Republic of the Philippines

Supreme Court
Baguio City

EN BANC

ANG LADLAD LGBT PARTY G.R. No. 190582

represented herein by its Chair,
DANTON REMOTO,
Petitioner, Present:

PUNO, C. J.,
CARPIO,
CORONA,
CARPIO MORALES,
VELASCO, JR.,
NACHURA,
LEONARDO-DE CASTRO,
- versus - BRION,
PERALTA,
BERSAMIN,
DEL CASTILLO,
ABAD,
VILLARAMA, JR.,
PEREZ, and
MENDOZA, JJ.

COMMISSION ON ELECTIONS, Promulgated:

Respondent. April 8, 2010
x--------------------------------------------------------x

DECISION

DEL CASTILLO, J.:

... [F]reedom to differ is not limited to things that do not matter much. That would be a mere shadow of
freedom. The test of its substance is the right to differ as to things that touch the heart of the existing order.

Justice Robert A. Jackson

West Virginia State Board of Education v. Barnette[1]

One unavoidable consequence of everyone having the freedom to choose is that others may make different choices
choices we would not make for ourselves, choices we may disapprove of, even choices that may shock or offend or anger
us. However, choices are not to be legally prohibited merely because they are different, and the right to disagree and
debate about important questions of public policy is a core value protected by our Bill of Rights. Indeed, our democracy is
built on genuine recognition of, and respect for, diversity and difference in opinion.
Since ancient times, society has grappled with deep disagreements about the definitions and demands of
morality. In many cases, where moral convictions are concerned, harmony among those theoretically opposed is an
insurmountable goal. Yet herein lies the paradox philosophical justifications about what is moral are indispensable and yet
at the same time powerless to create agreement.This Court recognizes, however, that practical solutions are preferable to
ideological stalemates; accommodation is better than intransigence; reason more worthy than rhetoric. This will allow
persons of diverse viewpoints to live together, if not harmoniously, then, at least, civilly.

Factual Background

This is a Petition for Certiorari under Rule 65 of the Rules of Court, with an application for a writ of preliminary
mandatory injunction, filed by Ang Ladlad LGBT Party (Ang Ladlad) against the Resolutions of the Commission on
Elections (COMELEC) dated November 11, 2009[2] (the First Assailed Resolution) and December 16, 2009[3] (the
Second Assailed Resolution) in SPP No. 09-228 (PL) (collectively, the Assailed Resolutions). The case has its roots in the
COMELECs refusal to accredit Ang Ladlad as a party-list organization under Republic Act (RA) No. 7941, otherwise
known as the Party-List System Act.[4]

Ang Ladlad is an organization composed of men and women who identify themselves as lesbians, gays,
bisexuals, or trans-gendered individuals (LGBTs). Incorporated in 2003, Ang Ladladfirst applied for registration with the
COMELEC in 2006. The application for accreditation was denied on the ground that the organization had no substantial
membership base. On August 17, 2009,Ang Ladlad again filed a Petition[5] for registration with the COMELEC.

Before the COMELEC, petitioner argued that the LGBT community is a marginalized and under-represented
sector that is particularly disadvantaged because of their sexual orientation and gender identity; that LGBTs are victims of
exclusion, discrimination, and violence; that because of negative societal attitudes, LGBTs are constrained to hide their
sexual orientation; and that Ang Ladlad complied with the 8-point guidelines enunciated by this Court in Ang Bagong
Bayani-OFW Labor Party v. Commission on Elections.[6] Ang Ladlad laid out its national membership base consisting of
individual members and organizational supporters, and outlined its platform of governance.[7]

On November 11, 2009, after admitting the petitioners evidence, the COMELEC (Second Division) dismissed
the Petition on moral grounds, stating that:
x x x This Petition is dismissible on moral grounds. Petitioner defines the Filipino Lesbian, Gay,
Bisexual and Transgender (LGBT) Community, thus:

x x x a marginalized and under-represented sector that is particularly disadvantaged

because of their sexual orientation and gender identity.
and proceeded to define sexual orientation as that which:
 x x x refers to a persons capacity for profound emotional, affectional and sexual attraction
to, and intimate and sexual relations with, individuals of a different gender, of the same
gender, or more than one gender.

This definition of the LGBT sector makes it crystal clear that petitioner tolerates immorality which
offends religious beliefs. In Romans 1:26, 27, Paul wrote:

For this cause God gave them up into vile affections, for even their women did change
the natural use into that which is against nature: And likewise also the men, leaving the
natural use of the woman, burned in their lust one toward another; men with men
working that which is unseemly, and receiving in themselves that recompense of their
error which was meet.

In the Koran, the hereunder verses are pertinent:

For ye practice your lusts on men in preference to women ye are indeed a people
transgressing beyond bounds. (7.81) And we rained down on them a shower (of
brimstone): Then see what was the end of those who indulged in sin and crime! (7:84) He
said: O my Lord! Help Thou me against people who do mischief (29:30).

As correctly pointed out by the Law Department in its Comment dated October 2, 2008:

The ANG LADLAD apparently advocates sexual immorality as indicated in the Petitions
par. 6F: Consensual partnerships or relationships by gays and lesbians who are already of
age. It is further indicated in par. 24 of the Petition which waves for the record: In
2007, Men Having Sex with Men or MSMs in the Philippines were estimated as 670,000
(Genesis 19 is the history of Sodom andGomorrah).

Laws are deemed incorporated in every contract, permit, license, relationship, or

accreditation. Hence, pertinent provisions of the Civil Code and the Revised Penal Code
are deemed part of the requirement to be complied with for accreditation.

ANG LADLAD collides with Article 695 of the Civil Code which defines nuisance as
Any act, omission, establishment, business, condition of property, or anything else which
x x x (3) shocks, defies; or disregards decency or morality x x x

It also collides with Article 1306 of the Civil Code: The contracting parties may establish
such stipulations, clauses, terms and conditions as they may deem convenient, provided
they are not contrary to law, morals, good customs, public order or public policy. Art
1409 of the Civil Code provides that Contracts whose cause, object or purpose is contrary
to law, morals, good customs, public order or public policy are inexistent and void from
the beginning.

Finally to safeguard the morality of the Filipino community, the Revised Penal Code, as amended,
penalizes Immoral doctrines, obscene publications and exhibitions and indecent shows as follows:

Art. 201. Immoral doctrines, obscene publications and exhibitions, and indecent shows.
The penalty of prision mayor or a fine ranging from six thousand to twelve thousand
pesos, or both such imprisonment and fine, shall be imposed upon:
 1. Those who shall publicly expound or proclaim doctrines openly contrary to public
morals;

2. (a) The authors of obscene literature, published with their knowledge in any form; the
editors publishing such literature; and the owners/operators of the establishment selling
the same;

(b) Those who, in theaters, fairs, cinematographs or any other place, exhibit indecent or
immoral plays, scenes, acts or shows, it being understood that the obscene literature or
indecent or immoral plays, scenes, acts or shows, whether live or in film, which are
prescribed by virtue hereof, shall include those which: (1) glorify criminals or condone
crimes; (2) serve no other purpose but to satisfy the market for violence, lust or
pornography; (3) offend any race or religion; (4) tend to abet traffic in and use of
prohibited drugs; and (5) are contrary to law, public order, morals, good
customs, established policies, lawful orders, decrees and edicts.

3. Those who shall sell, give away or exhibit films, prints, engravings, sculpture or
literature which are offensive to morals.

Petitioner should likewise be denied accreditation not only for advocating immoral doctrines but likewise
for not being truthful when it said that it or any of its nominees/party-list representatives have not violated
or failed to comply with laws, rules, or regulations relating to the elections.

Furthermore, should this Commission grant the petition, we will be exposing our youth to an environment that
does not conform to the teachings of our faith. Lehman Strauss, a famous bible teacher and writer in
the U.S.A. said in one article that older practicing homosexuals are a threat to the youth. As an agency of
the government, ours too is the States avowed duty under Section 13, Article II of the Constitution to
protect our youth from moral and spiritual degradation.[8]

When Ang Ladlad sought reconsideration,[9] three commissioners voted to overturn the First Assailed Resolution
(Commissioners Gregorio Y. Larrazabal, Rene V. Sarmiento, and Armando Velasco), while three commissioners voted to
deny Ang Ladlads Motion for Reconsideration (Commissioners Nicodemo T. Ferrer, Lucenito N. Tagle, and Elias R.
Yusoph). The COMELEC Chairman, breaking the tie and speaking for the majority in his Separate Opinion, upheld the
First Assailed Resolution, stating that:

I. The Spirit of Republic Act No. 7941

Ladlad is applying for accreditation as a sectoral party in the party-list system. Even assuming that it has
properly proven its under-representation and marginalization, it cannot be said that Ladlads expressed
sexual orientations per se would benefit the nation as a whole.

Section 2 of the party-list law unequivocally states that the purpose of the party-list system of electing
congressional representatives is to enable Filipino citizens belonging to marginalized and under-
represented sectors, organizations and parties, and who lack well-defined political constituencies but who
could contribute to the formulation and enactment of appropriate legislation that will benefit the nation as
a whole, to become members of the House of Representatives.
 If entry into the party-list system would depend only on the ability of an organization to represent its
constituencies, then all representative organizations would have found themselves into the party-list race.
But that is not the intention of the framers of the law. The party-list system is not a tool to advocate
tolerance and acceptance of misunderstood persons or groups of persons. Rather, the party-list system is
a tool for the realization of aspirations of marginalized individuals whose interests are also the
nations only that their interests have not been brought to the attention of the nation because of their under
representation. Until the time comes when Ladlad is able to justify that having mixed sexual
orientations and transgender identities is beneficial to the nation, its application for accreditation
under the party-list system will remain just that.

II. No substantial differentiation

In the United States, whose equal protection doctrine pervades Philippine jurisprudence, courts do not
recognize lesbians, gays, homosexuals, and bisexuals (LGBT) as a special class of individuals. x x
x Significantly, it has also been held that homosexuality is not a constitutionally protected fundamental
right, and that nothing in the U.S. Constitution discloses a comparable intent to protect or promote the
social or legal equality of homosexual relations, as in the case of race or religion or belief.

xxxx

Thus, even if societys understanding, tolerance, and acceptance of LGBTs is elevated, there can be no
denying that Ladlad constituencies are still males and females, and they will remain either male or
female protected by the same Bill of Rights that applies to all citizens alike.

xxxx

IV. Public Morals

x x x There is no question about not imposing on Ladlad Christian or Muslim religious practices. Neither
is there any attempt to any particular religious groups moral rules on Ladlad. Rather, what are being
adopted as moral parameters and precepts are generally accepted public morals. They are possibly
religious-based, but as a society, the Philippines cannot ignore its more than 500 years of Muslim
and Christian upbringing, such that some moral precepts espoused by said religions have sipped
[sic] into society and these are not publicly accepted moral norms.

V. Legal Provisions

But above morality and social norms, they have become part of the law of the land. Article 201 of the
Revised Penal Code imposes the penalty of prision mayor upon Those who shall publicly expound or
proclaim doctrines openly contrary to public morals. It penalizes immoral doctrines, obscene publications
and exhibition and indecent shows. Ang Ladlad apparently falls under these legal provisions. This is clear
from its Petitions paragraph 6F: Consensual partnerships or relationships by gays and lesbians who are
already of age It is further indicated in par. 24 of the Petition which waves for the record: In 2007, Men
Having Sex with Men or MSMs in the Philippines were estimated as 670,000. Moreoever, Article 694 of
the Civil Code defines nuisance as any act, omission x x x or anything else x x x which shocks, defies or
disregards decency or morality x x x. These are all unlawful.[10]

On January 4, 2010, Ang Ladlad filed this Petition, praying that the Court annul the Assailed Resolutions and
direct the COMELEC to grant Ang Ladlads application for accreditation. Ang Ladlad also sought the issuance ex parte of
a preliminary mandatory injunction against the COMELEC, which had previously announced that it would begin printing
the final ballots for the May 2010 elections by January 25, 2010.

On January 6, 2010, we ordered the Office of the Solicitor General (OSG) to file its Comment on behalf of
COMELEC not later than 12:00 noon of January 11, 2010.[11] Instead of filing a Comment, however, the OSG filed a
Motion for Extension, requesting that it be given until January 16, 2010 to Comment.[12] Somewhat surprisingly, the OSG
later filed a Comment in support of petitioners application.[13] Thus, in order to give COMELEC the opportunity to fully
ventilate its position, we required it to file its own comment.[14] The COMELEC, through its Law Department, filed its
Comment on February 2, 2010.[15]

In the meantime, due to the urgency of the petition, we issued a temporary restraining order on January 12, 2010,
effective immediately and continuing until further orders from this Court, directing the COMELEC to cease and desist
from implementing the Assailed Resolutions.[16]

Also, on January 13, 2010, the Commission on Human Rights (CHR) filed a Motion to Intervene or to Appear as
Amicus Curiae, attaching thereto its Comment-in-Intervention.[17] The CHR opined that the denial of Ang
Ladlads petition on moral grounds violated the standards and principles of the Constitution, the Universal Declaration of
Human Rights (UDHR), and the International Covenant on Civil and Political Rights (ICCPR). On January 19, 2010, we
granted the CHRs motion to intervene.

On January 26, 2010, Epifanio D. Salonga, Jr. filed his Motion to Intervene[18] which motion was granted
on February 2, 2010.[19]

The Parties Arguments

Ang Ladlad argued that the denial of accreditation, insofar as it justified the exclusion by using religious dogma,
violated the constitutional guarantees against the establishment of religion.Petitioner also claimed that the Assailed
Resolutions contravened its constitutional rights to privacy, freedom of speech and assembly, and equal protection of
laws, as well as constituted violations of the Philippines international obligations against discrimination based on sexual
orientation.

The OSG concurred with Ang Ladlads petition and argued that the COMELEC erred in denying petitioners application
for registration since there was no basis for COMELECs allegations of immorality. It also opined that LGBTs have their
own special interests and concerns which should have been recognized by the COMELEC as a separate
classification. However, insofar as the purported violations of petitioners freedom of speech, expression, and assembly
were concerned, the OSG maintained that there had been no restrictions on these rights.
 In its Comment, the COMELEC reiterated that petitioner does not have a concrete and genuine national political
agenda to benefit the nation and that the petition was validly dismissed on moral grounds. It also argued for the first
time that the LGBT sector is not among the sectors enumerated by the Constitution and RA 7941, and that petitioner
made untruthful statements in its petition when it alleged its national existence contrary to actual verification reports by
COMELECs field personnel.

Our Ruling

We grant the petition.

Compliance with the Requirements of the Constitution and Republic

Act No. 7941

The COMELEC denied Ang Ladlads application for registration on the ground that the LGBT sector is neither
enumerated in the Constitution and RA 7941, nor is it associated with or related to any of the sectors in the enumeration.

Respondent mistakenly opines that our ruling in Ang Bagong Bayani stands for the proposition that only those
sectors specifically enumerated in the law or related to said sectors (labor, peasant, fisherfolk, urban poor, indigenous
cultural communities, elderly, handicapped, women, youth, veterans, overseas workers, and professionals) may be
registered under the party-list system. As we explicitly ruled in Ang Bagong Bayani-OFW Labor Party v. Commission on
Elections,[20] the enumeration of marginalized and under-represented sectors is not exclusive. The crucial element is not
whether a sector is specifically enumerated, but whether a particular organization complies with the requirements of the
Constitution and RA 7941.
Respondent also argues that Ang Ladlad made untruthful statements in its petition when it alleged that it had
nationwide existence through its members and affiliate organizations. The COMELEC claims that upon verification by its
field personnel, it was shown that save for a few isolated places in the country, petitioner does not exist in almost all
provinces in the country.[21]
This argument that petitioner made untruthful statements in its petition when it alleged its national existence is a
new one; previously, the COMELEC claimed that petitioner was not being truthful when it said that it or any of its
nominees/party-list representatives have not violated or failed to comply with laws, rules, or regulations relating to the
elections. Nowhere was this ground for denial of petitioners accreditation mentioned or even alluded to in the Assailed
Resolutions. This, in itself, is quite curious, considering that the reports of petitioners alleged non-existence were already
available to the COMELEC prior to the issuance of the First Assailed Resolution. At best, this is irregular procedure; at
worst, a belated afterthought, a change in respondents theory, and a serious violation of petitioners right to procedural due
process.

Nonetheless, we find that there has been no misrepresentation. A cursory perusal of Ang Ladlads initial petition
shows that it never claimed to exist in each province of the Philippines. Rather, petitioner alleged that the LGBT
community in the Philippines was estimated to constitute at least 670,000 persons; that it had 16,100 affiliates and
members around the country, and 4,044 members in its electronic discussion group.[22] Ang Ladlad also represented itself
to be a national LGBT umbrella organization with affiliates around the Philippines composed of the following LGBT
networks:

Abra Gay Association

Aklan Butterfly Brigade (ABB) Aklan
Albay Gay Association
Arts Center of Cabanatuan City Nueva Ecija
Boys Legion Metro Manila
Cagayan de Oro People Like Us (CDO PLUS)
Cant Live in the Closet, Inc. (CLIC) Metro Manila
Cebu Pride Cebu City
Circle of Friends
Dipolog Gay Association Zamboanga del Norte
Gay, Bisexual, & Transgender Youth Association (GABAY)
Gay and Lesbian Activists Network for Gender Equality (GALANG) Metro Manila
Gay Mens Support Group (GMSG) Metro Manila
Gay United for Peace and Solidarity (GUPS) Lanao del Norte
Iloilo City Gay Association Iloilo City
Kabulig Writers Group Camarines Sur
Lesbian Advocates Philippines, Inc. (LEAP)
LUMINA Baguio City
Marikina Gay Association Metro Manila
Metropolitan Community Church (MCC) Metro Manila
Naga City Gay Association Naga City
ONE BACARDI
Order of St. Aelred (OSAe) Metro Manila
PUP LAKAN
RADAR PRIDEWEAR
Rainbow Rights Project (R-Rights), Inc. Metro Manila
San Jose del Monte Gay Association Bulacan
Sining Kayumanggi Royal Family Rizal
Society of Transexual Women of the Philippines (STRAP) Metro Manila
Soul Jive Antipolo, Rizal
The Link Davao City
Tayabas Gay Association Quezon
Womens Bisexual Network Metro Manila
Zamboanga Gay Association Zamboanga City[23]

Since the COMELEC only searched for the names ANG LADLAD LGBT or LADLAD LGBT, it is no surprise
that they found that petitioner had no presence in any of these regions. In fact, if COMELECs findings are to be believed,
petitioner does not even exist in Quezon City, which is registered as Ang Ladlads principal place of business.

Against this backdrop, we find that Ang Ladlad has sufficiently demonstrated its compliance with the legal
requirements for accreditation. Indeed, aside from COMELECs moral objection and the belated allegation of non-
existence, nowhere in the records has the respondent ever found/ruled that Ang Ladlad is not qualified to register as a
party-list organization under any of the requisites under RA 7941 or the guidelines in Ang Bagong Bayani. The difference,
COMELEC claims, lies in Ang Ladlads morality, or lack thereof.

Religion as the Basis for Refusal to Accept Ang Ladlads Petition for
Registration

Our Constitution provides in Article III, Section 5 that [n]o law shall be made respecting an establishment of
religion, or prohibiting the free exercise thereof. At bottom, what our non-establishment clause calls for is government
neutrality in religious matters.[24] Clearly, governmental reliance on religious justification is inconsistent with this policy of
neutrality.[25] We thus find that it was grave violation of the non-establishment clause for the COMELEC to utilize the
Bible and the Koran to justify the exclusion of Ang Ladlad.

Rather than relying on religious belief, the legitimacy of the Assailed Resolutions should depend, instead, on
whether the COMELEC is able to advance some justification for its rulings beyond mere conformity to religious
doctrine. Otherwise stated, government must act for secular purposes and in ways that have primarily secular effects. As
we held in Estrada v. Escritor:[26]

x x x The morality referred to in the law is public and necessarily secular, not religious as the dissent of
Mr. Justice Carpio holds. "Religious teachings as expressed in public debate may influence the civil
public order but public moral disputes may be resolved only on grounds articulable in secular terms."
Otherwise, if government relies upon religious beliefs in formulating public policies and morals, the
resulting policies and morals would require conformity to what some might regard as religious programs
or agenda. The non-believers would therefore be compelled to conform to a standard of conduct
buttressed by a religious belief, i.e., to a "compelled religion," anathema to religious freedom. Likewise, if
government based its actions upon religious beliefs, it would tacitly approve or endorse that belief and
thereby also tacitly disapprove contrary religious or non-religious views that would not support the policy.
As a result, government will not provide full religious freedom for all its citizens, or even make it appear
that those whose beliefs are disapproved are second-class citizens.
In other words, government action, including its proscription of immorality as expressed in criminal law
like concubinage, must have a secular purpose. That is, the government proscribes this conduct because it
is "detrimental (or dangerous) to those conditions upon which depend the existence and progress of
human society" and not because the conduct is proscribed by the beliefs of one religion or the other.
Although admittedly, moral judgments based on religion might have a compelling influence on those
engaged in public deliberations over what actions would be considered a moral disapprobation punishable
by law. After all, they might also be adherents of a religion and thus have religious opinions and moral
codes with a compelling influence on them; the human mind endeavors to regulate the temporal and
spiritual institutions of society in a uniform manner, harmonizing earth with heaven. Succinctly put, a law
could be religious or Kantian or Aquinian or utilitarian in its deepest roots, but it must have an articulable
and discernible secular purpose and justification to pass scrutiny of the religion clauses. x x x Recognizing
the religious nature of the Filipinos and the elevating influence of religion in society, however, the
Philippine constitution's religion clauses prescribe not a strict but a benevolent neutrality. Benevolent
neutrality recognizes that government must pursue its secular goals and interests but at the same time
strive to uphold religious liberty to the greatest extent possible within flexible constitutional limits. Thus,
 although the morality contemplated by laws is secular, benevolent neutrality could allow for
accommodation of morality based on religion, provided it does not offend compelling state interests.[27]

Public Morals as a Ground to Deny Ang Ladlads Petition for

Registration

Respondent suggests that although the moral condemnation of homosexuality and homosexual conduct may be
religion-based, it has long been transplanted into generally accepted public morals. The COMELEC argues:

Petitioners accreditation was denied not necessarily because their group consists of LGBTs but because of
the danger it poses to the people especially the youth. Once it is recognized by the government, a sector
which believes that there is nothing wrong in having sexual relations with individuals of the same gender
is a bad example. It will bring down the standard of morals we cherish in our civilized society. Any
society without a set of moral precepts is in danger of losing its own existence.[28]

We are not blind to the fact that, through the years, homosexual conduct, and perhaps homosexuals themselves,
have borne the brunt of societal disapproval. It is not difficult to imagine the reasons behind this censure religious beliefs,
convictions about the preservation of marriage, family, and procreation, even dislike or distrust of homosexuals
themselves and their perceived lifestyle.Nonetheless, we recall that the Philippines has not seen fit to criminalize
homosexual conduct. Evidently, therefore, these generally accepted public morals have not been convincingly
transplanted into the realm of law.[29]

The Assailed Resolutions have not identified any specific overt immoral act performed by Ang Ladlad. Even the OSG
agrees that there should have been a finding by the COMELEC that the groups members have committed or are
committing immoral acts.[30] The OSG argues:

x x x A person may be sexually attracted to a person of the same gender, of a different gender, or more
than one gender, but mere attraction does not translate to immoral acts. There is a great divide between
thought and action. Reduction ad absurdum. If immoral thoughts could be penalized, COMELEC would
have its hands full of disqualification cases against both the straights and the gays. Certainly this is not the
intendment of the law.[31]

Respondent has failed to explain what societal ills are sought to be prevented, or why special protection is
required for the youth. Neither has the COMELEC condescended to justify its position that petitioners admission into the
party-list system would be so harmful as to irreparably damage the moral fabric of society. We, of course, do not suggest
that the state is wholly without authority to regulate matters concerning morality, sexuality, and sexual relations, and we
recognize that the government will and should continue to restrict behavior considered detrimental to
society. Nonetheless, we cannot countenance advocates who, undoubtedly with the loftiest of intentions, situate morality
on one end of an argument or another, without bothering to go through the rigors of legal reasoning and explanation. In
this, the notion of morality is robbed of all value. Clearly then, the bare invocation of morality will not remove an issue
from our scrutiny.

We also find the COMELECs reference to purported violations of our penal and civil laws flimsy, at best;
disingenuous, at worst. Article 694 of the Civil Code defines a nuisance as any act, omission, establishment, condition of
property, or anything else which shocks, defies, or disregards decency or morality, the remedies for which are a
prosecution under the Revised Penal Code or any local ordinance, a civil action, or abatement without judicial
proceedings.[32] A violation of Article 201 of the Revised Penal Code, on the other hand, requires proof beyond reasonable
doubt to support a criminal conviction. It hardly needs to be emphasized that mere allegation of violation of laws is not
proof, and a mere blanket invocation of public morals cannot replace the institution of civil or criminal proceedings and a
judicial determination of liability or culpability.
As such, we hold that moral disapproval, without more, is not a sufficient governmental interest to justify
exclusion of homosexuals from participation in the party-list system. The denial of Ang Ladlads registration on purely
moral grounds amounts more to a statement of dislike and disapproval of homosexuals, rather than a tool to further any
substantial public interest. Respondents blanket justifications give rise to the inevitable conclusion that the COMELEC
targets homosexuals themselves as a class, not because of any particular morally reprehensible act. It is this selective
targeting that implicates our equal protection clause.

Equal Protection

Despite the absolutism of Article III, Section 1 of our Constitution, which provides nor shall any person be denied
equal protection of the laws, courts have never interpreted the provision as an absolute prohibition on
classification. Equality, said Aristotle, consists in the same treatment of similar persons.[33] The equal protection clause
guarantees that no person or class of persons shall be deprived of the same protection of laws which is enjoyed by other
persons or other classes in the same place and in like circumstances.[34]

Recent jurisprudence has affirmed that if a law neither burdens a fundamental right nor targets a suspect class, we will
uphold the classification as long as it bears a rational relationship to some legitimate government end.[35] In Central Bank
Employees Association, Inc. v. Banko Sentral ng Pilipinas,[36] we declared that [i]n our jurisdiction, the standard of
analysis of equal protection challenges x x x have followed the rational basis test, coupled with a deferential attitude to
legislative classifications and a reluctance to invalidate a law unless there is a showing of a clear and unequivocal breach
of the Constitution.[37]

The COMELEC posits that the majority of the Philippine population considers homosexual conduct as immoral
and unacceptable, and this constitutes sufficient reason to disqualify the petitioner. Unfortunately for the respondent, the
Philippine electorate has expressed no such belief. No law exists to criminalize homosexual behavior or expressions or
parties about homosexual behavior. Indeed, even if we were to assume that public opinion is as the COMELEC describes
it, the asserted state interest here that is, moral disapproval of an unpopular minority is not a legitimate state interest that is
sufficient to satisfy rational basis review under the equal protection clause. The COMELECs differentiation, and its
unsubstantiated claim that Ang Ladlad cannot contribute to the formulation of legislation that would benefit the nation,
furthers no legitimate state interest other than disapproval of or dislike for a disfavored group.

From the standpoint of the political process, the lesbian, gay, bisexual, and transgender have the same interest in
participating in the party-list system on the same basis as other political parties similarly situated. State intrusion in this
case is equally burdensome. Hence, laws of general application should apply with equal force to LGBTs, and they deserve
to participate in the party-list system on the same basis as other marginalized and under-represented sectors.

It bears stressing that our finding that COMELECs act of differentiating LGBTs from heterosexuals insofar as the
party-list system is concerned does not imply that any other law distinguishing between heterosexuals and homosexuals
under different circumstances would similarly fail. We disagree with the OSGs position that homosexuals are a class in
themselves for the purposes of the equal protection clause.[38] We are not prepared to single out homosexuals as a separate
class meriting special or differentiated treatment. We have not received sufficient evidence to this effect, and it is simply
unnecessary to make such a ruling today. Petitioner itself has merely demanded that it be recognized under the same basis
as all other groups similarly situated, and that the COMELEC made an unwarranted and impermissible classification not
justified by the circumstances of the case.

Freedom of Expression and Association

Under our system of laws, every group has the right to promote its agenda and attempt to persuade society of the
validity of its position through normal democratic means.[39] It is in the public square that deeply held convictions and
differing opinions should be distilled and deliberated upon. As we held in Estrada v. Escritor:[40]

In a democracy, this common agreement on political and moral ideas is distilled in the public square.
Where citizens are free, every opinion, every prejudice, every aspiration, and every moral discernment
has access to the public square where people deliberate the order of their life together. Citizens are the
bearers of opinion, including opinion shaped by, or espousing religious belief, and these citizens have
equal access to the public square. In this representative democracy, the state is prohibited from
determining which convictions and moral judgments may be proposed for public deliberation. Through a
constitutionally designed process, the people deliberate and decide. Majority rule is a necessary principle
in this democratic governance. Thus, when public deliberation on moral judgments is finally crystallized
into law, the laws will largely reflect the beliefs and preferences of the majority, i.e., the mainstream or
median groups. Nevertheless, in the very act of adopting and accepting a constitution and the limits it
specifies including protection of religious freedom "not only for a minority, however small not only for a
majority, however large but for each of us" the majority imposes upon itself a self-denying ordinance. It
promises not to do what it otherwise could do: to ride roughshod over the dissenting minorities.

Freedom of expression constitutes one of the essential foundations of a democratic society, and this freedom
applies not only to those that are favorably received but also to those that offend, shock, or disturb. Any restriction
imposed in this sphere must be proportionate to the legitimate aim pursued. Absent any compelling state interest, it is not
for the COMELEC or this Court to impose its views on the populace. Otherwise stated, the COMELEC is certainly not
free to interfere with speech for no better reason than promoting an approved message or discouraging a disfavored one.

This position gains even more force if one considers that homosexual conduct is not illegal in this country. It
follows that both expressions concerning ones homosexuality and the activity of forming a political association that
supports LGBT individuals are protected as well.
Other jurisdictions have gone so far as to categorically rule that even overwhelming public perception that
homosexual conduct violates public morality does not justify criminalizing same-sex conduct.[41] European and United
Nations judicial decisions have ruled in favor of gay rights claimants on both privacy and equality grounds, citing general
privacy and equal protection provisions in foreign and international texts.[42] To the extent that there is much to learn from
other jurisdictions that have reflected on the issues we face here, such jurisprudence is certainly illuminating. Theseforeign
authorities, while not formally binding on Philippine courts, may nevertheless have persuasive influence on the Courts
analysis.

In the area of freedom of expression, for instance, United States courts have ruled that existing free speech
doctrines protect gay and lesbian rights to expressive conduct. In order to justify the prohibition of a particular expression
of opinion, public institutions must show that their actions were caused by something more than a mere desire to avoid
the discomfort and unpleasantness that always accompany an unpopular viewpoint.[43]

With respect to freedom of association for the advancement of ideas and beliefs, in Europe, with its vibrant
human rights tradition, the European Court of Human Rights (ECHR) has repeatedly stated that a political party may
campaign for a change in the law or the constitutional structures of a state if it uses legal and democratic means and the
changes it proposes are consistent with democratic principles. The ECHR has emphasized that political ideas that
challenge the existing order and whose realization is advocated by peaceful means must be afforded a proper opportunity
of expression through the exercise of the right of association, even if such ideas may seem shocking or unacceptable to the
authorities or the majority of the population.[44] A political group should not be hindered solely because it seeks to publicly
debate controversial political issues in order to find solutions capable of satisfying everyone concerned.[45] Only if a
political party incites violence or puts forward policies that are incompatible with democracy does it fall outside the
protection of the freedom of association guarantee.[46]

We do not doubt that a number of our citizens may believe that homosexual conduct is distasteful, offensive, or
even defiant. They are entitled to hold and express that view. On the other hand, LGBTs and their supporters, in all
likelihood, believe with equal fervor that relationships between individuals of the same sex are morally equivalent to
heterosexual relationships. They, too, are entitled to hold and express that view. However, as far as this Court is
concerned, our democracy precludes using the religious or moral views of one part of the community to exclude from
consideration the values of other members of the community.
Of course, none of this suggests the impending arrival of a golden age for gay rights litigants. It well may be that this
Decision will only serve to highlight the discrepancy between the rigid constitutional analysis of this Court and the more
complex moral sentiments of Filipinos. We do not suggest that public opinion, even at its most liberal, reflect a clear-cut
strong consensus favorable to gay rights claims and we neither attempt nor expect to affect individual perceptions of
homosexuality through this Decision.

The OSG argues that since there has been neither prior restraint nor subsequent punishment imposed on Ang Ladlad, and
its members have not been deprived of their right to voluntarily associate, then there has been no restriction on their
freedom of expression or association. The OSG argues that:

There was no utterance restricted, no publication censored, or any assembly denied. [COMELEC] simply
exercised its authority to review and verify the qualifications of petitioner as a sectoral party applying to
participate in the party-list system. This lawful exercise of duty cannot be said to be a transgression of
Section 4, Article III of the Constitution.

xxxx

A denial of the petition for registration x x x does not deprive the members of the petitioner to freely take
part in the conduct of elections. Their right to vote will not be hampered by said denial. In fact, the right to
vote is a constitutionally-guaranteed right which cannot be limited.

As to its right to be elected in a genuine periodic election, petitioner contends that the denial of Ang
Ladlads petition has the clear and immediate effect of limiting, if not outrightly nullifying the capacity of
its members to fully and equally participate in public life through engagement in the party list elections.

This argument is puerile. The holding of a public office is not a right but a privilege subject to
limitations imposed by law. x x x[47]
The OSG fails to recall that petitioner has, in fact, established its qualifications to participate in the party-list
system, and as advanced by the OSG itself the moral objection offered by the COMELEC was not a limitation imposed
by law. To the extent, therefore, that the petitioner has been precluded, because of COMELECs action, from publicly
expressing its views as a political party and participating on an equal basis in the political process with other equally-
qualified party-list candidates, we find that there has, indeed, been a transgression of petitioners fundamental rights.

Non-Discrimination and International Law

In an age that has seen international law evolve geometrically in scope and promise, international human rights
law, in particular, has grown dynamically in its attempt to bring about a more just and humane world order. For
individuals and groups struggling with inadequate structural and governmental support, international human rights norms
are particularly significant, and should be effectively enforced in domestic legal systems so that such norms may become
actual, rather than ideal, standards of conduct.
 Our Decision today is fully in accord with our international obligations to protect and promote human rights. In
particular, we explicitly recognize the principle of non-discrimination as it relates to the right to electoral participation,
enunciated in the UDHR and the ICCPR.

The principle of non-discrimination is laid out in Article 26 of the ICCPR, as follows:

Article 26

All persons are equal before the law and are entitled without any discrimination to the equal protection of
the law. In this respect, the law shall prohibit any discrimination and guarantee to all persons equal and
effective protection against discrimination on any ground such as race, colour, sex, language, religion,
political or other opinion, national or social origin, property, birth or other status.

In this context, the principle of non-discrimination requires that laws of general application relating to elections be
applied equally to all persons, regardless of sexual orientation. Although sexual orientation is not specifically enumerated
as a status or ratio for discrimination in Article 26 of the ICCPR, the ICCPR Human Rights Committee has opined that
the reference to sex in Article 26 should be construed to include sexual orientation.[48] Additionally, a variety of United
Nations bodies have declared discrimination on the basis of sexual orientation to be prohibited under various international
agreements.[49]

The UDHR provides:

Article 21.

(1) Everyone has the right to take part in the government of his country, directly or through freely
chosen representatives.
Likewise, the ICCPR states:

Article 25
Every citizen shall have the right and the opportunity, without any of the distinctions mentioned
in article 2 and without unreasonable restrictions:

(a) To take part in the conduct of public affairs, directly or through freely chosen representatives;

(b) To vote and to be elected at genuine periodic elections which shall be by universal and equal
suffrage and shall be held by secret ballot, guaranteeing the free expression of the will of the electors;

(c) To have access, on general terms of equality, to public service in his country.

As stated by the CHR in its Comment-in-Intervention, the scope of the right to electoral participation is elaborated by the
Human Rights Committee in its General Comment No. 25 (Participation in Public Affairs and the Right to Vote) as
follows:
 1. Article 25 of the Covenant recognizes and protects the right of every citizen to take part in the
conduct of public affairs, the right to vote and to be elected and the right to have access to public service.
Whatever form of constitution or government is in force, the Covenant requires States to adopt such
legislative and other measures as may be necessary to ensure that citizens have an effective opportunity to
enjoy the rights it protects. Article 25 lies at the core of democratic government based on the consent of
the people and in conformity with the principles of the Covenant.

xxxx

15. The effective implementation of the right and the opportunity to stand for elective office
ensures that persons entitled to vote have a free choice of candidates. Any restrictions on the right to stand
for election, such as minimum age, must be justifiable on objective and reasonable criteria. Persons who
are otherwise eligible to stand for election should not be excluded by unreasonable or discriminatory
requirements such as education, residence or descent, or by reason of political affiliation. No person
should suffer discrimination or disadvantage of any kind because of that person's candidacy. States parties
should indicate and explain the legislative provisions which exclude any group or category of persons
from elective office.[50]

We stress, however, that although this Court stands willing to assume the responsibility of giving effect to
the Philippines international law obligations, the blanket invocation of international law is not the panacea for all social
ills. We refer now to the petitioners invocation of the Yogyakarta Principles (the Application of International Human
Rights Law In Relation to Sexual Orientation and Gender Identity),[51] which petitioner declares to reflect binding
principles of international law.

At this time, we are not prepared to declare that these Yogyakarta Principles contain norms that are obligatory on
the Philippines. There are declarations and obligations outlined in said Principles which are not reflective of the current
state of international law, and do not find basis in any of the sources of international law enumerated under Article 38(1)
of the Statute of the International Court of Justice.[52] Petitioner has not undertaken any objective and rigorous analysis of
these alleged principles of international law to ascertain their true status.

We also hasten to add that not everything that society or a certain segment of society wants or demands is
automatically a human right. This is not an arbitrary human intervention that may be added to or subtracted from at will. It
is unfortunate that much of what passes for human rights today is a much broader context of needs that identifies many
social desires as rights in order to further claims that international law obliges states to sanction these innovations. This has
the effect of diluting real human rights, and is a result of the notion that if wants are couched in rights language, then they
are no longer controversial.

Using even the most liberal of lenses, these Yogyakarta Principles, consisting of a declaration formulated by
various international law professors, are at best de lege ferenda and do not constitute binding obligations on the
Philippines. Indeed, so much of contemporary international law is characterized by the soft law nomenclature, i.e.,
international law is full of principles that promote international cooperation, harmony, and respect for human rights, most
of which amount to no more than well-meaning desires, without the support of either State practice or opinio juris.[53]

As a final note, we cannot help but observe that the social issues presented by this case are emotionally charged,
societal attitudes are in flux, even the psychiatric and religious communities are divided in opinion. This Courts role is not
to impose its own view of acceptable behavior. Rather, it is to apply the Constitution and laws as best as it can,
uninfluenced by public opinion, and confident in the knowledge that our democracy is resilient enough to withstand
vigorous debate.

WHEREFORE, the Petition is hereby GRANTED. The Resolutions of the Commission on Elections dated November
11, 2009 and December 16, 2009 in SPP No. 09-228 (PL) are hereby SET ASIDE. The Commission on Elections is
directed to GRANT petitioners application for party-list accreditation.
SO ORDERED.

MARIANO C. DEL CASTILLO

Associate Justice

WE CONCUR

Ms. Juliet Joslin et al. v New Zealand, Communication No. 902/1999,

U.N. Doc. A/57/40 at 214 (2002)

1) Reference Details
Jurisdiction: UN Human Rights Committee
Date of Decision: 17 July 2002
Link to full case: http://www1.umn.edu/humanrts/undocs/902-1999.html

2) Facts
Ms Joslin and Ms Rowan commenced a lesbian relationship in January 1988, since then, they jointly
assumed responsibility for their children out of previous marriages. They all lived together. They
applied under the Marriage Act 1955 to the local Registrar of Births, Deaths and Marriages for a
marriage licence, by lodging a notice of intended marriage at the local Registry Office. The Deputy
Registrar-General rejected the application.
Similarly, Ms Zelf and Ms Pearl commenced a lesbian relationship in April 1993. They also share
responsibility for the children of a previous marriage also they pooled financial resources and
maintained sexual relations. On 22 January 1996, the local Registry Office refused to accept a notice
of intended marriage.

3) Laws
National Law
1955 Marriage Act of New Zealand
International Law
Article 16 of the International Covenant on Civil and Political Rights (right to recognition
before the law)
 Article 17 of the International Covenant on Civil and Political Rights (right to privacy, home,
family and correspondence)
Article 17 in conjunction with Article 2, paragraph 1 of the International Covenant on Civil
and Political Rights (Each State Party to the present Covenant undertakes to respect and to
ensure to all individuals within its territory and subject to its jurisdiction the rights
recognized in the present Covenant, without distinction of any kind, such as race, colour,
sex, language, religion, political or other opinion, national or social origin, property, birth or
other status)
Article 23, paragraph 2, in conjunction with Article 2, paragraph 1 of the International
Covenant on Civil and Political Rights
Article 26 of the International Covenant on Civil and Political Rights (right to nondiscrimination)

4) Legal Arguments
The Authors

The authors claimed to be victims of a violation by New Zealand of Articles 16 and 17, on its own
and in conjunction with Article 2, paragraph 1; Article 23, paragraph 1, in conjunction with Article
2, paragraph 1; Article 23, paragraph 2, in conjunction with Article 2, paragraph 1; and Article 26 of
the Covenant. They claimed that the failure of the Marriage Act to provide for homosexual marriage
discriminates against them directly on the basis of sex and indirectly on the basis of sexual
orientation.

They further argued that their inability to marry causes them to suffer "a real adverse impact" in
several ways as they are denied the ability to marry, a basic civil right, and are excluded from full
membership of society and their relationship is stigmatised. Also there can be detrimental effects
on self-worth and they did not have ability to choose whether or not to marry, like heterosexual
couples did.

The State
The State contended that the authors did not exhaust domestic remedies. The State party rejected
the authors' claims of futility in pursuing a further appeal to the Privy Council, noting that it would
be open to the Privy Council to construe the terms of the Marriage Act as permitting a lesbian
marriage.

On the merits, the State rejected the authors' arguments that the Covenant requires States parties
to enable homosexual couples to marry, noting that such an approach would require redefinition of
a legal institution protected and defined by the Covenant itself, and of an institution reflective of the
social and cultural values in the State which are consistent with the Covenant.

5) Decision
Merits
The Committee held that in light of the scope of the right to marry under Article 23, paragraph 2, of
the Covenant, the Committee could not find that by mere refusal to provide for marriage between
homosexual couples, the State party had violated the rights of the authors under Articles 16, 17, 23,
paragraphs 1 and 2, or Article 26 of the Covenant.
 Ms. Juliet Joslin et al. v. New Zealand, Communication No. 902/1999,
U.N. Doc. A/57/40 at 214 (2002).

Communication No. 902/1999*

Submitted by: Ms. Juliet Joslin et al. (represented by counsel Mr. Nigel C. Christie)

Alleged victim: The author

State party: New Zealand

Date of communication: 30 November 1998 (initial submission)

The Human Rights Committee, established under article 28 of the International Covenant on Civil and Political
Rights,

Meeting on 17 July 2002,

Having concluded its consideration of communication No. 902/1999, submitted to the Human Rights
Committee by Ms. Juliet Joslin et al. under the Optional Protocol to the International Covenant on Civil and
Political Rights,

Having taken into account all written information made available to it by the author of the communication, and
the State party,

Adopts the following:

Views under article 5, paragraph 4, of the Optional Protocol

1. The authors of the communication are Juliet Joslin, Jennifer Rowan, Margaret Pearl and Lindsay Zelf, all of
New Zealand nationality, born on 24 October 1950, 27 September 1949, 16 November 1950, and 11 September
1951 respectively. The authors claim to be victims of a violation by New Zealand of articles 16; 17, on its own
and in conjunction with article 2, paragraph 1; 23, paragraph 1, in conjunction with article 2, paragraph 1; 23,
paragraph 2, in conjunction with article 2, paragraph 1; and 26. The authors are represented by counsel.

The facts as presented by the authors

2.1 Ms. Joslin and Ms. Rowan commenced a lesbian relationship in January 1988. Since that point, they have
jointly assumed responsibility for their children out of previous marriages. In living together, they have pooled
finances and jointly own their common home. They maintain sexual relations. On 4 December 1995, they
applied under the Marriage Act 1955 to the local Registrar of Births, Deaths and Marriages for a marriage
licence, by lodging a notice of intended marriage at the local Registry Office. On 14 December 1995, the
Deputy Registrar-General rejected the application.
2.2 Similarly, Ms. Zelf and Ms. Pearl commenced a lesbian relationship in April 1993. They also share
responsibility for the children of a previous marriage, pool financial resources and maintain sexual relations. On
22 January 1996, the local Registry Office refused to accept a notice of intended marriage. On 2 February 1996,
Ms Zelf and Ms Pearl lodged a notice of intended marriage at another Registry Office. On 12 February 1996,
the Registrar-General informed them that the notice could not be processed. The Registrar-General indicated
that the Registrar was acting lawfully in interpreting the Marriage Act as confined to marriage between a man
and a woman.

2.3 All four authors thereupon applied to the High Court for a declaration that, as lesbian couples, they were
lawfully entitled to obtain a marriage licence and to marry pursuant to the Marriage Act 1955. On 28 May 1996,
the High Court declined the application. Observing inter alia that the text of article 23, paragraph 2, of the
Covenant "does not point to same-sex marriages", the Court held that the statutory language of the Marriage Act
was clear in applying to marriage between a man and a woman only.

2.4 On 17 December 1997, a Full Bench of the Court of Appeal rejected the authors' appeal. The Court held
unanimously that the Marriage Act, in its terms, clearly applied to marriage between a man and a woman only.
A majority of the Court further went on to hold that the restriction in the Marriage Act of marriage to a man and
a woman did not constitute discrimination. Justice Keith, expressing the majority's views at length, found no
support in the scheme and text of the Covenant, the Committee's prior jurisprudence, the travaux prparatoires
nor scholarly writing (1) for the proposition that a limitation of marriage to a man and a woman violated the
Covenant.

The complaint

3.1 The authors claim a violation of article 26, in that the failure of the Marriage Act to provide for homosexual
marriage discriminates against them directly on the basis of sex and indirectly on the basis of sexual orientation.
They state that their inability to marry causes them to suffer "a real adverse impact" in several ways: they are
denied the ability to marry, a basic civil right, and are excluded from full membership of society; their
relationship is stigmatized and there can be detrimental effects on self-worth; and they do not have ability to
choose whether or not to marry, like heterosexual couples do.

3.2 The authors contend that the differentiation contained in the Marriage Act cannot be justified on any of a
variety of grounds that the State might advance. These are that marriage centres on procreation, and
homosexuals are incapable of procreation; that recognition of homosexual marriage would validate a particular
"lifestyle"; that marriage is consistent with public morality; that marriage is an institution of longevity; that
alternative forms of contractual/private arrangements are available; that an extension of current marriage would
open "floodgates" dangers; that marriage is an optimum construct for parenting; and that Parliament's
democratic decision should be accorded deference.

3.3 By way of rebuttal of these possible justifications, the authors note, firstly, that procreation does not lie at
the heart of marriage, and is not a necessary indicium for marriage in New Zealand law. In any event, lesbians
could procreate utilising reproductive technologies, and to allow homosexual marriage would not affect the
procreative capacity of heterosexuals. Secondly, there is no such thing as homosexual "lifestyle". In any event,
the Marriage Act does not sanction particular lifestyles, and there is no evidence any hypothetical homosexual
lifestyle contains elements which would justify an inability to marry. Thirdly, in accordance with the "Siracusa
Principles on the Limitation and Derogation Provisions of the ICCPR", (2) public morality cannot justify
discrimination contrary to the Covenant. In any event, so argue the authors, New Zealand public morality does
not support exclusion of homosexuals from marriage.

3.4 Fourthly, longevity or tradition cannot justify discrimination. In any case, historical research shows that
various societies in different parts of the world, have at different times, recognized homosexual
unions. (3)Fifthly, if homosexuals should have to enter contractual or other private arrangements to confer upon
themselves the benefits that flow from marriage, heterosexuals should be required to bear the same costs. In any
event, in New Zealand contractual arrangements would not confer the full benefits of marriage. Sixthly, it
would not follow from a permission of homosexual marriage that polygamous or incestuous marriages would
also have to be permitted. There are other reasons for not permitting such marriages that are not present in the
case of homosexual marriages. Seventhly, the authors contend that North American social science research has
demonstrated that the effect of homosexual parenthood on children is not markedly different from that of
heterosexual parents, including in the area of sexual identity and mental and emotional well-being. (4) In any
event, it is already the case, as with the authors, that homosexual couples are caring for children. Finally, the
authors argue that no deference should be shown to democratic will, as expressed by the national authorities, in
particular, the legislature, of a State party, as a human rights issue is involved. (5)

3.5 The authors also claim a violation of article 16. They argue that article 16 is aimed at permitting persons to
assert their essential dignity, through their recognition as proper subjects of law, both as individuals and as
members of a couple. The Marriage Act, in preventing the authors from acquiring the legal attributes and
advantages flowing from marriage, including advantages in the law of adoption, succession, matrimonial
property, family protection and evidence, deprives the authors of access to a significant institution through
which individuals acquire and exercise legal personality.

3.6 The authors further claim a violation of article 17, both on its own and in conjunction with article 2,
paragraph 1, in that the restriction of marriage to heterosexual couples violates the authors' rights to family and
privacy. The authors contend that their relationships display all the attributes of family life, (6) but are
nonetheless denied civil recognition through marriage. This amounts to a failure on the part of the State to
discharge its positive obligation to protect family life. Moreover, the failure publicly to respect the fundamental
private choice of one's sexual identity and partnerships flowing from that is an interference with the notion of
privacy in article 17. (7) This interference is also arbitrary, as it is discriminatory, based upon prejudice and
without justification for the reasons set out above.

3.7 The authors further claim a violation of article 23, paragraph 1, in conjunction with article 2, paragraph 1.
They state that their relationships exhibit all the criteria by reference to which a heterosexual family is said to
exist, with the only criteria missing being legal recognition. The authors submit that article 2, paragraph 1,
requires recognition of families to take place in a non-discriminatory manner, which the Marriage Act fails to
do.

3.8 Finally, the authors claim a violation of article 23, paragraph 2, in conjunction with article 2, paragraph 1.
They contend that the right of men and women to marry must be interpreted in the light of article 2, paragraph
1, which forbids distinctions of any kind. As the Marriage Act distinguishes on the prohibited ground of sex,
which includes within its ambit sexual orientation, (8) the authors' rights in these respects have been violated.
While the European Court has held that the corresponding right in the European Convention on Human Rights
is limited to marriage between a man and a woman, (9) the Committee should prefer a wider interpretation.
Moreover, examining the text of the Covenant, the phrase "men and women" in article 23, paragraph 2, does not
mean that only men may marry women, but rather that men as a group and women as a group may marry.

3.9 As to the exhaustion of domestic remedies, the authors contend that a further appeal from the Court of
Appeal to the Privy Council would be futile, as the courts cannot refuse to apply primary legislation such as the
Marriage Act.

The State party's submissions on admissibility and merits

4.1 As to the exhaustion of domestic remedies, the State party rejects the authors' claims of futility in pursuing a
further appeal to the Privy Council, noting that it would be open to the Privy Council to construe the terms of
the Marriage Act as permitting a lesbian marriage. The State party notes that the lower courts considered the
statutory meaning of the Act clear, and that there was no finding of any inconsistency with the Bill of Rights
Act and the right to non-discrimination contained therein. The question before the local courts was one of
statutory interpretation, and the Privy Council would be well able to come to a contrary conclusion as to the
proper meaning of the Act. The State party expressly declines, however, to draw a conclusion as to the
admissibility of the communication on this or any other grounds.

4.2 As to the merits, the State party rejects the authors' arguments that the Covenant requires States parties to
enable homosexual couples to marry, noting that such an approach would require redefinition of a legal
institution protected and defined by the Covenant itself, and of an institution reflective of the social and cultural
values in the State party which are consistent with the Covenant. The State party's law and policy protects and
recognizes homosexual couples in various ways, however recognition through the institution of marriage "goes
well beyond the terms of the Covenant". The State party notes that, while various States parties have instituted
forms of registration for homosexual couples, none currently permit homosexual marriage. (10) It is the
fundamental understanding of marriage in the Covenant, in other international instruments such as the Universal
Declaration of Human Rights and the European Convention for the Protection of Human Rights and
Fundamental Freedoms, as well as in New Zealand law, as being between a man and a woman.

4.3 The State party's over-arching argument is that the terms of article 23, paragraph 2, of the Covenant clearly
envisage that marriage may properly be defined in terms of couples of opposite sexes. The ordinary meaning of
the words "to marry" refers to couples of opposite sexes. (11) Significantly, article 23, paragraph 2, is the only
substantive right protected under the Covenant expressed in the gender-specific terms of "men and women",
with all other rights expressed in gender-neutral terms. (12) This contextual reading is strengthened by the word
"spouse", connoting parties to a marriage of opposite sexes, in article 23, paragraphs 3 and 4. The universal
consensus of State practice supports this view: no States parties provide for homosexual marriage; nor has any
State understood the Covenant to so require and accordingly entered a reservation.

4.4 The State party observes that this reading of article 23, paragraph 2, is consistent with the travaux
prparatoires of the Covenant. Article 23 was drawn directly from article 16 of the Universal Declaration of
Human Rights, which provides, in the only gender-specific reference in the Declaration, to the right of "[m]en
and women to marry". The travaux prparatoires of article 23 also contain repeated references to "husband
and wife". (13) Such an interpretation is also confirmed by respected academic commentary, (14) and by
decisions of the European Court of Human Rights which have repeatedly found that the equivalent provision of
the European Convention does not extend to homosexual couples. (15)

4.5 The State party emphasizes that the specific terms of article 23, paragraph 2, in clearly referring to couples
of different sex, must influence the interpretation of the other Covenant rights invoked. Following the
interpretative maxim generalia specialibus non derogant, to the effect that general provisions should not detract
from the meaning of specific provisions, the specific meaning of article 23, paragraph 2, excludes a contrary
interpretation being derived from other more general provisions of the Covenant.

4.6 As to article 16, the State party contends that this provision confers an individual right. It is not possible to
construe article 16 as creating an obligation to recognize particular forms of relationship in a given way, for the
legal personality protected by article 16 is of individuals rather than of a couple or other social grouping. The
travaux prparatoires and academic commentary both reinforce that article 16 is aimed at preventing a State
from denying individuals the ability to enjoy and enforce their legal rights, rather than dealing with an
individual's capacity to act. (16) Accordingly, article 16 cannot be understood to confer an entitlement to
acquire rights consequent upon any particular legal status or to act in a particular way, such as entering into
marriage, under law.

4.7 As to article 17, both on its own and in conjunction with article 2, paragraph 1, the State party refers to the
Committee's General Comment 16, which states that article 17 protects against "all such interferences and
attacks" on a person's expression of identity. The requirements of the Marriage Act, however, do not constitute
an interference or attack on the authors' family or privacy, which are protected by general legislation governing
privacy, human rights and family law. Unlike the criminal legislation at issue in Toonen v. Australia, (17) the
Marriage Act neither authorizes intrusions into personal matters, nor otherwise interferes with the authors'
privacy or family life, nor generally targets the authors as members of a social group. The authors are not
subject to any restriction on the expression of their identity or their entry into personal relationships, but rather
seek the State's conferral of a particular legal status on their relationship.

4.8 As to article 23, paragraph 1, in conjunction with article 2, paragraph 1, the State party states that, contrary
to the communication's allegation, it does recognize the authors, with and without their children, as families.
The law makes provision for the protection of families in a variety of ways, including law relating to protection
of children, protection of family property, dissolution of marriage and so on. While some of those areas do not
extend to homosexual couples, certain areas are under review (18) and a number of other measures do apply to
homosexual couples, (19) in keeping with social changes and involving careful review and extensive
consultation. Such differential treatment is permissible, for the Committee's jurisprudence is clear that
conceptions and legal treatments of families vary widely. (20) The Committee's General Comment 19 also
recognizes that law and policy relating to families may properly vary from one form of family to another.

4.9 The State party submits therefore that there is clear scope under article 23, paragraph 1, for different
treatment of different forms of family. A differential treatment of families that comprise or are headed by a
married couple also reflects States parties' obligations under article 23, paragraph 2, to provide for marriage as a
separate institution. The State party observes that it is carrying out a programmatic review of law and policy
affecting homosexual couples to ensure that social, political and cultural values remain met through its family
law and practice.
4.10 As to article 23, paragraph 2, in conjunction with article 2, paragraph 1, the State party refers to its
previous submissions that article 23, paragraph 2, cannot be read as extending to a right of homosexual couples
to marry. In any event, the inability of homosexual couples to marry under New Zealand law does not follow
from a differential treatment of homosexual couples but from the nature of the institution of marriage
recognized by article 23, paragraph 2, itself.

4.11 As to article 26, the State party emphasizes that the inability of homosexual couples to marry flows directly
from article 23, paragraph 2, of the Covenant and cannot, therefore, constitute discrimination in terms of article
26. Turning to the elements of discrimination under article 26, the State party argues firstly that the inability of
homosexuals to marry does not follow from a distinction, exclusion or restriction but rather from the inherent
nature of marriage itself. Marriage is at present universally understood as open only to individuals of opposite
sexes, and is so recognized in the civil law of all other States parties to the Covenant. While in recent years
some States parties have instituted forms of official recognition for homosexual relationships, none of these
have been described as marriage or possesses identical legal effect. As such, the clear understanding of
marriage, as underscored by the meaning of article 23, paragraph 2, is of individuals of opposite sexes.

4.12 The State party contends that the authors' attempt to interpret the principle of non-discrimination so as to
redefine the institution of marriage seeks not non-discrimination but identical treatment, which goes well
beyond the scope of article 26. The Covenant's travaux prparatoires also recognize that the right to non-
discrimination does not require identical treatment. (21) The institution of marriage is a clear example where the
substance of the law necessarily creates a difference between couples of opposite sexes and other groups or
individuals, and therefore the nature of the institution cannot constitute discrimination contrary to article 26.

4.13 Secondly, in any event, the inability of homosexual couples to marry under New Zealand law is not a
distinction or differentiation based on sex or sexual orientation. It is the nature of the couple, rather than of that
of individual members, that is determinative. The Marriage Act grants all persons equal rights to marriage,
regardless of sex or sexual orientation and does not differentiate between persons on any such basis. Rather, the
Act is the provision of a defined civil status to a certain defined form of social group. In this connection the
State party refers to a recent decision of the European Court of Justice, where it was held that the provision of
particular benefits to couples of opposite sexes but not to homosexual couples did not discriminate on the
grounds of sex, for the provision applied in the same manner to male and female persons. (22)

4.14 Thirdly, the State party argues that any differentiation is objectively and reasonably justified, for a purpose
legitimate under the Covenant. In differentiating between homosexual couples and couples of differing sexes,
the Marriage Act relies on clear and historically objective criteria and seeks to achieve the purpose of protecting
the institution of marriage and the social and cultural values that that institution represents. This purpose is
explicitly recognized as legitimate by article 23, paragraph 2, of the Covenant.

Comments by the authors

5.1 The authors reject the State party's submissions on admissibility and merits. As to admissibility, they
contend that if the Courts found that the true meaning of the Marriage Act was nonetheless discriminatory and
in violation of the Bill of Rights Act, the Courts would still be obliged to apply the Marriage Act, because
primary legislation cannot be set aside on the grounds of inconsistency with the Bill of Rights Act. As to the
merits, the authors contend that the Court of Appeal's decision that the Marriage Act was not discriminatory
was wrong. They argue that as (i) homosexuals are treated differently from heterosexuals with respect to
marriage, (ii) this differential treatment is based on sex and sexual orientation, and (iii) homosexual couples
thereby suffer substantive detriment and stigmatization, the Marriage Act is discriminatory. In support, the
authors cite a recent decision of the Supreme Court of British Columbia for the proposition that denial of access
to marriage under Canadian law is discriminatory. (23)

5.2 The authors contend that the domestic courts erred, as a matter of New Zealand law, in deciding that under
local law homosexual couples could not marry. The authors argue that the Courts failed to heed the injunction
of its domestic law that the Marriage Act should be interpreted in accordance with the non-discrimination
provision of the Bill of Rights Act 1990. The Courts did not do so despite the Government having failed
objectively to justify the distinction of the Marriage Act. The authors go on to argue that the courts wrongly
referred to a fixed "traditional" understanding of marriage, contending that past discrimination cannot justify
ongoing discrimination and that such a view ignores evolving social constructions. As a social construct, so
argue the authors, marriage can accordingly be socially deconstructed, or reconstructed. The authors find the
local courts, composed of heterosexual majorities, rooted in "dominant heterosexism". They contend that
society and the State have programmed their selective memories to construct marriage as inherently and
naturally heterosexual, thereby clearly excluding access by "deviant others" to marriage. The authors emphasize
that marriage in New Zealand is a secular act carried out according to secular rules, and others' religious
conceptions should not limit the rights of homosexuals.

5.3 According to the authors, their exclusion from the marriage institution fails to recognize the inherent dignity
of homosexuals, to recognize their equal and inalienable rights of homosexuals as members of the human
family, to provide the foundation of freedom and justice for homosexuals, to protect the human rights of
homosexuals, to utilize the rule of law to protect those rights, or to demonstrate that the peoples of the United
Nations have reaffirmed their faith in the dignity and worth of lesbian and gay people as human beings.

5.4 The authors also consider that homosexual couples have a legitimate expectation, derived from the
Covenants provision of equality, that the State party would actively pursue legislative measures which promote
recognition of homosexual relationships by appropriate legislation. The authors go on to argue, however, that
incremental improvements in the legal position of homosexual couples are not an acceptable manner in which to
address past discrimination, and in any event the improvements which have taken place do not result in greater
equality. The authors contend that the inclusion of homosexual couples in Property (Relationships) Act 1976
(providing equal property rights in the event of a break-up), (24) the Electricity Act 1992, the Domestic
Violence Act 1995, the Harassment Act 1992, the Accident Insurance Act 1998 and the Housing Restructuring
(Income Related Rents) Amendment Act 2000 is not full recognition of homosexual couples. The authors state
that a Civil Union Bill is to be proposed by the Government to Parliament, offering an alternative to marriage
for legal recognition of relationships. Such a Bill would be insufficient and perpetuate inequality, however, as it
would probably not offer all the legal incidents of marriage. The authors also contend that other future
legislative improvements for homosexual couples that are planned in the Human Rights Amendment Bill 2001
are too few in number and generally unsatisfactory.

5.5 Finally, as to State practice, the authors point out that one State party, the Netherlands, opened civil
marriage to homosexual couples with effect from 1 April 2001.
Supplementary submissions by the State party

6.1 The State party made supplementary submissions on the following matters, while rejecting the authors'
comments and referring to its original submissions on the remaining issues. The State party notes, first, that its
Government has not yet elected whether it will adopt the Civil Union Bill currently proposed by a
Parliamentary member. Secondly, the State party states that it has continued its programmatic review of law and
policy, and, through the passage of the Human Rights Amendment Act, has provided a number of
improvements to the legal position of homosexual couples. (25) The Amendment Act also introduces a human
rights complaint procedure (with public legal aid available) for the challenge of government policy. The
tribunals established, and the courts, will be able to grant substantive remedies. In the case of a challenge to
legislation, these bodies will be able to make a declaration of inconsistency requiring a Government response in
120 days, while mandatory orders can issue with respect to policies and practices. In any event, the State party
does not accept that a programmatic and incremental approach violates the Covenant.

6.2 As to the authors' interpretation of case law, the State party disagrees with the interpretation thereof
advanced by the authors. The State party argues that, contrary to the authors' supposition, the Supreme Court of
British Columbia did not find discrimination in the Shortt (26) case. The Court considered the infringement of
the petitioners' equality rights in that case to be justified, and accordingly that there was no violation of the
Canadian Charter of Rights and Freedoms. As to the unspecified case the authors refer to, (27) the State party
notes that in the case of Re an Application of T, (28) the High Court determined that T's application to adopt
one of her lesbian partner's three children would, on the facts, not be in the best interests of the child. No benefit
would enure to the child further to what was already provided by guardianship. In A v. R, (29)following the
break-up of the same couple, the Court made a child support award in favour of the custodial parent in order
properly to provide for the children. The State party rejects the contention that these cases illustrate anomalous
recognition of the relationship only after it ended, arguing rather that each case was a careful assessment of the
needs of the children and the effects on them of the relationship at each point.

6.3 Finally, in response to the authors' assertion that the Covenant legally creates a "legitimate expectation" that
homosexual couples are recognized, the State party states that under its constitutional arrangements it is obliged
to ensure, as it has done, that its domestic law is consistent with the Covenant.

Issues and proceedings before the Committee

Consideration of admissibility

7.1 Before considering any claim contained in a communication, the Human Rights Committee must, in
accordance with rule 87 of its rules of procedure, decide whether or not the communication is admissible under
the Optional Protocol to the Covenant.

7.2 The Committee has ascertained that the same matter is not being examined under another procedure of
international investigation or settlement for purposes of article 5, paragraph 2 (a) of the Optional Protocol.

7.3 As to the exhaustion of domestic remedies, the Committee notes the State party's argument that it would
have been open to the Privy Council to interpret the Marriage Act, contrary to the approach of the Court of
Appeal, in the manner sought by the authors. The Committee notes, however, that the State party expressly
declared that it was making "no submission as to the admissibility of the communication under article 5 (2) (b)
of the Optional Protocol". In the light of this declaration and in the absence of any other objections to the
admissibility of the communication, the Committee decides that the communication is admissible.

Consideration of the merits

8.1 The Human Rights Committee has considered the present communication in the light of all the information
made available to it by the parties, as provided in article 5, paragraph 1 of the Optional Protocol.

8.2 The authors' essential claim is that the Covenant obligates States parties to confer upon homosexual couples
the capacity to marry and that by denying the authors this capacity the State party violates their rights under
articles 16, 17, 23, paragraphs 1 and 2, and 26 of the Covenant. The Committee notes that article 23, paragraph
2, of the Covenant expressly addresses the issue of the right to marry.

Given the existence of a specific provision in the Covenant on the right to marriage, any claim that this right has
been violated must be considered in the light of this provision. Article 23, paragraph 2, of the Covenant is the
only substantive provision in the Covenant which defines a right by using the term "men and women", rather
than "every human being", "everyone" and "all persons". Use of the term "men and women", rather than the
general terms used elsewhere in Part III of the Covenant, has been consistently and uniformly understood as
indicating that the treaty obligation of States parties stemming from article 23, paragraph 2, of the Covenant is
to recognize as marriage only the union between a man and a woman wishing to marry each other.

8.3 In light of the scope of the right to marry under article 23, paragraph 2, of the Covenant, the Committee
cannot find that by mere refusal to provide for marriage between homosexual couples, the State party has
violated the rights of the authors under articles 16, 17, 23, paragraphs 1 and 2, or 26 of the Covenant.

9. The Human Rights Committee, acting under article 5, paragraph 4, of the Optional Protocol, is of the view
that the facts before it do not disclose a violation of any provision of the International Covenant on Civil and
Political Rights.

___________________

Adopted in English, French and Spanish, the English text being the original version. Subsequently to be issued
also in Arabic, Chinese and Russian as part of the Committee's annual Report to the General Assembly.

* The following members of the Committee participated in the examination of the present communication: Mr.
Abdelfattah Amor, Mr. Nisuke Ando, Mr. Prafullachandra Natwarlal Bhagwati, Ms. Christine Chanet, Mr.
Louis Henkin, Mr. Ahmed Tawfik Khalil, Mr. Eckart Klein, Mr. David Kretzmer, Mr. Rajsoomer Lallah, Mr.
Rafael Rivas Posada, Mr. Martin Scheinin, Mr. Ivan Shearer, Mr. Hiplito Solari Yrigoyen, Mr. Patrick Vella
and Mr. Maxwell Yalden.
** The text of a concurring individual opinion signed by Mr. Rajsoomer Lallah and Mr. Martin Scheinin is
appended to this document.

Notes

1. Harris, D., Joseph, S.: The International Covenant on Civil and Political Rights and United Kingdom Law,
Oxford, Oxford University Press, 1995, p. 507 ("It seems clear that the drafters did not envisage homosexual or
lesbian marriages as falling within the terms of article 23 (2).")

2 E/CN.4/1985/4, reprinted in 36 ICJ Review 47 (June 1986).

3 The authors refer to Pantazis, A.: "An Argument for the Legal Recognition of Gay and Lesbian Marriage",
(1996) 113 South African Law Journal 556; and Eskridge, W.: "A History of Same-Sex Marriage", (1993) 79
Virginia Law Review 1419.

4 The authors refer to Bozett, F.: Gay and Lesbian Parents (1987); Schwartz-Gottman, J.: "Children of Gay and
Lesbian Parents", (1989) 14 Marriage and Family Review 177; and Patterson, C.: "Children of Lesbian and Gay
Parents", (1992) 63 Child Development 1025.

5 The authors cite, in reliance, Toonen v. Australia (Communication 488/1992, Views adopted 31 March 1994,
at 9.5) and Sutherland v. United Kingdom ((1997) 24 EHRR-CD 22, at 62).

6 The authors refer to Aumeeruddy-Cziffra v. Mauritius (Communication 35/1978) and Abdulaziz et al. v.
United Kingdom ((1985) 7 EHRR 471).

7 The authors refer to Coeriel et al. v. The Netherlands (Communication 453/1991, Views of 31 October 1994,
at 10.2).

8 Toonen v. Australia, op. cit.

9 Sheffield & Horsham v. United Kingdom (31-32/1997/815-816/1018-1019, Judgment of 30 July 1998),

interpreting article 12 ("Men and women of marriageable age have the right to marry and found a family,
according to the national laws governing the exercise of this right").

10 The State party notes that a Bill that would permit homosexual marriage is currently before the Dutch
Parliament.

11 Shorter Oxford English Dictionary, Clarendon (1993), at 1701-2 defines "marry" as "join (two persons, one
person to another) in marriage; constitute as husband and wife according to law or custom" and "marriage" as
"legally recognized personal union entered into by a man and a woman".

12 Except for the prohibition of the infliction of capital punishment upon pregnant women under article 6,
paragraph 5.

13 Commission on Human Rights, ninth session (1953), A2929, Chap. VI, 155 & 159; Third Committee,
ninth session (1954), A/5000, 1.

14 Ghandi, S.: "Family and Child Rights", in Harris, D., Joseph, S. (eds.): The International Covenant on Civil
and Political Rights and United Kingdom Law (Oxford, 1995) 491, at 507: "It seems clear that the drafters did
not envisage homosexual or lesbian marriages as falling within the terms of article 23 (2), which speaks in
terms of the right of 'men and women of marriageable age to marry and found a family'"; and Nowak, M.:
United Nations Covenant on Civil and Political Rights: CCPR Commentary (Engel, Kehl, 1993) at 407: "The
prohibition of 'marriages' between partners of the same sex is easily upheld by the term 'to marry' ('se marrier')
which traditionally refers only to persons of different gender. Moreover, article 23 (2) places particular
emphasis, as in comparable provisions in regional conventions, on the right of 'men and women' to marry"
[emphasis original].

15 Rees v. United Kingdom, 17 October 1986, Series A No. 106, p. 19, para. 49; Cossey v. United Kingdom, 27
September 1990, Series A No. 184, p. 17, para. 43; Sheffield and Horsham v. United Kingdom, 30 July 1998,
Series A No. 8, p. 2030, para. 66.

16 A/4625, para. 25, and, Nowak, supra, at 283-284.

17 Communication No. 488/1992.

18 The State party's Government has introduced legislation into Parliament proposing uniform standards for
property rights for established unmarried couples, whether homosexual or heterosexual, and married couples in
the event of a relationship breakdown.

19 These include the provision of accident compensation under the Accident Insurance Act 1998, the Domestic
Violence Act 1995 and immigration to New Zealand.

20 Hopu v. France (Communication No. 549/1993) and Aumeeruddy-Cziffra v. Mauritius (Communication No.
35/1978).

21 Fifth session (1949), sixth session (1950), eighth session (1952), A/2929, Chap. VI, 179.
22 Grant v. South-West Trains Ltd. (Case C-249/96, Judgement of 17 February 1998).

23 Egale Canada Inc., Shortt et al. v. Attorney-General of Canada et al. (Unreported, 2001 BCSC 1365, 2
October 2001).

24 The authors also refer in this connection to an unspecified case in the High Court where a court made a child
support award against a non-custodial lesbian parent who had earlier had an adoption application denied. They
contend that a relationship recognized after its break-up should also be recognized before.

25 This includes provision in the Crimes Act 1961 and Judicature Act 1908 (partners of jury members),
Electoral Act 1993 and Referenda (Postal Voting) Act 2000 (electoral enrolment), Holidays Act 1981
(eligibility for carers' and bereavement leave), Alcoholism and Drug Addiction Act 1966 (applications by
relatives for compulsory treatment), Human Tissue Act 1964 (consent to donation of internal organs or other
tissue after death), Life Insurance Act 1908 (statutory regulation of couples' insurance arrangements), Protection
of Personal and Property Rights Act 1988 (protection of individuals unable to administer their own affairs), Sale
of Liquor Act 1989 (administration of licensed premises), Summary Proceedings Act 1957 (service of court
documents) and War Pensions Act 1954 (pension eligibility).

26 Op. cit.

27 Supra, note 23.

28 [1998] NZFLR 769.

29 (1999) 17 FRNZ 647.

Appendix

Individual opinion of Committee members Mr. Rajsoomer Lallah

and Mr. Martin Scheinin (concurring)

We found no difficulty in joining the Committee's consensus on the interpretation of the right to marry under
article 23, paragraph 2. This provision entails an obligation for States to recognize as marriage the union of one
adult man and one adult woman who wish to marry each other. The provision in no way limits the liberty of
States, pursuant to article 5, paragraph 2, to recognize, in the form of marriage or in some other comparable
form, the companionship between two men or between two women. However, no support can be drawn from
this provision for practices that violate the human rights or dignity of individuals, such as child marriages or
forced marriages.

As to the Committee's unanimous view that it cannot find a violation of article 26, either, in the non-recognition
as marriage of the same-sex relationships between the authors, we wish to add a few observations. This
conclusion should not be read as a general statement that differential treatment between married couples and
same-sex couples not allowed under the law to marry would never amount to a violation of article 26. On the
contrary, the Committee's jurisprudence supports the position that such differentiation may very well,
depending on the circumstances of a concrete case, amount to prohibited discrimination.

Contrary to what was asserted by the State party (para. 4.12), it is the established view of the Committee that
the prohibition against discrimination on grounds of "sex" in article 26 comprises also discrimination based on
sexual orientation.(a) And when the Committee has held that certain differences in the treatment of married
couples and unmarried heterosexual couples were based on reasonable and objective criteria and hence not
discriminatory, the rationale of this approach was in the ability of the couples in question to choose whether to
marry or not to marry, with all the entailing consequences. (b) No such possibility of choice exists for same-sex
couples in countries where the law does not allow for same-sex marriage or other type of recognized same-sex
partnership with consequences similar to or identical with those of marriage. Therefore, a denial of certain
rights or benefits to same-sex couples that are available to married couples may amount to discrimination
prohibited under article 26, unless otherwise justified on reasonable and objective criteria.

However, in the current case we find that the authors failed, perhaps intentionally, to demonstrate that they were
personally affected in relation to certain rights not necessarily related to the institution of marriage, by any such
distinction between married and unmarried persons that would amount to discrimination under article 26. Their
references to differences in treatment between married couples and same-sex unions were either repetitious of
the refusal of the State party to recognize same-sex unions in the specific form of "marriage" (para. 3.1), an
issue decided by the Committee under article 23, or remained unsubstantiated as to if and how the authors were
so personally affected (para. 3.5). Taking into account the assertion by the State party that it does recognize the
authors, with and without their children, as families (para. 4.8), we are confident in joining the Committee's
consensus that there was no violation of article 26.

(signed) Rajsoomer Lallah

(signed) Martin Scheinin

Adopted in English, French and Spanish, the English text being the original version. Subsequently to be issued
also in Arabic, Chinese and Russian as part of the Committee's annual report to the General Assembly.

Notes

a. Toonen v. Australia, Communication No. 488/1992.

b. Danning v. the Netherlands, Communication No. 180/1984.

Republic of the Philippines

SUPREME COURT
Manila

EN BANC
G.R. No. 101083 July 30, 1993

JUAN ANTONIO, ANNA ROSARIO and JOSE ALFONSO, all surnamed OPOSA, minors, and represented by
their parents ANTONIO and RIZALINA OPOSA, ROBERTA NICOLE SADIUA, minor, represented by her
parents CALVIN and ROBERTA SADIUA, CARLO, AMANDA SALUD and PATRISHA, all surnamed FLORES,
minors and represented by their parents ENRICO and NIDA FLORES, GIANINA DITA R. FORTUN, minor,
represented by her parents SIGRID and DOLORES FORTUN, GEORGE II and MA. CONCEPCION, all
surnamed MISA, minors and represented by their parents GEORGE and MYRA MISA, BENJAMIN ALAN V.
PESIGAN, minor, represented by his parents ANTONIO and ALICE PESIGAN, JOVIE MARIE ALFARO, minor,
represented by her parents JOSE and MARIA VIOLETA ALFARO, MARIA CONCEPCION T. CASTRO, minor,
represented by her parents FREDENIL and JANE CASTRO, JOHANNA DESAMPARADO,
minor, represented by her parents JOSE and ANGELA DESAMPRADO, CARLO JOAQUIN T. NARVASA,
minor, represented by his parents GREGORIO II and CRISTINE CHARITY NARVASA, MA. MARGARITA,
JESUS IGNACIO, MA. ANGELA and MARIE GABRIELLE, all surnamed SAENZ, minors, represented by their
parents ROBERTO and AURORA SAENZ, KRISTINE, MARY ELLEN, MAY, GOLDA MARTHE and DAVID IAN,
all surnamed KING, minors, represented by their parents MARIO and HAYDEE KING, DAVID, FRANCISCO
and THERESE VICTORIA, all surnamed ENDRIGA, minors, represented by their parents BALTAZAR and
TERESITA ENDRIGA, JOSE MA. and REGINA MA., all surnamed ABAYA, minors, represented by their
parents ANTONIO and MARICA ABAYA, MARILIN, MARIO, JR. and MARIETTE, all surnamed CARDAMA,
minors, represented by their parents MARIO and LINA CARDAMA, CLARISSA, ANN MARIE, NAGEL, and
IMEE LYN, all surnamed OPOSA, minors and represented by their parents RICARDO and MARISSA OPOSA,
PHILIP JOSEPH, STEPHEN JOHN and ISAIAH JAMES, all surnamed QUIPIT, minors, represented by their
parents JOSE MAX and VILMI QUIPIT, BUGHAW CIELO, CRISANTO, ANNA, DANIEL and FRANCISCO, all
surnamed BIBAL, minors, represented by their parents FRANCISCO, JR. and MILAGROS BIBAL, and THE
PHILIPPINE ECOLOGICAL NETWORK, INC., petitioners,
vs.
THE HONORABLE FULGENCIO S. FACTORAN, JR., in his capacity as the Secretary of the Department of
Environment and Natural Resources, and THE HONORABLE ERIBERTO U. ROSARIO, Presiding Judge of
the RTC, Makati, Branch 66, respondents.

Oposa Law Office for petitioners.

The Solicitor General for respondents.

DAVIDE, JR., J.:

In a broader sense, this petition bears upon the right of Filipinos to a balanced and healthful ecology which the
petitioners dramatically associate with the twin concepts of "inter-generational responsibility" and "inter-generational
justice." Specifically, it touches on the issue of whether the said petitioners have a cause of action to "prevent the
misappropriation or impairment" of Philippine rainforests and "arrest the unabated hemorrhage of the country's vital
life support systems and continued rape of Mother Earth."

The controversy has its genesis in Civil Case No. 90-77 which was filed before Branch 66 (Makati, Metro Manila) of
the Regional Trial Court (RTC), National Capital Judicial Region. The principal plaintiffs therein, now the principal
petitioners, are all minors duly represented and joined by their respective parents. Impleaded as an additional
plaintiff is the Philippine Ecological Network, Inc. (PENI), a domestic, non-stock and non-profit corporation organized
for the purpose of, inter alia, engaging in concerted action geared for the protection of our environment and natural
resources. The original defendant was the Honorable Fulgencio S. Factoran, Jr., then Secretary of the Department
of Environment and Natural Resources (DENR). His substitution in this petition by the new Secretary, the Honorable
Angel C. Alcala, was subsequently ordered upon proper motion by the petitioners. 1 The complaint 2 was instituted as
a taxpayers' class suit 3 and alleges that the plaintiffs "are all citizens of the Republic of the Philippines, taxpayers, and
entitled to the full benefit, use and enjoyment of the natural resource treasure that is the country's virgin tropical forests."
The same was filed for themselves and others who are equally concerned about the preservation of said resource but are
"so numerous that it is impracticable to bring them all before the Court." The minors further asseverate that they
"represent their generation as well as generations yet unborn." 4 Consequently, it is prayed for that judgment be rendered:
 . . . ordering defendant, his agents, representatives and other persons acting in his behalf to

(1) Cancel all existing timber license agreements in the country;

(2) Cease and desist from receiving, accepting, processing, renewing or approving new timber
license agreements.

and granting the plaintiffs ". . . such other reliefs just and equitable under the premises." 5

The complaint starts off with the general averments that the Philippine archipelago of 7,100 islands has a land area
of thirty million (30,000,000) hectares and is endowed with rich, lush and verdant rainforests in which varied, rare
and unique species of flora and fauna may be found; these rainforests contain a genetic, biological and chemical
pool which is irreplaceable; they are also the habitat of indigenous Philippine cultures which have existed, endured
and flourished since time immemorial; scientific evidence reveals that in order to maintain a balanced and healthful
ecology, the country's land area should be utilized on the basis of a ratio of fifty-four per cent (54%) for forest cover
and forty-six per cent (46%) for agricultural, residential, industrial, commercial and other uses; the distortion and
disturbance of this balance as a consequence of deforestation have resulted in a host of environmental tragedies,
such as (a) water shortages resulting from drying up of the water table, otherwise known as the "aquifer," as well as
of rivers, brooks and streams, (b) salinization of the water table as a result of the intrusion therein of salt water,
incontrovertible examples of which may be found in the island of Cebu and the Municipality of Bacoor, Cavite, (c)
massive erosion and the consequential loss of soil fertility and agricultural productivity, with the volume of soil
eroded estimated at one billion (1,000,000,000) cubic meters per annum approximately the size of the entire
island of Catanduanes, (d) the endangering and extinction of the country's unique, rare and varied flora and fauna,
(e) the disturbance and dislocation of cultural communities, including the disappearance of the Filipino's indigenous
cultures, (f) the siltation of rivers and seabeds and consequential destruction of corals and other aquatic life leading
to a critical reduction in marine resource productivity, (g) recurrent spells of drought as is presently experienced by
the entire country, (h) increasing velocity of typhoon winds which result from the absence of windbreakers, (i) the
floodings of lowlands and agricultural plains arising from the absence of the absorbent mechanism of forests, (j) the
siltation and shortening of the lifespan of multi-billion peso dams constructed and operated for the purpose of
supplying water for domestic uses, irrigation and the generation of electric power, and (k) the reduction of the earth's
capacity to process carbon dioxide gases which has led to perplexing and catastrophic climatic changes such as the
phenomenon of global warming, otherwise known as the "greenhouse effect."

Plaintiffs further assert that the adverse and detrimental consequences of continued and deforestation are so
capable of unquestionable demonstration that the same may be submitted as a matter of judicial notice. This
notwithstanding, they expressed their intention to present expert witnesses as well as documentary, photographic
and film evidence in the course of the trial.

As their cause of action, they specifically allege that:

CAUSE OF ACTION

7. Plaintiffs replead by reference the foregoing allegations.

8. Twenty-five (25) years ago, the Philippines had some sixteen (16) million hectares of rainforests
constituting roughly 53% of the country's land mass.

9. Satellite images taken in 1987 reveal that there remained no more than 1.2 million hectares of
said rainforests or four per cent (4.0%) of the country's land area.

10. More recent surveys reveal that a mere 850,000 hectares of virgin old-growth rainforests are left,
barely 2.8% of the entire land mass of the Philippine archipelago and about 3.0 million hectares of
immature and uneconomical secondary growth forests.
11. Public records reveal that the defendant's, predecessors have granted timber license
agreements ('TLA's') to various corporations to cut the aggregate area of 3.89 million hectares for
commercial logging purposes.

A copy of the TLA holders and the corresponding areas covered is hereto attached as Annex "A".

12. At the present rate of deforestation, i.e. about 200,000 hectares per annum or 25 hectares per
hour nighttime, Saturdays, Sundays and holidays included the Philippines will be bereft of
forest resources after the end of this ensuing decade, if not earlier.

13. The adverse effects, disastrous consequences, serious injury and irreparable damage of this
continued trend of deforestation to the plaintiff minor's generation and to generations yet unborn are
evident and incontrovertible. As a matter of fact, the environmental damages enumerated in
paragraph 6 hereof are already being felt, experienced and suffered by the generation of plaintiff
adults.

14. The continued allowance by defendant of TLA holders to cut and deforest the remaining forest
stands will work great damage and irreparable injury to plaintiffs especially plaintiff minors and
their successors who may never see, use, benefit from and enjoy this rare and unique natural
resource treasure.

This act of defendant constitutes a misappropriation and/or impairment of the natural resource
property he holds in trust for the benefit of plaintiff minors and succeeding generations.

15. Plaintiffs have a clear and constitutional right to a balanced and healthful ecology and are
entitled to protection by the State in its capacity as the parens patriae.

16. Plaintiff have exhausted all administrative remedies with the defendant's office. On March 2,
1990, plaintiffs served upon defendant a final demand to cancel all logging permits in the country.

A copy of the plaintiffs' letter dated March 1, 1990 is hereto attached as Annex "B".

17. Defendant, however, fails and refuses to cancel the existing TLA's to the continuing serious
damage and extreme prejudice of plaintiffs.

18. The continued failure and refusal by defendant to cancel the TLA's is an act violative of the rights
of plaintiffs, especially plaintiff minors who may be left with a country that is desertified (sic), bare,
barren and devoid of the wonderful flora, fauna and indigenous cultures which the Philippines had
been abundantly blessed with.

19. Defendant's refusal to cancel the aforementioned TLA's is manifestly contrary to the public policy
enunciated in the Philippine Environmental Policy which, in pertinent part, states that it is the policy
of the State

(a) to create, develop, maintain and improve conditions under which man and nature can thrive in
productive and enjoyable harmony with each other;

(b) to fulfill the social, economic and other requirements of present and future generations of
Filipinos and;

(c) to ensure the attainment of an environmental quality that is conductive to a life of dignity and well-
being. (P.D. 1151, 6 June 1977)

20. Furthermore, defendant's continued refusal to cancel the aforementioned TLA's is contradictory
to the Constitutional policy of the State to
 a. effect "a more equitable distribution of opportunities, income and wealth" and "make full and
efficient use of natural resources (sic)." (Section 1, Article XII of the Constitution);

b. "protect the nation's marine wealth." (Section 2, ibid);

c. "conserve and promote the nation's cultural heritage and resources (sic)" (Section 14, Article
XIV,id.);

d. "protect and advance the right of the people to a balanced and healthful ecology in accord with the
rhythm and harmony of nature." (Section 16, Article II, id.)

21. Finally, defendant's act is contrary to the highest law of humankind the natural law and
violative of plaintiffs' right to self-preservation and perpetuation.

22. There is no other plain, speedy and adequate remedy in law other than the instant action to
arrest the unabated hemorrhage of the country's vital life support systems and continued rape of
Mother Earth. 6

On 22 June 1990, the original defendant, Secretary Factoran, Jr., filed a Motion to Dismiss the complaint based on
two (2) grounds, namely: (1) the plaintiffs have no cause of action against him and (2) the issue raised by the
plaintiffs is a political question which properly pertains to the legislative or executive branches of Government. In
their 12 July 1990 Opposition to the Motion, the petitioners maintain that (1) the complaint shows a clear and
unmistakable cause of action, (2) the motion is dilatory and (3) the action presents a justiciable question as it
involves the defendant's abuse of discretion.

On 18 July 1991, respondent Judge issued an order granting the aforementioned motion to dismiss. 7 In the said
order, not only was the defendant's claim that the complaint states no cause of action against him and that it raises a
political question sustained, the respondent Judge further ruled that the granting of the relief prayed for would result in
the impairment of contracts which is prohibited by the fundamental law of the land.

Plaintiffs thus filed the instant special civil action for certiorari under Rule 65 of the Revised Rules of Court and ask
this Court to rescind and set aside the dismissal order on the ground that the respondent Judge gravely abused his
discretion in dismissing the action. Again, the parents of the plaintiffs-minors not only represent their children, but
have also joined the latter in this case. 8

On 14 May 1992, We resolved to give due course to the petition and required the parties to submit their respective
Memoranda after the Office of the Solicitor General (OSG) filed a Comment in behalf of the respondents and the
petitioners filed a reply thereto.

Petitioners contend that the complaint clearly and unmistakably states a cause of action as it contains sufficient
allegations concerning their right to a sound environment based on Articles 19, 20 and 21 of the Civil Code (Human
Relations), Section 4 of Executive Order (E.O.) No. 192 creating the DENR, Section 3 of Presidential Decree (P.D.)
No. 1151 (Philippine Environmental Policy), Section 16, Article II of the 1987 Constitution recognizing the right of the
people to a balanced and healthful ecology, the concept of generational genocide in Criminal Law and the concept
of man's inalienable right to self-preservation and self-perpetuation embodied in natural law. Petitioners likewise rely
on the respondent's correlative obligation per Section 4 of E.O. No. 192, to safeguard the people's right to a
healthful environment.

It is further claimed that the issue of the respondent Secretary's alleged grave abuse of discretion in granting Timber
License Agreements (TLAs) to cover more areas for logging than what is available involves a judicial question.

Anent the invocation by the respondent Judge of the Constitution's non-impairment clause, petitioners maintain that
the same does not apply in this case because TLAs are not contracts. They likewise submit that even if TLAs may
be considered protected by the said clause, it is well settled that they may still be revoked by the State when the
public interest so requires.
On the other hand, the respondents aver that the petitioners failed to allege in their complaint a specific legal right
violated by the respondent Secretary for which any relief is provided by law. They see nothing in the complaint but
vague and nebulous allegations concerning an "environmental right" which supposedly entitles the petitioners to the
"protection by the state in its capacity as parens patriae." Such allegations, according to them, do not reveal a valid
cause of action. They then reiterate the theory that the question of whether logging should be permitted in the
country is a political question which should be properly addressed to the executive or legislative branches of
Government. They therefore assert that the petitioners' resources is not to file an action to court, but to lobby before
Congress for the passage of a bill that would ban logging totally.

As to the matter of the cancellation of the TLAs, respondents submit that the same cannot be done by the State
without due process of law. Once issued, a TLA remains effective for a certain period of time usually for twenty-
five (25) years. During its effectivity, the same can neither be revised nor cancelled unless the holder has been
found, after due notice and hearing, to have violated the terms of the agreement or other forestry laws and
regulations. Petitioners' proposition to have all the TLAs indiscriminately cancelled without the requisite hearing
would be violative of the requirements of due process.

Before going any further, We must first focus on some procedural matters. Petitioners instituted Civil Case No. 90-
777 as a class suit. The original defendant and the present respondents did not take issue with this matter.
Nevertheless, We hereby rule that the said civil case is indeed a class suit. The subject matter of the complaint is of
common and general interest not just to several, but to all citizens of the Philippines. Consequently, since the parties
are so numerous, it, becomes impracticable, if not totally impossible, to bring all of them before the court. We
likewise declare that the plaintiffs therein are numerous and representative enough to ensure the full protection of all
concerned interests. Hence, all the requisites for the filing of a valid class suit under Section 12, Rule 3 of the
Revised Rules of Court are present both in the said civil case and in the instant petition, the latter being but an
incident to the former.

This case, however, has a special and novel element. Petitioners minors assert that they represent their generation
as well as generations yet unborn. We find no difficulty in ruling that they can, for themselves, for others of their
generation and for the succeeding generations, file a class suit. Their personality to sue in behalf of the succeeding
generations can only be based on the concept of intergenerational responsibility insofar as the right to a balanced
and healthful ecology is concerned. Such a right, as hereinafter expounded, considers
the "rhythm and harmony of nature." Nature means the created world in its entirety. 9 Such rhythm and harmony
indispensably include, inter alia, the judicious disposition, utilization, management, renewal and conservation of the
country's forest, mineral, land, waters, fisheries, wildlife, off-shore areas and other natural resources to the end that their
exploration, development and utilization be equitably accessible to the present as well as future generations. 10 Needless
to say, every generation has a responsibility to the next to preserve that rhythm and harmony for the full enjoyment of a
balanced and healthful ecology. Put a little differently, the minors' assertion of their right to a sound environment
constitutes, at the same time, the performance of their obligation to ensure the protection of that right for the generations
to come.

The locus standi of the petitioners having thus been addressed, We shall now proceed to the merits of the petition.

After a careful perusal of the complaint in question and a meticulous consideration and evaluation of the issues
raised and arguments adduced by the parties, We do not hesitate to find for the petitioners and rule against the
respondent Judge's challenged order for having been issued with grave abuse of discretion amounting to lack of
jurisdiction. The pertinent portions of the said order reads as follows:

xxx xxx xxx

After a careful and circumspect evaluation of the Complaint, the Court cannot help but agree with the
defendant. For although we believe that plaintiffs have but the noblest of all intentions, it (sic) fell
short of alleging, with sufficient definiteness, a specific legal right they are seeking to enforce and
protect, or a specific legal wrong they are seeking to prevent and redress (Sec. 1, Rule 2, RRC).
Furthermore, the Court notes that the Complaint is replete with vague assumptions and vague
conclusions based on unverified data. In fine, plaintiffs fail to state a cause of action in its Complaint
against the herein defendant.
 Furthermore, the Court firmly believes that the matter before it, being impressed with political color
and involving a matter of public policy, may not be taken cognizance of by this Court without doing
violence to the sacred principle of "Separation of Powers" of the three (3) co-equal branches of the
Government.

The Court is likewise of the impression that it cannot, no matter how we stretch our jurisdiction, grant
the reliefs prayed for by the plaintiffs, i.e., to cancel all existing timber license agreements in the
country and to cease and desist from receiving, accepting, processing, renewing or approving new
timber license agreements. For to do otherwise would amount to "impairment of contracts" abhored
(sic) by the fundamental law. 11

We do not agree with the trial court's conclusions that the plaintiffs failed to allege with sufficient definiteness a
specific legal right involved or a specific legal wrong committed, and that the complaint is replete with vague
assumptions and conclusions based on unverified data. A reading of the complaint itself belies these conclusions.

The complaint focuses on one specific fundamental legal right the right to a balanced and healthful ecology
which, for the first time in our nation's constitutional history, is solemnly incorporated in the fundamental law. Section
16, Article II of the 1987 Constitution explicitly provides:

Sec. 16. The State shall protect and advance the right of the people to a balanced and healthful
ecology in accord with the rhythm and harmony of nature.

This right unites with the right to health which is provided for in the preceding section of the same
article:

Sec. 15. The State shall protect and promote the right to health of the people and instill health
consciousness among them.

While the right to a balanced and healthful ecology is to be found under the Declaration of Principles and State
Policies and not under the Bill of Rights, it does not follow that it is less important than any of the civil and political
rights enumerated in the latter. Such a right belongs to a different category of rights altogether for it concerns
nothing less than self-preservation and self-perpetuation aptly and fittingly stressed by the petitioners the
advancement of which may even be said to predate all governments and constitutions. As a matter of fact, these
basic rights need not even be written in the Constitution for they are assumed to exist from the inception of
humankind. If they are now explicitly mentioned in the fundamental charter, it is because of the well-founded fear of
its framers that unless the rights to a balanced and healthful ecology and to health are mandated as state policies by
the Constitution itself, thereby highlighting their continuing importance and imposing upon the state a solemn
obligation to preserve the first and protect and advance the second, the day would not be too far when all else would
be lost not only for the present generation, but also for those to come generations which stand to inherit nothing
but parched earth incapable of sustaining life.

The right to a balanced and healthful ecology carries with it the correlative duty to refrain from impairing the
environment. During the debates on this right in one of the plenary sessions of the 1986 Constitutional Commission,
the following exchange transpired between Commissioner Wilfrido Villacorta and Commissioner Adolfo Azcuna who
sponsored the section in question:

MR. VILLACORTA:

Does this section mandate the State to provide sanctions against all forms of
pollution air, water and noise pollution?

MR. AZCUNA:

Yes, Madam President. The right to healthful (sic) environment necessarily carries
with it the correlative duty of not impairing the same and, therefore, sanctions may be
provided for impairment of environmental balance. 12
The said right implies, among many other things, the judicious management and conservation of the country's
forests.

Without such forests, the ecological or environmental balance would be irreversiby disrupted.

Conformably with the enunciated right to a balanced and healthful ecology and the right to health, as well as the
other related provisions of the Constitution concerning the conservation, development and utilization of the country's
natural resources, 13 then President Corazon C. Aquino promulgated on 10 June 1987 E.O. No. 192, 14 Section 4 of
which expressly mandates that the Department of Environment and Natural Resources "shall be the primary government
agency responsible for the conservation, management, development and proper use of the country's environment and
natural resources, specifically forest and grazing lands, mineral, resources, including those in reservation and watershed
areas, and lands of the public domain, as well as the licensing and regulation of all natural resources as may be provided
for by law in order to ensure equitable sharing of the benefits derived therefrom for the welfare of the present and future
generations of Filipinos." Section 3 thereof makes the following statement of policy:

Sec. 3. Declaration of Policy. It is hereby declared the policy of the State to ensure the
sustainable use, development, management, renewal, and conservation of the country's forest,
mineral, land, off-shore areas and other natural resources, including the protection and
enhancement of the quality of the environment, and equitable access of the different segments of
the population to the development and the use of the country's natural resources, not only for the
present generation but for future generations as well. It is also the policy of the state to recognize
and apply a true value system including social and environmental cost implications relative to their
utilization, development and conservation of our natural resources.

This policy declaration is substantially re-stated it Title XIV, Book IV of the Administrative Code of 1987, 15specifically
in Section 1 thereof which reads:

Sec. 1. Declaration of Policy. (1) The State shall ensure, for the benefit of the Filipino people, the
full exploration and development as well as the judicious disposition, utilization, management,
renewal and conservation of the country's forest, mineral, land, waters, fisheries, wildlife, off-shore
areas and other natural resources, consistent with the necessity of maintaining a sound ecological
balance and protecting and enhancing the quality of the environment and the objective of making the
exploration, development and utilization of such natural resources equitably accessible to the
different segments of the present as well as future generations.

(2) The State shall likewise recognize and apply a true value system that takes into account social
and environmental cost implications relative to the utilization, development and conservation of our
natural resources.

The above provision stresses "the necessity of maintaining a sound ecological balance and protecting and
enhancing the quality of the environment." Section 2 of the same Title, on the other hand, specifically speaks of the
mandate of the DENR; however, it makes particular reference to the fact of the agency's being subject to law and
higher authority. Said section provides:

Sec. 2. Mandate. (1) The Department of Environment and Natural Resources shall be primarily
responsible for the implementation of the foregoing policy.

(2) It shall, subject to law and higher authority, be in charge of carrying out the State's constitutional
mandate to control and supervise the exploration, development, utilization, and conservation of the
country's natural resources.

Both E.O. NO. 192 and the Administrative Code of 1987 have set the objectives which will serve as the bases for
policy formulation, and have defined the powers and functions of the DENR.

It may, however, be recalled that even before the ratification of the 1987 Constitution, specific statutes already paid
special attention to the "environmental right" of the present and future generations. On 6 June 1977, P.D. No. 1151
(Philippine Environmental Policy) and P.D. No. 1152 (Philippine Environment Code) were issued. The former
"declared a continuing policy of the State (a) to create, develop, maintain and improve conditions under which man
and nature can thrive in productive and enjoyable harmony with each other, (b) to fulfill the social, economic and
other requirements of present and future generations of Filipinos, and (c) to insure the attainment of an
environmental quality that is conducive to a life of dignity and well-being." 16 As its goal, it speaks of the
"responsibilities of each generation as trustee and guardian of the environment for succeeding generations." 17 The latter
statute, on the other hand, gave flesh to the said policy.

Thus, the right of the petitioners (and all those they represent) to a balanced and healthful ecology is as clear as the
DENR's duty under its mandate and by virtue of its powers and functions under E.O. No. 192 and the
Administrative Code of 1987 to protect and advance the said right.

A denial or violation of that right by the other who has the corelative duty or obligation to respect or protect the same
gives rise to a cause of action. Petitioners maintain that the granting of the TLAs, which they claim was done with
grave abuse of discretion, violated their right to a balanced and healthful ecology; hence, the full protection thereof
requires that no further TLAs should be renewed or granted.

A cause of action is defined as:

. . . an act or omission of one party in violation of the legal right or rights of the other; and its
essential elements are legal right of the plaintiff, correlative obligation of the defendant, and act or
omission of the defendant in violation of said legal right. 18

It is settled in this jurisdiction that in a motion to dismiss based on the ground that the complaint fails to state a
cause of action, 19 the question submitted to the court for resolution involves the sufficiency of the facts alleged in the
complaint itself. No other matter should be considered; furthermore, the truth of falsity of the said allegations is beside the
point for the truth thereof is deemed hypothetically admitted. The only issue to be resolved in such a case is: admitting
such alleged facts to be true, may the court render a valid judgment in accordance with the prayer in the
complaint? 20 In Militante vs. Edrosolano, 21 this Court laid down the rule that the judiciary should "exercise the utmost care
and circumspection in passing upon a motion to dismiss on the ground of the absence thereof [cause of action] lest, by its
failure to manifest a correct appreciation of the facts alleged and deemed hypothetically admitted, what the law grants or
recognizes is effectively nullified. If that happens, there is a blot on the legal order. The law itself stands in disrepute."

After careful examination of the petitioners' complaint, We find the statements under the introductory affirmative
allegations, as well as the specific averments under the sub-heading CAUSE OF ACTION, to be adequate enough
to show, prima facie, the claimed violation of their rights. On the basis thereof, they may thus be granted, wholly or
partly, the reliefs prayed for. It bears stressing, however, that insofar as the cancellation of the TLAs is concerned,
there is the need to implead, as party defendants, the grantees thereof for they are indispensable parties.

The foregoing considered, Civil Case No. 90-777 be said to raise a political question. Policy formulation or
determination by the executive or legislative branches of Government is not squarely put in issue. What is principally
involved is the enforcement of a right vis-a-vis policies already formulated and expressed in legislation. It must,
nonetheless, be emphasized that the political question doctrine is no longer, the insurmountable obstacle to the
exercise of judicial power or the impenetrable shield that protects executive and legislative actions from judicial
inquiry or review. The second paragraph of section 1, Article VIII of the Constitution states that:

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.

Commenting on this provision in his book, Philippine Political Law, 22 Mr. Justice Isagani A. Cruz, a distinguished
member of this Court, says:

The first part of the authority represents the traditional concept of judicial power, involving the
settlement of conflicting rights as conferred as law. The second part of the authority represents a
 broadening of judicial power to enable the courts of justice to review what was before forbidden
territory, to wit, the discretion of the political departments of the government.

As worded, the new provision vests in the judiciary, and particularly the Supreme Court, the power to
rule upon even the wisdom of the decisions of the executive and the legislature and to declare their
acts invalid for lack or excess of jurisdiction because tainted with grave abuse of discretion. The
catch, of course, is the meaning of "grave abuse of discretion," which is a very elastic phrase that
can expand or contract according to the disposition of the judiciary.

In Daza vs. Singson, 23 Mr. Justice Cruz, now speaking for this Court, noted:

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 revolving it under the expanded jurisdiction conferred upon us
that now covers, in proper cases, even the political question. Article VII, Section 1, of the
Constitution clearly provides: . . .

The last ground invoked by the trial court in dismissing the complaint is the non-impairment of contracts clause
found in the Constitution. The court a quo declared that:

The Court is likewise of the impression that it cannot, no matter how we stretch our jurisdiction, grant
the reliefs prayed for by the plaintiffs, i.e., to cancel all existing timber license agreements in the
country and to cease and desist from receiving, accepting, processing, renewing or approving new
timber license agreements. For to do otherwise would amount to "impairment of contracts" abhored
(sic) by the fundamental law. 24

We are not persuaded at all; on the contrary, We are amazed, if not shocked, by such a sweeping pronouncement.
In the first place, the respondent Secretary did not, for obvious reasons, even invoke in his motion to dismiss the
non-impairment clause. If he had done so, he would have acted with utmost infidelity to the Government by
providing undue and unwarranted benefits and advantages to the timber license holders because he would have
forever bound the Government to strictly respect the said licenses according to their terms and conditions
regardless of changes in policy and the demands of public interest and welfare. He was aware that as correctly
pointed out by the petitioners, into every timber license must be read Section 20 of the Forestry Reform Code (P.D.
No. 705) which provides:

. . . Provided, That when the national interest so requires, the President may amend, modify, replace
or rescind any contract, concession, permit, licenses or any other form of privilege granted herein . .
.

Needless to say, all licenses may thus be revoked or rescinded by executive action. It is not a contract,
property or a property right protested by the due process clause of the Constitution. In Tan vs. Director of
Forestry, 25 this Court held:

. . . A timber license is an instrument by which the State regulates the utilization and disposition of
forest resources to the end that public welfare is promoted. A timber license is not a contract within
the purview of the due process clause; it is only a license or privilege, which can be validly
withdrawn whenever dictated by public interest or public welfare as in this case.

A license is merely a permit or privilege to do what otherwise would be unlawful, and is not a
contract between the authority, federal, state, or municipal, granting it and the person to whom it is
granted; neither is it property or a property right, nor does it create a vested right; nor is it taxation
(37 C.J. 168). Thus, this Court held that the granting of license does not create irrevocable rights,
neither is it property or property rights (People vs. Ong Tin, 54 O.G. 7576).

We reiterated this pronouncement in Felipe Ysmael, Jr. & Co., Inc. vs. Deputy Executive Secretary: 26
 . . . Timber licenses, permits and license agreements are the principal instruments by which the
State regulates the utilization and disposition of forest resources to the end that public welfare is
promoted. And it can hardly be gainsaid that they merely evidence a privilege granted by the State to
qualified entities, and do not vest in the latter a permanent or irrevocable right to the particular
concession area and the forest products therein. They may be validly amended, modified, replaced
or rescinded by the Chief Executive when national interests so require. Thus, they are not deemed
contracts within the purview of the due process of law clause [See Sections 3(ee) and 20 of Pres.
Decree No. 705, as amended. Also, Tan v. Director of Forestry, G.R. No. L-24548, October 27,
1983, 125 SCRA 302].

Since timber licenses are not contracts, the non-impairment clause, which reads:

Sec. 10. No law impairing, the obligation of contracts shall be passed. 27

cannot be invoked.

In the second place, even if it is to be assumed that the same are contracts, the instant case does not involve a law
or even an executive issuance declaring the cancellation or modification of existing timber licenses. Hence, the non-
impairment clause cannot as yet be invoked. Nevertheless, granting further that a law has actually been passed
mandating cancellations or modifications, the same cannot still be stigmatized as a violation of the non-impairment
clause. This is because by its very nature and purpose, such as law could have only been passed in the exercise of
the police power of the state for the purpose of advancing the right of the people to a balanced and healthful
ecology, promoting their health and enhancing the general welfare. In Abe vs. Foster Wheeler
Corp. 28 this Court stated:

The freedom of contract, under our system of government, is not meant to be absolute. The same is
understood to be subject to reasonable legislative regulation aimed at the promotion of public health,
moral, safety and welfare. In other words, the constitutional guaranty of non-impairment of
obligations of contract is limited by the exercise of the police power of the State, in the interest of
public health, safety, moral and general welfare.

The reason for this is emphatically set forth in Nebia vs. New York, 29 quoted in Philippine American Life Insurance Co.
vs. Auditor General, 30 to wit:

Under our form of government the use of property and the making of contracts are normally matters
of private and not of public concern. The general rule is that both shall be free of governmental
interference. But neither property rights nor contract rights are absolute; for government cannot exist
if the citizen may at will use his property to the detriment of his fellows, or exercise his freedom of
contract to work them harm. Equally fundamental with the private right is that of the public to
regulate it in the common interest.

In short, the non-impairment clause must yield to the police power of the state. 31

Finally, it is difficult to imagine, as the trial court did, how the non-impairment clause could apply with respect to the
prayer to enjoin the respondent Secretary from receiving, accepting, processing, renewing or approving new timber
licenses for, save in cases of renewal, no contract would have as of yet existed in the other instances. Moreover,
with respect to renewal, the holder is not entitled to it as a matter of right.

WHEREFORE, being impressed with merit, the instant Petition is hereby GRANTED, and the challenged Order of
respondent Judge of 18 July 1991 dismissing Civil Case No. 90-777 is hereby set aside. The petitioners may
therefore amend their complaint to implead as defendants the holders or grantees of the questioned timber license
agreements.

No pronouncement as to costs.

SO ORDERED.
Cruz, Padilla, Bidin, Grio-Aquino, Regalado, Romero, Nocon, Bellosillo, Melo and Quiason, JJ., concur.

Narvasa, C.J., Puno and Vitug, JJ., took no part.

Republic of the Philippines

SUPREME COURT
Manila

EN BANC

G.R. No. 203335 February 11, 2014

JOSE JESUS M. DISINI, JR., ROWENA S. DISINI, LIANNE IVY P. MEDINA, JANETTE TORAL and ERNESTO
SONIDO, JR., Petitioners,
vs.
THE SECRETARY OF JUSTICE, THE SECRETARY OF THE DEPARTMENT OF THE INTERIOR AND LOCAL
GOVERNMENT, THE EXECUTIVE DIRECTOR OF THE INFORMATION AND COMMUNICATIONS
TECHNOLOGY OFFICE, THE CHIEF OF THE PHILIPPINE NATIONAL POLICE and THE DIRECTOR OF THE
NATIONAL BUREAU OF INVESTIGATION, Respondents.

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

G.R. No. 203299

LOUIS "BAROK" C. BIRAOGO, Petitioner,

vs.
NATIONAL BUREAU OF INVESTIGATION and PHILIPPINE NATIONAL POLICE, Respondents.

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

G.R. No. 203306

ALAB NG MAMAMAHAYAG (ALAM), HUKUMAN NG MAMAMAYAN MOVEMENT, INC., JERRY S. YAP,

BERTENI "TOTO" CAUSING, HERNANI Q. CUARE, PERCY LAPID, TRACY CABRERA, RONALDO E. RENTA,
CIRILO P. SABARRE, JR., DERVIN CASTRO, ET AL., Petitioners,
vs.
OFFICE OF THE PRESIDENT, represented by President Benigno Simeon Aquino III, SENATE OF THE
PHILIPPINES, and HOUSE OF REPRESENTATIVES, Respondents.

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

G.R. No. 203359

SENATOR TEOFISTO DL GUINGONA III, Petitioner,

vs.
EXECUTIVE SECRETARY, THE SECRETARY OF JUSTICE, THE SECRETARY OF THE DEPARTMENT OF
INTERIOR AND LOCAL GOVERNMENT, THE CHIEF OF THE PHILIPPINE NATIONAL POLICE, and DIRECTOR
OF THE NATIONAL BUREAU OF INVESTIGATION, Respondents.

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

G.R. No. 203378

ALEXANDER ADONIS, ELLEN TORDESILLAS, MA. GISELA ORDENES-CASCOLAN, H. HARRY L. ROQUE,

JR., ROMEL R. BAGARES, and GILBERT T. ANDRES, Petitioners,
vs.
THE EXECUTIVE SECRETARY, THE DEPARTMENT OF BUDGET AND MANAGEMENT, THE DEPARTMENT
OF JUSTICE, THE DEPARTMENT OF THE INTERIOR AND LOCAL GOVERNMENT, THE NATIONAL BUREAU
OF INVESTIGATION, THE PHILIPPINE NATIONAL POLICE, AND THE INFORMATION AND
COMMUNICATIONS TECHNOLOGY OFFICE-DEPARTMENT OF SCIENCE AND TECHNOLOGY, Respondents.

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

G.R. No. 203391

HON. RAYMOND V. PALATINO, HON. ANTONIO TINIO, VENCER MARI CRISOSTOMO OF ANAKBAYAN, MA.
KATHERINE ELONA OF THE PHILIPPINE COLLEGIAN, ISABELLE THERESE BAGUISI OF THE NATIONAL
UNION OF STUDENTS OF THE PHILIPPINES, ET AL., Petitioners,
vs.
PAQUITO N. OCHOA, JR., in his capacity as Executive Secretary and alter-ego of President Benigno Simeon
Aquino III, LEILA DE LIMA in her capacity as Secretary of Justice, Respondents.

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

G.R. No. 203407

BAGONG ALYANSANG MAKABAYAN SECRETARY GENERAL RENATO M. REYES, JR., National Artist
BIENVENIDO L. LUMBERA, Chairperson of Concerned Artists of the Philippines, ELMER C. LABOG,
Chairperson of Kilusang Mayo Uno, CRISTINA E. PALABAY, Secretary General of Karapatan, FERDINAND
R. GAITE, Chairperson of COURAGE, JOEL B. MAGLUNSOD, Vice President of Anakpawis Party-List, LANA
R. LINABAN, Secretary General Gabriela Women's Party, ADOLFO ARES P. GUTIERREZ, and JULIUS
GARCIA MATIBAG, Petitioners,
vs.
BENIGNO SIMEON C. AQUINO III, President of the Republic of the Philippines, PAQUITO N. OCHOA, JR.,
Executive Secretary, SENATE OF THE PHILIPPINES, represented by SENATE PRESIDENT JUAN PONCE
ENRILE, HOUSE OF REPRESENTATIVES, represented by SPEAKER FELICIANO BELMONTE, JR., LEILA DE
LIMA, Secretary of the Department of Justice, LOUIS NAPOLEON C. CASAMBRE, Executive Director of the
Information and Communications Technology Office, NONNATUS CAESAR R. ROJAS, Director of the
National Bureau of Investigation, D/GEN. NICANOR A. BARTOLOME, Chief of the Philippine National Police,
MANUEL A. ROXAS II, Secretary of the Department of the Interior and Local Government, Respondents.

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

G.R. No. 203440

MELENCIO S. STA. MARIA, SEDFREY M. CANDELARIA, AMPARITA STA. MARIA, RAY PAOLO J.
SANTIAGO, GILBERT V. SEMBRANO, and RYAN JEREMIAH D. QUAN (all of the Ateneo Human Rights
Center),Petitioners,
vs.
HONORABLE PAQUITO OCHOA in his capacity as Executive Secretary, HONORABLE LEILA DE LIMA in her
capacity as Secretary of Justice, HONORABLE MANUEL ROXAS in his capacity as Secretary of the
Department of Interior and Local Government, The CHIEF of the Philippine National Police, The DIRECTOR
of the National Bureau of Investigation (all of the Executive Department of Government), Respondents.

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

G.R. No. 203453

NATIONAL UNION OF JOURNALISTS OF THE PHILIPPINES (NUJP), PHILIPPINE PRESS INSTITUTE (PPI),
CENTER FOR MEDIA FREEDOM AND RESPONSIBILITY, ROWENA CARRANZA PARAAN, MELINDA
QUINTOS-DE JESUS, JOSEPH ALWYN ALBURO, ARIEL SEBELLINO AND THE PETITIONERS IN THE e-
PETITION http://www.nujp.org/no-to-ra10175/, Petitioners,
vs.
THE EXECUTIVE SECRETARY, THE SECRETARY OF JUSTICE, THE SECRETARY OF THE INTERIOR AND
LOCAL GOVERNMENT, THE SECRETARY OF BUDGET AND MANAGEMENT, THE DIRECTOR GENERAL OF
THE PHILIPPINE NATIONAL POLICE, THE DIRECTOR OF THE NATIONAL BUREAU OF INVESTIGATION,
THE CYBERCRIME INVESTIGATION AND COORDINATING CENTER, AND ALL AGENCIES AND
INSTRUMENTALITIES OF GOVERNMENT AND ALL PERSONS ACTING UNDER THEIR INSTRUCTIONS,
ORDERS, DIRECTION IN RELATION TO THE IMPLEMENTATION OF REPUBLIC ACT NO.
10175, Respondents.

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

G.R. No. 203454

PAUL CORNELIUS T. CASTILLO & RYAN D. ANDRES, Petitioners,

vs.
THE HON. SECRETARY OF JUSTICE THE HON. SECRETARY OF INTERIOR AND LOCAL
GOVERNMENT,Respondents.

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

G.R. No. 203469

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

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

G.R. No. 203501

PHILIPPINE BAR ASSOCIATION, INC., Petitioner,

vs.
HIS EXCELLENCY BENIGNO S. AQUINO III, in his official capacity as President of the Republic of the
Philippines; HON. PAQUITO N. OCHOA, JR., in his official capacity as Executive Secretary; HON. LEILA M.
DE LIMA, in her official capacity as Secretary of Justice; LOUIS NAPOLEON C. CASAMBRE, in his official
capacity as Executive Director, Information and Communications Technology Office; NONNATUS CAESAR
R. ROJAS, in his official capacity as Director of the National Bureau of Investigation; and DIRECTOR
GENERAL NICANOR A. BARTOLOME, in his official capacity as Chief of the Philippine National
Police,Respondents.

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

G.R. No. 203509

BAYAN MUNA REPRESENTATIVE NERI J. COLMENARES, Petitioner,
vs.
THE EXECUTIVE SECRETARY PAQUITO OCHOA, JR., Respondent.

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

G.R. No. 203515

NATIONAL PRESS CLUB OF THE PHILIPPINES, INC. represented by BENNY D. ANTIPORDA in his capacity
as President and in his personal capacity, Petitioner,
vs.
OFFICE OF THE PRESIDENT, PRES. BENIGNO SIMEON AQUINO III, DEPARTMENT OF JUSTICE,
DEPARTMENT OF INTERIOR AND LOCAL GOVERNMENT, PHILIPPINE NATIONAL POLICE, NATIONAL
BUREAU OF INVESTIGATION, DEPARTMENT OF BUDGET AND MANAGEMENT AND ALL OTHER
GOVERNMENT INSTRUMENTALITIES WHO HAVE HANDS IN THE PASSAGE AND/OR IMPLEMENTATION OF
REPUBLIC ACT 10175, Respondents.

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

G.R. No. 203518

PHILIPPINE INTERNET FREEDOM ALLIANCE, composed of DAKILA-PHILIPPINE COLLECTIVE FOR

MODERN HEROISM, represented by Leni Velasco, PARTIDO LAKAS NG MASA, represented by Cesar S.
Melencio, FRANCIS EUSTON R. ACERO, MARLON ANTHONY ROMASANTA TONSON, TEODORO A.
CASIO, NOEMI LARDIZABAL-DADO, IMELDA ORALES, JAMES MATTHEW B. MIRAFLOR, JUAN G.M.
RAGRAGIO, MARIA FATIMA A. VILLENA, MEDARDO M. MANRIQUE, JR., LAUREN DADO, MARCO VITTORIA
TOBIAS SUMAYAO, IRENE CHIA, ERASTUS NOEL T. DELIZO, CRISTINA SARAH E. OSORIO, ROMEO
FACTOLERIN, NAOMI L. TUPAS, KENNETH KENG, ANA ALEXANDRA C. CASTRO, Petitioners,
vs.
THE EXECUTIVE SECRETARY, THE SECRETARY OF JUSTICE, THE SECRETARY OF INTERIOR AND
LOCAL GOVERNMENT, THE SECRETARY OF SCIENCE AND TECHNOLOGY, THE EXECUTIVE DIRECTOR
OF THE INFORMATION TECHNOLOGY OFFICE, THE DIRECTOR OF THE NATIONAL BUREAU OF
INVESTIGATION, THE CHIEF, PHILIPPINE NATIONAL POLICE, THE HEAD OF THE DOJ OFFICE OF
CYBERCRIME, and THE OTHER MEMBERS OF THE CYBERCRIME INVESTIGATION AND COORDINATING
CENTER, Respondents.

DECISION

ABAD, J.:

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

The Facts and the Case

The cybercrime law aims to regulate access to and use of the cyberspace. Using his laptop or computer, a person
can connect to the internet, a system that links him to other computers and enable him, among other things, to:

1. Access virtual libraries and encyclopedias for all kinds of information that he needs for research, study,
amusement, upliftment, or pure curiosity;

2. Post billboard-like notices or messages, including pictures and videos, for the general public or for special
audiences like associates, classmates, or friends and read postings from them;

3. Advertise and promote goods or services and make purchases and payments;
 4. Inquire and do business with institutional entities like government agencies, banks, stock exchanges,
trade houses, credit card companies, public utilities, hospitals, and schools; and

5. Communicate in writing or by voice with any person through his e-mail address or telephone.

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

And because linking with the internet opens up a user to communications from others, the ill-motivated can use the
cyberspace for committing theft by hacking into or surreptitiously accessing his bank account or credit card or
defrauding him through false representations. The wicked can use the cyberspace, too, for illicit trafficking in sex or
for exposing to pornography guileless children who have access to the internet. For this reason, the government has
a legitimate right to regulate the use of cyberspace and contain and punish wrongdoings.

Notably, there are also those who would want, like vandals, to wreak or cause havoc to the computer systems and
networks of indispensable or highly useful institutions as well as to the laptop or computer programs and memories
of innocent individuals. They accomplish this by sending electronic viruses or virtual dynamites that destroy those
computer systems, networks, programs, and memories. The government certainly has the duty and the right to
prevent these tomfooleries from happening and punish their perpetrators, hence the Cybercrime Prevention Act.

But petitioners claim that the means adopted by the cybercrime law for regulating undesirable cyberspace activities
violate certain of their constitutional rights. The government of course asserts that the law merely seeks to
reasonably put order into cyberspace activities, punish wrongdoings, and prevent hurtful attacks on the system.

Pending hearing and adjudication of the issues presented in these cases, on February 5, 2013 the Court extended
the original 120-day temporary restraining order (TRO) that it earlier issued on October 9, 2012, enjoining
respondent government agencies from implementing the cybercrime law until further orders.

The Issues Presented

Petitioners challenge the constitutionality of the following provisions of the cybercrime law that regard certain acts as
crimes and impose penalties for their commission as well as provisions that would enable the government to track
down and penalize violators. These provisions are:

a. Section 4(a)(1) on Illegal Access;

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

c. Section 4(a)(6) on Cyber-squatting;

d. Section 4(b)(3) on Identity Theft;

e. Section 4(c)(1) on Cybersex;

f. Section 4(c)(2) on Child Pornography;

g. Section 4(c)(3) on Unsolicited Commercial Communications;

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

i. Section 5 on Aiding or Abetting and Attempt in the Commission of Cybercrimes;

 j. Section 6 on the Penalty of One Degree Higher;

k. Section 7 on the Prosecution under both the Revised Penal Code (RPC) and R.A. 10175;

l. Section 8 on Penalties;

m. Section 12 on Real-Time Collection of Traffic Data;

n. Section 13 on Preservation of Computer Data;

o. Section 14 on Disclosure of Computer Data;

p. Section 15 on Search, Seizure and Examination of Computer Data;

q. Section 17 on Destruction of Computer Data;

r. Section 19 on Restricting or Blocking Access to Computer Data;

s. Section 20 on Obstruction of Justice;

t. Section 24 on Cybercrime Investigation and Coordinating Center (CICC); and

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

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

The Rulings of the Court

Section 4(a)(1)

Section 4(a)(1) provides:

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

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

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

Petitioners contend that Section 4(a)(1) fails to meet the strict scrutiny standard required of laws that interfere with
the fundamental rights of the people and should thus be struck down.

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

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

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

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

Section 4(a)(3) provides:

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

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

xxxx

(3) Data Interference. The intentional or reckless alteration, damaging, deletion or deterioration of computer data,
electronic document, or electronic data message, without right, including the introduction or transmission of viruses.

Petitioners claim that Section 4(a)(3) suffers from overbreadth in that, while it seeks to discourage data interference,
it intrudes into the area of protected speech and expression, creating a chilling and deterrent effect on these
guaranteed freedoms.

Under the overbreadth doctrine, a proper governmental purpose, constitutionally subject to state regulation, may not
be achieved by means that unnecessarily sweep its subject broadly, thereby invading the area of protected
freedoms.7 But Section 4(a)(3) does not encroach on these freedoms at all. It simply punishes what essentially is a
form of vandalism,8 the act of willfully destroying without right the things that belong to others, in this case their
computer data, electronic document, or electronic data message. Such act has no connection to guaranteed
freedoms. There is no freedom to destroy other peoples computer systems and private documents.

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

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

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

Section 4(a)(6) provides:

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

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

xxxx
(6) Cyber-squatting. The acquisition of domain name over the internet in bad faith to profit, mislead, destroy the
reputation, and deprive others from registering the same, if such a domain name is:

(i) Similar, identical, or confusingly similar to an existing trademark registered with the appropriate
government agency at the time of the domain name registration;

(ii) Identical or in any way similar with the name of a person other than the registrant, in case of a personal
name; and

(iii) Acquired without right or with intellectual property interests in it.

Petitioners claim that Section 4(a)(6) or cyber-squatting violates the equal protection clause12 in that, not being
narrowly tailored, it will cause a user using his real name to suffer the same fate as those who use aliases or take
the name of another in satire, parody, or any other literary device. For example, supposing there exists a well known
billionaire-philanthropist named "Julio Gandolfo," the law would punish for cyber-squatting both the person who
registers such name because he claims it to be his pseudo-name and another who registers the name because it
happens to be his real name. Petitioners claim that, considering the substantial distinction between the two, the law
should recognize the difference.

But there is no real difference whether he uses "Julio Gandolfo" which happens to be his real name or use it as a
pseudo-name for it is the evil purpose for which he uses the name that the law condemns. The law is reasonable in
penalizing him for acquiring the domain name in bad faith to profit, mislead, destroy reputation, or deprive others
who are not ill-motivated of the rightful opportunity of registering the same. The challenge to the constitutionality of
Section 4(a)(6) on ground of denial of equal protection is baseless.

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

Section 4(b)(3) provides:

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

xxxx

b) Computer-related Offenses:

xxxx

(3) Computer-related Identity Theft. The intentional acquisition, use, misuse, transfer, possession, alteration, or
deletion of identifying information belonging to another, whether natural or juridical, without right: Provided: that if no
damage has yet been caused, the penalty imposable shall be one (1) degree lower.

Petitioners claim that Section 4(b)(3) violates the constitutional rights to due process and to privacy and
correspondence, and transgresses the freedom of the press.

The right to privacy, or the right to be let alone, was institutionalized in the 1987 Constitution as a facet of the right
protected by the guarantee against unreasonable searches and seizures.13 But the Court acknowledged its
existence as early as 1968 in Morfe v. Mutuc,14 it ruled that the right to privacy exists independently of its
identification with liberty; it is in itself fully deserving of constitutional protection.

Relevant to any discussion of the right to privacy is the concept known as the "Zones of Privacy." The Court
explained in "In the Matter of the Petition for Issuance of Writ of Habeas Corpus of Sabio v. Senator Gordon"15 the
relevance of these zones to the right to privacy:

Zones of privacy are recognized and protected in our laws. Within these zones, any form of intrusion is
impermissible unless excused by law and in accordance with customary legal process. The meticulous regard we
accord to these zones arises not only from our conviction that the right to privacy is a "constitutional right" and "the
right most valued by civilized men," but also from our adherence to the Universal Declaration of Human Rights
which mandates that, "no one shall be subjected to arbitrary interference with his privacy" and "everyone has the
right to the protection of the law against such interference or attacks."

Two constitutional guarantees create these zones of privacy: (a) the right against unreasonable searches 16 and
seizures, which is the basis of the right to be let alone, and (b) the right to privacy of communication and
correspondence.17 In assessing the challenge that the State has impermissibly intruded into these zones of privacy,
a court must determine whether a person has exhibited a reasonable expectation of privacy and, if so, whether that
expectation has been violated by unreasonable government intrusion.18

The usual identifying information regarding a person includes his name, his citizenship, his residence address, his
contact number, his place and date of birth, the name of his spouse if any, his occupation, and similar data.19 The
law punishes those who acquire or use such identifying information without right, implicitly to cause damage.
Petitioners simply fail to show how government effort to curb computer-related identity theft violates the right to
privacy and correspondence as well as the right to due process of law.

Also, the charge of invalidity of this section based on the overbreadth doctrine will not hold water since the specific
conducts proscribed do not intrude into guaranteed freedoms like speech. Clearly, what this section regulates are
specific actions: the acquisition, use, misuse or deletion of personal identifying data of another. There is no
fundamental right to acquire anothers personal data.

Further, petitioners fear that Section 4(b)(3) violates the freedom of the press in that journalists would be hindered
from accessing the unrestricted user account of a person in the news to secure information about him that could be
published. But this is not the essence of identity theft that the law seeks to prohibit and punish. Evidently, the theft of
identity information must be intended for an illegitimate purpose. Moreover, acquiring and disseminating information
made public by the user himself cannot be regarded as a form of theft.

The Court has defined intent to gain as an internal act which can be established through the overt acts of the
offender, and it may be presumed from the furtive taking of useful property pertaining to another, unless special
circumstances reveal a different intent on the part of the perpetrator.20 As such, the press, whether in quest of news
reporting or social investigation, has nothing to fear since a special circumstance is present to negate intent to gain
which is required by this Section.

Section 4(c)(1) of the Cybercrime Law

Section 4(c)(1) provides:

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

xxxx

(c) Content-related Offenses:

(1) Cybersex. The willful engagement, maintenance, control, or operation, directly or indirectly, of any lascivious
exhibition of sexual organs or sexual activity, with the aid of a computer system, for favor or consideration.

Petitioners claim that the above violates the freedom of expression clause of the Constitution.21 They express fear
that private communications of sexual character between husband and wife or consenting adults, which are not
regarded as crimes under the penal code, would now be regarded as crimes when done "for favor" in cyberspace. In
common usage, the term "favor" includes "gracious kindness," "a special privilege or right granted or conceded," or
"a token of love (as a ribbon) usually worn conspicuously."22 This meaning given to the term "favor" embraces
socially tolerated trysts. The law as written would invite law enforcement agencies into the bedrooms of married
couples or consenting individuals.
But the deliberations of the Bicameral Committee of Congress on this section of the Cybercrime Prevention Act give
a proper perspective on the issue. These deliberations show a lack of intent to penalize a "private showing x x x
between and among two private persons x x x although that may be a form of obscenity to some."23 The
understanding of those who drew up the cybercrime law is that the element of "engaging in a business" is necessary
to constitute the illegal cybersex.24 The Act actually seeks to punish cyber prostitution, white slave trade, and
pornography for favor and consideration. This includes interactive prostitution and pornography, i.e., by webcam.25

The subject of Section 4(c)(1)lascivious exhibition of sexual organs or sexual activityis not novel. Article 201 of
the RPC punishes "obscene publications and exhibitions and indecent shows." The Anti-Trafficking in Persons Act
of 2003 penalizes those who "maintain or hire a person to engage in prostitution or pornography."26 The law defines
prostitution as any act, transaction, scheme, or design involving the use of a person by another, for sexual
intercourse or lascivious conduct in exchange for money, profit, or any other consideration.27

The case of Nogales v. People28 shows the extent to which the State can regulate materials that serve no other
purpose than satisfy the market for violence, lust, or pornography.29 The Court weighed the property rights of
individuals against the public welfare. Private property, if containing pornographic materials, may be forfeited and
destroyed. Likewise, engaging in sexual acts privately through internet connection, perceived by some as a right,
has to be balanced with the mandate of the State to eradicate white slavery and the exploitation of women.

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

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

Section 4(c)(2) provides:

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

xxxx

(c) Content-related Offenses:

xxxx

(2) Child Pornography. The unlawful or prohibited acts defined and punishable by Republic Act No. 9775 or the
Anti-Child Pornography Act of 2009, committed through a computer system: Provided, That the penalty to be
imposed shall be (1) one degree higher than that provided for in Republic Act No. 9775.

It seems that the above merely expands the scope of the Anti-Child Pornography Act of 200931 (ACPA) to cover
identical activities in cyberspace. In theory, nothing prevents the government from invoking the ACPA when
prosecuting persons who commit child pornography using a computer system. Actually, ACPAs definition of child
pornography already embraces the use of "electronic, mechanical, digital, optical, magnetic or any other means."
Notably, no one has questioned this ACPA provision.

Of course, the law makes the penalty higher by one degree when the crime is committed in cyberspace. But no one
can complain since the intensity or duration of penalty is a legislative prerogative and there is rational basis for such
higher penalty.32 The potential for uncontrolled proliferation of a particular piece of child pornography when uploaded
in the cyberspace is incalculable.

Petitioners point out that the provision of ACPA that makes it unlawful for any person to "produce, direct,
manufacture or create any form of child pornography"33 clearly relates to the prosecution of persons who aid and
abet the core offenses that ACPA seeks to punish.34 Petitioners are wary that a person who merely doodles on
paper and imagines a sexual abuse of a 16-year-old is not criminally liable for producing child pornography but one
who formulates the idea on his laptop would be. Further, if the author bounces off his ideas on Twitter, anyone who
replies to the tweet could be considered aiding and abetting a cybercrime.

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

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

Section 4(c)(3) provides:

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

xxxx

(c) Content-related Offenses:

xxxx

(3) Unsolicited Commercial Communications. The transmission of commercial electronic communication with the
use of computer system which seeks to advertise, sell, or offer for sale products and services are prohibited unless:

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

(ii) The primary intent of the communication is for service and/or administrative announcements from the
sender to its existing users, subscribers or customers; or

(iii) The following conditions are present:

(aa) The commercial electronic communication contains a simple, valid, and reliable way for the
recipient to reject receipt of further commercial electronic messages (opt-out) from the same source;

(bb) The commercial electronic communication does not purposely disguise the source of the
electronic message; and

(cc) The commercial electronic communication does not purposely include misleading information in
any part of the message in order to induce the recipients to read the message.

The above penalizes the transmission of unsolicited commercial communications, also known as "spam." The term
"spam" surfaced in early internet chat rooms and interactive fantasy games. One who repeats the same sentence or
comment was said to be making a "spam." The term referred to a Monty Pythons Flying Circus scene in which
actors would keep saying "Spam, Spam, Spam, and Spam" when reading options from a menu.35

The Government, represented by the Solicitor General, points out that unsolicited commercial communications or
spams are a nuisance that wastes the storage and network capacities of internet service providers, reduces the
efficiency of commerce and technology, and interferes with the owners peaceful enjoyment of his property.
Transmitting spams amounts to trespass to ones privacy since the person sending out spams enters the recipients
domain without prior permission. The OSG contends that commercial speech enjoys less protection in law.

But, firstly, the government presents no basis for holding that unsolicited electronic ads reduce the "efficiency of
computers." Secondly, people, before the arrival of the age of computers, have already been receiving such
unsolicited ads by mail. These have never been outlawed as nuisance since people might have interest in such ads.
What matters is that the recipient has the option of not opening or reading these mail ads. That is true with spams.
Their recipients always have the option to delete or not to read them.
To prohibit the transmission of unsolicited ads would deny a person the right to read his emails, even unsolicited
commercial ads addressed to him. Commercial speech is a separate category of speech which is not accorded the
same level of protection as that given to other constitutionally guaranteed forms of expression but is nonetheless
entitled to protection.36 The State cannot rob him of this right without violating the constitutionally guaranteed
freedom of expression. Unsolicited advertisements are legitimate forms of expression.

Articles 353, 354, and 355 of the Penal Code

Section 4(c)(4) of the Cyber Crime Law

Petitioners dispute the constitutionality of both the penal code provisions on libel as well as Section 4(c)(4) of the
Cybercrime Prevention Act on cyberlibel.

The RPC provisions on libel read:

Art. 353. Definition of libel. A libel is public and malicious imputation of a crime, or of a vice or defect, real or
imaginary, or any act, omission, condition, status, or circumstance tending to cause the dishonor, discredit, or
contempt of a natural or juridical person, or to blacken the memory of one who is dead.

Art. 354. Requirement for publicity. Every defamatory imputation is presumed to be malicious, even if it be true, if
no good intention and justifiable motive for making it is shown, except in the following cases:

1. A private communication made by any person to another in the performance of any legal, moral or social
duty; and

2. A fair and true report, made in good faith, without any comments or remarks, of any judicial, legislative or
other official proceedings which are not of confidential nature, or of any statement, report or speech
delivered in said proceedings, or of any other act performed by public officers in the exercise of their
functions.

Art. 355. Libel means by writings or similar means. A libel committed by means of writing, printing, lithography,
engraving, radio, phonograph, painting, theatrical exhibition, cinematographic exhibition, or any similar means, shall
be punished by prision correccional in its minimum and medium periods or a fine ranging from 200 to 6,000 pesos,
or both, in addition to the civil action which may be brought by the offended party.

The libel provision of the cybercrime law, on the other hand, merely incorporates to form part of it the provisions of
the RPC on libel. Thus Section 4(c)(4) reads:

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

xxxx

(c) Content-related Offenses:

xxxx

(4) Libel. The unlawful or prohibited acts of libel as defined in Article 355 of the Revised Penal Code, as
amended, committed through a computer system or any other similar means which may be devised in the future.

Petitioners lament that libel provisions of the penal code37 and, in effect, the libel provisions of the cybercrime law
carry with them the requirement of "presumed malice" even when the latest jurisprudence already replaces it with
the higher standard of "actual malice" as a basis for conviction.38 Petitioners argue that inferring "presumed malice"
from the accuseds defamatory statement by virtue of Article 354 of the penal code infringes on his constitutionally
guaranteed freedom of expression.
Petitioners would go further. They contend that the laws on libel should be stricken down as unconstitutional for
otherwise good jurisprudence requiring "actual malice" could easily be overturned as the Court has done in Fermin
v. People39 even where the offended parties happened to be public figures.

The elements of libel are: (a) the allegation of a discreditable act or condition concerning another; (b) publication of
the charge; (c) identity of the person defamed; and (d) existence of malice.40

There is "actual malice" or malice in fact41 when the offender makes the defamatory statement with the knowledge
that it is false or with reckless disregard of whether it was false or not.42 The reckless disregard standard used here
requires a high degree of awareness of probable falsity. There must be sufficient evidence to permit the conclusion
that the accused in fact entertained serious doubts as to the truth of the statement he published. Gross or even
extreme negligence is not sufficient to establish actual malice.43

The prosecution bears the burden of proving the presence of actual malice in instances where such element is
required to establish guilt. The defense of absence of actual malice, even when the statement turns out to be false,
is available where the offended party is a public official or a public figure, as in the cases of Vasquez (a barangay
official) and Borjal (the Executive Director, First National Conference on Land Transportation). Since the penal code
and implicitly, the cybercrime law, mainly target libel against private persons, the Court recognizes that these laws
imply a stricter standard of "malice" to convict the author of a defamatory statement where the offended party is a
public figure. Societys interest and the maintenance of good government demand a full discussion of public affairs.44

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

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

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

But, where the offended party is a private individual, the prosecution need not prove the presence of malice. The law
explicitly presumes its existence (malice in law) from the defamatory character of the assailed statement.45 For his
defense, the accused must show that he has a justifiable reason for the defamatory statement even if it was in fact
true.46

Petitioners peddle the view that both the penal code and the Cybercrime Prevention Act violate the countrys
obligations under the International Covenant of Civil and Political Rights (ICCPR). They point out that in Adonis v.
Republic of the Philippines,47 the United Nations Human Rights Committee (UNHRC) cited its General Comment 34
to the effect that penal defamation laws should include the defense of truth.

But General Comment 34 does not say that the truth of the defamatory statement should constitute an all-
encompassing defense. As it happens, Article 361 recognizes truth as a defense but under the condition that the
accused has been prompted in making the statement by good motives and for justifiable ends. Thus:

Art. 361. Proof of the truth. In every criminal prosecution for libel, the truth may be given in evidence to the court
and if it appears that the matter charged as libelous is true, and, moreover, that it was published with good motives
and for justifiable ends, the defendants shall be acquitted.

Proof of the truth of an imputation of an act or omission not constituting a crime shall not be admitted, unless the
imputation shall have been made against Government employees with respect to facts related to the discharge of
their official duties.

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

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

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

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

Section 5 of the Cybercrime Law

Section 5 provides:

Sec. 5. Other Offenses. The following acts shall also constitute an offense:

(a) Aiding or Abetting in the Commission of Cybercrime. Any person who willfully abets or aids in the
commission of any of the offenses enumerated in this Act shall be held liable.

(b) Attempt in the Commission of Cybercrime. Any person who willfully attempts to commit any of the
offenses enumerated in this Act shall be held liable.

Petitioners assail the constitutionality of Section 5 that renders criminally liable any person who willfully abets or aids
in the commission or attempts to commit any of the offenses enumerated as cybercrimes. It suffers from
overbreadth, creating a chilling and deterrent effect on protected expression.

The Solicitor General contends, however, that the current body of jurisprudence and laws on aiding and abetting
sufficiently protects the freedom of expression of "netizens," the multitude that avail themselves of the services of
the internet. He points out that existing laws and jurisprudence sufficiently delineate the meaning of "aiding or
abetting" a crime as to protect the innocent. The Solicitor General argues that plain, ordinary, and common usage is
at times sufficient to guide law enforcement agencies in enforcing the law.51 The legislature is not required to define
every single word contained in the laws they craft.

Aiding or abetting has of course well-defined meaning and application in existing laws. When a person aids or abets
another in destroying a forest,52 smuggling merchandise into the country,53 or interfering in the peaceful picketing of
laborers,54 his action is essentially physical and so is susceptible to easy assessment as criminal in character. These
forms of aiding or abetting lend themselves to the tests of common sense and human experience.

But, when it comes to certain cybercrimes, the waters are muddier and the line of sight is somewhat blurred. The
idea of "aiding or abetting" wrongdoings online threatens the heretofore popular and unchallenged dogmas of
cyberspace use.
According to the 2011 Southeast Asia Digital Consumer Report, 33% of Filipinos have accessed the internet within
a year, translating to about 31 million users.55 Based on a recent survey, the Philippines ranks 6th in the top 10 most
engaged countries for social networking.56 Social networking sites build social relations among people who, for
example, share interests, activities, backgrounds, or real-life connections.57

Two of the most popular of these sites are Facebook and Twitter. As of late 2012, 1.2 billion people with shared
interests use Facebook to get in touch.58 Users register at this site, create a personal profile or an open book of who
they are, add other users as friends, and exchange messages, including automatic notifications when they update
their profile.59 A user can post a statement, a photo, or a video on Facebook, which can be made visible to anyone,
depending on the users privacy settings.

If the post is made available to the public, meaning to everyone and not only to his friends, anyone on Facebook can
react to the posting, clicking any of several buttons of preferences on the programs screen such as "Like,"
"Comment," or "Share." "Like" signifies that the reader likes the posting while "Comment" enables him to post online
his feelings or views about the same, such as "This is great!" When a Facebook user "Shares" a posting, the original
"posting" will appear on his own Facebook profile, consequently making it visible to his down-line Facebook Friends.

Twitter, on the other hand, is an internet social networking and microblogging service that enables its users to send
and read short text-based messages of up to 140 characters. These are known as "Tweets." Microblogging is the
practice of posting small pieces of digital contentwhich could be in the form of text, pictures, links, short videos, or
other mediaon the internet. Instead of friends, a Twitter user has "Followers," those who subscribe to this
particular users posts, enabling them to read the same, and "Following," those whom this particular user is
subscribed to, enabling him to read their posts. Like Facebook, a Twitter user can make his tweets available only to
his Followers, or to the general public. If a post is available to the public, any Twitter user can "Retweet" a given
posting. Retweeting is just reposting or republishing another persons tweet without the need of copying and pasting
it.

In the cyberworld, there are many actors: a) the blogger who originates the assailed statement; b) the blog service
provider like Yahoo; c) the internet service provider like PLDT, Smart, Globe, or Sun; d) the internet caf that may
have provided the computer used for posting the blog; e) the person who makes a favorable comment on the blog;
and f) the person who posts a link to the blog site.60 Now, suppose Maria (a blogger) maintains a blog on
WordPress.com (blog service provider). She needs the internet to access her blog so she subscribes to Sun
Broadband (Internet Service Provider).

One day, Maria posts on her internet account the statement that a certain married public official has an illicit affair
with a movie star. Linda, one of Marias friends who sees this post, comments online, "Yes, this is so true! They are
so immoral." Marias original post is then multiplied by her friends and the latters friends, and down the line to
friends of friends almost ad infinitum. Nena, who is a stranger to both Maria and Linda, comes across this blog, finds
it interesting and so shares the link to this apparently defamatory blog on her Twitter account. Nenas "Followers"
then "Retweet" the link to that blog site.

Pamela, a Twitter user, stumbles upon a random persons "Retweet" of Nenas original tweet and posts this on her
Facebook account. Immediately, Pamelas Facebook Friends start Liking and making Comments on the assailed
posting. A lot of them even press the Share button, resulting in the further spread of the original posting into tens,
hundreds, thousands, and greater postings.

The question is: are online postings such as "Liking" an openly defamatory statement, "Commenting" on it, or
"Sharing" it with others, to be regarded as "aiding or abetting?" In libel in the physical world, if Nestor places on the
office bulletin board a small poster that says, "Armand is a thief!," he could certainly be charged with libel. If Roger,
seeing the poster, writes on it, "I like this!," that could not be libel since he did not author the poster. If Arthur,
passing by and noticing the poster, writes on it, "Correct!," would that be libel? No, for he merely expresses
agreement with the statement on the poster. He still is not its author. Besides, it is not clear if aiding or abetting libel
in the physical world is a crime.

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

Except for the original author of the assailed statement, the rest (those who pressed Like, Comment and Share) are
essentially knee-jerk sentiments of readers who may think little or haphazardly of their response to the original
posting. Will they be liable for aiding or abetting? And, considering the inherent impossibility of joining hundreds or
thousands of responding "Friends" or "Followers" in the criminal charge to be filed in court, who will make a choice
as to who should go to jail for the outbreak of the challenged posting?

The old parameters for enforcing the traditional form of libel would be a square peg in a round hole when applied to
cyberspace libel. Unless the legislature crafts a cyber libel law that takes into account its unique circumstances and
culture, such law will tend to create a chilling effect on the millions that use this new medium of communication in
violation of their constitutionally-guaranteed right to freedom of expression.

The United States Supreme Court faced the same issue in Reno v. American Civil Liberties Union,61 a case involving
the constitutionality of the Communications Decency Act of 1996. The law prohibited (1) the knowing transmission,
by means of a telecommunications device, of

"obscene or indecent" communications to any recipient under 18 years of age; and (2) the knowing use of an
interactive computer service to send to a specific person or persons under 18 years of age or to display in a manner
available to a person under 18 years of age communications that, in context, depict or describe, in terms "patently
offensive" as measured by contemporary community standards, sexual or excretory activities or organs.

Those who challenged the Act claim that the law violated the First Amendments guarantee of freedom of speech for
being overbroad. The U.S. Supreme Court agreed and ruled:

The vagueness of the Communications Decency Act of 1996 (CDA), 47 U.S.C.S. 223, is a matter of special
concern for two reasons. First, the CDA is a content-based regulation of speech. The vagueness of such a
regulation raises special U.S. Const. amend. I concerns because of its obvious chilling effect on free speech.
Second, the CDA is a criminal statute. In addition to the opprobrium and stigma of a criminal conviction, the CDA
threatens violators with penalties including up to two years in prison for each act of violation. The severity of criminal
sanctions may well cause speakers to remain silent rather than communicate even arguably unlawful words, ideas,
and images. As a practical matter, this increased deterrent effect, coupled with the risk of discriminatory
enforcement of vague regulations, poses greater U.S. Const. amend. I concerns than those implicated by certain
civil regulations.

xxxx

The Communications Decency Act of 1996 (CDA), 47 U.S.C.S. 223, presents a great threat of censoring speech
that, in fact, falls outside the statute's scope. Given the vague contours of the coverage of the statute, it
unquestionably silences some speakers whose messages would be entitled to constitutional protection. That danger
provides further reason for insisting that the statute not be overly broad. The CDAs burden on protected speech
cannot be justified if it could be avoided by a more carefully drafted statute. (Emphasis ours)

Libel in the cyberspace can of course stain a persons image with just one click of the mouse. Scurrilous statements
can spread and travel fast across the globe like bad news. Moreover, cyberlibel often goes hand in hand with
cyberbullying that oppresses the victim, his relatives, and friends, evoking from mild to disastrous reactions. Still, a
governmental purpose, which seeks to regulate the use of this cyberspace communication technology to protect a
persons reputation and peace of mind, cannot adopt means that will unnecessarily and broadly sweep, invading the
area of protected freedoms.62

If such means are adopted, self-inhibition borne of fear of what sinister predicaments await internet users will
suppress otherwise robust discussion of public issues. Democracy will be threatened and with it, all liberties. Penal
laws should provide reasonably clear guidelines for law enforcement officials and triers of facts to prevent arbitrary
and discriminatory enforcement.63 The terms "aiding or abetting" constitute broad sweep that generates chilling
effect on those who express themselves through cyberspace posts, comments, and other messages.64 Hence,
Section 5 of the cybercrime law that punishes "aiding or abetting" libel on the cyberspace is a nullity.

When a penal statute encroaches upon the freedom of speech, a facial challenge grounded on the void-for-
vagueness doctrine is acceptable. The inapplicability of the doctrine must be carefully delineated. As Justice Antonio
T. Carpio explained in his dissent in Romualdez v. Commission on Elections,65 "we must view these statements of
the Court on the inapplicability of the overbreadth and vagueness doctrines to penal statutes as appropriate only
insofar as these doctrines are used to mount facial challenges to penal statutes not involving free speech."

In an "as applied" challenge, the petitioner who claims a violation of his constitutional right can raise any
constitutional ground absence of due process, lack of fair notice, lack of ascertainable standards, overbreadth, or
vagueness. Here, one can challenge the constitutionality of a statute only if he asserts a violation of his own rights. It
prohibits one from assailing the constitutionality of the statute based solely on the violation of the rights of third
persons not before the court. This rule is also known as the prohibition against third-party standing.66

But this rule admits of exceptions. A petitioner may for instance mount a "facial" challenge to the constitutionality of
a statute even if he claims no violation of his own rights under the assailed statute where it involves free speech on
grounds of overbreadth or vagueness of the statute.

The rationale for this exception is to counter the "chilling effect" on protected speech that comes from statutes
violating free speech. A person who does not know whether his speech constitutes a crime under an overbroad or
vague law may simply restrain himself from speaking in order to avoid being charged of a crime. The overbroad or
vague law thus chills him into silence.67

As already stated, the cyberspace is an incomparable, pervasive medium of communication. It is inevitable that any
government threat of punishment regarding certain uses of the medium creates a chilling effect on the
constitutionally-protected freedom of expression of the great masses that use it. In this case, the particularly
complex web of interaction on social media websites would give law enforcers such latitude that they could
arbitrarily or selectively enforce the law.

Who is to decide when to prosecute persons who boost the visibility of a posting on the internet by liking it? Netizens
are not given "fair notice" or warning as to what is criminal conduct and what is lawful conduct. When a case is filed,
how will the court ascertain whether or not one netizens comment aided and abetted a cybercrime while another
comment did not?

Of course, if the "Comment" does not merely react to the original posting but creates an altogether new defamatory
story against Armand like "He beats his wife and children," then that should be considered an original posting
published on the internet. Both the penal code and the cybercrime law clearly punish authors of defamatory
publications. Make no mistake, libel destroys reputations that society values. Allowed to cascade in the internet, it
will destroy relationships and, under certain circumstances, will generate enmity and tension between social or
economic groups, races, or religions, exacerbating existing tension in their relationships.

In regard to the crime that targets child pornography, when "Google procures, stores, and indexes child
pornography and facilitates the completion of transactions involving the dissemination of child pornography," does
this make Google and its users aiders and abettors in the commission of child pornography crimes?68 Byars
highlights a feature in the American law on child pornography that the Cybercrimes law lacksthe exemption of a
provider or notably a plain user of interactive computer service from civil liability for child pornography as follows:

No provider or user of an interactive computer service shall be treated as the publisher or speaker of any
information provided by another information content provider and cannot be held civilly liable for any action
voluntarily taken in good faith to restrict access to or availability of material that the provider or user considers to be
obscene...whether or not such material is constitutionally protected.69

When a person replies to a Tweet containing child pornography, he effectively republishes it whether wittingly or
unwittingly. Does this make him a willing accomplice to the distribution of child pornography? When a user
downloads the Facebook mobile application, the user may give consent to Facebook to access his contact details.
In this way, certain information is forwarded to third parties and unsolicited commercial communication could be
disseminated on the basis of this information.70 As the source of this information, is the user aiding the distribution of
this communication? The legislature needs to address this clearly to relieve users of annoying fear of possible
criminal prosecution.

Section 5 with respect to Section 4(c)(4) is unconstitutional. Its vagueness raises apprehension on the part of
internet users because of its obvious chilling effect on the freedom of expression, especially since the crime of
aiding or abetting ensnares all the actors in the cyberspace front in a fuzzy way. What is more, as the petitioners
point out, formal crimes such as libel are not punishable unless consummated.71 In the absence of legislation tracing
the interaction of netizens and their level of responsibility such as in other countries, Section 5, in relation to Section
4(c)(4) on Libel, Section 4(c)(3) on Unsolicited Commercial Communications, and Section 4(c)(2) on Child
Pornography, cannot stand scrutiny.

But the crime of aiding or abetting the commission of cybercrimes under Section 5 should be permitted to apply to
Section 4(a)(1) on Illegal Access, Section 4(a)(2) on Illegal Interception, Section 4(a)(3) on Data Interference,
Section 4(a)(4) on System Interference, Section 4(a)(5) on Misuse of Devices, Section 4(a)(6) on Cyber-squatting,
Section 4(b)(1) on Computer-related Forgery, Section 4(b)(2) on Computer-related Fraud, Section 4(b)(3) on
Computer-related Identity Theft, and Section 4(c)(1) on Cybersex. None of these offenses borders on the exercise
of the freedom of expression.

The crime of willfully attempting to commit any of these offenses is for the same reason not objectionable. A hacker
may for instance have done all that is necessary to illegally access another partys computer system but the security
employed by the systems lawful owner could frustrate his effort. Another hacker may have gained access to
usernames and passwords of others but fail to use these because the system supervisor is alerted.72 If Section 5
that punishes any person who willfully attempts to commit this specific offense is not upheld, the owner of the
username and password could not file a complaint against him for attempted hacking. But this is not right. The
hacker should not be freed from liability simply because of the vigilance of a lawful owner or his supervisor.

Petitioners of course claim that Section 5 lacks positive limits and could cover the innocent.73 While this may be true
with respect to cybercrimes that tend to sneak past the area of free expression, any attempt to commit the other acts
specified in Section 4(a)(1), Section 4(a)(2), Section 4(a)(3), Section 4(a)(4), Section 4(a)(5), Section 4(a)(6),
Section 4(b)(1), Section 4(b)(2), Section 4(b)(3), and Section 4(c)(1) as well as the actors aiding and abetting the
commission of such acts can be identified with some reasonable certainty through adroit tracking of their works.
Absent concrete proof of the same, the innocent will of course be spared.

Section 6 of the Cybercrime Law

Section 6 provides:

Sec. 6. All crimes defined and penalized by the Revised Penal Code, as amended, and special laws, if committed
by, through and with the use of information and communications technologies shall be covered by the relevant
provisions of this Act: Provided, That the penalty to be imposed shall be one (1) degree higher than that provided for
by the Revised Penal Code, as amended, and special laws, as the case may be.

Section 6 merely makes commission of existing crimes through the internet a qualifying circumstance. As the
Solicitor General points out, there exists a substantial distinction between crimes committed through the use of
information and communications technology and similar crimes committed using other means. In using the
technology in question, the offender often evades identification and is able to reach far more victims or cause
greater harm. The distinction, therefore, creates a basis for higher penalties for cybercrimes.

Section 7 of the Cybercrime Law

Section 7 provides:

Sec. 7. Liability under Other Laws. A prosecution under this Act shall be without prejudice to any liability for
violation of any provision of the Revised Penal Code, as amended, or special laws.
The Solicitor General points out that Section 7 merely expresses the settled doctrine that a single set of acts may be
prosecuted and penalized simultaneously under two laws, a special law and the Revised Penal Code. When two
different laws define two crimes, prior jeopardy as to one does not bar prosecution of the other although both
offenses arise from the same fact, if each crime involves some important act which is not an essential element of the
other.74 With the exception of the crimes of online libel and online child pornography, the Court would rather leave
the determination of the correct application of Section 7 to actual cases.

Online libel is different. There should be no question that if the published material on print, said to be libelous, is
again posted online or vice versa, that identical material cannot be the subject of two separate libels. The two
offenses, one a violation of Article 353 of the Revised Penal Code and the other a violation of Section 4(c)(4) of R.A.
10175 involve essentially the same elements and are in fact one and the same offense. Indeed, the OSG itself
claims that online libel under Section 4(c)(4) is not a new crime but is one already punished under Article 353.
Section 4(c)(4) merely establishes the computer system as another means of publication.75 Charging the offender
under both laws would be a blatant violation of the proscription against double jeopardy.76

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

Section 8 of the Cybercrime Law

Section 8 provides:

Sec. 8. Penalties. Any person found guilty of any of the punishable acts enumerated in Sections 4(a) and 4(b) of
this Act shall be punished with imprisonment of prision mayor or a fine of at least Two hundred thousand pesos
(PhP200,000.00) up to a maximum amount commensurate to the damage incurred or both.

Any person found guilty of the punishable act under Section 4(a)(5) shall be punished with imprisonment of prision
mayor or a fine of not more than Five hundred thousand pesos (PhP500,000.00) or both.

If punishable acts in Section 4(a) are committed against critical infrastructure, the penalty of reclusion temporal or a
fine of at least Five hundred thousand pesos (PhP500,000.00) up to maximum amount commensurate to the
damage incurred or both, shall be imposed.

Any person found guilty of any of the punishable acts enumerated in Section 4(c)(1) of this Act shall be punished
with imprisonment of prision mayor or a fine of at least Two hundred thousand pesos (PhP200,000.00) but not
exceeding One million pesos (PhP1,000,000.00) or both.

Any person found guilty of any of the punishable acts enumerated in Section 4(c)(2) of this Act shall be punished
with the penalties as enumerated in Republic Act No. 9775 or the "Anti-Child Pornography Act of 2009:" Provided,
That the penalty to be imposed shall be one (1) degree higher than that provided for in Republic Act No. 9775, if
committed through a computer system.

Any person found guilty of any of the punishable acts enumerated in Section 4(c)(3) shall be punished with
imprisonment of arresto mayor or a fine of at least Fifty thousand pesos (PhP50,000.00) but not exceeding Two
hundred fifty thousand pesos (PhP250,000.00) or both.

Any person found guilty of any of the punishable acts enumerated in Section 5 shall be punished with imprisonment
one (1) degree lower than that of the prescribed penalty for the offense or a fine of at least One hundred thousand
pesos (PhP100,000.00) but not exceeding Five hundred thousand pesos (PhP500,000.00) or both.

Section 8 provides for the penalties for the following crimes: Sections 4(a) on Offenses Against the Confidentiality,
Integrity and Availability of Computer Data and Systems; 4(b) on Computer-related Offenses; 4(a)(5) on Misuse of
Devices; when the crime punishable under 4(a) is committed against critical infrastructure; 4(c)(1) on Cybersex;
4(c)(2) on Child Pornography; 4(c)(3) on Unsolicited Commercial Communications; and Section 5 on Aiding or
Abetting, and Attempt in the Commission of Cybercrime.

The matter of fixing penalties for the commission of crimes is as a rule a legislative prerogative. Here the legislature
prescribed a measure of severe penalties for what it regards as deleterious cybercrimes. They appear proportionate
to the evil sought to be punished. The power to determine penalties for offenses is not diluted or improperly wielded
simply because at some prior time the act or omission was but an element of another offense or might just have
been connected with another crime.77 Judges and magistrates can only interpret and apply them and have no
authority to modify or revise their range as determined by the legislative department.

The courts should not encroach on this prerogative of the lawmaking body.78

Section 12 of the Cybercrime Law

Section 12 provides:

Sec. 12. Real-Time Collection of Traffic Data. Law enforcement authorities, with due cause, shall be authorized
to collect or record by technical or electronic means traffic data in real-time associated with specified
communications transmitted by means of a computer system.

Traffic data refer only to the communications origin, destination, route, time, date, size, duration, or type of
underlying service, but not content, nor identities.

All other data to be collected or seized or disclosed will require a court warrant.

Service providers are required to cooperate and assist law enforcement authorities in the collection or recording of
the above-stated information.

The court warrant required under this section shall only be issued or granted upon written application and the
examination under oath or affirmation of the applicant and the witnesses he may produce and the showing: (1) that
there are reasonable grounds to believe that any of the crimes enumerated hereinabove has been committed, or is
being committed, or is about to be committed; (2) that there are reasonable grounds to believe that evidence that
will be obtained is essential to the conviction of any person for, or to the solution of, or to the prevention of, any such
crimes; and (3) that there are no other means readily available for obtaining such evidence.

Petitioners assail the grant to law enforcement agencies of the power to collect or record traffic data in real time as
tending to curtail civil liberties or provide opportunities for official abuse. They claim that data showing where digital
messages come from, what kind they are, and where they are destined need not be incriminating to their senders or
recipients before they are to be protected. Petitioners invoke the right of every individual to privacy and to be
protected from government snooping into the messages or information that they send to one another.

The first question is whether or not Section 12 has a proper governmental purpose since a law may require the
disclosure of matters normally considered private but then only upon showing that such requirement has a rational
relation to the purpose of the law,79 that there is a compelling State interest behind the law, and that the provision
itself is narrowly drawn.80 In assessing regulations affecting privacy rights, courts should balance the legitimate
concerns of the State against constitutional guarantees.81

Undoubtedly, the State has a compelling interest in enacting the cybercrime law for there is a need to put order to
the tremendous activities in cyberspace for public good.82 To do this, it is within the realm of reason that the
government should be able to monitor traffic data to enhance its ability to combat all sorts of cybercrimes.

Chapter IV of the cybercrime law, of which the collection or recording of traffic data is a part, aims to provide law
enforcement authorities with the power they need for spotting, preventing, and investigating crimes committed in
cyberspace. Crime-fighting is a state business. Indeed, as Chief Justice Sereno points out, the Budapest
Convention on Cybercrimes requires signatory countries to adopt legislative measures to empower state authorities
to collect or record "traffic data, in real time, associated with specified communications."83 And this is precisely what
Section 12 does. It empowers law enforcement agencies in this country to collect or record such data.

But is not evidence of yesterdays traffic data, like the scene of the crime after it has been committed, adequate for
fighting cybercrimes and, therefore, real-time data is superfluous for that purpose? Evidently, it is not. Those who
commit the crimes of accessing a computer system without right,84 transmitting viruses,85 lasciviously exhibiting
sexual organs or sexual activity for favor or consideration;86 and producing child pornography87 could easily evade
detection and prosecution by simply moving the physical location of their computers or laptops from day to day. In
this digital age, the wicked can commit cybercrimes from virtually anywhere: from internet cafs, from kindred places
that provide free internet services, and from unregistered mobile internet connectors. Criminals using cellphones
under pre-paid arrangements and with unregistered SIM cards do not have listed addresses and can neither be
located nor identified. There are many ways the cyber criminals can quickly erase their tracks. Those who peddle
child pornography could use relays of computers to mislead law enforcement authorities regarding their places of
operations. Evidently, it is only real-time traffic data collection or recording and a subsequent recourse to court-
issued search and seizure warrant that can succeed in ferreting them out.

Petitioners of course point out that the provisions of Section 12 are too broad and do not provide ample safeguards
against crossing legal boundaries and invading the peoples right to privacy. The concern is understandable. Indeed,
the Court recognizes in Morfe v. Mutuc88 that certain constitutional guarantees work together to create zones of
privacy wherein governmental powers may not intrude, and that there exists an independent constitutional right of
privacy. Such right to be left alone has been regarded as the beginning of all freedoms.89

But that right is not unqualified. In Whalen v. Roe,90 the United States Supreme Court classified privacy into two
categories: decisional privacy and informational privacy. Decisional privacy involves the right to independence in
making certain important decisions, while informational privacy refers to the interest in avoiding disclosure of
personal matters. It is the latter rightthe right to informational privacythat those who oppose government
collection or recording of traffic data in real-time seek to protect.

Informational privacy has two aspects: the right not to have private information disclosed, and the right to live freely
without surveillance and intrusion.91 In determining whether or not a matter is entitled to the right to privacy, this
Court has laid down a two-fold test. The first is a subjective test, where one claiming the right must have an actual or
legitimate expectation of privacy over a certain matter. The second is an objective test, where his or her expectation
of privacy must be one society is prepared to accept as objectively reasonable.92

Since the validity of the cybercrime law is being challenged, not in relation to its application to a particular person or
group, petitioners challenge to Section 12 applies to all information and communications technology (ICT) users,
meaning the large segment of the population who use all sorts of electronic devices to communicate with one
another. Consequently, the expectation of privacy is to be measured from the general publics point of view. Without
reasonable expectation of privacy, the right to it would have no basis in fact.

As the Solicitor General points out, an ordinary ICT user who courses his communication through a service provider,
must of necessity disclose to the latter, a third person, the traffic data needed for connecting him to the recipient ICT
user. For example, an ICT user who writes a text message intended for another ICT user must furnish his service
provider with his cellphone number and the cellphone number of his recipient, accompanying the message sent. It is
this information that creates the traffic data. Transmitting communications is akin to putting a letter in an envelope
properly addressed, sealing it closed, and sending it through the postal service. Those who post letters have no
expectations that no one will read the information appearing outside the envelope.

Computer datamessages of all kindstravel across the internet in packets and in a way that may be likened to
parcels of letters or things that are sent through the posts. When data is sent from any one source, the content is
broken up into packets and around each of these packets is a wrapper or header. This header contains the traffic
data: information that tells computers where the packet originated, what kind of data is in the packet (SMS, voice
call, video, internet chat messages, email, online browsing data, etc.), where the packet is going, and how the
packet fits together with other packets.93 The difference is that traffic data sent through the internet at times across
the ocean do not disclose the actual names and addresses (residential or office) of the sender and the recipient,
only their coded internet protocol (IP) addresses. The packets travel from one computer system to another where
their contents are pieced back together.

Section 12 does not permit law enforcement authorities to look into the contents of the messages and uncover the
identities of the sender and the recipient.

For example, when one calls to speak to another through his cellphone, the service providers communications
system will put his voice message into packets and send them to the other persons cellphone where they are
refitted together and heard. The latters spoken reply is sent to the caller in the same way. To be connected by the
service provider, the sender reveals his cellphone number to the service provider when he puts his call through. He
also reveals the cellphone number to the person he calls. The other ways of communicating electronically follow the
same basic pattern.

In Smith v. Maryland,94 cited by the Solicitor General, the United States Supreme Court reasoned that telephone
users in the 70s must realize that they necessarily convey phone numbers to the telephone company in order to
complete a call. That Court ruled that even if there is an expectation that phone numbers one dials should remain
private, such expectation is not one that society is prepared to recognize as reasonable.

In much the same way, ICT users must know that they cannot communicate or exchange data with one another
over cyberspace except through some service providers to whom they must submit certain traffic data that are
needed for a successful cyberspace communication. The conveyance of this data takes them out of the private
sphere, making the expectation to privacy in regard to them an expectation that society is not prepared to recognize
as reasonable.

The Court, however, agrees with Justices Carpio and Brion that when seemingly random bits of traffic data are
gathered in bulk, pooled together, and analyzed, they reveal patterns of activities which can then be used to create
profiles of the persons under surveillance. With enough traffic data, analysts may be able to determine a persons
close associations, religious views, political affiliations, even sexual preferences. Such information is likely beyond
what the public may expect to be disclosed, and clearly falls within matters protected by the right to privacy. But has
the procedure that Section 12 of the law provides been drawn narrowly enough to protect individual rights?

Section 12 empowers law enforcement authorities, "with due cause," to collect or record by technical or electronic
means traffic data in real-time. Petitioners point out that the phrase "due cause" has no precedent in law or
jurisprudence and that whether there is due cause or not is left to the discretion of the police. Replying to this, the
Solicitor General asserts that Congress is not required to define the meaning of every word it uses in drafting the
law.

Indeed, courts are able to save vague provisions of law through statutory construction. But the cybercrime law,
dealing with a novel situation, fails to hint at the meaning it intends for the phrase "due cause." The Solicitor General
suggests that "due cause" should mean "just reason or motive" and "adherence to a lawful procedure." But the
Court cannot draw this meaning since Section 12 does not even bother to relate the collection of data to the
probable commission of a particular crime. It just says, "with due cause," thus justifying a general gathering of data.
It is akin to the use of a general search warrant that the Constitution prohibits.

Due cause is also not descriptive of the purpose for which data collection will be used. Will the law enforcement
agencies use the traffic data to identify the perpetrator of a cyber attack? Or will it be used to build up a case against
an identified suspect? Can the data be used to prevent cybercrimes from happening?

The authority that Section 12 gives law enforcement agencies is too sweeping and lacks restraint. While it says that
traffic data collection should not disclose identities or content data, such restraint is but an illusion. Admittedly,
nothing can prevent law enforcement agencies holding these data in their hands from looking into the identity of
their sender or receiver and what the data contains. This will unnecessarily expose the citizenry to leaked
information or, worse, to extortion from certain bad elements in these agencies.

Section 12, of course, limits the collection of traffic data to those "associated with specified communications." But
this supposed limitation is no limitation at all since, evidently, it is the law enforcement agencies that would specify
the target communications. The power is virtually limitless, enabling law enforcement authorities to engage in
"fishing expedition," choosing whatever specified communication they want. This evidently threatens the right of
individuals to privacy.

The Solicitor General points out that Section 12 needs to authorize collection of traffic data "in real time" because it
is not possible to get a court warrant that would authorize the search of what is akin to a "moving vehicle." But
warrantless search is associated with a police officers determination of probable cause that a crime has been
committed, that there is no opportunity for getting a warrant, and that unless the search is immediately carried out,
the thing to be searched stands to be removed. These preconditions are not provided in Section 12.

The Solicitor General is honest enough to admit that Section 12 provides minimal protection to internet users and
that the procedure envisioned by the law could be better served by providing for more robust safeguards. His bare
assurance that law enforcement authorities will not abuse the provisions of Section 12 is of course not enough. The
grant of the power to track cyberspace communications in real time and determine their sources and destinations
must be narrowly drawn to preclude abuses.95

Petitioners also ask that the Court strike down Section 12 for being violative of the void-for-vagueness doctrine and
the overbreadth doctrine. These doctrines however, have been consistently held by this Court to apply only to free
speech cases. But Section 12 on its own neither regulates nor punishes any type of speech. Therefore, such
analysis is unnecessary.

This Court is mindful that advances in technology allow the government and kindred institutions to monitor
individuals and place them under surveillance in ways that have previously been impractical or even impossible. "All
the forces of a technological age x x x operate to narrow the area of privacy and facilitate intrusions into it. In
modern terms, the capacity to maintain and support this enclave of private life marks the difference between a
democratic and a totalitarian society."96 The Court must ensure that laws seeking to take advantage of these
technologies be written with specificity and definiteness as to ensure respect for the rights that the Constitution
guarantees.

Section 13 of the Cybercrime Law

Section 13 provides:

Sec. 13. Preservation of Computer Data. The integrity of traffic data and subscriber information relating to
communication services provided by a service provider shall be preserved for a minimum period of six (6) months
from the date of the transaction. Content data shall be similarly preserved for six (6) months from the date of receipt
of the order from law enforcement authorities requiring its preservation.

Law enforcement authorities may order a one-time extension for another six (6) months: Provided, That once
computer data preserved, transmitted or stored by a service provider is used as evidence in a case, the mere
furnishing to such service provider of the transmittal document to the Office of the Prosecutor shall be deemed a
notification to preserve the computer data until the termination of the case.

The service provider ordered to preserve computer data shall keep confidential the order and its compliance.

Petitioners in G.R. 20339197 claim that Section 13 constitutes an undue deprivation of the right to property. They
liken the data preservation order that law enforcement authorities are to issue as a form of garnishment of personal
property in civil forfeiture proceedings. Such order prevents internet users from accessing and disposing of traffic
data that essentially belong to them.

No doubt, the contents of materials sent or received through the internet belong to their authors or recipients and
are to be considered private communications. But it is not clear that a service provider has an obligation to
indefinitely keep a copy of the same as they pass its system for the benefit of users. By virtue of Section 13,
however, the law now requires service providers to keep traffic data and subscriber information relating to
communication services for at least six months from the date of the transaction and those relating to content data for
at least six months from receipt of the order for their preservation.
Actually, the user ought to have kept a copy of that data when it crossed his computer if he was so minded. The
service provider has never assumed responsibility for their loss or deletion while in its keep.

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

Section 14 of the Cybercrime Law

Section 14 provides:

Sec. 14. Disclosure of Computer Data. Law enforcement authorities, upon securing a court warrant, shall issue
an order requiring any person or service provider to disclose or submit subscribers information, traffic data or
relevant data in his/its possession or control within seventy-two (72) hours from receipt of the order in relation to a
valid complaint officially docketed and assigned for investigation and the disclosure is necessary and relevant for the
purpose of investigation.

The process envisioned in Section 14 is being likened to the issuance of a subpoena. Petitioners objection is that
the issuance of subpoenas is a judicial function. But it is well-settled that the power to issue subpoenas is not
exclusively a judicial function. Executive agencies have the power to issue subpoena as an adjunct of their
investigatory powers.98

Besides, what Section 14 envisions is merely the enforcement of a duly issued court warrant, a function usually
lodged in the hands of law enforcers to enable them to carry out their executive functions. The prescribed procedure
for disclosure would not constitute an unlawful search or seizure nor would it violate the privacy of communications
and correspondence. Disclosure can be made only after judicial intervention.

Section 15 of the Cybercrime Law

Section 15 provides:

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

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

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

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

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

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

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

Pursuant thereof, the law enforcement authorities may order any person who has knowledge about the functioning
of the computer system and the measures to protect and preserve the computer data therein to provide, as is
reasonable, the necessary information, to enable the undertaking of the search, seizure and examination.

Law enforcement authorities may request for an extension of time to complete the examination of the computer data
storage medium and to make a return thereon but in no case for a period longer than thirty (30) days from date of
approval by the court.
Petitioners challenge Section 15 on the assumption that it will supplant established search and seizure procedures.
On its face, however, Section 15 merely enumerates the duties of law enforcement authorities that would ensure the
proper collection, preservation, and use of computer system or data that have been seized by virtue of a court
warrant. The exercise of these duties do not pose any threat on the rights of the person from whom they were taken.
Section 15 does not appear to supersede existing search and seizure rules but merely supplements them.

Section 17 of the Cybercrime Law

Section 17 provides:

Sec. 17. Destruction of Computer Data. Upon expiration of the periods as provided in Sections 13 and 15, service
providers and law enforcement authorities, as the case may be, shall immediately and completely destroy the
computer data subject of a preservation and examination.

Section 17 would have the computer data, previous subject of preservation or examination, destroyed or deleted
upon the lapse of the prescribed period. The Solicitor General justifies this as necessary to clear up the service
providers storage systems and prevent overload. It would also ensure that investigations are quickly concluded.

Petitioners claim that such destruction of computer data subject of previous preservation or examination violates the
users right against deprivation of property without due process of law. But, as already stated, it is unclear that the
user has a demandable right to require the service provider to have that copy of the data saved indefinitely for him in
its storage system. If he wanted them preserved, he should have saved them in his computer when he generated
the data or received it. He could also request the service provider for a copy before it is deleted.

Section 19 of the Cybercrime Law

Section 19 empowers the Department of Justice to restrict or block access to computer data:

Sec. 19. Restricting or Blocking Access to Computer Data. When a computer data is prima facie found to be in
violation of the provisions of this Act, the DOJ shall issue an order to restrict or block access to such computer data.

Petitioners contest Section 19 in that it stifles freedom of expression and violates the right against unreasonable
searches and seizures. The Solicitor General concedes that this provision may be unconstitutional. But since laws
enjoy a presumption of constitutionality, the Court must satisfy itself that Section 19 indeed violates the freedom and
right mentioned.

Computer data99 may refer to entire programs or lines of code, including malware, as well as files that contain texts,
images, audio, or video recordings. Without having to go into a lengthy discussion of property rights in the digital
space, it is indisputable that computer data, produced or created by their writers or authors may constitute personal
property. Consequently, they are protected from unreasonable searches and seizures, whether while stored in their
personal computers or in the service providers systems.

Section 2, Article III of the 1987 Constitution provides that the right to be secure in ones papers and effects against
unreasonable searches and seizures of whatever nature and for any purpose shall be inviolable. Further, it states
that no search warrant shall issue except upon probable cause to be determined personally by the judge. Here, the
Government, in effect, seizes and places the computer data under its control and disposition without a warrant. The
Department of Justice order cannot substitute for judicial search warrant.

The content of the computer data can also constitute speech. In such a case, Section 19 operates as a restriction on
the freedom of expression over cyberspace. Certainly not all forms of speech are protected. Legislature may, within
constitutional bounds, declare certain kinds of expression as illegal. But for an executive officer to seize content
alleged to be unprotected without any judicial warrant, it is not enough for him to be of the opinion that such content
violates some law, for to do so would make him judge, jury, and executioner all rolled into one.100
Not only does Section 19 preclude any judicial intervention, but it also disregards jurisprudential guidelines
established to determine the validity of restrictions on speech. Restraints on free speech are generally evaluated on
one of or a combination of three tests: the dangerous tendency doctrine, the balancing of interest test, and the clear
and present danger rule.101 Section 19, however, merely requires that the data to be blocked be found prima facie in
violation of any provision of the cybercrime law. Taking Section 6 into consideration, this can actually be made to
apply in relation to any penal provision. It does not take into consideration any of the three tests mentioned above.

The Court is therefore compelled to strike down Section 19 for being violative of the constitutional guarantees to
freedom of expression and against unreasonable searches and seizures.

Section 20 of the Cybercrime Law

Section 20 provides:

Sec. 20. Noncompliance. Failure to comply with the provisions of Chapter IV hereof specifically the orders from
law enforcement authorities shall be punished as a violation of Presidential Decree No. 1829 with imprisonment of
prision correctional in its maximum period or a fine of One hundred thousand pesos (Php100,000.00) or both, for
each and every noncompliance with an order issued by law enforcement authorities.

Petitioners challenge Section 20, alleging that it is a bill of attainder. The argument is that the mere failure to comply
constitutes a legislative finding of guilt, without regard to situations where non-compliance would be reasonable or
valid.

But since the non-compliance would be punished as a violation of Presidential Decree (P.D.) 1829,102 Section 20
necessarily incorporates elements of the offense which are defined therein. If Congress had intended for Section 20
to constitute an offense in and of itself, it would not have had to make reference to any other statue or provision.

P.D. 1829 states:

Section 1. The penalty of prision correccional in its maximum period, or a fine ranging from 1,000 to 6,000 pesos, or
both, shall be imposed upon any person who knowingly or willfully obstructs, impedes, frustrates or delays the
apprehension of suspects and the investigation and prosecution of criminal cases by committing any of the following
acts:

x x x.

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

Sections 24 and 26(a) of the Cybercrime Law

Sections 24 and 26(a) provide:

Sec. 24. Cybercrime Investigation and Coordinating Center. There is hereby created, within thirty (30) days from
the effectivity of this Act, an inter-agency body to be known as the Cybercrime Investigation and Coordinating
Center (CICC), under the administrative supervision of the Office of the President, for policy coordination among
concerned agencies and for the formulation and enforcement of the national cybersecurity plan.

Sec. 26. Powers and Functions. The CICC shall have the following powers and functions:

(a) To formulate a national cybersecurity plan and extend immediate assistance of real time commission of
cybercrime offenses through a computer emergency response team (CERT); x x x.
Petitioners mainly contend that Congress invalidly delegated its power when it gave the Cybercrime Investigation
and Coordinating Center (CICC) the power to formulate a national cybersecurity plan without any sufficient
standards or parameters for it to follow.

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

the delegates authority and prevent the delegation from running riot.103

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

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

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

WHEREFORE, the Court DECLARES:

1. VOID for being UNCONSTITUTIONAL:

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

b. Section 12 that authorizes the collection or recording of traffic data in real-time; and

c. Section 19 of the same Act that authorizes the Department of Justice to restrict or block access to
suspected Computer Data.

2. VALID and CONSTITUTIONAL:

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

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

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

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

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

f. Section 4(c)(2) that penalizes the production of child pornography;

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

h. Section 8 that prescribes the penalties for cybercrimes;

i. Section 13 that permits law enforcement authorities to require service providers to preserve traffic
data and subscriber information as well as specified content data for six months;

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

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

l. Section 17 that authorizes the destruction of previously preserved computer data after the
expiration of the prescribed holding periods;

m. Section 20 that penalizes obstruction of justice in relation to cybercrime investigations;

n. Section 24 that establishes a Cybercrime Investigation and Coordinating Center (CICC);

o. Section 26(a) that defines the CICCs Powers and Functions; and

p. Articles 353, 354, 361, and 362 of the Revised Penal Code that penalizes libel.

Further, the Court DECLARES:

1. Section 4(c)(4) that penalizes online libel as VALID and CONSTITUTIONAL with respect to the original
author of the post; but VOID and UNCONSTITUTIONAL with respect to others who simply receive the post
and react to it; and

2. Section 5 that penalizes aiding or abetting and attempt in the commission of cybercrimes as VA L I D and
CONSTITUTIONAL only in relation to Section 4(a)(1) on Illegal Access, Section 4(a)(2) on Illegal
Interception, Section 4(a)(3) on Data Interference, Section 4(a)(4) on System

Interference, Section 4(a)(5) on Misuse of Devices, Section 4(a)(6) on Cyber-squatting, Section 4(b)(1) on
Computer-related Forgery, Section 4(b)(2) on Computer-related Fraud, Section 4(b)(3) on Computer-related Identity
Theft, and Section 4(c)(1) on Cybersex; but VOID and UNCONSTITUTIONAL with respect to Sections 4(c)(2) on
Child Pornography, 4(c)(3) on Unsolicited Commercial Communications, and 4(c)(4) on online Libel. 1wphi1

Lastly, the Court RESOLVES to LEAVE THE DETERMINATION of the correct application of Section 7 that
authorizes prosecution of the offender under both the Revised Penal Code and Republic Act 10175 to actual cases,
WITH THE EXCEPTION of the crimes of:

1. Online libel as to which, charging the offender under both Section 4(c)(4) of Republic Act 10175 and
Article 353 of the Revised Penal Code constitutes a violation of the proscription against double jeopardy; as
well as

2. Child pornography committed online as to which, charging the offender under both Section 4(c)(2) of
Republic Act 10175 and Republic Act 9775 or the Anti-Child Pornography Act of 2009 also constitutes a
violation of the same proscription, and, in respect to these, is VOID and UNCONSTITUTIONAL.

SO ORDERED.

ROBERTO A. ABAD
Associate Justice
 CASE OF JERSILD v. DENMARK

(Application no. 15890/89)

JUDGMENT

STRASBOURG

23 September 1994

In the case of Jersild v. Denmark[*],

The European Court of Human Rights, sitting as a Grand Chamber pursuant to Rule 51 of the
Rules of Court and composed of the following judges:
Mr R. RYSSDAL, President,
Mr R. BERNHARDT,
Mr F. GLCKL,
Mr R. MACDONALD,
Mr C. RUSSO,
Mr A. SPIELMANN,
Mr N. VALTICOS,
Mr S.K. MARTENS,
Mrs E. PALM,
Mr R. PEKKANEN,
Mr A.N. LOIZOU,
Mr J.M. MORENILLA,
Mr M.A. LOPES ROCHA,
MrL. WILDHABER,
Mr G. MIFSUD BONNICI,
Mr J. MAKARCZYK,
Mr D. GOTCHEV,
Mr B. REPIK,
Mr A. PHILIP, ad hoc judge,
and also of Mr H. PETZOLD, Acting Registrar,
Having deliberated in private on 22 April and 22 August 1994,
Delivers the following judgment, which was adopted on the last-mentioned date:

PROCEDURE
 1. The case was referred to the Court on 9 September 1993 by the European Commission of
Human Rights ("the Commission") and on 11 October 1993 by the Government of the Kingdom of
Denmark ("the Government"), within the three-month period laid down by Article 32 para. 1 and
Article 47 (art. 32-1, art. 47) of the Convention for the Protection of Human Rights and Fundamental
Freedoms ("the Convention"). It originated in an application (no. 15890/89) against Denmark lodged
with the Commission under Article 25 (art. 25) by a Danish national, Mr Jens Olaf Jersild, on 25 July
1989.
The Commissions request referred to Articles 44 and 48 (art. 44, art. 48) and to the declaration
whereby Denmark recognised the compulsory jurisdiction of the Court (Article 46) (art. 46); the
Governments application referred to Articles 44 and 48 (art. 44, art. 48). The object of the request
and of the Governments application was to obtain a decision as to whether the facts of the case
disclosed a breach by the respondent State of its obligations under Article 10 (art. 10) of the
Convention.
2. In response to the enquiry made in accordance with Rule 33 para. 3 (d) of the Rules of Court,
the applicant stated that he wished to take part in the proceedings and designated the lawyers who
would represent him (Rule 30).
3. The Chamber to be constituted included ex officio Mr I. Foighel, the elected judge of Danish
nationality (Article 43 of the Convention) (art. 43), and Mr R. Ryssdal, the President of the Court (Rule
21 para. 3 (b)). However, on 20 September 1993 Mr Foighel withdrew from the case pursuant to Rule
24 para. 2. On 24 September 1993, in the presence of the Registrar, the President drew by lot the
names of the other seven members, namely Mr R. Macdonald, Mrs E. Palm, Mr R. Pekkanen, Mr
M.A. Lopes Rocha, Mr G. Mifsud Bonnici, Mr J. Makarczyk and Mr D. Gotchev (Article 43 in fine of
the Convention and Rule 21 para. 4) (art. 43). By letter of 29 October the Agent of the Government
notified the Registrar of the appointment of Mr K. Waaben as an ad hoc judge; in a letter of 16
November the Agent informed the Registrar that Mr Waaben had withdrawn and that they had
therefore appointed Mr A. Philip to replace him (Article 43 of the Convention and Rule 23) (art. 43).
4. As President of the Chamber (Rule 21 para. 5), Mr Ryssdal, acting through the Registrar,
consulted the Agent of the Government, the applicants lawyers and the Delegate of the Commission
on the organisation of the proceedings (Rules 37 para. 1 and 38). Pursuant to the order made in
consequence, the Registrar received the Governments memorial on 18 February 1994 and the
applicants memorial on 20 February. In a letter of 7 March the Secretary to the Commission informed
the Registrar that the Delegate did not wish to reply in writing.
5. On 23 February 1994 the President, having consulted the Chamber, had granted leave to
Human Rights Watch, a New York based non-governmental human rights organisation, to submit
observations on specific aspects of the case (Rule 37 para. 2). The latters comments were filed on
23 March.
On 23 February the Chamber had authorised (Rule 41 para. 1) the applicant to show the video-
recording of the television programme in issue in his case to the judges taking part in the
proceedings. A showing was held shortly before the hearing on 20 April.
6. On 23 February the Chamber had also decided to relinquish jurisdiction forthwith in favour of a
Grand Chamber (Rule 51). The President and the Vice-President, Mr R. Bernhardt, as well as the
other members of the Chamber being ex officio members of the Grand Chamber, the names of the
additional nine judges were drawn by lot by the President in the presence of the Registrar on 24
February (Rule 51 para. 2 (a) to (c)), namely Mr F. Glckl, Mr C. Russo, Mr A. Spielmann, Mr N.
Valticos, Mr S.K. Martens, Mr A.N. Loizou, Mr J.M. Morenilla, Mr L. Wildhaber and Mr B. Repik.
7. On various dates between 22 March and 15 April 1994 the Commission produced a number of
documents and two video-cassettes, as requested by the Registrar on the Presidents instructions,
and the applicant submitted further details on his claims under Article 50 (art. 50) of the Convention.
8. In accordance with the Presidents decision, the hearing took place in public in the Human
Rights Building, Strasbourg, on 20 April 1994. The Court had held a preparatory meeting beforehand.
 There appeared before the Court:
- for the Government
Mr T. LEHMANN, Ambassador,
Legal Adviser, Ministry of Foreign Affairs, Agent,
Mr M.B. ELMER, Deputy Permanent Secretary,
Chief Legal Adviser, Ministry of Justice,
Ms J. RECHNAGEL, Minister Counsellor,
Ministry of Justice,
Mr J. LUNDUM, Head of Section, Ministry of Justice, Advisers;
- for the Commission
Mr C.L. ROZAKIS, Delegate;
- for the applicant
Mr K. BOYLE, Barrister, Professor of Law
at the University of Essex,
Mr T. TRIER, advokat, Lecturer of Law
at the University of Copenhagen, Counsel,
Mrs L. JOHANNESSEN, lawyer, Adviser.
The Court heard addresses by Mr Rozakis, Mr Lehmann, Mr Elmer, Mr Boyle and Mr Trier, and
also replies to a question put by the President.

AS TO THE FACTS

I. THE PARTICULAR CIRCUMSTANCES OF THE CASE

9. Mr Jens Olaf Jersild, a Danish national, is a journalist and lives in Copenhagen. He was at the
time of the events giving rise to the present case, and still is, employed by Danmarks Radio (Danish
Broadcasting Corporation, which broadcasts not only radio but also television programmes), assigned
to its Sunday News Magazine (Sndagsavisen). The latter is known as a serious television
programme intended for a well-informed audience, dealing with a wide range of social and political
issues, including xenophobia, immigration and refugees.

A. The Greenjackets item

10. On 31 May 1985 the newspaper Information published an article describing the racist
attitudes of members of a group of young people, calling themselves "the Greenjackets"
("grnjakkerne"), at sterbro in Copenhagen. In the light of this article, the editors of the Sunday
News Magazine decided to produce a documentary on the Greenjackets. Subsequently the applicant
contacted representatives of the group, inviting three of them together with Mr Per Axholt, a social
worker employed at the local youth centre, to take part in a television interview. During the interview,
which was conducted by the applicant, the three Greenjackets made abusive and derogatory remarks
about immigrants and ethnic groups in Denmark. It lasted between five and six hours, of which
between two and two and a half hours were video-recorded. Danmarks Radio paid the interviewees
fees in accordance with its usual practice.
11. The applicant subsequently edited and cut the film of the interview down to a few minutes. On
21 July 1985 this was broadcast by Danmarks Radio as a part of the Sunday News Magazine. The
programme consisted of a variety of items, for instance on the martial law in South Africa, on the
debate on profit-sharing in Denmark and on the late German writer Heinrich Bll. The transcript of the
Greenjackets item reads as follows [(I): TV presenter; (A): the applicant; (G): one or other of the
Greenjackets]:
(I) "In recent years, a great deal has been said about racism in Denmark. The papers are currently publishing
stories about distrust and resentment directed against minorities. Who are the people who hate the minorities? Where
do they come from? What is their mentality like? Mr Jens Olaf Jersild has visited a group of extremist youths at
sterbro in Copenhagen.
(A) The flag on the wall is the flag of the Southern States from the American Civil War, but today it is also the
symbol of racism, the symbol of the American movement, the Ku Klux Klan, and it shows what Lille Steen, Henrik and
Nisse are.

Are you a racist?

(G) Yes, thats what I regard myself as. Its good being a racist. We believe Denmark is for the Danes.
(A) Henrik, Lille Steen and all the others are members of a group of young people who live in Studsgrdsgade,
called STUDSEN, in sterbro in Copenhagen. It is public housing, a lot of the inhabitants are unemployed and on
social security; the crime rate is high. Some of the young people in this neighbourhood have already been involved in
criminal activities and have already been convicted.
(G) It was an ordinary armed robbery at a petrol station.
(A) What did you do?

(G) Nothing. I just ran into a petrol station with a ... gun and made them give me some money. Then I ran out
again. Thats all.
(A) What about you, what happened?
(G) I dont wish to discuss that further.

(A) But, was it violence?

(G) Yes.
(A) You have just come out of ... you have been arrested, what were you arrested for?
(G) Street violence.

(A) What happened?

(G) I had a little fight with the police together with some friends.
(A) Does that happen often?
(G) Yes, out here it does.
(A) All in all, there are 20-25 young people from STUDSEN in the same group.
They meet not far away from the public housing area near some old houses which are to be torn down. They meet
here to reaffirm among other things their racism, their hatred of immigrants and their support for the Ku Klux Klan.
(G) The Ku Klux Klan, thats something that comes from the States in the old days during - you know - the civil war
and things like that, because the Northern States wanted that the niggers should be free human beings, man, they
are not human beings, they are animals, right, its completely wrong, man, the things that happened. People should
be allowed to keep slaves, I think so anyway.
(A) Because blacks are not human beings?

(G) No, you can also see that from their body structure, man, big flat noses, with cauliflower ears etc., man. Broad
heads and very broad bodies, man, hairy, you are looking at a gorilla and compare it with an ape, man, then it is the
same [behaviour], man, its the same movements, long arms, man, long fingers etc., long feet.
(A) A lot of people are saying something different. There are a lot of people who say, but ...
 (G) Just take a picture of a gorilla, man, and then look at a nigger, its the same body structure and everything,
man, flat forehead and all kinds of things.

(A) There are many blacks, for example in the USA, who have important jobs.
(G) Of course, there is always someone who wants to show off, as if they are better than the white man, but in the
long run, its the white man who is better.
(A) What does Ku Klux Klan mean to you?

(G) It means a great deal, because I think what they do is right. A nigger is not a human being, its an animal, that
goes for all the other foreign workers as well, Turks, Yugoslavs and whatever they are called.
(A) Henrik is 19 years old and on welfare. He lives in a rented room in Studsgrdsgade. Henrik is one of the
strongest supporters of the Klan, and he hates the foreign workers, Perkere [a very derogatory word in Danish for
immigrant workers].
(G) They come up here, man, and sponge on our society. But we, we have enough problems in getting our social
benefits, man, they just get it. Fuck, we can argue with those idiots up there at the social benefit office to get our
money, man, they just get it, man, they are the first on the housing list, they get better flats than us, man, and some of
our friends who have children, man, they are living in the worst slum, man, they cant even get a shower in their flat,
man, then those Perkere-families, man, go up there with seven kids, man, and they just get an expensive flat, right
there and then. They get everything paid, and things like that, that cant be right, man, Denmark is for the Danes,
right?

It is the fact that they are Perkere, thats what we dont like, right, and we dont like their mentality - I mean they
can damn well, I mean ... whats it called ... I mean if they feel like speaking Russian in their homes, right, then its
okay, but what we dont like is when they walk around in those Zimbabwe-clothes and then speak this hula-hula
language in the street, and if you ask them something or if you get into one of their taxis then they say: I dont know
where it is, you give directions right.
(A) Is it not so that perhaps you are a bit envious that some of the Perkere as you call them have their own
shops, and cars, they can make ends ...
(G) Its drugs they are selling, man, half of the prison population in Vestre are in there because of drugs, man,
half of those in Vestre prison anyway, they are the people who are serving time for dealing drugs or something
similar.
They are in there, all the Perkere, because of drugs, right. [That] must be enough, whats it called, there should not
be drugs here in this country, but if it really has to be smuggled in, I think we should do it ourselves, I mean, I think its
unfair that those foreigners come up here to ... whats it called ... make Denmark more drug dependent and things like
that.
We have painted their doors and hoped that they would get fed up with it, so that they would soon leave, and
jumped on their cars and thrown paint in their faces when they were lying in bed sleeping.
(A) What was it you did with that paint - why paint?
(G) Because it was white paint, I think that suited them well, that was the intended effect.
(A) You threw paint through the windows of an immigrant family?
(G) Yes.
(A) What happened?
(G) He just got it in his face, thats all. Well, I think he woke up, and then he came out and shouted something in
his hula-hula language.
(A) Did he report it to the police?

(G) I dont know if he did, I mean, he wont get anywhere by doing that.
 (A) Why not?
(G) I dont know, its just kids stuff, like other people throwing water in peoples faces, he got paint in his. They
cant make anything out of that.
---
(A) Per Axholt, known as Pax [(P)], is employed in the youth centre in Studsgrdsgade. He has worked there for
several years, but many give up a lot sooner because of the tough environment. Per Axholt feels that the reasons
why the young people are persecuting the immigrants is that they are themselves powerless and disappointed.
What do you think they would say that they want, if you asked them?
(P) Just what you and I want. Some control over their lives, work which may be considered decent and which they
like, a reasonable economic situation, a reasonably functioning family, a wife or a husband and some children, a
reasonable middle-class life such as you and I have.
(A) They do many things which are sure to prevent them from getting it.
(P) That is correct.
(A) Why do you think they do this?
(P) Because they have nothing better to do. They have been told over a long period that the means by which to
achieve success is money. They wont be able to get money legitimately, so often they try to obtain it through criminal
activity. Sometimes they succeed, sometimes not, and thats why we see a lot of young people in that situation go to
prison, because it doesnt work.

---
(A) How old were you when you started your criminal activities?
(G) I dont know, about 14 I guess.
(A) What did you do?

(G) The first time, I cant remember, I dont know, burglary.

(A) Do you have what one might call a criminal career?
(G) I dont know if you can call it that.
(A) You committed your first crime when you were 14.

(G) Well, you can put it that way, I mean, if that is a criminal career. If you have been involved in crime since the
age of 15 onwards, then I guess you can say Ive had a criminal career.
(A) Will you tell me about some of the things you have done?
(G) No, not really. Its been the same over and over again. There has been pinching of videos, where the Perkere
have been our customers, so they have money. If people want to be out here and have a nice time and be racists and
drink beer, and have fun, then its quite obvious you dont want to sit in the slammer.
(A) But is the threat of imprisonment something that really deters people from doing something illegal?
(G) No, its not prison, that doesnt frighten people.
(A) Is that why you hear stories about people from out here fighting with knives etc., night after night. Is the reason
for this the fact that they are not afraid of the police getting hold of them?
(G) Yes, nothing really comes of it, I mean, there are no bad consequences, so probably thats why. For instance
fights and stabbings and smashing up things ... If you really get into the joint it would be such a ridiculously small
sentence, so it would be, I mean ... usually we are released the next day. Last time we caused some trouble over at
the pub, they let us out the next morning. Nothing really comes of it. It doesnt discourage us, but there were five of
 us, who just came out and then we had a celebration for the last guy, who came out yesterday, they probably dont
want to go in again for some time so they probably wont commit big crimes again.

(A) You would like to move back to Studsgrdsgade where you grew up, but we know for sure that its an
environment with a high crime rate. Would you like your child to grow up like you?
(G) No, and I dont think she will. Firstly, because she is a girl, statistics show that the risk is not that high, I mean
they probably dont do it, but you dont have to be a criminal because you live in an environment with a high crime
rate. I just wouldnt accept it, if she was mugging old women and stealing their handbags.
(A) What if she was among those beating up the immigrants etc. What then?
(G) That would be okay. I wouldnt have anything against that.
---

(I) We will have to see if the mentality of this family changes in the next generation. Finally, we would like to say
that groups of young people like this one in STUDSEN at sterbro, have been formed elsewhere in Copenhagen."

B. Proceedings in the City Court of Copenhagen

12. Following the programme no complaints were made to the Radio Council, which had
competence in such matters, or to Danmarks Radio but the Bishop of lborg complained to the
Minister of Justice. After undertaking investigations the Public Prosecutor instituted criminal
proceedings in the City Court of Copenhagen (Kbenhavns Byret) against the three youths
interviewed by the applicant, charging them with a violation of Article 266 (b) of the Penal Code
(straffeloven) (see paragraph 19 below) for having made the statements cited below:
"... the Northern States wanted that the niggers should be free human beings, man, they are not human beings,
they are animals."
"Just take a picture of a gorilla, man, and then look at a nigger, its the same body structure and everything, man,
flat forehead and all kinds of things."
"A nigger is not a human being, its an animal, that goes for all the other foreign workers as well, Turks, Yugoslavs
and whatever they are called."
"It is the fact that they are Perkere, thats what we dont like, right, and we dont like their mentality ... what we
dont like is when they walk around in those Zimbabwe-clothes and then speak this hula-hula language in the street
..."

"Its drugs they are selling, man, half of the prison population in Vestre are in there because of drugs ... they are
the people who are serving time for dealing drugs ..."
"They are in there, all the Perkere, because of drugs ..."
The applicant was charged, under Article 266 (b) in conjunction with Article 23 (see paragraph 19
below), with aiding and abetting the three youths; the same charge was brought against the head of
the news section of Danmarks Radio, Mr Lasse Jensen.
13. In the City Court counsel for the applicant and Mr Jensen called for their acquittal. He argued
that the conduct of the applicant and Mr Jensen could in no way be compared to that of the other
three defendants, with whose views they did not sympathise. They sought merely to provide a
realistic picture of a social problem; in fact the programme only provoked resentment and aroused
pity in respect of the three other defendants, who had exposed themselves to ridicule on their own
terms. Accordingly, it was by no means the intention of Danmarks Radio to persuade others to
subscribe to the same views as the Greenjackets, rather the contrary. Under the relevant law a
distinction had to be drawn between the persons who made the statements and the programme
editors, the latter enjoying a special freedom of expression. Having at that time a broadcasting
 monopoly, Danmarks Radio was under a duty to impart all opinions of public interest in a manner that
reflected the speakers way of expressing himself. The public also had an interest in being informed
of notoriously bad social attitudes, even those which were unpleasant. The programme was
broadcast in the context of a public debate which had resulted in press comments, for instance in
Information, and was simply an honest report on the realities of the youths in question. Counsel,
referring inter alia to the above-mentioned article in Information, also pointed to the fact that no
consistent prosecution policy had been followed in cases of this nature.
14. On 24 April 1987 the City Court convicted the three youths, one of them for having stated that
"niggers" and "foreign workers" were "animals", and two of them for their assertions in relation to
drugs and "Perkere". The applicant was convicted of aiding and abetting them, as was Mr Jensen, in
his capacity as programme controller; they were sentenced to pay day-fines (dagsbder) totalling
1,000 and 2,000 Danish kroner, respectively, or alternatively to five days imprisonment (hfte).
As regards the applicant, the City Court found that, following the article in Information of 31 May
1985, he had visited the Greenjackets and after a conversation with Mr Axholt, amongst others,
agreed that the three youths should participate in a television programme. The object of the
programme had been to demonstrate the attitude of the Greenjackets to the racism at sterbro,
previously mentioned in the article in Information, and to show their social background. Accordingly,
so the City Court held, the applicant had himself taken the initiative of making the television
programme and, further, he had been well aware in advance that discriminatory statements of a racist
nature were likely to be made during the interview. The interview had lasted several hours, during
which beer, partly paid for by Danmarks Radio, was consumed. In this connection the applicant had
encouraged the Greenjackets to express their racist views, which, in so far as they were broadcast on
television, in itself constituted a breach of Article 266 (b) of the Penal Code. The statements were
broadcast without any counterbalancing comments, after the recordings had been edited by the
applicant. He was accordingly guilty of aiding and abetting the violation of Article 266 (b).

C. Proceedings in the High Court of Eastern Denmark

15. The applicant and Mr Jensen, but not the three Greenjackets, appealed against the City
Courts judgment to the High Court of Eastern Denmark (stre Landsret). They essentially reiterated
the submissions made before the City Court and, in addition, the applicant explained that, although
he had suspected that the Greenjackets statements were punishable, he had refrained from omitting
these from the programme, considering it crucial to show their actual attitude. He assumed that they
were aware that they might incur criminal liability by making the statements and had therefore not
warned them of this fact.
16. By judgment of 16 June 1988 the High Court, by five votes to one, dismissed the appeal.
The dissenting member was of the view that, although the statements by the Greenjackets
constituted offences under Article 266 (b) of the Penal Code, the applicant and Mr Jensen had not
transgressed the bounds of the freedom of speech to be enjoyed by television and other media, since
the object of the programme was to inform about and animate public discussion on the particular
racist attitudes and social background of the youth group in question.

D. Proceedings in the Supreme Court

17. With leave the applicant and Mr Jensen appealed from the High Court judgment to the
Supreme Court (Hjesteret), which by four votes to one dismissed the appeal in a judgment of 13
February 1989. The majority held:
"The defendants have caused the publication of the racist statements made by a narrow circle of persons and
thereby made those persons liable to punishment and have thus, as held by the City Court and the High Court,
 violated Article 266 (b) in conjunction with Article 23 of the Penal Code. [We] do not find that an acquittal of the
defendants could be justified on the ground of freedom of expression in matters of public interest as opposed to the
interest in the protection against racial discrimination. [We] therefore vote in favour of confirming the judgment
[appealed from]."
Justice Pontoppidan stated in his dissent:
"The object of the programme was to contribute to information on an issue - the attitude towards foreigners - which
was the subject of extensive and sometimes emotional public debate. The programme must be presumed to have
given a clear picture of the Greenjackets views, of which the public was thus given an opportunity to be informed and
form its own opinion. In view of the nature of these views, any counterbalancing during or immediately before or after
would not have served a useful purpose. Although it concerned a relatively small group of people holding extreme
views, the programme had a fair degree of news and information value. The fact that the defendants took the initiative
to disseminate such views is not of paramount importance for the assessment of their conduct. In these
circumstances and irrespective of the fact that the statements rightly have been found to be in violation of Article 266
(b), I question the advisability of finding the defendants guilty of aiding and abetting the violation of this provision. I
therefore vote in favour of the defendants acquittal."
18. When the Supreme Court has rendered judgment in a case raising important issues of
principle it is customary that a member of the majority publishes a detailed and authoritative
statement of the reasons for the judgment. In keeping with this custom, Justice Hermann on 20
January 1990 published such a statement in the Weekly Law Journal (Ugeskrift for Retsvsen, 1989,
p. 399).
As regards the conviction of the applicant and Mr Jensen, the majority had attached importance to
the fact that they had caused the racist statements to be made public. The applicants item had not
been a direct report on a meeting. He had himself contacted the three youths and caused them to
make assertions such as those previously made in Information, which he knew of and probably
expected them to repeat. He had himself cut the recording of the interview, lasting several hours,
down to a few minutes containing the crude comments. The statements, which would hardly have
been punishable under Article 266 (b) of the Penal Code had they not been made to a wide circle
("videre kreds") of people, became clearly punishable as they were broadcast on television on the
applicants initiative and with Mr Jensens approval. It was therefore beyond doubt that they had aided
and abetted the dissemination of the statements.
Acquitting the applicant and Mr Jensen could only be justified by reasons clearly outweighing the
wrongfulness of their actions. In this connection, the interest in protecting those grossly insulted by
the statements had to be weighed up against that of informing the public of the statements. Whilst it is
desirable to allow the press the best possible conditions for reporting on society, press freedom
cannot be unlimited since freedom of expression is coupled with responsibilities.
In striking a balance between the various interests involved, the majority had regard to the fact that
the statements, which were brought to a wide circle of people, consisted of series of inarticulate,
defamatory remarks and insults spoken by members of an insignificant group whose opinions could
hardly be of interest to many people. Their news or information value was not such as to justify their
dissemination and therefore did not warrant acquitting the defendants. This did not mean that
extremist views could not be reported in the press, but such reports must be carried out in a more
balanced and comprehensive manner than was the case in the television programme in question.
Direct reports from meetings which were a matter of public interest should also be permitted.
The minority, on the other hand, considered that the right to information overrode the interests
protected by Article 266 (b) of the Penal Code.
Finally, Justice Hermann noted that the compatibility of the impugned measures with Article 10 (art.
10) of the Convention was not raised during the trial.

II. RELEVANT DOMESTIC LAW

 A. The Penal Code

19. At the relevant time Article 266 (b) of the Penal Code provided:
"Any person who, publicly or with the intention of disseminating it to a wide circle ("videre kreds") of people, makes
a statement, or other communication, threatening, insulting or degrading a group of persons on account of their race,
colour, national or ethnic origin or belief shall be liable to a fine or to simple detention or to imprisonment for a term
not exceeding two years."
Article 23, paragraph 1, reads:
"A provision establishing a criminal offence shall apply to any person who has assisted the commission of the
offence by instigation, advice or action. The punishment may be reduced if the person in question only intended to
give assistance of minor importance or to strengthen an intent already resolved or if the offence has not been
completed or an intended assistance failed."

B. The 1991 Media Liability Act

20. The 1991 Media Liability Act (Medieansvarsloven, 1991:348), which entered into force on 1
January 1992, that is after the events giving rise to the present case, lays down rules inter alia on
criminal liability in respect of television broadcasts. Section 18 provides:
"A person making a statement during a non-direct broadcast (forskudt udsendelse) shall be responsible for the
statement under general statutory provisions, unless:
(1) the identity of the person concerned does not appear from the broadcast; or
(2) [that person] has not consented to the statement being broadcast; or
(3) [he or she] has been promised that [he or she] may take part [in the broadcast] without [his or her] identity being
disclosed and reasonable precautions have been taken to this effect.
In the situations described in paragraph 1, sub-paragraphs (1) to (3) above, the editor is responsible for the
contents of the statements even where a violation of the law has occurred without intent or negligence on his part ..."
Pursuant to section 22:
"A person who reads out or in any other manner conveys a text or statement, is not responsible for the contents of
that text or statement."

III. INSTRUMENTS OF THE UNITED NATIONS

21. Provisions relating to the prohibition of racial discrimination and the prevention of propaganda
of racist views and ideas are to be found in a number of international instruments, for example the
1945 United Nations Charter (paragraph 2 of the Preamble, Articles 1 para. 3, 13 para. 1 (b), 55 (c)
and 76 (c)), the 1948 Universal Declaration of Human Rights (Articles 1, 2 and 7) and the 1966
International Covenant on Civil and Political Rights (Articles 2 para. 1, 20 para. 2 and 26). The most
directly relevant treaty is the 1965 International Convention on the Elimination of All Forms of Racial
Discrimination ("the UN Convention"), which has been ratified by a large majority of the Contracting
States to the European Convention, including Denmark (9 December 1971). Articles 4 and 5 of that
Convention provide:

Article 4
"States Parties condemn all propaganda and all organizations which are based on ideas or theories of superiority of
one race or group of persons of one colour or ethnic origin, or which attempt to justify or promote racial hatred and
discrimination in any form, and undertake to adopt immediate and positive measures designed to eradicate all
 incitement to, or acts of, such discrimination and, to this end, with due regard to the principles embodied in the
Universal Declaration of Human Rights and the rights expressly set forth in Article 5 of this Convention, inter alia:

(a) shall declare an offence punishable by law all dissemination of ideas based on racial superiority or hatred,
incitement to racial discrimination, as well as acts of violence or incitement to such acts against any race or group of
persons of another colour or ethnic origin, and also the provision of any assistance to racist activities, including the
financing thereof;

..."

Article 5
"In compliance with the fundamental obligation laid down in ... this Convention, States Parties undertake to prohibit
and to eliminate racial discrimination in all its forms and to guarantee the right of everyone, without distinction as to
race, colour, or national or ethnic origin, to equality before the law, notably in the enjoyment of the following rights:
...
(d) ...
viii. the right to freedom of opinion and expression;
..."
The effects of the "due regard" clause in Article 4 has given rise to differing interpretations and the
UN Committee on the Elimination of Racial Discrimination ("the UN Committee" - set up to supervise
the implementation of the UN Convention) was divided in its comments on the applicants conviction.
The present case had been presented by the Danish Government in a report to the UN Committee.
Whilst some members welcomed it as "the clearest statement yet, in any country, that the right to
protection against racial discrimination took precedence over the right to freedom of expression",
other members considered that "in such cases the facts needed to be considered in relation to both
rights" (Report of the Committee to the General Assembly, Official Records, Forty-Fifth Session,
Supplement No. 18 (A/45/18), p. 21, para. 56).

PROCEEDINGS BEFORE THE COMMISSION

22. In his application (no. 15890/89) of 25 July 1989 to the Commission the applicant complained
that his conviction violated his right to freedom of expression under Article 10 (art. 10) of the
Convention.
23. On 8 September 1992 the Commission declared the application admissible. In its report of 8
July 1993 (Article 31) (art. 31), the Commission expressed the opinion that there had been a violation
of Article 10 (art. 10) (by twelve votes to four).
The full text of the Commissions opinion and of the two dissenting opinions contained in the report
is reproduced as an annex to this judgment[*].

FINAL SUBMISSIONS MADE BY THE GOVERNMENT TO THE COURT

24. At the hearing on 20 April 1994 the Government invited the Court to hold that, as submitted in
their memorial, there had been no violation of Article 10 (art. 10) of the Convention.
 AS TO THE LAW

I. ALLEGED VIOLATION OF ARTICLE 10 (art. 10)

25. The applicant maintained that his conviction and sentence for having aided and abetted the
dissemination of racist remarks violated his right to freedom of expression within the meaning of
Article 10 (art. 10) of the Convention, which reads:
"1. Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive
and impart information and ideas without interference by public authority and regardless of frontiers. This Article shall
not prevent States from requiring the licensing of broadcasting, television or cinema enterprises.
2. The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such
formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in
the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the
protection of health or morals, for the protection of the reputation or rights of others, for preventing the disclosure of
information received in confidence, or for maintaining the authority and impartiality of the judiciary."
26. The Government contested this contention whereas the Commission upheld it.
27. It is common ground that the measures giving rise to the applicants case constituted an
interference with his right to freedom of expression.
It is moreover undisputed that this interference was "prescribed by law", the applicants conviction
being based on Articles 266 (b) and 23 (1) of the Penal Code. In this context, the Government pointed
out that the former provision had been enacted in order to comply with the UN Convention. The
Governments argument, as the Court understands it, is that, whilst Article 10 (art. 10) of the
Convention is applicable, the Court, in applying paragraph 2 (art. 10-2), should consider that the
relevant provisions of the Penal Code are to be interpreted and applied in an extensive manner, in
accordance with the rationale of the UN Convention (see paragraph 21 above). In other words, Article
10 (art. 10) should not be interpreted in such a way as to limit, derogate from or destroy the right to
protection against racial discrimination under the UN Convention.
Finally it is uncontested that the interference pursued a legitimate aim, namely the "protection of
the reputation or rights of others".
The only point in dispute is whether the measures were "necessary in a democratic society".
28. The applicant and the Commission were of the view that, notwithstanding Denmarks
obligations as a Party to the UN Convention (see paragraph 21 above), a fair balance had to be
struck between the "protection of the reputation or rights of others" and the applicants right to impart
information. According to the applicant, such a balance was envisaged in a clause contained in Article
4 of the UN Convention to the effect that "due regard" should be had to "the principles in the
Universal Declaration of Human Rights and the rights ... in Article 5 of [the UN] Convention". The
clause had been introduced at the drafting stage because of concern among a number of States that
the requirement in Article 4 (a) that "[States Parties] shall declare an offence punishable by law all
dissemination of ideas based on racial superiority or hatred" was too sweeping and could give rise to
difficulties with regard to other human rights, in particular the right to freedom of opinion and
expression. In the applicants further submission, this explained why the Committee of Ministers of
the Council of Europe, when urging member States to ratify the UN Convention, had proposed that
they add an interpretative statement to their instrument of ratification, which would, inter alia, stress
that respect was also due for the rights laid down in the European Convention (Resolution (68) 30
adopted by the Ministers Deputies on 31 October 1968).
The applicant and the Commission emphasised that, taken in the context of the broadcast as a
whole, the offending remarks had the effect of ridiculing their authors rather than promoting their
racist views. The overall impression of the programme was that it sought to draw public attention to a
matter of great public concern, namely racism and xenophobia. The applicant had deliberately
included the offensive statements in the programme, not with the intention of disseminating racist
opinions, but in order to counter them through exposure. The applicant pointed out that he tried to
show, analyse and explain to his viewers a new phenomenon in Denmark at the time, that of violent
racism practised by inarticulate and socially disadvantaged youths. Joined by the Commission, he
considered that the broadcast could not have had any significant detrimental effects on the
"reputation or rights of others". The interests in protecting the latter were therefore outweighed by
those of protecting the applicants freedom of expression.
In addition the applicant alleged that had the 1991 Media Liability Act been in force at the relevant
time he would not have faced prosecution since under the Act it is in principle only the author of a
punishable statement who may be liable. This undermined the Governments argument that his
conviction was required by the UN Convention and "necessary" within the meaning of Article 10 (art.
10).
29. The Government contended that the applicant had edited the Greenjackets item in a
sensationalist rather than informative manner and that its news or information value was minimal.
Television was a powerful medium and a majority of Danes normally viewed the news programme in
which the item was broadcast. Yet the applicant, knowing that they would incur criminal liability, had
encouraged the Greenjackets to make racist statements and had failed to counter these statements
in the programme. It was too subtle to assume that viewers would not take the remarks at their face
value. No weight could be attached to the fact that the programme had given rise to only a few
complaints, since, due to lack of information and insufficient knowledge of the Danish language and
even fear of reprisals by violent racists, victims of the insulting comments were likely to be dissuaded
from complaining. The applicant had thus failed to fulfil the "duties and responsibilities" incumbent on
him as a television journalist. The fine imposed upon him was at the lower end of the scale of
sanctions applicable to Article 266 (b) offences and was therefore not likely to deter any journalist
from contributing to public discussion on racism and xenophobia; it only had the effect of a public
reminder that racist expressions are to be taken seriously and cannot be tolerated.
The Government moreover disputed that the matter would have been dealt with differently had the
1991 Media Liability Act been in force at the material time. The rule that only the author of a
punishable statement may incur liability was subject to exceptions (see paragraph 20 above); how the
applicants case would have been considered under the 1991 Act was purely a matter of speculation.
The Government stressed that at all three levels the Danish courts, which were in principle better
placed than the European Court to evaluate the effects of the programme, had carried out a careful
balancing exercise of all the interests involved. The review effected by those courts had been similar
to that carried out under Article 10 (art. 10); their decisions fell within the margin of appreciation to be
left to the national authorities and corresponded to a pressing social need.
30. The Court would emphasise at the outset that it is particularly conscious of the vital
importance of combating racial discrimination in all its forms and manifestations. It may be true, as
has been suggested by the applicant, that as a result of recent events the awareness of the dangers
of racial discrimination is sharper today than it was a decade ago, at the material time. Nevertheless,
the issue was already then of general importance, as is illustrated for instance by the fact that the UN
Convention dates from 1965. Consequently, the object and purpose pursued by the UN Convention
are of great weight in determining whether the applicants conviction, which - as the Government
have stressed - was based on a provision enacted in order to ensure Denmarks compliance with the
UN Convention, was "necessary" within the meaning of Article 10 para. 2 (art. 10-2).
In the second place, Denmarks obligations under Article 10 (art. 10) must be interpreted, to the
extent possible, so as to be reconcilable with its obligations under the UN Convention. In this respect
it is not for the Court to interpret the "due regard" clause in Article 4 of the UN Convention, which is
open to various constructions. The Court is however of the opinion that its interpretation of Article 10
(art. 10) of the European Convention in the present case is compatible with Denmarks obligations
under the UN Convention.
 31. A significant feature of the present case is that the applicant did not make the objectionable
statements himself but assisted in their dissemination in his capacity of television journalist
responsible for a news programme of Danmarks Radio (see paragraphs 9 to 11 above). In assessing
whether his conviction and sentence were "necessary", the Court will therefore have regard to the
principles established in its case-law relating to the role of the press (as summarised in for instance
the Observer and Guardian v. the United Kingdom judgment of 26 November 1991, Series A no. 216,
pp. 29-30, para. 59).
The Court reiterates that freedom of expression constitutes one of the essential foundations of a
democratic society and that the safeguards to be afforded to the press are of particular importance
(ibid.). Whilst the press must not overstep the bounds set, inter alia, in the interest of "the protection
of the reputation or rights of others", it is nevertheless incumbent on it to impart information and ideas
of public interest. Not only does the press have the task of imparting such information and ideas: the
public also has a right to receive them. Were it otherwise, the press would be unable to play its vital
role of "public watchdog" (ibid.). Although formulated primarily with regard to the print media, these
principles doubtless apply also to the audiovisual media.
In considering the "duties and responsibilities" of a journalist, the potential impact of the medium
concerned is an important factor and it is commonly acknowledged that the audiovisual media have
often a much more immediate and powerful effect than the print media (see Purcell and Others v.
Ireland, Commissions admissibility decision of 16 April 1991, application no.15404/89, Decisions and
Reports (DR) 70, p. 262). The audiovisual media have means of conveying through images meanings
which the print media are not able to impart.
At the same time, the methods of objective and balanced reporting may vary considerably,
depending among other things on the media in question. It is not for this Court, nor for the national
courts for that matter, to substitute their own views for those of the press as to what technique of
reporting should be adopted by journalists. In this context the Court recalls that Article 10 (art. 10)
protects not only the substance of the ideas and information expressed, but also the form in which
they are conveyed (see the Oberschlick v. Austria judgment of 23 May 1991, Series A no. 204, p. 25,
para. 57).
The Court will look at the interference complained of in the light of the case as a whole and
determine whether the reasons adduced by the national authorities to justify it are relevant and
sufficient and whether the means employed were proportionate to the legitimate aim pursued (see the
above-mentioned Observer and Guardian judgment, pp. 29-30, para. 59). In doing so the Court has
to satisfy itself that the national authorities did apply standards which were in conformity with the
principles embodied in Article 10 (art. 10) and, moreover, that they based themselves on an
acceptable assessment of the relevant facts (see, for instance, the Schwabe v. Austria judgment of
28 August 1992, Series A no. 242-B, pp. 32-33, para. 29).
The Courts assessment will have regard to the manner in which the Greenjackets feature was
prepared, its contents, the context in which it was broadcast and the purpose of the programme.
Bearing in mind the obligations on States under the UN Convention and other international
instruments to take effective measures to eliminate all forms of racial discrimination and to prevent
and combat racist doctrines and practices (see paragraph 21 above), an important factor in the
Courts evaluation will be whether the item in question, when considered as a whole, appeared from
an objective point of view to have had as its purpose the propagation of racist views and ideas.
32. The national courts laid considerable emphasis on the fact that the applicant had himself
taken the initiative of preparing the Greenjackets feature and that he not only knew in advance that
racist statements were likely to be made during the interview but also had encouraged such
statements. He had edited the programme in such a way as to include the offensive assertions.
Without his involvement, the remarks would not have been disseminated to a wide circle of people
and would thus not have been punishable (see paragraphs 14 and 18 above).
 The Court is satisfied that these were relevant reasons for the purposes of paragraph 2 of Article
10 (art. 10-2).
33. On the other hand, as to the contents of the Greenjackets item, it should be noted that the TV
presenters introduction started by a reference to recent public discussion and press comments on
racism in Denmark, thus inviting the viewer to see the programme in that context. He went on to
announce that the object of the programme was to address aspects of the problem, by identifying
certain racist individuals and by portraying their mentality and social background. There is no reason
to doubt that the ensuing interviews fulfilled that aim. Taken as a whole, the feature could not
objectively have appeared to have as its purpose the propagation of racist views and ideas. On the
contrary, it clearly sought - by means of an interview - to expose, analyse and explain this particular
group of youths, limited and frustrated by their social situation, with criminal records and violent
attitudes, thus dealing with specific aspects of a matter that already then was of great public concern.
The Supreme Court held that the news or information value of the feature was not such as to justify
the dissemination of the offensive remarks (see paragraph 18 above). However, in view of the
principles stated in paragraph 31 above, the Court sees no cause to question the Sunday News
Magazine staff members own appreciation of the news or information value of the impugned item,
which formed the basis for their decisions to produce and broadcast it.
34. Furthermore, it must be borne in mind that the item was broadcast as part of a serious Danish
news programme and was intended for a well-informed audience (see paragraph 9 above).
The Court is not convinced by the argument, also stressed by the national courts (see paragraphs
14 and 18 above), that the Greenjackets item was presented without any attempt to counterbalance
the extremist views expressed. Both the TV presenters introduction and the applicants conduct
during the interviews clearly dissociated him from the persons interviewed, for example by describing
them as members of "a group of extremist youths" who supported the Ku Klux Klan and by referring
to the criminal records of some of them. The applicant also rebutted some of the racist statements for
instance by recalling that there were black people who had important jobs. It should finally not be
forgotten that, taken as a whole, the filmed portrait surely conveyed the meaning that the racist
statements were part of a generally anti-social attitude of the Greenjackets.
Admittedly, the item did not explicitly recall the immorality, dangers and unlawfulness of the
promotion of racial hatred and of ideas of superiority of one race. However, in view of the above-
mentioned counterbalancing elements and the natural limitations on spelling out such elements in a
short item within a longer programme as well as the journalists discretion as to the form of
expression used, the Court does not consider the absence of such precautionary reminders to be
relevant.
35. News reporting based on interviews, whether edited or not, constitutes one of the most
important means whereby the press is able to play its vital role of "public watchdog" (see, for
instance, the above-mentioned Observer and Guardian judgment, pp. 29-30, para. 59). The
punishment of a journalist for assisting in the dissemination of statements made by another person in
an interview would seriously hamper the contribution of the press to discussion of matters of public
interest and should not be envisaged unless there are particularly strong reasons for doing so. In this
regard the Court does not accept the Governments argument that the limited nature of the fine is
relevant; what matters is that the journalist was convicted.
There can be no doubt that the remarks in respect of which the Greenjackets were convicted (see
paragraph 14 above) were more than insulting to members of the targeted groups and did not enjoy
the protection of Article 10 (art. 10) (see, for instance, the Commissions admissibility decisions in
Glimmerveen and Hagenbeek v. the Netherlands, applications nos. 8348/78and 8406/78, DR 18, p.
187; and Knen v. Germany, application no. 12194/86, DR 56, p. 205). However, even having regard
to the manner in which the applicant prepared the Greenjackets item (see paragraph 32 above), it
has not been shown that, considered as a whole, the feature was such as to justify also his conviction
of, and punishment for, a criminal offence under the Penal Code.
 36. It is moreover undisputed that the purpose of the applicant in compiling the broadcast in
question was not racist. Although he relied on this in the domestic proceedings, it does not appear
from the reasoning in the relevant judgments that they took such a factor into account (see
paragraphs 14, 17 and 18 above).
37. Having regard to the foregoing, the reasons adduced in support of the applicants conviction
and sentence were not sufficient to establish convincingly that the interference thereby occasioned
with the enjoyment of his right to freedom of expression was "necessary in a democratic society"; in
particular the means employed were disproportionate to the aim of protecting "the reputation or rights
of others". Accordingly the measures gave rise to a breach of Article 10 (art. 10) of the Convention.

II. APPLICATION OF ARTICLE 50 (art. 50)

38. Mr Jersild sought just satisfaction under Article 50 (art. 50) of the Convention, according to
which:
"If the Court finds that a decision or a measure taken by a legal authority or any other authority of a High
Contracting Party is completely or partially in conflict with the obligations arising from the ... Convention, and if the
internal law of the said Party allows only partial reparation to be made for the consequences of this decision or
measure, the decision of the Court shall, if necessary, afford just satisfaction to the injured party."
39. The Government accepted parts of his claim. The Commission offered no comments.

A. Pecuniary damage

40. The applicant claimed 1,000 kroner in respect of the fine imposed upon him, to be reimbursed
by him to Danmarks Radio which had provisionally paid the fine for him.
41. The Government did not object and the Court finds that the amount should be awarded.

B. Non-pecuniary damage

42. The applicant requested 20,000 kroner in compensation for non-pecuniary damage. He
maintained that his professional reputation had been prejudiced and that he had felt distress as a
result of his conviction.
43. The Court observes that the applicant still works with the Sunday News Magazine at
Danmarks Radio and that his employer has supported him throughout the proceedings, inter alia by
paying the fine (see paragraphs 9 and 40 above) and legal fees (see paragraph 44 below). It agrees
with the Government that the finding of a violation of Article 10 (art. 10) constitutes in itself adequate
just satisfaction in this respect.

C. Costs and expenses

44. The applicant claimed in respect of costs and expenses:

(a) 45,000 kroner for work done in the domestic proceedings by his lawyer, Mr J. Stockholm;
(b) by way of legal fees incurred in the Strasbourg proceedings, 13,126.80 kroner for Mrs
Johannessen, 6,900 pounds sterling for Mr Boyle and 50,000 kroner (exclusive 25% value-added tax)
for Mr Trier;
(c) 20,169.20 kroner to cover costs of translation, interpretation and an expert opinion;
(d) 25,080 kroner, 965.40 pounds and 4,075 French francs in travel and subsistence expenses
incurred in connection with the hearings before the Commission and Court, as well as miscellaneous
expenses.
Parts of the above costs and expenses had been provisionally disbursed by Danmarks Radio.
 45. The Government did not object to the above claims. The Court considers that the applicant is
entitled to recover the sums in their entirety. They should be increased by any value-added taxes that
may be chargeable.

FOR THESE REASONS, THE COURT

1. Holds by twelve votes to seven that there has been a violation of Article 10 (art. 10) of the
Convention;

2. Holds by seventeen votes to two that Denmark is to pay the applicant, within three months, 1,000
(one thousand) Danish kroner in compensation for pecuniary damage; and, for costs and expenses,
the sums resulting from the calculations to be made in accordance with paragraph 45 of the
judgment;

3. Dismisses unanimously the remainder of the claim for just satisfaction.

Done in English and in French, and delivered at a public hearing in the Human Rights Building,
Strasbourg, on 23 September 1994.
Rolv RYSSDAL
President

Herbert PETZOLD
Acting Registrar

In accordance with Article 51 para. 2 (art. 51-2) of the Convention and Rule 53 para. 2 of the Rules
of Court, the following separate opinions are annexed to this judgment:

(a) joint dissenting opinion of Mr Ryssdal, Mr Bernhardt, Mr Spielmann and Mr Loizou;

(b) joint dissenting opinion of Mr Glckl, Mr Russo and Mr Valticos;

(c) supplementary joint dissenting opinion of Mr Glckl and Mr Valticos.

DIGEST LINKS:

http://swarb.co.uk/jersild-v-denmark-echr-20-oct-1994/

http://coe-repository.org/editor/coe/archive/files/d648fd35a9581b4262d8de6b94882ede.pdf

https://globalfreedomofexpression.columbia.edu/cases/jersild-v-denmark/

Republic of the Philippines

SUPREME COURT
Manila

EN BANC
G.R. No. 100150 January 5, 1994

BRIGIDO R. SIMON, JR., CARLOS QUIMPO, CARLITO ABELARDO, AND GENEROSO OCAMPO, petitioners,
vs.
COMMISSION ON HUMAN RIGHTS, ROQUE FERMO, AND OTHERS AS JOHN DOES, respondents.

The City Attorney for petitioners.

The Solicitor General for public respondent.

VITUG, J.:

The extent of the authority and power of the Commission on Human Rights ("CHR") is again placed into focus in this
petition for prohibition, with prayer for a restraining order and preliminary injunction. The petitioners ask us to
prohibit public respondent CHR from further hearing and investigating CHR Case No. 90-1580, entitled "Fermo, et
al. vs. Quimpo, et al."

The case all started when a "Demolition Notice," dated 9 July 1990, signed by Carlos Quimpo (one of the
petitioners) in his capacity as an Executive Officer of the Quezon City Integrated Hawkers Management Council
under the Office of the City Mayor, was sent to, and received by, the private respondents (being the officers and
members of the North EDSA Vendors Association, Incorporated). In said notice, the respondents were given a
grace-period of three (3) days (up to 12 July 1990) within which to vacate the questioned premises of North
EDSA. 1Prior to their receipt of the demolition notice, the private respondents were informed by petitioner Quimpo that
their stalls should be removed to give way to the "People's Park". 2 On 12 July 1990, the group, led by their President
Roque Fermo, filed a letter-complaint (Pinag-samang Sinumpaang Salaysay) with the CHR against the petitioners, asking
the late CHR Chairman Mary Concepcion Bautista for a letter to be addressed to then Mayor Brigido Simon, Jr., of
Quezon City to stop the demolition of the private respondents' stalls, sari-sari stores, and carinderia along North EDSA.
The complaint was docketed as CHR Case No. 90-1580. 3 On 23 July 1990, the CHR issued an Order, directing the
petitioners "to desist from demolishing the stalls and shanties at North EDSA pending resolution of the vendors/squatters'
complaint before the Commission" and ordering said petitioners to appear before the CHR. 4

On the basis of the sworn statements submitted by the private respondents on 31 July 1990, as well as CHR's own
ocular inspection, and convinced that on 28 July 1990 the petitioners carried out the demolition of private
respondents' stalls, sari-sari stores and carinderia, 5 the CHR, in its resolution of 1 August 1990, ordered the
disbursement of financial assistance of not more than P200,000.00 in favor of the private respondents to purchase light
housing materials and food under the Commission's supervision and again directed the petitioners to "desist from further
demolition, with the warning that violation of said order would lead to a citation for contempt and arrest." 6

A motion to dismiss, 7 dated 10 September 1990, questioned CHR's jurisdiction. The motion also averred, among other
things, that:

1. this case came about due to the alleged violation by the (petitioners) of the Inter-Agency
Memorandum of Agreement whereby Metro-Manila Mayors agreed on a moratorium in the
demolition of the dwellings of poor dwellers in Metro-Manila;

xxx xxx xxx

3. . . . , a perusal of the said Agreement (revealed) that the moratorium referred to therein refers to
moratorium in the demolition of the structures of poor dwellers;
 4. that the complainants in this case (were) not poor dwellers but independent business
entrepreneurs even this Honorable Office admitted in its resolution of 1 August 1990 that the
complainants are indeed, vendors;

5. that the complainants (were) occupying government land, particularly the sidewalk of EDSA
corner North Avenue, Quezon City; . . . and

6. that the City Mayor of Quezon City (had) the sole and exclusive discretion and authority whether
or not a certain business establishment (should) be allowed to operate within the jurisdiction of
Quezon City, to revoke or cancel a permit, if already issued, upon grounds clearly specified by law
and ordinance. 8

During the 12 September 1990 hearing, the petitioners moved for postponement, arguing that the motion to dismiss
set for 21 September 1990 had yet to be resolved. The petitioners likewise manifested that they would bring the
case to the courts.

On 18 September 1990 a supplemental motion to dismiss was filed by the petitioners, stating that the Commission's
authority should be understood as being confined only to the investigation of violations of civil and political rights,
and that "the rights allegedly violated in this case (were) not civil and political rights, (but) their privilege to engage in
business." 9

On 21 September 1990, the motion to dismiss was heard and submitted for resolution, along with the contempt
charge that had meantime been filed by the private respondents, albeit vigorously objected to by petitioners (on the
ground that the motion to dismiss was still then unresolved). 10

In an Order, 11 dated 25 September 1990, the CHR cited the petitioners in contempt for carrying out the demolition of the
stalls, sari-sari stores and carinderia despite the "order to desist", and it imposed a fine of P500.00 on each of them.

On 1 March 1991, 12 the CHR issued an Order, denying petitioners' motion to dismiss and supplemental motion to
dismiss, in this wise:

Clearly, the Commission on Human Rights under its constitutional mandate had jurisdiction over the
complaint filed by the squatters-vendors who complained of the gross violations of their human and
constitutional rights. The motion to dismiss should be and is hereby DENIED for lack of merit. 13

The CHR opined that "it was not the intention of the (Constitutional) Commission to create only a paper tiger limited
only to investigating civil and political rights, but it (should) be (considered) a quasi-judicial body with the power to
provide appropriate legal measures for the protection of human rights of all persons within the Philippines . . . ." It
added:

The right to earn a living is a right essential to one's right to development, to life and to dignity. All
these brazenly and violently ignored and trampled upon by respondents with little regard at the same
time for the basic rights of women and children, and their health, safety and welfare. Their actions
have psychologically scarred and traumatized the children, who were witness and exposed to such a
violent demonstration of Man's inhumanity to man.

In an Order, 14 dated 25 April 1991, petitioners' motion for reconsideration was denied.

Hence, this recourse.

The petition was initially dismissed in our resolution 15 of 25 June 1991; it was subsequently reinstated, however, in our
resolution 16 of 18 June 1991, in which we also issued a temporary restraining order, directing the CHR to "CEASE and
DESIST from further hearing CHR No. 90-1580." 17

The petitioners pose the following:

Whether or not the public respondent has jurisdiction:

a) to investigate the alleged violations of the "business rights" of the private respondents whose stalls were
demolished by the petitioners at the instance and authority given by the Mayor of Quezon City;

b) to impose the fine of P500.00 each on the petitioners; and

c) to disburse the amount of P200,000.00 as financial aid to the vendors affected by the demolition.

In the Court's resolution of 10 October 1991, the Solicitor-General was excused from filing his comment for public
respondent CHR. The latter thus filed its own comment, 18 through Hon. Samuel Soriano, one of its Commissioners.
The Court also resolved to dispense with the comment of private respondent Roque Fermo, who had since failed to
comply with the resolution, dated 18 July 1991, requiring such comment.

The petition has merit.

The Commission on Human Rights was created by the 1987

Constitution. 19 It was formally constituted by then President Corazon Aquino via Executive Order No. 163, 20 issued on 5
May 1987, in the exercise of her legislative power at the time. It succeeded, but so superseded as well, the Presidential
Committee on Human Rights. 21

The powers and functions 22 of the Commission are defined by the 1987 Constitution, thus: to

(1) Investigate, on its own or on complaint by any party, all forms of human rights violations involving
civil and political rights;

(2) Adopt its operational guidelines and rules of procedure, and cite for contempt for violations
thereof in accordance with the Rules of Court;

(3) Provide appropriate legal measures for the protection of human rights of all persons within the
Philippines, as well as Filipinos residing abroad, and provide for preventive measures and legal aid
services to the underprivileged whose human rights have been violated or need protection;

(4) Exercise visitorial powers over jails, prisons, or detention facilities;

(5) Establish a continuing program of research, education, and information to enhance respect for
the primacy of human rights;

(6) Recommend to the Congress effective measures to promote human rights and to provide for
compensation to victims of violations of human rights, or their families;

(7) Monitor the Philippine Government's compliance with international treaty obligations on human
rights;

(8) Grant immunity from prosecution to any person whose testimony or whose possession of
documents or other evidence is necessary or convenient to determine the truth in any investigation
conducted by it or under its authority;

(9) Request the assistance of any department, bureau, office, or agency in the performance of its
functions;

(10) Appoint its officers and employees in accordance with law; and

(11) Perform such other duties and functions as may be provided by law.
In its Order of 1 March 1991, denying petitioners' motion to dismiss, the CHR theorizes that the intention of the
members of the Constitutional Commission is to make CHR a quasi-judicial body. 23 This view, however, has not
heretofore been shared by this Court. In Cario v. Commission on Human Rights, 24 the Court, through then Associate
Justice, now Chief Justice Andres Narvasa, has observed that it is "only the first of the enumerated powers and functions
that bears any resemblance to adjudication or adjudgment," but that resemblance can in no way be synonymous to the
adjudicatory power itself. The Court explained:

. . . (T)he Commission on Human Rights . . . was not meant by the fundamental law to be another
court or quasi-judicial agency in this country, or duplicate much less take over the functions of the
latter.

The most that may be conceded to the Commission in the way of adjudicative power is that it may
investigate, i.e., receive evidence and make findings of fact as regards claimed human rights
violations involving civil and political rights. But fact finding is not adjudication, and cannot be likened
to the judicial function of a court of justice, or even a quasi-judicial agency or official. The function of
receiving evidence and ascertaining therefrom the facts of a controversy is not a judicial function,
properly speaking. To be considered such, the faculty of receiving evidence and making factual
conclusions in a controversy must be accompanied by the authority of applying the law to those
factual conclusions to the end that the controversy may be decided or determined authoritatively,
finally and definitively, subject to such appeals or modes of review as may be provided by law. This
function, to repeat, the Commission does not have.

After thus laying down at the outset the above rule, we now proceed to the other kernel of this controversy and, its
is, to determine the extent of CHR's investigative power.

It can hardly be disputed that the phrase "human rights" is so generic a term that any attempt to define it, albeit not a
few have tried, could at best be described as inconclusive. Let us observe. In a symposium on human rights in the
Philippines, sponsored by the University of the Philippines in 1977, one of the questions that has been propounded
is "(w)hat do you understand by "human rights?" The participants, representing different sectors of the society, have
given the following varied answers:

Human rights are the basic rights which inhere in man by virtue of his humanity. They are the same
in all parts of the world, whether the Philippines or England, Kenya or the Soviet Union, the United
States or Japan, Kenya or Indonesia . . . .

Human rights include civil rights, such as the right to life, liberty, and property; freedom of speech, of
the press, of religion, academic freedom, and the rights of the accused to due process of law;
political rights, such as the right to elect public officials, to be elected to public office, and to form
political associations and engage in politics; and social rights, such as the right to an education,
employment, and social services. 25

Human rights are the entitlement that inhere in the individual person from the sheer fact of his humanity. .
. . Because they are inherent, human rights are not granted by the State but can only be recognized and
protected by it. 26

(Human rights include all) the civil, political, economic, social, and cultural rights defined in the Universal
Declaration of Human Rights. 27

Human rights are rights that pertain to man simply because he is human. They are part of his natural
birth, right, innate and inalienable. 28

The Universal Declaration of Human Rights, as well as, or more specifically, the International Covenant on
Economic, Social and Cultural Rights and International Covenant on Civil and Political Rights, suggests that the
scope of human rights can be understood to include those that relate to an individual's social, economic, cultural,
political and civil relations. It thus seems to closely identify the term to the universally accepted traits and attributes
of an individual, along with what is generally considered to be his inherent and inalienable rights, encompassing
almost all aspects of life.

Have these broad concepts been equally contemplated by the framers of our 1986 Constitutional Commission in
adopting the specific provisions on human rights and in creating an independent commission to safeguard these
rights? It may of value to look back at the country's experience under the martial law regime which may have, in
fact, impelled the inclusions of those provisions in our fundamental law. Many voices have been heard. Among
those voices, aptly represented perhaps of the sentiments expressed by others, comes from Mr. Justice J.B.L.
Reyes, a respected jurist and an advocate of civil liberties, who, in his paper, entitled "Present State of Human
Rights in the Philippines," 29 observes:

But while the Constitution of 1935 and that of 1973 enshrined in their Bill of Rights most of the
human rights expressed in the International Covenant, these rights became unavailable upon the
proclamation of Martial Law on 21 September 1972. Arbitrary action then became the rule.
Individuals by the thousands became subject to arrest upon suspicion, and were detained and held
for indefinite periods, sometimes for years, without charges, until ordered released by the
Commander-in-Chief or this representative. The right to petition for the redress of grievances
became useless, since group actions were forbidden. So were strikes. Press and other mass media
were subjected to censorship and short term licensing. Martial law brought with it the suspension of
the writ of habeas corpus, and judges lost independence and security of tenure, except members of
the Supreme Court. They were required to submit letters of resignation and were dismissed upon the
acceptance thereof. Torture to extort confessions were practiced as declared by international bodies
like Amnesty International and the International Commission of Jurists.

Converging our attention to the records of the Constitutional Commission, we can see the following discussions
during its 26 August 1986 deliberations:

MR. GARCIA . . . , the primacy of its (CHR) task must be made clear in view of the importance of
human rights and also because civil and political rights have been determined by many international
covenants and human rights legislations in the Philippines, as well as the Constitution, specifically
the Bill of Rights and subsequent legislation. Otherwise, if we cover such a wide territory in area, we
might diffuse its impact and the precise nature of its task, hence, its effectivity would also be
curtailed.

So, it is important to delienate the parameters of its tasks so that the commission can be most
effective.

MR. BENGZON. That is precisely my difficulty because civil and political rights are very broad. The
Article on the Bill of Rights covers civil and political rights. Every single right of an individual involves
his civil right or his political right. So, where do we draw the line?

MR. GARCIA. Actually, these civil and political rights have been made clear in the language of
human rights advocates, as well as in the Universal Declaration of Human Rights which addresses a
number of articles on the right to life, the right against torture, the right to fair and public hearing, and
so on. These are very specific rights that are considered enshrined in many international documents
and legal instruments as constituting civil and political rights, and these are precisely what we want
to defend here.

MR. BENGZON. So, would the commissioner say civil and political rights as defined in the Universal
Declaration of Human Rights?

MR. GARCIA. Yes, and as I have mentioned, the International Covenant of Civil and Political Rights
distinguished this right against torture.

MR. BENGZON. So as to distinguish this from the other rights that we have?
MR. GARCIA. Yes, because the other rights will encompass social and economic rights, and there
are other violations of rights of citizens which can be addressed to the proper courts and authorities.

xxx xxx xxx

MR. BENGZON. So, we will authorize the commission to define its functions, and, therefore, in doing
that the commission will be authorized to take under its wings cases which perhaps heretofore or at
this moment are under the jurisdiction of the ordinary investigative and prosecutorial agencies of the
government. Am I correct?

MR. GARCIA. No. We have already mentioned earlier that we would like to define the specific
parameters which cover civil and political rights as covered by the international standards governing
the behavior of governments regarding the particular political and civil rights of citizens, especially of
political detainees or prisoners. This particular aspect we have experienced during martial law which
we would now like to safeguard.

MR. BENGZON. Then, I go back to that question that I had. Therefore, what we are really trying to
say is, perhaps, at the proper time we could specify all those rights stated in the Universal
Declaration of Human Rights and defined as human rights. Those are the rights that we envision
here?

MR. GARCIA. Yes. In fact, they are also enshrined in the Bill of Rights of our Constitution. They are
integral parts of that.

MR. BENGZON. Therefore, is the Gentleman saying that all the rights under the Bill of Rights
covered by human rights?

MR. GARCIA. No, only those that pertain to civil and political rights.

xxx xxx xxx

MR. RAMA. In connection with the discussion on the scope of human rights, I would like to state that
in the past regime, everytime we invoke the violation of human rights, the Marcos regime came out
with the defense that, as a matter of fact, they had defended the rights of people to decent living,
food, decent housing and a life consistent with human dignity.

So, I think we should really limit the definition of human rights to political rights. Is that the sense of
the committee, so as not to confuse the issue?

MR. SARMIENTO. Yes, Madam President.

MR. GARCIA. I would like to continue and respond also to repeated points raised by the previous
speaker.

There are actually six areas where this Commission on Human Rights could act effectively: 1)
protection of rights of political detainees; 2) treatment of prisoners and the prevention of tortures; 3)
fair and public trials; 4) cases of disappearances; 5) salvagings and hamletting; and 6) other crimes
committed against the religious.

xxx xxx xxx

The PRESIDENT. Commissioner Guingona is recognized.

MR. GUINGONA. Thank You Madam President.

I would like to start by saying that I agree with Commissioner Garcia that we should, in order to
make the proposed Commission more effective, delimit as much as possible, without prejudice to
future expansion. The coverage of the concept and jurisdictional area of the term "human rights". I
was actually disturbed this morning when the reference was made without qualification to the rights
embodied in the universal Declaration of Human Rights, although later on, this was qualified to refer
to civil and political rights contained therein.

If I remember correctly, Madam President, Commissioner Garcia, after mentioning the Universal
Declaration of Human Rights of 1948, mentioned or linked the concept of human right with other
human rights specified in other convention which I do not remember. Am I correct?

MR. GARCIA. Is Commissioner Guingona referring to the Declaration of Torture of 1985?

MR. GUINGONA. I do not know, but the commissioner mentioned another.

MR. GARCIA. Madam President, the other one is the International Convention on Civil and Political
Rights of which we are signatory.

MR. GUINGONA. I see. The only problem is that, although I have a copy of the Universal
Declaration of Human Rights here, I do not have a copy of the other covenant mentioned. It is quite
possible that there are rights specified in that other convention which may not be specified here. I
was wondering whether it would be wise to link our concept of human rights to general terms like
"convention," rather than specify the rights contained in the convention.

As far as the Universal Declaration of Human Rights is concerned, the Committee, before the period
of amendments, could specify to us which of these articles in the Declaration will fall within the
concept of civil and political rights, not for the purpose of including these in the proposed
constitutional article, but to give the sense of the Commission as to what human rights would be
included, without prejudice to expansion later on, if the need arises. For example, there was no
definite reply to the question of Commissioner Regalado as to whether the right to marry would be
considered a civil or a social right. It is not a civil right?

MR. GARCIA. Madam President, I have to repeat the various specific civil and political rights that we
felt must be envisioned initially by this provision freedom from political detention and arrest
prevention of torture, right to fair and public trials, as well as crimes involving disappearance,
salvagings, hamlettings and collective violations. So, it is limited to politically related crimes precisely
to protect the civil and political rights of a specific group of individuals, and therefore, we are not
opening it up to all of the definite areas.

MR. GUINGONA. Correct. Therefore, just for the record, the Gentlemen is no longer linking his
concept or the concept of the Committee on Human Rights with the so-called civil or political rights
as contained in the Universal Declaration of Human Rights.

MR. GARCIA. When I mentioned earlier the Universal Declaration of Human Rights, I was referring
to an international instrument.

MR. GUINGONA. I know.

MR. GARCIA. But it does not mean that we will refer to each and every specific article therein, but
only to those that pertain to the civil and politically related, as we understand it in this Commission
on Human Rights.

MR. GUINGONA. Madam President, I am not even clear as to the distinction between civil and
social rights.
 MR. GARCIA. There are two international covenants: the International Covenant and Civil and
Political Rights and the International Covenant on Economic, Social and Cultural Rights. The second
covenant contains all the different rights-the rights of labor to organize, the right to education,
housing, shelter, et cetera.

MR. GUINGONA. So we are just limiting at the moment the sense of the committee to those that the
Gentlemen has specified.

MR. GARCIA. Yes, to civil and political rights.

MR. GUINGONA. Thank you.

xxx xxx xxx

SR. TAN. Madam President, from the standpoint of the victims of human rights, I cannot stress more
on how much we need a Commission on Human Rights. . . .

. . . human rights victims are usually penniless. They cannot pay and very few lawyers will accept
clients who do not pay. And so, they are the ones more abused and oppressed. Another reason is,
the cases involved are very delicate torture, salvaging, picking up without any warrant of arrest,
massacre and the persons who are allegedly guilty are people in power like politicians, men in the
military and big shots. Therefore, this Human Rights Commission must be independent.

I would like very much to emphasize how much we need this commission, especially for the little
Filipino, the little individual who needs this kind of help and cannot get it. And I think we should
concentrate only on civil and political violations because if we open this to land, housing and health,
we will have no place to go again and we will not receive any response. . . . 30 (emphasis supplied)

The final outcome, now written as Section 18, Article XIII, of the 1987 Constitution, is a provision empowering the
Commission on Human Rights to "investigate, on its own or on complaint by any party, all forms of human rights
violations involving civil and political rights" (Sec. 1).

The term "civil rights," 31 has been defined as referring

(t)o those (rights) that belong to every citizen of the state or country, or, in wider sense, to all its
inhabitants, and are not connected with the organization or administration of the government. They
include the rights of property, marriage, equal protection of the laws, freedom of contract, etc. Or, as
otherwise defined civil rights are rights appertaining to a person by virtue of his citizenship in a state
or community. Such term may also refer, in its general sense, to rights capable of being enforced or
redressed in a civil action.

Also quite often mentioned are the guarantees against involuntary servitude, religious persecution, unreasonable
searches and seizures, and imprisonment for debt. 32

Political rights, 33 on the other hand, are said to refer to the right to participate, directly or indirectly, in the establishment
or administration of government, the right of suffrage, the right to hold public office, the right of petition and, in general, the
rights appurtenant to citizenship vis-a-vis the management of government. 34

Recalling the deliberations of the Constitutional Commission, aforequoted, it is readily apparent that the delegates
envisioned a Commission on Human Rights that would focus its attention to the more severe cases of human rights
violations. Delegate Garcia, for instance, mentioned such areas as the "(1) protection of rights of political detainees,
(2) treatment of prisoners and the prevention of tortures, (3) fair and public trials, (4) cases of disappearances, (5)
salvagings and hamletting, and (6) other crimes committed against the religious." While the enumeration has not
likely been meant to have any preclusive effect, more than just expressing a statement of priority, it is, nonetheless,
significant for the tone it has set. In any event, the delegates did not apparently take comfort in peremptorily making
a conclusive delineation of the CHR's scope of investigatorial jurisdiction. They have thus seen it fit to resolve,
instead, that "Congress may provide for other cases of violations of human rights that should fall within the authority
of the Commission, taking into account its recommendation." 35

In the particular case at hand, there is no cavil that what are sought to be demolished are the stalls, sari-sari stores
and carinderia, as well as temporary shanties, erected by private respondents on a land which is planned to be
developed into a "People's Park". More than that, the land adjoins the North EDSA of Quezon City which, this Court
can take judicial notice of, is a busy national highway. The consequent danger to life and limb is not thus to be
likewise simply ignored. It is indeed paradoxical that a right which is claimed to have been violated is one that
cannot, in the first place, even be invoked, if it is, in fact, extant. Be that as it may, looking at the standards
hereinabove discoursed vis-a-vis the circumstances obtaining in this instance, we are not prepared to conclude that
the order for the demolition of the stalls, sari-sari stores and carinderia of the private respondents can fall within the
compartment of "human rights violations involving civil and political rights" intended by the Constitution.

On its contempt powers, the CHR is constitutionally authorized to "adopt its operational guidelines and rules of
procedure, and cite for contempt for violations thereof in accordance with the Rules of Court." Accordingly, the CHR
acted within its authority in providing in its revised rules, its power "to cite or hold any person in direct or indirect
contempt, and to impose the appropriate penalties in accordance with the procedure and sanctions provided for in
the Rules of Court." That power to cite for contempt, however, should be understood to apply only to violations of its
adopted operational guidelines and rules of procedure essential to carry out its investigatorial powers. To exemplify,
the power to cite for contempt could be exercised against persons who refuse to cooperate with the said body, or
who unduly withhold relevant information, or who decline to honor summons, and the like, in pursuing its
investigative work. The "order to desist" (a semantic interplay for a restraining order) in the instance before us,
however, is not investigatorial in character but prescinds from an adjudicative power that it does not possess.
InExport Processing Zone Authority vs. Commission on Human Rights, 36 the Court, speaking through Madame Justice
Carolina Grio-Aquino, explained:

The constitutional provision directing the CHR to "provide for preventive measures and legal aid
services to the underprivileged whose human rights have been violated or need protection" may not
be construed to confer jurisdiction on the Commission to issue a restraining order or writ of injunction
for, it that were the intention, the Constitution would have expressly said so. "Jurisdiction is conferred
only by the Constitution or by law". It is never derived by implication.

Evidently, the "preventive measures and legal aid services" mentioned in the Constitution refer to
extrajudicial and judicial remedies (including a writ of preliminary injunction) which the CHR may
seek from proper courts on behalf of the victims of human rights violations. Not being a court of
justice, the CHR itself has no jurisdiction to issue the writ, for a writ of preliminary injunction may only
be issued "by the judge of any court in which the action is pending [within his district], or by a Justice
of the Court of Appeals, or of the Supreme Court. . . . A writ of preliminary injunction is an ancillary
remedy. It is available only in a pending principal action, for the preservation or protection of the
rights and interests of a party thereto, and for no other purpose." (footnotes omitted).

The Commission does have legal standing to indorse, for appropriate action, its findings and recommendations to
any appropriate agency of government. 37

The challenge on the CHR's disbursement of the amount of P200,000.00 by way of financial aid to the vendors
affected by the demolition is not an appropriate issue in the instant petition. Not only is there lack of locus standi on
the part of the petitioners to question the disbursement but, more importantly, the matter lies with the appropriate
administrative agencies concerned to initially consider.

The public respondent explains that this petition for prohibition filed by the petitioners has become moot and
academic since the case before it (CHR Case No. 90-1580) has already been fully heard, and that the matter is
merely awaiting final resolution. It is true that prohibition is a preventive remedy to restrain the doing of an act about
to be done, and not intended to provide a remedy for an act already accomplished. 38 Here, however, said
Commission admittedly has yet to promulgate its resolution in CHR Case No. 90-1580. The instant petition has been
intended, among other things, to also prevent CHR from precisely doing that. 39
WHEREFORE, the writ prayed for in this petition is GRANTED. The Commission on Human Rights is hereby
prohibited from further proceeding with CHR Case No. 90-1580 and from implementing the P500.00 fine for
contempt. The temporary restraining order heretofore issued by this Court is made permanent. No costs.

SO ORDERED.

Narvasa, C.J., Cruz, Feliciano, Bidin, Regalado, Davide, Jr., Romero, Nocon, Bellosillo, Melo, Quiason and Puno,
JJ., concur.