided for the rules implementing R.A. No. 9006 in connection with the May
13, 2013 national and local elections and subsequent elections. Section 7
thereof, which enumerates the prohibited forms of election propaganda,
pertinently provides:
SEC. 7. Prohibited Forms of Election Propaganda. - During the campaign period,
it is unlawful:
xxxx
(f) To post, display or exhibit any election campaign or propaganda material
outside of authorized common poster areas, in public places, or in private
properties without the consent of the owner thereof.
(g) Public places referred to in the previous subsection (f) include any of the
following:
xxxx
5. Public utility vehicles such as buses, jeepneys, trains, taxi cabs, ferries,
pedicabs and tricycles, whether motorized or not;
6. Within the premises of public transport terminals, such as bus terminals,
airports, seaports, docks, piers, train stations, and the like.
The violation of items [5 and 6] under subsection (g) shall be a cause for the
revocation of the public utility franchise and will make the owner and/or
operator of the transportation service and/or terminal liable for an election
offense under Section 9 of Republic Act No. 9006 as implemented by Section 18
(n) of these Rules.3
In its letter4 dated January 30, 2013, the petitioner, through its president,
Melencio F. Vargas, sought clarification from the COMELEC as regards the
application of Resolution No. 9615, particularly Section 7(g) items (5) and (6), in
relation to Section 7(f), vis-a-vis privately owned public utility vehicles (PUVs) and
transport terminals. The petitioner explained that the prohibition stated in the

aforementioned provisions impedes the right to free speech of the private

owners of PUVs and transport terminals. The petitioner then requested the
COMELEC to reconsider the implementation of the assailed provisions and allow
private owners of PUVs and transport terminals to post election campaign
materials on their vehicles and transport terminals.
On February 5, 2013, the COMELEC en banc issued Minute Resolution No. 130214,5 which denied the petitioner's request to reconsider the implementation of
Section 7(g) items (5) and (6), in relation to Section 7(f), of Resolution No. 9615.
The COMELEC en banc, adopting the recommendation of Commissioner
Christian Robert S. Lim, opined that:
From the foregoing, x x x the primary fact in consideration here is actually
whether 1 -UTAK or any other [PUV] owners in the same position do in fact
possess a franchise and/or certificate of public convenience and operate as a
public utility. If it does not, then the ruling in Adiong applies squarely. If it does,
then its operations, pursuant to Section 4, Article IX-C of the Constitution, will be
placed directly under the supervision and regulation of the Commission for the
duration of the election period so as to ensure equality of opportunity, time, and
space for all candidates in the placement of political advertisements. Having
placed their property for use by the general public and having secured a
license or permit to do so, 1-UTAK and other PUV owners, as well as transport
terminal owners, cannot now complain that their property is subject to
regulation by the State. Securing a franchise or a certificate of public
convenience in their favor does not exempt them from the burdens imposed by
the Constitution, Republic Act No. 9006 x x x, and other related statutes. It must
be stressed that the Constitution itself, under Section 6, Article XII, commands
that the use of property bears a social function and all economic agents shall
contribute to the common good; and there is no higher Common good than
that as espoused in R.A. No. 9006 - the equalization of opportunities for all
candidates for political office during elections - a policy which Res. No. 9615
merely implements.
As required in Adiong, and in compliance with the O'Brien standards, the
prohibition furthers two important and substantial governmental interests equalizing opportunity, time, and space for all candidates, and putting to a stop
excessive campaign spending. The regulation bears a clear and reasonable
nexus with these Constitutionally- and statutorily-sanctioned objectives, and the
infringement of freedom is merely incidental and limited as to time. The
Commission has not taken away all avenues of expression available to PUV and
transport terminal owners. They may express their political preferences
elsewhere.
The exact purpose for placing political advertisements on a PUV or in transport

terminals is exactly because it is public and can be seen by all; and although it
is true that private vehicles ply the same route as public vehicles, the exposure
of a [PUV] servicing the general, riding public is much more compared to
private vehicles.Categorizing PUVs and transport terminals as 'public places'
under Section 7 (f) of Reso. No. 9615 is therefore logical. The same reasoning for
limiting political advertisements in print media, in radio, and in television
therefore holds true for political advertisements in PUVs and transport terminals.6
Hence, the instant petition.
Arguments of the Petitioner
The petitioner maintains that Section 7(g) items (5) and (6), in relation to Section
7(f), of Resolution No. 9615 violate the right to free speech of the owners of PUVs
and transport terminals; that the prohibition curtails their ideas of who should be
voted by the public. The petitioner also claims that there is no substantial public
interest threatened by the posting of political advertisements on PUVs and
transport terminals to warrant the prohibition imposed by the COMELEC. Further,
the petitioner posits that the ownership of the PUVs per se, as well as the
transport terminals, remains private and, hence, the owners thereof could not
be prohibited by the COMELEC from expressing their political opinion lest their
property rights be unduly intruded upon.
Further, assuming that substantial public interest exists in the said prohibition
imposed under Resolution No. 9615, the petitioner claims that the curtailment of
the right to free speech of the owners of PUVs and transport terminals is much
greater than is necessary to achieve the desired governmental purpose, i.e.,
ensuring equality of opportunity to all candidates in elective office.
Arguments of COMELEC
On the other hand, the COMELEC posits that privately-owned PUVs and
transport terminals are public spaces that are subject to its regulation. It explains
that under the Constitution, the COMELEC has the power to enforce and
administer all laws and regulations relative to the conduct of an election,
including the power to regulate the enjoyment or utilization of all franchises and
permits for the operation of transportation utilities.
The COMELEC points out that PUVs and private transport terminals hold a
captive audience - the commuters, who have no choice but be subjected to
the blare of political propaganda. Thus, the COMELEC avers, it is within its
constitutional authority to prevent privately-owned PUVs and transport terminals
from concurrently serving campaign materials to the captive audience that
they transport.

The COMELEC further claims that Resolution No. 9615 is a valid content-neutral
regulation and, thus, does not impinge on the constitutional right to freedom of
speech. It avers that the assailed regulation is within the constitutional power of
the COMELEC pursuant to Section 4, Article IX-C of the Constitution. The
COMELEC alleges that the regulation simply aims to ensure equal campaign
opportunity, time, and space for all candidates - an important and substantial
governmental interest, which is totally unrelated to the suppression of free
expression; that any restriction on free speech is merely incidental and is no
greater than is essential to the furtherance of the said governmental interest.
The Issue
The petitioner presents the following issues for the Court's resolution:
I. [WHETHER] RESOLUTION NO. 9615 VIOLATES THE RIGHT TO FREE SPEECH OF THE
OWNERS OF [PUVs] AND TRANSPORT TERMINALS.
II. [WHETHER] RESOLUTION NO. 9615 IS VOID AS A RESTRAINT TO FREE SPEECH AND
EXPRESSION FOR FAILURE TO SATISFY THE O'BRIEN TEST.
III. [WHETHER] THE CONSTITUTIONAL OBJECTIVE TO GIVE AN EQUAL OPPORTUNITY
TO INFORM THE ELECTORATE IS NOT IMPAIRED BY POSTING
POLITICAL ADVERTISEMENTS ON PUVs AND TRANSPORT TERMINALS.
IV. [WHETHER] THE OWNERSHIP OF FACILITIES IS DIFFERENT AND INDEPENDENT
FROM THE FRANCHISE OR OPERATION OF THE PUBLIC UTILITY, THE FORMER BEING
BEYOND THE POWER OF REGULATION BY THE COMELEC.7
In sum, the issue presented for the Court's resolution is whether Section 7(g) items
(5) and (6), in relation to Section 7(f), of Resolution No. 9615, which prohibits the
posting of any election campaign or propaganda material, inter alia, in PUVs
and public transport terminals are valid regulations.
Ruling of the Court
The petition is meritorious.
Resolution No. 9615, which was promulgated pursuant to Section 4, Article IX-C
of the Constitution and the provisions of R.A. No. 9006, lays down the
administrative rules relative to the COMELEC's exercise of its supervisory and
regulatory powers over all franchises and permits for the operation of
transportation and other public utilities, media of communication or information,
and all grants, special privileges, or concessions granted by the Government.

Like any other administrative regulations, Resolution No. 9615, or any part
thereof, must not run counter to the Constitution. It is basic that if a law or an
administrative rule violates any norm of the Constitution, that issuance is null and
void and has no effect. The Constitution is the basic law to which all laws must
conform; no act shall be valid if it conflicts with the Constitution.8 In this regard,
an administrative regulation, even if it purports to advance a legitimate
governmental interest, may not be permitted to run roughshod over the
cherished rights of the people enshrined in the Constitution.
Section 7(g) items (5) and (6), in
relation to Section 7(f), of Resolution No.
9615 are prior restraints on speech.
Free speech may be identified with the liberty to discuss publicly and truthfully
any matter of public concern without prior restraint or censorship and
subsequent punishment.9 Prior restraint refers to official governmental restrictions
on the press or other forms of expression in advance of actual publication or
dissemination. Freedom from prior restraint is largely freedom from government
censorship of publications, whatever the form of censorship, and regardless of
whether it is wielded by the executive, legislative or judicial branch of the
government.10 Any system of prior restraints of expression comes to this Court
bearing a heavy presumption against its validity.11
Section 7(g) items (5) and (6), in relation to Section 7(f), of Resolution No. 9615
unduly infringe on the fundamental right of the people to freedom of speech.
Central to the prohibition is the freedom of individuals, i.e., the owners of PUVs
and private transport terminals, to express their preference, through the posting
of election campaign material in their property, and convince others to agree
with them.
Pursuant to the assailed provisions of Resolution No. 9615, posting an election
campaign material during an election period in PUVs and transport terminals
carries with it the penalty of revocation of the public utility franchise and shall
make the owner thereof liable for an election offense.
The prohibition constitutes a clear prior restraint on the right to free expression of
the owners of PUVs and transport terminals. As a result of the prohibition, owners
of PUVs and transport terminals are forcefully and effectively inhibited from
expressing their preferences under the pain of indictment for an election offense
and the revocation of their franchise or permit to operate.
It is now deeply embedded in our jurisprudence that freedom of speech and of
the press enjoys a preferred status in our hierarchy of rights. The rationale is that

the preservation of other rights depends on how well we protect our freedom of
speech and of the press.12 It has been our constant holding that this preferred
freedom calls all the more for utmost respect when what may be curtailed is the
dissemination of information to make more meaningful the equally vital right of
suffrage.13
Thus, in Adiong v. COMELEC,14 the Court struck down the COMELEC's prohibition
against the posting of decals and stickers on "mobile places." The Court
ratiocinated that:
Significantly, the freedom of expression curtailed by the questioned prohibition is
not so much that of the candidate or the political party. The regulation strikes at
the freedom of an individual to express his preference and, by displaying it on
his car, to convince others to agree with him. A sticker may be furnished by a
candidate but once the car owner agrees to have it placed on his private
vehicle, the expression becomes a statement by the owner, primarily his own
and not of anybody else. If, in the National Press Club case, the Court was
careful to rule out restrictions on reporting by newspaper or radio and television
stations and commentators or columnists as long as these are not correctly paidfor advertisements or purchased opinions with less reason can we sanction the
prohibition against a sincere manifestation of support and a proclamation of
belief by an individual person who pastes a sticker or decal on his private
property.15 (Emphases ours)
The assailed prohibition on posting
election campaign materials is an
invalid content-neutral regulation
repugnant to the free speech clause.
The COMELEC claims that while Section 7(g) items (5) and (6) of Resolution No.
9615 may incidentally restrict the right to free speech of owners of PUVs and
transport terminals, the same is nevertheless constitutionally permissible since it is
a valid content-neutral regulation. The Court does not agree.
A content-neutral regulation, i.e., which is merely concerned with the incidents
of the speech, or one that merely controls the time, place or manner, and under
well-defined standards,16 is constitutionally permissible, even if it restricts the right
to free speech, provided that the following requisites concur: first, the
government regulation is within the constitutional power of the
Government; second, it furthers an important or substantial governmental
interest; third, the governmental interest is unrelated to the suppression of free
expression; and fourth, the incidental restriction on freedom of expression is no
greater than is essential to the furtherance of that interest.17

Section 7(g) items (5) and (6) of Resolution No. 9615 are content-neutral
regulations since they merely control the place where election campaign
materials may be posted. However, the prohibition is still repugnant to the free
speech clause as it fails to satisfy all of the requisites for a valid content-neutral
regulation.
It is conceded that Resolution No. 9615, including the herein assailed provisions,
furthers an important and substantial governmental interest, i.e., ensuring equal
opportunity, time and space among candidates aimed at the holding of free,
orderly, honest, peaceful, and credible elections. It is further conceded that the
governmental interest in imposing the said prohibition is unrelated to the
suppression of free expression. However, Section 7(g) items (5) and (6), in
relation to Section 7(f), of Resolution No. 9615, are not within the constitutionally
delegated power of the COMELEC under Section 4, Article IX-C of the
Constitution. Also, there is absolutely no necessity to restrict the right to free
speech of the owners of PUVs and transport terminals.
The COMELEC may only regulate
the franchise or permit to operate and
not the ownership per se of PUVs
and transport terminals.
The prohibition under Section 7(g) items (5) and (6), in relation to Section 7(f), of
Resolution No. 9615 is not within the COMELEC's constitutionally delegated
power of supervision or regulation. It is not disputed that the COMELEC has the
power to supervise or regulate the enjoyment or utilization of all franchises or
permits for the operation of transportation utilities during an election period.
Section 4, Article IX-C of the Constitution, thus provides:
Section 4. The Commission may, during the election period, supervise or regulate
the enjoyment or utilization of all franchises or permits for the operation of
transportation and other public utilities, media of communication or information,
all grants, special privileges, or concessions granted by the Government or any
subdivision, agency, or instrumentality thereof, including any governmentowned 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 powervis-a-vis the conduct and manner of elections under
Section 4, Article IX-C of the Constitution, nevertheless held that such supervisory
power does not extend to the very freedom of an individual to express his
preference of candidates in an election by placing election campaign stickers
on his vehicle.
In National Press Club v. COMELEC,18 while the Court upheld the constitutionality
of a prohibition on the selling or giving free of charge, except to the COMELEC,
of advertising space and commercial time during an election period, it was
emphasized that the grant of supervisory and regulatory powers to the
COMELEC under Section 4, Article IX-C of the Constitution, is limited to ensuring
equal opportunity, time, space, and the right to reply among candidates.
Further, in Social Weather Stations, Inc. v. COMELEC,19 the Court,
notwithstanding the grant of supervisory and regulatory powers to the COMELEC
under Section 4, Article IX-C of the Constitution, declared unconstitutional a
regulation prohibiting the release of election surveys prior to the election since it
"actually suppresses a whole class of expression, while allowing the expression of
opinion concerning the same subject matter by newspaper columnists, radio
and [television (TV)] commentators, armchair theorists, and other opinion
makers."20
In the instant case, the Court further delineates the constitutional grant of
supervisory and regulatory powers to the COMELEC during an election period.
As worded, Section 4, Article IX-C of the Constitution only grants COMELEC
supervisory and regulatory powers over the enjoyment or utilization "of all
franchises or permits for the operation," inter alia, of transportation and other
public utilities. The COMELEC's constitutionally delegated powers of supervision
and regulation do not extend to the ownership per se of PUVs and transport
terminals, but only to the franchise or permit to operate the same.
There is a marked difference between the franchise or permit to operate
transportation for the use of the public and the ownership per se of the vehicles
used for public transport. Thus, in Tatad v. Garcia, Jr.,21 the Court explained that:
What private respondent owns are the rail tracks, rolling stocks like the coaches,
rail stations, terminals and the power plant, not a public utility. While a franchise
is needed to operate these facilities to serve the public, they do not by
themselves constitute a public utility. What constitutes a public utility is not their
ownership but their use to serve the public x x x.

The Constitution, in no uncertain terms, requires a franchise for the operation of

a public utility. However, it does not require a franchise before one can own the
facilities needed to operate a public utility so long as it does not operate them
to serve the public.
xxxx
In law, there is a clear distinction between the "operation" of a public utility and
the ownership of the facilities and equipment used to serve the public.
xxxx
The right to operate a public utility may exist independently and separately from
the ownership of the facilities thereof. One can own said facilities without
operating them as a public utility, or conversely, one may operate a public
utility without owning the facilities used to serve the public. The devotion of
property to serve the public may be done by the owner or by the person in
control thereof who may not necessarily be the owner thereof.
This dichotomy between the operation of a public utility and the ownership of
the facilities used to serve the public can be very well appreciated when we
consider the transportation industry. Enfranchised airline and shipping
companies may lease their aircraft and vessels instead of owning them
themselves.22 (Emphases ours)
The franchise or permit to operate transportation utilities is a privilege granted to
certain persons to engage in the business of transporting people or goods; it
does not refer to the ownership of the 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 Osmena v. COMELEC26
find no application to this case.
The COMELEC pointed out that the issue presented in the instant case is akin to
the Court's rulings inNational Press Club and Osmea. It explained that in both
cases, the Court sustained Section II(b) of R.A. No. 6646 or the Electoral Reforms
Law of 1997, which prohibits newspapers, radio broadcasting or TV stations, and
other mass media from selling or giving print space or airtime for campaign or
other political purposes, except to the COMELEC, during the election
campaign. The COMELEC averred that if the legislature can empower it to
impose an advertising ban on mass media, it could likewise empower it to
impose a similar ban on PUVs and transport terminals.
The Court does not agree.
The restriction imposed under Section ll(b) of R.A. No. 6646 has a direct relation
to the enjoyment and utilization of the franchise or permit to operate of
newspapers, radio broadcasting and TV stations, and other mass media, which
the COMELEC has the power to regulate pursuant to Section 4, Article IX-C of
the Constitution. The print space or airtime is an integral part of the franchise or
permit to operate of mass media utilities. Thus, the restriction under Section ll(b)
of R.A. No. 6646 is within the confines of the constitutionally delegated power of
the COMELEC under Section 4, Article IX-C of the Constitution.
On the other hand, the prohibition on the posting of election campaign
materials under Section 7(g) items (5) and (6) of Resolution No. 9615, as already
explained, does not have any relation to the franchise or permit of PUVs and
transport terminals to operate as such and, hence, is beyond the power of the
COMELEC under Section 4, Article IX-C of the Constitution.
The restriction on free speech of
owners of PUVs and transport
terminals is not necessary to
further the stated governmental

interest.
Section 7(g) items (5) and (6) of Resolution No. 9615 likewise failed to satisfy the
fourth requisite of a valid content-neutral regulation, i.e., the incidental
restriction on freedom of expression is no greater than is essential to the
furtherance of that interest. There is absolutely no necessity to restrict the right of
the owners of PUVs and transport terminals to free speech to further the
governmental interest. While ensuring equality of time, space, and opportunity
to candidates is an important and substantial governmental interest and is
essential to the conduct of an orderly election, this lofty aim may be
achieved sans any intrusion on the fundamental right of expression.
First, while Resolution No. 9615 was promulgated by the COMELEC to implement
the provisions of R.A. No. 9006, the prohibition on posting of election campaign
materials on PUVs and transport terminals was not provided for therein.
Second, there are more than sufficient provisions in our present election laws
that would ensure equal time, space, and opportunity to candidates in
elections. Section 6 of R.A. No. 9006 mandates that "all registered parties and
bona fide candidates shall have equal access to media time and space" and
outlines the guidelines to be observed in the implementation thereof, viz:
Section 6. Equal Access to Media Time and Space. - All registered parties and
bona fide candidates shall have equal access to media time and space. The
following guidelines may be amplified on by the COMELEC:
6.1 Print advertisements shall not exceed one-fourth (1/4) page in broadsheet
and one-half (1/2) page in tabloids thrice a week per newspaper, magazine or
other publications, during the campaign period.
6.2 a. Each bona fide candidate or registered political party for a nationally
elective office shall be entitled to not more than one hundred twenty (120)
minutes of television advertisement and one hundred eighty (180) minutes of
radio advertisement whether by purchase or donation.
b. Each bona fide candidate or registered political party for a locally elective
office shall be entitled to not more than sixty (60) minutes of television
advertisement and ninety (90) minutes of radio advertisement whether by
purchase or donation.
For this purpose, the COMELEC shall require any broadcast station or entity to
submit to the COMELEC a copy of its broadcast logs and certificates of
performance for the review and verification of the frequency, date, time and
duration of advertisements broadcast for any candidate or political party.

6.3 All mass media entities shall furnish the COMELEC with a copy of all
contracts for advertising, promoting or opposing any political party or the
candidacy of any person for public office within five (5) days after its signing. In
every case, it shall be signed by the donor, the candidate concerned or by the
duly authorized representative of the political party.
6.4 No franchise or permit to operate a radio or television station shall be
granted or issued, suspended or cancelled during the election period. In all
instances, the COMELEC shall supervise the use and employment of press, radio
and television facilities insofar as the placement of political advertisements is
concerned to ensure that candidates are given equal opportunities under
equal circumstances to make known their qualifications and their stand on
public issues within the limits set forth in the Omnibus Election Code and
Republic Act No. 7166 on election spending.
The COMELEC shall ensure that radio or television or cable television
broadcasting entities shall not allow the scheduling of any program or permit
any sponsor to manifestly favor or oppose any candidate or political party by
unduly or repeatedly referring to or including said candidate and/or political
party in such program respecting, however, in all instances the right of said
broadcast entities to air accounts of significant news or news worthy events and
views on matters of public interest.
6.5 All members of media, television, radio or print, shall scrupulously report and
interpret the news, taking care not to suppress essential facts nor to distort the
truth by omission or improper emphasis. They shall recognize the duty to air the
other side and the duty to correct substantive errors promptly.
6.6 Any mass media columnist, commentator, announcer, reporter, on-air
correspondent or personality who is a candidate for any elective public office or
is a campaign volunteer for or employed or retained in any capacity by any
candidate or political party shall be deemed resigned, if so required by their
employer, or shall take a leave of absence from his/her work as such during the
campaign period: Provided, That any media practitioner who is an official of a
political party or a member of the campaign staff of a candidate or political
party shall not use his/her time or space to favor any candidate or political
party.
6.7 No movie, cinematograph or documentary portraying the life or biography
of a candidate shall be publicly exhibited in a theater, television station or any
public forum during the campaign period.
6.8 No movie, cinematograph or documentary portrayed by an actor or media

personality who is himself a candidate shall likewise be publicly exhibited in a

theater or any public forum during the campaign period.
Section 9 of R.A. No. 9006 authorizes political parties and party-list groups and
independent candidates to erect common poster areas and candidates to
post lawful election campaign materials in private places, with the consent of
the owner thereof, and in public places or property, which are allocated
equitably and impartially.
Further, Section 1327 of R.A. No. 716628 provides for the authorized expenses of
registered political parties and candidates for every voter; it affords candidates
equal opportunity in their election campaign by regulating the amount that
should be spent for each voter. Likewise, Section 1429 of R.A. No. 7166 requires
all candidates and treasurers of registered political parties to submit a statement
of all contributions and expenditures in connection with the election. Section 14
is a post-audit measure that aims to ensure that the candidates did not
overspend in their election campaign, thereby enforcing the grant of equal
opportunity to candidates under Section 13.
A strict implementation of the foregoing provisions of law would suffice to
achieve the governmental interest of ensuring equal time, space, and
opportunity for candidates in elections. There is thus no necessity of still curtailing
the right to free speech of the owners of PUVs and transport terminals by
prohibiting them from posting election campaign materials on their properties.
Section 7(g) items (5) and (6) of
Resolution No. 9615 are not justified under
the captive-audience doctrine.
The COMELEC further points out that PUVs and transport terminals hold a
"captive audience" - commuters who have no choice but be subjected to the
blare of political propaganda. The COMELEC further claims that while owners of
privately owned PUVs and transport terminals have a right to express their views
to those who wish to listen, they have no right to force their message upon an
audience incapable of declining to receive it.
The COMELEC's claim is untenable.
The captive-audience doctrine states that when a listener cannot, as a
practical matter, escape from intrusive speech, the speech can be
restricted.30 The "captive-audience" doctrine recognizes that a listener has a
right not to be exposed to an unwanted message in circumstances in which the
communication cannot be avoided.31

A regulation based on the captive-audience doctrine is in the guise of

censorship, which undertakes selectively to shield the public from some kinds of
speech on the ground that they are more offensive than others. Such selective
restrictions have been upheld only when the speaker intrudes on the privacy of
the home or the degree of captivity makes it either impossible or impractical for
the unwilling viewer or auditor to avoid exposure.32
In Consolidated Edison Co. v. Public Service Commission,33 the Supreme Court of
the United States of America (U.S. Supreme Court) struck down the order of New
York Public Service Commission, which prohibits public utility companies from
including inserts in monthly bills discussing controversial issues of public policy.
The U.S. Supreme Court held that "[t]he prohibition cannot be justified as being
necessary to avoid forcing appellant's views on a captive audience, since
customers may escape exposure to objectionable material simply by throwing
the bill insert into a wastebasket."34
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 city's transit system has
the discretion on the type of advertising that may be displayed on its vehicles.
Concurring in the judgment, Justice Douglas opined that while Lehman, a
candidate for state office who sought to avail himself of advertising space on
government-run buses, "clearly has a right to express his views to those who wish
to listen, he has no right to force his message upon an audience incapable of
declining to receive it."39 Justice Douglas concluded: "the right of the
commuters to be free from forced intrusions on their privacy precludes the city
from transforming its vehicles of public transportation into forums for the
dissemination of ideas upon this captive audience."40
The COMELEC's reliance on Lehman is utterly misplaced.
In Lehman, the political advertisement was intended for PUVs owned by the city
government; the city government, as owner of the buses, had the right to
decide which type of advertisements would be placed on its buses. The U.S.
Supreme Court gave primacy to the city government's exercise of its managerial
decision, viz:
Revenue earned from long-term commercial advertising could be jeopardized
by a requirement that short-term candidacy or issue-oriented advertisements be
displayed on car cards. Users would be subjected to the blare of political
propaganda. There could be lurking doubts about favoritism, and sticky
administrative problems might arise in parceling out limited space to eager
politicians. In these circumstances, the managerial decision to limit car card
space to innocuous and less controversial commercial and service-oriented
advertising does not rise to the dignity of First Amendment violation. Were we to
hold to the contrary, display cases in public hospitals, libraries, office buildings,
military compounds, and other public facilities immediately would become
Hyde Parks open to every would be pamphleteer and politician. This the
Constitution does not require.41 (Emphasis ours)

Lehman actually upholds the freedom of the owner of the utility vehicles, i.e.,
the city government, in choosing the types of advertisements that would be
placed on its properties. In stark contrast, Section 7(g) items (5) and (6) of
Resolution No. 9615 curtail the choice of the owners of PUVs and transport
terminals on the advertisements that may be posted on their properties.
Also, the city government in Lehman had the right, nay the duty, to refuse
political advertisements on their buses. Considering that what were involved
were facilities owned by the city government, impartiality, or the appearance
thereof, was a necessity. In the instant case, the ownership of PUVs and
transport terminals remains private; there exists no valid reason to suppress their
political views by proscribing the posting of election campaign materials on their
properties.
Prohibiting owners of PUVs and transport
terminals from posting election campaign
materials violates the equal protection
clause.
Section 7(g) items (5) and (6) of Resolution No. 9615 do not only run afoul of the
free speech clause, but also of the equal protection clause. One of the basic
principles on which this government was founded is that of the equality of right,
which is embodied in Section 1, Article III of the 1987 Constitution.42 "Equal
protection requires that all persons or things similarly situated should be treated
alike, both as to rights conferred and responsibilities imposed. Similar subjects, in
other words, should not be treated differently, so as to give undue favor to some
and unjustly discriminate against others."43
"The equal protection clause is aimed at all official state actions, not just those of
the legislature. Its inhibitions cover all the departments of the government
including the political and executive departments, and extend to all actions of
a state denying equal protection of the laws, through whatever agency or
whatever guise is taken."44
Nevertheless, the guaranty of equal protection of the laws is not a guaranty of
equality in the application of the laws to all citizens of the state. Equality of
operation of statutes does not mean their indiscriminate operation on persons
merely as such, but on persons according to the circumstances surrounding
them. It guarantees equality, not identity of rights. The Constitution does not
require that things, which are different in fact, be treated in law as though they
were the same. The equal protection clause does not forbid discrimination as to
things that are different.45

In order that there can be valid classification so that a discriminatory

governmental act may pass the constitutional norm of equal protection, it is
necessary that the four requisites of valid classification be complied with,
namely: (1) it must be based upon substantial distinctions; (2) it must be
germane to the purposes of the law; (3) it must not be limited to existing
conditions only; and (4) it must apply equally to all members of the class.46
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
government's 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 PUVs 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.

CIAL WEATHER STATIONS, INC. AND PULSE ASIA, INC., Petitioners, v. COMMISSION
ON ELECTIONS, Respondent.
DECISION
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. 96742dated 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.7The 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. Paki-shade 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.
(LIST OF CANDIDATES OMITTED)
If the elections were held today, whom would you most probably vote for
asSENATORS 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.
(LIST OF CANDIDATES OMITTED)8 (Emphasis in the original)
On March 20, 2013, Representative Tobias M. Tiangco (Tiangco), SecretaryGeneral 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] 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
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
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.
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

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"31was 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. 13222. 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
a. The name of the person, candidate, party or. organization
who commissioned or paid for the survey;
b. The name of the person, polling firm or survey organization
who conducted the survey;
c. 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;
d. The margin of error of the survey;
e. 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
f. 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 COMELECaccredited 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 individuallevel 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 so-called 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, andanyone 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
so-called "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.
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-visequality 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 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.
...
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.
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
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.
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. 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
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
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
Clarifications, however, are in order.
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.
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.
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
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 COMELEC, as the framers of the Constitution intended to place
the COMELECcreated and explicitly made independent by the Constitution
itselfon a level higher than statutory administrative organs.123
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.
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 rulemaking, 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:
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)
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
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.131They 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 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
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."136The incorporation of
regulations into contracts is "a postulate of the police power of the State."137
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
[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 inPhilippine 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.
It is an error to insist on this literal reasoning.
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. 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
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.

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 noncompliance 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

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

DECISION

PUNO, C.J.:
A. Precis
In this jurisdiction, it is established that freedom of the press is crucial and so
inextricably woven into the right to free speech and free expression, that any
attempt to restrict it must be met with an examination so critical that only a
danger that is clear and present would be allowed to curtail it.

FRANCISCO CHAVEZ,
Petitioner,

G.R. No. 168338

Present:

- versus -

RAUL M. GONZALES,
in his capacity as the
Secretary of the
Department of Justice;
and NATIONAL
TELECOMMUNICATIONS COMMISSION
(NTC),
Respondents.

PUNO, C.J.,
QUISUMBING,
YNARES-SANTIAGO,
SANDOVAL-GUTIERREZ,
CARPIO,
AUSTRIA-MARTINEZ,
CORONA,
CARPIO MORALES,
AZCUNA,
TINGA,
CHICO-NAZARIO,
VELASCO, JR.,
NACHURA,
REYES, and
LEONARDO-DE CASTRO, JJ.
Promulgated:
February 15, 2008

Indeed, we have not wavered in the duty to uphold this cherished freedom.
We have struck down laws and issuances meant to curtail this right, as in Adiong
v. COMELEC,[1] Burgos v. Chief of Staff,[2] Social Weather Stations v.
COMELEC,[3] and Bayan v. Executive Secretary Ermita.[4] When on its face, it is
clear that a governmental act is nothing more than a naked means to prevent
the free exercise of speech, it must be nullified.
B. The Facts
1.

The case originates from events that occurred a year after the 2004
national and local elections. On June 5, 2005, Press Secretary Ignacio Bunye
told reporters that the opposition was planning to destabilize the
administration by releasing an audiotape of a mobile phone conversation
allegedly between the President of the Philippines, Gloria Macapagal
Arroyo, and a high-ranking official of the Commission on Elections

(COMELEC). The conversation was audiotaped allegedly through wiretapping.[5] Later, in a Malacaang press briefing, Secretary Bunye produced
two versions of the tape, one supposedly the complete version, and the
other, a spliced, doctored or altered version, which would suggest that the
President had instructed the COMELEC official to manipulate the election
results in the Presidents favor. [6] It seems that Secretary Bunye admitted that
the voice was that of President Arroyo, but subsequently made a
retraction. [7]
2.

On June 7, 2005, former counsel of deposed President Joseph Estrada,

Atty. Alan Paguia, subsequently released an alleged authentic tape
recording of the wiretap. Included in the tapes were purported
conversations of the President, the First Gentleman Jose Miguel Arroyo,
COMELEC Commissioner Garcillano, and the late Senator Barbers.[8]

3.

On June 8, 2005, respondent Department of Justice (DOJ) Secretary Raul

Gonzales warned reporters that those who had copies of the compact disc
(CD) and those broadcasting or publishing its contents could be held liable
under the Anti-Wiretapping Act. These persons included Secretary Bunye
and Atty. Paguia. He also stated that persons possessing or airing said tapes
were committing a continuing offense, subject to arrest by anybody who
had personal knowledge if the crime was committed or was being
committed in their presence.[9]

4.

On June 9, 2005, in another press briefing, Secretary Gonzales ordered the

National Bureau of Investigation (NBI) to go after media
organizations found to have caused the spread, the playing and the
printing of the contents of a tape of an alleged wiretapped conversation
involving the President about fixing votes in the 2004 national
elections. Gonzales said that he was going to start with Inq7.net, a joint
venture between the Philippine Daily Inquirer and GMA7 television network,
because by the very nature of the Internet medium, it was able to
disseminate the contents of the tape more widely. He then expressed his
intention of inviting the editors and managers of Inq7.net and GMA7 to a
probe, and supposedly declared, I [have] asked the NBI to conduct a
tactical interrogation of all concerned. [10]

5.

On June 11, 2005, the NTC issued this press release: [11]
NTC GIVES FAIR WARNING TO RADIO AND TELEVISION
OWNERS/OPERATORS TO OBSERVE ANTI-WIRETAPPING LAW
AND PERTINENT CIRCULARS ON PROGRAM STANDARDS
xxx xxx xxx
Taking into consideration the countrys unusual situation, and in
order not to unnecessarily aggravate the same, the
NTCwarns all radio stations and television network
owners/operators that the conditions of the authorization and
permits issued to them by Government like the Provisional
Authority and/or Certificate of Authority explicitly provides that
said companies shall not use [their] stations for the
broadcasting or telecasting of false information or willful
misrepresentation. Relative thereto, it has come to the
attention of the [NTC] that certain personalities are in
possession of alleged taped conversations which they claim
involve the President of the Philippines and a Commissioner of
the COMELEC regarding supposed violation of election laws.
These personalities have admitted that the taped
conversations are products of illegal wiretapping operations.
Considering that these taped conversations have not been
duly authenticated nor could it be said at this time that the
tapes contain an accurate or truthful representation of what
was recorded therein, it is the position of the [NTC] that the
continuous airing or broadcast of the said taped conversations
by radio and television stations is a continuing violation of the
Anti-Wiretapping Law and the conditions of the Provisional
Authority and/or Certificate of Authority issued to these radio
and television stations. It has been subsequently established
that the said tapes are false and/or fraudulent after a
prosecution or appropriate investigation, the concerned radio
and television companies are hereby warned that their
broadcast/airing of such false information and/or willful
misrepresentation shall be just cause for the suspension,
revocation and/or cancellation of the licenses or authorizations
issued to the said companies.
In addition to the above, the [NTC] reiterates the pertinent NTC
circulars on program standards to be observed by radio and

television stations. NTC Memorandum Circular 111-12-85

explicitly states, among others, that all radio broadcasting and
television stations shall, during any broadcast or telecast, cut
off from the air the speech, play, act or scene or other matters
being broadcast or telecast the tendency thereof is to
disseminate false information or such other willful
misrepresentation, or to propose and/or incite treason,
rebellion or sedition. The foregoing directive had been
reiterated by NTC Memorandum Circular No. 22-89, which, in
addition thereto, prohibited radio, broadcasting and television
stations from using their stations to broadcast or telecast any
speech, language or scene disseminating false information or
willful misrepresentation, or inciting, encouraging or assisting in
subversive or treasonable acts.
The [NTC] will not hesitate, after observing the requirements of
due process, to apply with full force the provisions of said
Circulars and their accompanying sanctions on erring radio
and television stations and their owners/operators.
6.

On June 14, 2005, NTC held a dialogue with the Board of Directors of
the Kapisanan ng mga Brodkaster sa Pilipinas (KBP).NTC allegedly assured
the KBP that the press release did not violate the constitutional freedom of
speech, of expression, and of the press, and the right to
information. Accordingly, NTC and KBP issued a Joint Press Statement which
states, among others, that: [12]
NTC respects and will not hinder freedom of the press and the
right to information on matters of public concern.KBP & its
members have always been committed to the exercise of
press freedom with high sense of responsibility and discerning
judgment of fairness and honesty.
NTC did not issue any MC [Memorandum Circular] or Order
constituting a restraint of press freedom or censorship. The
NTC further denies and does not intend to limit or restrict the
interview of members of the opposition or free expression of
views.
What is being asked by NTC is that the exercise of press freedom
[be] done responsibly.

KBP has program standards that KBP members will observe in the
treatment of news and public affairs programs. These include
verification of sources, non-airing of materials that would
constitute inciting to sedition and/or rebellion.
The KBP Codes also require that no false statement or willful
misrepresentation is made in the treatment of news or
commentaries.
The supposed wiretapped tapes should be treated with sensitivity
and handled responsibly giving due consideration to the
process being undertaken to verify and validate the
authenticity and actual content of the same.

C. The Petition
Petitioner Chavez filed a petition under Rule 65 of the Rules of Court against
respondents Secretary Gonzales and the NTC, praying for the issuance of the writs
of certiorari and prohibition, as extraordinary legal remedies, to annul void
proceedings, and to prevent the unlawful, unconstitutional and oppressive
exercise of authority by the respondents.[13]
Alleging that the acts of respondents are violations of the freedom on
expression and of the press, and the right of the people to information on matters
of public concern,[14] petitioner specifically asked this Court:
[F]or [the] nullification of acts, issuances, and orders of respondents
committed or made since June 6, 2005 until the present that curtail
the publics rights to freedom of expression and of the press, and to
information on matters of public concern specifically in relation to
information regarding the controversial taped conversion of
President Arroyo and for prohibition of the further commission of such
acts, and making of such issuances, and orders by respondents. [15]
Respondents[16] denied that the acts transgress the Constitution, and
questioned petitioners legal standing to file the petition.Among the arguments
they raised as to the validity of the fair warning issued by respondent NTC, is that
broadcast media enjoy lesser constitutional guarantees compared to print

media, and the warning was issued pursuant to the NTCs mandate to regulate
the telecommunications industry. [17] It was also stressed that most of the
[television] and radio stations continue, even to this date, to air the tapes, but of
late within the parameters agreed upon between the NTC and KBP. [18]
D. THE PROCEDURAL THRESHOLD: LEGAL STANDING
To be sure, the circumstances of this case make the constitutional
challenge peculiar. Petitioner, who is not a member of the broadcast media,
prays that we strike down the acts and statements made by respondents as
violations of the right to free speech, free expression and a free press. For another,
the recipients of the press statements have not come forwardneither intervening
nor joining petitioner in this action. Indeed, as a group, they issued a joint
statement with respondent NTC that does not complain about restraints on
freedom of the press.
It would seem, then, that petitioner has not met the requisite legal standing,
having failed to allege such a personal stake in the outcome of the controversy
as to assure that concrete adverseness which sharpens the presentation of issues
upon which the Court so largely depends for illumination of difficult constitutional
questions. [19]
But as early as half a century ago, we have already held that where serious
constitutional questions are involved, the transcendental importance to the
public of these cases demands that they be settled promptly and definitely,
brushing aside if we must, technicalities of procedure. [20] Subsequently, this Court
has repeatedly and consistently refused to wield procedural barriers as
impediments to its addressing and resolving serious legal questions that greatly
impact on public interest,[21] in keeping with the Court's duty under the 1987
Constitution to determine whether or not other branches of government have
kept themselves within the limits of the Constitution and the laws and that they
have not abused the discretion given to them.
Thus, in line with the liberal policy of this Court on locus standi when a case involves
an issue of overarching significance to our society,[22] we therefore brush aside
technicalities of procedure and take cognizance of this petition,[23] seeing as it

involves a challenge to the most exalted of all the civil rights, the freedom of
expression. The petition raises other issues like the extent of the right to information
of the public. It is fundamental, however, that we need not address all issues but
only the most decisive one which in the case at bar is whether the acts of the
respondents abridge freedom of speech and of the press.
But aside from the primordial issue of determining whether free speech and
freedom of the press have been infringed, the case at bar also gives this Court the
opportunity: (1) to distill the essence of freedom of speech and of the press now
beclouded by the vagaries of motherhood statements; (2) to clarify the types of
speeches and their differing restraints allowed by law; (3) to discuss the core
concepts of prior restraint, content-neutral and content-based regulations and
their constitutional standard of review; (4) to examine the historical difference in
the treatment of restraints between print and broadcast media and stress the
standard of review governing both; and (5) to call attention to the ongoing blurring
of the lines of distinction between print and broadcast media.
E. RE-EXAMINING THE LAW ON FREEDOM OF SPEECH,
OF EXPRESSION AND OF THE PRESS
No law shall be passed abridging the freedom of speech, of
expression, or of the press, or the right of the people peaceably to
assemble and petition the government for redress of grievances.[24]
Freedom of expression has gained recognition as a fundamental principle
of every democratic government, and given a preferred right that stands on a
higher level than substantive economic freedom or other liberties. The cognate
rights codified byArticle III, Section 4 of the Constitution, copied almost verbatim
from the First Amendment of the U.S. Bill of Rights,[25] were considered the
necessary consequence of republican institutions and the complement of free
speech.[26] This preferred status of free speech has also been codified at the
international level, its recognition now enshrined in international law as a
customary norm that binds all nations.[27]
In the Philippines, the primacy and high esteem accorded freedom of
expression is a fundamental postulate of our constitutional system. [28] This right was

elevated to constitutional status in the 1935, the 1973 and the 1987 Constitutions,
reflecting our own lesson of history, both political and legal, that freedom of
speech is an indispensable condition for nearly every other form of
freedom.[29] Moreover, our history shows that the struggle to protect the freedom
of speech, expression and the press was, at bottom, the struggle for the
indispensable preconditions for the exercise of other freedoms.[30] For it is only
when the people have unbridled access to information and the press that they
will be capable of rendering enlightened judgments. In the oft-quoted words of
Thomas Jefferson, we cannot both be free and ignorant.
E.1. ABSTRACTION OF FREE SPEECH
Surrounding the freedom of speech clause are various concepts that we
have adopted as part and parcel of our own Bill of Rights provision on this basic
freedom.[31] What is embraced under this provision was discussed exhaustively by
the Court inGonzales v. Commission on Elections, [32] in which it was held:
At the very least, free speech and free press may be identified with
the liberty to discuss publicly and truthfully any matter of public
interest without censorship and punishment. There is to be no
previous restraint on the communication of views or subsequent
liability whether in libel suits, prosecution for sedition, or action for
damages, or contempt proceedings unless there be a clear and
present danger of substantive evil that Congress has a right to
prevent. [33]
Gonzales further explained that the vital need of a constitutional
democracy for freedom of expression is undeniable, whether as a means of
assuring individual self-fulfillment; of attaining the truth; of assuring participation
by the people in social, including political, decision-making; and of maintaining
the balance between stability and change.[34] As early as the 1920s, the trend as
reflected in Philippine and American decisions was to recognize the broadest
scope and assure the widest latitude for this constitutional guarantee. The trend
represents a profound commitment to the principle that debate on public issue
should be uninhibited, robust, and wide-open. [35]

Freedom of speech and of the press means something more than the right
to approve existing political beliefs or economic arrangements, to lend support
to official measures, and to take refuge in the existing climate of opinion on any
matter of public consequence.[36] When atrophied, the right becomes
meaningless.[37] The right belongs as well -- if not more to those who question, who
do not conform, who differ.[38] The ideas that may be expressed under this
freedom are confined not only to those that are conventional or acceptable to
the majority. To be truly meaningful, freedom of speech and of the press should
allow and even encourage the articulation of the unorthodox view, though it be
hostile to or derided by others; or though such view induces a condition of unrest,
creates dissatisfaction with conditions as they are, or even stirs people to
anger.[39] To paraphrase Justice Holmes, it is freedom for the thought that we hate,
no less than for the thought that agrees with us. [40]
The scope of freedom of expression is so broad that it extends protection to nearly
all forms of communication. It protects speech, print and assembly regarding
secular as well as political causes, and is not confined to any particular field of
human interest. The protection covers myriad matters of public interest or concern
embracing all issues, about which information is needed or appropriate, so as to
enable members of society to cope with the exigencies of their period. The
constitutional protection assures the broadest possible exercise of free speech
and free press for religious, political, economic, scientific, news, or informational
ends, inasmuch as the Constitution's basic guarantee of freedom to advocate
ideas is not confined to the expression of ideas that are conventional or shared
by a majority.
The constitutional protection is not limited to the exposition of ideas. The
protection afforded free speech extends to speech or publications that are
entertaining as well as instructive or informative. Specifically, in Eastern
Broadcasting Corporation (DYRE) v. Dans,[41] this Court stated that all forms of
media, whether print or broadcast, are entitled to the broad protection of the
clause on freedom of speech and of expression.
While all forms of communication are entitled to the broad protection of
freedom of expression clause, the freedom of film, television and radio

broadcasting is somewhat lesser in scope than the freedom accorded to

newspapers and other print media, as will be subsequently discussed.
E.2. DIFFERENTIATION: THE LIMITS & RESTRAINTS OF FREE SPEECH
From the language of the specific constitutional provision, it would appear that
the right to free speech and a free press is not susceptible of any limitation. But
the realities of life in a complex society preclude a literal interpretation of the
provision prohibiting the passage of a law that would abridge such freedom. For
freedom of expression is not an absolute, [42] nor is it an unbridled license that gives
immunity for every possible use of language and prevents the punishment of
those who abuse this freedom.
Thus, all speech are not treated the same. Some types of speech may be
subjected to some regulation by the State under its pervasive police power, in
order that it may not be injurious to the equal right of others or those of the
community or society.[43]The difference in treatment is expected because the
relevant interests of one type of speech, e.g., political speech, may vary from
those of another, e.g., obscene speech. Distinctions have therefore been made
in the treatment, analysis, and evaluation of the permissible scope of restrictions
on various categories of speech. [44] We have ruled, for example, that in our
jurisdiction slander or libel, lewd and obscene speech, as well as fighting words
are not entitled to constitutional protection and may be penalized.[45]
Moreover, the techniques of reviewing alleged restrictions on speech
(overbreadth, vagueness, and so on) have been applied differently to each
category, either consciously or unconsciously. [46] A study of free speech
jurisprudencewhether here or abroadwill reveal that courts have developed
different tests as to specific types or categories of speech in
concrete situations; i.e.,subversive speech; obscene speech; the speech of the
broadcast media and of the traditional print media; libelous speech; speech
affecting associational rights; speech before hostile audiences; symbolic speech;
speech that affects the right to a fair trial; and speech associated with rights of
assembly and petition. [47]
Generally, restraints on freedom of speech and expression are evaluated
by either or a combination of three tests, i.e., (a) thedangerous tendency
doctrine which permits limitations on speech once a rational connection has

been established between the speech restrained and the danger

contemplated; [48] (b) the balancing of interests tests, used as a standard when
courts need to balance conflicting social values and individual interests, and
requires a conscious and detailed consideration of the interplay of interests
observable in a given situation of type of situation; [49] and (c) the clear and
present danger rule which rests on the premise that speech may be restrained
because there is substantial danger that the speech will likely lead to an evil the
government has a right to prevent. This rule requires that the evil consequences
sought to be prevented must be substantive, extremely serious and the degree
of imminence extremely high. [50]
As articulated in our jurisprudence, we have applied either the dangerous
tendency doctrine or clear and present danger test to resolve free speech
challenges. More recently, we have concluded that we have generally adhered
to the clear and present danger test. [51]
E.3. IN FOCUS: FREEDOM OF THE PRESS
Much has been written on the philosophical basis of press freedom as part
of the larger right of free discussion and expression. Its practical importance,
though, is more easily grasped. It is the chief source of information on current
affairs. It is the most pervasive and perhaps most powerful vehicle of opinion on
public questions. It is the instrument by which citizens keep their government
informed of their needs, their aspirations and their grievances. It is the sharpest
weapon in the fight to keep government responsible and efficient. Without a
vigilant press, the mistakes of every administration would go uncorrected and its
abuses unexposed. As Justice Malcolm wrote in United States v. Bustos:[52]
The interest of society and the maintenance of good government
demand a full discussion of public affairs. Complete liberty to
comment on the conduct of public men is a scalpel in the case of
free speech. The sharp incision of its probe relieves the abscesses of
officialdom. Men in public life may suffer under a hostile and unjust
accusation; the wound can be assuaged with the balm of clear
conscience.

Its contribution to the public weal makes freedom of the press deserving of extra
protection. Indeed, the press benefits from certain ancillary rights. The productions
of writers are classified as intellectual and proprietary. Persons who interfere or
defeat the freedom to write for the press or to maintain a periodical publication
are liable for damages, be they private individuals or public officials.
E.4. ANATOMY OF RESTRICTIONS: PRIOR RESTRAINT, CONTENT-NEUTRAL AND
CONTENT-BASED REGULATIONS
Philippine jurisprudence, even as early as the period under the 1935 Constitution,
has recognized four aspects of freedom of the press. These are (1) freedom from
prior restraint; (2) freedom from punishment subsequent to publication; [53] (3)
freedom of access to information; [54] and (4) freedom of circulation.[55]
Considering that petitioner has argued that respondents press statement
constitutes a form of impermissible prior restraint, a closer scrutiny of this principle
is in order, as well as its sub-specie of content-based (as distinguished from
content-neutral) regulations.
At this point, it should be noted that respondents in this case deny that their
acts constitute prior restraints. This presents a unique tinge to the present
challenge, considering that the cases in our jurisdiction involving prior restrictions
on speech never had any issue of whether the governmental act or
issuance actually constituted prior restraint. Rather, the determinations were
always about whether the restraint was justified by the Constitution.
Be that as it may, the determination in every case of whether there is an
impermissible restraint on the freedom of speech has always been based on the
circumstances of each case, including the nature of the restraint. And in its
application in our jurisdiction, the parameters of this principle have been etched
on a case-to-case basis, always tested by scrutinizing the governmental issuance
or act against the circumstances in which they operate, and then determining the
appropriate test with which to evaluate.
Prior restraint refers to official governmental restrictions on the press or other forms
of expression in advance of actual publication or dissemination.[56] Freedom from

prior restraint is largely freedom from government censorship of publications,

whatever the form of censorship, and regardless of whether it is wielded by the
executive, legislative or judicial branch of the government. Thus, it precludes
governmental acts that required approval of a proposal to publish; licensing or
permits as prerequisites to publication including the payment of license taxes for
the privilege to publish; and even injunctions against publication. Even the closure
of the business and printing offices of certain newspapers, resulting in the
discontinuation of their printing and publication, are deemed as previous restraint
or censorship. [57] Any law or official that requires some form of permission to be
had before publication can be made, commits an infringement of the
constitutional right, and remedy can be had at the courts.
Given that deeply ensconced in our fundamental law is the hostility against all
prior restraints on speech, and any act that restrains speech is presumed
invalid,[58] and any act that restrains speech is hobbled by the presumption of
invalidity and should be greeted with furrowed brows, [59] it is important to stress
not all prior restraints on speech are invalid. Certain previous restraints may be
permitted by the Constitution, but determined only upon a careful evaluation of
the challenged act as against the appropriate test by which it should be
measured against.
Hence, it is not enough to determine whether the challenged act constitutes
some form of restraint on freedom of speech. A distinction has to be made
whether the restraint is (1) a content-neutral regulation, i.e., merely concerned
with the incidents of the speech, or one that merely controls the time, place or
manner, and under well defined standards;[60] or (2) a content-based restraint or
censorship, i.e., the restriction is based on the subject matter of the utterance or
speech. [61] The cast of the restriction determines the test by which the challenged
act is assayed with.
When the speech restraints take the form of a content-neutral regulation, only a
substantial governmental interest is required for its validity.[62] Because regulations
of this type are not designed to suppress any particular message, they are not
subject to the strictest form of judicial scrutiny but an intermediate
approachsomewhere between the mere rationality that is required of any other
law and the compelling interest standard applied to content-based

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

Also, the incidental restriction on speech must be no greater than what is essential
to the furtherance of that interest. [70] A restriction that is so broad that it
encompasses more than what is required to satisfy the governmental interest will
be invalidated.[71] The regulation, therefore, must be reasonable and narrowly
drawn to fit the regulatory purpose, with the least restrictive means undertaken. [72]
Thus, when the prior restraint partakes of a content-neutral regulation, it is
subjected
to
an
intermediate
review.
A
content-based
regulation,[73] however, bears a heavy presumption of invalidity and is measured
against the clear and present danger rule. The latter will pass constitutional muster
only if justified by a compelling reason, and the restrictions imposed are neither
overbroad nor vague. [74]
Applying the foregoing, it is clear that the challenged acts in the case at bar need
to be subjected to the clear and present danger rule, as they are contentbased restrictions. The acts of respondents focused solely on but one objecta
specific content fixed as these were on the alleged taped conversations
between the President and a COMELEC official. Undoubtedly these did not
merely provide regulations as to the time, place or manner of the dissemination
of speech or expression.
E.5. Dichotomy of Free Press: Print v. Broadcast Media
Finally, comes respondents argument that the challenged act is valid on
the ground that broadcast media enjoys free speech rights that are lesser in
scope to that of print media. We next explore and test the validity of this
argument, insofar as it has been invoked to validate a content-based restriction
on broadcast media.
The regimes presently in place for each type of media differ from one
other. Contrasted with the regime in respect of books, newspapers, magazines
and traditional printed matter, broadcasting, film and video have been
subjected to regulatory schemes.
The dichotomy between print and broadcast media traces its origins in the
United States. There, broadcast radio and television have been held to
have
limited
First
Amendment
protection,[75]
and
U.S.
Courts

have excluded broadcast media from the application of the strict scrutiny
standard
that
they
would
otherwise
apply
to
content-based
restrictions.[76] According to U.S. Courts, the three major reasons why broadcast
media stands apart from print media are: (a) the scarcity of the frequencies by
which the medium operates [i.e., airwaves are physically limited while print
medium may be limitless]; [77] (b) its pervasiveness as a medium; and (c) its unique
accessibility to children.[78] Because cases involving broadcast media need not
follow precisely the same approach that [U.S. courts] have applied to other
media, nor go so far as to demand that such regulations serve compelling
government interests,[79] they are decided on whether the governmental
restriction is narrowly tailored to further a substantial governmental interest,[80] or
the intermediate test.
As pointed out by respondents, Philippine jurisprudence has also echoed a
differentiation in treatment between broadcast and print media. Nevertheless, a
review of Philippine case law on broadcast media will show thatas we have
deviated with the American conception of the Bill of Rights[81] we likewise did not
adopt en masse the U.S. conception of free speech as it relates to broadcast
media, particularly as to which test would govern content-based prior restraints.
Our cases show two distinct features of this dichotomy. First, the difference
in treatment, in the main, is in the regulatory scheme applied to broadcast media
that is not imposed on traditional print media, and narrowly confined to
unprotected speech (e.g., obscenity, pornography, seditious and inciting
speech), or is based on a compelling government interest that also has
constitutional protection, such as national security or the electoral process.
Second, regardless of the regulatory schemes that broadcast media is
subjected to, the Court has consistently held that the clear and present danger
test applies to content-based restrictions on media, without making a distinction
as to traditional print or broadcast media.
The distinction between broadcast and traditional print media was
first enunciated in Eastern Broadcasting Corporation (DYRE) v. Dans,[82] wherein it
was held that [a]ll forms of media, whether print or broadcast, are entitled to the
broad protection of the freedom of speech and expression clause. The test for

limitations on freedom of expression continues to be the clear and present danger

rule[83]
Dans was a case filed to compel the reopening of a radio station which had
been summarily closed on grounds of national security. Although the issue had
become moot and academic because the owners were no longer interested to
reopen, the Court still proceeded to do an analysis of the case and made
formulations to serve as guidelines for all inferior courts and bodies exercising
quasi-judicial functions. Particularly, the Court made a detailed exposition as to
what needs be considered in cases involving broadcast media. Thus:[84]
xxx xxx xxx
(3) All forms of media, whether print or broadcast, are entitled to the
broad protection of the freedom of speech and expression
clause. The test for limitations on freedom of expression
continues to be the clear and present danger rule, that words
are used in such circumstances and are of such a nature as to
create a clear and present danger that they will bring about
the substantive evils that the lawmaker has a right to prevent,
In his Constitution of the Philippines (2nd Edition, pp. 569-570)
Chief Justice Enrique M. Fernando cites at least nine of our
decisions which apply the test. More recently, the clear and
present danger test was applied in J.B.L. Reyes in behalf of
the Anti-Bases Coalition v. Bagatsing. (4) The clear and present
danger test, however, does not lend itself to a simplistic and all
embracing interpretation applicable to all utterances in all
forums.
Broadcasting has to be licensed. Airwave frequencies have to
be allocated among qualified users. A broadcast corporation
cannot simply appropriate a certain frequency without regard
for government regulation or for the rights of others.
All forms of communication are entitled to the broad
protection of the freedom of expression clause. Necessarily,
however, the freedom of television and radio broadcasting is
somewhat lesser in scope than the freedom accorded to
newspaper and print media.
The American Court in Federal Communications Commission
v. Pacifica Foundation (438 U.S. 726), confronted with a

patently offensive and indecent regular radio program,

explained why radio broadcasting, more than other forms of
communications, receives the most limited protection from the
free expression clause. First, broadcast media have
established a uniquely pervasive presence in the lives of all
citizens, Material presented over the airwaves confronts the
citizen, not only in public, but in the privacy of his home.
Second, broadcasting is uniquely accessible to children.
Bookstores and motion picture theaters may be prohibited
from making certain material available to children, but the
same selectivity cannot be done in radio or television, where
the listener or viewer is constantly tuning in and out.
Similar considerations apply in the area of national security.
The broadcast media have also established a uniquely
pervasive presence in the lives of all Filipinos. Newspapers and
current books are found only in metropolitan areas and in the
poblaciones of municipalities accessible to fast and regular
transportation. Even here, there are low income masses who
find the cost of books, newspapers, and magazines beyond
their humble means. Basic needs like food and shelter perforce
enjoy high priorities.
On the other hand, the transistor radio is found everywhere.
The television set is also becoming universal. Their message
may be simultaneously received by a national or regional
audience of listeners including the indifferent or unwilling who
happen to be within reach of a blaring radio or television set.
The materials broadcast over the airwaves reach every person
of every age, persons of varying susceptibilities to persuasion,
persons of different I.Q.s and mental capabilities, persons
whose reactions to inflammatory or offensive speech would be
difficult to monitor or predict. The impact of the vibrant speech
is forceful and immediate. Unlike readers of the printed work,
the radio audience has lesser opportunity to cogitate analyze,
and reject the utterance.
(5) The clear and present danger test, therefore, must take the
particular circumstances of broadcast media into account.
The supervision of radio stations-whether by government or
through self-regulation by the industry itself calls for thoughtful,
intelligent and sophisticated handling.
The government has a right to be protected against
broadcasts which incite the listeners to violently overthrow it.

Radio and television may not be used to organize a rebellion

or to signal the start of widespread uprising. At the same time,
the people have a right to be informed. Radio and television
would have little reason for existence if broadcasts are limited
to bland, obsequious, or pleasantly entertaining utterances.
Since they are the most convenient and popular means of
disseminating varying views on public issues, they also deserve
special protection.
(6) The freedom to comment on public affairs is essential to the vitality
of a representative democracy. In the 1918 case ofUnited
States v. Bustos (37 Phil. 731) this Court was already stressing
that.
The interest of society and the maintenance of good
government demand a full discussion of public affairs.
Complete liberty to comment on the conduct of public men is
a scalpel in the case of free speech. The sharp incision of its
probe relieves the abscesses of officialdom. Men in public life
may suffer under a hostile and an unjust accusation; the
wound can be assuaged with the balm of a clear conscience.
A public officer must not be too thin-skinned with reference to
comment upon his official acts. Only thus can the intelligence
and dignity of the individual be exalted.
(7) Broadcast stations deserve the special protection given to all
forms of media by the due process and freedom of expression
clauses of the Constitution. [Citations omitted]

It is interesting to note that the Court in Dans adopted the arguments found in U.S.
jurisprudence to justify differentiation of treatment (i.e., the scarcity, pervasiveness
and accessibility to children), but only after categorically declaring that the test
for limitations on freedom of expression continues to be the clear and present
danger rule, for all forms of media, whether print or broadcast. Indeed, a close
reading of the above-quoted provisions would show that the differentiation that
the Court in Dansreferred to was narrowly restricted to what is otherwise deemed
as unprotected speech (e.g., obscenity, national security, seditious and inciting
speech), or to validate a licensing or regulatory scheme necessary to allocate
the limited broadcast frequencies, which is absent in print media. Thus, when this
Court declared in Dans that the freedom given to broadcast media was
somewhat lesser in scope than the freedom accorded to newspaper and print

media, it was not as to what test should be applied, but the context by which
requirements of licensing, allocation of airwaves, and application of norms to
unprotected speech. [85]
In the same year that the Dans case was decided, it was reiterated in Gonzales
v. Katigbak,[86] that the test to determine free expression challenges was the clear
and present danger, again without distinguishing the media.[87] Katigbak, strictly
speaking, does not treat of broadcast media but motion pictures. Although the
issue involved obscenity standards as applied to movies,[88] the Court concluded
its decision with the following obiter dictum that a less liberal approach would be
used to resolve obscenity issues in television as opposed to motion pictures:
All that remains to be said is that the ruling is to be limited to the
concept of obscenity applicable to motion pictures.It is the
consensus of this Court that where television is concerned, a less
liberal approach calls for observance. This is so because unlike
motion pictures where the patrons have to pay their way, television
reaches every home where there is a set. Children then will likely be
among the avid viewers of the programs therein shown..It cannot
be denied though that the State as parens patriae is called upon
to manifest an attitude of caring for the welfare of the young.
More recently, in resolving a case involving the conduct of exit polls and
dissemination of the results by a broadcast company, we reiterated that the clear
and present danger rule is the test we unquestionably adhere to issues that
involve freedoms of speech and of the press.[89]
This is not to suggest, however, that the clear and present danger rule has been
applied to all cases that involve the broadcast media. The rule applies to all
media, including broadcast, but only when the challenged act is a contentbased regulation that infringes on free speech, expression and the press. Indeed,
in Osmena v. COMELEC,[90] which also involved broadcast media, the Court
refused to apply the clear and present danger rule to a COMELEC regulation of
time and manner of advertising of political advertisements because the
challenged restriction was content-neutral.[91] And in a case involving due
process and equal protection issues, the Court in Telecommunications and
Broadcast Attorneys of the Philippines v. COMELEC[92] treated a restriction
imposed on a broadcast media as a reasonable condition for the grant of the
medias franchise, without going into which test would apply.

That broadcast media is subject to a regulatory regime absent in print media is

observed also in other jurisdictions, where the statutory regimes in place over
broadcast media include elements of licensing, regulation by administrative
bodies, and censorship.As explained by a British author:

The reasons behind treating broadcast and films differently from the
print media differ in a number of respects, but have a common
historical basis. The stricter system of controls seems to have been
adopted in answer to the view that owing to their particular impact
on audiences, films, videos and broadcasting require a system of
prior restraints, whereas it is now accepted that books and other
printed media do not. These media are viewed as beneficial to the
public in a number of respects, but are also seen as possible sources
of harm.[93]

Parenthetically, these justifications are now the subject of debate. Historically, the
scarcity of frequencies was thought to provide a rationale. However, cable and
satellite television have enormously increased the number of actual and
potential channels. Digital technology will further increase the number of
channels available. But still, the argument persists that broadcasting is the most
influential means of communication, since it comes into the home, and so much
time is spent watching television. Since it has a unique impact on people and
affects children in a way that the print media normally does not, that regulation
is said to be necessary in order to preserve pluralism. It has been argued further
that a significant main threat to free expressionin terms of diversitycomes not from
government, but from private corporate bodies. These developments show a
need for a reexamination of the traditional notions of the scope and extent of
broadcast media regulation. [94]
The emergence of digital technology -- which has led to the convergence of
broadcasting, telecommunications and the computer industry -- has likewise led
to the question of whether the regulatory model for broadcasting will continue to
be appropriate in the converged environment.[95] Internet, for example, remains
largely unregulated, yet the Internet and the broadcast media share
similarities, [96] and the rationales used to support broadcast regulation apply
equally to the Internet.[97] Thus, it has been argued that courts, legislative bodies
and the government agencies regulating media must agree to regulate both,
regulate neither or develop a new regulatory framework and rationale to justify
the differential treatment. [98]
F. The Case At Bar
Having settled the applicable standard to content-based restrictions on
broadcast media, let us go to its application to the case at bar.To
recapitulate, a governmental action that restricts freedom of speech
or
of
the
press
based
on
content
is
given
the
strictest
scrutiny, with the government having the burden of overcoming the
presumed unconstitutionality by the clear and present danger rule. This rule
applies equally to all kinds of media, including broadcast media.

This outlines the procedural map to follow in cases like the one at bar as it spells
out the following: (a) the test; (b) the presumption; (c) the burden of proof; (d)
the party to discharge the burden; and (e) the quantum of evidence
necessary. On the basis of the records of the case at bar, respondents who have
the burden to show that these acts do not abridge freedom of speech and of the
press failed to hurdle the clear and present danger test. It appears that the great
evil which government wants to prevent is the airing of a tape recording in
alleged violation of the anti-wiretapping law. The records of the case at bar,
however, are confused and confusing, and respondents evidence falls short of
satisfying the clear and present danger test. Firstly, the various statements of the
Press Secretary obfuscate the identity of the voices in the tape
recording. Secondly, the integrity of the taped conversation is also suspect. The
Press Secretary showed to the public two versions, one supposed to be a
complete version and the other, an altered version. Thirdly, the evidence of the
respondents on the whos and the hows of the wiretapping act is ambivalent,
especially considering the tapes different versions. The identity of the wiretappers, the manner of its commission and other related and relevant proofs are
some of the invisibles of this case. Fourthly, given all these unsettled facets of the
tape, it is even arguable whether its airing would violate the anti-wiretapping law.
We rule that not every violation of a law will justify straitjacketing the exercise of
freedom of speech and of the press. Ourlaws are of different kinds and doubtless,
some of them provide norms of conduct which even if violated have only an
adverse effect on a persons private comfort but does not endanger national
security. There are laws of great significance but their violation,by itself and
without more, cannot support suppression of free speech and free press. In
fine, violation of law is just a factor, a vital one to be sure, which should be
weighed in adjudging whether to restrain freedom of speech and of the press.
The totality of the injurious effects of the violation to private and public interest
must be calibrated in light of the preferred status accorded by the Constitution
and by related international covenants protecting freedom of speech and of the
press. In calling for a careful and calibrated measurement of the circumference
of all these factors to determine compliance with the clear and present danger
test, the Court should not be misinterpreted as devaluing violations of law. By all
means, violations of law should be vigorouslyprosecuted by the
State for they breed their own evil consequence. But to repeat, the need to

prevent
their
violation
cannot
per
setrump
the
exercise
of
free speech and free press, a preferred right whose breach can lead to greater
evils. For this failure of the respondents alone to offer proof to satisfy the clear and
present danger test, the Court has no option but to uphold the exercise of free
speech and free press. There is no showing that the feared violation of the antiwiretapping law clearly endangers the national security of the State.
This is not all the faultline in the stance of the respondents. We slide to the issue of
whether the mere press statements of the Secretary of Justice and of the NTC in
question constitute a form of content-based prior restraint that has transgressed
the Constitution. In resolving this issue, we hold that it is not decisive that the press
statements made by respondents were not reduced in or followed up with formal
orders or circulars. It is sufficient that the press statements were made by
respondents while in the exercise of their official functions. Undoubtedly,
respondent Gonzales made his statements as Secretary of Justice, while the NTC
issued its statement as the regulatory body of media. Any act done, such as a
speech uttered, for and on behalf of the government in an official capacity is
covered by the rule on prior restraint. The concept of an act does not limit itself to
acts already converted to a formal order or official circular. Otherwise, the non
formalization of an act into an official order or circular will result in the easy
circumvention of the prohibition on prior restraint. The press statements at bar are
acts that should be struck down as they constitute impermissible forms of prior
restraints on the right to free speech and press.
There is enough evidence of chilling effect of the complained acts on
record. The warnings given to media came from no less the NTC, a regulatory
agency that can cancel the Certificate of Authority of the radio and broadcast
media. They also came from the Secretary of Justice, the alter ego of the
Executive, who wields the awesome power to prosecute those perceived to be
violating the laws of the land. After the warnings, the KBP inexplicably joined the
NTC in issuing an ambivalent Joint Press Statement. After the warnings, petitioner
Chavez was left alone to fight this battle for freedom of speech and of the
press. This silence on the sidelines on the part of some media practitioners is too
deafening to be the subject of misinterpretation.

The constitutional imperative for us to strike down unconstitutional acts should

always be exercised with care and in light of the distinct facts of each case. For
there are no hard and fast rules when it comes to slippery constitutional questions,
and the limits and construct of relative freedoms are never set in stone. Issues
revolving on their construct must be decided on a case to case basis, always
based on the peculiar shapes and shadows of each case. But in cases where the
challenged acts are patent invasions of a constitutionally protected right, we
should be swift in striking them down as nullities per se. A blow too soon struck for
freedom is preferred than a blow too late.
In VIEW WHEREOF, the petition is GRANTED. The writs of certiorari and prohibition
are hereby issued, nullifying the official statements made by respondents on June
8, and 11, 2005 warning the media on airing the alleged wiretapped conversation
between the President and other personalities, for constituting unconstitutional
prior restraint on the exercise of freedom of speech and of the press
SO ORDERED.

G.R. No. 202666

September 29, 2014

RHONDA AVE S. VIVARES and SPS. MARGARITA and DAVID SUZARA, Petitioners,
vs.
ST. THERESA'S COLLEGE, MYLENE RHEZA T. ESCUDERO, and JOHN DOES, Respondents.
DECISION
VELASCO, JR., J.:
The individual's desire for privacy is never absolute, since participation in society is an equally
powerful desire. Thus each individual is continually engaged in a personal adjustment process in
which he balances the desire for privacy with the desire for disclosure and communication of himself
to others, in light of the environmental conditions and social norms set by the society in which he
lives.
- Alan Westin, Privacy and Freedom (1967)
The Case
Before Us is a Petition for Review on Certiorari under Rule 45 of the Rules of Court, in relation to
Section 19 of A.M. No. 08-1-16-SC,1 otherwise known as the "Rule on the Writ of Habeas Data."

Petitioners herein assail the July 27, 2012 Decision2 of the Regional Trial Court, Branch 14 in Cebu
City (RTC) in SP. Proc. No. 19251-CEB, which dismissed their habeas data petition.
The Facts
Nenita Julia V. Daluz (Julia) and Julienne Vida Suzara (Julienne), both minors, were, during the
period material, graduating high school students at St. Theresa's College (STC), Cebu City.
Sometime in January 2012, while changing into their swimsuits for a beach party they were about to
attend, Julia and Julienne, along with several others, took digital pictures of themselves clad only in
their undergarments. These pictures were then uploaded by Angela Lindsay Tan (Angela) on her
Facebook3 profile.
Back at the school, Mylene Rheza T. Escudero (Escudero), a computer teacher at STCs high
school department, learned from her students that some seniors at STC posted pictures online,
depicting themselves from the waist up, dressed only in brassieres. Escudero then asked her
students if they knew who the girls in the photos are. In turn, they readily identified Julia, Julienne,
and Chloe Lourdes Taboada (Chloe), among others.
Using STCs computers, Escuderos students logged in to their respective personal Facebook
accounts and showed her photos of the identified students, which include: (a) Julia and Julienne
drinking hard liquor and smoking cigarettes inside a bar; and (b) Julia and Julienne along the streets
of Cebu wearing articles of clothing that show virtually the entirety of their black brassieres. What is
more, Escuderos students claimed that there were times when access to or the availability of the
identified students photos was not confined to the girls Facebook friends,4 but were, in fact,
viewable by any Facebook user.5
Upon discovery, Escudero reported the matter and, through one of her students Facebook page,
showed the photosto Kristine Rose Tigol (Tigol), STCs Discipline-in-Charge, for appropriate action.
Thereafter, following an investigation, STC found the identified students to have deported
themselves in a manner proscribed by the schools Student Handbook, to wit:
1. Possession of alcoholic drinks outside the school campus;
2. Engaging in immoral, indecent, obscene or lewd acts;
3. Smoking and drinking alcoholicbeverages in public places;
4. Apparel that exposes the underwear;
5. Clothing that advocates unhealthy behaviour; depicts obscenity; contains sexually
suggestive messages, language or symbols; and 6. Posing and uploading pictures on the
Internet that entail ample body exposure.
On March 1, 2012, Julia, Julienne, Angela, and the other students in the pictures in question,
reported, as required, to the office of Sr. Celeste Ma. Purisima Pe (Sr. Purisima), STCs high school
principal and ICM6Directress. They claimed that during the meeting, they were castigated and
verbally abused by the STC officials present in the conference, including Assistant Principal
Mussolini S. Yap (Yap), Roswinda Jumiller, and Tigol. What is more, Sr. Purisima informed their
parents the following day that, as part of their penalty, they are barred from joining the
commencement exercises scheduled on March 30, 2012.

A week before graduation, or on March 23, 2012, Angelas mother, Dr. Armenia M. Tan (Tan), filed a
Petition for Injunction and Damages before the RTC of Cebu City against STC, et al., docketed as
Civil Case No. CEB-38594.7 In it, Tan prayed that defendants therein be enjoined from implementing
the sanction that precluded Angela from joining the commencement exercises.
On March 25, 2012,petitioner Rhonda Ave Vivares (Vivares), the mother of Julia, joined the fray as
an intervenor. On March 28, 2012, defendants inCivil Case No. CEB-38594 filed their memorandum,
containing printed copies of the photographs in issue as annexes. That same day, the RTC issued a
temporary restraining order (TRO) allowing the students to attend the graduation ceremony, to which
STC filed a motion for reconsideration.
Despite the issuance of the TRO,STC, nevertheless, barred the sanctioned students from
participating in the graduation rites, arguing that, on the date of the commencement exercises, its
adverted motion for reconsideration on the issuance ofthe TRO remained unresolved.
Thereafter, petitioners filed before the RTC a Petition for the Issuance of a Writ of Habeas Data,
docketed as SP. Proc. No. 19251-CEB8 on the basis of the following considerations:
1. The photos of their children in their undergarments (e.g., bra) were taken for posterity
before they changed into their swimsuits on the occasion of a birthday beach party;
2. The privacy setting of their childrens Facebook accounts was set at "Friends Only." They,
thus, have a reasonable expectation of privacy which must be respected.
3. Respondents, being involved in the field of education, knew or ought to have known of
laws that safeguard the right to privacy. Corollarily, respondents knew or ought to have
known that the girls, whose privacy has been invaded, are the victims in this case, and not
the offenders. Worse, after viewing the photos, the minors were called "immoral" and were
punished outright;
4. The photos accessed belong to the girls and, thus, cannot be used and reproduced
without their consent. Escudero, however, violated their rights by saving digital copies of the
photos and by subsequently showing them to STCs officials. Thus, the Facebook accounts
of petitioners children were intruded upon;
5. The intrusion into the Facebook accounts, as well as the copying of information, data, and
digital images happened at STCs Computer Laboratory; and
6. All the data and digital images that were extracted were boldly broadcasted by
respondents through their memorandum submitted to the RTC in connection with Civil Case
No. CEB-38594. To petitioners, the interplay of the foregoing constitutes an invasion of their
childrens privacy and, thus, prayed that: (a) a writ of habeas databe issued; (b) respondents
be ordered to surrender and deposit with the court all soft and printed copies of the
subjectdata before or at the preliminary hearing; and (c) after trial, judgment be rendered
declaring all information, data, and digital images accessed, saved or stored, reproduced,
spread and used, to have been illegally obtained inviolation of the childrens right to privacy.
Finding the petition sufficient in form and substance, the RTC, through an Order dated July 5, 2012,
issued the writ of habeas data. Through the same Order, herein respondents were directed to file
their verified written return, together with the supporting affidavits, within five (5) working days from
service of the writ.

In time, respondents complied with the RTCs directive and filed their verified written return, laying
down the following grounds for the denial of the petition, viz: (a) petitioners are not the proper parties
to file the petition; (b) petitioners are engaging in forum shopping; (c) the instant case is not one
where a writ of habeas data may issue;and (d) there can be no violation of their right to privacy as
there is no reasonable expectation of privacy on Facebook.
Ruling of the Regional Trial Court
On July 27, 2012, the RTC rendered a Decision dismissing the petition for habeas data. The
dispositive portion of the Decision pertinently states:
WHEREFORE, in view of the foregoing premises, the Petition is hereby DISMISSED.
The parties and media must observe the aforestated confidentiality.
xxxx
SO ORDERED.9
To the trial court, petitioners failed to prove the existence of an actual or threatened violation of the
minors right to privacy, one of the preconditions for the issuance of the writ of habeas data.
Moreover, the court a quoheld that the photos, having been uploaded on Facebook without
restrictions as to who may view them, lost their privacy in some way. Besides, the RTC noted, STC
gathered the photographs through legal means and for a legal purpose, that is, the implementation
of the schools policies and rules on discipline.
Not satisfied with the outcome, petitioners now come before this Court pursuant to Section 19 of the
Rule on Habeas Data.10
The Issues
The main issue to be threshed out inthis case is whether or not a writ of habeas datashould be
issued given the factual milieu. Crucial in resolving the controversy, however, is the pivotal point of
whether or not there was indeed an actual or threatened violation of the right to privacy in the life,
liberty, or security of the minors involved in this case.
Our Ruling
We find no merit in the petition.
Procedural issues concerning the availability of the Writ of Habeas Data
The writ of habeas datais a remedy available to any person whose right to privacy in life, liberty or
security is violated or threatened by an unlawful act or omission of a public official or employee, or of
a private individual or entity engaged in the gathering, collecting or storing of data or information
regarding the person, family, home and correspondence of the aggrieved party.11 It is an independent
and summary remedy designed to protect the image, privacy, honor, information, and freedom of
information of an individual, and to provide a forum to enforce ones right to the truth and to
informational privacy. It seeks to protect a persons right to control information regarding oneself,
particularly in instances in which such information is being collected through unlawful means in order
to achieve unlawful ends.12

In developing the writ of habeas data, the Court aimed to protect an individuals right to informational
privacy, among others. A comparative law scholar has, in fact, defined habeas dataas "a procedure
designed to safeguard individual freedom from abuse in the information age."13 The writ, however,
will not issue on the basis merely of an alleged unauthorized access to information about a
person.Availment of the writ requires the existence of a nexus between the right to privacy on the
one hand, and the right to life, liberty or security on the other.14 Thus, the existence of a persons
right to informational privacy and a showing, at least by substantial evidence, of an actual or
threatened violation of the right to privacy in life, liberty or security of the victim are indispensable
before the privilege of the writ may be extended.15
Without an actionable entitlement in the first place to the right to informational privacy, a habeas
datapetition will not prosper. Viewed from the perspective of the case at bar,this requisite begs this
question: given the nature of an online social network (OSN)(1) that it facilitates and promotes
real-time interaction among millions, if not billions, of users, sans the spatial barriers,16 bridging the
gap created by physical space; and (2) that any information uploaded in OSNs leavesan indelible
trace in the providers databases, which are outside the control of the end-usersis there a right to
informational privacy in OSN activities of its users? Before addressing this point, We must first
resolve the procedural issues in this case.
a. The writ of habeas data is not only confined to cases of extralegal killings and enforced
disappearances
Contrary to respondents submission, the Writ of Habeas Datawas not enacted solely for the
purpose of complementing the Writ of Amparoin cases of extralegal killings and enforced
disappearances.
Section 2 of the Rule on the Writ of Habeas Data provides:
Sec. 2. Who May File. Any aggrieved party may file a petition for the writ of habeas data. However,
in cases of extralegal killings and enforced disappearances, the petition may be filed by:
(a) Any member of the immediate family of the aggrieved party, namely: the spouse, children
and parents; or
(b) Any ascendant, descendant or collateral relative of the aggrieved party within the fourth
civil degreeof consanguinity or affinity, in default of those mentioned in the preceding
paragraph. (emphasis supplied)
Had the framers of the Rule intended to narrow the operation of the writ only to cases of extralegal
killings or enforced disappearances, the above underscored portion of Section 2, reflecting a
variance of habeas data situations, would not have been made.
Habeas data, to stress, was designed "to safeguard individual freedom from abuse in the information
age."17 As such, it is erroneous to limit its applicability to extralegal killings and enforced
disappearances only. In fact, the annotations to the Rule preparedby the Committee on the Revision
of the Rules of Court, after explaining that the Writ of Habeas Data complements the Writ of Amparo,
pointed out that:
The writ of habeas data, however, can be availed of as an independent remedy to enforce ones
right to privacy, more specifically the right to informational privacy. The remedies against the
violation of such right can include the updating, rectification, suppression or destruction of the
database or information or files in possession or in control of respondents.18 (emphasis Ours) Clearly

then, the privilege of the Writ of Habeas Datamay also be availed of in cases outside of extralegal
killings and enforced disappearances.
b. Meaning of "engaged" in the gathering, collecting or storing of data or information
Respondents contention that the habeas data writ may not issue against STC, it not being an entity
engaged in the gathering, collecting or storing of data or information regarding the person, family,
home and correspondence of the aggrieved party, while valid to a point, is, nonetheless, erroneous.
To be sure, nothing in the Rule would suggest that the habeas data protection shall be available only
against abuses of a person or entity engaged in the businessof gathering, storing, and collecting of
data. As provided under Section 1 of the Rule:
Section 1. Habeas Data. The writ of habeas datais a remedy available to any person whose right
to privacy in life, liberty or security is violated or threatened by an unlawful act or omission of a public
official or employee, or of a private individual or entity engaged in the gathering, collecting or storing
of data or information regarding the person, family, home and correspondence of the aggrieved
party. (emphasis Ours)
The provision, when taken in its proper context, as a whole, irresistibly conveys the idea that habeas
data is a protection against unlawful acts or omissions of public officials and of private individuals or
entities engaged in gathering, collecting, or storing data about the aggrieved party and his or her
correspondences, or about his or her family. Such individual or entity need not be in the business of
collecting or storing data.
To "engage" in something is different from undertaking a business endeavour. To "engage" means
"to do or take part in something."19 It does not necessarily mean that the activity must be done in
pursuit of a business. What matters is that the person or entity must be gathering, collecting or
storing said data or information about the aggrieved party or his or her family. Whether such
undertaking carries the element of regularity, as when one pursues a business, and is in the nature
of a personal endeavour, for any other reason or even for no reason at all, is immaterial and such
will not prevent the writ from getting to said person or entity.
To agree with respondents above argument, would mean unduly limiting the reach of the writ to a
very small group, i.e., private persons and entities whose business is data gathering and storage,
and in the process decreasing the effectiveness of the writ asan instrument designed to protect a
right which is easily violated in view of rapid advancements in the information and communications
technologya right which a great majority of the users of technology themselves are not capable of
protecting.
Having resolved the procedural aspect of the case, We now proceed to the core of the controversy.
The right to informational privacy on Facebook
a. The Right to Informational Privacy
The concept of privacyhas, through time, greatly evolved, with technological advancements having
an influential part therein. This evolution was briefly recounted in former Chief Justice Reynato S.
Punos speech, The Common Right to Privacy,20 where he explained the three strands of the right to
privacy, viz: (1) locational or situational privacy;21 (2) informational privacy; and (3) decisional

privacy.22 Of the three, what is relevant to the case at bar is the right to informational privacy
usually defined as the right of individuals to control information about themselves.23
With the availability of numerous avenues for information gathering and data sharing nowadays, not
to mention each systems inherent vulnerability to attacks and intrusions, there is more reason that
every individuals right to control said flow of information should be protected and that each
individual should have at least a reasonable expectation of privacy in cyberspace. Several
commentators regarding privacy and social networking sites, however, all agree that given the
millions of OSN users, "[i]n this [Social Networking] environment, privacy is no longer grounded in
reasonable expectations, but rather in some theoretical protocol better known as wishful thinking."24
It is due to this notion that the Court saw the pressing need to provide for judicial remedies that
would allow a summary hearing of the unlawful use of data or information and to remedy possible
violations of the right to privacy.25 In the same vein, the South African High Court, in its Decision in
the landmark case, H v. W,26promulgated on January30, 2013, recognized that "[t]he law has to take
into account the changing realities not only technologically but also socially or else it will lose
credibility in the eyes of the people. x x x It is imperative that the courts respond appropriately to
changing times, acting cautiously and with wisdom." Consistent with this, the Court, by developing
what may be viewed as the Philippine model of the writ of habeas data, in effect, recognized that,
generally speaking, having an expectation of informational privacy is not necessarily incompatible
with engaging in cyberspace activities, including those that occur in OSNs.
The question now though is up to whatextent is the right to privacy protected in OSNs? Bear in mind
that informational privacy involves personal information. At the same time, the very purpose of OSNs
is socializingsharing a myriad of information,27 some of which would have otherwise remained
personal.
b. Facebooks Privacy Tools: a response to the clamor for privacy in OSN activities
Briefly, the purpose of an OSN is precisely to give users the ability to interact and to stay connected
to other members of the same or different social media platform through the sharing of statuses,
photos, videos, among others, depending on the services provided by the site. It is akin to having a
room filled with millions of personal bulletin boards or "walls," the contents of which are under the
control of each and every user. In his or her bulletin board, a user/owner can post anythingfrom
text, to pictures, to music and videosaccess to which would depend on whether he or she allows
one, some or all of the other users to see his or her posts. Since gaining popularity, the OSN
phenomenon has paved the way to the creation of various social networking sites, includingthe one
involved in the case at bar, www.facebook.com (Facebook), which, according to its developers,
people use "to stay connected with friends and family, to discover whats going on in the world, and
to share and express what matters to them."28
Facebook connections are established through the process of "friending" another user. By sending a
"friend request," the user invites another to connect their accounts so that they can view any and all
"Public" and "Friends Only" posts of the other.Once the request is accepted, the link is established
and both users are permitted to view the other users "Public" or "Friends Only" posts, among others.
"Friending," therefore, allows the user to form or maintain one-to-one relationships with other users,
whereby the user gives his or her "Facebook friend" access to his or her profile and shares certain
information to the latter.29
To address concerns about privacy,30 but without defeating its purpose, Facebook was armed with
different privacy tools designed to regulate the accessibility of a users profile31 as well as information
uploaded by the user. In H v. W,32 the South Gauteng High Court recognized this ability of the users

to "customize their privacy settings," but did so with this caveat: "Facebook states in its policies that,
although it makes every effort to protect a users information, these privacy settings are not
foolproof."33
For instance, a Facebook user canregulate the visibility and accessibility of digital images(photos),
posted on his or her personal bulletin or "wall," except for the usersprofile picture and ID, by
selecting his or her desired privacy setting:
(a) Public - the default setting; every Facebook user can view the photo;
(b) Friends of Friends - only the users Facebook friends and their friends can view the
photo;
(b) Friends - only the users Facebook friends can view the photo;
(c) Custom - the photo is made visible only to particular friends and/or networks of the
Facebook user; and
(d) Only Me - the digital image can be viewed only by the user.
The foregoing are privacy tools, available to Facebook users, designed to set up barriers to broaden
or limit the visibility of his or her specific profile content, statuses, and photos, among others, from
another users point of view. In other words, Facebook extends its users an avenue to make the
availability of their Facebook activities reflect their choice as to "when and to what extent to disclose
facts about [themselves] and to put others in the position of receiving such confidences."34 Ideally,
the selected setting will be based on ones desire to interact with others, coupled with the opposing
need to withhold certain information as well as to regulate the spreading of his or her personal
information. Needless to say, as the privacy setting becomes more limiting, fewer Facebook users
can view that users particular post.
STC did not violate petitioners daughters right to privacy
Without these privacy settings, respondents contention that there is no reasonable expectation of
privacy in Facebook would, in context, be correct. However, such is not the case. It is through the
availability of said privacy tools that many OSN users are said to have a subjective expectation that
only those to whomthey grant access to their profile will view the information they post or upload
thereto.35
This, however, does not mean thatany Facebook user automatically has a protected expectation of
privacy inall of his or her Facebook activities.
Before one can have an expectation of privacy in his or her OSN activity, it is first necessary that
said user, in this case the children of petitioners,manifest the intention to keepcertain posts private,
through the employment of measures to prevent access thereto or to limit its visibility.36 And this
intention can materialize in cyberspace through the utilization of the OSNs privacy tools. In other
words, utilization of these privacy tools is the manifestation,in cyber world, of the users invocation of
his or her right to informational privacy.37
Therefore, a Facebook user who opts to make use of a privacy tool to grant or deny access to his or
her post orprofile detail should not be denied the informational privacy right which necessarily
accompanies said choice.38Otherwise, using these privacy tools would be a feckless exercise, such

that if, for instance, a user uploads a photo or any personal information to his or her Facebook page
and sets its privacy level at "Only Me" or a custom list so that only the user or a chosen few can view
it, said photo would still be deemed public by the courts as if the user never chose to limit the photos
visibility and accessibility. Such position, if adopted, will not only strip these privacy tools of their
function but it would also disregard the very intention of the user to keep said photo or information
within the confines of his or her private space.
We must now determine the extent that the images in question were visible to other Facebook users
and whether the disclosure was confidential in nature. In other words, did the minors limit the
disclosure of the photos such that the images were kept within their zones of privacy? This
determination is necessary in resolving the issue of whether the minors carved out a zone of privacy
when the photos were uploaded to Facebook so that the images will be protected against
unauthorized access and disclosure.
Petitioners, in support of their thesis about their childrens privacy right being violated, insist that
Escudero intruded upon their childrens Facebook accounts, downloaded copies ofthe pictures and
showed said photos to Tigol. To them, this was a breach of the minors privacy since their Facebook
accounts, allegedly, were under "very private" or "Only Friends" setting safeguarded with a
password.39 Ultimately, they posit that their childrens disclosure was only limited since their profiles
were not open to public viewing. Therefore, according to them, people who are not their Facebook
friends, including respondents, are barred from accessing said post without their knowledge and
consent. Aspetitioners children testified, it was Angelawho uploaded the subjectphotos which were
only viewable by the five of them,40 although who these five are do not appear on the records.
Escudero, on the other hand, stated in her affidavit41 that "my students showed me some pictures of
girls cladin brassieres. This student [sic] of mine informed me that these are senior high school
[students] of STC, who are their friends in [F]acebook. x x x They then said [that] there are still many
other photos posted on the Facebook accounts of these girls. At the computer lab, these students
then logged into their Facebook account [sic], and accessed from there the various photographs x x
x. They even told me that there had been times when these photos were public i.e., not confined to
their friends in Facebook."
In this regard, We cannot give muchweight to the minors testimonies for one key reason: failure to
question the students act of showing the photos to Tigol disproves their allegation that the photos
were viewable only by the five of them. Without any evidence to corroborate their statement that the
images were visible only to the five of them, and without their challenging Escuderos claim that the
other students were able to view the photos, their statements are, at best, self-serving, thus
deserving scant consideration.42
It is well to note that not one of petitioners disputed Escuderos sworn account that her students,
who are the minors Facebook "friends," showed her the photos using their own Facebook accounts.
This only goes to show that no special means to be able to viewthe allegedly private posts were ever
resorted to by Escuderos students,43 and that it is reasonable to assume, therefore, that the photos
were, in reality, viewable either by (1) their Facebook friends, or (2) by the public at large.
Considering that the default setting for Facebook posts is"Public," it can be surmised that the
photographs in question were viewable to everyone on Facebook, absent any proof that petitioners
children positively limited the disclosure of the photograph. If suchwere the case, they cannot invoke
the protection attached to the right to informational privacy. The ensuing pronouncement in US v.
Gines-Perez44 is most instructive:

[A] person who places a photograph on the Internet precisely intends to forsake and renounce all
privacy rights to such imagery, particularly under circumstances suchas here, where the Defendant
did not employ protective measures or devices that would have controlled access to the Web page
or the photograph itself.45
Also, United States v. Maxwell46 held that "[t]he more open the method of transmission is, the less
privacy one can reasonably expect. Messages sent to the public at large inthe chat room or e-mail
that is forwarded from correspondent to correspondent loses any semblance of privacy."
That the photos are viewable by "friends only" does not necessarily bolster the petitioners
contention. In this regard, the cyber community is agreed that the digital images under this setting
still remain to be outside the confines of the zones of privacy in view of the following:
(1) Facebook "allows the world to be more open and connected by giving its users the tools
to interact and share in any conceivable way;"47
(2) A good number of Facebook users "befriend" other users who are total strangers;48
(3) The sheer number of "Friends" one user has, usually by the hundreds; and
(4) A users Facebook friend can "share"49 the formers post, or "tag"50 others who are not
Facebook friends with the former, despite its being visible only tohis or her own Facebook
friends.
It is well to emphasize at this point that setting a posts or profile details privacy to "Friends" is no
assurance that it can no longer be viewed by another user who is not Facebook friends with the
source of the content. The users own Facebook friend can share said content or tag his or her own
Facebook friend thereto, regardless of whether the user tagged by the latter is Facebook friends or
not with the former. Also, when the post is shared or when a person is tagged, the respective
Facebook friends of the person who shared the post or who was tagged can view the post, the
privacy setting of which was set at "Friends."
To illustrate, suppose A has 100 Facebook friends and B has 200. A and B are not Facebook
friends. If C, As Facebook friend, tags B in As post, which is set at "Friends," the initial audience of
100 (As own Facebook friends) is dramatically increased to 300 (As 100 friends plus Bs 200
friends or the public, depending upon Bs privacy setting). As a result, the audience who can view
the post is effectively expandedand to a very large extent.
This, along with its other features and uses, is confirmation of Facebooks proclivity towards user
interaction and socialization rather than seclusion or privacy, as it encourages broadcasting of
individual user posts. In fact, it has been said that OSNs have facilitated their users self-tribute,
thereby resulting into the "democratization of fame."51 Thus, it is suggested, that a profile, or even a
post, with visibility set at "Friends Only" cannot easily, more so automatically, be said to be "very
private," contrary to petitioners argument.
As applied, even assuming that the photos in issue are visible only to the sanctioned students
Facebook friends, respondent STC can hardly be taken to task for the perceived privacy invasion
since it was the minors Facebook friends who showed the pictures to Tigol. Respondents were
mere recipients of what were posted. They did not resort to any unlawful means of gathering the
information as it was voluntarily given to them by persons who had legitimate access to the said
posts. Clearly, the fault, if any, lies with the friends of the minors. Curiously enough, however, neither

the minors nor their parents imputed any violation of privacy against the students who showed the
images to Escudero.
Furthermore, petitioners failed to prove their contention that respondents reproduced and
broadcasted the photographs. In fact, what petitioners attributed to respondents as an act of
offensive disclosure was no more than the actuality that respondents appended said photographs in
their memorandum submitted to the trial court in connection with Civil Case No. CEB-38594.52 These
are not tantamount to a violation of the minors informational privacy rights, contrary to petitioners
assertion.
In sum, there can be no quibbling that the images in question, or to be more precise, the photos of
minor students scantily clad, are personal in nature, likely to affect, if indiscriminately circulated, the
reputation of the minors enrolled in a conservative institution. However, the records are bereft of any
evidence, other than bare assertions that they utilized Facebooks privacy settings to make the
photos visible only to them or to a select few. Without proof that they placed the photographs subject
of this case within the ambit of their protected zone of privacy, they cannot now insist that they have
an expectation of privacy with respect to the photographs in question.
Had it been proved that the access tothe pictures posted were limited to the original uploader,
through the "Me Only" privacy setting, or that the users contact list has been screened to limit
access to a select few, through the "Custom" setting, the result may have been different, for in such
instances, the intention to limit access to the particular post, instead of being broadcasted to the
public at large or all the users friends en masse, becomes more manifest and palpable.
On Cyber Responsibility
It has been said that "the best filter is the one between your childrens ears."53 This means that selfregulation on the part of OSN users and internet consumers ingeneral is the best means of avoiding
privacy rights violations.54As a cyberspace communitymember, one has to be proactive in protecting
his or her own privacy.55 It is in this regard that many OSN users, especially minors, fail.Responsible
social networking or observance of the "netiquettes"56 on the part of teenagers has been the concern
of many due to the widespreadnotion that teenagers can sometimes go too far since they generally
lack the people skills or general wisdom to conduct themselves sensibly in a public forum.57
Respondent STC is clearly aware of this and incorporating lessons on good cyber citizenship in its
curriculum to educate its students on proper online conduct may be mosttimely. Too, it is not only
STC but a number of schools and organizations have already deemed it important to include digital
literacy and good cyber citizenshipin their respective programs and curricula in view of the risks that
the children are exposed to every time they participate in online activities.58 Furthermore, considering
the complexity of the cyber world and its pervasiveness,as well as the dangers that these children
are wittingly or unwittingly exposed to in view of their unsupervised activities in cyberspace, the
participation of the parents in disciplining and educating their children about being a good digital
citizen is encouraged by these institutions and organizations. In fact, it is believed that "to limit such
risks, theres no substitute for parental involvement and supervision."59
As such, STC cannot be faulted for being steadfast in its duty of teaching its students to
beresponsible in their dealings and activities in cyberspace, particularly in OSNs, whenit enforced
the disciplinary actions specified in the Student Handbook, absenta showing that, in the process, it
violated the students rights.
OSN users should be aware of the risks that they expose themselves to whenever they engage
incyberspace activities. Accordingly, they should be cautious enough to control their privacy and to
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exercise sound discretion regarding how much information about themselves they are willing to give
up. Internet consumers ought to be aware that, by entering or uploading any kind of data or
information online, they are automatically and inevitably making it permanently available online, the
perpetuation of which is outside the ambit of their control. Furthermore, and more importantly,
information, otherwise private, voluntarily surrendered by them can be opened, read, or copied by
third parties who may or may not be allowed access to such.
It is, thus, incumbent upon internet users to exercise due diligence in their online dealings and
activities and must not be negligent in protecting their rights. Equity serves the vigilant. Demanding
relief from the courts, as here, requires that claimants themselves take utmost care in safeguarding
a right which they allege to have been violated. These are indispensable. We cannot afford
protection to persons if they themselves did nothing to place the matter within the confines of their
private zone. OSN users must be mindful enough to learn the use of privacy tools, to use them if
they desire to keep the information private, and to keep track of changes in the available privacy
settings, such as those of Facebook, especially because Facebook is notorious for changing these
settings and the site's layout often.
In finding that respondent STC and its officials did not violate the minors' privacy rights, We find no
cogent reason to disturb the findings and case disposition of the court a quo.
In light of the foregoing, the Court need not belabor the other assigned errors.
WHEREFORE, premises considered, the petition is hereby DENIED. The Decision dated July 27,
2012 of the Regional Trial Court, Branch 14 in Cebu City in SP. Proc. No. 19251-CEB is hereby
AFFIRMED.
No pronouncement as to costs.
SO ORDERED.
PRESBITERO J. VELASCO, JR.
Associate Justice