Consti Cases Dec 6

8/6/2019 Consti Cases Dec 6

1/28

Republic of the PhilipppinesSUPREME COURTManila

EN BANC

[G.R. No. 132922. April 21, 1998]

TELECOMMUNICATIONS AND BROADCAST ATTORNEYS OF THE PHILIPPINES, INC. and GMA NETWORK, INC., petitioners, vs. THECOMMISSION ON ELECTIONS, respondent.

D E C I S I O N

MENDOZA, J.: chanroblesvirtualawlibrary

In Osmea v. COMELEC, G.R. No. 132231, decided March 31, 1998,[1] we upheld the validity of 11(b) of R.A. No. 6646 which prohibits the sale ordonation of print space or air time for political ads, except to the Commission on Elections under 90, of B.P. No. 881, the Omnibus Election Code, withrespect to print media, and 92, with respect to broadcast media. In the present case, we consider the validity of 92 of B.P. Blg. No. 881 against claimsthat the requirement that radio and television time be given free takes property without due process of law; that it violates the eminent domain clause ofthe Constitution which provides for the payment of just compensation; that it denies broadcast media the equal protection of the laws; and that, in anyevent, it violates the terms of the franchise of petitioner GMA Network, Inc. chanroblesvirtualawlibrary

Petitioner Telecommunications and Broadcast Attorneys of the Philippines, Inc. is an organization of lawyers of radio and television broadcasting

companies. They are suing as citizens, taxpayers, and registered voters. The other petitioner, GMA Network, Inc., operates radio and televisionbroadcasting stations throughout the Philippines under a franchise granted by Congress. chanroblesvirtualawlibrary

Petitioners challenge the validity of 92 on the ground (1) that it takes property without due process of law and without just compensation; (2) that itdenies radio and television broadcast companies the equal protection of the laws; and (3) that it is in excess of the power given to the COMELEC tosupervise or regulate the operation of media of communication or information during the period of election.

The Question of Standingchanroblesvirtualawlibrary

At the threshold of this suit is the question of standing of petitioner Telecommunications and Broadcast Attorneys of the Philippines, Inc. (TELEBAP). Asalready noted, its members assert an interest as lawyers of radio and television broadcasting companies and as citizens, taxpayers, and registeredvoters. chanroblesvirtualawlibrary

In those cases[2] in which citizens were authorized to sue, this Court upheld their standing in view of the transcendental importance of the constitutional

question raised which justified the granting of relief. In contrast, in the case at bar, as will presently be shown, petitioners substantive claim is withoutmerit. To the extent, therefore, that a partys standing is determined by the substantive merit of his case or a preliminary estimate thereof, petitionerTELEBAP must be held to be without standing. Indeed, a citizen will be allowed to raise a constitutional question only when he can show that he haspersonally suffered some actual or threatened injury as a result of the allegedly illegal conduct of the government; the injury is fairly traceable to thechallenged action; and the injury is likely to be redressed by a favorable action.[3] Members of petitioner have not shown that they have suffered harmas a result of the operation of 92 of B.P. Blg. 881. chanroblesvirtualawlibrary

Nor do members of petitioner TELEBAP have an interest as registered voters since this case does not concern their right of suffrage. Their interest in 92of B.P. Blg. 881 should be precisely in upholding its validity. chanroblesvirtualawlibrary

Much less do they have an interest as taxpayers since this case does not involve the exercise by Congress of its taxing or spending power.[4] A partysuing as a taxpayer must specifically show that he has a suff icient interest in preventing the illegal expenditure of money raised by taxation and that hewill sustain a direct injury as a result of the enforcement of the questioned statute. chanroblesvirtualawlibrary

Nor indeed as a corporate entity does TELEBAP have standing to assert the rights of radio and television broadcasting companies. Standingjus tertiiwil

be recognized only if it can be shown that the party suing has some substantial relation to the third party, or that the third party cannot assert hisconstitutional right, or that the right of the third party will be diluted unless the party in court is allowed to espouse the third partys constitutional claim.None of these circumstances is here present. The mere fact that TELEBAP is composed of lawyers in the broadcast industry does not entitle them tobring this suit in their name as representatives of the affected companies. chanroblesvirtualawlibrary

Nevertheless, we have decided to take this case since the other petitioner, GMA Network, Inc., appears to have the requisite standing to bring thisconstitutional challenge. Petitioner operates radio and television broadcast stations in the Philippines affected by the enforcement of 92 of B.P. Blg. 881requiring radio and television broadcast companies to provide free air time to the COMELEC for the use of candidates for campaign and other politicalpurposes. chanroblesvirtualawlibrary

Petitioner claims that it suffered losses running to several million pesos in providing COMELEC Time in connection with the 1992 presidential electionand the 1995 senatorial election and that it stands to suffer even more should it be required to do so again this year. Petitioners allegation that it willsuffer losses again because it is required to provide free air time is sufficient to give it standing to question the validity of 92.[5]

Airing of COMELEC Time, a


2/28

2

Reasonable Condition forGrant of PetitionersFranchise chanroblesvirtualawlibrary

As pointed out in our decision in Osmea v. COMELEC, 11(b) of R.A. No. 6646 and 90 and 92 of B.P. Blg. 881 are part and parcel of a regulatoryscheme designed to equalize the opportunity of candidates in an election in regard to the use of mass media for political campaigns. These statutoryprovisions state in relevant parts: chanroblesvirtualawlibrary

R.A. No. 6646 chanroblesvirtualawlibrary

SEC. 11. Prohibited Forms of Election Propaganda. - In addition to the forms of election propaganda prohibited under Section 85 of Batas PambansaBlg. 881, it shall be unlawful: chanroblesvirtualawlibrary

. . . . chanroblesvirtualawlibrary

(b) for any newspapers, radio broadcasting or television station, or other mass media, or any person making use of the mass media to sell or to give freeof charge print space or air time for campaign or other political purposes except to the Commission as provided under Section 90 and 92 of BatasPambansa Blg. 881. Any mass media columnist, commentator, announcer or personality who is a candidate for any elective public office shall take aleave of absence from his work as such during the campaign period. chanroblesvirtualawlibrary

B.P. Blg. 881, (Omnibus Election Code) chanroblesvirtualawlibrary

SEC. 90. Comelec space. - The Commission shall procure space in at least one newspaper of general circulation in every province or city: Provided,

however, That in the absence of said newspaper, publication shall be done in any other magazine or periodical in said province or city, which shall beknown as Comelec Space wherein candidates can announce their candidacy. Said space shall be allocated, free of charge, equally and impartially bythe Commission among all candidates within the area in which the newspaper is circulated. (Sec. 45, 1978 EC). chanroblesvirtualawlibrary

SEC. 92. Comelec time. - The Commission shall procure radio and television time to be known as Comelec Time which shall be allocated equally andimpartially among the candidates within the area of coverage of all radio and television stations. For this purpose, the franchise of all radio broadcastingand television stations are hereby amended so as to provide radio or television time, free of charge, during the period of the campaign. (Sec. 46, 1978EC) chanroblesvirtualawlibrary

Thus, the law prohibits mass media from selling or donating print space and air time to the candidates and requires the COMELEC instead to procureprint space and air time for allocation to the candidates. It will be noted that while 90 of B.P. Blg. 881 requires the COMELEC to procure print spacewhich, as we have held, should be paid for, 92 states that air time shall be procured by the COMELEC free of charge. chanroblesvirtualawlibrary

Petitioners contend that 92 of BP Blg. 881 violates the due process clause[6] and the eminent domain provision[7] of the Constitution by taking air timefrom radio and television broadcasting stations without payment of just compensation. Petitioners claim that the primary source of revenue of the radio

and television stations is the sale of air time to advertisers and that to require these stations to provide free air time is to authorize a taking which is not ade minimis temporary limitation or restraint upon the use of private property. According to petitioners, in 1992, the GMA Network, Inc. lostP22,498,560.00 in providing free air time of one (1) hour every morning from Mondays to Fridays and one (1) hour on Tuesdays and Thursdays from7:00 to 8:00 p.m. (prime t ime) and, in this years elections, it s tands to lose P58,980,850.00 in view of COMELECs requirement that radio and televisionstations provide at least 30 minutes of prime time daily for the COMELEC Time.[8] chanroblesvirtualawlibrary

Petitioners argument is without merit. All broadcasting, whether by radio or by television stations, is licensed by the government. Airwave frequencieshave to be allocated as there are more individuals who want to broadcast than there are frequencies to assign.[9] A franchise is thus a privilege subject,among other things, to amendment by Congress in accordance with the constitutional provision that any such franchise or right granted . . . shall besubject to amendment, alteration or repeal by the Congress when the common good so requires.[10] chanroblesvirtualawlibrary

The idea that broadcast stations may be required to provide COMELEC Time free of charge is not new. It goes back to the Election Code of 1971 (R.A.No. 6388), which provided: chanroblesvirtualawlibrary

SEC. 49. Regulation of election propaganda through mass media. - (a) The franchises of all radio broadcasting and television stations are hereby

amended so as to require each such station to furnish free of charge, upon request of the Commission [on Elections], during the period of sixty daysbefore the election not more than fifteen minutes of prime time once a week which shall be known as Comelec Time and which shall be used exclusivelyby the Commission to disseminate vital election information. Said Comelec Time shall be considered as part of the public service time said stations arerequired to furnish the Government for the dissemination of public information and education under their respective franchises orpermits. chanroblesvirtualawlibrary

This provision was carried over with slight modification by the 1978 Election Code (P.D. No. 1296), which provided: chanroblesvirtualawlibrary

SEC. 46. COMELEC Time.- The Commission [on Elections] shall procure radio and television time to be known as COMELEC Time which shall beallocated equally and impartially among the candidates within the area of coverage of said radio and television stations. For this purpose, the franchisesof all radio broadcasting and television stations are hereby amended so as to require such stations to furnish the Commission radio or television time,free of charge, during the period of the campaign, at least once but not oftener than every other day. chanroblesvirtualawlibrary

Substantially the same provision is now embodied in 92 of B.P. Blg. 881. chanroblesvirtualawlibrary


3/28

3

Indeed, provisions for COMELEC Time have been made by amendment of the franchises of radio and television broadcast stations and, until thepresent case was brought, such provisions had not been thought of as taking property without just compensation. Art. XII, 11 of the Constitutionauthorizes the amendment of franchises for the common good. What better measure can be conceived for the common good than one for free air timefor the benefit not only of candidates but even more of the public, particularly the voters, so that they will be fully informed of the issues in an election?[I]t is the right of the viewers and listeners, not the right of the broadcasters, which is paramount.[11] chanroblesvirtualawlibrary

Nor indeed can there be any constitutional objection to the requirement that broadcast stations give free air time. Even in the United States, there areresponsible scholars who believe that government controls on broadcast media can constitutionally be instituted to ensure diversity of views andattention to public affairs to further the system of free expression. For this purpose, broadcast stations may be required to give free air time to candidates

in an election.[12] Thus, Professor Cass R. Sunstein of the University of Chicago Law School, in urging reforms in regulations affecting the broadcastindustry, writes: chanroblesvirtualawlibrary

Elections . We could do a lot to improve coverage of electoral campaigns. Most important, government should ensure free media time for candidates.Almost all European nations make such provision; the United States does not. Perhaps government should pay for such time on its own. Perhapsbroadcasters should have to offer it as a condition for receiving a license. Perhaps a commitment to provide free time would count in favor of the grant ofa license in the first instance. Steps of this sort would simultaneously promote attention to public affairs and greater diversity of view. They would alsohelp overcome the distorting effects of soundbites and the corrosive financial pressures faced by candidates in seeking time on themedia.[13] chanroblesvirtualawlibrary

In truth, radio and television broadcasting companies, which are given franchises, do not own the airwaves and frequencies through which they transmitbroadcast signals and images. They are merely given the temporary privilege of using them. Since a franchise is a mere privilege, the exercise of theprivilege may reasonably be burdened with the performance by the grantee of some form of public service. Thus, in De Villata v. Stanley,[14]aregulation requiring interisland vessels licensed to engage in the interisland trade to carry mail and, for this purpose, to give advance notice to postalauthorities of date and hour of sailings of vessels and of changes of sailing hours to enable them to tender mail for transportation at the last practicablehour prior to the vessels departure, was held to be a reasonable condition for the state grant of license. Although the question of compensation for the

carriage of mail was not in issue, the Court strongly implied that such service could be without compensation, as in fact under Spanish sovereignty themail was carried free.[15] chanroblesvirtualawlibrary

In Philippine Long Distance Telephone Company v. NTC,[16] the Court ordered the PLDT to allow the interconnection of its domestic telephone systemwith the international gateway facility of Eastern Telecom. The Court cited (1) the provisions of the legislative franchise allowing such interconnection; (2)the absence of any physical, technical, or economic basis for restricting the linking up of two separate telephone systems; and (3) the possibility ofincrease in the volume of international traffic and more efficient service, at more moderate cost, as a result of interconnection. chanroblesvirtualawlibrary

Similarly, in the earlier case ofPLDT v. NTC,[17] it was held: chanroblesvirtualawlibrary

Such regulation of the use and ownership of telecommunications systems is in the exercise of the plenary police power of the State for the promotion ofthe general welfare. The 1987 Constitution recognizes the existence of that power when it provides: chanroblesvirtualawlibrary

Sec. 6. The use of property bears a social function, and all economic agents shall contribute to the common good. Individuals and private groups,

including corporations, cooperatives, and similar collective organizations, shall have the right to own, establish, and operate economic enterprises,subject to the duty of the State to promote distributive justice and to intervene when the common good so demands (ArticleXII).chanroblesvirtualawlibrary

The interconnection which has been required of PLDT is a form of intervention with property rights dictated by the objective of government to promotethe rapid expansion of telecommunications services in all areas of the Philippines, . . . to maximize the use of telecommunications facilities available, . . .in recognition of the vital role of communications in nation building . . . and to ensure that all users of the public telecommunications service have accessto all other users of the service wherever they may be within the Philippines at an acceptable standard of service and at reasonable cost (DOTC CircularNo. 90-248). Undoubtedly, the encompassing objective is the common good. The NTC, as the regulatory agency of the State, merely exercised itsdelegated authority to regulate the use of telecommunications networks when it decreed interconnection. chanroblesvirtualawlibrary

In the granting of the privilege to operate broadcast stations and thereafter supervising radio and television stations, the state spends considerablepublic funds in licensing and supervising such stations.[18] It would be strange if it cannot even require the licensees to render public service by givingfree air time. chanroblesvirtualawlibrary

Considerable effort is made in the dissent of Mr. Justice Panganiban to show that the production of television programs involves large expenditure andrequires the use of equipment for which huge investments have to be made. The dissent cites the claim of GMA Network that the grant of free air time tothe COMELEC for the duration of the 1998 campaign period would cost the company P52,380,000, representing revenue it would otherwise earn if theair time were sold to advertisers, and the amount of P6,600,850, representing the cost of producing a program for the COMELEC Time, or the totalamount of P58,980,850. chanroblesvirtualawlibrary

The claim that petitioner would be losing P52,380,000 in unrealized revenue from advertising is based on the assumption that air time is finished productwhich, it is said, become the property of the company, like oil produced from refining or similar natural resources after undergoing a process for theirproduction. But air time is not owned by broadcast companies. As held in Red Lion Broadcasting Co. v. F.C.C.,[19] which upheld the right of a partypersonally attacked to reply, licenses to broadcast do not confer ownership of designated frequencies, but only the temporary privilege of using them.Consequently, a license permits broadcasting, but the licensee has no constitutional right to be the one who holds the license or to monopolize a radiofrequency to the exclusion of his fellow citizens. There is nothing in the First Amendment which prevents the Government from requiring a licensee toshare his frequency with others and to conduct himself as a proxy or fiduciary with obligations to present those views and voices which arerepresentative of his community and which would otherwise, by necessity, be barred from the airwaves.[20] As radio and television broadcast stations donot own the airwaves, no private property is taken by the requirement that they provide air time to the COMELEC. chanroblesvirtualawlibrary


4/28

4

Justice Panganibans dissent quotes from Tolentino on the Civil Code which says that the air lanes themselves are not property because they cannot beappropriated for the benefit of any individual. (p.5) That means neither the State nor the stations own the air lanes. Yet the dissent also says that Thefranchise holders can recover their huge investments only by selling air time to advertisers. (p. 13) If air lanes cannot be appropriated, how can they beused to produce air time which the franchise holders can sell to recover their investment? There is a contradiction here. chanroblesvirtualawlibrary

As to the additional amount of P6,600,850, it is claimed that this is the cost of producing a program and it is for such items as sets and props, videotapes, miscellaneous (other rental, supplies, transportation, etc.), and technical facilities (technical crew such as director and cameraman as well as onair plugs). There is no basis for this claim. Expenses for these items will be for the account of the candidates. COMELEC Resolution No. 2983, 6(d)specifically provides in this connection: chanroblesvirtualawlibrary

(d) Additional services such as tape-recording or video-taping of programs, the preparation of visual aids, terms and condition thereof, and theconsideration to be paid therefor may be arranged by the candidates with the radio/television station concerned. However, no radio/television stationshall make any discrimination among candidates relative to charges, terms, practices or facilities for in connection with the servicesrendered. chanroblesvirtualawlibrary

It is unfortunate that in the effort to show that there is taking of private property worth mil lions of pesos, the unsubstantiated charge is made that by itsdecision the Court permits the grand larceny of precious time, and allows itself to become the peoples unwitting oppressor. The charge is reallyunfortunate. In Jackman v. Rosenbaum Co.,[21] Justice Holmes was so incensed by the resistance of property owners to the erection of party walls thathe was led to say in his original draft, a statute, which embodies the communitys understanding of the reciprocal rights and duties of neighboringlandowners, does not need to invoke the petty larceny of the police power in its justification. Holmess brethren corrected his taste, and Holmes had toamend the passage so that in the end it spoke only of invoking the police power.[22] Justice Holmes spoke of the petty larceny of the police power. Nowwe are being told of the grand larceny [by means of the police power] of precious air time.

Giving Free Air Time a Duty

Assumed by Petitionerchanroblesvirtualawlibrary

Petitioners claim that 92 is an invalid amendment of R.A. No. 7252 which granted GMA Network, Inc. a franchise for the operation of radio and televisionbroadcasting stations. They argue that although 5 of R.A. No. 7252 gives the government the power to temporarily use and operate the stations ofpetitioner GMA Network or to authorize such use and operation, the exercise of this right must be compensated. chanroblesvirtualawlibrary

The cited provision of R.A. No. 7252 states: chanroblesvirtualawlibrary

SEC. 5. Right of Government. - A special right is hereby reserved to the President of the Philippines, in times of rebellion, public peril, calamity,emergency, disaster or disturbance of peace and order, to temporarily take over and operate the stations of the grantee, to temporarily suspend theoperation of any station in the interest of public safety, security and public welfare, or to authorize the temporary use and operation thereof by anyagency of the Government, upon due compensation to the grantee, for the use of said stations during the period when they shall be sooperated. chanroblesvirtualawlibrary

The basic flaw in petitioners argument is that it assumes that the provision for COMELEC Time constitutes the use and operation of the stations of the

GMA Network, Inc. This is not so. Under 92 of B.P. Blg. 881, the COMELEC does not take over the operation of radio and television stations but only theallocation of air time to the candidates for the purpose of ensuring, among other things, equal opportunity, time, and the right to reply as mandated bythe Constitution.[23] chanroblesvirtualawlibrary

Indeed, it is wrong to claim an amendment of petitioners franchise for the reason that B.P. Blg. 881, which is said to have amended R.A. No. 7252,actually antedated it.[24] The provision of 92 of B.P. Blg. 881 must be deemed instead to be incorporated in R.A. No. 7252. And, indeed, 4 of the latterstatute does. chanroblesvirtualawlibrary

For the fact is that the duty imposed on the GMA Network, Inc. by its franchise to render adequate public service time implements 92 of B.P. Blg. 881.Undoubtedly, its purpose is to enable the government to communicate with the people on matters of public interest. Thus, R.A. No. 7252provides: chanroblesvirtualawlibrary

SEC. 4. Responsibility to the Public. - The grantee shall provide adequate public service time to enable the Government, through the said broadcastingstations, to reach the population on important public issues; provide at all times sound and balanced programming; promote public participation such asin community programming; assist in the functions of public information and education; conform to the ethics of honest enterprise; and not use its station

for the broadcasting of obscene and indecent language, speech, act or scene, or for the dissemination of deliberately false information or willfulmisrepresentation, or to the detriment of the public interest, or to incite, encourage, or assist in subversive or treasonable acts. (Emphasisadded) chanroblesvirtualawlibrary

It is noteworthy that 49 of R.A. No. 6388, from which 92 of B.P. Blg. 881 was taken, expressly provided that the COMELEC Time should be consideredas part of the public service time said stations are required to furnish the Government for the dissemination of public information and education undertheir respective franchises or permits. There is no reason to suppose that 92 of B.P. Blg. 881 considers the COMELEC Time therein provided to beotherwise than as a public service which petitioner is required to render under 4 of its charter (R.A. No. 7252). In sum, B.P. Blg. 881, 92 is not an invalidamendment of petitioners franchise but the enforcement of a duty voluntarily assumed by petitioner in accepting a public grant ofprivilege. chanroblesvirtualawlibrary

Thus far, we have confined the discussion to the provision of 92 of B.P. Blg. 881 for free air time without taking into account COMELEC Resolution No.2983-A, 2 of which states: chanroblesvirtualawlibrary


5/28

5

SEC. 2. Grant of Comelec Time. - Every radio broadcasting and television station operating under franchise shall grant the Commission, upon paymentof just compensation, at least thirty (30) minutes of prime time daily, to be known as Comelec Time, effective February 10, 1998 for candidates forPresident, Vice-President and Senators, and effective March 27, 1998, for candidates for local elective offices, until May 9, 1998. (Emphasisadded) chanroblesvirtualawlibrary

This is because the amendment providing for the payment of just compensation is invalid, being in contravention of 92 of B.P. Blg. 881 that radio andtelevision time given during the period of the campaign shall be free of charge. Indeed, Resolution No. 2983 originally provided that the time allocatedshall be free of charge, just as 92 requires such time to be given free of charge. The amendment appears to be a reaction to petitioners claim in thiscase that the original provision was unconstitutional because it allegedly authorized the taking of property without just

compensation. chanroblesvirtualawlibrary

The Solicitor General, relying on the amendment, claims that there should be no more dispute because the payment of compensation is now providedfor. It is basic, however, that an administrative agency cannot, in the exercise of lawmaking, amend a statute of Congress. Since 2 of Resolution No.2983-A is invalid, it cannot be invoked by the parties.

Law Allows Flextime for Programmingby Stations, Not Confiscation ofAir Time by COMELECchanroblesvirtualawlibrary

It is claimed that there is no standard in the law to guide the COMELEC in procuring free air time and that theoretically the COMELEC can demand all ofthe air time of such stations.[25] Petitioners do not claim that COMELEC Resolution No. 2983-A arbitrarily sequesters radio and television time. Whatthey claim is that because of the breadth of the statutory language, the provision in question is susceptible of unbridled, arbitrary and oppressiveexercise.[26] chanroblesvirtualawlibrary

The contention has no basis. For one, the COMELEC is required to procure free air time for candidates within the area of coverage of a particular radioor television broadcaster so that it cannot, for example, procure such time for candidates outside that area. At what time of the day and how much timethe COMELEC may procure will have to be determined by it in relation to the overall objective of informing the public about the candidates, theirqualifications and their programs of government. As stated in Osmea v. COMELEC, the COMELEC Time provided for in 92, as well as the COMELECSpace provided for in 90, is in lieu of paid ads which candidates are prohibited to have under 11(b) of R.A. No. 6646. Accordingly, this objective must bekept in mind in determining the details of the COMELEC Time as well as those of the COMELEC Space. chanroblesvirtualawlibrary

There would indeed be objection to the grant of power to the COMELEC if 92 were so detailed as to leave no room for accommodation of the demandsof radio and television programming. For were that the case, there could be an intrusion into the editorial prerogatives of radio and television stations.

Differential Treatment ofBroadcast Media Justifiedchanroblesvirtualawlibrary

Petitioners complain that B.P. Blg. 881, 92 singles out radio and television stations to provide free air time. They contend that newspapers andmagazines are not similarly required as, in fact, in Philippine Press Institute v. COMELEC[27] we upheld their right to the payment of just compensation

for the print space they may provide under 90. chanroblesvirtualawlibrary

The argument will not bear analysis. It rests on the fallacy that broadcast media are entitled to the same treatment under the free speech guarantee ofthe Constitution as the print media. There are important differences in the characteristics of the two media, however, which justify their differentialtreatment for free speech purposes. Because of the physical limitations of the broadcast spectrum, the government must, of necessity, allocatebroadcast frequencies to those wishing to use them. There is no similar justification for government allocation and regulation of the printmedia.[28] chanroblesvirtualawlibrary

In the allocation of limited resources, relevant conditions may validly be imposed on the grantees or licensees. The reason for this is that, as alreadynoted, the government spends public funds for the allocation and regulation of the broadcast industry, which it does not do in the case of the print mediaTo require the radio and television broadcast industry to provide free air time for the COMELEC Time is a fair exchange for what the industrygets. chanroblesvirtualawlibrary

From another point of view, this Court has also held that because of the unique and pervasive influence of the broadcast media, [n]ecessarily . . . thefreedom of television and radio broadcasting is somewhat lesser in scope than the freedom accorded to newspaper and print

media.[29]chanroblesvirtualawlibrary

The broadcast media have also established a uniquely pervasive presence in the lives of all Filipinos. Newspapers and current books are found only inmetropolitan areas and in the poblaciones of municipalities accessible to fast and regular transportation. Even here, there are low income masses whofind the cost of books, newspapers, and magazines beyond their humble means. Basic needs like food and shelter perforce enjoy highpriorities. chanroblesvirtualawlibrary

On the other hand, the transistor radio is found everywhere. The television set is also becoming universal. Their message may be simultaneouslyreceived by a national or regional audience of listeners including the indifferent or unwilling who happen to be within reach of a blaring radio or televisionset. The materials broadcast over the airwaves reach every person of every age, persons of varying susceptibilities to persuasion, persons of differentI.Q.s and mental capabilities, persons whose reactions to inflammatory or offensive speech would be difficult to monitor or predict. The impact of thevibrant speech is forceful and immediate. Unlike readers of the printed work, the radio audience has lesser opportunity to cogitate, analyze, and rejectthe utterance.[30] chanroblesvirtualawlibrary


6/28

6

Petitioners assertion therefore that 92 of B.P. Blg. 881 denies them the equal protection of the law has no basis. In addition, their plea that 92 (free airtime) and 11(b) of R.A. No. 6646 (ban on paid political ads) should be invalidated would pave the way for a return to the old regime where moneyedcandidates could monopolize media advertising to the disadvantage of candidates with less resources. That is what Congress tried to reform in 1987with the enactment of R.A. No. 6646. We are not free to set aside the judgment of Congress, especially in light of the recent failure of interested partiesto have the law repealed or at least modified.

Requirement of COMELEC Time, aReasonable Exercise of theStates Power to Regulate

Use of Franchises chanroblesvirtualawlibrary

Finally, it is argued that the power to supervise or regulate given to the COMELEC under Art. IX-C, 4 of the Constitution does not include the power toprohibit. In the first place, what the COMELEC is authorized to supervise or regulate by Art. IX-C, 4 of the Constitution,[31] among other things, is theuse by media of information of their franchises or permits, while what Congress (not the COMELEC) prohibits is the sale or donation of print space or airtime for political ads. In other words, the object of supervision or regulation is different from the object of the prohibition. It is another fallacy forpetitioners to contend that the power to regulate does not include the power to prohibit. This may have force if the object of the power were thesame. chanroblesvirtualawlibrary

In the second place, the prohibition in 11(b) of R.A. No. 6646 is only half of the regulatory provision in the statute. The other half is the mandate to theCOMELEC to procure print space and air time for allocation to candidates. As we said in Osmea v. COMELEC:chanroblesvirtualawlibrary

The term political ad ban, when used to describe 11(b) of R.A. No. 6646, is misleading, for even as 11(b) prohibits the sale or donation of print spaceand air time to political candidates, it mandates the COMELEC to procure and itself allocate to the candidates space and time in the media. There is nosuppression of political ads but only a regulation of the time and manner of advertising. chanroblesvirtualawlibrary

. . . . chanroblesvirtualawlibrary

. . . What is involved here is simply regulation of this nature. Instead of leaving candidates to advertise freely in the mass media, the law provides forallocation, by the COMELEC of print space and air time to give all candidates equal time and space for the purpose of ensuring free, orderly, honest,peaceful, and credible elections. chanroblesvirtualawlibrary

With the prohibition on media advertising by candidates themselves, the COMELEC Time and COMELEC Space are about the only means throughwhich candidates can advertise their qualifications and programs of government. More than merely depriving candidates of time f or their ads, the failureof broadcast stations to provide air time unless paid by the government would clearly deprive the people of their right to know. Art. III, 7 of theConstitution provides that the right of the people to information on matters of public concern shall be recognized, while Art. XII, 6 states that the use ofproperty bears a social function [and] the right to own, establish, and operate economic enterprises [is] subject to the duty of the State to promotedistributive justice and to intervene when the common good so demands. chanroblesvirtualawlibrary

To affirm the validity of 92 of B.P. Blg. 881 is to hold public broadcasters to their obligation to see to it that the variety and vigor of public debate on

issues in an election is maintained. For while broadcast media are not mere common carriers but entities with free speech rights, they are also publictrustees charged with the duty of ensuring that the people have access to the diversity of views on political issues. This right of the people is paramountto the autonomy of broadcast media. To affirm the validity of 92, therefore, is likewise to uphold the peoples right to information on matters of publicconcern. The use of property bears a social function and is subject to the states duty to intervene for the common good. Broadcast media can find theirjust and highest reward in the fact that whatever altruistic service they may render in connection with the holding of elections is for that commongood. chanroblesvirtualawlibrary

For the foregoing reasons, the petition is dismissed. chanroblesvirtualawlibrary

SO ORDERED. chanroblesvirtualawlibrary

Republic of the PhilippinesSUPREME COURT

Manila

EN BANC

G.R. No. 105752 September 2, 1993

INOCENCIO GONZALES, petitioner,vs.HONORABLE CIVIL SERVICE COMMISSION, respondent.

German A. Gineta for petitioner.

The Solicitor General for respondent.


7/28


8/28

8

4. The agency should notify in writing the employee, who is absent without leave (AWOL) for thirty (30) days, to report within five (5)days from receipt of notice, otherwise, he shall be dropped from the rolls.

The Circular does not specifically state where the notice shall be sent. In the case at bar, petitioner's residence is at 30 Ventura St., BF Homes, QuezonCity. Nonetheless in 1990, petitioner left for the United States to attend personally to the problems of his children. W hen petitioner filed his leave ofabsence without pay, ATI knew that petitioner was staying at 149 Declaration Way, San Jose, California in 1992. The letter of June 25, 1990 of thepetitioner requesting this leave clearly carried his address in the United States. The records do not show that the officials of ATI denied knowledge ofpetitioner's correct address. Despite this knowledge, however, the letter of September 5, 1990 written by Atty. Ildefonso del Rosario, ATI's Asst. Directorand OIC, directing petitioner to return to work within five (5) days, otherwise, he would be dropped from the rolls was inexplicably mailed to his house at

30 Ventura St., BF Homes, Quezon City. The letter was not received by petitioner. Per certification of Mr. Jesse Santos, Postmaster of the Bureau ofPost of Quezon City, this letter ". . . was returned to sender, the Agricultural Training Institute on September 27, 1990 and received by one Victoria Lim,authorized, representative."

It is the ruling of the respondent Civil Service Commission that the sending of the said notice to the residence of petitioner constitutes "substantial"compliance with the demands of due process. The ruling would have some allure if the address of petitioner in the United States was not known to theofficials of ATI and if his Philippine address was his last known address. But as stressed above, they knew of petitioner's exact address in the UnitedStates and there appears no impediment for them to send the notice in this correct address. Petitioner, be it noted, was not moving from one residenceto another, to avoid service of legal notices. They are aware that petitioner was not momentarily staying in his address in Quezon City where he couldreceive said notice. Under the circumstances, it is grave abuse of discretion for the respondent Commission to hold that there was "substantial"compliance with the notice requirement of due process. The disputed ruling cuts too deeply on petitioner's right to continue his employment in thegovernment and unduly dilutes the protection of due process. To be sure, the cavalier attitude of respondent Commission is deplorable considering thaton line is the thirty six (36) long years of faithful and dedicated, service to the government of the petitioner. Nothing less than strict compliance with thedemands of due process should have been demanded by the respondent Commission from the officials of ATI in light of the equities of the case. Norcan we give our concurrence to the further ruling of the respondent Commission that the denial of due process to the petitioner was cured by thepublication of said notice in three (3) issues of the Philippine Journal. Notice by publication might have been proper if the address of petitioner were

unknown. Since the officials of ATI knew the whereabouts of petitioner, they have no legal warrant to notify him thru the newspapers.

There are other acts, both covert and overt, which show that ATI officials did not accord fair treatment to the petitioner. Petitioner filed his request forleave without pay on June 25, 1990 while still in the United States. Though petitioner has no right to presume that his request would be granted,nonetheless it was no less a duty on the part of officials ATI to act immediately on the request, if only because petitioner was abroad and neededreasonable time and resources to return to the Philippine on a five (5) day call. For reasons not divulged in the records, they sat on the request. Only onSeptember 5, 1990, did they declare that petitioner had been absent without official leave. In the said letter too, Atty. del Rosario ordered petitioner toreturn to work within five (5) days allegedly due to the "exigencies of the service." Nonetheless, Atty. del Rosario did not explain why all of a sudden the"exigencies of the service" required the immediate return of the petitioner. If the "exigencies of the service" were real, the Court wonders why he did notdeny forthwith the request of petitioner for leave without pay made as far back as June 1992. Worse still, the order dropping petitioner from the rolls wasnever sent to him. Petitioner did not also know he had been replaced till he returned to the Philippines on November 16, 1990. In a setting of scarcities, iis bad enough to lose a job; i t is worse, if it is taken away by government itself without due process of law. Our Constitution abhors such arbitrariness.

IN VIEW WHEREOF, the petition forcertiorariis granted and Resolution No. 92-640 dated May 7, 1992 of the respondent Civil Service Commission isreversed and set aside. The Director of the Agricultural Training Institute is ordered to reinstate petitioner to his position as Administrative Officer III or itsequivalent without loss of any right or privilege.

SO ORDERED.

People vs. Claudio Teehankee, Jr. (Case Digest)Published by Atty. Fred October 4th, 2007 in Cr iminal Law and Digests.2 Comments(This is a digest ofPeople vs. Claudio Teehankee, Jr., G.R. Nos. 111206-08, 6 October 1995)The facts:In 1991, Jussi Olavi Leino was taking Maureen Hultman to her home at Campanilla Street, Dasmarinas Village, Makati. Roland John Chapman wenwith them. When they entered the village, Maureen asked Leino to stop about a block away from her house, as she wanted to walk the rest of the wayfor she did not want her parents to know that she was going home that late. Leino offered to walk with her while Chapman stayed in the car and listenedto the radio.While Leino and Maureen were walking, a light-colored Mitsubishi box-type Lancer car, driven by accused Claudio Teehankee, Jr., came up from behindthem and stopped on the middle of the road. Accused alighted from his car, approached them, and asked: Who are you? (Show me your) I.D. WhenLeino handed his I.D., the accused grabbed and pocketed the I.D., without bothering to look at it.Chapman saw the incident. He stepped down on the sidewalk and asked accused: Why are you bothering us? Accused pushed Chapman, dug into hisshirt, pulled out a gun and fired at him. Chapman felt his upper body, staggered for a moment, and asked: Why did you shoot me? Chapman crumpledon the sidewalk. Leino knelt beside Chapman to assist him but accused ordered him to get up and leave Chapman alone. Accused then turned his ire onLeino. He pointed gun at him and asked: Do you want a trouble? Leino said no and took a step backward.


9/28


10/28

10

The accused cannot likewise capitalize on the failure of the investigators to reduce to a sworn statement the information revealed by Leino during hishospital interviews. It was sufficiently established that Leinos extensive injuries, especially the injury to his tongue, limited his mobility. The day heidentified appellant in the line-up, he was still physically unable to speak. He was being fed through a tube inserted in his throat. There is also no rule ofevidence which requires the rejection of the testimony of a witness whose statement has not been priorly reduced to writing.

The SC also rejected the accuseds contention that the NBI suppressed the sketch prepared by the CIS on the basis of the description given by Leino.There is nothing on the record to show that said sketch was turned over by the CIS to the NBI which could warrant a presumption that the sketch wassuppressed. The suspicion that the sketch did not resemble the accused is not evidence. It is unmitigated guesswork.

The SC was also not impressed with the contention that it was incredible for Leino to have remembered the accuseds face when the incident happened

within a span of 5 minutes. Five minutes is not a short time for Leino to etch in his mind the picture of the accused. Experience shows that preciselybecause of the unusual acts of bestiality committed before their eyes, eyewitnesses, especially the victims to a crime, can remember with a high degreeof reliability the identity of criminals. The natural reaction of victims of criminal violence is to strive to see the appearance of their assailants and observethe manner the crime was committed. Most often, the face end body movements of the assailant create an impression which cannot be easily erasedfrom their memory. In this case, there is absolutely no improper motive for Leino to impute a serious crime to the accused. The victims and the accusedwere unknown to each other before their chance encounter. If Leino identified the accused, it must be because the accused was the real culprit.

The SC also gave credence to the testimony of the other two witnesses. As to the testimony of Cadenas, his initial reluctance to reveal to the authoritieswhat he witnessed was sufficiently explained during the trial he feared for his and his familys safety. The Court has taken judicial notice of the naturareticence of witnesses to get involved in the solution of crimes considering the risk to their lives and limbs. In light of these all too real risks, the court hasnot considered the initial reluctance of fear-gripped witnesses to cooperate with authorities as an authorities as an indicium of credibility. As to thetestimony of Mangubat, the SC found nothing in the records to suspect that Mangubat would perjure himself.2. Proof beyond reasonable doubtAccording to the the accused, the trial court erred in not holding that the prosecution failed to establish his guilt beyond reasonable doubt. First, heclaims the trial court erred in citing in its Decision his involvement in previous shooting incidents. Second, the NBI failed to conduct an examination tocompare the bullets fired from the gun at the scene of the crime with the bullets recovered from the body of Chapman. Third, the prosecutioneyewitnesses described the gunmans car as white, but the trial court found it to be silver metalic gray. Fourth, the accused could not have been the

gunman, for Mangubat said that he overheard the victim Hultman plead to the gunman, thus: Please, dont shoot me and dont kill me. I promiseMommy, Daddy. The accused also contends that a maid in a house near the scene of the crime told Makati police Alberto Fernandez that she heardMaureen say: Daddy dont shoot. Dont. Fifth, the NBI towed accuseds car from Dasmarinas Village to the NBI office which proved that the same wasnot in good running condition. Lastly, the result of the paraffin test conducted on appellant showed he was negative of nitrates.The accused points to other possible suspects, viz:. ANDERS HULTMAN, since one of the eyewitnesses was quoted in the newspapers as havingoverheard Maureen plead to the gunman: Huwag, Daddy.; and, (b) JOSE MONTAO, another resident of Dasmari

as Village, who had a whiteLancer car, also bearing license plate number 566.The accused, however, cannot hope to exculpate himself simply because the trial judge violated the rule on res inter alios acta when he considered hisinvolvement in previous shooting incidents. This rule has long been laid to rest. The harmless error rule is also followed in our jurisdiction. In dealing withevidence improperly admitted in trial, the court examines its damaging quality and its impact to the substantive rights of the litigant. If the impact is slighand insignificant, the court disregards the error as it will not overcome the weight of the properly admitted evidence against the prejudiced party.

In the case at bar, the reference by the trial judge to reports about the troublesome character of appellant is a harmless error. The reference is not thelinchpin of the inculpatory evidence appreciated by the trial judge in convicting the accused. As aforestated, the accused was convicted mainly becauseof his identification by 3 eyewitnesses with high credibility.

The NBI may have also failed to compare the bullets fired from the fatal gun with the bullets found at the scene of the crime. The omission, however

cannot exculpate the accused. The omitted comparison cannot nullify the evidentiary value of the positive identification of the accused.

There is also little to the contention of the accused that his Lancer car was not in running condition. Allegedly, this was vicariously proved when the NBtowed his car from Dasmari

as Village where it was parked to the NBI office. Again, the argument is negated by the records which show that said carwas towed because the NBI could not get its ignition key which was then in the possession of the accused. Clearly, the car was towed not because iwas not in running condition. Even the accuseds evidence show that said car could run. After its repairs, the accuseds son, Claudio Teehankee III,drove it from the repair shop in Banawe, Quezon City to Dasmarinas Village, in Makati, where it was parked.

Nor was the SC impressed by the alleged discrepancies in the eyewitnesses description of the color of the gunmans car. Leino described the car aslight-colored; Florece said the car was somewhat white (medyo puti); Mangubat declared the car was white; and Cadenas testified it was silver metallicgray. These alleged discrepancies amount to no more than shades of differences and are not meaningful, referring as they do to colors white, somewhawhite and silver metallic gray. Considering the speed and shocking nature of the incident which happened before the break of dawn, these slightdiscrepancies in the description of the car do not make the prosecution eyewitnesses unworthy of credence.The accuseds attempt to pin the crimes at bar on Anders Hultman, the adoptive father of Maureen Hultman, deserves scant consideration. The accusedcites a newspaper item where Maureen was allegedly overheard as saying to the gunman: Huwag, Daddy. Huwag, Daddy. The evidence on recordhowever, demonstrates that Anders Hultman could not have been the gunman. It was clearly established that Maureen could not have uttered saidstatement for two (2) reasons: Maureen did not speak Tagalog, and she addressed Anders Hultman as Papa, not Daddy. Moreover, Leino outrightlydismissed this suspicion. While still in the hospital and when informed that the Makati police were looking into this possibility, Leino flatly stated thaAnders Hultman was NOT the gunman. Leino is a reliable witness.The accused cannot also capitalize on the paraffin test showing he was negative of nitrates. Scientific experts concur in the view that the paraffin testhas . . . proved extremely unreliable in use. The only thing that it can definitely establish is the presence or absence of nitrates or nitrites on the hand. Itcannot be established from this test alone that the source of the nitrates or nitrites was the discharge of a firearm. The person may have handled one ormore of a number of substances which give the same positive reaction for nitrates or nitrites, such as explosives, fireworks, fertilizers, pharmaceuticalsand leguminous plants such as peas, beans, and alfalfa. A person who uses tobacco may also have nitrate or nitrite deposits on his hands since thesesubstances are present in the products of combustion of tobacco. In numerous rulings, we have also recognized several factors which may bring aboutthe absence of gunpowder nitrates on the hands of a gunman, viz: when the assailant washes his hands after firing the gun, wears gloves at the time othe shooting, or if the direction of a strong wind is against the gunman at the time of firing. In the case at bar, NBI Forensic Chemist, Leonora Valladotestified and confirmed that excessive perspiration or washing of hands with the use of warm water or vinegar may also remove gunpowder nitrates onthe skin. She likewise opined that the conduct of the paraffin test after more than seventy-two (72) hours from the time of the shooting may not lead to areliable result for, by such time, the nitrates could have already been removed by washing or perspiration. In the Report on the paraffin test conductedon appellant, Forensic Chemist Elizabeth Ayonon noted that when the accused was tested for the presence of nitrates, more than 72 hours has alreadylapsed from the time of the alleged shooting.


11/28


12/28

12

(2) guilty beyond reasonable doubt of the crime of Murder, qualified by treachery, for the shooting of Maureen Navarro Hultman. He was sentenced tosuffer imprisonment of reclusion perpetua, and to pay the heirs of the said deceased the following amounts: P50,000 as indemnity for her deathP2,350,461.83 as actual damages; P564,042.57 for loss of earning capacity of said deceased; P1,000,000 as moral damages; and P2,000,000 asexemplary damages.

(3) guilty beyond reasonable doubt of the crime of Frustrated Murder, qualified by treachery, for the shooting of Jussi Olavi Leino, and sentenced tosuffer the indeterminate penalty of 8 years of prision mayor as minimum, to 14 years and 8 months of reclusion temporal as maximum, and to pay thesaid offended party the following amounts: P30,000 as indemnity for his injuries; P118,369.84 and equivalent in Philippine Pesos of U.S.$55,600.00both as actual damages; P1,000,000 as moral damages; and, P2,000,000 as exemplary damages.

(4) In all three cases, to pay each of the 3 offended parties the sum of P1,000,000, or a total of P3,000,000, for attorneys fees and expenses of litigationand

(5) To pay the costs in all 3 cases.

Republic of the PhilippinesSUPREME COURT

Manila

EN BANC

A.M. No. 01-4-03-S.C. June 29, 2001

RE: REQUEST RADIO-TV COVERAGE OF THE TRIAL OF IN THE SANDIGANBAYAN OF THE PLUNDER CASES AGAINST THE FORMER

PRESIDENT JOSEPH E. ESTRADA.

SECRETARY OF JUSTICE HERNANDO PEREZ, KAPISANAN NG MGA BRODKASTER NG PILIPINAS, CESAR SARINO, RENATO CAYETANO

and ATTY. RICARDO ROMULO, petitioners,vs.JOSEPH E. ESTRADA and INTEGRATED BAR OF THE PHILIPPINES, oppositors.

VITUG, J.:

The travails of a deposed President continue. The Sandiganbayan reels to start hearing the criminal charges against Mr. Joseph E. Estrada. Mediaseeks to cover the event via live television and live radio broadcast and endeavors this Court to allow it that kind of access to the proceedings.

On 13 March 2001, the Kapisanan ng mga BroadKaster ng Pilipinas (KBP), an association representing duly franchised and authorized television andradio networks throughout the country, sent a letter requesting this Court to allow live media coverage of the anticipated trial of the plunder and other

criminal cases filed against former President Joseph E. Estrada before the Sandiganbayan in order "to assure the public of full transparency in theproceedings of an unprecedented case in our history."2 The request was seconded by Mr. Cesar N. Sarino in his letter of 05 April 2001 to the ChiefJusticeand, still later, by Senator Renato Cayetano and Attorney Ricardo Romulo.

On 17 April 2001, the Honorable Secretary of JusticeHernando Perez formally filed the instant petition,3 submitting the following exegesis:

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

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

"5. Moreover, the live radio and television coverage of the proceedings will also serve the dual purpose of ensuring the desired transparencyin the administration of justice in order to disabuse the minds of the supporters of the past regime of any and all unfounded notions, or ill-

perceived attempts on the part of the present dispensation, to railroad the instant criminal cases against the Former President Joseph EjercitoEstrada."4

Public interest, the petition further averred, should be evident bearing in mind the right of the public to vital information affecting the nation.

In effect, the petition seeks a re-examination of the 23rd October 1991 resolution of this Court in a case for libel filed by then President Corazon C.Aquino. The resolution read:

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

"While we take notice of the September 1990 report of the United States Judicial Conference Ad Hoc Committee on Cameras in theCourtroom, still the current rule obtaining in the Federal Courts of the United States prohibits the presence of television cameras in criminaltrials. Rule 53 of the Federal Rules of Criminal Procedure forbids the taking of photographs during the progress of judicial proceedings or radio


13/28

13

broadcasting of such proceedings from the courtroom. A trial of any kind or in any court is a matter of serious importance to all concerned andshould not be treated as a means of entertainment. To so treat it deprives the court of the dignity which pertains to it and departs from theorderly and serious quest for truth for which our judicial proceedings are formulated.

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

"In Estes vs. Texas. the United States Supreme Court held that television coverage of judicial proceedings involves an inherent denial of the

due process rights of a criminal defendant. Voting 5-4, the Court through Mr. Justice Clark identified four (4) areas of potential prejudice whichmight arise from the impact of the cameras on the jury, witnesses, the tr ial judge and the defendant. The decision in part pertinently stated:

"Experience likewise has established the prejudicial effect of telecasting on witnesses. Witnesses might be frightened, play to thecamera, or become nervous. They are subject to extraordinary out-of court influences which might affect their testimony. Also,telecasting not only increases the trial judge's responsibility to avoid actual prejudice to the defendant, it may as well affect his ownperformance. Judges are human beings also and are subject to the same psychological reactions as laymen. For the defendant,telecasting is a form of mental harassment and subjects him to excessive public exposure and distracts him from the effectivepresentation of his defense. 1wphi1.nt

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

"Representatives of the press have no special standing to apply for a writ of mandate to compel a court to permit them to attend a trial, sincewithin the courtroom, a reporter's constitutional rights are no greater than those of any other member of the public. Massive intrusion of

representatives of the news media into the trial itself can so alter or destroy the constitutionally necessary judicial atmosphere and decorumthat the requirements of impartiality imposed by due process of law are denied the defendant and a defendant in a criminal proceeding shouldnot be forced to run a gauntlet of reporters and photographers each time he enters or leaves the courtroom.

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

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

Admittedly, the press is a mighty catalyst in awakening public consciousness, and it has become an important instrument in the quest for truth. 5 Recent

history exemplifies media's invigorating presence, and its contribution to society is quite impressive. The Court, just recently, has taken judicial notice ofthe enormous effect of media in stirring public sentience during the impeachment trial, a partly judicial and partly political exercise, indeed the most-watched program in the boob-tubes during those times, that would soon culminate in EDSA II.

The propriety of granting or denying the instant petition involve the weighing out of the constitutional guarantees of freedom of the press and the right topublic information, on the one hand, and the fundamental rights of the accused, on the other hand, along with the constitutional power of a court tocontrol its proceedings in ensuring a fair and impartial trial.6

When these rights race against one another, jurisprudence7 tells us that the right of the accused must be preferred to win.

With the possibility of losing not only the precious liberty but also the very life of an accused, it behooves all to make absolutely certain that an accusedreceives a verdict solely on the basis of a just and dispassionate judgment, a verdict that would come only after the presentation of credible evidencetestified to by unbiased witnesses unswayed by any kind of pressure, whether open or subtle, in proceedings that are devoid of histrionics that mightdetract from its basic aim to ferret veritable facts free from improper influence,8 and decreed by a judge with an unprejudiced mind, unbridled by runningemotions or passions.

Due process guarantees the accused a presumption of innocence until the contrary is proved in a trial that is not lifted above its individual settings normade an object of public's attention9 and where the conclusions reached are induced not by any outside force or influence10 but only by evidence andargument given in open court, where fitting dignity and calm ambiance is demanded.

Witnesses and judges may very well be men and women of fortitude, able to thrive in hardy climate, with every reason to presume firmness of mind andresolute endurance, but it must also be conceded that "television can work profound changes in the behavior of the people it f ocuses on."11

Even while it may be diff icult to quantify the influence, or pressure that media can bring to bear on them directly and through the shaping of publicopinion, it is a fact, nonetheless, that, indeed, it does so in so many ways and in varying degrees. The conscious or unconscious effect that such acoverage may have on the testimony of witnesses and the decision of judges cannot be evaluated but, it can likewise be said, it is not at all unlikely for avote of guilt or innocence to yield to it.12 It might be farcical to build around them an impregnable armor against the influence of the most powerful mediaof public opinion.13


14/28

14

To say that actual prejudice should first be present would leave to near nirvana the subtle threats to justice that a disturbance of the mind soindispensable to the calm and deliberate dispensation of justice can create.14 The effect of television may escape the ordinary means of proof, but it isnot far-fetched for it to gradually erode our basal conception of a trial such as we know it now. 15

An accused has a right to a public trial but it is a r ight that belongs to him, more than anyone else, where his life or liberty can be held critically inbalance. A public trial aims to ensure that he is fairly dealt with and would not be unjustly condemned and that his rights are not compromised in secreteconclaves of long ago. A public trial is not synonymous with publicized trial; it only implies that the court doors must be open to those who wish to come,sit in the available seats, conduct themselves with decorum and observe the trial process. In the constitutional sense, a courtroom should have enoughfacilities for a reasonable number of the public to observe the proceedings, not too small as to render the openness negligible and not too large as to

distract the trial participants from their proper functions, who shall then be totally free to report what they have observed during the proceedings.

16

The courts recognize the constitutionally embodied freedom of the press and the right to public information. It also approves of media's exalted power toprovide the most accurate and comprehensive means of conveying the proceedings to the public and in acquainting the public with the judicial processin action; nevertheless, within the courthouse, the overriding consideration is still the paramount right of the accused to due process17 which must neverbe allowed to suffer diminution in its constitutional proportions. Justice Clark thusly pronounced, "while a maximum freedom must be allowed the press incarrying out the important function of informing the public in a democratic society, its exercise must necessarily be subject to the maintenanceofabsolute fairness in the judicial process."18

This Court, in the instance19 already mentioned, citing Estes vs. Texas,20 the United States Supreme Court holding the television coverage of judicialproceedings as an inherent denial of due process rights of an accused, also identified the following as being likely prejudices:

"1. The potential impact of television x x x is perhaps of the greatest significance. x x x. From the moment the trial judge announces that acase will be televised it becomes a cause celebre. The whole community, x x x becomes interested in all the morbid details surrounding it. Theapproaching trial immediately assumes an important status in the public press and the accused is highly publicized along with the offense with

which he is charged. Every juror carries with him into the jury box these solemn facts and thus increases the chance of prejudice that ispresent in every criminal case. x x x.

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

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

"4. Finally, we cannot ignore the impact of courtroom television on the defendant. Its presence is a form of mental if not physical-harassment,resembling a police line-up or the third degree. The inevitable close-up of his gestures and expressions during the ordeal of his trial might welltransgress his personal sensibilities, his dignity, and his ability to concentrate on the proceedings before him -sometimes the differencebetween life and death -dispassionately, freely and without the distraction of wide public surveillance. A defendant on trial for a specific crime

is entitled to his day in court, not in a stadium, or a city or nationwide arena. The heightened public clamor resulting from radio and televisioncoverage will inevitably result in prejudice."

In his concurring opinion in Estes, Mr. Justice Harlan opined that live television and radio coverage could have mischievous potentialities for intrudingupon the detached atmosphere that should always surround the judicial process.21

The Integrated Bar of the Philippines, in its Resolution of 16 Apri1 2001, expressed its own concern on the live television and radio coverage of thecriminal trials of Mr. Estrada; to paraphrase: Live television and radio coverage can negate the rule on exclusion of witnesses during the hearingsintended to assure a fair trial; at stake in the criminal trial is not only the life and liberty of the accused but the very credibility of the Philippine criminaljustice system, and live television and radio coverage of the trial could allow the "hooting throng" to arrogate unto themselves the task of judging the guiltof the accused, such that the verdict of the court will be acceptable only if popular; and live television and radio coverage of the trial will not subserve theends of justice but will only pander to the desire for publicity of a few grandstanding lawyers.

It may not be unlikely, if the minority position were to be adopted, to see protracted delays in the prosecution of cases before trial courts brought aboutby petitions seeking a declaration of mistrial on account of undue publicity and assailing a court a quo's action either allowing or disallowing live media

coverage of the court proceedings because of supposed abuse of discretion on the part of the judge.

En passant, the minority would view theponencia as having modified the case law on the matter. Just to the contrary, the Court effectively reiterated itsstanding resolution of 23 October 1991. Until 1991, the Court had yet to establish the case law on the matter, and when it did in its 23rd Octoberresolution, it confirmed, in disallowing live television and radio coverage of court proceedings, that "the records of the Constitutional Commission (were)bereft of discussion regarding the subject of cameras in the courtroom" and that "Philippine courts (had) not (therefore) had the opportunity to rule on thequestion squarely."

But were the cases decided by the U.S. courts and cited in the minority opinion really in point?

In Nebraska Press Association vs, Stewart,22 the Nebraska State trial judge issued an order restraining news media from publishing accounts ofconfession or admissions made by the accused or facts strongly implicating him. The order was struck down. In Richmond Newspaper; Inc., vs,Virginia,23 the trial judge closed the courtroom to the public and all participants except witnesses when they testify. The judge was reversed by the U.S.Supreme Court which ruled that criminal trials were historically open. In Globe Newspaper vs. Superior Court,24 the US Supreme Court voided a


15/28

15

Massachusetts law that required trial judges to exclude the press and the public from the courtroom during the testimony of a minor victim of certainsexual offenses.

Justice Steward, in Chandler vs. Florida,25 where two police officers charged with burglary sought to overturn their conviction before the US SupremeCourt upon the ground that the television coverage had infringed their right to fair trial, explained that "the constitutional violation perceived by the EstesCourt did not stem from the physical disruption that might one day disappear with technological advances in the television equipment but inhered, ratherin the hypothesis that the mere presence of cameras and recording devices might have an effect on the trial participants prejudicial to the accused."26

Parenthetically, the United States Supreme Court and other federal courts do not allow live television and radio coverage of their proceedings.

The sad reality is that the criminal cases presently involved are of great dimensions so involving as they do a former President of the Republic. It isundeniable that these cases have twice become the nation's focal points in the two conflicting phenomena of EDSA II and EDSA III where the magnitudeof the events has left a stil l divided nation. Must these events be invited anew and risk the relative stability that has thus far been achieved? Thetranscendental events in our midst do not allow us to turn a blind eye to yet another possible extraordinary case of mass action being allowed to nowcreep into even the business of the courts in the dispensation of justice under a rule of law. At the very least, a change in the standing rule of the courtcontained in its resolution of 23 October 1991 may not appear to be propitious.

Unlike other government offices, courts do not express the popular will of the people in any sense which, instead, are tasked to only adjudicatejusticiable controversies on the basis of what alone is submitted before them.27 A trial is not a free trade of ideas, Nor is a competing market of thoughtsthe known test of truth in a courtroom.28

The Court is not all that umnindful of recent technological and scientific advances but to chance forthwith the life or liberty of any person in a hasty bid touse and apply them, even before ample safety nets are provided and the concerns heretofore expressed are aptly addressed, is a price too high to pay.

WHEREFORE, the petition is DENIED.

SO ORDERED.1wphi1.ntRepublic of the PhilippinesSUPREME COURTManila

EN BANC

2nd

LT. SALVADOR PARREO represented by his

daughter Myrna P. Caintic,Petitioner,

G.R. No. 162224

Present:cralawPUNO,* C.J.,

QUISUMBING,**YNARES-SANTIAGO,

SANDOVAL-GUTIERREZ,cralawCARPIO,AUSTRIA-MARTINEZ,CORONA,- versus -CARPIO MORALES,AZCUNA,TINGA,CHICO-NAZARIO,GARCIA,VELASCO, JR., andNACHURA, JJ.

COMMISSION ON AUDIT andPromulgated:CHIEF OF STAFF, ARMEDFORCES OF THE PHILIPPINES,Respondents.June 7, 2007x - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - x

D E C I S I O N

CARPIO, J.:

The Case

cralawBefore the Court is a petition for certiorari[1] assailing the 9 January 2003 Decision[2] and 13 January 2004 Resolution[3] of the Commission onAudit (COA).

The Antecedent Facts


16/28

16

cralawSalvador Parreo (petitioner) served in the Armed Forces of the Philippines (AFP) for 32 years.On 5 January 1982, petitioner retired from thePhilippine Constabulary with the rank of 2nd Lieutenant.Petitioner availed, and received payment, of a lump sum pension equivalent to three years pay.In1985, petitioner started receiving his monthly pension amounting to P13,680.

cralawPetitioner migrated to Hawaii and became a naturalized American citizen.In January 2001, the AFP stopped petitioners monthly pension inaccordance with Section 27 of Presidential Decree No. 1638[4] (PD 1638), as amended by Presidential Decree No. 1650.[5]Section 27 of PD 1638, asamended, provides that a retiree who loses his Filipino citizenship shall be removed from the retired list and his retirement benefits terminated upon lossof Filipino citizenship.Petitioner requested for reconsideration but the Judge Advocate General of the AFP denied the request.

cralawPetitioner filed a claim before the COA for the continuance of his monthly pension.

The Ruling of the Commission on Audit

cralawIn its 9 January 2003 Decision, the COA denied petitioners claim for lack of jurisdiction.The COA ruled:cralawIt becomes immediately noticeable that the resolution of the issue at hand hinges upon the validity of Section 27 of P.D. No.1638, as amended.Pursuant to the mandate of the Constitution, whenever a dispute involves the validity of laws, the courts, asguardians of the Constitution, have the inherent authority to determine whether a statute enacted by the legislature transcends thelimit imposed by the fundamental law.Where the statute violates the Constitution, it is not only the right but the duty of the judiciary todeclare such act as unconstitutional and void.(Tatad vs. Secretary of Department of Energy, 281 SCRA 330) That being so,prudence dictates that this Commission defer to the authority and jurisdiction of the judiciary to rule in the first instance upon theconstitutionality of the provision in question.

cralawPremises considered, the request is denied for lack of jurisdiction to adjudicate the same.Claimant is advised to file his claimwith the proper court of original jurisdiction.[6]

cralawPetitioner filed a motion for reconsideration.Petitioner alleged that the COA has the power and authority to incidentally rule on the constitutionalityof Section 27 of PD 1638, as amended.Petitioner alleged that a direct recourse to the court would be dismissed for failure to exhaust administrativeremedies.Petitioner further alleged that since his monthly pension involves government funds, the reason for the termination of the pension is subjectto COAs authority and jurisdiction.cralawIn its 13 January 2004 Resolution, the COA denied the motion.The COA ruled that the doctrine of exhaustion of administrative remedies does notapply if the administrative body has, in the first place, no jurisdiction over the case.The COA further ruled that even if it assumed jurisdiction over theclaim, petitioners entitlement to the retirement benefits he was previously receiving must necessarily cease upon the loss of his Filipino citizenship inaccordance with Section 27 of PD 1638, as amended.

cralawHence, the petition before this Court.

The Issues

cralawPetitioner raises the following issues:

1. Whether Section 27 of PD 1638, as amended, is constitutional;

2. Whether the COA has jurisdiction to rule on the constitutionality ofSection 27 of PD 1638, as amended; and

3. Whether PD 1638, as amended, has retroactive or prospective effect.[7]chanroblesvirtuallawlibrary

The Ruling of this Court

cralawThe petition has no merit.

Jurisdiction of the COA

cralawPetitioner filed his money claim before the COA.A money claim is a demand for payment of a sum of money, reimbursement or compensationarising from law or contract due from or owing to a government agency.[8]Under Commonwealth Act No. 327,[9]as amended by Presidential Decree No1445,[10] money claims against the government shall be filed before the COA.[11]chanroblesvirtuallawlibrary

cralawSection 2(1), Article IX(D) of the 1987 Constitution prescribes the powers of the COA, as follows:

cralawSec. 2. (1)The Commission on Audit shall have the power, authority, and duty to examine, audit, and settle all accountspertaining to the revenue and receipts of, and expenditures or uses of funds and property, owned or held in trust by, or pertaining to,the Government, or any of its subdivisions, agencies, or instrumentalities, including government-owned or controlled corporationswith original charters, and on a post-audit basis; (a) constitutional bodies, commissions and offices that have been granted fiscalautonomy under this Constitution;(b) autonomous state colleges and universities; (c) other government-owned or controlledcorporations and their subsidiaries; and (d) such non-governmental entities receiving subsidy or equity, directly or indirectly, from orthrough the Government, which are required by law or the granting institution to submit such audit as a condition of subsidy orequity.However, where the internal control system of the audited agencies is inadequate, the Commission may adopt suchmeasures, including temporary or special pre-audit, as are necessary and appropriate to correct the deficiencies.It shall keep thegeneral accounts of the Government and, for such period as may be provided by law, preserve the vouchers and other supportingpapers pertaining thereto.


17/28

17

cralawThe jurisdiction of the COA over money claims against the government does not include the power to rule on the constitutionality or validity oflaws.The 1987 Constitution vests the power of judicial review or the power to declare unconstitutional a law, treaty, international or executive agreementpresidential decree, order, instruction, ordinance, or regulation in this Court and in all Regional Trial Courts.[12]cralawPetitioners money claim essentiallyinvolved the constitutionalityofSection 27 of PD 1638, as amended.Hence, the COA did not commit grave abuse of discretion in dismissing petitionersmoney claim.

cralawPetitioner submits that the COA has the authority to order the restoration of his pension even without ruling on the constitutionality ofSection 27 ofPD 1638, as amended.The COA actually ruled on the matter in its 13 January 2004 Resolution, thus:

Furthermore, assuming arguendo that this Commission assumed jurisdiction over the instant case, claimants entitlement to the

retirement benefits he was previously receiving must necessarily be severed or stopped upon the loss of his Filipino citizenship asprescribed in Section 27, P.D. No. 1638, as amended by P.D. No. 1650.[13]chanroblesvirtuallawlibrary

The COA effectively denied petitioners claim because of the loss of his Filipino citizenship.

Application of PD 1638, as amended

Petitioner alleges thatPD 1638, as amended, should apply prospectively.The Office of the Solicitor General (OSG) agrees with petitioner.The OSGargues that PD 1638, as amended, should apply only to those who joined the military service after itseffectivity, citing Sections 33 and 35, thus:

cralawSection 33.Nothing in this Decree shall be construed in any manner to reduce whatever retirement and separation pay orgratuity or other monetary benefits which any person is heretofore receiving or is entitled to receive under the provisions of existinglaw.

x x x x

cralawSection. 35.Except those necessary to give effect to the provisions of this Decree and to preserve the rights granted to retiredor separated military personnel, all laws, rules and regulations inconsistent with the provisions of this Decree are hereby repealed ormodified accordingly.

The OSG further argues that retirement laws are liberally construed in favor of the retirees.Article 4 of the Civil Code provides: Laws shall haveno retroactive effect, unless the contrary is provided.Section 36 of PD 1638, as amended, provides that it shall take effect upon its approval.It wassigned on 10 September 1979.PD 1638, as amended, does not provide for its retroactive application.There is no question that PD 1638, as amendedapplies prospectively.

cralawHowever, we do not agree with the interpretation of petitioner and the OSG that PD 1638, as amended, should apply only to those who joined themilitary after its effectivity.Since PD 1638, as amended, is about the new system of retirement and separation from service of military personnel, it shouldapply to those who were in the service at the time of its approval. In fact, Section 2 of PD 1638, as amended, provides that th[e] Decree shall apply to allmilitary personnel in the service of the Armed Forces of the Philippines.PD 1638, as amended, was signed on 10 September 1979.Petitioner retired in1982, long after the approval of PD 1638, as amended.Hence, the provisions of PD 1638, as amended, apply to petitioner.

Petitioner Has No Vested Right to his

Retirement Benefits

cralawPetitioner alleges that Section 27 of PD 1638, as amended, deprives him of his property which the Constitution and statutes vest in him.Petitioneralleges that his pension, being a property vested by the Constitution, cannot be removed or taken from him just because he became a naturalizedAmerican citizen.Petitioner further alleges that the termination of his monthly pension is a penalty equivalent to deprivation of his life.

cralawThe allegations have no merit.cralawPD 1638, as amended, does not impair any vested right or interest of petitioner.Where the employee retiresand meets the eligibility requirements, he acquires a vested right to the benefits that is protected by the due process clause.[14]At the time of theapproval of PD 1638 and at the time of its amendment, petitioner was still in active service.Hence, petitioners retirement benefits were only futurebenefits and did not constitute a vested right.Before a right to retirement benefits or pension vests in an employee, he must have met the statedconditions of eligibility with respect to the nature of employment, age, and length of service.[15]It is only upon retirement that military personnel acquire avested right to retirement benefits.Retirees enjoy a protected property interest whenever they acquire a right to immediate payment under pre-existinglaw.[16]chanroblesvirtuallawlibrary

cralawFurther, the retirement benefits of military personnel are purely gratuitous in nature.They are not similar to pension plans where employeeparticipation is mandatory, hence, the employees have contractual or vested rights in the pension which forms part of the compensation.[17]

Constitutionalityof Section 27of PD 1638

cralawSection 27 of PD 1638, as amended, provides:

cralawSection 27.Military personnel retired under Sections 4, 5, 10, 11 and 12 shall be carried in the retired list of the Armed Forcesof the Philippines. The name of a retiree who loses his Filipino citizenship shall be removed from the retired list and his retirementbenefits terminated upon such loss.

cralawThe OSG agrees with petitioner that Section 27 of PD 1638, as amended, is unconstitutional.The OSG argues that the obligation imposed onpetitioner to retain his Filipino citizenship as a condition for him to remain in the AFP retired list and receive his retirement benefit is contrary to publicpolicy and welfare, op

Date post:	07-Apr-2018
Category:	Documents
Upload:	apriljr
View:	224 times
Download:	0 times

Consti Cases Dec 6

Documents