Kapunan vs de Villa 6/22/11 9:55 AM

Republic of the Philippines

SUPREME COURT

Manila

EN BANC

G.R. No. 83177 December 6, 1988

LT. COL. EDUARDO KAPUNAN, JR., PAF, and LT. COL. NELSON ESLAO, PAF,

petitioners,

vs.

AFP CHIEF OF STAFF GEN. RENATO S. DE VILLA, BRIG. GEN. MANUEL

CASACLANG, AFP, COMMODORE VIRGILIO Q. MARCELO, AFP, PMA

SUPERINTENDENT COMMODORE ROGELIO DAYAN, AFP, GENERAL COURT

MARTIAL NO. 8, MAJ. PEDRO ROSAL, JAGS, MAJ. FELIX V. BALDONADO, JAGS,

LT. COL. RODULFO MUNAR, JAGS and AFP BOARD OF OFFICERS, respondents.

Roco, Bunag & Kapunan Law Offices for petitioners.

Office of the Solicitor General for respondents.

R E S O L U T I O N

PER CURIAM:

In this petition for certiorari, prohibition and/or habeas corpus, petitioners,

who were implicated in the unsuccessful coup d'etat of August 28, 1987 and

relieved of their duties in the Philippine Military Academy (PMA), seek the

issuance of the writs of certiorari and prohibition (1) to set aside, as null and

void, the "pre-trial investigation" report finding a prima facie case against

them and recommending their trial for mutiny and conduct unbecoming an

officer and the denial of their motion for reconsideration, and (2) to enjoin

respondent General Court Martial No. 8 from further proceeding in the case

of "People v. Lt. Col. Eduardo Kapunan, et al." Further, petitioner Kapunan

seeks the issuance of a writ of habeas corpus to procure his release from

confinement.

On May 19, 1988, the Court issued an order restraining respondent General

Court Martial No. 8 from proceeding with the arraignment of petitioners

scheduled for that date [Rollo, pp. 124-125].

The Solicitor General filed a comment in behalf of the respondents, to which

petitioners filed a reply. After petitioners moved for the early resolution of

the case and respondents filed the required rejoinder, the Court considered

the case ripe for resolution.

In brief, the pertinent facts are as follows:

In the aftermath of the failed August 28, 1987 coup d'etat where cadets of

the Philippine Military Academy reportedly openly supported the plotters and

issued statements to that effect, respondent PMA Superintendent Dayan

created on August 31, 1987 a PMA Board of Officers to investigate the

alleged involvement of officers and cadets of the PMA [Rollo, p. 187]. A fact-

finding investigation was conducted by the PMA Board from September 1 to

11, 1987 and on September 23, 1987 it submitted its findings to the AFP

Chief of Staff [Rollo, p. 195]. On the basis of the findings of the PMA Board,

respondent AFP Board of Officers recommended on October 8, 1987 the filing

of charges against Maj. Doromal and Lts. Catapang and Baltazar and the

reprimand of cadets Paredes, Tutaan, D. Macasaet, F. Macasaet, Lenterio,

Rulloda and Balisi [Rollo, pp. 34-36].

A few days later, respondent PMA Superintendent Dayan verbally instructed

the PMA Board of Officers to take the testimonies of certain witnesses, which

it did from October 12 to 16,1987 [Rollo, p. 195]. These statements were

submitted to the Chief of Staff [Rollo, p. 37] and became the basis for the

recommendation of the AFP Board, dated October 30, 1987, for the filing of

charges against petitioners [Rollo, pp. 38-40]. Charge sheets (and amended

charge sheets) were filed against petitioners for mutiny and conduct

unbecoming an officer (Arts. 67 and 96 of the Articles of War) [Rollo, pp. 42-

45; 72-75] and a "pre-trial investigation" was conducted by respondent Maj.

Baldonado.

Petitioners were subpoenaed and required by Maj. Baldonado to file their

counter-affidavits or testify in the "pre-trial investigation" [Rollo, p. 41], but

instead of doing so, petitioners filed an untitled pleading seeking the

dismissal of the charges against them [Rollo, pp. 46-68]. In a "pre-trial

investigation" report dated February 1, 1988, a prima facie case was found

against petitioners and the case was recommended for trial by a general

court martial [Rollo, pp. 76-80]. Petitioners' motion to dismiss was also

denied.

Thereafter, petitioners were served subpoenas to appear before respondent

General Court Martial No. 8 for arraignment. The first scheduled hearing for

petitioners' arraignment was reset after three (3) members of the general

court martial inhibited themselves. Petitioners, in the meantime, filed a

motion for reconsideration of the "pre-trial investigation" report. In the next

hearing, petitioners objected to their arraignment and moved for a

deferment thereof. When this was denied, petitioners' civilian counsel (their

counsel in this case) moved to be excused from the proceedings. The

general court martial granted the motion and postponed the hearing to May

19, 1988, directing petitioners to secure the services of new counsel. It was

at this point that the instant petition was filed before the Court.

In the meantime, petitioner Kapunan was allegedly summoned to the

General Headquarters of the AFP for a dialogue, but upon his arrival thereat

on September 4, 1987 he was ordered confined under "house arrest" by then

Chief of Staff Gen. Fidel Ramos. On February 19, 1988, the arrest of

petitioner Kapunan, together with three (3) others, was ordered by

respondent Chief of Staff De Villa in connection with the killing of Atty.

Rolando Olalia and Leonore Alay-ay [Rollo, p. 69]. On May 19, 1988, Gen. De

Villa ordered the release of Kapunan in connection with the Olalia case since

no charges had been filed therein, but ordered that he remain under

confinement as an accused in the case before respondent General Court

Martial No. 8 [Rollo, p. 200]. He has been so detained since then. Likewise,

petitioners Kapunan and Eslao were relieved of their duties and functions as

Assistant Chief of Staff for Operations and Assistant Commandant of Cadets

of the PMA, respectively.

After the instant petition was filed, petitioners' motion for reconsideration of

the "pre-trial investigation" report was denied by Gen. De Villa [Rollo, pp

128-129].

The issues raised in the petition are three-fold: (1) whether or not petitioners

have been denied due process of law in the investigation of the charges

against them; (2) whether or not respondent Maj. Baldonado gravely abused

his discretion in finding a prima facie case and recommending the trial of

petitioners before a court martial; and (3) whether or not the continued

confinement of petitioner Kapunan is legal.

These issues shall be discussed ad seriatim.

1. Petitioners contend that they have been denied due process primarily

because the procedure followed in the investigation of the charges against

them was not in compliance with the requirements of the Articles of War

(Commonwealth Act No. 408, as amended) and the law on preliminary

investigations (Presidential Decree No. 77, as amended by P.D. No. 911).

Under military law, the conduct of investigations is primarily governed by

Art. 71 of the Articles of War, to wit:

Art. 71 Charges; Action upon.—Charges and specifications must be signed by

a person subject to military law, and under the oath either that he has

personal knowledge of, or has investigated, the matters set forth therein and

that the same are true in fact, to the best of his knowledge and belief.

No charge will be referred to a general court-martial for trial until after a

thorough and impartial investigation thereof shall have been made. This

investigation will include inquiries as to the truth of the matter set forth in

said charges, form of charges, and what disposition of the case should be

made in the interest of justice and discipline. At such investigation full

opportunity shall be given to the accused to cross-examine witnesses against

him if they are available and to present anything he may desire in his own

behalf, either in defense or mitigation, and the investigating officer shall

examine available witnesses requested by the accused. If the charges are

forwarded after such investigation, they shall be accompanied by a

statement of the substance of the testimony taken on both sides.

xxx xxx xxx

On the other hand, P.D. No. 77, as amended by P.D. No. 911, which

respondent Maj. Baldonado applied suppletorily to the Articles of War by

requiring petitioners to file their counter-affidavits [Rollo, p. 41], provides:

Sec. 1. Notwithstanding any provision of law to the contrary and except

when an investigation has been conducted by a judge of first instance, city

or municipal judge or other officer in accordance with law and the Rules of

Court of the Philippines, no information for an offense cognizable by the

Court of First Instance shall be filed by the provincial or city fiscal or his

assistants or by a state prosecutor, without first conducting a preliminary

investigation in the following manner:

a. All complaints shall be accompanied by statements of the complainant

and his witnesses as well as other supporting documents. The statements of

the complainant and his witnesses shall be sworn to before any fiscal or

state prosecutor or before any government official authorized to administer

oath. The officer administering the oath must certify that he has personally

examined the affiants and that he is satisfied that they voluntarily executed

and understood their affidavits.

b. If on the basis of the complainant's sworn statements and documents

submitted, the investigating fiscal or state prosecutor finds no probable

cause to conduct a preliminary investigation, he shall dismiss the case. If

probable cause is established by complainant's evidence, he shall notify the

respondent by issuing a subpoena requiring him to submit his counter-

affidavit and the affidavit of his witnesses, if any, and other supporting

documents, within ten (10) days from receipt of such subpoena. If

respondent cannot be subpoenaed, or if subpoenaed he does not appear

before the investigating fiscal or state prosecutor, the preliminary

investigation shall proceed without him. To such subpoena shall be attached

a copy of the complaint, the sworn statements and other documents

submitted. Other evidence submitted shall be made available for

examination of the respondent or his counsel. The statements of the

respondent and his witnesses shall be sworn to before any fiscal or state

prosecutor or before any government official authorized to administer oath

and with the same certification as above-mentioned. The respondent shall

furnish the complainant copies of his counter-affidavits and other supporting

documents.

c. If a prima-facie case is established by the evidence, the investigating fiscal

or state prosecutor shall immediately file the corresponding information in

court. If he finds that there is no prima facie case, he shall dismiss the case

unless he believes there are matters to be clarified in which case he may

propound clarificatory questions to the parties or their witnesses affording

both parties opportunity to be present but without right to examine or cross-

examine. If the parties or their counsel so desire, they may submit questions

to the fiscal which the latter may in his discretion propound to the parties

concerned.

xxx xxx xxx

The Court finds that, contrary to the contention of petitioners, there was

substantial compliance with the requirements of law as provided in the

Articles of War and P.D. No. 77, as amended by P.D. No. 911.

The amended charge sheets, charging petitioners and their co-respondents

with mutiny and conduct unbecoming an officer [Rollo, pp. 42-45; 72-75],

were signed by Maj. Antonio Ruiz, a person subject to military law, after he

had investigated the matter through an evaluation of the pertinent records,

including the reports of respondent AFP Board of Officers [Rollo, pp. 34-36;

38-40], and was convinced of the truth of the testimonies on record. The

charge sheets were sworn to by Maj. Ruiz, the "accuser", in accordance with

and in the manner provided under Art. 71 of the Articles of War [Rollo, pp.

45, 75]. Considering that P.D. No. 77, as amended by P.D. No. 911, is only of

suppletory application, the fact that the charge sheets were not certified in

the manner provided under said decrees, i.e., that the officer administering

the oath has personally examined the affiant and that he is satisfied that

they voluntarily executed and understood his affidavit, does not invalidate

said charge sheets.

Thereafter, a "pre-trial investigation" was conducted by respondent Maj.

Baldonado, wherein, pursuant to P.D. No. 77, as amended by P.D. No. 911,

petitioners were subpoenaed and required to file their counter-affidavits

[Rollo, p. 41]. However, instead of doing so, they filed an untitled pleading

seeking the dismissal of the charges against them [Rollo, pp. 46-68]. That

petitioners were not able to confront the witnesses against them was their

own doing, for they never even asked Maj. Baldonado to subpoena said

witnesses so that they may be made to answer clarificatory questions in

accordance with P.D. No. 77, as amended by P. D. No. 911.

Further, petitioners cannot complain that they were denied the opportunity

to be heard, considering that the arguments in their pleading seeking the

dismissal of the charges were considered in Maj. Baldonado's "pre-trial

investigation" report, as can be clearly seen from the text of the report itself

[Rollo, pp. 76-80].

Anent petitioners' contention that they were denied due process when they

were not given the opportunity to be heard in the inquiry conducted by the

PMA Board of Officers, it must be stressed that such was in the nature of a

fact-finding inquiry, as distinguished from the "pre-trial investigation"

conducted by Maj. Baldonado which corresponds to the preliminary

investigation under P.D. No. 77, as amended by P.D. No. 911, where the

object is to determine the existence of a prima facie case that would warrant

the prosecution of the accused. Viewed from another angle, the

investigations conducted by the PMA Board were akin to the investigations

conducted by the police and other investigative agencies to gather facts to

support the subsequent filing of the appropriate charges against suspects.

Collaterally, petitioners argue that they were denied due process because

the investigators, Chief of Staff de Villa, who denied the motion to reconsider

the "pre-trial investigation" report, and PMA Superintendent Dayan, who

constituted the PMA Board of Officers and ordered the inquiry, were

themselves culpable for the acts of the PMA cadets and officers on the basis

of the doctrine of command responsibility. This argument must however fail

as the doctrine finds no application to the facts of the case. The acts imputed

to petitioners were allegedly in furtherance of the failed coup d'etat of

August 28, 1987, which constituted a breach of and was directed against the

chain of command of the AFP, which De Villa and Dayan formed part of. The

fallacy in petitioners' reliance on the doctrine of command responsibility

becomes apparent when their argument is pursued to its logical end. Under

their theory, even the President, as Commander-in-Chief, can ultimately be

held culpable for the unsuccessful August 28, 1987 coup d' etat.

2. The next issue raised by petitioners is the alleged insufficiency of the

evidence to establish a prima facie case to warrant their prosecution. They

argue that the factual findings of Maj. Baldonado in his "pre-trial

investigation" report are insufficient to support a prima facie case for mutiny

and conduct unbecoming an officer under Arts. 67 and 96 of the Articles of

War and, therefore, he gravely abused his discretion, amounting to lack or

excess of jurisdiction, in finding a prima facie case and recommending the

trial of petitioners by court martial.

The Court finds the contention unmeritorious. No grave abuse of discretion

amounting to lack or excess of jurisdiction can be attributed to Maj.

Baldonado for finding a prima facie case, for such is supported by the

evidence on record. Thus, the "pre-trial investigation" report states:

xxx xxx xxx

5. On or about 2400H 28 Aug 87, CAPT ALFREDO BAMBICO JR. PA a member

of the Tactics Group briefed PMA Cadets at the Officer's Lounge about the

camp defense plan and the movements of cadets from PMA to Baguio City.

Present at the briefing were respondents LT. COL. EDUARDO KAPUNAN and

LT. COL. NELSON ESLAO and about thirty (30) junior officers. On or about

0200H 29 Aug 87, CAPT CELSO DEL ROSARIO CO Transportation

Maintenance Company, PMA received a call from LT. COL. KAPUNAN J-3, PMA

to dispatch two (2) 6 x 6 trucks and one (1) bus to proceed near the vicinity

of the J-3 Office. On or about 0200H - 0300H 29 Aug 87 said vehicles moved

out with cadets on board, and led by respondent l LT. CATAPANG who was on

board a jeep. CADET (1 C) JOHN BULALACAO stated that LT. BALTAZAR was

with them in the bus. This movement of cadets and officers was not

sanctioned by the PMA Superintendent. According to SGT. MARBI RIMANDO,

driver of one of the 6 x 6 trucks, the cadets were in fatigue uniform, wore

black bonnets, had blackened their faces, and were armed.

6. SGT. RICARDO LAGMAY, Truck Driver, Motor Pool, TMC PMA averred that

he was the driver of the other 6 x 6 truck with about forty (40) cadets on

board, which moved out on that occasion. The column was, however,

stopped at the checkpoint by an MP officer and they halted and parked

thereat for about thirty (30) minutes, after which they returned to the mess

hall. CADET (1C) BULALACAO stated that the cadets were met at the mess

hall by LT. COL. KAPUNAN and were informed by the latter that the cause or

coup was already finished. CADET (1C) NEMESIO GACAL stated that he heard

LT. COL. KAPUNAN say, that "we are a hell of a corps". [Rollo, pp. 77].

Maj. Baldonado's findings are also supported by those of the AFP Board of

Officers, which considered the testimonies of witnesses taken by the PMA

Board of Officers pursuant to the order of PMA Superintendent Dayan [see

Rollo, pp. 38-40].

3. Finally, petitioner Kapunan questions the legality of his confinement under

"house arrest" and seeks the issuance of a writ of habeas corpus to procure

his release.

The Court finds that petitioner Kapunan's continued confinement is not

tainted with illegality.

Among the grounds for the disallowance of the writ of habeas corpus is that

the applicant has been charged with or convicted of in offense [Sec. 4, Rule

102, Rules of Court]. In the instant case, petitioner Kapunan had been

charged with mutiny, a serious offense punishable by death or such other

punishment as a court-martial may direct [Art. 67, Articles of War], for which

he may be arrested or confined under Art. 70 of the Articles of War, to wit:

Art. 70. Arrest or confinement.—Any person subject to military law charged

with crime or with a serious offense under these Articles shall be placed in

confinement or in arrest, as circumstances may require; but when charged

with a minor offense only, such person shall not ordinarily be placed in

confinement. Any person placed in arrest under the provisions of this article

shall thereby be restricted to his barracks, quarters, or tent, unless such

limits shall be enlarged by proper authority. ...

Thus, at the time petitioner Kapunan applied to this Court for the issuance of

the writ of habeas corpus, there was legal cause for his confinement. On this

score, the writ prayed for will not issue.

On the matter of the restriction imposed on petitioner Kapunan as conditions

for his "house arrest", particularly that he may not issue any press

statements or give any press conference during the period of his detention

at his quarters in Camp Aguinaldo, Quezon City [Rollo, p. 70], the Court is of

the view that such is justified by the requirements of military discipline. It

cannot be gainsaid that certain liberties of persons in the military service,

including the freedom of speech, may be circumscribed by rules of military

discipline. Thus, to a certain degree, individual rights may be curtailed,

because the effectiveness of the military in fulfilling its duties under the law

depends to a large extent on the maintenance of discipline within its ranks.

Hence, lawful orders must be followed without question and rules must be

faithfully complied with, irrespective of a soldier's personal views on the

matter. It is from this viewpoint that the restrictions imposed on petitioner

Kapunan, an officer in the AFP, have to be considered.

ACCORDINGLY, the Court Resolved to DISMISS the Petition. The temporary

restraining order issued by the Court on May 19, 1988 is hereby LIFTED.

SO ORDERED.

Republic of the Philippines

SUPREME COURT

Manila

EN BANC

 

Lagunzad vs Gonzales 6/22/11 9:55 AM

Republic of the Philippines

SUPREME COURT

Manila

FIRST DIVISION

G.R. No. L-32066 August 6, 1979

MANUEL LAGUNZAD, petitioner,

vs.

MARIA SOTO VDA. DE GONZALES and THE COURT OF APPEALS, respondents.

Diosdado P. Peralta for petitioner.

Manuel S. Tonogbanua for private respondent.

MELENCIO-HERRERA, J.:

Before us is a Petition for Review by certiorari of the Decision of the Court of

Appeals in CA-G.R. No. 34703, promulgated on January 13, 1970, affirming

the Decision of the Court of First Instance of Negros Occidental, dated June

30, 1964, in Civil Case No. 6414 entitled "Maria Soto Vda. de Gonzales vs.

Manuel Lagunzad," for a Sum of Money and Attachment.

The present controversy stems from a "Licensing Agreement" entered into

by and between petitioner Manuel M. Lagunzad and private respondent

Maria Soto Vda. de Gonzales on October 5, 1961, which contract petitioner

claims to be null and void for having been entered into by him under duress,

intimidation and undue influence.

The antecedental facts follow: Sometime in August, 1961, petitioner Manuel

Lagunzad, a newspaperman, began the production of a movie entitled "The

Moises Padilla Story" under the name of his own business outfit, the "MML

Productions." It was based mainly on the copyrighted but unpublished book

of Atty. Ernesto Rodriguez, Jr., entitled "The Long Dark Night in Negros"

subtitled "The Moises Padilla Story," 1 the rights to which petitioner had

purchased from Atty. Rodriguez in the amount of P2,000.00. 2

The book narrates the events which culminated in the murder of Moises

Padilla sometime between November 11 and November 17, 1951. Padilla

was then a mayoralty candidate of the Nacionalista Party (then the minority

party) for the Municipality of Magallon, Negros Occidental, during the

November, 1951 elections. Governor Rafael Lacson, a member of the Liberal

Party then in power and his men were tried and convicted for that murder in

People vs. Lacson, et al. 3 In the book, Moises Padilla is portrayed as "a

martyr in contemporary political history."

Although the emphasis of the movie was on the public life of Moises Padilla,

there were portions which dealt with his private and family life including the

portrayal in some scenes, of his mother, Maria Soto Vda. de Gonzales,

private respondent herein, and of one "Auring" as his girl friend. 4

The movie was scheduled for a premiere showing on October 16, 1961, or at

the very latest, before the November, 1961 elections.

On October 3, 1961, petitioner received a telephone call from one Mrs. Nelly

Amante, half-sister of Moises Padilla, objecting to the filming of the movie

and the "exploitation" of his life. Shown the early "rushes" of the picture,

Mrs. Amante and her sister, Mrs. Gavieres, objected to many portions thereof

notwithstanding petitioner's explanation that the movie had been supervised

by Ernesto Rodriguez, Jr., based on his book "The Long Dark Night in

Negros." On October 5, 1961, Mrs. Amante, for and in behalf of her mother,

private respondent, demanded in writing for certain changes, corrections and

deletions in the movie. 5 Petitioner contends that he acceded to the

demands because he had already invested heavily in the picture to the

extent of mortgaging his properties, 6 in addition to the fact that he had to

meet the scheduled target date of the premiere showing.

On the same date, October 5, 1961, after some bargaining as to the amount

to be paid, which was P50,000.00 at first, then reduced to P20,000.00, 7

petitioner and private respondent, represented by her daughters and Atty.

Ernesto Rodriguez, at the law office of Jalandoni and Jamir, executed a

"Licensing Agreement" reading as follows:

LICENSING AGREEMENT

KNOW ALL MEN BY THESE PRESENTS:

This Agreement, made and executed at the City of Manila, Philippines, this

5th day of October, 1961, by and between:

MANUEL M. LAGUNZAD, of legal age, married, presently engaged in the

business of producing motion pictures under the style of "MML Productions"

with residence at 76 Central Boulevard, Quezon City and with offices at 301

Cu Unjieng Bldg., Escolta, Manila and hereinafter referred to as LICENSEE,

— and —

MARIA SOTO VDA. DE GONZALES, of legal age, widow, resident of the

Municipality of Moises Padilla, Province of Negros Occidental, represented in

this Act by her Attorneys-in-fact Atty. Ernesto Rodriguez, Jr. of legal age and

resident of 393F-Buencamino St., San Miguel, Manila; Maria Nelly G. Amazite,

of legal age and resident of 121 South 13, Quezon City; and Dolores G,

Gavieres, of legal age, and resident of 511 San Rafael Street, Quiapo, Manila,

also duly authorized and hereinafter referred to as LICENSOR,

WITNESSETH:

That, the LICENSEE is currently producing a motion picture entitled "The

Moises Padilla Story" (hereinafter referred to as the PICTURE, for short)

based on certain episodes in the life of Moises Padilla, now deceased:

That the LICENSOR is the legitimate mother and only surviving compulsory

heir of Moises Padilla, the latter not having married during his lifetime and

having died without any descendants, legitimate or illegitimate;

That, in the PICTURE and in all incidents thereof, such as scenarios,

advertisements, etc., the LICENSEE has, without the prior consent and

authority of LICENSOR, exploited the life story of Moises Padilla for pecuniary

gain and other profit motives, and has, furthermore encroached upon the

privacy of Moises Padilla's immediate family, and has in fact, included in the

PICTURE'S cast, persons portraying some of MOISES PADILLA's kin, including

LICENSOR herself;

That, for and in consideration of the foregoing premises and the other

covenants and conditions hereunder stated, the LICENSOR hereby grants

authority and permission to LICENSEE to exploit, use, and develop the life

story of Moises Padilla for purposes of producing the PICTURE, and in

connection with matters incidental to said production, such as advertising

and the like, as well as authority and permission for the use of LICENSOR's

name in the PICTURE and have herself portrayed therein, the authority and

permission hereby granted, to retroact to the date when LICENSEE first

committed any of the acts herein authorized.

THE CONDITIONS AND OTHER COVENANTS OF THIS AGREEMENT ARE AS

FOLLOWS:

1. For and in consideration of the authority and permission hereby granted

by LICENSOR to LICENSEE, LICENSEE shall pay LICENSOR, through Atty. Lope

E. Adriano at the Pelaez and Jalandoni Law Office, 6th Floor, Magsaysay

Bldg., San Luis, Ermita, Manila, the following:

a) The sum of TWENTY THOUSAND PESOS (P20,000.00), Philippine Currency,

payable without need of further demand, as follows: P5,000.00 on or before

Oct. 10, 1961; P10,000.00 on or before Oct. 31, 1961; and P5,000.00 on or

before November 30, 1961. In default of the payment of any of these

amounts as they fall due, the others become immediately due and

demandable.

b) A royalty in such amount corresponding to TWO AND A HALF PER CENTUM

(2-½ %) of all gross income or receipts derived by, and/or for and in behalf

of, LICENSEE as rentals and or percentage of box office receipts from

exhibitors and others for the right to exploit, use, distribute and/or exhibit

the picture anywhere here in the Philippines or abroad.

2) The LICENSEE agrees to keep complete, true and accurate books of

accounts, contracts and vouchers relating to the exploitation, distribution

and exhibition of the PICTURE, the bookings thereof and the rentals and

gross receipts therefrom, and to give to LICENSOR and/or her accredited

representatives, full access at all reasonable times to all of the said books,

accounts, records, vouchers and all other papers.

3) The LICENSEE shall furnish LICENSOR monthly statements in duplicate,

showing in detail the gross receipts accruing from the picture, which monthly

statements shall be delivered to the LICENSOR with reasonable promptness,

and upon verification and approval of said statements by LICENSOR, the

LICENSEE shall pay the corresponding royalties due to the LICENSOR.

4) The authority and permission herein granted is subject to the condition

that LICENSEE shall change, delete, and/or correct such portions in the

PICTURE as the LICENSOR may require, in writing before final printing of the

PICTURE, and shall, furthermore, not be understood as a consent to anything

in the picture that is, or tends to be, derogatory to the deceased MOISES

PADILLA or to LICENSOR.

5) The LICENSOR shall not in any way be liable on any claim from third

persons as a result of, or arising from, the manner by which the PICTURE is

put together, nor on any claim arising from the production, distribution and

exhibition of the PICTURE, and in the event of any such claim being asserted

against LICENSOR, the LICENSEE undertakes to hold LICENSOR harmless

thereon.

6) This agreement shall be binding upon the parties hereto, their

representatives, administrators, successors and assigns.

IN WITNESS WHEREOF, the parties have hereunto set their hands on the date

and at the place first above stated.

MARIA SOTO VDA. DE GONZALES MANUEL M. LAGUNZAD

Licensor Licensee

By:

(Sgd.) ERNESTO R. RODRIGUEZ, Jr.

(Sgd.) MARIA NELLY G. AMANTE

(Sgd.) DOLORES G. GAVIERES

Attorneys-in-fact

SIGNED IN THE PRESENCE OF:

LOPE E. ADRIANO ILLEGIBLE

ACKNOWLEDGMENT

Petitioner takes the position that he was pressured into signing the

Agreement because of private respondent's demand, through Mrs. Amante,

for payment for the "exploitation" of the life story of Moises Padilla,

otherwise, she would "call a press conference declaring the whole picture as

a fake, fraud and a hoax and would denounce the whole thing in the press,

radio, television and that they were going to Court to stop the picture." 8

On October 10, 1961, petitioner paid private respondent the amount of

P5,000.00 but contends that he did so not pursuant to their Agreement but

just to placate private respondent. 9

On October 14, 1961, the filming of the movie was completed. On October

16, 1961, a premiere showing was held at the Hollywood Theatre, Manila,

with the Moises Padilla Society as its sponsor. 10 Subsequently, the movie

was shown in different theaters all over the country.

Because petitioner refused to pay any additional amounts pursuant to the

Agreement, on December 22, 1961, private respondent instituted the

present suit against him praying for judgment in her favor ordering petitioner

1) to pay her the amount of P15,000.00, with legal interest from the filing of

the Complaint; 2) to render an accounting of the proceeds from the picture

and to pay the corresponding 2-1/2% royalty therefrom; 3) to pay attorney's

fees equivalent to 20% of the amounts claimed; and 4) to pay the costs.

Traversing the Complaint, petitioner contended in his Answer that the

episodes in the life of Moises Padilla depicted in the movie were matters of

public knowledge and occurred at or about the same time that the deceased

became and was a public figure; that private respondent has no property

right over those incidents; that the Licensing Agreement was without valid

cause or consideration and that he signed the same only because private

respondent threatened him with unfounded and harassing action which

would have delayed production; and that he paid private respondent the

amount of P5,000.00 in October, 1961, only because of the coercion and

threat employed upon him. By way of counterclaim, petitioner demanded

that the Licensing Agreement be declared null and void for being without any

valid cause; that private respondent be ordered to return to him the amount

of P5,000.00; and that he be paid P50,000.00 by way of moral damages, and

P7,500.00 as attorney's fees.

Private respondent duly filed her Answer to Counterclaim alleging that the

transaction between her and petitioner was entered into freely and

voluntarily.

On June 30, 1964, the trial Court rendered a Decision, and decreed in its

dispositive portion:

WHEREFORE, judgment is hereby rendered ordering the defendant Manuel

Lagunzad to pay the plaintiff the sum of P15,000.00 with interest at the rate

of 6% per annum from December 22, 1961 up to its complete payment; to

order the defendant to render an accounting of the gross income or proceeds

derived from the exhibition, use and/or rental of the motion picture of "The

Moises Padilla Story" and to pay the plaintiff 2- 1/2% of said gross income; to

pay the plaintiff the amount equivalent to 20% of the amount due the

plaintiff under the first cause of action as attorney's fees; and to pay the

costs.

On appeal to the Court of Appeals, the latter Court affirmed the judgment.

Reconsideration having been denied by the Court, petitioner filed the instant

Petition for Review on Certiorari.

Initially, or on June 16, 1970, this Court denied the Petition for lack of merit,

but resolved subsequently to give it due course after petitioner moved for

reconsideration on the additional argument that the movie production was in

exercise of the constitutional right of freedom of expression, and that the

Licensing cement is a form of restraint on the freedom of speech and of the

press.

In his Brief, petitioner assigns the following errors to the appellate Court:

I. THE COURT OF APPEALS ERRED IN EXERCISING JURISDICTION IN THE CASE

BECAUSE THE JUDGMENT APPEALED FROM WAS INTERLOCUTORY IN NATURE

AND CHARACTER;

II. THE COURT OF APPEALS ERRED IN ITS FAILURE TO MAKE COMPLETE

FINDINGS OF FACTS ON ALL ISSUES BEFORE IT;

III. THE COURT OF APPEALS ERRED IN NOT DECLARING THE LICENSING

AGREEMENT, EXHIBIT "A", NULL AND VOID FOR LACK OF, OR FOR HAVING AN

ILLEGAL CAUSE OR CONSIDERATION OF CONTRACT, PETITIONER HAVING

PREVIOUSLY OBTAINED THE AUTHORITY AND/OR PERMISSION PURPOSELY

GRANTED TO HIM BY RESPONDENT UNDER SAID LICENSING AGREEMENT;

IV. THE COURT OF APPEALS ERRED IN NOT FINDING THAT THE LICENSING

AGREEMENT, EXHIBIT "A", IS NULL AND VOID; RESPONDENT NOT HAVING

HAD ANY PROPERTY NIGHTS OVER THE INCIDENTS IN THE LIFE OF MOISES

PADILLA WHO WAS A PUBLIC FIGURE.

V. THE COURT OF APPEALS ERRED IN NOT FINDING THAT THE LICENSING

AGREEMENT, EXHIBIT "A", WAS NULL AND VOID, PETITIONER'S CONSENT

HAVING BEEN PROCURED BY MEANS OF DURESS, INTIMIDATION AND UNDUE

INFLUENCE;

VI. THE COURT OF APPEALS, IN UPHOLDING THE RIGHT TO PRIVACY OF

RESPONDENT AS DEFINED IN ART. 26 OF THE NEW CIVIL CODE OVER THE

RIGHT OF PETITIONER TO FILM THE PUBLIC LIFE OF A PUBLIC FIGURE,

INFRINGED UPON THE CONSTITUTIONAL RIGHT OF PETITIONER TO FREE

SPEECH AND FREE PRESS.

We find the assigned errors bereft of merit.

Petitioner's contention that because an accounting had been ordered,

respondent Court of Appeals did not have jurisdiction over the case as the

Decision of the lower Court was not yet final and appealable, is untenable.

The doctrine enunciated in Fuentebella vs. Carrascoso 11 relied upon by

petitioner, which held that whether or not the action for accounting is the

principal action or is merely incidental to another, the judgment requiring

such accounting cannot be final, has been abandoned in Miranda vs. Court of

Appeals 12 which ruled:

For the guidance of bench and bar, the Court declares as abandoned the

doctrine of Fuentebella vs. Carrascoso and adopts the opposite rule that

judgments for recovery with accounting are final and appealable (without

need of awaiting the accounting) and would become final and executory if

not appealed within the reglementary period.

In other words, where there is complete adjudication and determination of

the rights and obligations of the parties, as in the instant case, an order for

accounting in that judgment does not affect its final character, said

accounting being merely incidental to the judgment.

Petitioner's contention that respondent Court failed to make complete

findings of fact on all issues raised before it is without basis. A careful study

of the Decision reveals that respondent Court has substantially and

sufficiently complied with the injunction that a decision must state clearly

and distinctly the facts and the law on which it is based. The rule remains

that the ultimate test as to the sufficiency of a Court's findings of fact is

"whether they are comprehensive enough and pertinent to the issues raised

to provide a basis for decision." 13 The judgment sought to be reviewed

sufficiently complies with this requirement.

Neither do we agree with petitioner's submission that the Licensing

Agreement is null and void for lack of, or for having an illegal cause or

consideration. While it is true that petitioner had purchased the rights to the

book entitled "The Moises Padilla Story," that did not dispense with the need

for prior consent and authority from the deceased heirs to portray publicly

episodes in said deceased's life and in that of his mother and the members

of his family. As held in Schuyler v. Curtis, 14 "a privilege may be given the

surviving relatives of a deceased person to protect his memory, but the

privilege exists for the benefit of the living, to protect their feelings and to

prevent a violation of their own rights in the character and memory of the

deceased."

Petitioner's averment that private respondent did not have any property

right over the life of Moises Padilla since the latter was a public figure, is

neither well taken. Being a public figure ipso facto does not automatically

destroy in toto a person's right to privacy. The right to invade a person's

privacy to disseminate public information does not extend to a fictional or

novelized representation of a person, no matter how public a figure he or she

may be. 15 In the case at bar, while it is true that petitioner exerted efforts

to present a true-to-life story of Moises Padilla, petitioner admits that he

included a little romance in the film because without it, it would be a drab

story of torture and brutality. 16

We also find it difficult to sustain petitioner's posture that his consent to the

Licensing Agreement was procured thru duress, intimidation and undue

influence exerted on him by private respondent and her daughters at a time

when he had exhausted his financial resources, the premiere showing of the

picture was imminent, and "time was of the essence." As held in Martinez vs.

Hongkong & Shanghai Bank, 17 it is necessary to distinguish between real

duress and the motive which is present when one gives his consent

reluctantly. A contract is valid even though one of the parties entered into it

against his own wish and desires, or even against his better judgment. In

legal effect, there is no difference between a contract wherein one of the

contracting parties exchanges one condition for another because he looks for

greater profit or gain by reason of such change, and an agreement wherein

one of the contracting parties agrees to accept the lesser of two

disadvantages. In either case, he makes a choice free and untramelled and

must accordingly abide by it. The Licensing Agreement has the force of law

between the contracting parties and since its provisions are not contrary to

law, morals, good customs, public order or public policy (Art. 1306, Civil

Code), petitioner Should comply with it in good faith.

Lastly, neither do we find merit in petitioner's contention that the Licensing

Agreement infringes on the constitutional right of freedom of speech and of

the press, in that, as a citizen and as a newspaperman, he had the right to

express his thoughts in film on the public life of Moises Padilla without prior

restraint. The right of freedom of expression, indeed, occupies a preferred

position in the "hierarchy of civil liberties." 18 It is not, however, without

limitations. As held in Gonzales vs. Commission on Elections, 27 SCRA 835,

858 (1969):

From the language of the specific constitutional provision, it would appear

that the right is not susceptible of any limitation. No law may be passed

abridging the freedom of speech and of the press. The realities of life in a

complex society preclude however, a literal interpretation. Freedom of

expression is not an absolute. It would be too much to insist that at all times

and under all circumstances it should remain unfettered and unrestrained.

There are other societal values that press for recognition.

The prevailing doctrine is that the clear and present danger rule is such a

limitation. Another criterion for permissible limitation on freedom of speech

and of the press, which includes such vehicles of the mass media as radio,

television and the movies, is the "balancing-of-interests test." 19 The

principle i requires a court to take conscious and detailed consideration of

the interplay of interests observable in a given situation or type of situation."

20

In the case at bar, the interests observable are the right to privacy asserted

by respondent and the right of -freedom of expression invoked by petitioner.

Taking into account the interplay of those interests, we hold that under the

particular circumstances presented, and considering the obligations assumed

in the Licensing Agreement entered into by petitioner, the validity of such

agreement will have to be upheld particularly because the limits of freedom

of expression are reached when expression touches upon matters of

essentially private concern.

WHEREFORE, the Petition for Review is denied and the judgment appealed

from hereby affirmed. Costs against petitioner.

SO ORDERED.

Blo vs Comelec 6/22/11 9:55 AM

G.R. No. 103956 March 31, 1992

BLO UMPAR ADIONG, petitioner,

vs.

COMMISSION ON ELECTIONS, respondent.

 

GUTIERREZ, JR., J.:

The specific issue in this petition is whether or not the Commission on

Elections (COMELEC) may prohibit the posting of decals and stickers on

"mobile" places, public or private, and limit their location or publication to

the authorized posting areas that it fixes.

On January 13, 1992, the COMELEC promulgated Resolution No. 2347

pursuant to its powers granted by the Constitution, the Omnibus Election

Code, Republic Acts Nos. 6646 and 7166 and other election laws.

Section 15(a) of the resolution provides:

Sec. 15. Lawful Election Propaganda. — The following are lawful election

propaganda:

(a) Pamphlets, leaflets, cards, decals, stickers, handwritten or printed letters,

or other written or printed materials not more than eight and one-half (8-1/2)

inches in width and fourteen (14) inches in length. Provided, That decals and

stickers may be posted only in any of the authorized posting areas provided

in paragraph (f) of Section 21 hereof.

Section 21 (f) of the same resolution provides:

Sec. 21(f). Prohibited forms of election propaganda. —

It is unlawful:

xxx xxx xxx

(f) To draw, paint, inscribe, post, display or publicly exhibit any election

propaganda in any place, whether public or private, mobile or stationary,

except in the COMELEC common posted areas and/or billboards, at the

campaign headquarters of the candidate or political party, organization or

coalition, or at the candidate's own residential house or one of his residential

houses, if he has more than one: Provided, that such posters or election

propaganda shall not exceed two (2) feet by three (3) feet in size. (Emphasis

supplied)

xxx xxx xxx

The statutory provisions sought to be enforced by COMELEC are Section 82

of the Omnibus Election Code on lawful election propaganda which provides:

Lawful election propaganda. — Lawful election propaganda shall include:

(a) Pamphlets, leaflets, cards, decals, stickers or other written or printed

materials of a size not more than eight and one-half inches in width and

fourteen inches in length;

(b) Handwritten or printed letters urging voters to vote for or against any

particular candidate;

(c) Cloth, paper or cardboard posters, whether framed or posted, with an

area not exceeding two feet by three feet, except that, at the site and on the

occasion of a public meeting or rally, or in announcing the holding of said

meeting or rally, streamers not exceeding three feet by eight feet in size,

shall be allowed: Provided, That said streamers may not be displayed except

one week before the date of the meeting or rally and that it shall be removed

within seventy-two hours after said meeting or rally; or

(d) All other forms of election propaganda not prohibited by this Code as the

Commission may authorize after due notice to all interested parties and

hearing where all the interested parties were given an equal opportunity to

be heard: Provided, That the Commission's authorization shall be published

in two newspapers of general circulation throughout the nation for at least

twice within one week after the authorization has been granted. (Section 37,

1978 EC)

and Section 11(a) of Republic Act No. 6646 which provides:

Prohibited Forms of Election Propaganda. — In addition to the forms of

election propaganda prohibited under Section 85 of Batas Pambansa Blg.

881, it shall be unlawful: (a) to draw, paint, inscribe, write, post, display or

publicly exhibit any election propaganda in any place, whether private, or

public, except in the common poster areas and/or billboards provided in the

immediately preceding section, at the candidate's own residence, or at the

campaign headquarters of the candidate or political party: Provided, That

such posters or election propaganda shall in no case exceed two (2) feet by

three (3) feet in area: Provided, Further, That at the site of and on the

occasion of a public meeting or rally, streamers, not more than two (2) and

not exceeding three (3) feet by eight (8) feet each may be displayed five (5)

days before the date of the meeting or rally, and shall be removed within

twenty-four (24) hours after said meeting or rally; . . . (Emphasis supplied)

Petitioner Blo Umpar Adiong, a senatorial candidate in the May 11, 1992

elections now assails the COMELEC's Resolution insofar as it prohibits the

posting of decals and stickers in "mobile" places like cars and other moving

vehicles. According to him such prohibition is violative of Section 82 of the

Omnibus Election Code and Section 11(a) of Republic Act No. 6646. In

addition, the petitioner believes that with the ban on radio, television and

print political advertisements, he, being a neophyte in the field of politics

stands to suffer grave and irreparable injury with this prohibition. The

posting of decals and stickers on cars and other moving vehicles would be

his last medium to inform the electorate that he is a senatorial candidate in

the May 11, 1992 elections. Finally, the petitioner states that as of February

22, 1992 (the date of the petition) he has not received any notice from any

of the Election Registrars in the entire country as to the location of the

supposed "Comelec Poster Areas."

The petition is impressed with merit. The COMELEC's prohibition on posting

of decals and stickers on "mobile" places whether public or private except in

designated areas provided for by the COMELEC itself is null and void on

constitutional grounds.

First — the prohibition unduly infringes on the citizen's fundamental right of

free speech enshrined in the Constitution (Sec. 4, Article III). There is no

public interest substantial enough to warrant the kind of restriction involved

in this case.

There are various concepts surrounding the freedom of speech clause which

we have adopted as part and parcel of our own Bill of Rights provision on this

basic freedom.

All of the protections expressed in the Bill of Rights are important but we

have accorded to free speech the status of a preferred freedom. (Thomas v.

Collins, 323 US 516, 89 L. Ed. 430 [1945]; Mutuc v. Commission on Elections,

36 SCRA 228 [1970])

This qualitative significance of freedom of expression arises from the fact

that it is the matrix, the indispensable condition of nearly every other

freedom. (Palko v. Connecticut, 302 U.S. 319 [1937]; Salonga v. Paño, 134

SCRA 438 [1985]) It is difficult to imagine how the other provisions of the Bill

of Rights and the right to free elections may be guaranteed if the freedom to

speak and to convince or persuade is denied and taken away.

We have adopted the principle that debate on public issues should be

uninhibited, robust, and wide open and that it may well include vehement,

caustic and sometimes unpleasantly sharp attacks on government and public

officials. (New York Times Co. v. Sullivan, 376 U.S. 254, 11 L. Ed. 686 [1964];

cited in the concurring opinion of then Chief Justice Enrique Fernando in

Babst v. National Intelligence Board, 132 SCRA 316 [1984]) Too many

restrictions will deny to people the robust, uninhibited, and wide open

debate, the generating of interest essential if our elections will truly be free,

clean and honest.

We have also ruled that the preferred freedom of expression calls all the

more for the utmost respect when what may be curtailed is the

dissemination of information to make more meaningful the equally vital right

of suffrage. (Mutuc v. Commission on Elections, supra)

The determination of the limits of the Government's power to regulate the

exercise by a citizen of his basic freedoms in order to promote fundamental

public interests or policy objectives is always a difficult and delicate task. The

so-called balancing of interests — individual freedom on one hand and

substantial public interests on the other — is made even more difficult in

election campaign cases because the Constitution also gives specific

authority to the Commission on Elections to supervise the conduct of free,

honest, and orderly elections.

We recognize the fact that under the Constitution, the COMELEC during the

election period is granted regulatory powers vis-a-vis the conduct and

manner of elections, to wit:

Sec. 4. The Commission may, during the election period supervise or

regulate the enjoyment or utilization of all franchises or permits for the

operation of transportation and other public utilities, media of

communication or information, all grants special privileges, or concessions

granted by the Government or any subdivision, agency, or instrumentality

thereof, including any government-owned or controlled corporation or its

subsidiary. Such supervision or regulation shall aim to ensure equal

opportunity, time, and space, and the right to reply, including reasonable

equal rates therefore, for public information campaigns and forms among

candidates in connection with the object of holding free, orderly, honest,

peaceful and credible elections. (Article IX(c) section 4)

The variety of opinions expressed by the members of this Court in the recent

case of National Press Club v. Commission on Elections (G.R. No. 102653,

March 5, 1991) and its companion cases underscores how difficult it is to

draw a dividing line between permissible regulation of election campaign

activities and indefensible repression committed in the name of free and

honest elections. In the National Press Club, case, the Court had occasion to

reiterate the preferred status of freedom of expression even as it validated

COMELEC regulation of campaigns through political advertisements. The

gray area is rather wide and we have to go on a case to case basis.

There is another problem involved. Considering that the period of legitimate

campaign activity is fairly limited and, in the opinion of some, too short, it

becomes obvious that unduly restrictive regulations may prove unfair to

affected parties and the electorate.

For persons who have to resort to judicial action to strike down requirements

which they deem inequitable or oppressive, a court case may prove to be a

hollow remedy. The judicial process, by its very nature, requires time for

rebuttal, analysis and reflection. We cannot act instantly on knee-jerk

impulse. By the time we revoke an unallowably restrictive regulation or

ruling, time which is of the essence to a candidate may have lapsed and

irredeemable opportunities may have been lost.

When faced with border line situations where freedom to speak by a

candidate or party and freedom to know on the part of the electorate are

invoked against actions intended for maintaining clean and free elections,

the police, local officials and COMELEC, should lean in favor of freedom. For

in the ultimate analysis, the freedom of the citizen and the State's power to

regulate are not antagonistic. There can be no free and honest elections if in

the efforts to maintain them, the freedom to speak and the right to know are

unduly curtailed.

There were a variety of opinions expressed in the National Press Club v.

Commission on Elections (supra) case but all of us were unanimous that

regulation of election activity has its limits. We examine the limits of

regulation and not the limits of free speech. The carefully worded opinion of

the Court, through Mr. Justice Feliciano, shows that regulation of election

campaign activity may not pass the test of validity if it is too general in its

terms or not limited in time and scope in its application, if it restricts one's

expression of belief in a candidate or one's opinion of his or her

qualifications, if it cuts off the flow of media reporting, and if the regulatory

measure bears no clear and reasonable nexus with the constitutionally

sanctioned objective.

Even as the Court sustained the regulation of political advertisements, with

some rather strong dissents, in National Press Club, we find the regulation in

the present case of a different category. The promotion of a substantial

Government interest is not clearly shown.

A government regulation is sufficiently justified if it is within the

constitutional power of the Government, if it furthers an important or

substantial governmental interest; if the governmental interest is unrelated

to the suppression of free expression; and if the incidental restriction on

alleged First Amendment freedoms is no greater than is essential to the

furtherance of that interest. (Id., at 377, 20 L Ed 2d 672, 88 S Ct 1673. (City

Council v. Taxpayers For Vincent, 466 US 789, 80 L Ed 2d 772, 104 S Ct 2118

[1984])

The posting of decals and stickers in mobile places like cars and other

moving vehicles does not endanger any substantial government interest.

There is no clear public interest threatened by such activity so as to justify

the curtailment of the cherished citizen's right of free speech and expression.

Under the clear and present danger rule not only must the danger be

patently clear and pressingly present but the evil sought to be avoided must

be so substantive as to justify a clamp over one's mouth or a writing

instrument to be stilled:

The case confronts us again with the duty our system places on the Court to

say where the individual's freedom ends and the State's power begins.

Choice on that border, now as always delicate, is perhaps more so where the

usual presumption supporting legislation is balanced by the preferred place

given in our scheme to the great, the indispensable democratic freedom

secured by the first Amendment . . . That priority gives these liberties a

sanctity and a sanction not permitting dubious intrusions and it is the

character of the right, not of the limitation, which determines what standard

governs the choice . . .

For these reasons any attempt to restrict those liberties must be justified by

clear public interest, threatened not doubtfully or remotely, but by clear and

present danger. The rational connection between the remedy provided and

the evil to be curbed, which in other context might support legislation

against attack on due process grounds, will not suffice. These rights rest on

firmer foundation. Accordingly, whatever occasion would restrain orderly

discussion and persuasion, at appropriate time and place, must have clear

support in public danger, actual or impending. Only the greatest abuses,

endangering permanent interests, give occasion for permissible limitation.

(Thomas V. Collins, 323 US 516 [1945]). (Emphasis supplied)

Significantly, the freedom of expression curtailed by the questioned

prohibition is not so much that of the candidate or the political party. The

regulation strikes at the freedom of an individual to express his preference

and, by displaying it on his car, to convince others to agree with him. A

sticker may be furnished by a candidate but once the car owner agrees to

have it placed on his private vehicle, the expression becomes a statement by

the owner, primarily his own and not of anybody else. If, in the National Press

Club case, the Court was careful to rule out restrictions on reporting by

newspapers or radio and television stations and commentators or columnists

as long as these are not correctly paid-for advertisements or purchased

opinions with less reason can we sanction the prohibition against a sincere

manifestation of support and a proclamation of belief by an individual person

who pastes a sticker or decal on his private property.

Second — the questioned prohibition premised on the statute and as

couched in the resolution is void for overbreadth.

A statute is considered void for overbreadth when "it offends the

constitutional principle that a governmental purpose to control or prevent

activities constitutionally subject to state regulations may not be achieved by

means which sweep unnecessarily broadly and thereby invade the area of

protected freedoms." (Zwickler v. Koota, 19 L ed 2d 444 [1967]).

In a series of decisions this Court has held that, even though the

governmental purpose be legitimate and substantial, that purpose cannot be

pursued by means that broadly stifle fundamental personal liberties when

the end can be more narrowly achieved. The breadth of legislative

abridgment must be viewed in the light of less drastic means for achieving

the same basic purpose.

In Lovell v. Griffin, 303 US 444, 82 L ed 949, 58 S Ct 666, the Court

invalidated an ordinance prohibiting all distribution of literature at any time

or place in Griffin, Georgia, without a license, pointing out that so broad an

interference was unnecessary to accomplish legitimate municipal aims. In

Schneider v. Irvington, 308 US 147, 84 L ed 155, 60 S Ct. 146, the Court

dealt with ordinances of four different municipalities which either banned or

imposed prior restraints upon the distribution of handbills. In holding the

ordinances invalid, the court noted that where legislative abridgment of

fundamental personal rights and liberties is asserted, "the courts should be

astute to examine the effect of the challenged legislation. Mere legislative

preferences or beliefs respecting matters of public convenience may well

support regulation directed at other personal activities, but be insufficient to

justify such as diminishes the exercise of rights so vital to the maintenance

of democratic institutions," 308 US, at 161. In Cantwell v Connecticut, 310

US 296, 84 L ed 1213, 60 S Ct. 900, 128 ALR 1352, the Court said that

"[c]onduct remains subject to regulation for the protection of society," but

pointed out that in each case "the power to regulate must be so exercised as

not, in attaining a permissible end, unduly to infringe the protected

freedom." (310 US at 304) (Shelton v. Tucker, 364 US 479 [1960]

The resolution prohibits the posting of decals and stickers not more than

eight and one-half (8-1/2) inches in width and fourteen (14) inches in length

in any place, including mobile places whether public or private except in

areas designated by the COMELEC. Verily, the restriction as to where the

decals and stickers should be posted is so broad that it encompasses even

the citizen's private property, which in this case is a privately-owned vehicle.

In consequence of this prohibition, another cardinal rule prescribed by the

Constitution would be violated. Section 1, Article III of the Bill of Rights

provides that no person shall be deprived of his property without due

process of law:

Property is more than the mere thing which a person owns, it includes the

right to acquire, use, and dispose of it; and the Constitution, in the 14th

Amendment, protects these essential attributes.

Property is more than the mere thing which a person owns. It is elementary

that it includes the right to acquire, use, and dispose of it. The Constitution

protects these essential attributes of property. Holden v. Hardy, 169 U.S.

366, 391, 41 L. ed. 780, 790, 18 Sup. Ct. Rep. 383. Property consists of the

free use, enjoyment, and disposal of a person's acquisitions without control

or diminution save by the law of the land. 1 Cooley's Bl. Com. 127.

(Buchanan v. Warley 245 US 60 [1917])

As earlier stated, we have to consider the fact that in the posting of decals

and stickers on cars and other moving vehicles, the candidate needs the

consent of the owner of the vehicle. In such a case, the prohibition would not

only deprive the owner who consents to such posting of the decals and

stickers the use of his property but more important, in the process, it would

deprive the citizen of his right to free speech and information:

Freedom to distribute information to every citizen wherever he desires to

receive it is so clearly vital to the preservation of a free society that, putting

aside reasonable police and health regulations of time and manner of

distribution, it must be fully preserved. The danger of distribution can so

easily be controlled by traditional legal methods leaving to each householder

the full right to decide whether he will receive strangers as visitors, that

stringent prohibition can serve no purpose but that forbidden by the

constitution, the naked restriction of the dissemination of ideas." (Martin v.

City of Struthers, Ohio, 319 U.S. 141; 87 L. ed. 1313 [1943])

The right to property may be subject to a greater degree of regulation but

when this right is joined by a "liberty" interest, the burden of justification on

the part of the Government must be exceptionally convincing and

irrefutable. The burden is not met in this case.

Section 11 of Rep. Act 6646 is so encompassing and invasive that it prohibits

the posting or display of election propaganda in any place, whether public or

private, except in the common poster areas sanctioned by COMELEC. This

means that a private person cannot post his own crudely prepared personal

poster on his own front door or on a post in his yard. While the COMELEC will

certainly never require the absurd, there are no limits to what overzealous

and partisan police officers, armed with a copy of the statute or regulation,

may do.

The provisions allowing regulation are so loosely worded that they include

the posting of decals or stickers in the privacy of one's living room or

bedroom. This is delegation running riot. As stated by Justice Cardozo in his

concurrence in Panama Refining Co. v. Ryan (293 U.S. 388; 79 L. Ed. 446

[1935), "The delegated power is unconfined and vagrant . . . This is

delegation running riot. No such plentitude of power is susceptible of

transfer."

Third — the constitutional objective to give a rich candidate and a poor

candidate equal opportunity to inform the electorate as regards their

candidacies, mandated by Article II, Section 26 and Article XIII, section 1 in

relation to Article IX (c) Section 4 of the Constitution, is not impaired by

posting decals and stickers on cars and other private vehicles. Compared to

the paramount interest of the State in guaranteeing freedom of expression,

any financial considerations behind the regulation are of marginal

significance.

Under section 26 Article II of the Constitution, "The State shall guarantee

equal access to opportunities for public service, . . . while under section 1,

Article XIII thereof "The Congress shall give highest priority to the enactment

of measures that protect and enhance the right of all the people to human

dignity, reduce social, economic, and political inequalities, and remove

cultural inequities by equitably diffusing wealth and political power for the

common good." (Emphasis supplied)

It is to be reiterated that the posting of decals and stickers on cars, calesas,

tricycles, pedicabs and other moving vehicles needs the consent of the

owner of the vehicle. Hence, the preference of the citizen becomes crucial in

this kind of election propaganda not the financial resources of the candidate.

Whether the candidate is rich and, therefore, can afford to doleout more

decals and stickers or poor and without the means to spread out the same

number of decals and stickers is not as important as the right of the owner to

freely express his choice and exercise his right of free speech. The owner

can even prepare his own decals or stickers for posting on his personal

property. To strike down this right and enjoin it is impermissible

encroachment of his liberties.

In sum, the prohibition on posting of decals and stickers on "mobile" places

whether public or private except in the authorized areas designated by the

COMELEC becomes censorship which cannot be justified by the Constitution:

. . . The concept of the Constitution as the fundamental law, setting forth the

criterion for the validity of any public act whether proceeding from the

highest official or the lowest functionary, is a postulate of our system of

government. That is to manifest fealty to the rule of law, with priority

accorded to that which occupies the topmost rung in the legal hierarchy. The

three departments of government in the discharge of the functions with

which it is entrusted have no choice but to yield obedience to its commands.

Whatever limits it imposes must be observed. Congress in the enactment of

statutes must ever be on guard lest the restrictions on its authority, either

substantive or formal, be transcended. The Presidency in the execution of

the laws cannot ignore or disregard what it ordains. In its task of applying the

law to the facts as found in deciding cases, the judiciary is called upon to

maintain inviolate what is decreed by the fundamental law. Even its power of

judicial review to pass upon the validity of the acts of the coordinate

branches in the course of adjudication is a logical. corollary of this basic

principle that the Constitution is paramount. It overrides any governmental

measure that fails to live up to its mandates. Thereby there is a recognition

of its being the supreme law. (Mutuc v. Commission on Elections, supra)

The unusual circumstances of this year's national and local elections call for

a more liberal interpretation of the freedom to speak and the right to know.

It is not alone the widest possible dissemination of information on platforms

and programs which concern us. Nor are we limiting ourselves to protecting

the unfettered interchange of ideas to bring about political change. (Cf. New

York Times v. Sullivan, supra) The big number of candidates and elective

positions involved has resulted in the peculiar situation where almost all

voters cannot name half or even two-thirds of the candidates running for

Senator. The public does not know who are aspiring to be elected to public

office.

There are many candidates whose names alone evoke qualifications,

platforms, programs and ideologies which the voter may accept or reject.

When a person attaches a sticker with such a candidate's name on his car

bumper, he is expressing more than the name; he is espousing ideas. Our

review of the validity of the challenged regulation includes its effects in

today's particular circumstances. We are constrained to rule against the

COMELEC prohibition.

WHEREFORE, the petition is hereby GRANTED. The portion of Section 15 (a)

of Resolution No. 2347 of the Commission on Elections providing that "decals

and stickers may be posted only in any of the authorized posting areas

provided in paragraph (f) of Section 21 hereof" is DECLARED NULL and VOID.

SO ORDERED.

Narvasa, C.J., Melencio-Herrera, Paras, Padilla, Bidin, Griño-Aquino,

Medialdea, Regalado, Davide, Jr., Romero and Nocon, J.J., concur.

Feliciano and Bellosillo, JJ., are on leave.

 

 

 

Separate Opinions

 

CRUZ, J.: concurring:

I join Mr. Justice Gutierrez and reiterate the views expressed in my dissent in

National Press Club v. Commission on Elections. The stand taken by the

Court in the case at bar is a refreshing change from its usual deferential

attitude toward authoritarianism as a persistent vestige of the past regime.

After the disappointing decision in the ad ban case, I hope that the present

decision will guide us to the opposite direction, toward liberty and the full

recognition of freedom of expression. This decision is a small step in

rectifying the errors of the past, but it is a step just the same, and on the

right track this time.

Regarding the sticker ban, I think we are being swamped with regulations

that unduly obstruct the free flow of information so vital in an election

campaign. The Commission on Elections seems to be bent on muzzling the

candidates and imposing all manner of silly restraints on their efforts to

reach the electorate. Reaching the electorate is precisely the purpose of an

election campaign, but the Commission on Elections obviously believes that

the candidates should be as quiet as possible.

Instead of limiting the dissemination of information on the election issues

and the qualifications of those vying for public office, what the Commission

on Elections should concentrate on is the education of the voters on the

proper exercise of their suffrages. This function is part of its constitutional

duty to supervise and regulate elections and to prevent them from

deteriorating into popularity contests where the victors are chosen on the

basis not of their platforms and competence but on their ability to sing or

dance, or play a musical instrument, or shoot a basketball, or crack a toilet

joke, or exhibit some such dubious talent irrelevant to their ability to

discharge a public office. The public service is threatened with mediocrity

and indeed sheer ignorance if not stupidity. That is the problem the

Commission on Elections should try to correct instead of wasting its time on

much trivialities as where posters shall be allowed and stickers should not be

attached and speeches may be delivered.

The real threat in the present election is the influx of the unqualified

professional entertainers whose only asset is the support of their drooling

fans, the demagogues who drumbeat to the clink of coins their professed

present virtues and past innocence, the opportunists for whom flexibility is a

means of political survival and even of financial gain, and, most dangerous of

all, the elements of our electorate who would, with their mindless ballots,

impose these office-seekers upon the nation. These are the evils the

Commission on Elections should try to correct, not the inconsequential and

inane question of where stickers should be stuck. I have nothing but praise

for the zeal of the Commission on Elections in pursuing the ideal of

democratic elections, but I am afraid it is barking up the wrong tree.

Separate Opinions

CRUZ, J., concurring:

I join Mr. Justice Gutierrez and reiterate the views expressed in my dissent in

National Press Club v. Commission on Elections. The stand taken by the

Court in the case at bar is a refreshing change from its usual deferential

attitude toward authoritarianism as a persistent vestige of the past regime.

After the disappointing decision in the ad ban case, I hope that the present

decision will guide us to the opposite direction, toward liberty and the full

recognition of freedom of expression. This decision is a small step in

rectifying the errors of the past, but it is a step just the same, and on the

right track this time.

Regarding the sticker ban, I think we are being swamped with regulations

that unduly obstruct the free flow of information so vital in an election

campaign. The Commission on Elections seems to be bent on muzzling the

candidates and imposing all manner of silly restraints on their efforts to

reach the electorate. Reaching the electorate is precisely the purpose of an

election campaign, but the Commission on Elections obviously believes that

the candidates should be as quiet as possible.

Instead of limiting the dissemination of information on the election issues

and the qualifications of those vying for public office, what the Commission

on Elections should concentrate on is the education of the voters on the

proper exercise of their suffrages. This function is part of its constitutional

duty to supervise and regulate elections and to prevent them from

deteriorating into popularity contests where the victors are chosen on the

basis not of their platforms and competence but on their ability to sing or

dance, or play a musical instrument, or shoot a basketball, or crack a toilet

joke, or exhibit some such dubious talent irrelevant to their ability to

discharge a public office. The public service is threatened with mediocrity

and indeed sheer ignorance if not stupidity. That is the problem the

Commission on Elections should try to correct instead of wasting its time on

much trivialities as where posters shall be allowed and stickers should not be

attached and speeches may be delivered.

The real threat in the present election is the influx of the unqualified

professional entertainers whose only asset is the support of their drooling

fans, the demagogues who drumbeat to the clink of coins their professed

present virtues and past innocence, the opportunists for whom flexibility is a

means of political survival and even of financial gain, and, most dangerous of

all, the elements of our electorate who would, with their mindless ballots,

impose these office-seekers upon the nation. These are the evils the

Commission on Elections should try to correct, not the inconsequential and

inane question of where stickers should be stuck. I have nothing but praise

for the zeal of the Commission on Elections in pursuing the ideal of

democratic elections, but I am afraid it is barking up the wrong tree.

Reyes vs Bagatsing 6/22/11 9:55 AM

Republic of the Philippines

SUPREME COURT

Manila

EN BANC

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

JOSE B.L. REYES, in behalf of the ANTI-BASES COALITION (ABC),

petitioner,

vs.

RAMON BAGATSING, as Mayor of the City of Manila, respondent.

Lorenzo M. Tañada Jose W. Diokno and Haydee B. Yorac for

petitioner.

The Solicitor General for respondent.

 

FERNANDO, C.J.:ñé+.£ªwph!1

This Court, in this case of first impression, at least as to some

aspects, is called upon to delineate the boundaries of the protected

area of the cognate rights to free speech and peaceable assembly, 1

against an alleged intrusion by respondent Mayor Ramon Bagatsing.

Petitioner, retired Justice JB L. Reyes, on behalf of the Anti-Bases

Coalition sought a permit from the City of Manila to hold a peaceful

march and rally on October 26, 1983 from 2:00 to 5:00 in the

afternoon, starting from the Luneta, a public park, to the gates of

the United States Embassy, hardly two blocks away. Once there, and

in an open space of public property, a short program would be held. 2 During the course of the oral argument, 3 it was stated that after

the delivery of two brief speeches, a petition based on the

resolution adopted on the last day by the International Conference

for General Disbarmament, World Peace and the Removal of All

Foreign Military Bases held in Manila, would be presented to a

representative of the Embassy or any of its personnel who may be

there so that it may be delivered to the United States Ambassador.

The march would be attended by the local and foreign participants

of such conference. There was likewise an assurance in the petition

that in the exercise of the constitutional rights to free speech and

assembly, all the necessary steps would be taken by it "to ensure a

peaceful march and rally." 4

The filing of this suit for mandamus with alternative prayer for writ

of preliminary mandatory injunction on October 20, 1983 was due to

the fact that as of that date, petitioner had not been informed of

any action taken on his request on behalf of the organization to hold

a rally. On October 25, 1983, the answer of respondent Mayor was

filed on his behalf by Assistant Solicitor General Eduardo G.

Montenegro. 5 It turned out that on October 19, such permit was

denied. Petitioner was unaware of such a fact as the denial was sent

by ordinary mail. The reason for refusing a permit was due to police

intelligence reports which strongly militate against the advisability

of issuing such permit at this time and at the place applied for." 6 To

be more specific, reference was made to persistent intelligence

reports affirm[ing] the plans of subversive/criminal elements to

infiltrate and/or disrupt any assembly or congregations where a

large number of people is expected to attend." 7 Respondent Mayor

suggested, however, in accordance with the recommendation of the

police authorities, that "a permit may be issued for the rally if it is

to be held at the Rizal Coliseum or any other enclosed area where

the safety of the participants themselves and the general public

may be ensured." 8

The oral argument was heard on October 25, 1983, the very same

day the answer was filed. The Court then deliberated on the matter.

That same afternoon, a minute resolution was issued by the Court

granting the mandatory injunction prayed for on the ground that

there was no showing of the existence of a clear and present danger

of a substantive evil that could justify the denial of a permit. On this

point, the Court was unanimous, but there was a dissent by Justice

Aquino on the ground that the holding of a rally in front of the US

Embassy would be violative of Ordinance No. 7295 of the City of

Manila. The last sentence of such minute resolution reads: "This

resolution is without prejudice to a more extended opinion." 9 Hence

this detailed exposition of the Court's stand on the matter.

1. It is thus clear that the Court is called upon to protect the

exercise of the cognate rights to free speech and peaceful

assembly, arising from the denial of a permit. The Constitution is

quite explicit: "No law shall be passed abridging the freedom of

speech, or of the press, or the right of the people peaceably to

assemble and petition the Government for redress of grievances." 10

Free speech, like free press, may be Identified with the liberty to

discuss publicly and truthfully any matter of public concern without

censorship or punishment. 11 There is to be then no previous

restraint on the communication of views or subsequent liability

whether in libel suits, 12 prosecution for sedition, 13 or action for

damages, 14 or contempt proceedings 15 unless there be a clear and

present danger of a substantive evil that [the State] has a right to

prevent." 16 Freedom of assembly connotes the right people to meet

peaceably for consultation and discussion of matters Of public

concern. 17 It is entitled to be accorded the utmost deference and

respect. It is hot to be limited, much less denied, except on a

showing, as 's the case with freedom of expression, of a clear and

present danger of a substantive evil that the state has a right to

prevent. 18 Even prior to the 1935 Constitution, Justice Maicolm had

occasion to stress that it is a necessary consequence of our

republican institutions and complements the right of free speech. 19

To paraphrase opinion of Justice Rutledge speaking for the majority

of the American Supreme Court Thomas v. Collins, 20 it was not by

accident or coincidence that the right to freedom of speech and of

the press were toupled in a single guarantee with the and to

petition the rights of the people peaceably to assemble and to

petition the government for redress of grievances. All these rights,

while not Identical, are inseparable. the every case, therefo re there

is a limitation placed on the exercise of this right, the judiciary is

called upon to examine the effects of the challenged governmental

actuation. The sole justification for a limitation on the exercise of

this right, so fundamental to the maintenance of democratic

institutions, is the danger, of a character both grave and imminent,

of a serious evil to public safety, public morals, public health, or any

other legitimate public interest. 21

2. Nowhere is the rationale that underlies the freedom of expression

and peaceable assembly better expressed than in this excerpt from

an opinion of Justice Frankfurter: "It must never be forgotten,

however, that the Bill of Rights was the child of the Enlightenment.

Back of the guaranty of free speech lay faith in the power of an

appeal to reason by all the peaceful means for gaining access to the

mind. It was in order to avert force and explosions due to

restrictions upon rational modes of communication that the

guaranty of free speech was given a generous scope. But utterance

in a context of violence can lose its significance as an appeal to

reason and become part of an instrument of force. Such utterance

was not meant to be sheltered by the Constitution." 22 What was

rightfully stressed is the abandonment of reason, the utterance,

whether verbal or printed, being in a context of violence. It must

always be remembered that this right likewise provides for a safety

valve, allowing parties the opportunity to give vent to their-views,

even if contrary to the prevailing climate of opinion. For if the

peaceful means of communication cannot be availed of, resort to

non-peaceful means may be the only alternative. Nor is this the sole

reason for the expression of dissent. It means more than just the

right to be heard of the person who feels aggrieved or who is

dissatisfied with things as they are. Its value may lie in the fact that

there may be something worth hearing from the dissenter. That is

to ensure a true ferment of Ideas. There are, of course, well-defined

limits. What is guaranteed is peaceable assembly. One may not

advocate disorder in the name of protest, much less preach

rebellion under the cloak of dissent. The Constitution frowns on

disorder or tumult attending a rally or assembly. resort to force is

ruled out and outbreaks of violence to be avoided. The utmost calm

though is not required. As pointed out in an early Philippine case,

penned in 1907 to be precise, United States v. Apurado: 23 "It is

rather to be expected that more or less disorder will mark the public

assembly of the people to protest against grievances whether real

or imaginary, because on such occasions feeling is always wrought

to a high pitch of excitement, and the greater the grievance and the

more intense the feeling, the less perfect, as a rule, will be the

disciplinary control of the leaders over their irresponsible

followers." 24 It bears repeating that for the constitutional right to

be invoked, riotous conduct, injury to property, and acts of

vandalism must be avoided, To give free rein to one's destructive

urges is to call for condemnation. It is to make a mockery of the

high estate occupied by intellectual liberty in our scheme of values.

3. There can be no legal objection, absent the existence of a clear

and present danger of a substantive evil, on the choice of Luneta as

the place where the peace rally would start. The Philippines is

committed to the view expressed in the plurality opinion, of 1939

vintage, of Justice Roberts in Hague v. CIO: 25 Whenever the title of

streets and parks may rest, they have immemorially been held in

trust for the use of the public and, time out of mind, have been used

for purposes of assembly, communicating thoughts between

citizens, and discussing public questions. Such use of the streets

and public places has, from ancient times, been a part of the

privileges, immunities, rights, and liberties of citizens. The privilege

of a citizen of the United States to use the streets and parks for

communication of views on national questions may be regulated in

the interest of all; it is not absolute, but relative, and must be

exercised in subordination to the general comfort and convenience,

and in consonance with peace and good order; but it must not, in

the guise of regulation, be abridged or denied. 26 The above excerpt

was quoted with approval in Primicias v. Fugoso. 27 Primicias made

explicit what was implicit in Municipality of Cavite v. Rojas," 28 a

1915 decision, where this Court categorically affirmed that plazas or

parks and streets are outside the commerce of man and thus

nullified a contract that leased Plaza Soledad of plaintiff-

municipality. Reference was made to such plaza "being a

promenade for public use," 29 which certainly is not the only purpose

that it could serve. To repeat, there can be no valid reason why a

permit should not be granted for the or oposed march and rally

starting from a public dark that is the Luneta.

4. Neither can there be any valid objection to the use of the streets,

to the gates of the US Embassy, hardly two block-away at the Roxas

Boulevard. Primicias v. Fugoso has resolved any lurking doubt on

the matter. In holding that the then Mayor Fugoso of the City of

Manila should grant a permit for a public meeting at Plaza Miranda

in Quiapo, this Court categorically declared: "Our conclusion finds

support in the decision in the case of Willis Cox vs. State of New

Hampshire, 312 U.S., 569. In that case, the statute of New

Hampshire P. L. chap. 145, section 2, providing that 'no parade or

procession upon any ground abutting thereon, shall 'De permitted

unless a special license therefor shall first be explained from the

selectmen of the town or from licensing committee,' was construed

by the Supreme Court of New Hampshire as not conferring upon the

licensing board unfettered discretion to refuse to grant the license,

and held valid. And the Supreme Court of the United States, in its

decision (1941) penned by Chief Justice Hughes affirming the

judgment of the State Supreme Court, held that 'a statute requiring

persons using the public streets for a parade or procession to

procure a special license therefor from the local authorities is not an

unconstitutional abridgment of the rights of assembly or of freedom

of speech and press, where, as the statute is construed by the state

courts, the licensing authorities are strictly limited, in the issuance

of licenses, to a consideration of the time, place, and manner of the

parade or procession, with a view to conserving the public

convenience and of affording an opportunity to provide proper

policing, and are not invested with arbitrary discretion to issue or

refuse license, ... " 30 Nor should the point made by Chief Justice

Hughes in a subsequent portion of the opinion be ignored, "Civil

liberties, as guaranteed by the Constitution, imply the existence of

an organized society maintaining public order without which liberty

itself would be lost in the excesses of unrestricted abuses. The

authority of a municipality to impose regulations in order to assure

the safety and convenience of the people in the use of public

highways has never been regarded as inconsistent with civil

liberties but rather as one of the means of safeguarding the good

order upon which they ultimately depend. The control of travel on

the streets of cities is the most familiar illustration of this

recognition of social need. Where a restriction of the use of

highways in that relation is designed to promote the public

convenience in the interest of all, it cannot be disregarded by the

attempted exercise of some civil right which in other circumstances

would be entitled to protection." 31

5. There is a novel aspect to this case, If the rally were confined to

Luneta, no question, as noted, would have arisen. So, too, if the

march would end at another park. As previously mentioned though,

there would be a short program upon reaching the public space

between the two gates of the United States Embassy at Roxas

Boulevard. That would be followed by the handing over of a petition

based on the resolution adopted at the closing session of the Anti-

Bases Coalition. The Philippines is a signatory of the Vienna

Convention on Diplomatic Relations adopted in 1961. It was

concurred in by the then Philippine Senate on May 3, 1965 and the

instrument of ratification was signed by the President on October

11, 1965, and was thereafter deposited with the Secretary General

of the United Nations on November 15. As of that date then, it was

binding on the Philippines. The second paragraph of the Article 22

reads: "2. The receiving State is under a special duty to take

appropriate steps to protect the premises of the mission against

any intrusion or damage and to prevent any disturbance of the

peace of the mission or impairment of its dignity. " 32 The

Constitution "adopts the generally accepted principles of

international law as part of the law of the land. ..." 33 To the extent

that the Vienna Convention is a restatement of the generally

accepted principles of international law, it should be a part of the

law of the land. 34 That being the case, if there were a clear and

present danger of any intrusion or damage, or disturbance of the

peace of the mission, or impairment of its dignity, there would be a

justification for the denial of the permit insofar as the terminal point

would be the Embassy. Moreover, respondent Mayor relied on

Ordinance No. 7295 of the City of Manila prohibiting the holding or

staging of rallies or demonstrations within a radius of five hundred

(500) feet from any foreign mission or chancery and for other

purposes. Unless the ordinance is nullified, or declared ultra vires,

its invocation as a defense is understandable but not decisive, in

view of the primacy accorded the constitutional rights of free

speech and peaceable assembly. Even if shown then to be

applicable, that question the confronts this Court.

6. There is merit to the observation that except as to the novel

aspects of a litigation, the judgment must be confined within the

limits of previous decisions. The law declared on past occasions is,

on the whole, a safe guide, So it has been here. Hence, as noted, on

the afternoon of the hearing, October 25, 1983, this Court issued

the minute resolution granting the mandatory injunction allowing

the proposed march and rally scheduled for the next day. That

conclusion was inevitable ill the absence of a clear and present

danger of a substantive, evil to a legitimate public interest. There

was no justification then to deny the exercise of the constitutional

rights of tree speech and peaceable assembly. These rights are

assured by our Constitution and the Universal Declaration of Human

Rights. 35 The participants to such assembly, composed primarily of

those in attendance at the International Conference for General

Disbarmament, World Peace and the Removal of All Foreign Military

Bases would start from the Luneta. proceeding through Roxas

Boulevard to the gates of the United States Embassy located at the

same street. To repeat, it is settled law that as to public places,

especially so as to parks and streets, there is freedom of access.

Nor is their use dependent on who is the applicant for the permit,

whether an individual or a group. If it were, then the freedom of

access becomes discriminatory access, giving rise to an equal

protection question. The principle under American doctrines was

given utterance by Chief Justice Hughes in these words: "The

question, if the rights of free speech and peaceable assembly are to

be preserved, is not as to the auspices under which the meeting is

held but as to its purpose; not as to The relations of the speakers,

but whether their utterances transcend the bounds of the freedom

of speech which the Constitution protects." 36 There could be danger

to public peace and safety if such a gathering were marked by

turbulence. That would deprive it of its peaceful character. Even

then, only the guilty parties should be held accountable. It is true

that the licensing official, here respondent Mayor, is not devoid of

discretion in determining whether or not a permit would be granted.

It is not, however, unfettered discretion. While prudence requires

that there be a realistic appraisal not of what may possibly occur

but of what may probably occur, given all the relevant

circumstances, still the assumption — especially so where the

assembly is scheduled for a specific public — place is that the

permit must be for the assembly being held there. The exercise of

such a right, in the language of Justice Roberts, speaking for the

American Supreme Court, is not to be "abridged on the plea that it

may be exercised in some other place." 37

7. In fairness to respondent Mayor, he acted on the belief that

Navarro v. Villegas 38 and Pagkakaisa ng Manggagawang Pilipino

(PMP.) v. Bagatsing, 39 called for application. While the General rule

is that a permit should recognize the right of the applicants to hold

their assembly at a public place of their choice, another place may

be designated by the licensing authority if it be shown that there is

a clear and present danger of a substantive evil if no such change

were made. In the Navarro and the Pagkakaisa decisions, this Court

was persuaded that the clear and present danger test was satisfied.

The present situation is quite different. Hence the decision reached

by the Court. The mere assertion that subversives may infiltrate the

ranks of the demonstrators does not suffice. Not that it should be

overlooked. There was in this case, however, the assurance of

General Narciso Cabrera, Superintendent, Western Police District,

Metropolitan Police Force, that the police force is in a position to

cope with such emergency should it arise That is to comply with its

duty to extend protection to the participants of such peaceable

assembly. Also from him came the commendable admission that

there were the least five previous demonstrations at the Bayview

hotel Area and Plaza Ferguson in front of the United States Embassy

where no untoward event occurred. It was made clear by petitioner,

through counsel, that no act offensive to the dignity of the United

States Mission in the Philippines would take place and that, as

mentioned at the outset of this opinion, "all the necessary steps

would be taken by it 'to ensure a peaceful march and rally.' " 40

Assistant Solicitor General Montenegro expressed the view that the

presence of policemen may in itself be a provocation. It is a

sufficient answer that they should stay at a discreet distance, but

ever ready and alert to cope with any contingency. There is no need

to repeat what was pointed out by Chief Justice Hughes in Cox that

precisely, it is the duty of the city authorities to provide the proper

police protection to those exercising their right to peaceable

assembly and freedom of expression.

8. By way of a summary The applicants for a permit to hold an

assembly should inform the licensing authority of the date, the

public place where and the time when it will take place. If it were a

private place, only the consent of the owner or the one entitled to

its legal possession is required. Such application should be filed well

ahead in time to enable the public official concerned to appraise

whether there may be valid objections to the grant of the permit or

to its grant but at another public place. It is an indispensable

condition to such refusal or modification that the clear and present

danger test be the standard for the decision reached. If he is of the

view that there is such an imminent and grave danger of a

substantive evil, the applicants must be heard on the matter.

Thereafter, his decision, whether favorable or adverse, must be

transmitted to them at the earliest opportunity. Thus if so minded,

then, can have recourse to the proper judicial authority. Free

speech and peaceable assembly, along with the other intellectual

freedoms, are highly ranked in our scheme of constitutional values.

It cannot be too strongly stressed that on the judiciary, — even

more so than on the other departments — rests the grave and

delicate responsibility of assuring respect for and deference to such

preferred rights. No verbal formula, no sanctifying phrase can, of

course, dispense with what has been so felicitiously termed by

Justice Holmes "as the sovereign prerogative of judgment."

Nonetheless, the presumption must be to incline the weight of the

scales of justice on the side of such rights, enjoying as they do

precedence and primacy. Clearly then, to the extent that there may

be inconsistencies between this resolution and that of Navarro v.

Villegas, that case is pro tanto modified. So it was made clear in the

original resolution of October 25, 1983.

9. Respondent Mayor posed the issue of the applicability of

Ordinance No. 7295 of the City of Manila prohibiting the holding or

staging of rallies or demonstrations within a radius of five hundred

(500) feet from any foreign mission or chancery and for other

purposes. It is to be admitted that it finds support In the previously

quoted Article 22 of the Vienna Convention on Diplomatic Relations.

There was no showing, however, that the distance between the

chancery and the embassy gate is less than 500 feet. Even if it could

be shown that such a condition is satisfied. it does not follow that

respondent Mayor could legally act the way he did. The validity of

his denial of the permit sought could still be challenged. It could be

argued that a case of unconstitutional application of such ordinance

to the exercise of the right of peaceable assembly presents itself.

As in this case there was no proof that the distance is less than 500

feet, the need to pass on that issue was obviated, Should it come,

then the qualification and observation of Justices Makasiar and

Plana certainly cannot be summarily brushed aside. The high estate

accorded the rights to free speech and peaceable assembly

demands nothing less.

10. Ordinarily, the remedy in cases of this character is to set aside

the denial or the modification of the permit sought and order the

respondent official, to grant it. Nonetheless, as there was urgency

in this case, the proposed march and rally being scheduled for the

next day after the hearing, this Court. in the exercise of its

conceded authority, granted the mandatory injunction in the

resolution of October 25, 1983. It may be noted that the peaceful

character of the peace march and rally on October 26 was not

marred by any untoward incident. So it has been in other

assemblies held elsewhere. It is quite reassuring such that both on

the part of the national government and the citizens, reason and

moderation have prevailed. That is as it should be.

WHEREFORE, the mandatory injunction prayed for is granted. No

costs.

Concepcion, Jr., Guerrero, Melencio-Herrera, Escolin, Relova and

Gutierrez, , Jr.,JJ., concur.

De Castro, J, is on leave.

 

 

 

Separate Opinions

 

TEEHANKEE, J., concurring:

The Chief Justice's opinion of the Court reaffirms the doctrine of

Primicias vs. Fugoso 1 that "the right to freedom of speech and to

peacefully assemble and petition the government for redress of

grievances are fundamental personal rights of the people

recognized and guaranteed by the constitutions of democratic

countries" and that the city or town mayors are not conferred "the

power to refuse to grant the permit, but only the discretion, in

issuing the permit, to determine or specify the streets or public

places where the parade or procession may pass or the meeting

may be held." The most recent graphic demonstration of what this

great right of peaceful assembly and petition for redress of

grievances could accomplish was the civil rights march on

Washington twenty years ago under the late assassinated black

leader Martin Luther King, Jr. (whose birthday has now been

declared an American national holiday) which subpoenaed the

conscience of the nation," and awakened the conscience of millions

of previously indifferent Americans and eventually (after many

disorders and riots yet to come) was to put an end to segregation

and discrimination against the American Negro.

The procedure for the securing of such permits for peaceable

assembly is succintly set forth in the summary given by the Court

Justice in paragraph 8 of the Court's opinion, with the injunction

that "the presumption must be to incline the weight of the scales of

justice on the side of such rights, enjoying as they do, precedence

and primacy," The exception of the clear and present danger rule,

which alone would warrant a limitation of these fundamental rights,

is therein restated in paragraph 1, thus: "The sole justification for a

limitation on the exercise of this right, so fundamental to the

maintenance of democratic institutions, is the danger, of a

character both grave and imminent, of a serious evil to public

safety, public morals, public health, or any other legitimate public

interest. "

It bears emphasis that the burden to show the existence of grave

and imminent danger that would justify adverse action on the

application lies on the mayor as licensing authority. There must be

objective and convincing, not subjective or conjectural proof of the

existence of such clear and present danger. As stated in our

Resolution of October 25, 1983, which granted the mandatory

injunction as prayed for, "It is essential for the validity of a denial of

a permit which amounts to a previous restraint or censorship that

the licensing authority does not rely solely on his own appraisal of

what public welfare, peace or safety may require. To justify such a

limitation there must be proof of such weight and sufficiency to

satisfy the clear and present danger test. The possibility that

subversives may infiltrate the ranks of the demonstrators is not

enough." As stated by Justice Brandeis in his concurring opinion in

Whitney vs. California. 2 têñ.£îhqwâ£

Fear of serious injury cannot alone justify suppression of free

speech and assembly. Men feared witches and burned women. It is

the function of speech to free men from the bondage of irrational

fears. To justify suppression of free speech there must be

reasonable ground to fear that serious evil will result if free speech

is practiced. There must be reasonable ground to believe that the

danger apprehended is imminent. There must be reasonable ground

to believe that the evil to be prevented is a serious one * * *.

Those who won our independence by revolution were not cowards.

They did not fear political change. They did not exalt order at the

cost of liberty. * * *

Moreover, even imminent danger cannot justify resort to prohibition

of these functions essential (for) effective democracy, unless the

evil apprehended is relatively serious. Prohibition of free speech

and assembly is a measure so stringent that it would be

inappropriate as the means for averting a relatively trivial harm to a

society. * * * The fact that speech is likely to result in some violence

or in destruction of property is not enough to justify its suppression.

There must be the probability of serious injury to the state. Among

freemen the deterrents ordinarily to be applied to prevent crimes

are education and punishment for violations of the law, not

abridgment of the rights of free speech and assembly. (Emphasis

supplied)

The Court's opinion underscores that the exercise of the right is not

to be "abridged on the plea that it may be exercised in some other

place" (paragraph 6), and that "it is the duty of the city authorities

to provide the proper police protection to those exercising their

right to peaceable assembly and freedom of expression," (at page

14) The U.S. Supreme Court's pronouncement in Hague vs.

Committee for Industrial Organization 3 cited in Fugoso is worth

repeating: têñ.£îhqwâ£

* * * Wherever the title of streets and parks may rest, they have

immemorially been held in trust for the use of the public and, time

out of mind, have been used for purposes of assembly,

communicating thoughts between citizens, and discussing public

questions. Such use of the streets and public places has, from

ancient times, been a part of the privileges, immunities, rights, and

liberties of citizens. The privilege of a citizen * * * to use the streets

and parks for communication of views on national questions may be

regulated in the interest of all; it is not absolute, but relative, and

must be exercised in subordination to the general comfort and

convenience, and in consonance with peace and good order; but it

must not, in the guise of regulation, be abridged or denied.

We think the court below was right in holding the ordinance quoted

in Note I void upon its face. It does not make comfort or

convenience in the use of streets or parks the standard of official

action. It enables the Director of Safety to refuse a permit on his

mere opinion that such refusal will prevent 'riots, disturbances or

disorderly assemblage. It can thus, as the record discloses, be made

the instrument of arbitrary suppression of free expression of views

on national affairs for the prohibition of all speaking will

undoubtedly 'prevent' such eventualities. But uncontrolled official

suppression of the privilege cannot be made a substitute for the

duty to maintain order in connection with the exercise of the right.

(Emphasis supplied)

Needless to say, the leaders of the peaceable assembly should take

all the necessary measures to ensure a peaceful march and

assembly and to avoid the possibility of infiltrators and

troublemakers disrupting the same, concommitantly with the duty

of the police to extend protection to the participants "staying at a

discreet distance, but ever ready and alert to perform their duty."

But should any disorderly conduct or incidents occur, whether

provoked or otherwise, it is well to recall former Chief Justice

Ricardo Paras' injunction in his concurring opinion in Fugoso, citing

the 1907 case of U.S. vs. Apurado, 4 that such instances of

"disorderly conduct by individual members of a crowd (be not

seized) as an excuse to characterize the assembly as a seditious and

tumultuous rising against the authorities" and render illusory the

right of peaceable assembly, thus: têñ.£îhqwâ£

It is rather to be expected that more or less disorder will mark the

public assembly of the people to protest against grievances whether

real or imaginary, because on such occasions feeling is always

wrought to a high pitch of excitement, and the greater the

grievance and the more intense the feeling, the less perfect, as a

rule, will the disciplinary control of the leaders over their

irresponsible followers. But if the prosecution be permitted to seize

upon every instance of such disorderly conduct by individual

members of a crowd as an excuse to characterize the assembly as a

seditious and tumultous rising against the authorities, 'then the

right to assemble and to petition for redress of grievances would

become a delusion and snare and the attempt to exercise it on the

most righteous occasion and in the most peaceable manner would

expose all those who took part therein to the severest and most

unmerited punishment, if the purposes which they sought to attain

did not happen to be pleasing to the prosecuting authorities. If

instances of disorderly conduct occur on such occasions, the guilty

individuals should be sought out and punished therefor. (Emphasis

supplied).

As it turned out, the demonstration was held on October 26, 1983

peaceably and without any untoward event or evil result, as pledged

by the organizers (like at least five previous peaceful

demonstrations in the area). However, even if there had been any

incidents of disorder, this would in no way show the Court's

mandatory injunction to have been wrongfully issued. The salutary

desire on the part of respondent to prevent disorder cannot be

pursued by the unjustified denial and suppression of the people's

basic rights, which would thereby turn out to be mere paper rights.

 

MAKASIAR, J., concurring:

With the justification that in case of conflict, the Philippine

Constitution — particularly the Bill of Rights — should prevail over

the Vienna Convention.

 

ABAD SANTOS, J., concurring:

To add anything to the learned opinion of the Chief Justice is like

bringing coal to Newcastle, I just want to state for the record that I

voted for the issuance ex-parte of a preliminary mandatory

injunction.

 

PLANA, J., concurring:

On the whole, I concur in the learned views of the distinguished

Chief Justice. I would like however to voice a reservation regarding

Ordinance No. 7295 of the City of Manila which has been invoked by

the respondent.

The main opinion yields the implication that a rally or demonstration

made within 500 feet from the chancery of a foreign embassy would

be banned for coming within the terms of the prohibition of the

cited Ordinance which was adopted, so it is said, precisely to

implement a treaty obligation of the Philippines under the 1961

Vienna Convention on Diplomatic Relations.

In my view, without saying that the Ordinance is obnoxious per se to

the constitution, it cannot be validly invoked whenever its

application would collide with a constitutionally guaranteed right

such as freedom of assembly and/or expression, as in the case at

bar, regardless of whether the chancery of any foreign embassy is

beyond or within 500 feet from the situs of the rally or

demonstration.

AQUINO, J., dissenting:

Voted to dismiss the petition on the ground that the holding of the

rally in front of the US Embassy violates Ordinance No. 7295 of the

City of Manila.

 

 

Separate Opinions

 

TEEHANKEE, J., concurring:

The Chief Justice's opinion of the Court reaffirms the doctrine of

Primicias vs. Fugoso 1 that "the right to freedom of speech and to

peacefully assemble and petition the government for redress of

grievances are fundamental personal rights of the people

recognized and guaranteed by the constitutions of democratic

countries" and that the city or town mayors are not conferred "the

power to refuse to grant the permit, but only the discretion, in

issuing the permit, to determine or specify the streets or public

places where the parade or procession may pass or the meeting

may be held." The most recent graphic demonstration of what this

great right of peaceful assembly and petition for redress of

grievances could accomplish was the civil rights march on

Washington twenty years ago under the late assassinated black

leader Martin Luther King, Jr. (whose birthday has now been

declared an American national holiday) which subpoenaed the

conscience of the nation," and awakened the conscience of millions

of previously indifferent Americans and eventually (after many

disorders and riots yet to come) was to put an end to segregation

and discrimination against the American Negro.

The procedure for the securing of such permits for peaceable

assembly is succintly set forth in the summary given by the Court

Justice in paragraph 8 of the Court's opinion, with the injunction

that "the presumption must be to incline the weight of the scales of

justice on the side of such rights, enjoying as they do, precedence

and primacy," The exception of the clear and present danger rule,

which alone would warrant a limitation of these fundamental rights,

is therein restated in paragraph 1, thus: "The sole justification for a

limitation on the exercise of this right, so fundamental to the

maintenance of democratic institutions, is the danger, of a

character both grave and imminent, of a serious evil to public

safety, public morals, public health, or any other legitimate public

interest. "

It bears emphasis that the burden to show the existence of grave

and imminent danger that would justify adverse action on the

application lies on the mayor as licensing authority. There must be

objective and convincing, not subjective or conjectural proof of the

existence of such clear and present danger. As stated in our

Resolution of October 25, 1983, which granted the mandatory

injunction as prayed for, "It is essential for the validity of a denial of

a permit which amounts to a previous restraint or censorship that

the licensing authority does not rely solely on his own appraisal of

what public welfare, peace or safety may require. To justify such a

limitation there must be proof of such weight and sufficiency to

satisfy the clear and present danger test. The possibility that

subversives may infiltrate the ranks of the demonstrators is not

enough." As stated by Justice Brandeis in his concurring opinion in

Whitney vs. California. 2 têñ.£îhqwâ£

Fear of serious injury cannot alone justify suppression of free

speech and assembly. Men feared witches and burned women. It is

the function of speech to free men from the bondage of irrational

fears. To justify suppression of free speech there must be

reasonable ground to fear that serious evil will result if free speech

is practiced. There must be reasonable ground to believe that the

danger apprehended is imminent. There must be reasonable ground

to believe that the evil to be prevented is a serious one * * *.

Those who won our independence by revolution were not cowards.

They did not fear political change. They did not exalt order at the

cost of liberty. * * *

Moreover, even imminent danger cannot justify resort to prohibition

of these functions essential (for) effective democracy, unless the

evil apprehended is relatively serious. Prohibition of free speech

and assembly is a measure so stringent that it would be

inappropriate as the means for averting a relatively trivial harm to a

society. * * * The fact that speech is likely to result in some violence

or in destruction of property is not enough to justify its suppression.

There must be the probability of serious injury to the state. Among

freemen the deterrents ordinarily to be applied to prevent crimes

are education and punishment for violations of the law, not

abridgment of the rights of free speech and assembly. (Emphasis

supplied)

The Court's opinion underscores that the exercise of the right is not

to be "abridged on the plea that it may be exercised in some other

place" (paragraph 6), and that "it is the duty of the city authorities

to provide the proper police protection to those exercising their

right to peaceable assembly and freedom of expression," (at page

14) The U.S. Supreme Court's pronouncement in Hague vs.

Committee for Industrial Organization 3 cited in Fugoso is worth

repeating: têñ.£îhqwâ£

* * * Wherever the title of streets and parks may rest, they have

immemorially been held in trust for the use of the public and, time

out of mind, have been used for purposes of assembly,

communicating thoughts between citizens, and discussing public

questions. Such use of the streets and public places has, from

ancient times, been a part of the privileges, immunities, rights, and

liberties of citizens. The privilege of a citizen * * * to use the streets

and parks for communication of views on national questions may be

regulated in the interest of all; it is not absolute, but relative, and

must be exercised in subordination to the general comfort and

convenience, and in consonance with peace and good order; but it

must not, in the guise of regulation, be abridged or denied.

We think the court below was right in holding the ordinance quoted

in Note I void upon its face. It does not make comfort or

convenience in the use of streets or parks the standard of official

action. It enables the Director of Safety to refuse a permit on his

mere opinion that such refusal will prevent 'riots, disturbances or

disorderly assemblage. It can thus, as the record discloses, be made

the instrument of arbitrary suppression of free expression of views

on national affairs for the prohibition of all speaking will

undoubtedly 'prevent' such eventualities. But uncontrolled official

suppression of the privilege cannot be made a substitute for the

duty to maintain order in connection with the exercise of the right.

(Emphasis supplied)

Needless to say, the leaders of the peaceable assembly should take

all the necessary measures to ensure a peaceful march and

assembly and to avoid the possibility of infiltrators and

troublemakers disrupting the same, concommitantly with the duty

of the police to extend protection to the participants "staying at a

discreet distance, but ever ready and alert to perform their duty."

But should any disorderly conduct or incidents occur, whether

provoked or otherwise, it is well to recall former Chief Justice

Ricardo Paras' injunction in his concurring opinion in Fugoso, citing

the 1907 case of U.S. vs. Apurado, 4 that such instances of

"disorderly conduct by individual members of a crowd (be not

seized) as an excuse to characterize the assembly as a seditious and

tumultuous rising against the authorities" and render illusory the

right of peaceable assembly, thus: têñ.£îhqwâ£

It is rather to be expected that more or less disorder will mark the

public assembly of the people to protest against grievances whether

real or imaginary, because on such occasions feeling is always

wrought to a high pitch of excitement, and the greater the

grievance and the more intense the feeling, the less perfect, as a

rule, will the disciplinary control of the leaders over their

irresponsible followers. But if the prosecution be permitted to seize

upon every instance of such disorderly conduct by individual

members of a crowd as an excuse to characterize the assembly as a

seditious and tumultous rising against the authorities, 'then the

right to assemble and to petition for redress of grievances would

become a delusion and snare and the attempt to exercise it on the

most righteous occasion and in the most peaceable manner would

expose all those who took part therein to the severest and most

unmerited punishment, if the purposes which they sought to attain

did not happen to be pleasing to the prosecuting authorities. If

instances of disorderly conduct occur on such occasions, the guilty

individuals should be sought out and punished therefor. (Emphasis

supplied).

As it turned out, the demonstration was held on October 26, 1983

peaceably and without any untoward event or evil result, as pledged

by the organizers (like at least five previous peaceful

demonstrations in the area). However, even if there had been any

incidents of disorder, this would in no way show the Court's

mandatory injunction to have been wrongfully issued. The salutary

desire on the part of respondent to prevent disorder cannot be

pursued by the unjustified denial and suppression of the people's

basic rights, which would thereby turn out to be mere paper rights.

 

MAKASIAR, J., concurring:

With the justification that in case of conflict, the Philippine

Constitution — particularly the Bill of Rights — should prevail over

the Vienna Convention.

 

ABAD SANTOS, J., concurring:

To add anything to the learned opinion of the Chief Justice is like

bringing coal to Newcastle, I just want to state for the record that I

voted for the issuance ex-parte of a preliminary mandatory

injunction.

 

PLANA, J., concurring:

On the whole, I concur in the learned views of the distinguished

Chief Justice. I would like however to voice a reservation regarding

Ordinance No. 7295 of the City of Manila which has been invoked by

the respondent.

The main opinion yields the implication that a rally or demonstration

made within 500 feet from the chancery of a foreign embassy would

be banned for coming within the terms of the prohibition of the

cited Ordinance which was adopted, so it is said, precisely to

implement a treaty obligation of the Philippines under the 1961

Vienna Convention on Diplomatic Relations.

In my view, without saying that the Ordinance is obnoxious per se to

the constitution, it cannot be validly invoked whenever its

application would collide with a constitutionally guaranteed right

such as freedom of assembly and/or expression, as in the case at

bar, regardless of whether the chancery of any foreign embassy is

beyond or within 500 feet from the situs of the rally or

demonstration.

 

AQUINO, J., dissenting:

Voted to dismiss the petition on the ground that the holding of the

rally in front of the US Embassy violates Ordinance No. 7295 of the

City of Manila.

Reyes v Bagatsing 125 SCRA 553 (1983)

Facts: Petitioner sought a permit from the City of Manila to hold a peaceful

march and rally on October 26, 1983 from 2:00 to 5:00 in the afternoon,

starting from the Luneta to the gates of the United States Embassy. Once

there, and in an open space of public property, a short program would be

held. The march would be attended by the local and foreign participants of

such conference. That would be followed by the handing over of a petition

based on the resolution adopted at the closing session of the Anti-Bases

Coalition. There was likewise an assurance in the petition that in the exercise

of the constitutional rights to free speech and assembly, all the necessary

steps would be taken by it "to ensure a peaceful march and rally. However

the request was denied. Reference was made to persistent intelligence

reports affirming the plans of subversive/criminal elements to infiltrate or

disrupt any assembly or congregations where a large number of people is

expected to attend. Respondent suggested that a permit may be issued if it

is to be held at the Rizal Coliseum or any other enclosed area where the

safety of the participants themselves and the general public may be

ensured. An oral argument was heard and the mandatory injunction was

granted on the ground that there was no showing of the existence of a clear

and present danger of a substantive evil that could justify the denial of a

permit. However Justice Aquino dissented that the rally is violative of

Ordinance No. 7295 of the City of Manila prohibiting the holding of rallies

within a radius of five hundred (500) feet from any foreign mission or

chancery and for other purposes. Hence the Court resolves.

Issue: Whether or Not the freedom of expression and the right to peaceably

assemble violated.

Held: Yes. The invocation of the right to freedom of peaceable assembly

carries with it the implication that the right to free speech has likewise been

disregarded. It is settled law that as to public places, especially so as to

parks and streets, there is freedom of access. Nor is their use dependent on

who is the applicant for the permit, whether an individual or a group. There

can be no legal objection, absent the existence of a clear and present danger

of a substantive evil, on the choice of Luneta as the place where the peace

rally would start. Time immemorial Luneta has been used for purposes of

assembly, communicating thoughts between citizens, and discussing public

questions.

Such use of the public places has from ancient times, been a part of the

privileges, immunities, rights, and liberties of citizens.

With regard to the ordinance, there was no showing that there was violation

and even if it could be shown that such a condition is satisfied it does not

follow that respondent could legally act the way he did. The validity of his

denial of the permit sought could still be challenged.

A summary of the application for permit for rally: The applicants for a permit

to hold an assembly should inform the licensing authority of the date, the

public place where and the time when it will take place. If it were a private

place, only the consent of the owner or the one entitled to its legal

possession is required. Such application should be filed well ahead in time to

enable the public official concerned to appraise whether there may be valid

objections to the grant of the permit or to its grant but at another public

place. It is an indispensable condition to such refusal or modification that the

clear and present danger test be the standard for the decision reached.

Notice is given to applicants for the denial.

Viva vs Webb 6/22/11 9:55 AM

[G.R. No. 123881. March 13, 1997]

VIVA PRODUCTIONS, INC., petitioner, vs. COURT OF APPEALS AND HUBERT

J.P. WEBB, respondents.

D E C I S I O N

MELO, J.:

Assailed in the petition before us are the decision and resolution of

respondent Court of Appeals sustaining both the order of the Regional Trial

Court of the National Capital Judicial Region (Parañaque, Branch 274 —

hereinafter referred to as the Parañaque court) restraining "the exhibition of

the movie 'The Jessica Alfaro Story' at its scheduled premiere showing at the

New Frontier Theater on September 11, 1995 at 7:30 in the evening and at

its regular public exhibition beginning September 13, 1995, as well as to

cease and desist from promoting and marketing of the said movie" (Order; p.

96, Rollo); and the order of the Regional Trial Court also of the National

Capital Judicial Region (Makati, Branch 58 — hereinafter referred to as the

Makati court) issuing a writ of preliminary injunction "enjoining petitioner

from further proceeding, engaging, using or implementing the promotional,

advertising and marketing programs for the movie entitled 'The Jessica

Alfaro Story' and from showing or causing the same to be shown or exhibited

in all theaters in the entire country UNTIL after the final termination and

logical conclusion of the trial in the criminal action now pending before the

Parañaque Regional Trial Court" (Order; p. 299, Rollo).

Without filing any motion for reconsideration with the two regional trial

courts, petitioner elevated the matter to respondent Court of Appeals via a

petition for certiorari, with an urgent prayer for the issuance of a temporary

restraining order and a writ of preliminary injunction, thereafter docketed

and consolidated as C.A. G.R. No. SP-38407 and SP-38408. The factual

antecedents were summarized by respondent court in this manner:

Both petitions are inexorably linked to the Rape with Homicide case, in

connection with what is now known as the "Vizconde Massacre". On June 19,

1995, after the dismissal of two (2) sets of suspects, another group of nine

(9), private respondent Hubert J.P. Webb included were charged by the

National Bureau of Investigation (NBI) with the crime of Rape With Homicide,

on the strength of a sworn statement of Ma. Jessica M. Alfaro, which

complaint was docketed as I.S. No. 95- 402 before the Department of Justice.

It is of public knowledge, nay beyond cavil, that the personalities involved in

this development of the Vizconde Massacre engendered a media frenzy. For

at least two successive months, all sorts of news and information about the

case, the suspects and witnesses occupied the front pages of newspapers.

Focus of attention was Ma. Jessica M. Alfaro (Alfaro, for short), alluded to as

the NBI star witness. Offered a movie contract by Viva Productions, Inc. for

the filming of her life story, she inked with the latter the said movie

contract while the said case (I.S. 95-402) was under investigation by

the Department of Justice.

On August 10, 1995, after the conclusion of preliminary investigation before

the Department of Justice, an Information for Rape With Homicide was filed

against Hubert J.P. Webb and eight (8) others, docketed as Criminal Case No.

95-404 before the Regional Trial Court of Parañaque, Branch 274.

On August 25, 1995, the private respondent sent separate letters to Viva

Productions, Inc. and Alfaro, warning them that the projected showing of

subject movie on the life story of Alfaro would violate the sub judice rule, and

his (Hubert J.P. Webb's) constitutional rights as an accused in said criminal

case. But such letters from private respondent notwithstanding, petitioner

persisted in promoting, advertising and marketing "The Jessica Alfaro Story"

in the print and broadcast media and, even on billboards. Premier showing of

the movie in question was then scheduled for September 11, 1995, at the

New Frontier Theater, with regular public exhibition thereof set for

September 13, 1995, in some sixty (60) theaters.

And so, on September 6, 1995, Hubert J.P. Webb, the herein private

respondent, filed a Petition for Contempt in the same Criminal Case No. 95-

404; complaining that the acts of petitioner and Alfaro concerning "The

Jessica Alfaro Story" movie were contumacious, within the contemplation of

Section 3, Rule 71 of the Revised Rules of Court. Following the full day of

hearing on September 8, 1995, and viewing of the controversial movie itself,

the respondent Regional Trial Court of Parañaque came out with its Cease

and Desist Order aforequoted.

On September 8, 1995, respondent Hubert J.P. Webb instituted a case for

Injunction With Damages, docketed as Civil Case No. 951365 before the

Regional Trial Court of Makati City, Branch 58, which court issued, ex parte,

before the matter could be heard on notice, the Temporary Restraining Order

under attack.

(pp. 61-62, Rollo.)

On December 13, 1995, respondent court dismissed the consolidated

petitions.

Following the denial of petitioner's motion for reconsideration, the instant

petition was filed wherein the following issues are ventilated:

I

WHETHER OR NOT THE PARAÑAQUE COURT CAN TOTALLY DISREGARD AND

INDISCRIMINATELY CURTAIL PETITIONER'S CONSTITUTIONAL RIGHT TO

FREEDOM OF EXPRESSION AND OF THE PRESS WITHOUT THE PRESENCE OF

A CLEAR AND PRESENT DANGER.

II

WHETHER OR NOT THE MAKATI COURT HAS JURISDICTION TO TAKE

COGNIZANCE OF THE INJUNCTION CASE FILED BEFORE IT WHICH IS

IDENTICAL TO THE CASE PENDING BEFORE THE PARAÑAQUE COURT WHICH

HAS ALREADY ACQUIRED JURISDICTION OVER THE ACT COMPLAINED OF.

III

WHETHER OR NOT PRIVATE RESPONDENT COMMITTED FORUM SHOPPING BY

FILING TWO (2) CASES WITH EXACTLY THE SAME FACTUAL SET-UP, ISSUES

INVOLVED AND RELIEFS SOUGHT BEFORE TWO (2) DIFFERENT COURTS OF

COORDINATE JURISDICTION.

(p. 20, Rollo.)

We rule to grant the petition, reversing and setting aside the orders of

respondent Court of Appeals, thus annulling and setting aside the orders of

the Makati court and lifting the restraining order of the Parañaque court for

forum shopping.

The key issue to be resolved is whether or not respondent court ruled

correctly in upholding the jurisdiction of the Makati court to take cognizance

of the civil action for injunction filed before it despite the fact that the same

relief, insofar as preventing petitioner from showing of the movie is

concerned, had also been sought by the same private respondent before the

Parañaque court in proceedings for contempt of court. Corollarily, it may be

asked if private respondent and/or his counsel can be held guilty of forum

shopping.

Petitioner contends that the Makati court has no jurisdiction to take

cognizance of the action for damages because the same had been impliedly

instituted in the contempt proceedings before the Parañaque court, which

after acquiring and exercising jurisdiction over the case, excludes all other

courts of concurrent jurisdiction from taking cognizance of the same.

Moreover, citing Circular No. 28-91, petitioner accuses private respondent of

forum shopping.

Private respondent, on the other hand, posits that the Makati court's

jurisdiction cannot be validly and legally disputed for it is invested with

authority, by express provision of law, to exercise jurisdiction in the action

for damages, as may be determined by the allegations in the complaint. The

temporary restraining order and writ of injunction issued by the Makati court

are mere provisional remedies expressly sanctioned under Rule 58 of the

Revised Rules of Court. He also maintains that there is no forum shopping

because there is no identity of causes of action. Besides, the action for

damages before the Makati court cannot be deemed instituted in the

contempt proceedings before the Parañaque court because the rightful

parties therein are only the court itself, as the offended party, and petitioner

and witness Jessica Alfaro, as accused.

We find the shrewd and astute maneuverings of private respondent ill-

advised. It will not escape anybody's notice that the act of filing the

supposed action for injunction with damages with the Makati court, albeit a

separate and distinct action from the contempt proceedings then pending

before the Parañaque court, is obviously and solely intended to obtain the

preliminary relief of injunction so as to prevent petitioner from exhibiting the

movie on its premiere showing on September 11, 1995 and on its regular

showing beginning September 13, 1995. The alleged relief for damages

becomes a mere subterfuge to camouflage private respondent's real intent

and to feign the semblance of a separate and distinct action from the

contempt proceedings already filed and on-going with the Parañaque court.

Significantly, the primordial issue involved in the Makati court and the

Parañaque court is one and the same — whether or not the showing of the

movie "The Jessica Alfaro Story" violates the sub-judice rule. Should the

Parañaque court find so, it would have no alternative but to enjoin petitioner

from proceeding with the intended contumacious act lest it may be cited for

contempt. In the case of the Makati court, if it finds such violation, it will

have to enjoin petitioner from proceeding with the prejudicial act lest it may

be held liable for damages.

The query posed before respondent court, simply stated, is whether or not

the Parañaque court and the Makati court, obviously having concurrent

jurisdiction over the subject matter, can both take cognizance of the two

actions and resolve the same identical issue on the alleged violation of the

sub judice rule. Respondent court erred in ruling in the affirmative. This is

the very evil sought to be avoided by this Court in issuing Circular No. 28-91

which pertinently reads:

The attention of the Court has been called to the filing of multiple petitions

and complaints involving the same issues in the Supreme Court, the Court of

Appeals or different Divisions thereof, or any other tribunal or agency, with

the result that said tribunals or agency have to resolve the same

issues. (Emphasis supplied.)

On February 8, 1994, this was magnified through Administrative Circular No.

04-94, effective on April 1, 1994, to include all courts and agencies other

than the Supreme Court and the Court of Appeals, to prevent forum shopping

or the multiple filing of such pleadings even at that level. Sanctions for

violation thereof are expressly stated as follows:

(2) Any violation of this Circular shall be a cause for the dismissal of the

complaint, petition, application or other initiatory pleading, upon motion and

after hearing. However, any clearly willful and deliberate forum shopping by

any party and his counsel through the filing of multiple complaints or other

initiatory pleadings to obtain favorable action shall be a ground for summary

dismissal thereof and shall constitute direct contempt of court. Furthermore,

the submission of a false certification or non-compliance with the

undertaking therein, as provided in Paragraph 1 hereof, shall constitute

indirect contempt of court, without prejudice to disciplinary proceedings

against counsel and the filing of a criminal action against the guilty party.

Private respondent's intention to engage in forum shopping becomes

manifest with undoubted clarity upon the following considerations. Notably, if

not only to ensure the issuance of an injunctive relief, the significance of the

action for damages before the Makati court would be nil. What damages

against private respondent would there be to speak about if the Parañaque

court already enjoins the performance of the very same act complained of in

the Makati court? Evidently, the action for damages is premature if not for

the preliminary injunctive relief sought. Thus, we find grave abuse of

discretion on the part of the Makati court, being a mere co-equal of the

Parañaque court, in not giving due deference to the latter before which the

issue of the alleged violation of the sub-judice rule had already been raised

and submitted. In such instance, the Makati court, if it was wary of

dismissing the action outrightly under Administrative Circular No. 04-94,

should have, at least, ordered the consolidation of its case with that of the

Parañaque court, which had first acquired jurisdiction over the related case

in accordance with Rule 31 of the Revised Rules of Court (Superlines Trans.

Co. vs. Victor, et al., 124 SCRA 939 [1983]; Vallacar Transit Inc. vs. Yap, 126

SCRA 500 [1983]), or it should have suspended the proceedings until the

Parañaque court may have ruled on the issue (Salazar vs. CFI of Laguna, 64

Phil. 785 [1937]).

Ordinarily, where a litigant sues the same party against whom another action

or actions for the alleged violation of the same right and the enforcement of

the same relief or reliefs is or are still pending, any one action may be

dismissed on the ground of litis pendentia and a final judgment in any one

case would constitute res judicata on the other. In either instance, there is a

clear and undeniable case of forum shopping, another ground for the

summary dismissal of both actions, and at the same time an act of direct

contempt of court, which includes a possible criminal prosecution and

disciplinary action against the erring lawyer (Buan vs. Lopez, Jr., 145 SCRA

34 [1986]).

In First Philippine International Bank vs. Court of Appeals (252 SCRA 259

[1996]), this Court, through the same herein Division, per Justice

Panganiban, found therein petitioner bank guilty of forum shopping because

—

. . . the objective or the relief being sought, though worded differently, is the

same, namely, to enable the petitioner Bank to escape from the obligation to

sell the property to respondent. In Danville Maritime vs. Commission on

Audit, this Court ruled that the filing by any party of two apparently different

actions, but with the same objective, constituted forum shopping:

"In the attempt to make the two actions appear to be different, petitioner

impleaded different respondents therein — PNOC in the case before the

lower court and the COA in the case before this Court and sought what

seems to be different reliefs. Petitioner asks this Court to set aside the

questioned letter-directive of the COA dated October 10, 1988 and to direct

said body to approve the Memorandum of Agreement entered into by and

between the PNOC and petitioner, while in the complaint before the lower

court petitioner seeks to enjoin the PNOC from conducting a rebidding and

from selling to other parties the vessel "T/T Andres Bonifacio," and for an

extension of time for it to comply with the paragraph 1 of the memorandum

of agreement and damages. One can see that although the relief prayed for

in the two (2) actions are ostensibly different, the ultimate objective in both

actions is the same, that is, the approval of the sale of vessel in favor of

petitioner, and to overturn the letter directive of the COA of October 10,

1988 disapproving the sale."

(p. 285)

In Palm Avenue Realty Development Corporation vs. PCGG (153 SCRA 579

[1987]), we have these words from then Justice, now Chief Justice Narvasa:

. . . the filing by the petitioners of the instant special civil action for certiorari

and prohibition in this Court despite the pendency of their action in the

Makati Regional Trial Court, is a species of forum shopping. Both actions

unquestionably involve the same transactions, the same essential facts and

circumstances. The petitioners' claim of absence of identity simply because

the PCGG had not been impleaded in the RTC suit, and the suit did not

involve certain acts which transpired after its commencement, is specious. In

the RTC action, as in the action before this Court, the validity of the contract

to purchase and sell of September 1, 1986, i.e., whether or not it had been

efficaciously rescinded, and the propriety of implementing the same . . .

were the basic issues. So, too, the relief was the same: the prevention of

such implementation and/or the restoration of the status quo ante. When the

acts sought to be restrained took place anyway despite the issuance by the

Trial Court of a temporary restraining order, the RTC suit did not become

functus officio. It remained an effective vehicle for obtention of relief; and

petitioners' remedy in the premises was plain and patent; the filing of an

amended and supplemental pleading in the RTC suit, so as to include the

PCGG as defendant and seek nullification of the acts sought to be enjoined

but nonetheless done. The remedy was certainly not the institution of

another action in another forum based on essentially the same facts. The

adoption of this latter recourse renders the petitioner amenable to

disciplinary action and both their actions, in this Court as well as in the Court

a quo dismissible.

(pp. 591-592)

Thus, while we might admit that the causes of action before the Makati court

and the Parañaque court are distinct, and that private respondent cannot

seek civil indemnity in the contempt proceedings, the same being in the

nature of criminal contempt, we nonetheless cannot ignore private

respondent's intention of seeking exactly identical reliefs when it sought the

preliminary relief of injunction in the Makati court. As earlier indicated, had

private respondent been completely in good faith, there would have been no

hindrance in filing the action for damages with the regional trial court of

Parañaque and having it consolidated with the contempt proceedings before

Branch 274, so that the same issue on the alleged violation of the sub judice

rule will not have to be passed upon twice, and there would be no possibility

of having two courts of concurrent jurisdiction making two conflicting

resolutions.

Yet from another angle, it may be said that when the Parañaque court

acquired jurisdiction over the said issue, it excluded all other courts of

concurrent jurisdiction from acquiring jurisdiction over the same. To hold

otherwise would be to risk instances where courts of concurrent jurisdiction

might have conflicting orders. This will create havoc and result in an

extremely disordered administration of justice. Therefore, even on the

assumption that the Makati court may acquire jurisdiction over the subject

matter of the action for damages, without prejudice to the application of

Administrative Circular No. 04-94, it cannot nonetheless acquire jurisdiction

over the issue of whether or not petitioner has violated the sub judice rule.

At best, the Makati court may hear the case only with respect to the alleged

injury suffered by private respondent after the Parañaque court shall have

ruled favorably on the said issue.

In fine, applying the sanction against forum shopping under Administrative

Circular No. 04-94, the action filed by private respondent with the Makati

court, may be ordered summarily dismissed. Considering the nature and

purpose of contempt proceedings before the Parañaque court and the public

policy of protecting the integrity of the court, we reserve the imposition of a

similar sanction to dismiss the same and leave that matter to the discretion

of the presiding judge concerned, although it is worthy to stress that insofar

as injunctive relief against the showing of the movie before the Parañaque

court is concerned, we resolved to also dismiss the same by reason of forum

shopping. The sanction of twin dismissal under Buan vs. Lopez is applicable.

This, however, is without prejudice to the other aspects of the contempt

proceedings which may still be pending before the Parañaque court.

In view of the foregoing disposition, we find no further need to resolve the

issue of whether or not there was valid and lawful denial by both lower

courts of petitioner's right to free speech and expression. Suffice it to

mention, however, that the Court takes note of the rather unreasonable

period that had elapsed from the time of the issuance of the restraining

order by the Parañaque court up to the writing of this decision. The Court

also notes that the order of the said court specifically failed to lay down any

factual basis constituting a clear and present danger which will justify prior

restraint of the constitutionally protected freedom of speech and expression

save its plea for time to hear and resolve the issues raised in the petition for

contempt.

WHEREFORE, the assailed decision and order of respondent court are

hereby SET ASIDE, and a new one entered declaring null and void all orders

of Branch 58 of the Regional Trial Court of the National Capital Judicial

Region stationed in Makati City in its Civil Case No. 95-1365 and forthwith

dismissing said case, and declaring the order of the Regional Trial Court of

the same National Capital Judicial Region stationed in Parañaque (Branch

274), functus officio insofar as it restrains the public showing of the movie

"The Jessica Alfaro Story."

Private respondent and his counsel are admonished to refrain from repeating

a similar act of forum shopping, with the stern warning that any repetition of

similar acts will be dealt with more severely.

SO ORDERED.

Iglesia vs Court of appeals 6/22/11 9:55 AM

EN BANC

[G.R. No. 119673. July 26, 1996]

IGLESIA NI CRISTO (INC.), petitioner, vs. THE HONORABLE COURT OF

APPEALS, BOARD OF REVIEW FOR MOTION PICTURES AND

TELEVISION and HONORABLE HENRIETTA S. MENDEZ, respondents.

D E C I S I O N

PUNO, J.:

This is a petition for review of the Decision dated March 24, 1995 of

the respondent Court of Appeals affirming the action of the

respondent Board of Review for Motion Pictures and Television

which x-rated the TV Program “Ang Iglesia ni Cristo.”

Petitioner Iglesia ni Cristo, a duly organized religious organization,

has a television program entitled “Ang Iglesia ni Cristo” aired on

Channel 2 every Saturday and on Channel 13 every Sunday. The

program presents and propagates petitioner’s religious beliefs,

doctrines and practices often times in comparative studies with

other religions.

Sometime in the months of September, October and November

1992, petitioner submitted to the respondent Board of Review for

Motion Pictures and Television the VTR tapes of its TV program

Series Nos. 116, 119, 121 and 128. The Board classified the series

as “X” or not for public viewing on the ground that they “offend and

constitute an attack against other religions which is expressly

prohibited by law.”

Petitioner pursued two (2) courses of action against the respondent

Board. On November 28, 1992, it appealed to the Office of the

President the classification of its TV Series No. 128. It succeeded in

its appeal for on December 18, 1992, the Office of the President

reversed the decision of the respondent Board. Forthwith, the

Board allowed Series No. 128 to be publicly telecast.

On December 14, 1992, petitioner also filed against the respondent

Board Civil Case No. Q-92-14280, with the RTC, NCR, Quezon City.i[1]

Petitioner alleged that the respondent Board acted without

jurisdiction or with grave abuse of discretion in requiring petitioner

to submit the VTR tapes of its TV program and in x-rating them. It

cited its TV Program Series Nos. 115, 119, 121 and 128. In their

Answer, respondent Board invoked its power under P.D. No. 1986 in

relation to Article 201 of the Revised Penal Code.

On January 4, 1993, the trial court held a hearing on petitioner’s

prayer for a writ of preliminary injunction. The parties orally argued

and then marked their documentary evidence. Petitioner submitted

the following as its exhibits, viz.:

(1) Exhibit “A”, respondent Board’s Voting Slip for Television

showing its September 9, 1992 action on petitioner’s Series No. 115

as follows:ii[2]

REMARKS:

There are some inconsistencies in the particular program as it is

very surprising for this program to show series of Catholic

ceremonies and also some religious sects and using it in their

discussion about the bible. There are remarks which are direct

criticism which affect other religions.

Need more opinions for this particular program. Please subject to

more opinions.

(2) Exhibit “A-1”, respondent Board’s Voting Slip for Television

showing its September 11, 1992 subsequent action on petitioner’s

Series No. 115 as follows:iii[3]

REMARKS:

This program is criticizing different religions, based on their own

interpretation of the Bible.

We suggest that the program should delve on explaining their own

faith and beliefs and avoid attacks on other faith.

(3) Exhibit “B”, respondent Board’s Voting Slip for Television

showing its October 9, 1992 action on petitioner’s Series No. 119, as

follows:iv[4]

REMARKS:

The Iglesia ni Cristo insists on the literal translation of the bible and

says that our (Catholic) veneration of the Virgin Mary is not to be

condoned because nowhere it is found in the bible that we should

do so.

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

worship and decision.

(4) Exhibit “C”, respondent Board’s Voting Slip for Television

showing its October 20, 1992 action on petitioner’s Series No. 121

as follows:v[5]

REMARKS:

I refuse to approve the telecast of this episode for reasons of the

attacks, they do on, specifically, the Catholic religion.

I refuse to admit that they can tell, dictate any other religion that

they are right and the rest are wrong, which they clearly present in

this episode.

(5) Exhibit “D”, respondent Board’s Voting Slip for Television

showing its November 20, 1992 action on petitioner’s Series No. 128

as follows:vi[6]

REMARKS:

The episode presented criticizes the religious beliefs of the Catholic

and Protestant’s beliefs.

We suggest a second review.

(6) Exhibits “E”, “E-1”, petitioner’s block time contract with ABS-

CBN Broadcasting Corporation dated September 1, 1992.vii[7]

(7) Exhibit “F”, petitioner’s Airtime Contract with Island

Broadcasting Corporation.viii[8]

(8) Exhibit “G”, letter dated December 18, 1992 of former

Executive Secretary Edelmiro A. Amante, Sr., addressed to Henrietta

S. Mendez reversing the decision of the respondent Board which x-

rated the showing of petitioner’s Series No. 129. The letter reads in

part:

“xxx xxx xxx

The television episode in question is protected by the constitutional

guarantee of free speech and expression under Article III, Section 4

of the 1987 Constitution.

We have viewed a tape of the television episode in question, as well

as studied the passages found by MTRCB to be objectionable and we

find no indication that the episode poses any clear and present

danger sufficient to limit the said constitutional guarantee.”

(9) Exhibits “H”, “H-1”, letter dated November 26, 1992 of Teofilo

C. Ramos, Sr., addressed to President Fidel V. Ramos appealing the

action of the respondent Board x-rating petitioner’s Series No. 128.

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

(1) Exhibit “1”, Permit Certificate for Television Exhibition No.

15181 dated December 18, 1992 allowing the showing of Series No.

128 under parental guidance.

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

(3) Exhibit “3”, letter dated October 12, 1992 of Henrietta S.

Mendez, addressed to the Christian Era Broadcasting Service which

reads in part:

x x x

In the matter of your television show “Ang Iglesia ni Cristo” Series

No. 119, please be informed that the Board was constrained to deny

your show a permit to exhibit. The material involved constitute an

attack against another religion which is expressly prohibited by law.

Please be guided in the submission of future shows.

After evaluating the evidence of the parties, the trial court issued a

writ of preliminary injunction on petitioner’s bond of P10,000.00.

The trial court set the pre-trial of the case and the parties

submitted their pre-trial briefs.ix[9] The pre-trial briefs show that

the parties’ evidence is basically the evidence they submitted in the

hearing of the issue of preliminary injunction. The trial of the case

was set and reset several times as the parties tried to reach an

amicable accord. Their efforts failed and the records show that

after submission of memoranda, the trial court rendered a

Judgment,x[10] on December 15, 1993, the dispositive portion of

which reads:

“x x x

WHEREFORE, judgment is hereby rendered ordering respondent

Board of Review for Motion Pictures and Television (BRMPT) to

grant petitioner Iglesia ni Cristo the necessary permit for all the

series of ‘Ang Iglesia ni Cristo’ program.

Petitioner Iglesia ni Cristo, however, is directed to refrain from

offending and attacking other existing religions in showing ‘Ang

Iglesia ni Cristo’ program.

SO ORDERED.”

Petitioner moved for reconsiderationxi[11] praying: (a) for the

deletion of the second paragraph of the dispositive portion of the

Decision, and (b) for the Board to be perpetually enjoined from

requiring petitioner to submit for review the tapes of its program.

The respondent Board opposed the motion.xii[12] On March 7, 1993,

the trial court granted petitioner’s Motion for Reconsideration. It

ordered:xiii[13]

“x x x

WHEREFORE, the Motion for Reconsideration is granted. The second

portion of the Court’s Order dated December 15, 1993, directing

petitioner to refrain from offending and attacking other existing

religions in showing ‘Ang Iglesia ni Cristo’ program is hereby

deleted and set aside. Respondents are further prohibited from

requiring petitioner Iglesia ni Cristo to submit for review VTR tapes

of its religious program ‘Ang Iglesia ni Cristo.’”

Respondent Board appealed to the Court of Appeals after its motion

for reconsideration was denied.xiv[14]

On March 5, 1995, the respondent Court of Appealsxv[15] reversed

the trial court. It ruled that: (1) the respondent board has

jurisdiction and power to review the TV program “Ang Iglesia ni

Cristo,” and (2) the respondent Board did not act with grave abuse

of discretion when it denied permit for the exhibition on TV of the

three series of “Ang Iglesia ni Cristo” on the ground that the

materials constitute an attack against another religion. It also

found the series “indecent, contrary to law and contrary to good

customs.”

In this petition for review on certiorari under Rule 45, petitioner

raises the following issues:

I

WHETHER OR NOT THE HONORABLE COURT OF APPEALS ERRED IN

HOLDING THAT ‘ANG IGLESIA NI CRISTO’ PROGRAM IS NOT

CONSTITUTIONALLY PROTECTED AS A FORM OF RELIGIOUS EXERCISE

AND EXPRESSION.

II

WHETHER OR NOT THE HONORABLE COURT OF APPEALS ERRED IN

NOT HOLDING THAT BEING AN EXERCISE OF RELIGIOUS FREEDOM,

THE ‘ANG IGLESIA NI CRISTO’ PROGRAM IS SUBJECT TO THE POLICE

POWER OF THE STATE ONLY IN THE EXTREME CASE THAT IT POSES A

CLEAR AND PRESENT DANGER.

III

WHETHER OR NOT THE HONORABLE COURT OF APPEALS ERRED IN

HOLDING THAT THE MTRCB IS VESTED WITH THE POWER TO CENSOR

RELIGIOUS PROGRAMS.

IV

WHETHER OR NOT THE HONORABLE COURT OF APPEALS ERRED IN

HOLDING THAT THE ‘ANG IGLESIA NI CRISTO,’ A PURELY RELIGIOUS

PROGRAM IS INDECENT AND CONTRARY TO LAW AND GOOD

CUSTOMS.

The basic issues can be reduced into two: (1) first, whether the

respondent Board has the power to review petitioner’s TV program

“Ang Iglesia ni Cristo,” and (2) second, assuming it has the power,

whether it gravely abused its discretion when it prohibited the

airing of petitioner’s religious program, series Nos. 115, 119 and

121, for the reason that they constitute an attack against other

religions and that they are indecent, contrary to law and good

customs.

The first issue can be resolved by examining the powers of the

Board under P.D. No. 1986. Its Section 3 pertinently provides:

“Sec. 3 Powers and Functions. — The BOARD shall have the

following functions, powers and duties:

xxx xxx xxx

b) To screen, review and examine all motion pictures as herein

defined, television programs, including publicity materials such as

advertisements, trailers and stills, whether such motion pictures

and publicity materials be for theatrical or non-theatrical

distribution for television broadcast or for general viewing,

imported or produced in the Philippines and in the latter case,

whether they be for local viewing or for export.

c) To approve, delete objectionable portion from and/or prohibit the

importation, exportation, production, copying, distribution, sale,

lease, exhibition and/or television broadcast of the motion pictures,

television programs and publicity materials, subject of the

preceding paragraph, which, in the judgment of the BOARD applying

contemporary Filipino cultural values as standard, are objectionable

for being immoral, indecent, contrary to law and/or good customs,

injurious to the prestige of the Republic of the Philippines and its

people, or with a dangerous tendency to encourage the commission

of violence or of a wrong or crime, such as but not limited to:

i) Those which tend to incite subversion, insurrection, rebellion or

sedition against the State, or otherwise threaten the economic

and/or political stability of the State;

ii) Those which tend to undermine the faith and confidence of the

people, their government and/or duly constituted authorities;

iii) Those which glorify criminals or condone crimes;

iv) Those which serve no other purpose but to satisfy the market for

violence or pornography;

v) Those which tend to abet the traffic in and use of prohibited

drugs;

vi) Those which are libelous or defamatory to the good name and

reputation of any person, whether living or dead;

vii) Those which may constitute contempt of court or of any quasi-

judicial tribunal, or pertain to matters which are sub-judice in

nature (emphasis ours).

The law gives the Board the power to screen, review and examine

all “television programs.” By the clear terms of the law, the Board

has the power to “approve, delete x x x and/or prohibit the x x x

exhibition and/or television broadcast of x x x television programs x

x x.” The law also directs the Board to apply “contemporary Filipino

cultural values as standard” to determine those which are

objectionable for being “immoral, indecent, contrary to law and/or

good customs, injurious to the prestige of the Republic of the

Philippines and its people, or with a dangerous tendency to

encourage the commission of violence or of a wrong or crime.”

Petitioner contends that the term “television program” should not

include religious programs like its program “Ang Iglesia ni Cristo.” A

contrary interpretation, it is urged, will contravene Section 5,

Article III of the Constitution which guarantees that “no law shall be

made respecting an establishment of religion, or prohibiting the

free exercise thereof. The free exercise and enjoyment of religious

profession and worship, without discrimination or preference, shall

forever be allowed.”

We reject petitioner’s submission which need not set us adrift in a

constitutional voyage towards an uncharted sea. Freedom of

religion has been accorded a preferred status by the framers of our

fundamental laws, past and present. We have affirmed this

preferred status well aware that it is “designed to protect the

broadest possible liberty of conscience, to allow each man to

believe as his conscience directs, to profess his beliefs, and to live

as he believes he ought to live, consistent with the liberty of others

and with the common good.”xvi[16] We have also laboriously defined

in our jurisprudence the intersecting umbras and penumbras of the

right to religious profession and worship. To quote the summation

of Mr. Justice Isagani Cruz, our well-known constitutionalist:xvii[17]

Religious Profession and Worship

The right to religious profession and worship has a two-fold aspect,

viz., freedom to believe and freedom to act on one’s beliefs. The

first is absolute as long as the belief is confined within the realm of

thought. The second is subject to regulation where the belief is

translated into external acts that affect the public welfare.

(1) Freedom to Believe

The individual is free to believe (or disbelieve) as he pleases

concerning the hereafter. He may indulge his own theories about

life and death; worship any god he chooses, or none at all; embrace

or reject any religion; acknowledge the divinity of God or of any

being that appeals to his reverence; recognize or deny the

immortality of his soul — in fact, cherish any religious conviction as

he and he alone sees fit. However absurd his beliefs may be to

others, even if they be hostile and heretical to the majority, he has

full freedom to believe as he pleases. He may not be required to

prove his beliefs. He may not be punished for his inability to do so.

Religion, after all, is a matter of faith. ‘Men may believe what they

cannot prove.’ Every one has a right to his beliefs and he may not

be called to account because he cannot prove what he believes.

(2) Freedom to Act on One’s Beliefs

But where the individual externalizes his beliefs in acts or omissions

that affect the public, his freedom to do so becomes subject to the

authority of the State. As great as this liberty may be, religious

freedom, like all the other rights guaranteed in the Constitution,

can be enjoyed only with a proper regard for the rights of others. It

is error to think that the mere invocation of religious freedom will

stalemate the State and render it impotent in protecting the general

welfare. The inherent police power can be exercised to prevent

religious practices inimical to society. And this is true even if such

practices are pursued out of sincere religious conviction and not

merely for the purpose of evading the reasonable requirements or

prohibitions of the law.

Justice Frankfurter put it succinctly: ‘The constitutional provision on

religious freedom terminated disabilities, it did not create new

privileges. It gave religious liberty, not civil immunity. Its essence

is freedom from conformity to religious dogma, not freedom from

conformity to law because of religious dogma.

Accordingly, while one has full freedom to believe in Satan, he may

not offer the object of his piety a human sacrifice, as this would be

murder. Those who literally interpret the Biblical command to “go

forth and multiply” are nevertheless not allowed to contract plural

marriages in violation of the laws against bigamy. A person cannot

refuse to pay taxes on the ground that it would be against his

religious tenets to recognize any authority except that of God alone.

An atheist cannot express his disbelief in acts of derision that

wound the feelings of the faithful. The police power can be validly

asserted against the Indian practice of the suttee born of deep

religious conviction, that calls on the widow to immolate herself at

the funeral pile of her husband.

We thus reject petitioner’s postulate that its religious program is

per se beyond review by the respondent Board. Its public broadcast

on TV of its religious program brings it out of the bosom of internal

belief. Television is a medium that reaches even the eyes and ears

of children. The Court iterates the rule that the exercise of religious

freedom can be regulated by the State when it will bring about the

clear and present danger of some substantive evil which the State is

duty bound to prevent, i.e., serious detriment to the more

overriding interest of public health, public morals, or public welfare.

A laissez faire policy on the exercise of religion can be seductive to

the liberal mind but history counsels the Court against its blind

adoption as religion is and continues to be a volatile area of concern

in our country today. Across the sea and in our shore, the bloodiest

and bitterest wars fought by men were caused by irreconcilable

religious differences. Our country is still not safe from the

recurrence of this stultifying strife considering our warring religious

beliefs and the fanaticism with which some of us cling and claw to

these beliefs. Even now, we have yet to settle the near century old

strife in Mindanao, the roots of which have been nourished by the

mistrust and misunderstanding between our Christian and Muslim

brothers and sisters. The bewildering rise of weird religious cults

espousing violence as an article of faith also proves the wisdom of

our rule rejecting a strict let alone policy on the exercise of religion.

For sure, we shall continue to subject any act pinching the space for

the free exercise of religion to a heightened scrutiny but we shall

not leave its rational exercise to the irrationality of man. For when

religion divides and its exercise destroys, the State should not

stand still.

It is also petitioner’s submission that the respondent appellate

court gravely erred when it affirmed the ruling of the respondent

Board x-rating its TV Program Series Nos. 115, 119, 121 and 128.

The records show that the respondent Board disallowed the

program series for “attacking” other religions. Thus, Exhibits “A”,

“A-1”, (respondent Board’s Voting Slip for Television) reveal that its

reviewing members x-rated Series 115 for “x x x criticizing different

religions, based on their own interpretation of the Bible.” They

suggested that the program should only explain petitioner’s “x x x

own faith and beliefs and avoid attacks on other faiths.” Exhibit

“B” shows that Series No. 119 was x-rated because “the Iglesia ni

Cristo insists on the literal translation of the bible and says that our

Catholic veneration of the Virgin Mary is not to be condoned

because nowhere it is found in the bible that we should do so. This

is intolerance x x x.” Exhibit “C” shows that Series No. 121 was x-

rated “x x x for reasons of the attacks, they do on, specifically, the

Catholic religion. x x x (T)hey can not tell, dictate any other religion

that they are right and the rest are wrong x x x.” Exhibit “D” also

shows that Series No. 128 was not favorably recommended because

it “x x x outrages Catholic and Protestant’s beliefs.” On second

review, it was x-rated because of its “unbalanced interpretations of

some parts of the Bible.”xviii[18] In sum, the respondent Board x-

rated petitioner’s TV program series Nos. 115, 119, 121 and 128

because of petitioner’s controversial biblical interpretations and its

“attacks” against contrary religious beliefs. The respondent

appellate court agreed and even held that the said “attacks” are

indecent, contrary to law and good customs.

We reverse the ruling of the appellate court.

First. Deeply ensconced in our fundamental law is its hostility

against all prior restraints on speech, including religious speech.

Hence, any act that restrains speech is hobbled by the presumption

of invalidity and should be greeted with furrowed brows.xix[19] It is

the burden of the respondent Board to overthrow this presumption.

If it fails to discharge this burden, its act of censorship will be

struck down. It failed in the case at bar.

Second. The evidence shows that the respondent Board x-rated

petitioners TV series for “attacking” other religions, especially the

Catholic church. An examination of the evidence, especially Exhibits

“A”, “A-1”, “B, “C”, and “D” will show that the so-called “attacks”

are mere criticisms of some of the deeply held dogmas and tenets of

other religions. The videotapes were not viewed by the respondent

court as they were not presented as evidence. Yet they were

considered by the respondent court as indecent, contrary to law and

good customs, hence, can be prohibited from public viewing under

Section 3(c) of PD 1986. This ruling clearly suppresses petitioner’s

freedom of speech and interferes with its right to free exercise of

religion. It misappreciates the essence of freedom to differ as

delineated in the benchmark case of Cantwell v. Connecticut,xx[20]

viz.:

xxx xxx xxx

In the realm of religious faith, and in that of political belief, sharp

differences arise. In both fields, the tenets of one man may seem

the rankest error to his neighbor. To persuade others to his own

point of view, the pleader, as we know, at times, resorts to

exaggeration, to vilification of men who have been, or are

prominent in church or state or even to false statements. But the

people of this nation have ordained in the light of history that

inspite of the probability of excesses and abuses, these liberties

are, in the long view, essential to enlightened opinion and right

conduct on the part of the citizens of democracy.

The respondent Board may disagree with the criticisms of other

religions by petitioner but that gives it no excuse to interdict such

criticisms, however, unclean they may be. Under our constitutional

scheme, it is not the task of the State to favor any religion by

protecting it against an attack by another religion. Religious

dogmas and beliefs are often at war and to preserve peace among

their followers, especially the fanatics, the establishment clause of

freedom of religion prohibits the State from leaning towards any

religion. Vis-a-vis religious differences, the State enjoys no banquet

of options. Neutrality alone is its fixed and immovable stance. In

fine, respondent board cannot squelch the speech of petitioner

Iglesia ni Cristo simply because it attacks other religions, even if

said religion happens to be the most numerous church in our

country. In a State where there ought to be no difference between

the appearance and the reality of freedom of religion, the remedy

against bad theology is better theology. The bedrock of freedom of

religion is freedom of thought and it is best served by encouraging

the marketplace of dueling ideas. When the luxury of time permits,

the marketplace of ideas demands that speech should be met by

more speech for it is the spark of opposite speech, the heat of

colliding ideas that can fan the embers of truth.

Third. The respondents cannot also rely on the ground “attacks

against another religion” in x-rating the religious program of

petitioner. Even a sideglance at Section 3 of PD 1986 will reveal

that it is not among the grounds to justify an order prohibiting the

broadcast of petitioner’s television program. The ground “attack

against another religion” was merely added by the respondent

Board in its Rules.xxi[21] This rule is void for it runs smack against

the hoary doctrine that administrative rules and regulations cannot

expand the letter and spirit of the law they seek to enforce.

It is opined that the respondent board can still utilize “attack

against any religion” as a ground allegedly “x x x because Section 3

(c) of PD 1986 prohibits the showing of motion pictures, television

programs and publicity materials which are contrary to law and

Article 201 (2) (b) (3) of the Revised Penal Code punishes anyone

who exhibits “shows which offend any race or religion.” We

respectfully disagree for it is plain that the word “attack” is not

synonymous with the word “offend.” Moreover, Article 201 (2) (b)

(3) of the Revised Penal Code should be invoked to justify the

subsequent punishment of a show which offends any religion. It

cannot be utilized to justify prior censorship of speech. It must be

emphasized that E.O. 876, the law prior to PD 1986, included

“attack against any religion” as a ground for censorship. The

ground was not, however, carried over by PD 1986. Its deletion is a

decree to disuse it. There can be no other intent. Indeed, even the

Executive Department espouses this view. Thus, in an Opinion

dated November 28, 1985 then Minister of Justice, now President of

the Senate, Neptali Gonzales explained:

“x x x

“However, the question whether the BRMPT (now MTRCB) may

preview and censor the subject television program of INC should be

viewed in the light of the provision of Section 3, paragraph (c) of PD

1986, which is substantially the same as the provision of Section 3,

paragraph (c) of E.O. No. 876-A, which prescribes the standards of

censorship, to wit: ‘immoral, indecent, contrary to law and/or good

customs, injurious to the prestige of the Republic of the Philippines

or its people or with dangerous tendency to encourage the

commission of violence, or of a wrong’ as determined by the Board,

‘applying contemporary Filipino cultural values as standard.’ As

stated, the intention of the Board to subject the INC’s television

program to ‘previewing and censorship is prompted by the fact that

its religious program makes mention of beliefs and practices of

other religion.’ On the face of the law itself, there can conceivably

be no basis for censorship of said program by the Board as much as

the alleged reason cited by the Board does not appear to be within

the contemplation of the standards of censorship set by law.”

(Italics supplied)

Fourth. In x-rating the TV program of the petitioner, the

respondents failed to apply the clear and present danger rule. In

American Bible Society v. City of Manila,xxii[22] this Court held: “The

constitutional guaranty of free exercise and enjoyment of religious

profession and worship carries with it the right to disseminate

religious information. Any restraint of such right can be justified

like other restraints on freedom of expression on the ground that

there is a clear and present danger of any substantive evil which

the State has the right to prevent.” In Victoriano vs. Elizalde Rope

Workers Union,xxiii[23] we further ruled that “x x x it is only where it

is unavoidably necessary to prevent an immediate and grave danger

to the security and welfare of the community that infringement of

religious freedom may be justified, and only to the smallest extent

necessary to avoid the danger.”

The records show that the decision of the respondent Board,

affirmed by the respondent appellate court, is completely bereft of

findings of facts to justify the conclusion that the subject video

tapes constitute impermissible attacks against another religion.

There is no showing whatsoever of the type of harm the tapes will

bring about especially the gravity and imminence of the threatened

harm. Prior restraint on speech, including religious speech, cannot

be justified by hypothetical fears but only by the showing of a

substantive and imminent evil which has taken the life of a reality

already on ground.

It is suggested that we re-examine the application of clear and

present danger rule to the case at bar. In the United States, it is

true that the clear and present danger test has undergone

permutations. It was Mr. Justice Holmes who formulated the test in

Schenck v. US,xxiv[24] as follows: “x x x the question in every case is

whether the words used are used in such circumstances and are of

such a nature as to create a clear and present danger that they will

bring about the substantive evils that Congress has a right to

prevent.” Admittedly, the test was originally designed to determine

the latitude which should be given to speech that espouses anti-

government action. Bannered by Justices Holmes and Brandeis, the

test attained its full flowering in the decade of the forties, when its

umbrella was used to protect speech other than subversive

speech.xxv[25] Thus, for instance, the test was applied to annul a

total ban on labor picketing.xxvi[26] The use of the test took a

downswing in the 1950’s when the US Supreme Court decided

Dennis v. United States involving communist conspiracy.xxvii[27] In

Dennis, the components of the test were altered as the High Court

adopted Judge Learned Hand’s formulation that “x x x in each case

[courts] must ask whether the gravity of the ‘evil,’ discounted by its

improbability, justifies such invasion of free speech as is necessary

to avoid the danger.” The imminence requirement of the test was

thus diminished and to that extent, the protection of the rule was

weakened. In 1969, however, the strength of the test was

reinstated in Brandenburg v. Ohio,xxviii[28] when the High Court

restored in the test the imminence requirement, and even added an

intent requirement which according to a noted commentator

ensured that only speech directed at inciting lawlessness could be

punished.xxix[29] Presently in the United States, the clear and

present danger test is not applied to protect low value speeches

such as obscene speech, commercial speech and defamation. Be

that as it may, the test is still applied to four types of speech:

speech that advocates dangerous ideas, speech that provokes a

hostile audience reaction, out of court contempt and release of

information that endangers a fair trial.xxx[30] Hence, even following

the drift of American jurisprudence, there is reason to apply the

clear and present danger test to the case at bar which concerns

speech that attacks other religions and could readily provoke

hostile audience reaction. It cannot be doubted that religious truths

disturb and disturb terribly.

It is also opined that it is inappropriate to apply the clear and

present danger test to the case at bar because the issue involves

the content of speech and not the time, place or manner of speech.

Allegedly, unless the speech is first allowed, its impact cannot be

measured, and the causal connection between the speech and the

evil apprehended cannot be established. The contention overlooks

the fact that the case at bar involves videotapes that are pre-taped

and hence, their speech content is known and not an X quantity.

Given the specific content of the speech, it is not unreasonable to

assume that the respondent Board, with its expertise, can

determine whether its sulphur will bring about the substantive evil

feared by the law.

Finally, it is also opined by Mr. Justice Kapunan that “x x x the

determination of the question as to whether or not such vilification,

exaggeration or fabrication falls within or lies outside the

boundaries of protected speech or expression is a judicial function

which cannot be arrogated by an administrative body such as a

Board of Censors.” He submits that a “system of prior restraint may

only be validly administered by judges and not left to administrative

agencies.” The same submission is made by Mr. Justice Mendoza.

This thoughtful thesis is an attempt to transplant another American

rule in our jurisdiction. Its seedbed was laid down by Mr. Justice

Brennan in his concurring opinion in the 1962 case of Manual

Enterprise v. Day.xxxi[31] By 1965, the US Supreme Court in

Freedman v. Marylandxxxii[32] was ready to hold that “the teaching

of cases is that, because only a judicial determination in an

adversary proceeding ensures the necessary sensitivity to freedom

of expression, only a procedure requiring a judicial determination

suffices to impose a valid final restraint.”xxxiii[33]

While the thesis has a lot to commend itself, we are not ready to

hold that it is unconstitutional for Congress to grant an

administrative body quasi-judicial power to preview and classify TV

programs and enforce its decision subject to review by our courts.

As far back as 1921, we upheld this set-up in Sotto vs. Ruiz,xxxiv[34]

viz.:

“The use of the mails by private persons is in the nature of a

privilege which can be regulated in order to avoid its abuse.

Persons possess no absolute right to put into the mail anything they

please, regardless of its character.

On the other hand, the exclusion of newspaper and other

publications from the mails, in the exercise of executive power, is

extremely delicate in nature and can only be justified where the

statute is unequivocably applicable to the supposed objectionable

publication. In excluding any publication for the mails, the object

should be not to interfere with the freedom of the press or with any

other fundamental right of the people. This is the more true with

reference to articles supposedly libelous than to other particulars of

the law, since whether an article is or is not libelous, is

fundamentally a legal question. In order for there to be due process

of law, the action of the Director of Posts must be subject to

revision by the courts in case he had abused his discretion or

exceeded his authority. (Ex-parte Jackson [1878], 96 U.S., 727;

Public Clearing House vs. Coyne [1903], 194 U.S., 497; Post

Publishing Co. vs. Murray [1916], 23-Fed., 773)

As has been said, the performance of the duty of determining

whether a publication contains printed matter of a libelous

character rests with the Director of Posts and involves the exercise

of his judgment and discretion. Every intendment of the law is in

favor of the correctness of his action. The rule is (and we go only to

those cases coming from the United States Supreme Court and

pertaining to the United States Postmaster-General), that the courts

will not interfere with the decision of the Director of Posts unless

clearly of opinion that it was wrong. (Bates & Guilid Co. vs. Payne

[1904], 194 U.S., 106; Smith vs. Hitchcock [1912], 226 U.S., 63;

Masses Pub. Co. vs. Patten [1917], 246 Fed., 24. But see David vs.

Brown [1900], 103 Fed., 909, announcing a somewhat different

doctrine and relied upon by the Attorney-General).

To be sure, legal scholars in the United States are still debating the

proposition whether or not courts alone are competent to decide

whether speech is constitutionally protected.xxxv[35] The issue

involves highly arguable policy considerations and can be better

addressed by our legislators.

IN VIEW WHEREOF, the Decision of the respondent Court of Appeals

dated March 24, 1995 is affirmed insofar as it sustained the

jurisdiction of the respondent MTRCB to review petitioner’s TV

program entitled “Ang Iglesia ni Cristo,” and is reversed and set

aside insofar as it sustained the action of the respondent MTRCB x-

rating petitioner’s TV Program Series Nos. 115, 119, and 121. No

costs.

SO ORDERED.

IGLESIA NI CRISTO VS. COURT OF APPEALS [259 SCRA 529; G.R. NO.

119673; 26 JUL 1996]

Sunday, February 08, 2009 Posted by Coffeeholic Writes

Labels: Case Digests, Political Law

Facts: Petitioner has a television program entitled "Ang Iglesia ni Cristo"

aired on Channel 2 every Saturday and on Channel 13 every Sunday. The

program presents and propagates petitioner's religious beliefs, doctrines and

practices often times in comparative studies with other religions. Petitioner

submitted to the respondent Board of Review for Moving Pictures and

Television the VTR tapes of its TV program Series Nos. 116, 119, 121 and

128. The Board classified the series as "X" or not for public viewing on the

ground that they "offend and constitute an attack against other religions

which is expressly prohibited by law." On November 28, 1992, it appealed to

the Office of the President the classification of its TV Series No. 128 which

allowed it through a letter of former Executive Secretary Edelmiro A.

Amante, Sr., addressed for Henrietta S. Mendez reversing the decision of the

respondent Board. According to the letter the episode in is protected by the

constitutional guarantee of free speech and expression and no indication

that the episode poses any clear and present danger. Petitioner also filed

Civil Case. Petitioner alleged that the respondent Board acted without

jurisdiction or with grave abuse of discretion in requiring petitioner to submit

the VTR tapes of its TV program and in x-rating them. It cited its TV Program

Series Nos. 115, 119, 121 and 128. In their Answer, respondent Board

invoked its power under PD No. 19861 in relation to Article 201 of the

Revised Penal Code. The Iglesia ni Cristo insists on the literal translation of

the bible and says that our (Catholic) veneration of the Virgin Mary is not to

be condoned because nowhere it is found in the bible. The board contended

that it outrages Catholic and Protestant's beliefs. RTC ruled in favor of

petitioners. CA however reversed it hence this petition.

Issue: Whether or Not the "ang iglesia ni cristo" program is not

constitutionally protected as a form of religious exercise and expression.

Held: Yes. Any act that restrains speech is accompanied with presumption of

invalidity. It is the burden of the respondent Board to overthrow this

presumption. If it fails to discharge this burden, its act of censorship will be

struck down. This is true in this case. So-called "attacks" are mere criticisms

of some of the deeply held dogmas and tenets of other religions. RTC’s ruling

clearly suppresses petitioner's freedom of speech and interferes with its right

to free exercise of religion. “attack” is different from “offend” any race or

religion. The respondent Board may disagree with the criticisms of other

religions by petitioner but that gives it no excuse to interdict such criticisms,

however, unclean they may be. Under our constitutional scheme, it is not the

task of the State to favor any religion by protecting it against an attack by

another religion. Religious dogmas and beliefs are often at war and to

preserve peace among their followers, especially the fanatics, the

establishment clause of freedom of religion prohibits the State from leaning

towards any religion. Respondent board cannot censor the speech of

petitioner Iglesia ni Cristo simply because it attacks other religions, even if

said religion happens to be the most numerous church in our country. The

basis of freedom of religion is freedom of thought and it is best served by

encouraging the marketplace of dueling ideas. It is only where it is

unavoidably necessary to prevent an immediate and grave danger to the

security and welfare of the community that infringement of religious freedom

may be justified, and only to the smallest extent necessary to avoid the

danger. There is no showing whatsoever of the type of harm the tapes will

bring about especially the gravity and imminence of the threatened harm.

Prior restraint on speech, including religious speech, cannot be justified by

hypothetical fears but only by the showing of a substantive and imminent

evil. It is inappropriate to apply the clear and present danger test to the case

at bar because the issue involves the content of speech and not the time,

place or manner of speech. Allegedly, unless the speech is first allowed, its

impact cannot be measured, and the causal connection between the speech

and the evil apprehended cannot be established. The determination of the

question as to whether or not such vilification, exaggeration or fabrication

falls within or lies outside the boundaries of protected speech or expression

is a judicial function which cannot be arrogated by an administrative body

such as a Board of Censors." A system of prior restraint may only be validly

administered by judges and not left to administrative agencies.

Iglesia ni Cristo v CA 259 SCRA 529 (1996)

F: This is a petition for review on the decision of the CA affirming action of

respondent Board of Review For Moving Pictures and Television that x-rated

the TV Program "Ang Iglesia ni Cristo" classifying it not for public viewing on

grounds that they offend and constitute an attack against other religions

which is expressly prohibited by law. Respondent contends the Board acted

without jurisdiction and in grave abuse of discretion by requiring them to

submit VTR tapes and x-rating them and suppression of freedom of

expression. Trial court rendered judgment ordering the Board to give

petitioner the permit for their TV program while ordering petitioners to

refrain from attacking and offending other religious sectors from their

program. In their motion for reconsideration the petitioner prays for the

deletion of the order of the court to make them subject to the requirement of

submitting the VTR tapes of their programs for review prior to showing on

television. Such motion was granted. Respondent board appealed before the

CA which reversed the decision of the lower court affirming the jurisdiction

and power of the board to review the TV program. In their petition for review

on certiorari, petitioner assails the jurisdiction of the Board over reviewing of

their TV program and its grave abuse of discretion of its power to review if

they are indeed vested with such.

Issue: whether or not the Board has jurisdiction over the case at bar and

whether or not it has acted with grave abuse of discretion.

Held: The court affirmed the jurisdiction of the Board to review TV programs

by virtue of the powers vested upon it by PD 1986. On the account of

suppression of religious freedom, the court ruled that any act that restrains

speech is accompanied with presumption of invalidity. The burden lies upon

the Board to overthrow this presumption. The decision of the lower court is a

suppression of the petitioner’s freedom of speech and free exercise of

religion. Respondent board cannot censor the speech of petitioner Iglesia ni

Cristo simply because it attacks other religions. It is only where it is

unavoidably necessary to prevent an immediate and grave danger to the

security and welfare of the community that infringement of religious freedom

may be justified. There is no showing whatsoever of the type of harm the

tapes will bring about especially the gravity and imminence of the

threatened harm. Prior restraint on speech, including religious speech,

cannot be justified by hypothetical fears but only by the showing of a

substantive and imminent evil. Thus the court affirmed the jurisdiction of the

Board to review the petitioner’s TV program while it reversed and set aside

the decision of the lower court that sustained the act of respondent in x-

rating the TV program of the petitioner.

2 fold aspects of religious profession and worship namely:

1.    Freedom to believe (absolute)

Freedom to act on one’s belief – where an individual externalizes his beliefs

in acts or omissions affecting the public, this freedom to do so becomes

subject to the regulation authority of the state.

Cabansag vs Fernandez 6/22/11 9:55 AM

Republic of the Philippines

SUPREME COURT

Manila

EN BANC

G.R. No. L-8974           October 18, 1957

APOLONIO CABANSAG, plaintiff,

vs.

GEMINIANA MARIA FERNANDEZ, ET AL., defendants.

APOLONIO CABANSAG, ROBERTO V. MERRERA and RUFINO V.

MERRERA, respondents-appellants.

Office of the Solicitor General Ambrosio Padilla, Assistant Solicitor General

Jose G. Bautista and Solicitor Troadio T. Quiazon, Jr., appellee.

Merrera and Merrera for appellants.

BAUTISTA ANGELO, J.:

This is a contempt proceeding which arose in Civil Case No. 9564 of the

Court of First Instance of Pangasinan wherein Apolonio Cabansag and his

lawyers Roberto V. Merrera were found guilty and sentenced the first to pay

a fine of P20 and the last two P50 each with the warning that a repetition of

the of offense will next time be heavily dealt with.

Apolonio Cabansag filed on January 13, 1947 in the Court of First Instance of

Pangasinan a complaint seeking the ejectment of Geminiana Fernandez, et

al. from a parcel of land. Defendants filed their answer on January 31, 1947

and a motion to dismiss on February 2, 1947 and a motion of plaintiff's

counsel, set the case for hearing on July 30, 1947. The meeting was

postponed to August 8, 1947. On that day only one witness testified and the

case was postponed to August 25, 1947. Thereafter, three incidents

developed, namely: one regarding a claim for damages which was answered

by defendants, another concerning the issuance of a writ of preliminary

injunction which was set for on March 23, 1948, and the third relative to an

alleged contempt for violation of an agreement of the parties approved by

the court. Pleadings were filed by the parties on these incidents and the

court set the case for hearing on October 27, 1948. Hearing was postponed

to December 10, 1948. On this date, only part of the evidence was received

and the next hearing was scheduled for January 24,1949 when again only a

part of the evidence was received and the case was continued to October 4,

1949.

On October 4, 1949, the court, presided over by Judge Villamor upon petition

of both parties, ordered the stenographers who took down the notes during

the previous hearings to transcribe them within 15 days upon payment of

their fees, and the hearing was postponed until the transcript of said notes

had been submitted. Notwithstanding the failure of the stenographers to

transcribe their notes, the hearing was set for March 17, 1950. Two more

postponements followed for March 23, 1950 and March 27, 1950. On August

9, 1950, August 23, 1950, September 26, 1950 and November 29, 1950,

hearings were had but the case was only partly tried to be postponed again

to January 30, 1951 and February 19, 1951. Partial hearings were held on

February 20, 1951, March 12, 1951 and June 6,1951. These hearings were

followed by three more postponements and on August 15, 1951, the case

was partially heard. After this partial hearing, the trial was continued on

March 6, 1952 only to be postponed to May 27, 1952. No hearing took place

on said date and the case was set for continuation on December 9, 1952

when the court, Judge Pasicolan presiding, issued an order suggesting to the

parties to arrange with the stenographers who took down the notes to

transcribe their respective notes and that the case would be set for hearing

after the submission of the transcript. From December 9, 1952 to August 12,

1954, no further step was taken either by the court or any of the contending

parties in the case. .

On December 30, 1953, President Magsaysay assumed office, he issued

Executive Order No. I creating the Presidential Complaints and Action

Commission (PCAC), which was later superseded by Executive Order 19

promulgated on March 17, 1954. And on August 12, 1954 Apolonio

Cabansag, apparently irked and disappointed by the delay in the disposition

of his case, wrote the PCAC, a letter copy which he furnished the Secretary of

Justice and the Executive Judge of the Court of First Instance of Pangasinan,

which reads:

We, poor people of the Philippines are very grateful for the creation of your

Office. Unlike in the old days, poor people are not heard, but now the PCAC is

the sword of Damocles ready to smite bureaucratic aristocracy. Poor people

can now rely on PCAC to help them.

Undaunted, the undersigned begs to request the help of the PCAC in the

interest of public service, as President Magsaysay has in mind to create the

said PACC, to have his old case stated above be terminated once and for all.

The undersigned has long since been deprived of his land thru the careful

maneuvers of a tactical lawyer. The said case which had long been pending

could not be decided due to the fact that the transcript of the records has

not, as yet, been transcribed by the stenographers who took the

stenographic notes. The new Judges could not proceed to hear the case

before the transcription of the said notes. The stenographers who took the

notes are now assigned in another courts. It seems that the undersigned will

be deprived indefinitely of his right of possession over the land he owns. He

has no other recourse than to ask the help of the ever willing PCAC to help

him solve his predicament at an early date.

Now then, Mr. Chief, the undersigned relies on you to do your utmost best to

bring justice to its final destination. My confidence reposes in you. Thanks.

Most confidently yours,

(Sgd.) APOLONIO CABANSAG

                     Plaintiff

Upon the receipt of the letter, the Secretary of Justice indorsed it to the Clerk

of Court of First Instance of Pangasinan instructing him to require the

stenographers concerned to transcribe their notes in Civil Case No. 9564.

The clerk of court, upon receipt of this instruction on August 27, 1954,

referred the matter to Judge Jesus P. Morfe before whom the case was then

informing him that the two stenographers concerned, Miss Iluminada Abello

and Juan Gaspar, have already been assigned elsewhere. On the same date,

Judge Morfe wrote the Secretary of Justice informing him that under

provisions of Act No. 2383 and Section 12 of Rule 41 of the Rules of Court,

said stenographers are not obliged to transcribe their notes except in cases

of appeal and that since the parties are not poor litigants, they are not

entitled to transcription free of charge, aside from the fact that said

stenographers were no longer under his jurisdiction.

Meanwhile, on September 1, 1954, Atty. Manuel Fernandez, counsel for

defendants, filed a motion before Judge Morfe praying that Apolonio

Cabansag be declared in contempt of court for an alleged scurrilous remark

he made in his letter to the PCAC to the effect that he, Cabansag, has long

been deprived of his land "thru the careful maneuvers of a tactical lawyer",

to which counsel for Cabansag replied with a counter-charge praying that

Atty. Fernandez be in turn declared in contempt because of certain

contemptuous remarks made by him in his pleading. Acting on these charges

and counter- charges, on September 14, 1954, Judge Morfe dismissed both

charges but ordered Cabansag to show cause in writing within 10 days why

he should not be held liable for contempt for sending the above letter to the

PCAC which tended to degrade the court in the eyes of the President

and the people. Cabansag filed his answer stating that he did not have the

idea to besmirch the dignity or belittle the respect due the court nor was he

actuated with malice when he addressed the letter to the PCAC; that there is

no single contemptuous word in said letter nor was it intended to give the

Chief Executive a wrong impression or opinion of the court; and that if there

was any inefficiency in the disposal of his case, the same was committed by

the judges who previously intervened in the case.

In connection with this answer, the lawyers of Cabansag, Roberto V. Merrera

and Rufino V. Merrera' also submitted a written manifestation stating that

the sending of the letter to their client to the PCAC was through their

knowledge and consent because they believed that there was nothing wrong

in doing so. And it appearing that said attorneys had a hand in the writing

and remittance of the letter to the PCAC, Judge Morfe on, on September 29,

1954, issued another order requiring also said attorneys to show cause why

they should not likewise be held for contempt for having committed acts

which tend to impede, obstruct or degrade the administration of justice.

Anent the charge for contempt preferred by Judge Morfe against Apolonio

Cabansag, several incidents took place touching on the right of the Special

Counsel of the Department of Justice to appear as counsel for Cabansag,

which were however settled when the court allowed said Special Counsel to

appear as amicus curiae in his official capacity. In addition to this Special

Counsel, other members of the local bar were likewise allowed to appear for

respondents in view of the importance of the issues involved. After due

hearing, where the counsel of respondents were allowed to argue and submit

memoranda, the decision finding respondents guilty of contempt and

sentencing them to pay a fine as stated in the early part of this decision.

Respondents in due time appealed to this Court.

The issues involved in this appeal appear well stated in the decision of the

trial Court. They are: (a) Did the writing in the letter in question to the PCAC

tend directly or indirectly to put the lower court into disrepute or belittle,

degrade or embarrass it in its administration of justice?; and (b) Did writing

of said letter tend to draw the intervention of the PCAC in the instant case

which will have the effect of undermining the court's judicial independence?

We agree that the trial court that courts have the power to preserve their

integrity and maintain their dignity without which their administration of

justice is bound to falter or fail (Villavicencio vs. Lukban, 39 Phil., 778;

Borromeo vs. Mariano, 41 Phil., 322). This is the preservative power to

punish for contempt (Rule 64, Rules of Court; Villavicencio vs. Lukban,

supra). This power is inherent in all courts and essential to their right of self-

preservation (Slade Perkins vs. Director of Prisons, 58 Phil., 271). In order

that it may conduct its business unhampered by publications which tends to

impair the impartiality of its decisions or otherwise obstruct the

administration of justice, the court will not hesitate to exercise it regardless

of who is affected. For, "as important as is the maintenance of unmuzzled

press and the free exercise of the rights of the citizen is the maintenance of

the independence of the judiciary" (In re Lozano and Quevedo, 54 Phil.,

801).The reason for this is that respect of the courts guarantees the stability

of their institution. Without such said institution would be resting on a very

shaky foundation (Salcedo vs. Hernandez, 61 Phil., 724).

The question that now arises is: Has the lower court legitimately and

justifiably exercised this power in the instant case?

The lower court tells us that it has because in its opinion the act of

respondents to put it belittle or degrade or embarrass it in its administration

of justice, and so it punished them for contempt to protect its judicial

independence. But appellants believe otherwise, for they contend that in

sending the letter in question to the PCAC, they did nothing but to exercise

their right to petition the government for redress of their grievance as

guaranteed by our constitution (section 1, paragraph 8, Article III).

The very idea of a government, republican in form, implies a right on the

part of its citizens to meet peaceably for consultation in respect affairs and

to petition for a redress of grievances." The First Amendments of the Federal

expressly guarantees that right against abridgement by Congress. But

mention does not argue exclusion elsewhere. For the right is one that cannot

be denied without violating those fundamental principles of liberty and

justice which lie at the base of all civil and political institutions,- principles

which the Fourteenth Amendment embodies in the general terms of its due

process clause. (Emerson and Haber, Political and Civil Rights in the United

States, p. 419.).

We are therefore confronted with a clash of two fundamental rights which lie

at the bottom of our democratic institutions-the independence of the

judiciary the right to petition the government for redress of grievance. How

to balance and reconcile the exercise of these rights is the problem posed in

the case before us.

. . . A free press is not to be judiciary, nor an independent judiciary to a free

press. Neither has primacy over the other; both are indispensable to a free

society.

The freedom of the press in itself presupposes an independent judiciary

through which that freedom may, if necessary, be vindicated. And one of the

potent means of assuring judges their independence is a free press. (Justice

Frankfurter, concurring in Pennekamp vs. Florida, 328 U.S. 354-356)

Two theoretical formulas had been devised in the determination of

conflicting rights of similar import in an attempt to draw the proper

constitutional boundary between freedom of expression and independence

of the judiciary. These are the "clear and present danger" rule and the

"dangerous tendency" rule. The first as interpreted in a number of cases,

means that the evil consequence of the comment or utterance must be

"extremely serious and the degree of imminence extremely high" before the

utterance can be punished. The danger to be guarded against is the

"substantive evil" sought to be prevented. And this evil is primarily the

"disorderly and unfair administration of justice." This test establishes a

definite rule in constitutional law. It provides the criterion as to what words

maybe published. Under this rule, the advocacy of ideas cannot

constitutionally be abridged unless there is a clear and present danger that

such advocacy will harm the administration of justice.

This rule had its origin in Schenck vs. U. S. (249) U. S. 47), promulgated in

1919, and ever since it has afforded a practical guidance in a great variety of

cases in which the scope of the constitutional protection of freedom of

expression was put in issue.1 In one of said cases, the United States Supreme

Court has made the significant suggestion that this rule "is an appropriate

guide in determining the constitutionality of restriction upon expression

where the substantial evil sought to be prevented by the restriction is

destruction of life or property or invasion of the right of privacy" Thornhill vs.

Alabama, 310 U.S. 88).

Thus, speaking of the extent and scope of the application of this rule, the

Supreme Court of the United States said "Clear and present danger of

substantive evils as a result of indiscriminate publications regarding judicial

proceedings justifies an impairment of the constitutional right of freedom of

speech and press only if the evils are extremely serious and the degree of

imminence extremely high. . . . A public utterance or publication is not to be

denied the constitutional protection of freedom of speech and press merely

because it concerns a judicial proceeding still pending in the courts, upon the

theory that in such a case it must necessarily tend to obstruct the orderly

and fair administration of justice. The possibility of engendering disrespect

for the judiciary as a result of the published criticism of a judge is not such a

substantive evil as will justify impairment of the constitutional right of

freedom of speech and press." (Bridges vs. California, 314 U.S. 252, syllabi)

No less important is the ruling on the power of the court to punish for

contempt in relation to the freedom of speech and press. We quote;

"Freedom of speech and press should not be impaired through the exercise

of the punish for contempt of court unless there is no doubt that the

utterances in question are a serious and imminent threat to the

administration of justice. A judge may hold in contempt one who ventures to

publish anything that tends to make him unpopular or to belittle him. . . . The

vehemence of the language used in newspaper publications concerning a

judge's decision is not alone the measure of the power to punish for

contempt. The fires which it kindles must constitute an imminent not merely

a likely, threat to the administration of justice. (Craig vs. Harney, 331 U. S.

367, syllabi)

And in weighing the danger of possible interference with the courts by

newspaper criticism against the right of free speech to determine whether

such criticism may constitutionally be punished as contempt, it was ruled

that "freedom of public comment should in borderline instances weigh

heavily against a possible tendency to influence pending cases."

(Pennekamp vs. Florida, 328 U. S. 331).

The question in every case, according to Justice Holmes, is whether the

words used are used in such circumstances and are of such a nature as to

create a clear and present danger that they will bring about the substantive

evils that congress has a right to prevent. It is a question of proximity and

degree (Schenck vs. U. S., supra).

The "dangerous tendency" rule, on the other hand, has been adopted in

cases where extreme difficulty is confronted determining where the freedom

of expression ends and the right of courts to protect their independence

begins. There must be a remedy to borderline cases and the basic principle

of this rule lies in that the freedom of speech and of the press, as well as the

right to petition for redress of grievance, while guaranteed by the

constitution, are not absolute. They are subject to restrictions and

limitations, one of them being the protection of the courts against contempt

(Gilbert vs. Minnesota, 254 U. S. 325.)

This rule may be epitomized as follows: If the words uttered create a

dangerous tendency which the state has a right to prevent, then such words

are punishable. It is not necessary that some definite or immediate acts of

force, violence, or unlawfulness be advocated. It is sufficient that such acts

be advocated in general terms. Nor is it necessary that the language used be

reasonably calculated to incite persons to acts of force, violence or

unlawfulness. It is sufficient if the natural tendency and probable effect of

the utterance be to bring about the substantive evil the utterance be to bring

about the substantive evil which the legislative body seeks to prevent.

(Gitlow vs. New York, 268 U.S. 652.).

It is a fundamental principle, long established, that the freedom of speech

and of the press which is secured by the Constitution does not confer an

absolute right to speak or publish, without responsibility, whatever one may

choose, or an unrestricted and unbridled license that gives immunity for

every possible use of language, and prevents the punishment of those who

abuse this freedom. . . . Reasonably limited, it was said by story in the

passage cited this freedom is an inestimable privilege in a free government;

without such limitation, it might become the scourge of the Republic.

xxx           xxx           xxx

And, for yet more imperative reasons, a state may punish utterances

endangering the foundations of organized government and threatening its

overthrow by unlawful means. These imperil its own existence as a

constitutional state. . . .

xxx           xxx           xxx

. . . And the immediate danger is none the less real and substantial because

the effect of a given utterance cannot be accurately foreseen. The state

cannot reasonably be required to measure the danger from every such

utterance in the nice balance of a jeweler's scale. A single revolutionary

spark, may kindle a fire that, smoldering for a time, may burst into a

sweeping and destructive conflagration. It cannot be said that the state is

acting arbitrarily or unreasonably when, in the exercise of its judgment as to

the measures necessary to protect the public peace and safety it seeks to

extinguish the spark without waiting until it has enkindled the flame or

blazed into the conflagration. It cannot reasonably be required to defer the

adoption of measures for its own peace and safety until the revolutionary

utterances lead to actual disturbances of the public peace or imminent and

immediate danger of its own destruction; but it may, in the exercise of its

judgment, suppress the threatened danger in its incipiency. In People vs.

Lloyd, supra, p. 35 (136 N. E. 505), it was aptly said: Manifestly, the

legislature has authority to forbid the advocacy of a doctrine until there is a

present and imminent danger of the success of the plan advocated. If the

state were compelled to wait until the apprehended danger became certain,

than its right to protect itself would come into being simultaneously with the

overthrow of the government, when there would be neither prosecuting

officers nor courts for the enforcement of the law." Gitlow va. New York,

supra.)

The question then to be determined is: Has the letter of Cabansag created a

sufficient danger to a fair administration of justice? Did its remittance to the

PCAC create a danger sufficiently imminent to come under the two rules

mentioned above?

Even if we make a careful analysis of the letter sent by appellant Cabansag

to the PCAC which has given rise to the present contempt proceedings, we

would at once see that it was far from his mind to put the court in ridicule

and much less to belittle or degrade it in the eyes of those to whom the

letter was addressed for, undoubtedly, he was compelled to act the way he

did simply because he saw no other way of obtaining the early termination of

his case. This is clearly inferable from its context wherein, in respectful and

courteous language, Cabansag gave vent to his feeling when he said that he

"has long since been deprived of his land thru the careful maneuvers of a

tactical lawyer"; that the case which had long been pending could not be

decided due to the fact that the transcript of the records has not as yet, been

transcribed by the stenographer who took the stenographic notes", and that

the new Judges could not proceed to hear the case before the transcription

of the said notes." Analyzing said utterances, one would see that if they ever

criticize, "the criticism refers, not to the court, but to opposing counsel

whose tactical maneuvers" has allegedly caused the undue delay of the

case. The grievance or complaint, if any, is addressed to the stenographers

for their apparent indifference in transcribing their notes.

The only disturbing effect of the letter which perhaps has been the

motivating factor of the lodging of the contempt charge by the trial judge is

the fact that the letter was sent to the Office of the President asking for help

because of the precarious predicament of Cabansag. While the course of

action he had taken may not be a wise one for it would have been proper

had he addressed his letter to the Secretary of Justice or to the Supreme

Court, such act alone would not be contemptuous. To be so the danger must

cause a serious imminent threat to the administration of justice. Nor can we

infer that such act has "a dangerous tendency" to belittle the court or

undermine the administration of justice for the writer merely exercised his

constitutional right to petition the government for redress of a legitimate

grievance.

The fact is that even the trial court itself has at the beginning entertained

such impression when it found that the criticism was directed not against the

court but against the counsel of the opposite party, and that only on second

thought did it change its mind when it developed that the act of Cabansag

was prompted by the advice of his lawyers. Nor can it be contended that the

latter is groundless or one motivated by malice. The circumstances borne by

the record which preceded the sending of that letter show that there was an

apparent cause for grievance.

Thus, the record shows that on January 13, 1947, or more than 8 years ago,

appellant Cabansag filed with the lower court a complaint against Geminiana

Fernandez, et al. seeking to eject them from a portion of land covered by a

torrens title. On October 4, 1949, or two years thereafter, the court, Judge

Villamor presiding, issued an order requiring the stenographers who took

down the notes to transcribe them within 15 days upon payment of their

corresponding fees. On December 9, 1952, or almost 3 years thereafter, the

court, Judge Pasicolan presiding, issued a similar order requiring the

stenographers to transcribe their notes and decreeing that the case be set

for hearing after said notes had been transcribed. No further step was taken

from his last date either by the by the court or by the opposing parties.

Meanwhile, the stenographers were given assignment elsewhere, and when

this matter brought to the attention of the court by its own clerk of court,

said court in an indorsement sent to the Secretary of Justice expressed its

inability to take action in view of the fact that the stenographers were no

longer under its jurisdiction. And in said indorsement nothing was said about

its readiness to continue the trial even in the absence of the transcript of the

notes.

Under such a state of affairs, appellant Cabansag cannot certainly be blamed

for entertaining the belief that the only way by which he could obtain redress

of his grievance is to address his letter to the PCAC which after all is the

office created by the late President to receive and hear all complaints

against officials and employees of the government to facilitate which the

assistance and cooperation of all the executive departments were enjoined

(Executive Order No. 1, as amended by Executive Order No. 19). And one of

the departments that come under the control of the President is the

Department of Justice which under the law has administrative supervision

over courts of first instance.(Section 83, Revised Administrative Code) The

PCAC is part of the Office of the President. It can, therefore, be said that the

letter of Cabansag though sent to the PCAC is intended for the Department

of Justice where it properly belongs. Consequently, the sending of that letter

may be considered as one sent to the Department of Justice and as such

cannot constitute undue publication that would place him beyond the mantle

of protection of our constitution.

. . . under the presidential type of government which we adopted and

considering the departmental organization established and continued in

force by paragraph, section 12, Article VII, of our Constitution, all executive

and administrative organizations are adjuncts of the Executive Department,

the heads of the executive departments are assistants and agents of the

Chief Executive, and, except in cases where the Chief Executive is required

by the Constitution or the law to act in person or the exigencies of the

situation demand that he act personally, the multifarious executive and

administrative functions of the Chief Executive are performed by and

through the executive departments, and the acts of the secretaries of such

departments, performed and promulgated in the regular course of business,

are unless disapproved or reprobated by the Chief Executive presumptively

the acts of the Chief Executive. (Villena vs. The Secretary of the Interior, 67

Phil., 451, 463.)

We would only add one word in connection with the participation in the

incident of Cabansag's co-appellants, Attys. Roberto V. Merrera and Rufino V.

Merrera. While the conduct of Cabansag may be justified considering that,

being a layman, he is unaware of the technical rules of law and procedure

which may place him under the protective mantle of our constitution, such

does not obtain with regard to his co-appellants. Being learned in the law

and officers of the court, they should have acted with more care and

circumspection in advising their client to avoid undue embarrassment to the

court or unnecessary interference with the normal course of its proceedings.

Their duty as lawyers is always to observe utmost respect to the court and

defend it against unjust criticism and clamor. Had they observed a more

judicious behavior, they would have avoided the unpleasant incident that

had arisen. However, the record is bereft of any proof showing improper

motive on their part, much less bad faith in their actuation. But they should

be warned, as we now do, that a commission of a similar misstep in the

future would render them amenable to a more severe disciplinary action.

Wherefore, the decision appealed from is reversed, without pronouncement

as to costs.

Sanidad 6/22/11 9:55 AM

Sanidad vs. Comelec

Facts:

This is a petition for certiorari assailing the constitutionality of Section

19 of Comelece Resolution No. 2167 on the ground that it violates the

constitutional guarantee of the freedom of expression and of the press. On

October 23, 1989, Republic Act. No. 6766, entitled “AN ACT PROVIDING FOR

AN ORGANIC ACT FOR THE CORDILLERA AUTONOMOUS REGION” was

enacted into law. Pursuant to said law, the City of Baguio and the Cordilleras

which consist of the provinces of Benguet, Mountain Province, Ifugao, Abra

and Kalinga-Apayao, all comprising gthe Cordillera Autonomous Region, shall

take part in a plebiscite for the ratification of said Organic Act originally

scheduled last December 27, 1989 which was however, reset to January 30,

1990 by virtue of Comelec Resolution No. 2226 dated December 27, 1989.

The Commission on Elections, by virtue of the power vested by the 1987

Constitution, the Omnibus Election Code (BP 881), said R.A. 6766 and other

pertinent election laws, promulgated Resolution No. 2167, to govern the

conduct of the plebiscite on the said Organic Act for the Cordillera

Autonomous Region.

In a petition dated November 20, 1989, herein petitioner Pablito Sanidad,

who claims to be a newspaper columnist of the “OVERVIEW” for the BAGUIO

MIDLAND COURIER, a weekly newspaper circulated in the City of Baguio and

the Cordilleras, assailed the constitutionality of Section 19 of Comelec

Resolution No. 2167, which Provides:

Section 19: Prohibition on columnists, commentators or announcers. –

During the plebiscite campaign period, on the day before and on the

plebiscite day, no mass media columnist, commentator, announcer or

personality shall use his column or radio or television time to campaign for

the plebiscite issue.

It is alleged by petitioner that said provision is void and

unconstitutional because it violates the constitutional guarantees of the

freedom of expression and of the press enshrined in the Constitution. Unlike

a regular news reporter or news correspondent who merely reports the news,

petitioner maintains that as a columnist, his column obviously and

necessarily contains and reflects his opinions, view and beliefs on any issue

or subject about which he writes. Petitioner likewise maintains that if media

practitioners were to express their views, beliefs and opinions on the issue

submitted to a plebiscite, it would in fact help in the government drive and

desire to disseminate information, and hear, as well as ventilate, all sides of

the issue.

Issue:

Whether or not Section 19 of Comelec Resolution No. 2167 is

unconstitutional

Ruling:

The Supreme Court ruled that Section 19 of Comelec Res. No. 2167 is

unconstitutional.

It is clear from Art. IX-C of the 1987 Constitution that what was granted

to the Comelec was the power to supervise and regulate the use and

enjoyment of franchises, permits or other grants issued for the operation of

transportation or other public utilities, media of communication or

information to the end that equal opportunity, time and space, and the right

to reply, including reasonable, equal rates therefore, for the public

information campaigns and forums among candidates are ensured. The evil

sought to be prevented by this provision is the possibility that a franchise

holder may favor or give any undue advantage to a candidate in terms of

advertising space or radio or television time. This is also the reason why a

“columnist, commentator, announcer or personality, who is a candidate for

any elective office to required to take a leave of absence from his work

during the campaign period (2nd par. Section 11(b) R.A. 6646). It cannot be

gainsaid that columnist or commentator who is also a candidate would be

more exposed to the voters to the prejudice of other candidates unless

required to take a leave of absence.

However, neither Article IX-C of the Constitution nor Section 11 (b), 2nd

par. Of R.A. 6646 can be construed to mean that the Comelec has also been

granted the right to supervise and regulate the exercise of media

practitioners themselves of their right of expression during plebiscite

periods. Media practitioners exercising their freedom of expression during

plebiscite periods are neither the franchise holders nor the candidates. In

fact, there are no candidates involved in plebiscite. Therefore, section 19 of

Comelec Resolution No. 2167 has no statutory basis.

Plebiscite Issue are matters of public concern and importance. The

people’s right to be informed and to be able to freely and intelligently make

a decision would be better served by access to an unabridged discussion of

the issue, including the forum. The people affected by the Issue presented in

a plebiscite should not be unduly burdened by restrictions on the forum

where the right to expression but they do not guarantee full dissemination of

information to the public concerned because they are limited to either

specific portions in newspapers or to specific radio or television times.

The instant petition is granted, Section 19 of Comelec Res. No, 2167 is

declared null and void and unconstitutional.

Sanidad vs. Commission on Elections 

[GR L-44640, 12 October 1976]; also Guzman vs. Comelec [GR L-44684], and

Gonzales vs. Commission on Elections [GR L-44714] 

Facts: On 2 September 1976, President Ferdinand E. Marcos issued

Presidential Decree 991 calling for a national referendum on 16 October

1976 for the Citizens Assemblies ("barangays") to resolve, among other

things, the issues of martial law, the interim assembly, its replacement, the

powers of such replacement, the period of its existence, the length of the

period for the exercise by the President of his present powers. 20 days after

or on 22 September 1976, the President issued another related decree,

Presidential Decree 1031, amending the previous Presidential Decree 991,

by declaring the provisions of Presidential Decree 229 providing for the

manner of voting and canvass of votes in "barangays" (Citizens Assemblies)

applicable to the national referendum-plebiscite of 16 October 1976. Quite

relevantly, Presidential Decree 1031 repealed inter alia, Section 4, of

Presidential Decree 991. On the same date of 22 September 1976, the

President issued Presidential Decree 1033, stating the questions to he

submitted to the people in the referendum-plebiscite on 16 October 1976.

The Decree recites in its "whereas" clauses that the people's continued

opposition to the convening of the interim National Assembly evinces their

desire to have such body abolished and replaced thru a constitutional

amendment, providing for a new interim legislative body, which will be

submitted directly to the people in the referendum-plebiscite of October 16.

The Commission on Elections was vested with the exclusive supervision and

control of the October 1976 National Referendum-Plebiscite. On 27

September 1976, Pablo C. Sanidad and Pablito V. Sanidad, father and son,

commenced L-44640 for Prohibition with Preliminary Injunction seeking to

enjoin the Commission on Elections from holding and conducting the

Referendum Plebiscite on October 16; to declare without force and effect

Presidential Decree Nos. 991 and 1033, insofar as they propose amendments

to the Constitution, as well as Presidential Decree 1031, insofar as it directs

the Commission on Elections to supervise, control, hold, and conduct the

Referendum-Plebiscite scheduled on 16 October 1976. They contend that

under the 1935 and 1973 Constitutions there is no grant to the incumbent

President to exercise the constituent power to propose amendments to the

new Constitution. As a consequence, the Referendum-Plebiscite on October

16 has no constitutional or legal basis. On 30 September 1976, another

action for Prohibition with Preliminary Injunction, docketed as L-44684, was

instituted by Vicente M. Guzman, a delegate to the 1971 Constitutional

Convention, asserting that the power to propose amendments to, or revision

of the Constitution during the transition period is expressly conferred on the

interim National Assembly under action 16, Article XVII of the Constitution.

Still another petition for Prohibition with Preliminary Injunction was filed on 5

October 1976 by Raul M. Gonzales, his son Raul Jr., and Alfredo Salapantan,

docketed as L-44714, to restrain the implementation of Presidential Decrees

relative to the forthcoming Referendum-Plebiscite of October 16.

Issue: Whether the President may call upon a referendum for the

amendment of the Constitution.

Held: Section 1 of Article XVI of the 1973 Constitution on Amendments

ordains that "(1) Any amendment to, or revision of, this Constitution may be

proposed by the National Assembly upon a vote of three-fourths of all its

Members, or by a constitutional convention. (2) The National Assembly may,

by a vote of two-thirds of all its Members, call a constitutional convention or,

by a majority vote of all its Members, submit the question of calling such a

convention to the electorate in an election." Section 2 thereof provides that

"Any amendment to, or revision of, this Constitution shall be valid when

ratified by a majority of the votes cast in a plebiscite which shall be held not

later than three months a after the approval of such amendment or revision."

In the present period of transition, the interim National Assembly instituted

in the Transitory Provisions is conferred with that amending power. Section

15 of the Transitory Provisions reads "The interim National Assembly, upon

special call by the interim Prime Minister, may, by a majority vote of all its

Members, propose amendments to this Constitution. Such amendments shall

take effect when ratified in accordance with Article Sixteen hereof." There

are, therefore, two periods contemplated in the constitutional life of the

nation, i.e., period of normalcy and period of transition. In times of normalcy,

the amending process may be initiated by the proposals of the (1) regular

National Assembly upon a vote of three-fourths of all its members; or (2) by

a Constitutional Convention called by a vote of two-thirds of all the Members

of the National Assembly. However the calling of a Constitutional Convention

may be submitted to the electorate in an election voted upon by a majority

vote of all the members of the National Assembly. In times of transition,

amendments may be proposed by a majority vote of all the Members of the

interim National Assembly upon special call by the interim Prime Minister.

The Court in Aquino v. COMELEC, had already settled that the incumbent

President is vested with that prerogative of discretion as to when he shall

initially convene the interim National Assembly. The Constitutional

Convention intended to leave to the President the determination of the time

when he shall initially convene the interim National Assembly, consistent

with the prevailing conditions of peace and order in the country. When the

Delegates to the Constitutional Convention voted on the Transitory

Provisions, they were aware of the fact that under the same, the incumbent

President was given the discretion as to when he could convene the interim

National Assembly. The President's decision to defer the convening of the

interim National Assembly soon found support from the people themselves.

In the plebiscite of January 10-15, 1973, at which the ratification of the 1973

Constitution was submitted, the people voted against the convening of the

interim National Assembly. In the referendum of 24 July 1973, the Citizens

Assemblies ("bagangays") reiterated their sovereign will to withhold the

convening of the interim National Assembly. Again, in the referendum of 27

February 1975, the proposed question of whether the interim National

Assembly shall be initially convened was eliminated, because some of the

members of Congress and delegates of the Constitutional Convention, who

were deemed automatically members of the interim National Assembly, were

against its inclusion since in that referendum of January, 1973 the people

had already resolved against it. In sensu striciore, when the legislative arm

of the state undertakes the proposals of amendment to a Constitution, that

body is not in the usual function of lawmaking. It is not legislating when

engaged in the amending process. Rather, it is exercising a peculiar power

bestowed upon it by the fundamental charter itself. In the Philippines, that

power is provided for in Article XVI of the 1973 Constitution (for the regular

National Assembly) or in Section 15 of the Transitory Provisions (for the

interim National Assembly). While ordinarily it is the business of the

legislating body to legislate for the nation by virtue of constitutional

conferment, amending of the Constitution is not legislative in character. In

political science a distinction is made between constitutional content of an

organic character and that of a legislative character. The distinction,

however, is one of policy, not of law. Such being the case, approval of the

President of any proposed amendment is a misnomer. The prerogative of the

President to approve or disapprove applies only to the ordinary cases of

legislation. The President has nothing to do with proposition or adoption of

amendments to the Constitution.

Gonzales v COMELEC 6/22/11 9:55 AM

Republic of the Philippines

SUPREME COURT

Manila

EN BANC

G.R. No. L-27833 April 18, 1969

IN THE MATTER OF PETITION FOR DECLARATORY RELIEF RE

CONSTITUTIONALITY OF REPUBLIC ACT 4880. ARSENIO GONZALES and

FELICISIMO R. CABIGAO, petitioners,

vs.

COMMISSION ON ELECTIONS, respondent.

F. R. Cabigao in his own behalf as petitioner.

B. F. Advincula for petitioner Arsenio Gonzales.

Ramon Barrios for respondent Commission on Elections. Sen. Lorenzo

Tañada as amicus curiae.

FERNANDO, J.:

A statute designed to maintain the purity and integrity of the electoral

process by Congress calling a halt to the undesirable practice of prolonged

political campaign bringing in their wake serious evils not the least of which

is the ever increasing cost of seeking public office, is challenged on

constitutional grounds. More precisely, the basic liberties of free speech and

free press, freedom of assembly and freedom of association are invoked to

nullify the act. Thus the question confronting this Court is one of

transcendental significance.

It is faced with the reconciliation of two values esteemed highly and

cherished dearly in a constitutional democracy. One is the freedom of belief

and of expression availed of by an individual whether by himself alone or in

association with others of similar persuasion, a goal that occupies a place

and to none in the legal hierarchy. The other is the safeguarding of the

equally vital right of suffrage by a prohibition of the early nomination of

candidates and the limitation of the period of election campaign or partisan

political activity, with the hope that the time-consuming efforts, entailing

huge expenditures of funds and involving the risk of bitter rivalries that may

end in violence, to paraphrase the explanatory note of the challenged

legislation, could be devoted to more fruitful endeavors.

The task is not easy, but it is unavoidable. That is of the very essence of

judicial duty. To paraphrase a landmark opinion, 1 when we act in these

matters we do so not on the assumption that to us is granted the requisite

knowledge to set matters right, but by virtue of the responsibility we cannot

escape under the Constitution, one that history authenticates, to pass upon

every assertion of an alleged infringement of liberty, when our competence

is appropriately invoked.

This then is the crucial question: Is there an infringement of liberty?

Petitioners so alleged in his action, which they entitled Declaratory Relief

with Preliminary Injunction, filed on July 22, 1967, a proceeding that should

have been started in the of Court of First Instance but treated by this Court

as one of prohibition in view of the seriousness and the urgency of the

constitutional issue raised. Petitioners challenged the validity of two new

sections now included in the Revised Election Code, under Republic Act No.

4880, which was approved and took effect on June 17, 1967, prohibiting the

too early nomination of candidates 2 and limiting the period of election

campaign or partisan political activity. 3

The terms "candidate" and "election campaign" or "partisan political activity"

are likewise defined. The former according to Act No. 4880 "refers to any

person aspiring for or seeking an elective public office regarded of whether

or not said person has already filed his certificate of candidacy or has been

nominated by any political party as its candidate." "Election campaign" or

"partisan political activity" refers to acts designed to have a candidate

elected or not or promote the candidacy of a person or persons to a public

office." Then the acts were specified. There is a proviso that simple

expression of opinion and thoughts concerning the election shall not be

considered as part of an election campaign. There is the further proviso that

nothing stated in the Act "shall be understood to prevent any person from

expressing his views on current political problems or issues, or from

mentioning the names of the candidates for public office whom he supports."

4

Petitioner Cabigao was, at the time of the filing 6f the petition, an incumbent

councilor in the 4th District of Manila and the Nacionalista Party official

candidate for Vice-Mayor of Manila to which he was subsequently elected on

November 11, 1967; petitioner Gonzales, on the other hand, is a private

individual, a registered voter in the City of Manila and a political leader of his

co-petitioner. It is their claim that "the enforcement of said Republic Act No.

4880 in question [would] prejudice [their] basic rights..., such as their

freedom of speech, their freedom of assembly and their right to form

associations or societies for purpose not contrary to law, guaranteed under

the Philippine Constitution," and that therefore said act is unconstitutional.

After invoking anew the fundamental rights to free speech, free press,

freedom of association and freedom of assembly with a citation of two

American Supreme Court decisions, 5 they asserted that "there is nothing in

the spirit or intention of the law that would legally justify its passage and

[enforcement] whether for reasons of public policy, public order or morality,

and that therefore the enactment of Republic Act [No.] 4880 under, the guise

of regulation is but a clear and simple abridgment of the constitutional rights

of freedom of speech, freedom of assembly and the right to form

associations and societies for purposes not contrary to law, ..." There was the

further allegation that the nomination of a candidate and the fixing of period

of election campaign are matters of political expediency and convenience

which only political parties can regulate or curtail by and among themselves

through self-restraint or mutual understanding or agreement and that the

regulation and limitation of these political matters invoking the police power,

in the absence of clear and present danger to the state, would render the

constitutional rights of petitioners meaningless and without effect.

To the plea of petitioners that after hearing, Republic Act No. 4880 be

declared unconstitutional, null and void, respondent Commission on

Elections, in its answer filed on August 1, 1967, after denying the allegations

as to the validity of the act "for being mere conclusions of law, erroneous at

that," and setting forth special affirmative defenses, procedural and

substantive character, would have this Court dismiss the petition.

Thereafter the case was set for hearing on August 3, 1967. On the same date

a resolution was passed by us to the following effect: "At the hearing of case

L-27833 (Arsenio Gonzales, et al. vs. Commission on Elections), Atty. F.

Reyes Cabigao appeared for the petitioners and Atty. Ramon Barrios

appeared for the respondent and they were given a period of four days from

today within which to submit, simultaneously,, their respective memorandum

in lieu of oral argument."

On August 9, 1967, another resolution, self-explanatory in character, came

from this Court. Thus: "In ease G.R. No. L-27833 (Arsenio Gonzales, et al. vs.

Commission on Elections), the Court, with eight (8) Justice present, having

deliberated on the issue of the constitutionality of Republic Act No. 4880;

and a divergence of views having developed among the Justices as to the

constitutionality of section 50-B, pars. (c), (d) and (e) of the Revised Election

Code: considering the Constitutional provision that "no treaty or law may be

declared unconstitutional without the concurrence of two-thirds of all the

members of the (Supreme) Court' (sec. 10, Art, VII), the Court [resolved] to

defer final voting on the issue until after the return of the Justices now on

official leave."

The case was then reset for oral argument. At such hearing, one of the co-

petitioners, now Vice-Mayor Felicisimo Cabigao of the City of Manila acting as

counsel, assailed the validity of the challenged legislation relying primarily

on American Supreme Court opinion that warn against curtailment in

whatever guise or form of the cherished freedoms of expression, of assemble

and of association, all embraced in the First Amendment of the United States

Constitution. Respondent Commission on Elections was duly represented by

Atty. Ramon Barrios.

Senator Lorenzo M. Tañada was asked to appear as amicus curiae. That he

did, arguing most impressively with a persuasive exposition of the existence

of undeniable conditions that imperatively called for regulation of the

electoral process and with full recognition that Act No. 4880 could indeed be

looked upon as a limitation on the preferred rights of speech and press, of

assembly and of association. He did justify its enactment however under the

clear and present danger doctrine, there being the substantive evil of

elections, whether for national or local officials, being debased and degraded

by unrestricted campaigning, excess of partisanship and undue

concentration in politics with the loss not only of efficiency in government

but of lives as well.

The matter was then discussed in conference, but no final action was taken.

The divergence of views with reference to the paragraphs above mentioned

having continued, on Oct. 10, 1968, this Court, by resolution, invited certain

entities to submit memoranda as amici curiae on the question of the validity

of R.A. Act No. 4880. The Philippine Bar Association, the Civil Liberties Union,

the U.P. Law Center and the U.P. Women Lawyers' Circle were included,

among them. They did file their respective memoranda with this Court and

aided it in the consideration of the constitutional issues involved.

1. In the course of the deliberations, a serious procedural objection was

raised by five members of the Court. 6 It is their view that respondent

Commission on Elections not being sought to be restrained from performing

any specific act, this suit cannot be characterized as other than a mere

request for an advisory opinion. Such a view, from the remedial law

standpoint, has much to recommend it. Nonetheless, a majority would affirm,

the original stand that under the circumstances it could still rightfully be

treated as a petition for prohibition.

The language of Justice Laurel fits the case "All await the decision of this

Court on the constitutional question. Considering, therefore, the importance

which the instant case has assumed and to prevent multiplicity of suits,

strong reasons of public policy demand that [its] constitutionality ... be now

resolved." 7 It may likewise be added that the exceptional character of the

situation that confronts us, the paramount public interest, and the

undeniable necessity for a ruling, the national elections being, barely six

months away, reinforce our stand.

It would appear undeniable, therefore, that before us is an appropriate

invocation of our jurisdiction to prevent the enforcement of an alleged

unconstitutional statute. We are left with no choice then; we must act on the

matter.

There is another procedural obstacle raised by respondent to be hurdled. It is

not insuperable. It is true that ordinarily, a party who impugns the validity of

a statute or ordinance must have a substantial interest in the case such that

he has sustained, or will sustain, direct injury as a result of its enforcement.

8 Respondent cannot see such interest as being possessed by petitioners. It

may indicate the clarity of vision being dimmed, considering that one of the

petitioners was a candidate for an elective position. Even if such were the

case, however, the objection is not necessarily fatal. In this jurisdiction, the

rule has been sufficiently relaxed to allow a taxpayer to bring an action to

restrain the expenditure of public funds through the enforcement of an

invalid or unconstitutional legislative measure. 9

2. In the answer of the respondent as well as its memorandum, stress was

laid on Republic Act No. 4880 as an exercise of the police power of the state,

designed to insure a free, orderly and honest election by regulating "conduct

which Congress has determined harmful if unstrained and carried for a long

period before elections it necessarily entails huge expenditures of funds on

the part of the candidates, precipitates violence and even deaths, results in

the corruption of the electorate, and inflicts direful consequences upon

public interest as the vital affairs of the country are sacrificed to purely

partisan pursuits." Evidently for respondent that would suffice to meet the

constitutional questions raised as to the alleged infringement of free speech,

free press, freedom of assembly and 'freedom' of association. Would it were

as simple as that?

An eloquent excerpt from a leading American decision 10 admonishes

though against such a cavalier approach. "The case confronts us again with

the duty our system places on this Court to say where the individual's,

freedom ends the State's power begins. Choice on that border, now as

always delicate, is perhaps more so where the usual. presumption supporting

legislation is balanced by the preferred place given in our scheme to the

great, the indispensable democratic freedoms secured by the First

Amendment.... That priority gives these liberties a sanctity and a sanction

not permitting dubious intrusions. And it is the character of the right, not of

the limitation, which determines what standard governs the choice..."

Even a leading American State court decision on a regulatory measure

dealing with elections, cited in the answer of respondent, militates against a

stand minimizing the importance and significance of the alleged violation of

individual rights: "As so construed by us, it has not been made to appear that

section 8189, Comp. Gen. Laws, section 5925, Rev. Gen. St., is on its face

violative of any provision of either the state or Federal Constitution on the

subject of free speech or liberty of the press, nor that its operation is in any

wise subversive of any one's constitutional liberty." 11 Another leading State

decision is much more emphatic: "Broad as the power of the legislature is

with respect to regulation of elections, that power is not wholly without

limitation. Under the guise of regulating elections, the legislature may not

deprive a citizen of the right of trial by jury. A person charged with its

violation may not be compelled to give evidence against himself. If it

destroys the right of free speech, it is to that extent void." 12

The question then of the alleged violation of Constitutional rights must be

squarely met.lawphi1.nêt

3. Now as to the merits. A brief resume of the basic rights on which

petitioners premise their stand that the act is unconstitutional may prove

illuminating. The primacy, the high estate accorded freedom of expression is

of course a fundamental postulate of our constitutional system. No law shall

be passed abridging the freedom of speech or of the press .... 13 What does

it embrace? At the very least, free speech and free press may be identified

with the liberty to discuss publicly and truthfully any matter of public interest

without censorship or punishment. 14 There is to be then no previous

restraint on the communication of views or subsequent liability whether in

libel suits, 15 prosecution for sedition, 16 or action for damages, 17 or

contempt proceedings 18 unless there be a clear and present danger of

substantive evil that Congress has a right to prevent.

The vital need in a constitutional democracy for freedom of expression is

undeniable whether as a means of assuring individual self-fulfillment, of

attaining the truth, of assuring participation by the people in social including

political decision-making, and of maintaining the balance between stability

and change. 19 The trend as reflected in Philippine and American decisions is

to recognize the broadcast scope and assure the widest latitude to this

constitutional guaranty. It represents a profound commitment to the

principle that debate of public issue should be uninhibited, robust, and wide-

open. 20 It is not going too far, according to another American decision, to

view the function of free speech as inviting dispute. "It may indeed best

serve its high purpose when it induces a condition of unrest, creates

dissatisfaction with conditions as they are, or even stirs people to anger." 21

Freedom of speech and of the press thus means something more than the

right to approve existing political beliefs or economic arrangements, to lend

support to official measures, to take refuge in the existing climate of opinion

on any matter of public consequence. So atrophied, the right becomes

meaningless. The right belongs as well, if not more, for those who question,

who do not conform, who differ. To paraphrase Justice Holmes, it is freedom

for the thought that we hate, no less than for the thought that agrees with

us. 22

So with Emerson one may conclude that "the theory of freedom of

expression involves more than a technique for arriving at better social

judgments through democratic procedures. It comprehends a vision of

society, a faith and a whole way of life. The theory grew out of an age that

was awakened and invigorated by the idea of new society in which man's

mind was free, his fate determined by his own powers of reason, and his

prospects of creating a rational and enlightened civilization virtually

unlimited. It is put forward as a prescription for attaining a creative,

progressive, exciting and intellectually robust community. It contemplates a

mode of life that, through encouraging toleration, skepticism, reason and

initiative, will allow man to realize his full potentialities. It spurns the

alternative of a society that is tyrannical, conformist, irrational and

stagnant." 23

From the language of the specified constitutional provision, it would appear

that the right is not susceptible of any limitation. No law may be passed

abridging the freedom of speech and of the press. The realities of life in a

complex society preclude however a literal interpretation. Freedom of

expression is not an absolute. It would be too much to insist that at all times

and under all circumstances it should remain unfettered and unrestrained.

There are other societal values that press for recognition. How is it to be

limited then?

This Court spoke, in Cabansag v. Fernandez; 24 of two tests that may supply

an acceptable criterion for permissible restriction. Thus: "These are the 'clear

and present danger' rule and the 'dangerous tendency' rule. The first, as

interpreted in a number of cases, means that the evil consequence of the

comment or utterance must be extremely serious and the degree of

imminence extremely high' before the utterance can be punished. The

danger to be guarded against is the 'substantive evil' sought to be

prevented." It has the advantage of establishing according to the above

decision "a definite rule in constitutional law. It provides the criterion as to

what words may be public established."

The Cabansag case likewise referred to the other test, the "dangerous

tendency" rule and explained it thus: "If the words uttered create a

dangerous tendency which the state has a right to prevent, then such words

are punishable. It is not necessary that some definite or immediate acts of

force, violence, or unlawfulness be advocated. It is sufficient that such acts

be advocated in general terms. Nor is it necessary that the language used be

reasonably calculated to incite persons to acts of force, violence, or

unlawfulness. It is sufficient if the natural tendency and probable effect of

the utterance be to bring about the substantive evil which the legislative

body seeks to prevent.

We posed the issue thus: "Has the letter of Cabansag created a sufficient

danger to a fair administration of justice? Did its remittance to the PCAC

create a danger sufficiently imminent to come under the two rules

mentioned above?" The choice of this Court was manifest and indisputable. It

adopted the clear and present danger test. As a matter of fact, in an earlier

decision, Primicias v. Fugoso, 25 there was likewise an implicit acceptance of

the clear and present danger doctrine.

Why repression is permissible only when the danger of substantive evil is

present is explained by Justice Branders thus: ... the evil apprehended is so

imminent that it may befall before there is opportunity for full discussion. If

there be time to expose through discussion the falsehood and fallacies, to

avert the evil by the processes of education, the remedy to be applied is

more speech, not enforced silence." 26 For him the apprehended evil must

be "relatively serious." For "[prohibition] of free speech and assembly is a

measure so stringent that it would be inappropriate as the means for

averting a relatively trivial harm to society." Justice Black would go further.

He would require that the substantive evil be "extremely serious." 27 Only

thus may there be a realization of the ideal envisioned by Cardozo: "There

shall be no compromise of the freedom to think one's thoughts and speak

them, except at those extreme borders where thought merges into action."

28 It received its original formulation from Holmes. Thus: "The question in

every case is whether the words used in such circumstances and of such a

nature as to create a clear and present danger that they will bring about the

substantive evils that Congress has a right to prevent. It is a question of

proximity and degree." 29

This test then as a limitation on freedom of expression is justified by the

danger or evil a substantive character that the state has a right to prevent.

Unlike the dangerous tendency doctrine, the danger must not only be clear

but also present. The term clear seems to point to a causal connection with

the danger of the substantially evil arising from the utterance questioned.

Present refers to the time element. It used to be identified with imminent

and immediate danger. The danger must not only be probable but very likely

inevitable.

4. How about freedom of assembly? The Bill of Rights as thus noted prohibits

abridgment by law of freedom of speech or of the press. It likewise extends

the same protection to the right of the people peaceably to assemble. As

was pointed out by Justice Malcolm in the case of United States v. Bustos, 30

this right is a necessary consequence of our republican institution and

complements the right of free speech. Assembly means a right on the part of

citizens to meet peaceably for consultation in respect to public affairs. From

the same Bustos opinion: "Public policy, the welfare of society and orderly

administration of government have demanded protection for public opinion."

To paraphrase the opinion of Justice Rutledge speaking for the majority in

Thomas v. Collins,31 it was not by accident or coincidence that the rights to

freedom of speech and of the press were coupled in a single guaranty with

the rights of the people peaceably to assemble and to petition the

government for redress of grievances. All these rights while not identical are

inseparable. They are cognate rights and the assurance afforded by the

clause of this section of the Bill of Rights wherein they are contained, applies

to all. As emphatically put in the leading case of United States v. Cruikshank,

32 "the very idea of a government, republican in form, implies a right on the

part of its citizens to meet peaceably for consultation in respect to public

affairs and to petition for redress of grievances." As in the case of freedom of

expression, this right is not to be limited, much less denied, except on a

showing of a clear and present danger of a substantive evil that Congress

has a right to prevent.

5. Our Constitution likewise recognizes the freedom to form association for

purposes not contrary to law. 33 With or without a constitutional provision of

this character, it may be assumed that the freedom to organize or to be a

member of any group or society exists. With this explicit provision, whatever

doubts there may be on the matter are dispelled. Unlike the cases of other

guarantee which are mostly American in origin, this particular freedom has

an indigenous cast. It can trace its origin to the Malolos Constitution.

In the United States, in the absence of an explicit provision of such

character, it is the view of Justice Douglas that it is primarily the first

amendment of her Constitution, which safeguards freedom of speech and of

the press, of assembly and of petition "that provides [associations] with the

protection they need if they are to remain viable and continue to contribute

to our Free Society." 34 He adopted the view of De Tocqueville on the

importance and the significance of the freedom to associate. Thus: "The

most natural privilege of man, next to the right of acting for himself, is that

of combining his exertions with those of his fellow creatures and of acting in

common with them. The right of association therefore appears to me almost

inalienable in its nature as the right of personal liberty. No legislator can

attack it without impairing the foundation of society." 35

There can be no dispute as to the soundness of the above observation of De

Tocqueville. Since man lives in social it would be a barren existence if he

could not freely associate with others of kindred persuasion or of congenial

frame of mind. As a matter of fact, the more common form of associations

may be likely to be fraternal, cultural, social or religious. Thereby, for almost

everybody, save for those exceptional few who glory in aloofness and

isolation life is enriched and becomes more meaningful.

In a sense, however, the stress on this freedom of association should be on

its political significance. If such a right were non-existent then the likelihood

of a one-party government is more than a possibility. Authoritarianism may

become unavoidable. Political opposition will simply cease to exist; minority

groups may be outlawed, constitutional democracy as intended by the

Constitution may well become a thing of the past.

Political parties which, as is originally the case, assume the role alternately

of being in the majority or in the minority as the will of the electorate

dictates, will lose their constitutional protection. It is undeniable therefore,

that the utmost scope should be afforded this freedom of association.

It is indispensable not only for its enhancing the respect that should be

accorded a human personality but equally so for its assurance that the

wishes of any group to oppose whatever for the moment is the party in

power and with the help of the electorate to set up its own program of

government would not be nullified or frustrated. To quote from Douglas

anew: "Justice Frankfurter thought that political and academic affiliations

have a preferred position under the due process version of the First

Amendment. But the associational rights protected by the First Amendment

are in my view much broader and cover the entire spectrum in political

ideology as well as in art, in journalism, in teaching, and in religion. In my

view, government can neither legislate with respect to nor probe the

intimacies of political, spiritual, or intellectual relationships in the myriad of

lawful societies and groups, whether popular or unpopular, that exist in this

country." 36

Nonetheless, the Constitution limits this particular freedom in the sense that

there could be an abridgment of the right to form associations or societies

when their purposes are "contrary to law". How should the limitation "for

purposes not contrary to law" be interpreted? It is submitted that it is

another way of expressing the clear and present danger rule for unless an

association or society could be shown to create an imminent danger to public

safety, there is no justification for abridging the right to form association

societies.37 As was so aptly stated: "There is no other course consistent with

the Free Society envisioned by the First Amendment. For the views a citizen

entertains, the beliefs he harbors, the utterances he makes, the ideology he

embraces, and the people he associates with are no concern to government

— until and unless he moves into action. That article of faith marks indeed

the main difference between the Free Society which we espouse and the

dictatorships both on the Left and on the Right." 38 With the above principles

in mind, we now consider the validity of the prohibition in Republic Act No.

4880 of the too early nomination of candidates and the limitation found

therein on the period of election campaign or partisan political activity

alleged by petitioners to offend against the rights of free speech, free press,

freedom of assembly and freedom of association. In effect what are asked to

do is to declare the act void on its face evidence having been introduced as

to its actual operation. There is respectable authority for the court having the

power to so act. Such fundamental liberties are accorded so high a place in

our constitutional scheme that any alleged infringement manifest in the

wording of statute cannot be allowed to pass unnoticed. 39

In considering whether it is violative of any of the above rights, we cannot

ignore of course the legislative declaration that its enactment was in

response to a serious substantive evil affecting the electoral process, not

merely in danger of happening, but actually in existence, and likely to

continue unless curbed or remedied. To assert otherwise would be to close

one's eyes to the realities of the situation. Nor can we ignore the express

legislative purpose apparent in the proviso "that simple expressions of

opinion and thoughts concerning the election shall not be considered as part

of an election campaign," and in the other proviso "that nothing herein

stated shall be understood to prevent any person from expressing his views

on current political problems or issues, or from mentioning the names of the

candidates for public office whom he supports." Such limitations qualify the

entire provision restricting the period of an election campaign or partisan

political activity.

The prohibition of too early nomination of candidates presents a question

that is not too formidable in character. According to the act: "It shall be

unlawful for any political party political committee, or political group to

nominate candidates for any elective public officio voted for at large earlier

than one hundred and fifty days immediately preceding an election, and for

any other elective public, office earlier than ninety days immediately

preceding an election." 40

The right of association is affected. Political parties have less freedom as to

the time during which they may nominate candidates; the curtailment is not

such, however, as to render meaningless such a basic right. Their scope of

legitimate activities, save this one, is not unduly narrowed. Neither is there

infringement of their freedom to assemble. They can do so, but not for such

a purpose. We sustain in validity. We do so unanimously.

The limitation on the period of "election campaign" or "partisan political

activity" calls for a more intensive scrutiny. According to Republic Act No.

4880: "It is unlawful for any person whether or not a voter or candidate, or

for any group or association of persons whether or not a political party or

political committee, to engage in an election campaign or partisan political

activity except during the period of one hundred twenty days immediately

preceding an election involving a public office voted for at large and ninety

days immediately preceding an election for any other elective public office.

The term 'candidate' refers to any person aspiring for or seeking an elective

public office, regardless of whether or not said person has already filed his

certificate of candidacy or has been nominated by any political party as its

candidate. The term 'election campaign' or 'partisan political activity' refers

to acts designed to have a candidate elected or not or promote the

candidacy of a person or persons to a public office ..."

If that is all there is to that provision, it suffers from the fatal constitutional

infirmity of vagueness and may be stricken down. What other conclusion can

there be extending as it does to so wide and all-encompassing a front that

what is valid, being a legitimate exercise of press freedom as well as

freedom of assembly, becomes prohibited? That cannot be done; such an

undesirable eventuality, this Court cannot allow to pass.

It is a well-settled principle that stricter standard of permissible statutory

vagueness may be applied to a statute having inhibiting effect on speech; a

man may the less be required to act at his peril here, because the free

dissemination of ideas may be the loser.41 Where the statutory provision

then operates to inhibit the exercise of individual freedom affirmatively

protected by the Constitution, the imputation of vagueness sufficient to

invalidate the statute is inescapable. 42 The language of Justice Douglas,

both appropriate and vigorous, comes to mind: "Words which are vague and

fluid ... may be as much of a trap for the innocent as the ancient laws of

Caligula." 43 Nor is the reason difficult to discern: ."These freedoms are

delicate and vulnerable, as well as supremely precious in our society. The

threat of sanctions may deter their exercise almost as potently as the actual

application of sanctions." 44

7. The constitutional objections are thus formidable. It cannot be denied that

the limitations thus imposed on the constitutional rights of free speech and

press, of assembly, and of association cut deeply, into their substance. This

on the one hand.

On the other, it cannot be denied either that evils substantial in character

taint the purity of the electoral process. There can be under the

circumstances then no outright condemnation of the statute. It could not be

said to be unwarranted, much less arbitrary. There is need for refraining

from the outright assumption that the constitutional infirmity is apparent

from a mere reading thereof.

For under circumstances that manifest abuses of the gravest character,

remedies much more drastic than what ordinarily would suffice would indeed

be called for. The justification alleged by the proponents of the measures

weighs heavily with the members of the Court, though in varying degrees, in

the appraisal of the aforesaid restrictions to which such precious freedoms

are subjected. They are not unaware of the clear and present danger that

calls for measures that may bear heavily on the exercise of the cherished

rights of expression, of assembly, and of association.

This is not to say, that once such a situation is found to exist there is no limit

to the allowable limitations on such constitutional rights. The clear and

present danger doctrine rightly viewed requires that not only should there be

an occasion for the imposition of such restrictions but also that they be

limited in scope.

There are still constitutional questions of a serious character then to be

faced. The practices which the act identifies with "election campaign" or

"partisan political activity" must be such that they are free from the taint of

being violative of free speech, free press, freedom of assembly, and freedom

of association. What removes the sting from constitutional objection of

vagueness is the enumeration of the acts deemed included in the terms

"election campaign" or "partisan political activity."

They are: "(a) Forming organizations, associations, clubs, committees or

other groups of persons for the purpose of soliciting votes and/or

undertaking any campaign or propaganda for or against a party or

candidate; (b) holding political conventions, caucuses, conferences,

meetings, rallies, parades, or other similar assemblies, for the purpose of

soliciting votes and/or undertaking any campaign or propaganda for or

against a candidate or party;(c) making speeches, announcements or

commentaries or holding interviews for or against the election or any party

or candidate for public office; (d) publishing or distributing campaign

literature or materials; (e) directly or indirectly soliciting votes and/or

undertaking any campaign or propaganda for or against any party; (f) giving,

soliciting, or receiving contributions for election campaign purposes, either

directly or indirectly." 45 As thus limited the objection that may be raised as

to vagueness has been minimized, if not totally set at rest. 46

8. This Court, with the aforementioned five Justices unable to agree, is of the

view that no unconstitutional infringement exists insofar as the formation of

organization, associations, clubs, committees, or other groups of persons for

the purpose of soliciting votes or undertaking any campaign or propaganda

or both for or against a candidate or party is restricted 47 and that the

prohibition against giving, soliciting, or receiving contribution for election

purposes, either directly or indirectly, is equally free from constitutional

infirmity. 48

The restriction on freedom of assembly as confined to holding political

conventions, caucuses, conferences, meetings, rallies, parades or other

similar assemblies for the purpose of soliciting votes or undertaking any

campaign or propaganda or both for or against a candidate or party, 49

leaving untouched all other legitimate exercise of such poses a more difficult

question. Nevertheless, after a thorough consideration, and with the same

Justices entertaining the opposite conviction, we reject the contention that it

should be annulled. Candor compels the admission that the writer of this

opinion suffers from the gravest doubts. For him, such statutory prescription

could very well be within the outermost limits of validity, beyond which lies

the abyss of unconstitutionality.

The other acts, likewise deemed included in "election campaign" or "partisan

political activity" tax to the utmost the judicial predisposition to view with

sympathy legislative efforts to regulate election practices deemed inimical,

because of their collision with the preferred right of freedom of expression.

From the outset, such provisions did occasion divergence of views among

the members of the Court. Originally only a minority was for their being

adjudged as invalid. It is not so. any more. 50 This is merely to emphasize

that the scope of the curtailment to which freedom of expression may be

subjected is not foreclosed by the recognition of the existence of a clear and

present danger of a substantive evil, the debasement of the electoral

process.

The majority of the Court is thus of the belief that the solicitation or

undertaking of any campaign or propaganda whether directly or indirectly,

by an individual, 51 the making of speeches, announcements or

commentaries or holding interview for or against the election for any party or

candidate for public office, 52 or the publication or distribution of campaign

literature or materials, 53 suffer from the corrosion of invalidity. It lacks

however one more affirmative vote to call for a declaration of

unconstitutionality.

This is not to deny that Congress was indeed called upon to seek remedial

measures for the far-from-satisfactory condition arising from the too-early

nomination of candidates and the necessarily prolonged, political campaigns.

The direful consequences and the harmful effects on the public interest with

the vital affairs of the country sacrificed many a time to purely partisan

pursuits were known to all. Moreover, it is no exaggeration to state that

violence and even death did frequently occur because of the heat

engendered by such political activities. Then, too, the opportunity for

dishonesty and corruption, with the right to suffrage being bartered, was

further magnified.

Under the police power then, with its concern for the general welfare and

with the commendable aim of safe-guarding the right of suffrage, the

legislative body must have felt impelled to impose the foregoing restrictions.

It is understandable for Congress to believe that without the limitations thus

set forth in the challenged legislation, the laudable purpose of Republic Act

No. 4880 would be frustrated and nullified. Whatever persuasive force such

approach may command failed to elicit the assent of a majority of the Court.

This is not to say that the conclusion reached by the minority that the above

poisons of the statute now assailed has passed the constitutional test is

devoid of merit.

It only indicates that for the majority, the prohibition of any speeches,

announcements or commentaries, or the holding of interviews for or against

the election of any party or candidate for public office and the prohibition of

the publication or distribution of campaign literature or materials, against the

solicitation of votes whether directly or indirectly, or the undertaking of any

campaign literature or propaganda for or against any candidate or party is

repugnant to a constitutional command. To that extent, the challenged

statute prohibits what under the Constitution cannot by any law be abridged.

More specifically, in terms of the permissible scope of legislation that

otherwise could be justified under the clear and present danger doctrine, it is

the consideration opinion of the majority, though lacking the necessary vote

for an adjudication of invalidity, that the challenged statute could have been

more narrowly drawn and the practices prohibited more precisely delineated

to satisfy the constitutional requirements as to a valid limitation under the

clear and present danger doctrine.

In a 1968 opinion, the American Supreme Court made clear that the absence

of such reasonable and definite standards in a legislation of its character is

fatal. 54 Where, as in the case of the above paragraphs, the majority of the

Court could discern "an over breadth that makes possible oppressive or

capricious application" 55 of the statutory provisions, the line dividing the

valid from the constitutionally infirm has been crossed. Such provisions

offend the constitutional principle that "a governmental purpose

constitutionally subject to control or prevent activities state regulation may

not be achieved by means which sweep unnecessarily broadly and thereby

invade the area of protected freedoms. 56

It is undeniable, therefore, that even though the governmental purposes be

legitimate and substantial, they cannot be pursued by means that broadly

stifle fundamental personal liberties when the end can be more narrowly

achieved. 57 For precision of regulation is the touchstone in an area so

closely related to our most precious freedoms. 58

Under the circumstances then, a majority of the Court feels compelled to

view the statutory provisions in question as unconstitutional on their face

inasmuch as they appear to range too widely and indiscriminately across the

fundamental liberties associated with freedom of the mind. 59

Such a conclusion does not find favor with the other members of the Court.

For this minority group, no judgment of nullity insofar as the challenged

sections are concerned is called for. It cannot accept the conclusion that the

limitations thus imposed on freedom of expression vitiated by their

latitudinarian scope, for Congress was not at all insensible to the problem

that an all-encompassing coverage of the practices sought to be restrained

would seriously pose.

Such an approach finds support in the exposition made by the author of the

measure, Senator Lorenzo M. Tañada, appearing before us as amicus curiae.

He did clearly explain that such provisions were deemed by the legislative

body to be part and parcel of the necessary and appropriate response not

merely to a clear and present danger but to the actual existence of a grave

and substantive evil of excessive partisanship, dishonesty and corruption as

well as violence that of late has invariably marred election campaigns and

partisan political activities in this country. He did invite our attention likewise

to the well-settled doctrine that in the choice of remedies for an admitted

malady requiring governmental action, on the legislature primarily rests the

responsibility. Nor should the cure prescribed by it, unless clearly repugnant

to fundamental rights, be ignored or disregarded.

More than that, he would stress the two provisos already mentioned,

precisely placed in the state as a manifestation of the undeniable legislative

determination not to transgress the preferred freedom of speech, of press, of

assembly and of association. It is thus provided: "That simple expressions or

opinion and thoughts concerning the election shall not be considered as part

of an election campaign [and that nothing in the Act] shall be understood to

prevent any person from expressing his views on current political problems

or issues, or from mentioning the names of the candidates for public office

whom he supports. 60 If properly implemented then, as it ought to, the

barrier to free, expression becomes minimal and far from unwarranted.

For the minority of the Court, all of the above arguments possess sufficient

persuasive force to blunt whatever cutting edge may be ascribed to the fears

entertained that Congress failed to abide by what the Constitution

commands as far as freedom of the mind and of association are concerned. It

is its opinion that it would be premature to say the least, for a judgment of

nullity of any provision found in Republic Act No. 4880. The need for

adjudication arises only if in the implementation of the Act, there is in fact an

unconstitutional application of its provisions. Nor are we called upon, under

this approach, to anticipate each and every problem that may arise. It is time

enough to consider it when there is in fact an actual, concrete case that

requires an exercise of judicial power.

9. To recapitulate, we give due recognition to the legislative concern to

cleanse, and, if possible, render spotless, the electoral process. There is full

acceptance by the Court of the power of Congress, under narrowly drawn

legislation to impose the necessary restrictions to what otherwise would be

liberties traditionally accorded the widest scope and the utmost deference,

freedom of speech and of the press, of assembly, and of association. We

cannot, however, be recreant to the trust reposed on us; we are called upon

to safeguard individual rights. In the language of Justice Laurel: "This Court is

perhaps the last bulwark of constitutional government. It shall not obstruct

the popular will as manifested through proper organs... But, in the same way

that it cannot renounce the life breathed into it by the Constitution, so may it

not forego its obligation, in proper cases, to apply the necessary,..." 61

We recognize the wide discretion accorded Congress to protect vital

interests. Considering the responsibility incumbent on the judiciary, it is not

always possible, even with the utmost sympathy shown for the legislative

choice of means to cure an admitted evil, that the legislative judgment

arrived at, with its possible curtailment of the preferred freedoms, be

accepted uncritically. There may be times, and this is one of them, with the

majority, with all due reject to a coordinate branch, unable to extend their

approval to the aforesaid specific provisions of one of the sections of the

challenged statute. The necessary two-third vote, however, not being

obtained, there is no occasion for the power to annul statutes to come into

play.

Such being the case, it is the judgment of this Court that Republic Act No.

4880 cannot be declared unconstitutional.

WHEREFORE, the petition is dismissed and the writ of prayed for denied.

Without costs.

Blooming Mills6/22/11 9:55 AM

PBM EMPLOYEES VS. PBM [51 SCRA 189; G.R. NO. L-31195; 5 JUN 1993]

 

Sunday, February 08, 2009 Posted by Coffeeholic Writes 

Labels: Case Digests, Political Law

Facts: The petitioner Philippine Blooming Mills Employees Organization

(PBMEO) is a legitimate labor union composed of the employees of the

respondent Philippine Blooming Mills Co., Inc., and petitioners. Benjamin

Pagcu and Rodulfo Munsod are officers and members of the petitioner Union.

Petitioners claim that on March 1, 1969, they decided to stage a mass

demonstration at Malacañang on March 4, 1969, in protest against alleged

abuses of the Pasig police. PBMEO thru Pagcu confirmed the planned

demonstration and stated that the demonstration or rally cannot be

cancelled because it has already been agreed upon in the meeting. Pagcu

explained further that the demonstration has nothing to do with the

Company because the union has no quarrel or dispute with Management.

The Management, thru Atty. C.S. de Leon, Company personnel manager,

informed PBMEO that the demonstration is an inalienable right of the union

guaranteed by the Constitution but emphasized that any demonstration for

that matter should not unduly prejudice the normal operation of the

Company. Workers who without previous leave of absence approved by the

Company, particularly , the officers present who are the organizers of the

demonstration, who shall fail to report for work the following morning shall

be dismissed, because such failure is a violation of the existing CBA and,

therefore, would be amounting to an illegal strike. Because the petitioners

and their members numbering about 400 proceeded with the demonstration

despite the pleas of the respondent Company that the first shift workers

should not be required to participate in the demonstration and that the

workers in the second and third shifts should be utilized for the

demonstration from 6 A.M. to 2 P.M. on March 4, 1969, filed a charge against

petitioners and other employees who composed the first shift, for a violation

of Republic Act No. 875(Industrial Peace Act), and of the CBA providing for

'No Strike and No Lockout.' Petitioners were held guilty in by CIR for

bargaining in bad faith, hence this appeal.

 

 

Issue: Whether or Not the petitioners right to freedom of speech and to

peaceable assemble violated.

 

 

Held: Yes. A constitutional or valid infringement of human rights requires a

more stringent criterion, namely existence of a grave and immediate danger

of a substantive evil which the State has the right to prevent. This is not

present in the case. It was to the interest herein private respondent firm to

rally to the defense of, and take up the cudgels for, its employees, so that

they can report to work free from harassment, vexation or peril and as

consequence perform more efficiently their respective tasks enhance its

productivity as well as profits. Herein respondent employer did not even offer

to intercede for its employees with the local police. In seeking sanctuary

behind theirfreedom of expression well as their right of assembly and of

petition against alleged persecution of local officialdom, the employees and

laborers of herein private respondent firm were fighting for their very

survival, utilizing only the weapons afforded them by the Constitution— the

untrammelled enjoyment of their basic human rights. The pretension of their

employer that it would suffer loss or damage by reason of the absence of its

employees from 6 o'clock in the morning to 2 o'clock in the afternoon, is a

plea for the preservation merely of their property rights. The employees'

pathetic situation was a stark reality — abused, harassment and persecuted

as they believed they were by the peace officers of the municipality. As

above intimated, the condition in which the employees found themselves vis-

a-vis the local police of Pasig, was a matter that vitally affected their right to

individual existence as well as that of their families. Material loss can be

repaired or adequately compensated. The debasement of the human being

broken in morale and brutalized in spirit-can never be fully evaluated in

monetary terms. As heretofore stated, the primacy of human rights

— freedom of expression, of peaceful assembly and of petition for redress of

grievances — over property rights has been sustained. To regard the

demonstration against police officers, not against the employer, as evidence

of bad faith in collective bargaining and hence a violation of the collective

bargaining agreement and a cause for the dismissal from employment of the

demonstrating employees, stretches unduly the compass of the collective

bargaining agreement, is "a potent means of inhibiting speech" and

therefore inflicts a moral as well as mortal wound on

the constitutionalguarantees of free expression, of peaceful assembly and of

petition. Circulation is one of the aspects of freedom of expression. If

demonstrators are reduced by one-third, then by that much the circulation of

the Issue raised by the demonstration is diminished. The more the

participants, the more persons can be apprised of the purpose of the rally.

Moreover, the absence of one-third of their members will be regarded as a

substantial indication of disunity in their ranks which will enervate

their position and abet continued alleged police persecution.

6/22/11 9:55 AM

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