Republic of the Philippines

SUPREME COURT
Manila
EN BANC
G.R. No. L-12592 March 8, 1918
THE UNITED STATES, plaintiff-appellee,
vs.
FELIPE BUSTOS, ET AL., defendants-appellants.
Kincaid and Perkins for appellants.
Acting Attorney-General Paredes, for appellee.
MALCOLM, J .:
This appeal presents the specific question of whether or not the defendants and appellants are
guilty of a libel of Roman Punsalan, justice of the peace of Macabebe and Masantol, Province of
Pampanga. The appeal also submits the larger question of the attitude which the judiciary should
take interpreting and enforcing the Libel Law in connection with the basic prerogatives of
freedom of speech and press, and of assembly and petition. For a better understanding, the facts
in the present appeal are the first narrated in the order of their occurrence, then certain suggestive
aspects relative to the rights of freedom of speech and press and of assembly and petition are
interpolated, then the facts are tested by these principles, and, finally, judgment is rendered.
First, the facts. In the latter part of 1915, numerous citizens of the Province of Pampanga
assembled, and prepared and signed a petition to the Executive Secretary through the law office
of Crossfield and O'Brien, and five individuals signed affidavits, charging Roman Punsalan,
justice of the peace of Macabebe and Masantol, Pampanga, with malfeasance in office and
asking for his removal. Crossfield and O'Brien submitted this petition and these affidavits with a
complaint to the Executive Secretary. The petition transmitted by these attorneys was signed by
thirty-four citizens apparently of considerable standing, including councilors and property
owners (now the defendants), and contained the statements set out in the information as libelous.
Briefly stated the specific charges against the justice of the peace were.
1. That Francisca Polintan, desiring to make complaint against Mariano de los Reyes, visited the
justice of the peace, who first told her that he would draw up complaint for P5; afterwards he
said he would take P3 which she paid; also kept her in the house for four days as a servant and
took from her two chickens and twelve "gandus;"
2. That Valentin Sunga being interested in a case regarding land which was on trial before the
justice of the peace, went to see the justice of the peace to ascertain the result of the trial, and
was told by the justice of the peace that if he wished to win he must give him P50. Not having
this amount, Sunga gave the justice nothing, and a few days later was informed that he had lost
the case. Returning again to the office of the justice of the peace in order to appeal, the justice
told him that he could still win if he would pay P50;
3. That Leoncio Quiambao, having filed a complaint for assault against four persons, on the day
of the trial the justice called him over to his house, where he secretly gave him (Quiambao) P30;
and the complaint was thereupon shelved.
The Executive Secretary referred the papers to the judge of first instance for the Seventh Judicial
District requesting investigation, proper action, and report. The justice of the peace was notified
and denied the charges. The judge of first instance found the first count not proved and counts 2
and 3 established. In view of this result, the judge, the Honorable Percy M. Moir, was of the
opinion "that it must be, and it is hereby, recommended to the Governor-General that the
respondent be removed from his position as justice of the peace of Macabebe and Masantol,
Province of Pampanga, and it is ordered that the proceedings had in this case be transmitted to
the Executive Secretary."
Later the justice of the peace filled a motion for a new trial; the judge of first instance granted the
motion and reopened the hearing; documents were introduced, including a letter sent by the
municipal president and six councilors of Masantol, Pampanga, asserting that the justice of the
peace was the victim of prosecution, and that one Agustin Jaime, the auxiliary justice of the
peace, had instituted the charges for personal reasons; and the judge of first instance ordered a
suppression of the charges against Punsalan and acquitted him the same. Attorneys for
complainants thereupon appealed to the Governor-General, but whether the papers were
forwarded to the Governor-General as requested the record does not disclose.
Criminal action against the petitioners, now become the defendants, was instituted on October
12, 1916, by virtue of the following information:
That on or about the month of December, 1915, in the municipality of Macabebe,
Pampanga, P. I., the said accused, voluntarily, illegally, and criminally and with
malicious intent to prejudice and defame Mr. Roman Punsalan Serrano who was at said
time and place justice of the peace of Macabebe and Masantol of this province, wrote,
signed, and published a writing which was false, scandalous, malicious, defamatory, and
libelous against the justice of the peace Mr. Roman Punsalan Serrano, in which writing
appear among other things the following:
That the justice of the peace, Mr. Roman Punsalan Serrano, of this town of Macabebe, on
account of the conduct observed by him heretofore, a conduct highly improper of the
office which he holds, is found to be a public functionary who is absolutely unfair,
eminently immoral and dangerous to the community, and consequently unworthy of the
office.
That this assertion of the undersigned is evidenced in a clear and positive manner by facts
so certain, so serious, and so denigrating which appear in the affidavits attached hereto,
and by other facts no less serious, but which the undersigned refrain from citing herein
for the sake of brevity and in order not to bother too much the attention of your Honor
and due to lack of sufficient proof to substantiate them.
That should the higher authorities allow the said justice of the peace of this town to
continue in his office, the protection of the rights and interests of its inhabitants will be
illusory and utopic; rights and interest solemnly guaranteed by the Philippine Bill of
Rights, and justice in this town will not be administered in accordance with law.
That on account of the wrongful discharge of his office and of his bad conducts as such
justice of the peace, previous to this time, some respectable citizens of this town of
Macabebe were compelled to present an administrative case against the said Roman
Punsalan Serrano before the judge of first instance of Pampanga, in which case there
were made against him various charges which were true and certain and of different
characters.
That after the said administrative case was over, the said justice of the peace, far from
charging his bad and despicable conduct, which has roused the indignation of this town
of Macabebe, subsequently performed the acts abovementioned, as stated in the affidavits
herewith attached, as if intending to mock at the people and to show his mistaken valor
and heroism.'
All of this has been written and published by the accused with deliberate purpose of
attacking the virtue, honor, and reputation of the justice of the peace, Mr. Roman
Punsalan Serrano, and thus exposing him to public hatred contempt, and ridicule. All
contrary to law.
It should be noted that the information omits paragraphs of the petition mentioning the
investigation before the judge of first instance, the affidavits upon which based and concluding
words, "To the Executive Secretary, through the office of Crossfield and O'Brien."
The Honorable Percy M. Moir found all the defendants, with the exception of Felix Fernandez,
Juan S. Alfonso, Restituto Garcia, and Manuel Mallari, guilty and sentenced each of them to pay
a fine of P10 and one thirty-second part of the costs, or to suffer subsidiary imprisonment in case
of insolvency. New attorneys for the defense, coming into the case, after the handing down of the
decision, file on December 16, 1916, a motion for a new trial, the principal purpose of which was
to retire the objection interposed by the then counsel for the defendants to the admission of
Exhibit A consisting of the entire administrative proceedings. The trial court denied the motion.
All the defendants, except Melecio S. Sabado and Fortunato Macalino appealed making the
following assignments of error:
1. The court erred in overruling the motion of the convicted defendants for a new trial.
2. The court erred in refusing to permit the defendants to retire the objection in
advertently interposed by their counsel to the admission in evidence of the expediente
administrativo out of which the accusation in this case arose.
3. The court erred in sustaining the objection of the prosecution to the introduction in
evidence by the accused of the affidavits upon which the petition forming the basis of the
libelous charge was based.
4. The court erred in not holding that the alleged libelous statement was unqualifiedly
privileged.
5. The court erred in assuming and impliedly holding that the burden was on the
defendants to show that the alleged libelous statements were true and free from malice.
6. The court erred in not acquitting the defendants.
7. The evidence adduced fails to show the guilt of the defendants beyond a reasonable
doubt. This is especially true of all the defendants, except Felipe Bustos, Dionisio
Mallari, and Jose T. Reyes.
We have thus far taken it for granted that all the proceedings, administrative and judicial, were
properly before this court. As a matter of fact counsel for defendants in the lower court made an
improvident objection to the admission of the administrative proceedings on the ground that the
signatures were not identified and that the same was immaterial, which objection was partially
sustained by the trial court. Notwithstanding this curious situation by reason of which the
attorney for the defense attempted to destroy through his objection the very foundation for the
justification of his clients, we shall continue to consider all the proceedings as before us. Not
indicating specifically the reason for this action, let the following be stated: The administrative
proceedings were repeatedly mentioned during the trial. These proceedings were the basis of the
accusation, the information, the evidence, and the judgment rendered. The prosecution cannot be
understood without knowledge of anterior action. Nothing more unjust could be imagined than to
pick out certain words which standing by themselves and unexplained are libelous and then by
shutting off all knowledge of facts which would justify these words, to convict the accused. The
records in question are attached to the rollo, and either on the ground that the attorneys for the
defense retired the objection to the introduction of the administrative proceedings by the
prosecution, or that a new trial should have been had because under section 42 of the Code of
Criminal Procedure "a case may be reopened on account of errors at law committed at the trial,"
or because of the right of this court to call in such records as are sufficiently incorporated into the
complaint and are essential to a determination of the case, or finally, because of our conceded
right to take judicial notice of official action in administrative cases and of judicial proceedings
supplemental to the basis action, we examine the record as before us, containing not alone the
trial for libel, but the proceedings previous to that trial giving rise to it. To this action, the
Government can not explain for it was the prosecution which tried to incorporate Exhibit A into
the record.
With these facts pleading justification, before testing them by certain principles which make up
the law of libel and slander, we feel warranted in seizing the opportunity to intrude an
introductory and general discussion of freedom of speech and press and assembly and petition in
the Philippine Islands. We conceive that the time is ripe thus to clear up certain
misapprehensions on the subject and to place these basic rights in their proper light.
Turning to the pages of history, we state nothing new when we set down that freedom of speech
as cherished in democratic countries was unknown in the Philippine Islands before 1900. A
prime cause for revolt was consequently ready made. Jose Rizal in "Filipinas Despues de Cien
Aos" (The Philippines a Century Hence, pages 62 et seq.) describing "the reforms sine quibus
non," which the Filipinos insist upon, said: "
The minister, . . . who wants his reforms to be reforms, must begin by declaring the press
in the Philippines free and by instituting Filipinos delegates.
The Filipino patriots in Spain, through the columns of "La Solidaridad" and by other means
invariably in exposing the wants of the Filipino people demanded "liberty of the press, of cults,
and associations." (See Mabini, La Revolucion Filipina.) The Malolos Constitution, the work of
the Revolutionary Congress, in its Bill of Rights, zealously guarded freedom of speech and press
and assembly and petition.
Mention is made of the foregoing data only to deduce the proposition that a reform so sacred to
the people of these Islands and won at so dear a cost, should now be protected and carried
forward as one would protect and preserve the covenant of liberty itself.
Next comes the period of American-Filipino cooperative effort. The Constitution of the United
States and the State constitutions guarantee to the right of freedom of speech and press and the
right of assembly and petition. We are therefore, not surprised to find President McKinley in that
Magna Charta of Philippine Liberty, the Instructions to the Second Philippine Commission, of
April 7, 1900, laying down the inviolable rule "That no law shall be passed abridging the
freedom of speech or of the press or of the rights of the people to peaceably assemble and
petition the Government for a redress of grievances."
The Philippine Bill, the Act of Congress of July 1, 1902, and the Jones Law, the Act of Congress
of August 29, 1916, in the nature of organic acts for the Philippines, continued this guaranty. The
words quoted are not unfamiliar to students of Constitutional Law, for they are the counterpart of
the first amendment to the Constitution of the United States, which the American people
demanded before giving their approval to the Constitution.
We mention the foregoing facts only to deduce the position never to be forgotten for an instant
that the guaranties mentioned are part and parcel of the Organic Law of the Constitution of
the Philippine Islands.
These paragraphs found in the Philippine Bill of Rights are not threadbare verbiage. The
language carries with all the applicable jurisprudence of great English and American
Constitutional cases. (Kepner vs. U. S. [1904], 195 U. S., 100; Serra vs. Mortiga [1907], 204 U.
S., 470.) And what are these principles? Volumes would inadequately answer. But included are
the following:
The interest of society and the maintenance of good government demand a full discussion of
public affairs. Completely liberty to comment on the conduct of public men is a scalpel in the
case of free speech. The sharp incision of its probe relieves the abscesses of officialdom. Men in
public life may suffer under a hostile and an unjust accusation; the wound can be assuaged with
the balm of a clear conscience. A public officer must not be too thin-skinned with reference to
comment upon his official acts. Only thus can the intelligence and the dignity of the individual
be exalted. Of course, criticism does not authorize defamation. Nevertheless, as the individual is
less than the State, so must expected criticism be born for the common good. Rising superior to
any official or set of officials, to the Chief of Executive, to the Legislature, to the Judiciary to
any or all the agencies of Government public opinion should be the constant source of liberty
and democracy. (See the well considered cases of Wason vs. Walter, 4 L. R. 4 Q. B., 73;
Seymour vs. Butterworth, 3F. and F., 372; The Queen vs. Sir R. Carden, 5 Q. B. D., 1)
The guaranties of a free speech and a free press include the right to criticize judicial conduct. The
administration of the law is a matter of vital public concern. Whether the law is wisely or badly
enforced is, therefore, a fit subject for proper comment. If the people cannot criticize a justice of
the peace or a judge the same as any other public officer, public opinion will be effectively
muzzled. Attempted terrorization of public opinion on the part of the judiciary would be tyranny
of the basest sort. The sword of Damocles in the hands of a judge does not hang suspended over
the individual who dares to assert his prerogative as a citizen and to stand up bravely before any
official. On the contrary, it is a duty which every one owes to society or to the State to assist in
the investigation of any alleged misconduct. It is further the duty of all who know of any official
dereliction on the part of a magistrate or the wrongful act of any public officer to bring the facts
to the notice of those whose duty it is to inquire into and punish them. In the words of Mr. Justice
Gayner, who contributed so largely to the law of libel. "The people are not obliged to speak of
the conduct of their officials in whispers or with bated breath in a free government, but only in a
despotism." (Howarth vs. Barlow [1906], 113 App. Div., N. Y., 510.)
The right to assemble and petition is the necessary consequence of republican institutions and the
complement of the part of free speech. Assembly means a right on the part of citizens to meet
peaceably for consultation in respect to public affairs. Petition means that any person or group of
persons can apply, without fear of penalty, to the appropriate branch or office of the government
for a redress of grievances. The persons assembling and petitioning must, of course, assume
responsibility for the charges made.
Public policy, the welfare of society, and the orderly administration of government have
demanded protection for public opinion. The inevitable and incontestable result has been the
development and adoption of the doctrine of privilege.
The doctrine of privileged communications rests upon public policy, 'which looks to the
free and unfettered administration of justice, though, as an incidental result, it may in
some instances afford an immunity to the evil-disposed and malignant slanderer.' (Abbott
vs. National Bank of Commerce, Tacoma [1899], 175 U. S., 409, 411.)
Privilege is classified as either absolute or qualified. With the first, we are not concerned. As to
qualified privilege, it is as the words suggest a prima facie privilege which may be lost by proof
of malice. The rule is thus stated by Lord Campbell, C. J.
A communication made bona fide upon any subject-matter in which the party
communicating has an interest, or in reference to which has a duty, is privileged, if made
to a person having a corresponding interest or duty, although it contained criminatory
matter which without this privilege would be slanderous and actionable. (Harrison vs.
Bush, 5 E. and B., 344; 1 Jur.[N. S.], 846; 25 L. J. Q. B., 25; 3 W. R., 474; 85 E. C. L.,
344.)
A pertinent illustration of the application of qualified privilege is a complaint made in good faith
and without malice in regard to the character or conduct of a public official when addressed to an
officer or a board having some interest or duty in the matter. Even when the statements are found
to be false, if there is probable cause for belief in their truthfulness and the charge is made in
good faith, the mantle of privilege may still cover the mistake of the individual. But the
statements must be made under an honest sense of duty; a self-seeking motive is destructive.
Personal injury is not necessary. All persons have an interest in the pure and efficient
administration of justice and of public affairs. The duty under which a party is privileged is
sufficient if it is social or moral in its nature and this person in good faith believes he is acting in
pursuance thereof although in fact he is mistaken. The privilege is not defeated by the mere fact
that the communication is made in intemperate terms. A further element of the law of privilege
concerns the person to whom the complaint should be made. The rule is that if a party applies to
the wrong person through some natural and honest mistake as to the respective functions of
various officials such unintentional error will not take the case out of the privilege.
In the usual case malice can be presumed from defamatory words. Privilege destroy that
presumption. The onus of proving malice then lies on the plaintiff. The plaintiff must bring home
to the defendant the existence of malice as the true motive of his conduct. Falsehood and the
absence of probable cause will amount to proof of malice. (See White vs. Nicholls [1845], 3
How., 266.)
A privileged communication should not be subjected to microscopic examination to discover
grounds of malice or falsity. Such excessive scrutiny would defeat the protection which the law
throws over privileged communications. The ultimate test is that of bona fides. (See White vs.
Nicholls [1845], 3 How., 266; Bradley vs. Heath [1831], 12 Pick. [Mass.], 163; Kent vs.
Bongartz [1885], 15 R. I., 72; Street Foundations of Legal Liability, vol. 1, pp. 308, 309; Newell,
Slander and Libel, various citations; 25 Cyc. pages 385 et seq.)
Having ascertained the attitude which should be assumed relative to the basic rights of freedom
of speech and press and of assembly and petition, having emphasized the point that our Libel
Law as a statute must be construed with reference to the guaranties of our Organic Law, and
having sketched the doctrine of privilege, we are in a position to test the facts of this case with
these principles.
It is true that the particular words set out in the information, if said of a private person, might
well be considered libelous per se. The charges might also under certain conceivable conditions
convict one of a libel of a government official. As a general rule words imputing to a judge or a
justice of the peace dishonesty or corruption or incapacity or misconduct touching him in his
office are actionable. But as suggested in the beginning we do not have present a simple case of
direct and vicious accusations published in the press, but of charges predicated on affidavits
made to the proper official and thus qualifiedly privileged. Express malice has not been proved
by the prosecution. Further, although the charges are probably not true as to the justice of the
peace, they were believed to be true by the petitioners. Good faith surrounded their action.
Probable cause for them to think that malfeasance or misfeasance in office existed is apparent.
The ends and the motives of these citizens to secure the removal from office of a person
thought to be venal were justifiable. In no way did they abuse the privilege. These respectable
citizens did not eagerly seize on a frivolous matter but on instances which not only seemed to
them of a grave character, but which were sufficient in an investigation by a judge of first
instance to convince him of their seriousness. No undue publicity was given to the petition. The
manner of commenting on the conduct of the justice of the peace was proper. And finally the
charges and the petition were submitted through reputable attorneys to the proper functionary,
the Executive Secretary. In this connection it is sufficient to note that justices of the peace are
appointed by the Governor-General, that they may be removed by the Governor-General upon
the recommendation of a Judge of First Instance, or on the Governor-General's own motion, and
that at the time this action took place the Executive Bureau was the office through which the
Governor-General acted in such matter. (See Administrative Code of 1917, secs. 203 and 229, in
connection with the cases of U. S. vs. Galesa [1915], 31 Phil., 365, and of Harrison vs. Bush, 5
E. and B., 344, holding that where defendant was subject to removal by the sovereign, a
communication to the Secretary of State was privileged.)
The present facts are further essentially different from those established in other cases in which
private individuals have been convicted of libels of public officials. Malice, traduction,
falsehood, calumny, against the man and not the officer, have been the causes of the verdict of
guilty. (See U. S. vs. Senado [1909], 14 Phil., 338, 339; U. S. vs. Contreras [1912], 23 Phil., 513;
U. S. vs. Montalvo [1915], 29 Phil., 595.)
The Attorney-General bases his recommendation for confirmation on the case of the United
States vs. Julio Bustos ([1909], 13 Phil., 690). The Julio Bustos case, the Attorney-General says,
is identical with the Felipe Bustos case, with the exception that there has been more publicity in
the present instance and that the person to whom the charge was made had less jurisdiction than
had the Secretary of Justice in the Julio Bustos case. Publicity is immaterial if the charge against
Punsalan is in fact a privileged communication. Moreover, in the Julio Bustos case we find wild
statements, with no basis in fact, made against reputable members of the judiciary, "to persons
who could not furnish protection." Malicious and untrue communications are not privileged. A
later case and one more directly in point to which we invite especial attention is United States vs.
Galeza ([1915], 31 Phil., 365). (Note also Yancey vs. Commonwealth [1909], 122 So. W., 123.)
We find the defendants and appellants entitled to the protection of the rules concerning qualified
privilege, growing out of constitutional guaranties in our bill of rights. Instead of punishing
citizens for an honest endeavor to improve the public service, we should rather commend them
for their good citizenship. The defendants and appellants are acquitted with the costs de officio.
So ordered.
Arellano, C.J., Johnson, Araullo, Street, and Fisher, JJ., concur.

Separate Opinions
CARSON, J ., concurring:
I concur. I think it proper to observe, however, that in my opinion the Attorney-General is
entirely correct when he says that this case is substantially identical with the former "Bustos case
(The United States vs. Bustos, 13 Phil. Rep., 690). I believe that a careful reading of our
decisions in these cases is sufficient to demonstrate that fact. The truth is that the doctrine of the
prevailing opinion in the former Bustos case has long since been abandoned by this court; and in
my opinion it would make for the more efficient administration of the Libel Law in these Islands
to say so, in so many words. (Cf. U. S. vs. Sedano, [1909], 14 Phil. Rep., 338, 339; U. S. vs.
Contreras [1912], 23 Phil. Rep., 513; U. S. vs. Montalvo [1915], 29 Phil. Rep., 595; and U. S. vs.
Galeza [1915], 31 Phil. Rep., 365.)

Republic of the Philippines
SUPREME COURT
Manila
EN BANC
G.R. No. 46551 December 12, 1939
THE PEOPLE OF THE PHILIPPINES, plaintiff-appelle,
vs.
SALVADOR ALARCON, ET AL., accused.
FEDERICO MANGAHAS, respondent-appellant.
Araneta, Zaragoza & Araneta for appellant.
Assistant Solicitor-General Salvador Abad Santos for appellee.

LAUREL, J .:
As an aftermath of the decision rendered by the Court of first Instance of Pampanga in criminal
case No. 5733, The People of the Philippines vs. Salvador Alarcon, et al., convicting the accused
therein except one of the crime of robbery committed in band, a denunciatory letter, signed
by Luis M. Taruc, was addressed to His Excellency, the President of the Philippines. A copy of
said letter found its way to the herein respondent, Federico Magahas who, as columnist of the
Tribune, a newspaper of general circulation in the Philippines, quoted the letter in an article
published by him in the issue of that paper of September 23, 1937. The objectionable portion is
inserted in the following petition of the provincial fiscal of Pampanga, filed with the Court of
First Instance of that province on September 29, 1937:
PETICION PARA QUE FEDERICO MAGAHAS SEA CASTIGADO POR
DESACATO
Comparece el fiscal provincial que suscribe y al Hon. Juzgado, como motivos de accion,
restuosamente alega:
1. Que el 23 de julio de 1937, el que suscribe presento una querella en la causa arriba titulada,
por el delito de ROBO EN CUADRILLA, habiendose celebrado la vista de esta causa durante
los dias 28, 29 y 30 del mismo mes y ao;
2. Que el 2 de agosto de 1937, el Hon. Juzgado dicto su decision declarando culpables a los
cincuenta y dos acusados, y condenando al acusado Ricardo Serrano 1. como jefe de la
cuadrilla, a una pena indeterminada no menor de cuatro meses de arresto mayor, ni mayor de
cuatro aos de prision correccional, y a todos los demas acusados a una pena indeterminada no
menor de cuatro meses de arresto mayor, ni mayor de cuatro a os de prision correccional, y a
todos los demas acusados a una pena indeterminada no menor de dos meses y un dia de arresto
mayor, ni mayor de tres aos, ocho meses y un dia de prision correccional y al pago proporcional
de las costas;
3. Que el 9 de agosto de 1937, no estando conformes de esta decision, los referidos acusados
presentaron su escrito de apelacion para ante la Corte de Apelaciones;
4. Que el 23 de septiembre de 1937, el recurrido Federico Mangahas escribio, redacto, imprimio
y publico e hizo que se publicara en el periodico diario The Tribune que se edite en la Ciudad de
Manila y de general circulacion en las Islas Filipinas, en su numero correspondiente a dicha
fecha, un articulo que hacia referencia a este Hon. Juzgado y a la actuacion de este en esta causa,
cuyo articulo en parte es del tenor siguiente:
'Fifty-two (52) tenants in Floridablanca, Pampanga, have been charged and convicted on a
trumped up charge of robbery in band because they took each a few cavans of palay for which
they issued the corresponding receipts, from the bodega in the hacienda where they are working.
These tenants contend that they have the right to take the palay for their food as the hacienda
owner has the obligation to give them rations of palay for their maintenance and their families to
be paid later with their share of their crop. But this is not all. When the convicted tenants
appealed the case and were released on bail pending their appeal, court and public officials
exerted pressure upon one of their bondsmen, as this bondsman informed the tenants, to
withdraw his bail for them, and the fifty-two tenants were arrested again and put in
jail.'lawphil.net
5. Que la publicacion de este articulo acotado constituye un verdadero desacato al Tribunal,
porque tiene por objeto obstaculizar la recta administracion de justicia, y tiende, ademas, a
impresionar en el animo del Tribunal y a ejercer influencia en la decision que se dictare en este
causa;
6. Que la publicacion de dicho articulo es igualmente un verdadero desacato a este Hon.
Juzgado, por ser completamente falsos y tendenciosos los hechos expuestos en el mismo como
hechos ejecutados por este Hon. Juzgado;
7. Que el recurrido Federico Mangahas con dicho articulo acotado, voluntaria, maliciosa y
deliberadamente trato y se propuso atacar la honra, virtud y reputacion de este Hon. Juzgado
exponiendolo el menosprecio y ridiculo del publico por las imputaciones falsas, maliciosas y
difamatorias contenidas en dicho articulo.
Por tanto, pide se sirva ordenar el emplazamiento del recurrido Federico Mangahas, c/o
T.V.T. Publishing Corporation, Calle Florentino Torres, Manila, para que comparezca
ante este Hon. Juzgado y conteste a la presente peticion, y, previos los tramites legales,
dicho recurido sea castigado por desacato. Pide igualmente se sirva dictar cualquier otra
resolucion que en derecho proceda.
San Fernando, Pampanga, septiembre 23, 1937.
On the same date, the lower court ordered the respondent to appear and show cause. The
respondent appeared and filed an answer, alleging:
1. That he did not draft and write the paragraph above quoted in the petition of the
Provincial Fiscal, but the same is merely a part of a letter addressed to the President of
the Philippines, certified copy of which is hereto attached, and marked Exhibit "1."
2. That he caused the said letter to be copied without comments or remarks as may be
seen from the attached issue of the "The Tribune" on September 23, 1937, marked
Exhibit "2."
3. That in having the said letter copied it was not the intention, much less the purpose and
design of the respondent to attack the honor, virtue and reputation of this Honorable
Court but merely cited it as an instance of the popular tendency to resort to the President
in everything.
4. That far from reflecting on the honor, virtue and reputation of this Honorable Court,
the publication of the letter to the President simply constitutes an indirect criticism of the
methods of the Popular Front in building up its political prestige.
5. That the publication of the letter in question did not and does not embarrass, impede,
intimidate or influence this Honorable Court in the exercise of its judicial functions, or
prevent an impartial trial in this case, inasmuch as the case has already been decided.
6. That the respondent alleges that this case is no longer pending before this Hon. Court
and therefore the Court has lost its jurisdiction over it.
7. The respondents contends that the portion of the article quoted by the provincial fiscal
in his petition for contempt does not constitute contempt of court because it does not
attack nor question the judgment of the Court but only explain the side of the defendant.
8. "The general rule is that to constitute any publication a contempt it must have
reference to a matter then pending in court, and be of a character tending to the injury of
pending proceeding before if and of the subsequent proceeding. It is accordingly held that
libelous comments upon a sentence already passed in a criminal proceeding is not a
contempt." (Percival v. State, 45 Neb., 741 50 Am. St. Rept., 568; 64 NW. 221; 68 L.
R.A., 255.)
9. "But comment upon the lower court's decision was held not contemptous because
relating to a concluded matter, in Re Dalton, 46 Jan., 256; 26 Pac., 673 and Dumhan v.
State, 6 Iowa, 245; although the case was then pending on appeal." (68 L.R.A., 262.)
(Underlining ours.)
10. That the publication of the letter in question is in line with the constitutional
guarantee of freedom of the press.
On November 29, 2937, the lower court entered an order, the dispositive part of which read thus:
Considerando, sin embargo, todas las circunstancias del case, el Juzgado solamente
impone al recurrido una multa nominal de P25, o en case de insolvencia, cinco dias de
prision sin perjuico de la accion por libelo que el fiscal creyere conviniente incoar contra
Luis M. Taruc.
Asi se ordena.
Respondent Magahas appealed from this order to the Court of Appeals which later certified
the case to this Court as involving only a question of law assigning the following errors
allegedly committed by the trial court;
I. The lower court erred in finding the respondent guilty of contempt of court.
II. The lower court erred in considering the letter quoted in the article in question as
falling under the Rules on the Investigation of Judges of First Instance.
III. The lower court erred in taking jurisdiction of the motion for contempt.
Consideration of the first error is all that is necessary as the same will lead
incidentally to the disposition of the other two.
The elements of contempt by newspaper publications are well defined by the cases
adjudicated in this as in other jurisdictions. Newspaper publications tending to
impede, obstruct, embarrass, or influence the courts in administering justice in a
pending suit or proceeding constitutes criminal contempt which is summarily
punishable by the courts. The rule is otherwise after the cause is ended. (In re Lozano
and Quevedo, 54 Phil., 801; In re Abistado, 57 Phil., 668.) It must, however, clearly
appear that such publications do impede, interfere with, and embarrass the
administration of justice before the author of the publications should be held for
contempt. (Nixon v. State 207 Ind., 426, 193 N.E., 591, 97 A.L.R., 894.) What is thus
sought to be shielded against the influence of newspaper comments is the all-
important duty of the court to administer justice in the decision of a pending case.
There is no pending case to speak of when and once the court has come upon a
decision and has lost control either to reconsider or amend it. That, we believe, is the
case at bar, for here we have a concession that the letter complained of was published
after the Court of First Instance of Pampanga had decided the aforesaid criminal case
for robbery in band, and after that decision had been appealed to the Court of Appeals.
The fact that a motion to reconsider its order confiscating the bond of the accused
therein was subsequently filed may be admitted; but, the important consideration is
that it was then without power to reopen or modify the decision which it had rendered
upon the merits of the case, and could not have been influenced by the questioned
publication.
If it be contended, however, that the publication of the questioned letter constitutes
contempt of the Court of Appeals where the appeal in the criminal case was then
pending, as was the theory of the provincial fiscal below which was accepted by the
lower court, we take the view that in the interrelation of the different courts forming
our integrated judicial system, one court is not an agent or representative of another
and may not, for this reason, punish contempts in vindication of the authority and
decorum which are not its own. The appeal transfer the proceedings to the appellate
court, and this last word becomes thereby charged with the authority to deal with
contempts committed after the perfection of the appeal.
The Solicitor-General, in his brief, suggests that "even if there had been nothing more
pending before the trial court, this still had jurisdiction to punish the accused for
contempt, for the reason that the publication scandalized the court. (13 C.J., p. 37, 45;
6 R.C.L., 513.)" The rule suggested, which has its origin at common law, is involved
in some doubt under modern English law and in the United States, "the weight of
authority, however, is clearly to the effect that comment upon concluded cases is
unrestricted under our constitutional guaranty of the liberty of the press."
(Annotations, 68 L.R.A., 255.) Other considerations argue against our adoption of the
suggested holding. As stated, the rule imported into this jurisdiction is that
"newspaper publications tending to impede, obstruct, embarrass, or influence the
courts in administering justice in a pending suit or proceeding constitute criminal
contempt which is summarily punishable by the courts; that the rule is otherwise after
the case is ended." (In re Lozano and Quevedo, supra; In re Abistado, supra.) In at
least two instances, this Court has exercised the power to punish for contempt "on the
preservative and on the vindicative principle" (Villavicencio vs. Lukban, 39 Phil.,
778), "on the corrective and not on the retaliatory idea of punishment". In re Lozano
and Quevedo, supra.) Contempt of court is in the nature of a criminal offense (Lee
Yick Hon vs. Collector of Customs, 41 Phil., 548), and in considering the probable
effects of the article alleged to be contemptuous, every fair and reasonable inference
consistent with the theory of defendant's innocence will be indulged (State v. New
Mexican Printing Co., 25 N. M., 102, 177 p. 751), and where a reasonable doubt in
fact or in law exists as to the guilt of one of constructive contempt for interfering with
the due administration of justice the doubt must be resolved in his favor, and he must
be acquitted. (State v. Hazeltine, 82 Wash., 81, 143 p. 436.) The appealed order is
hereby reversed, and the respondent acquitted, without pronouncement as to costs. So
ordered.
Avancea, C.P., Villa-Real, Imperial, Diaz and Concepcion, JJ., concur.



Separate Opinions

MORAN, C.J ., dissenting:
Respondent Federico Magahas admitted having published in the September 23, 1937
issue of the Tribune, a newspaper of general circulation in the Philippines, an article,
the pertinent portion of which reads as follows:
As the election draws near the tenants and workers who have joined the
Popular Front are persecuted and jailed by the authorities in Pampanga, in
order to prevent them to take part in the coming election.
Fifty-two tenants in Floridablanca, Pampanga, have been charged and
convicted on a trumped up charge of robbery in band because they issued the
corresponding receipts, from the bodega in the hacienda where they are
working. These tenants contend that they have the right to take the palay for
their food as the hacienda owner has the obligation to give them rations of
palay for their maintenance and their families to be paid later with their share of
their crop. But this is not all. When the convicted tenants appealed the case and
were release from bail pending their appeal, court and public official exerted
pressure upon one of their bondsmen, as this bondsman informed the tenants,
to withdraw his bail for them, and the fifty-two tenants were arrested again and
put in jail.
Other twenty-six tenants in Minalin, Pampanga, have just been arrested on the
same charge as those in Floridablanca. The case of the Minalin tenants was
dismissed about three months ago by the provincial fiscal, but it was lately
revived in order to keep the tenants in jail so that they may not be able to vote
in the coming election.
The workers and peasants seeing their abuses have entirely lost their
confidence in the so-called courts of justice. Trials in court are farce and
mockery for them, and they come to look upon the courts and judges as mere
tools in the hands of the Government of the ruling class to oppress the workers
and the poor. (Underscoring mine.)
Although the information quotes but a part of the foregoing article, as respondent has
offered the same in evidence, it may be inquired into in its entirety for the purpose of
determining the true meaning and scope of the offense charged.
Upon the authority of In re Lozano and Quevedo, 54 Phil., 801 and In re Abistado, 57
Phil., 668, the majority ruled that the foregoing article, having been published after
the criminal case for robbery in band has been decided by the Court of First Instance
of Pampanga and after the decision therein has been appealed to the Court of Appeals,
dos not constitute contempt of that court.
Contempt, by reason of publications relating to court and to court proceedings, are of
two kinds. A publication which tends to impede, obstruct, embarrass or influence the
courts in administering justice in a pending suit or proceeding, constitutes criminal
contempt which is summarily punishable by courts. This is the rule announced in the
case relied upon by the majority. A publication which tends to degrade the courts and
to destroy public confidence in them or that which tends to bring them in any way into
dispute, constitutes likewise criminal contempt, and is equally punishable by courts.
In the language of the majority, what is sought, in the first kind of contempt, to be
shielded against the influence of newspaper comments, is the all-important duty of the
courts to administer justice in the decision of a pending case. In the second kind of
contempt, the punitive hand of justice is extended to vindicate the courts from any act
or conduct calculated to bring them into disfavor or to destroy public confidence in
them. In the first there is no contempt where there is no action pending, as there is no
decision which might in any way be influenced by the newspaper publication. In the
second, the contempt exists, with or without a pending case, as what is sought to be
protected is the court itself and its dignity. (12 Am. Jur. pp. 416-417.) Courts would
lose their utility if public confidence in them is destroyed.
In the instant case, there can be no question that the publication is an attack upon the
court itself calculated to bring it into disfavor; and to the extent that it characterizes
the trial therein as "farce and mockery," it jeopardizes not only its dignity but also its
very existence. To deny to the court the power to punish such an attack is to deprive it
of its very right to self-preservation.
It is true that the Constitution guarantees the freedom of speech and of the press. But
license or abuse of that freedom should not be confused with freedom in its true sense.
Well-ordered liberty demands no less unrelaxing vigilance against abuse of the sacred
guaranties of the Constitution than the fullest protection of their legitimate exercise.
As important as is the maintenance of a free press and the free exercise of the rights of
the citizens is the maintenance of a judiciary unhampered in its administration of
justice and secure in its continuos enjoyment of public confidence. "The
administration of justice and freedom of the press, though separate and distinct are
equally sacred, and neither should be violated by the other. The press and the courts
have correlative rights and duties and should cooperate to uphold the principles of the
Constitution and the laws, from which the former receives its prerogatives and the
latter its jurisdiction." (U.S. vs. Sullens, 36 Fed., 2d ed., 230.) Democracy cannot long
endure in a country where liberty is grossly misused any more than where liberty is
illegitimately abridged.
In State vs. Morrill, 16 Ark., 384, the court wisely observed:
Any citizen has the right to publish the proceedings and decisions of this court,
and if he deem it necessary for the public good, to comment upon them freely,
discuss their correctness, the fitness or unfitness of the judges for their stations,
and the fidelity with which they perform the important public trusts reposed in
them, but he has no right to attempt, by defamatory publications, to degrade the
tribunal, destroy public confidence in it, and dispose the community to
disregard and set at naught its orders, judgments, and decrees. Such
publications are an abuse of the liberty of the press, and tend to sap the very
foundation of good order and well being in society, by obstructing the course of
justice. If a judge is really corrupt, and unworthy of the station which he holds,
the constitution has provided an ample remedy by impeachment or address,
where he can meet his accuser face to face, and his conduct may undergo a full
investigation. The liberty of the press is one thing, and licentious scandal is
another. . . .
If the contemptous publication made by the respondent herein were directed to this
Court in connection with a case already decided, the effect of the rule laid down by
the majority is to deny this Court the power to vindicate its dignity. The mischievous
consequences that will follow from the situation thus sought to be permitted, are both
too obvious and odious to be stated. The administration of justice, no matter how
righteous, may be identified with all sorts of fancied scandal for having lost their
cases, will have every way to give their resentment. Respect and obedience to law will
ultimately be shattered, and as a consequence, the utility of the courts will completely
disappear.
It may said that respect to courts cannot be compelled and that the public confidence
should be a tribute to judicial worth, virtue and intelligence. But compelling respect to
courts is one thing and denying the courts the power to vindicate themselves when
outraged is another. I know of no principle of law that authorizes with impunity a
discontented citizen to unleash, by newspaper publications, the avalanche of his wrath
and venom upon courts and judges. If he believes that a judge is corrupt and that
justice has somewhere been perverted law and order require that he follow then
processes provided by the Constitution and the statutes by instituting the
corresponding proceedings for impeachment or otherwise. As Mr. Justice Palmer, in
speaking of the duty of courts and court officers, has wisely said:
Would it be unjust to the person who are called upon to exercise these powers
to compel them to do so, and at the same time allow them to be maltreated or
libeled because they did so? How would a suitor like a juryman trying his case
who might expect he would be assaulted, beaten, his property destroyed, or his
reputation blasted, in case he decided against his opponent? Apply the same
thing to judges, or the sheriff, and how long could organized society hold
together? . . . With reference to a judge, if he has acted corruptly, it is worse
than a mere contempt. But it is apparent it would not be right that the court of
which he is a member should determine this and consequently the law has
provided a plain and easy method of bringing him to justice by a petition to
Parliament: . . . but, while the law authorizes thus, it does not allow infamous
charges to be made against him by persons, either in the newspapers or
otherwise, with reference to how he has or shall discharge the duties of his
office. It must be apparent to all right thinking men that, if such were allowed
to be indulged in, it must end in the in the usefulness of the court itself being
destroyed, however righteous its judges may act. From what I have said it must
not be supposed that I think that the decisions of the court, or the actions of the
judges, or other persons composing the court, are not to be discussed; on the
contrary, I would allow the freest criticism of all such acts if done in a fair
spirit, only stopping at what must injure or destroy the court itself and bring the
administration of the law into disrepute, or be an outrage on the persons whose
acts are discussed, or when such discussion would interfere with the right
decision of the cause before the court. (Ex parte Baird, 27 N.B., 99.)
It might be suggested that judges who are unjustly attacked have a remedy in an
action for libel. This suggestion has, however, no rational basis in principle. In the
first place, the outrage is not directed to the judge as a private individual but to the
judge as such or to the court as an organ of the administration of justice. In the second
place, public interests will gravely suffer where the judge, as such, will, from time to
time, be pulled down and disrobed of the judicial authority to face his assailants on
equal grounds and prosecute cases in his behalf as a private individual. The same
reasons of public policy which exempt a judge from civil liability in the exercise of
his judicial functions, most fundamental of which is the policy to confine his time
exclusively to the discharge of his public duties, applies here with equal, if not
superior, force. (Hamilton v. Williams, 26 Ala. 529; Busteed v. Parson, 54 Ala. 403;
Ex parte McLeod, 120 Fed. 13o; Coons v. State, 191 Ind. 580; 134 N. E. 194.)
Besides, as chief Justice Kent said in Yates v. Lansing, 5 Johns, 2882;
Whenever we subject the established courts of the land to the degradation of
private prosecutions, we subdue their independence and destroy their authority.
Instead of being vulnerable before the public, they become contemptible, and
we thereby embolden the licentious to trample upon everything sacred in
society, and to overturn those institutions which have hitherto been deemed the
best guardians of civil liberty.
I know that in the United States, publications about courts, after the conclusion of a
pending case, no matter how perverse or scandalous, are in many instances brought
within the constitutional protection of the liberty of the press. But while this rule may
find justification in that country, considering the American temper and psychology
and the stability of its political institutions, it is doubtful whether her a similar
toleration of gross misuse of liberty of the press would, under our circumstances,
result in no untoward consequences to our structure of democracy yet in the process of
healthful development and growth.
I still admire the judiciary of England and the vigilance with which it guards the
stability of its judicial institutions. Mr. Justice Wilmot in king v. Almon; Wilmots
Notes, p. 253, involving a publication containing a diatribe against Lord Mansfield,
said:
To be impartial, and to be universally thought so, are both absolutely necessary for
giving justice that free, open, and uninterrupted current which it has for many ages
found all over this kingdom, and which so eminently distinguishes and exalts it above
all nations upon the earth . . . The constitution had provided very apt and proper
remedies for correcting and rectifying the involuntary mistakes of judges, and for
punishing and removing them for any voluntary perversions of justice. Nut, if their
authority is to be trampled upon by pamphleteers and newswriters, and the people are
to be told that the power given to the judges for their protection is prostituted to their
destruction, the courts may retain its power some little time; but I am sure it will
instantly lose all its authority, and the power of the court will not long survive the
authority of it.
I therefore hold that the publication constitutes contempt of the trial court and vote
accordingly to affirm the order.


Republic of the Philippines
SUPREME COURT
Manila
EN BANC
G.R. No. 82380 April 29, 1988
AYER PRODUCTIONS PTY. LTD. and McELROY & McELROY FILM
PRODUCTIONS, petitioners,
vs.
HON.IGNACIO M. CAPULONG and JUAN PONCE ENRILE, respondents.
G.R. No. 82398 April 29, 1988
HAL MCELROY petitioner,
vs.
HON. IGNACIO M. CAPULONG, in his capacity as Presiding Judge of the Regional
Trial Court of Makati, Branch 134 and JUAN PONCE ENRILE, respondents.

FELICIANO, J .:
Petitioner Hal McElroy an Australian film maker, and his movie production company, Petitioner Ayer Productions pty Ltd. (Ayer Productions),
1
envisioned, sometime in 1987, the for commercial viewing and for Philippine and international release,
the histolic peaceful struggle of the Filipinos at EDSA (Epifanio de los Santos Avenue). Petitioners
discussed this Project with local movie producer Lope V. Juban who suggested th they consult with the
appropriate government agencies and also with General Fidel V. Ramos and Senator Juan Ponce Enrile,
who had played major roles in the events proposed to be filmed.
The proposed motion picture entitled "The Four Day Revolution" was endorsed by the Movie Television
Review and Classification Board as wel as the other government agencies consulted. General Fidel
Ramos also signified his approval of the intended film production.
In a letter dated 16 December 1987, petitioner Hal McElroy informed private respondent Juan Ponce
Enrile about the projected motion picture enclosing a synopsis of it, the full text of which is set out below:
The Four Day Revolution is a six hour mini-series about People Powera unique event
in modern history that-made possible the Peaceful revolution in the Philippines in 1986.
Faced with the task of dramatising these rerkble events, screenwriter David Williamson
and history Prof Al McCoy have chosen a "docu-drama" style and created [four] fictitious
characters to trace the revolution from the death of Senator Aquino, to the Feb revolution
and the fleeing of Marcos from the country.
These character stories have been woven through the real events to help our huge
international audience understand this ordinary period inFilipino history.
First, there's Tony O'Neil, an American television journalist working for major network.
Tony reflects the average American attitude to the Phihppinence once a colony, now
the home of crucially important military bases. Although Tony is aware of the corruption
and of Marcos' megalomania, for him, there appears to be no alternative to Marcos
except the Communists.
Next, Angie Fox a fiery Australian photo-journalist. A 'new girl in town,' she is quickly
caught up in the events as it becomes dear that the time has come for a change. Through
Angle and her relationship with one of the Reform Army Movement Colonels (a fictitious
character), we follow the developing discontent in the armed forces. Their dislike for
General Ver, their strong loyalty to Defense Minister Enrile, and ultimately their defection
from Marcos.
The fourth fictitious character is Ben Balano, a middle-aged editor of a Manila newspaper
who despises the Marcos regime and is a supporter an promoter of Cory Aquino. Ben
has two daughters, Cehea left wing lawyer who is a secret member of the New People's
Army, and Eva--a -P.R. girl, politically moderate and very much in love with Tony.
Ultimately, she must choose between her love and the revolution.
Through the interviews and experiences of these central characters, we show the
complex nature of Filipino society, and thintertwining series of events and characters that
triggered these remarkable changes. Through them also, we meet all of the principal
characters and experience directly dramatic recreation of the revolution. The story
incorporates actual documentary footage filmed during the period which we hope will
capture the unique atmosphere and forces that combined to overthrow President Marcos.
David Williamson is Australia's leading playwright with some 14 hugely successful plays
to his credit(Don's Party,' 'The Club,' Travelling North) and 11 feature films (The Year of
Living Dangerously,' Gallipoli,' 'Phar Lap').
Professor McCoy (University of New South Wales) is an American historian with a deep
understanding of the Philippines, who has worked on the research for this project for
some 18 months. Together with Davi Wilhamgon they have developed a script we believe
accurately depicts the complex issues and events that occurred during th period .
The six hour series is a McElroy and McElroy co-production with Home Box Office in
American, the Australian Broadcast Corporation in Australia and Zenith Productions in
the United Kingdom
The proposed motion picture would be essentially a re-enact. ment of the events that made possible the
EDSA revolution; it is designed to be viewed in a six-hour mini-series television play, presented in a
"docu-drama" style, creating four (4) fictional characters interwoven with real events, and utilizing actual
documentary footage as background.
On 21 December 1987, private respondent Enrile replied that "[he] would not and will not approve of the
use, appropriation, reproduction and/or exhibition of his name, or picture, or that of any member of his
family in any cinema or television production, film or other medium for advertising or commercial
exploitation" and further advised petitioners that 'in the production, airing, showing, distribution or
exhibition of said or similar film, no reference whatsoever (whether written, verbal or visual) should not be
made to [him] or any member of his family, much less to any matter purely personal to them.
It appears that petitioners acceded to this demand and the name of private respondent Enrile was deleted
from the movie script, and petitioners proceeded to film the projected motion picture.
On 23 February 1988, private respondent filed a Complaint with application for Temporary Restraining
Order and Wilt of Pretion with the Regional Trial Court of Makati, docketed as Civil Case No. 88-151 in
Branch 134 thereof, seeking to enjoin petitioners from producing the movie "The Four Day Revolution".
The complaint alleged that petitioners' production of the mini-series without private respondent's consent
and over his objection, constitutes an obvious violation of his right of privacy. On 24 February 1988, the
trial court issued ex-parte a Temporary Restraining Order and set for hearing the application for
preliminary injunction.
On 9 March 1988, Hal McElroy flied a Motion to Dismiss with Opposition to the Petition for Preliminary
Injunction contending that the mini-series fim would not involve the private life of Juan Ponce Enrile nor
that of his family and that a preliminary injunction would amount to a prior restraint on their right of free
expression. Petitioner Ayer Productions also filed its own Motion to Dismiss alleging lack of cause of
action as the mini-series had not yet been completed.
In an Order
2
dated 16 March 1988, respondent court issued a writ of Preliminary Injunction against the
petitioners, the dispositive portion of which reads thus:
WHEREFORE, let a writ of preliminary injunction be issued, ordering defendants, and all
persons and entities employed or under contract with them, including actors, actresses
and members of the production staff and crew as well as all persons and entities acting
on defendants' behalf, to cease and desist from producing and filming the mini-series
entitled 'The Four Day Revolution" and from making any reference whatsoever to plaintiff
or his family and from creating any fictitious character in lieu of plaintiff which
nevertheless is based on, or bears rent substantial or marked resemblance or similarity
to, or is otherwise Identifiable with, plaintiff in the production and any similar film or
photoplay, until further orders from this Court, upon plaintiff's filing of a bond in the
amount of P 2,000,000.00, to answer for whatever damages defendants may suffer by
reason of the injunction if the Court should finally decide that plaintiff was not entitled
thereto.
xxx xxx xxx
(Emphasis supplied)
On 22 March 1988, petitioner Ayer Productions came to this Court by a Petition for certiorari dated 21
March 1988 with an urgent prayer for Preliminary Injunction or Restraining Order, which petition was
docketed as G.R. No. L-82380.
A day later, or on 23 March 1988, petitiioner Hal McElroy also filed separate Petition for certiorari with
Urgent Prayer for a Restraining Order or Preliminary Injunction, dated 22 March 1988, docketed as G.R.
No. L-82398.
By a Resolution dated 24 March 1988, the petitions were consolidated and private respondent was
required to file a consolidated Answer. Further, in the same Resolution, the Court granted a Temporary
Restraining Order partially enjoining the implementation of the respondent Judge's Order of 16 March
1988 and the Writ of Preliminary Injunction issued therein, and allowing the petitioners to resume
producing and filming those portions of the projected mini-series which do not make any reference to
private respondent or his family or to any fictitious character based on or respondent.
Private respondent seasonably filed his Consolidated Answer on 6 April 1988 invoking in the main a right
of privacy.
I
The constitutional and legal issues raised by the present Petitions are sharply drawn. Petitioners' claim
that in producing and "The Four Day Revolution," they are exercising their freedom of speech and of
expression protected under our Constitution. Private respondent, upon the other hand, asserts a right of
privacy and claims that the production and filming of the projected mini-series would constitute an
unlawful intrusion into his privacy which he is entitled to enjoy.
Considering first petitioners' claim to freedom of speech and of expression the Court would once more
stress that this freedom includes the freedom to film and produce motion pictures and to exhibit such
motion pictures in theaters or to diffuse them through television. In our day and age, motion pictures are a
univesally utilized vehicle of communication and medium Of expression. Along with the press, radio and
television, motion pictures constitute a principal medium of mass communication for information,
education and entertainment. In Gonzales v. Katigbak,
3
former Chief Justice Fernando, speaking for the
Court, explained:
1. Motion pictures are important both as a medium for the communication of Ideas and
the expression of the artistic impulse. Their effect on the perception by our people of
issues and public officials or public figures as well as the pre cultural traits is
considerable. Nor as pointed out in Burstyn v. Wilson (343 US 495 [19421) is the
Importance of motion pictures as an organ of public opinion lessened by the fact that they
are designed to entertain as well as to inform' (Ibid, 501). There is no clear dividing line
between what involves knowledge and what affords pleasure. If such a distinction were
sustained, there is a diminution of the basic right to free expression. ...
4

This freedom is available in our country both to locally-owned and to foreign-owned motion picture
companies. Furthermore the circumstance that the production of motion picture films is a commercial
activity expected to yield monetary profit, is not a disqualification for availing of freedom of speech and of
expression. In our community as in many other countries, media facilities are owned either by the
government or the private sector but the private sector-owned media facilities commonly require to be
sustained by being devoted in whole or in pailt to revenue producing activities. Indeed, commercial media
constitute the bulk of such facilities available in our country and hence to exclude commercially owned
and operated media from the exerciseof constitutionally protected om of speech and of expression can
only result in the drastic contraction of such constitutional liberties in our country.
The counter-balancing of private respondent is to a right of privacy. It was demonstrated sometime ago
by the then Dean Irene R. Cortes that our law, constitutional and statutory, does include a right of privacy.
5
It is left to case law, however, to mark out the precise scope and content of this right in differing types of
particular situations. The right of privacy or "the right to be let alone,"
6
like the right of free expression, is
not an absolute right. A limited intrusion into a person's privacy has long been regarded as permissible
where that person is a public figure and the information sought to be elicited from him or to be published
about him constitute of apublic character.
7
Succinctly put, the right of privacy cannot be invoked resist
publication and dissemination of matters of public interest.
8
The interest sought to be protected by the
right of privacy is the right to be free from unwarranted publicity, from the wrongful publicizing of the
private affairs and activities of an individual which are outside the realm of legitimate public concern.
9

Lagunzad v. Vda. de Gonzales,
10
on which private respondent relies heavily, recognized a right to
privacy in a context which included a claim to freedom of speech and of expression. Lagunzad involved a
suit fortion picture producer as licensee and the widow and family of the late Moises Padilla as licensors.
This agreement gave the licensee the right to produce a motion Picture Portraying the life of Moises
Padilla, a mayoralty candidate of the Nacionalista Party for the Municipality of Magallon, Negros
Occidental during the November 1951 elections and for whose murder, Governor Rafael Lacson, a
member of the Liberal Party then in power and his men were tried and convicted.
11
In the judgment of the
lower court enforcing the licensing agreement against the licensee who had produced the motion picture
and exhibited it but refused to pay the stipulated royalties, the Court, through Justice Melencio-Herrera,
said:
Neither do we agree with petitioner's subon that the Licensing Agreement is null and void
for lack of, or for having an illegal cause or consideration, while it is true that petitioner
bad pled the rights to the book entitled "The Moises Padilla Story," that did not dispense
with the need for prior consent and authority from the deceased heirs to portray publicly
episodes in said deceased's life and in that of his mother and the member of his family.
As held in Schuyler v. Curtis, ([1895],147 NY 434,42 NE 31 LRA 286.49 Am St Rep 671),
'a privilege may be given the surviving relatives of a deperson to protect his memory, but
the privilege wts for the benefit of the living, to protect their feelings and to preventa
violation of their own rights in the character and memory of the deceased.'
Petitioners averment that private respondent did not have any property right over the life
of Moises Padilla since the latter was a public figure, is neither well taken. Being a public
figure ipso facto does not automatically destroy in toto a person's right to privacy. The
right to invade a person's privacy to disseminate public information does not extend to a
fictional or novelized representation of a person, no matter how public a he or she may
be (Garner v. Triangle Publications, DCNY 97 F. Supp., SU 549 [1951]). In the case at
bar, while it is true that petitioner exerted efforts to present a true-to-life Story Of Moises
Padilla, petitioner admits that he included a little romance in the film because without it, it
would be a drab story of torture and brutality.
12

In Lagunzad, the Court had need, as we have in the instant case, to deal with contraposed claims to
freedom of speech and of expression and to privacy. Lagunzad the licensee in effect claimed, in the
name of freedom of speech and expression, a right to produce a motion picture biography at least partly
"fictionalized" of Moises Padilla without the consent of and without paying pre-agreed royalties to the
widow and family of Padilla. In rejecting the licensee's claim, the Court said:
Lastly, neither do we find merit in petitioners contention that the Licensing Agreement
infringes on the constitutional right of freedom of speech and of the press, in that, as a
citizen and as a newspaperman, he had the right to express his thoughts in film on the
public life of Moises Padilla without prior restraint.The right freedom of expression,
indeed, occupies a preferred position in the "hierarchy of civil liberties" (Philippine
Blooming Mills Employees Organization v. Philippine Blooming Mills Co., Inc., 51 SCRA
191 [1963]). It is not, however, without limitations. As held in Gonzales v. Commission on
Elections, 27 SCRA 835, 858 [1960]:
xxx xxx xxx
The prevailing doctine is that the clear and present danger rule is such a limitation.
Another criterion for permissible limitation on freedom of speech and the press, which
includes such vehicles of the mass media as radio, television and the movies, is the
"balancing of interest test" (Chief Justice Enrique M. Fernando on the Bill of Rights, 1970
ed. p. 79). The principle "requires a court to take conscious and detailed consideration of
the interplay of interests observable in given situation or type of situation" (Separation
Opinion of the late Chief Justice Castro in Gonzales v. Commission on Elections, supra,
p. 899).
In the case at bar, the interests observable are the right to privacy asserted by
respondent and the right of freedom of expression invoked by petitioner. taking into
account the interplay of those interests, we hold that under the particular circumstances
presented, and considering the obligations assumed in the Licensing Agreement entered
into by petitioner, the validity of such agreement will have to be upheld particularly
because the limits of freedom of expression are reached when expression touches upon
matters of essentially private concern."
13

Whether the "balancing of interests test" or the clear and present danger test" be applied in respect of the
instant Petitions, the Court believes that a different conclusion must here be reached: The production and
filming by petitioners of the projected motion picture "The Four Day Revolution" does not, in the
circumstances of this case, constitute an unlawful intrusion upon private respondent's "right of privacy."
1. It may be observed at the outset that what is involved in the instant case is a prior and direct restraint
on the part of the respondent Judge upon the exercise of speech and of expression by petitioners. The
respondent Judge has restrained petitioners from filming and producing the entire proposed motion
picture. It is important to note that in Lagunzad, there was no prior restrain of any kind imposed upon the
movie producer who in fact completed and exhibited the film biography of Moises Padilla. Because of the
speech and of expression, a weighty presumption of invalidity vitiates.
14
The invalidity of a measure of
prior restraint doesnot, of course, mean that no subsequent liability may lawfully be imposed upon a
person claiming to exercise such constitutional freedoms. The respondent Judge should have stayed his
hand, instead of issuing an ex-parte Temporary Restraining Order one day after filing of a complaint by
the private respondent and issuing a Preliminary Injunction twenty (20) days later; for the projected
motion picture was as yet uncompleted and hence not exhibited to any audience. Neither private
respondent nor the respondent trial Judge knew what the completed film would precisely look like. There
was, in other words, no "clear and present danger" of any violation of any right to privacy that private
respondent could lawfully assert.
2. The subject matter of "The Four Day Revolution" relates to the non-bloody change of government that
took place at Epifanio de los Santos Avenue in February 1986, and the trian of events which led up to that
denouement. Clearly, such subject matter is one of public interest and concern. Indeed, it is, petitioners'
argue, of international interest. The subject thus relates to a highly critical stage in the history of this
countryand as such, must be regarded as having passed into the public domain and as an appropriate
subject for speech and expression and coverage by any form of mass media. The subject mater, as set
out in the synopsis provided by the petitioners and quoted above, does not relate to the individual life and
certainly not to the private life of private respondent Ponce Enrile. Unlike in Lagunzad, which concerned
the life story of Moises Padilla necessarily including at least his immediate family, what we have here is
not a film biography, more or less fictionalized, of private respondent Ponce Enrile. "The Four Day
Revolution" is not principally about, nor is it focused upon, the man Juan Ponce Enrile' but it is compelled,
if it is to be historical, to refer to the role played by Juan Ponce Enrile in the precipitating and the
constituent events of the change of government in February 1986.
3. The extent of the instrusion upon the life of private respondent Juan Ponce Enrile that would be
entailed by the production and exhibition of "The Four Day Revolution" would, therefore, be limited in
character. The extent of that intrusion, as this Court understands the synopsis of the proposed film, may
be generally described as such intrusion as is reasonably necessary to keep that film a truthful historical
account. Private respondent does not claim that petitioners threatened to depict in "The Four Day
Revolution" any part of the private life of private respondent or that of any member of his family.
4. At all relevant times, during which the momentous events, clearly of public concern, that petitioners
propose to film were taking place, private respondent was what Profs. Prosser and Keeton have referred
to as a "public figure:"
A public figure has been defined as a person who, by his accomplishments, fame, or
mode of living, or by adopting a profession or calling which gives the public a legitimate
interest in his doings, his affairs, and his character, has become a 'public personage.' He
is, in other words, a celebrity. Obviously to be included in this category are those who
have achieved some degree of reputation by appearing before the public, as in the case
of an actor, a professional baseball player, a pugilist, or any other entertainment. The list
is, however, broader than this. It includes public officers, famous inventors and explorers,
war heroes and even ordinary soldiers, an infant prodigy, and no less a personage than
the Grand Exalted Ruler of a lodge. It includes, in short, anyone who has arrived at a
position where public attention is focused upon him as a person.
Such public figures were held to have lost, to some extent at least, their tight to privacy.
Three reasons were given, more or less indiscrimately, in the decisions" that they had
sought publicity and consented to it, and so could not complaint when they received it;
that their personalities and their affairs has already public, and could no longer be
regarded as their own private business; and that the press had a privilege, under the
Constitution, to inform the public about those who have become legitimate matters of
public interest. On one or another of these grounds, and sometimes all, it was held that
there was no liability when they were given additional publicity, as to matters legitimately
within the scope of the public interest they had aroused.
The privilege of giving publicity to news, and other matters of public interest, was held to
arise out of the desire and the right of the public to know what is going on in the world,
and the freedom of the press and other agencies of information to tell it. "News" includes
all events and items of information which are out of the ordinary hum-drum routine, and
which have 'that indefinable quality of information which arouses public attention.' To a
very great extent the press, with its experience or instinct as to what its readers will want,
has succeeded in making its own definination of news, as a glance at any morning
newspaper will sufficiently indicate. It includes homicide and othe crimes, arrests and
police raides, suicides, marriages and divorces, accidents, a death from the use of
narcotics, a woman with a rare disease, the birth of a child to a twelve year old girl, the
reappearance of one supposed to have been murdered years ago, and undoubtedly
many other similar matters of genuine, if more or less deplorable, popular appeal.
The privilege of enlightening the public was not, however, limited, to the dissemination of
news in the scene of current events. It extended also to information or education, or even
entertainment and amusement, by books, articles, pictures, films and broadcasts
concerning interesting phases of human activity in general, as well as the reproduction of
the public scene in newsreels and travelogues. In determining where to draw the line, the
courts were invited to exercise a species of censorship over what the public may be
permitted to read; and they were understandably liberal in allowing the benefit of the
doubt.
15

Private respondent is a "public figure" precisely because, inter alia, of his participation as a principal actor
in the culminating events of the change of government in February 1986. Because his participation
therein was major in character, a film reenactment of the peaceful revolution that fails to make reference
to the role played by private respondent would be grossly unhistorical. The right of privacy of a "public
figure" is necessarily narrower than that of an ordinary citizen. Private respondent has not retired into the
seclusion of simple private citizenship. he continues to be a "public figure." After a successful political
campaign during which his participation in the EDSA Revolution was directly or indirectly referred to in the
press, radio and television, he sits in a very public place, the Senate of the Philippines.
5. The line of equilibrium in the specific context of the instant case between the constitutional freedom of
speech and of expression and the right of privacy, may be marked out in terms of a requirement that the
proposed motion picture must be fairly truthful and historical in its presentation of events. There must, in
other words, be no knowing or reckless disregard of truth in depicting the participation of private
respondent in the EDSA Revolution. 16 There must, further, be no presentation of the private life of the
unwilling private respondent and certainly no revelation of intimate or embarrassing personal facts. 17
The proposed motion picture should not enter into what Mme. Justice Melencio-Herrera in Lagunzad
referred to as "matters of essentially private concern." 18 To the extent that "The Four Day Revolution"
limits itself in portraying the participation of private respondent in the EDSA Revolution to those events
which are directly and reasonably related to the public facts of the EDSA Revolution, the intrusion into
private respondent's privacy cannot be regarded as unreasonable and actionable. Such portrayal may be
carried out even without a license from private respondent.
II
In a Manifestation dated 30 March 1988, petitioner Hal McElroy informed this Court that a Temporary
Restraining Order dated 25 March 1988, was issued by Judge Teofilo Guadiz of the Regional Trial Court
of Makati, Branch 147, in Civil Case No. 88-413, entitled "Gregorio B. Honasan vs. Ayer Productions Pty.
Ltd., McElroy Film Productions, Hal McElroy, Lope Juban and PMP Motion for Pictures Production"
enjoining him and his production company from further filimg any scene of the projected mini-series film.
Petitioner alleged that Honasan's complaint was a "scissors and paste" pleading, cut out straight grom the
complaint of private respondent Ponce Enrile in Civil Case No. 88-151. Petitioner Ayer Productions, in a
separate Manifestation dated 4 April 1988, brought to the attention of the Court the same information
given by petitoner Hal McElroy, reiterating that the complaint of Gregorio B. Honasan was substantially
identical to that filed by private respondent herein and stating that in refusing to join Honasan in Civil
Case No. 88-151, counsel for private respondent, with whom counsel for Gregorio Honasan are
apparently associated, deliberately engaged in "forum shopping."
Private respondent filed a Counter-Manifestation on 13 April 1988 stating that the "slight similarity"
between private respondent's complaint and that on Honasan in the construction of their legal basis of the
right to privacy as a component of the cause of action is understandable considering that court pleadings
are public records; that private respondent's cause of action for invasion of privacy is separate and
distinct from that of Honasan's although they arose from the same tortious act of petitioners' that the rule
on permissive joinder of parties is not mandatory and that, the cited cases on "forum shopping" were not
in point because the parties here and those in Civil Case No. 88-413 are not identical.
For reasons that by now have become clear, it is not necessary for the Court to deal with the question of
whether or not the lawyers of private respondent Ponce Enrile have engaged in "forum shopping." It is,
however, important to dispose to the complaint filed by former Colonel Honasan who, having refused to
subject himself to the legal processes of the Republic and having become once again in fugitive from
justice, must be deemed to have forfeited any right the might have had to protect his privacy through
court processes.
WHEREFORE,
a) the Petitions for Certiorari are GRANTED DUE COURSE, and the Order dated 16 March 1988 of
respondent trial court granting a Writ of Preliminary Injunction is hereby SET ASIDE. The limited
Temporary Restraining Order granted by this Court on 24 March 1988 is hereby MODIFIED by enjoining
unqualifiedly the implementation of respondent Judge's Order of 16 March 1988 and made
PERMANENT, and
b) Treating the Manifestations of petitioners dated 30 March 1988 and 4 April 1988 as separate Petitions
for Certiorari with Prayer for Preliminary Injunction or Restraining Order, the Court, in the exercise of its
plenary and supervisory jurisdiction, hereby REQUIRES Judge Teofilo Guadiz of the Regional Trial Court
of Makati, Branch 147, forthwith to DISMISS Civil Case No. 88-413 and accordingly to SET ASIDE and
DISSOLVE his Temporary Restraining Order dated 25 March 1988 and any Preliminary Injunction that
may have been issued by him.
No pronouncement as to costs.
SO ORDERED.
Yap, C.J., Fernan, Narvasa, Melencio-Herrera, Gutierrez, Jr., Cruz, Paras, Gancayco, Padilla, Bidin,
Sarmiento, Cortes and Grio-Aquino, JJ., concur.

Footnotes
1 On April 7, 1988, petitioners, in G.R. No. 82380 asked for deletion Production's as party petitioner qqqt company but
merely a corporate tradename used by Ayer Productions. "McElroy and McElroy Film Production's" will therefore be
disregarded in this Decision.
2 Annex "A" of the Petitions.
3 137 SCRA 717 (1985).
4 137 SCRA at 723.
5 The Constitutional Foundations of Privacy," in Cortes, Emerging Trends in Law, pp.1-70 (Univ. of the Philippines
Press, 1983). This lecture was originally delivered in 1970.
6 See Cortes, supra, Note 5 at 12 et seq. where she traces the history of the development of privacy as a concept
7 Prosser and Keeton on Torts, 5th ed., pp. 854-863 (1984); and see, e.g., Strykers v. Republic Producers Corp., 238
P. 2d 670 (1952).
8 Nixon v. Administrator of General Services, 433 U.S. 425, 63 L Ed. 2d 867 (1977).
9 Smith v. National Broadcasting Co., 292 P 2d 600 (1956); underscoring supplied.
10 92 SCRA 476 (1979).
11 People v. Lacson, et al., 111 Phil. 1 (1961).
12 92 SCRA 486-487.
13 92 SCRA at 488-489; Emphasis supplied.
14 Mutuc v. Commission on Elections, 36 SCRA 228 (1970); New York Items Co. v. United States, 403 U.S. 713, 29 L
Ed, 2d 822 (1971); Times Film Corporation v. City of Chicago, 365 U.S. 43 5 L Ed. 2d 403 (1961); Near v. Minnesota,
283 U.S. 67 L Ed. 1357 (1931).
15 Prosper and Keeton on Torts, 5th ed. at 859-861 (1984); underscoring supplied

Republic of the Philippines
SUPREME COURT
Manila
SECOND DIVISION

G.R. No. 126466 January 14, 1999
ARTURO BORJAL a.k.a. ART BORJAL and MAXIMO SOLIVEN, petitioners,
vs.
COURT OF APPEALS and FRANCISCO WENCESLAO, respondents.

BELLOSILLO, J .:
PERPETUALLY HAGRIDDEN as the public is about losing one of the most basic yet oft
hotly contested freedoms of man, the issue of the right of free expression be stirs and
presents itself time and again, in cyclic occurrence, to inveigle, nay, challenge the
courts to re-survey its ever shifting terrain, explore and furrow its heretofore uncharted
moors and valleys and finally redefine the metes and bounds of its controversial
domain. This, prominently, is one such case.
Perhaps, never in jurisprudential history has any freedom of man undergone radical
doctrinal metamorphoses than his right to freely and openly express his views.
Blackstone's pontifical comment that "where blasphemous, immoral, treasonable,
schismatical, seditious, or scandalous libels are punished by English law ... the liberty of
the press, properly understood, is by no means infringed or violated," found kindred
expression in the landmark opinion of England's Star Chamber in the Libelis Famosis
case in 1603.
1
That case established two major propositions in the prosecution of defamatory
remarks: first, that libel against a public person is a greater offense than one directed against an ordinary
man, and second, that it is immaterial that the libel be true.
Until republicanism caught fire in early America, the view from the top on libel was no less dismal. Even
the venerable Justice Holmes appeared to waffle as he swayed from the concept of criminal libel liability
under the clear and present danger rule, to the other end of the spectrum in defense of the
constitutionally protected status of unpopular opinion in free society.
Viewed in modern times and the current revolution in information and communication technology, libel
principles formulated at one time or another have waxed and waned through the years in the constant
ebb and flow of judicial review. At the very least, these principles have lost much of their flavor, drowned
and swamped as they have been by the ceaseless cacophony and din of thought and discourse
emanating from just about every source and direction, aided no less by an increasingly powerful and
irrepressible mass media. Public discourse, laments Knight, has been devalued by its utter commonality;
and we agree, for its logical effect is to benumb thought and sensibility on what may be considered as
criminal illegitimate encroachments on the right of persons to enjoy a good, honorable and reputable
name. This may explain the imperceptible demise of criminal prosecutions for libel and the trend to rely
instead on indemnity suits to repair any damage on one's reputation.
In this petition for review, we are asked to reverse the Court of Appeals in "Francisco Wenceslao v. Arturo
Borjal and Maximo Soliven," CA-G.R. No. 40496, holding on 25 March 1996 that petitioners Arturo Borjal
and Maximo Soliven are solidarily liable for damages for writing and publishing certain articles claimed to
be derogatory and offensive to private respondent Francisco Wenceslao.
Petitioners Arturo Borjal and Maximo Soliven are among the incorporators of Philippines Today, Inc.
(PTI), now PhilSTAR Daily, Inc., owner of The Philippine Star, a daily newspaper. At the time the
complaint was filed, petitioner Borjal was its President while Soliven was (and still is) Publisher and
Chairman of its Editorial Board. Among the regular writers of The Philippine Star is Borjal who runs the
column Jaywalker.
Private respondent Francisco Wenceslao, on the other hand, is a civil engineer, businessman, business
consultant and journalist by profession. In 1988 he served as a technical adviser of Congressman Fabian
Sison, then Chairman of the House of Representatives Sub-Committee on Industrial Policy.
During the congressional hearings on the transport crisis sometime in September 1988 undertaken by the
House Sub-Committee on Industrial Policy, those who attended agreed to organize the First National
Conference on Land Transportation (FNCLT) to be participated in by the private sector in the transport
industry and government agencies concerned in order to find ways and means to solve the transportation
crisis. More importantly, the objective of the FNCLT was to draft an omnibus bill that would embody a
long-term land transportation policy for presentation to Congress. The conference which, according to
private respondent, was estimated to cost around P1,815,000.00 would be funded through solicitations
from various sponsors such as government agencies, private organizations, transport firms, and
individual delegates or participants.
2

On 28 February 1989, at the organizational meeting of the FNCLT, private respondent Francisco
Wenceslao was elected Executive Director. As such, he wrote numerous solicitation letters to the
business community for the support of the conference.
Between May and July 1989 a series of articles written by petitioner Borjal was published on different
dates in his column Jaywalker. The articles dealt with the alleged anomalous activities of an "organizer of
a conference" without naming or identifying private respondent. Neither did it refer to the FNCLT as the
conference therein mentioned. Quoted hereunder are excerpts from the articles of petitioner together with
the dates they were published.
3

31 May 1989
Another self-proclaimed "hero" of the EDSA Revolution goes around organizing
"seminars and conferences" for a huge fee. This is a simple ploy coated in jazzy
letterheads and slick prose. The "hero" has the gall to solicit fees from anybody with
bucks to spare. Recently, in his usual straightforward style, Transportation Secretary
Rainerio "Ray" Reyes, asked that his name, be stricken off from the letterheads the
"hero" has been using to implement one of his pet "seminars." Reyes said: "I would like to
reiterate my request that you delete my name." Note that Ray Reyes is an honest man
who would confront anybody eyeball to eyeball without blinking.
9 June 1989
Another questionable portion of the so-called conference is its unauthorized use of the
names of President Aquino and Secretary Ray Reyes. The conference program being
circulated claims that President Aquino and Reyes will be main speakers in the
conference. Yet, the word is that Cory and Reyes have not accepted the invitation to
appear in this confab. Ray Reyes even says that the conference should be unmasked as
a moneymaking gimmick.
19 June 1989
. . . some 3,000 fund solicitation letters were sent by the organizer to every Tom, Dick
and Harry and to almost all government agencies. And the letterheads carried the names
of Reyes and Periquet. Agrarian Reform Secretary on leave Philip Juico received one,
but he decided to find out front Reyes himself what the project was all about. Ray Reyes,
in effect, advised Juico to put the fund solicitation letter in the waste basket. Now, if the
3,000 persons and agencies approached by the organizer shelled out 1,000 each, that's
easily P3 million to a project that seems so unsophisticated. But note that one garment
company gave P100,000, after which the Garments Regulatory Board headed by Trade
and Industry Undersecretary Gloria Macapagal-Arroyo was approached by the organizer
to expedite the garment license application of the P100,000 donor.
21 June 1989
A "conference organizer" associated with shady deals seems to have a lot of trash tucked
inside his closet. The Jaywalker continues to receive information about the man's
dubious deals. His notoriety, in according to reliable sources, has reached the Premier
Guest House where his name is spoken like dung.
xxx xxx xxx
The first information says that the "organizer" tried to mulct half a million pesos from a
garment producer and exporter who was being investigated for violation of the rules of
the Garments, Textile, Embroidery and Apparel Board. The "organizer" told the garment
exporter that the case could be fixed for a sum of P500,000.00. The organizer got the
shock of his life when the exporter told him: "If I have that amount. I will hire the best
lawyers, not you." The organizer left in a huff, his thick face very pale.
xxx xxx xxx
Friends in government and the private sector have promised the Jaywalker more "dope"
on the "organizer." It seems that he was not only indiscreet; he even failed to cover his
tracks. You will be hearing more of the "organizer's" exploits from this corner soon.
22 June 1989
The scheming "organizer" we have been writing about seems to have been spreading his
wings too far. A congressional source has informed the Jaywalker that the schemer once
worked for a congressman from the North as some sort of a consultant on economic
affairs. The first thing the "organizer" did was to initiate hearings and round-the-table
discussions with people from the business, export and his favorite the garments
sector.
xxx xxx xxx
The "organizer's" principal gamely went along, thinking that his "consultant" had nothing
but the good of these sectors in mind. It was only later that he realized that the
"consultant" was acting with a burst of energy "in aid of extortion." The "consultant" was
fired.
xxx xxx xxx
There seems to be no end to what a man could do to pursue his dubious ways. He has
tried to operate under a guise of a well-meaning, reformist. He has intellectual
pretensions and sometimes he succeeds in getting his thoughts in the inside pages of
some newspapers, with the aid of some naive newspaper people. He has been turning
out a lot of funny-looking advice on investments, export growth, and the like.
xxx xxx xxx
A cabinet secretary has one big wish. He is hoping for a broad power to ban crooks and
influence-peddlers from entering the premises of his department. But the Cabinet man
might not get his wish. There is one "organizer" who, even if physically banned, call still
concoct ways of doing his thing. Without a tinge of remorse, the "organizer" could fill up
his letterheads with, names of Cabinet members, congressmen, and reputable people
from the private sector to shore up his shady reputation and cover up his notoriety.
3 July 1989
A supposed conference on transportation was a big failure. The attendance was very
poor and the few who participated in, the affair were mostly leaders of jeepney drivers'
groups. None of the government officials involved in regulating public transportation was
there. The big names in the industry also did not participate. With such a poor
attendance, one wonders why the conference organizers went ahead with the affair and
tried so hard to convince 3,000 companies and individuals to contribute to the affair.
xxx xxx xxx
The conference was doomed from the start. It was bound to fail. The personalities who
count in the field of transpiration refused to attend the affair or withdrew their support
after finding out the background of the organizer of the conference. How could a
conference on transportation succeed without the participation of the big names in the
industry and government policy-makers?
Private respondent reacted to the articles. He sent a letter to The Philippine Star insisting that he was the
"organizer" alluded to in petitioner Borjal's columns.
4
In a subsequent letter to The Philippine Star, private
respondent refuted the matters contained in petitioner Borjal's columns and openly challenged him in this
manner
To test if Borjal has the guts to back up his holier than thou attitude, I am prepared to
relinquish this position in case it is found that I have misappropriated even one peso of
FNCLT money. On the other hand, if I can prove that Borjal has used his column as a
"hammer" to get clients for his PR Firm, AA Borjal Associates, he should resign from the
STAR and never again write a column. Is it a deal?
5

Thereafter, private respondent filed a complaint with the National Press Club (NPC) against petitioner
Borjal for unethical conduct. He accused petitioner Borjal of using his column as a form of leverage to
obtain contracts for his public relations firm, AA Borjal Associates.
6
In turn, petitioner Borjal published a
rejoinder to the challenge of private respondent not only to protect his name and honor but also to refute
the claim that he was using his column for character assassination.
7

Apparently not satisfied with his complaint with the NPC, private respondent filed a criminal case for libel
against petitioners Borjal and Soliven, among others. However, in a Resolution dated 7 August 1990, the
Assistant Prosecutor handling the case dismissed the complaint for insufficiency of evidence. The
dismissal was sustained by the Department of Justice and later by the Office of the President.
On 31 October 1990 private respondent instituted against petitioners a civil action for damages based on
libel subject of the instant case.
8
In their answer, petitioners interposed compulsory counterclaims for
actual, moral and exemplary damages, plus attorney's fees and costs. After due consideration, the trial
court decided in favor of private respondent Wenceslao and ordered petitioners Borjal and Soliven to
indemnify private respondent P1,000,000.00 for actual and compensatory damages, in addition to
P200,000.00 for moral damages, P100,000.00 for exemplary damages, P200,000.00 for attorney's fees,
and to pay the costs of suit.
The Court of Appeals affirmed the decision of the court a quo but reduced the amount of the monetary
award to P110,000.00 actual damages, P200,000.00 moral damages and P75,000.00 attorney's fees plus
costs. In a 20-page Decision promulgated 25 March 1996, the appellate court ruled inter alia that private
respondent was sufficiently identifiable, although not named, in the questioned articles; that private
respondent was in fact defamed by petitioner Borjal by describing him variously as a "self-proclaimed
hero," "a conference organizer associated with shady deals who has a lot of trash tucked inside his
closet," "thick face," and "a person with dubious ways;" that petitioner's claim of privilege communication
was unavailing since the privileged character of the articles was lost by their publication in a newspaper of
general circulation; that petitioner could have performed his officer as a newspaperman without
necessarily transgressing the rights of Wenceslao by calling the attention of the government offices
concerned to examine the authority by which Wenceslao acted, warning the public against contributing to
a conference that, according to his perception, lacked the univocal indorsement of the responsible
government officials, or simply informing the public of the letters Wenceslao wrote and the favors he
requested or demanded; and, that when he imputed dishonesty, falsehood and misrepresentation,
shamelessness and intellectual pretentions to Wenceslao, petitioner Borjal crossed the thin but clear line
that separated fair comment from actionable defamation.
Private respondent manifested his desire to appeal that portion of the appellate court's decision which
reduced the amount of damages awarded him by filing with this Court a Petition for Extension of Time to
File Petition and a Motion for Suspension of Time to File Petition.
9
However, in a Resolution dated 27
May 1996, the Second Division denied both motions: the first, for being premature, and the second, for
being a wrong remedy.
On 20 November 1996 when the First Division consolidated and transferred the present case to the
Second Division, there was no longer any case thereat with which to consolidate this case since G.R. No.
124396 had already been disposed of by the Second Division almost six (6) months earlier.
On their part, petitioners filed a motion for reconsideration but the Court of Appeals denied the motion in
its Resolution of 12 September 1996. Hence the instant petition for review. The petitioners contend that
the Court of Appeals erred: (a) in ruling that private respondent Wenceslao was sufficiently identified by
petitioner Borjal in the questioned articles; (b) in refusing to accord serious consideration to the findings of
the Department of Justice and the Office of the President that private respondent Wenceslao was not
sufficiently identified in the questioned articles, this notwithstanding that the degree of proof required in a
preliminary investigation is merely prima facie evidence which is significantly less than the preponderance
of evidence required in civil cases; (c) in ruling that the subject articles do not constitute qualifiedly
privileged communication; (d) in refusing to apply the "public official doctrine" laid down in New York
Times v. Sullivan; (e) in ruling that the questioned articles lost their privileged character because of their
publication in a newspaper of general circulation; (f) in ruling that private respondent has a valid cause of
action for libel against petitioners although he failed to prove actual malice on their part, and that the
prosecutors of the City of Manila, the Department of Justice, and eventually, the Office of the President,
had already resolved that there was no sufficient evidence to prove the existence of libel; and, (g)
assuming arguendo that Borjal should be held liable, in adjudging petitioner Soliven solidarily liable with
him. Thus, petitioners pray for the reversal of the appellate court's ruling, the dismissal of the complaint
against them for lack of merit, and the award of damages on their counterclaim.
The petition is impressed with merit. In order to maintain a libel suit, it is essential that the victim be
identifiable although it is not necessary that he be named. It is also not sufficient that the offended party
recognized himself as the person attacked or defamed, but it must be shown that at least a third person
could identify him as the object of the libelous publication.
10
Regrettably, these requisites have not been
complied with in the case at bar.
In ruling for private respondent, the Court of Appeals found that Borjal's column writings sufficiently
identified Wenceslao as the "conference organizer." It cited the First National Conference on Land
Transportation, the letterheads used listing different telephone numbers, the donation of P100,000.00
from Juliano Lim and the reference to the '"organizer of the conference" the very same appellation
employed in all the column items as having sufficiently established the identity of private respondent
Wenceslao for those who knew about the FNCLT who were present at its inception, and who had pledged
their assistance to it.
We hold otherwise. These conclusions are at variance with the evidence at hand. The questioned articles
written by Borjal do not identify private respondent Wenceslao as the organizer of the conference. The
first of the Jaywalker articles which appeared in the 31 May 1989 issue of The Philippine Star yielded
nothing to indicate that private respondent was the person referred to therein. Surely, as observed by
petitioners, there were millions of "heroes" of the EDSA Revolution and anyone of them could be "self-
proclaimed" or an "organizer of seminars and conferences." As a matter of fact, in his 9 June 1989
column petitioner Borjal wrote about the "so-called First National Conference on Land Transportation
whose principal organizers are not specified" (emphasis supplied).
11
Neither did the FNCLT letterheads
12

disclose the identity of the conference organizer since these contained only an enumeration of names
where private respondent Francisco Wenceslao was described as Executive Director and Spokesman
and not as a conference organizer.
13
The printout
14
and tentative program
15
of the conference were
devoid of any indication of Wenceslao as organizer. The printout which contained an article entitled "Who
Organized the NCLT?" did not even mention private respondent's name, while the tentative program only
denominated private respondent as "Vice Chairman and Executive Director," and not as organizer.
No less than private respondent himself admitted that the FNCLT had several organizers and that he was
only a part of the organization, thus
I would like to clarify for the record that I was only a part of the organization. I was invited
then because I was the head of the technical panel of the House of Representatives Sub-
Committee on Industrial Policy that took care of congressional hearings.
16

Significantly, private respondent himself entertained doubt that he was the person spoken of in Borjal's
columns. The former even called up columnist Borjal to inquire if he (Wenceslao) was the one referred to
in the subject articles.
17
His letter to the editor published in the 4 June 1989 issue of The Philippine Star
even showed private respondent Wenceslao's uncertainty
Although he used a subterfuge, I was almost certain that Art Borjal referred to the First
National Conference on Land Transportation (June 29-30) and me in the second
paragraph of his May 31 column . . .
18

Identification is grossly inadequate when even the alleged offended party is himself unsure that he was
the object of the verbal attack. It is well to note that the revelation of the identity of the person alluded to
came not from petitioner Borjal but from private respondent himself; when he supplied the information
through his 4 June 1989 letter to the editor. Had private respondent not revealed that he was the
"organizer" of the FNCLT referred to in the Borjal articles, the public would have remained in blissful
ignorance of his identity. It is therefore clear that on the element of identifiability alone the case falls.
The above disquisitions notwithstanding, and on the assumption arguendo that private respondent has
been sufficiently identified as the subject of Borjal's disputed comments, we now proceed to resolve the
other issues and pass upon the pertinent findings of the courts a quo.
The third, fourth, fifth and sixth assigned errors all revolve around the primary question of whether the
disputed articles constitute privileged communications as to exempt the author from liability.
The trial court ruled that petitioner Borjal cannot hide behind the proposition that his articles are privileged
in character under the provisions of Art. 354 of The Revised Penal Code which state
Art. 354. Requirement for publicity. Every defamatory imputation is presumed to be
malicious, even if it be true, if no good intention and justifiable motive for making it is
shown, except in the following cases:
1) A private communication made by any person to another in the performance of any
legal, moral or social duty; and,
2) A fair and true report, made in good faith, without any comments or remarks, of any
judicial or other official proceedings which are not of confidential nature, or of any
statement, report or speech delivered in said proceedings, or of any other act performed
by public officers in the exercise of their functions.
Respondent court explained that the writings in question did not fall under any of the exceptions
described in the above-quoted article since these were neither "private communications" nor "fair and true
report . . . without any comments or remarks." But this is incorrect.
A privileged communication may be either absolutely privileged or qualifiedly privileged. Absolutely
privileged communications are those which are not actionable even if the author has acted in bad faith.
An example is found in Sec. 11, Art.VI, of the 1987 Constitution which exempts a member of Congress
from liability for any speech or debate in the Congress or in any Committee thereof. Upon the other hand,
qualifiedly privileged communications containing defamatory imputations are not actionable unless found
to have been made without good intention justifiable motive. To this genre belong "private
communications" and "fair and true report without any comments or remarks."
Indisputably, petitioner Borjal's questioned writings are not within the exceptions of Art. 354 of The
Revised Penal Code for, as correctly observed by the appellate court, they are neither private
communications nor fair and true report without any comments or remarks. However this does not
necessarily mean that they are not privileged. To be sure, the enumeration under Art. 354 is not an
exclusive list of qualifiedly privileged communications since fair commentaries on matters of public
interest are likewise privileged. The rule on privileged communications had its genesis not in the nation's
penal code but in the Bill of Rights of the Constitution guaranteeing freedom of speech and of the press.
19
As early as 1918, in United States v. Caete,
20
this Court ruled that publications which are privileged
for reasons of public policy are protected by the constitutional guaranty of freedom of speech. This
constitutional right cannot be abolished by the mere failure of the legislature to give it express recognition
in the statute punishing libels.
The concept of privileged communications is implicit in the freedom of the press. As held in Elizalde v.
Gutierrez
21
and reiterated in Santos v. Court of Appeals
22

To be more specific, no culpability could be imputed to petitioners for the alleged
offending publication without doing violence to the concept of privileged communications
implicit in the freedom of the press. As was so well put by Justice Malcolm in Bustos:
"Public policy, the welfare of society, and the orderly administration of government have
demanded protection of public opinion. The inevitable and incontestable result has been
the development and adoption of the doctrine of privilege."
The doctrine formulated in these two (2) cases resonates the rule that privileged communications must,
sui generis, be protective of public opinion. This closely adheres to the democratic theory of free speech
as essential to collective self-determination and eschews the strictly libertarian view that it is protective
solely of self-expression which, in the words of Yale Sterling Professor Owen Fiss,
23
makes its appeal to
the individualistic ethos that so dominates our popular and political culture. It is therefore clear that the
restrictive interpretation vested by the Court of Appeals on the penal provision exempting from liability
only private communications and fair and true report without comments or remarks defeats, rather than
promotes, the objective of the rule on privileged communications, sadly contriving as it does, to suppress
the healthy effloresence of public debate and opinion as shining linchpins of truly democratic societies.
To reiterate, fair commentaries on matters of public interest are privileged and constitute a valid defense
in an action for libel or slander. The doctrine of fair comment means that while in general every
discreditable imputation publicly made is deemed false, because every man is presumed innocent until
his guilt is judicially proved, and every false imputation is deemed malicious, nevertheless, when the
discreditable imputation is directed against a public person in his public capacity, it is not necessarily
actionable. In order that such discreditable imputation to a public official may be actionable, it must either
be a false allegation of fact or a comment based on a false supposition. If the comment is an expression
of opinion, based on established facts, then it is immaterial that the opinion happens to be mistaken, as
long as it might reasonably be inferred from the facts.
21

There is no denying that the questioned articles dealt with matters of public interest. In his testimony,
private respondent spelled out the objectives of the conference thus
. . . The principal conference objective is to come up with a draft of an Omnibus Bill that
will embody a long term land transportation policy for presentation to Congress in its next
regular session in July. Since last January, the National Conference on Land
Transportation (NCLT), the conference secretariat, has been enlisting support from all
sectors to ensure the success of the project.
25

Private respondent likewise testified that the FNCLT was raising funds through solicitation from the public
-
Q: Now, in this first letter, you have attached a budget and it says here
that in this seminar of the First National Conference on Land
Transportation, you will need around One million eight hundred fifteen
thousand pesos, is that right?
A: That was the budget estimate, sir.
Q: How do you intend as executive officer, to raise this fund of your
seminar?
A: Well, from sponsors such as government agencies and private sectors
or organizations as well as individual transport firms and from individual
delegates/participants.
26

The declared objective of the conference, the composition of its members and participants, and the
manner by which it was intended to be funded no doubt lend to its activities as being genuinely imbued
with public interest. An organization such as the FNCLT aiming to reinvent and reshape the transportation
laws of the country and seeking to source its funds for the project from the public at large cannot
dissociate itself from the public character of its mission. As such, it cannot but invite close scrutiny by the
media obliged to inform the public of the legitimacy of the purpose of the activity and of the qualifications
and integrity of the personalities behind it.
This in effect is the strong message in New York Times v. Sullivan
27
which the appellate court failed to
consider or, for that matter, to heed. It insisted that private respondent was not, properly speaking, a
"public official" nor a "public figure," which is why the defamatory imputations against him had nothing to
do with his task of organizing the FNCLT.
New York Times v. Sullivan was decided by the U. S. Supreme Court in the 1960s at the height of the
bloody rioting in the American South over racial segregation. The then City Commissioner L. B. Sullivan
of Montgomery, Alabama, sued New York Times for publishing a paid political advertisement espousing
racial equality and describing police atrocities committed against students inside a college campus. As
commissioner having charge over police actions Sullivan felt that he was sufficiently identified in the ad as
the perpetrator of the outrage; consequently, he sued New York Times on the basis of what he believed
were libelous utterances against him.
The U. S. Supreme Court speaking through Mr. Justice William J. Brennan Jr. ruled against Sullivan
holding that honest criticisms on the conduct of public officials and public figures are insulated from libel
judgments. The guarantees of freedom of speech and press prohibit a public official or public figure from
recovering damages for a defamatory falsehood relating to his official conduct unless he proves that the
statement was made with actual malice, i.e., with knowledge that it was false or with reckless disregard of
whether it was false or not.
The raison d' tre for the New York Times doctrine was that to require critics of official conduct to
guarantee the truth of all their factual assertions on pain of libel judgments would lead to self-censorship,
since would be critics would be deterred from, voicing out their criticisms even if such were believed to be
true, or were in fact true, because of doubt whether it could be proved or because of fear of the expense
of having to prove it.
28

In the present case, we deem private respondent a public figure within the purview of the New York
Times ruling. At any rate, we have also defined "public figure" in Ayers Production Pty., Ltd. v. Capulong

29
as
. . . . a person who, by his accomplishments, fame, mode of living, or by adopting a
profession or calling which gives the public a legitimate interest in his doings, his affairs
and his character, has become a "public personage." He is, in other words, a celebrity.
Obviously to be included in this category are those who have achieved some degree of
reputation by appearing before the public, as in the case of an actor, a professional
baseball player, a pugilist, or any other entertainer. The list is, however, broader than
this. It includes public officers, famous inventors and explorers, war heroes and even
ordinary soldiers, infant prodigy, and no less a personage than the Great Exalted Ruler of
the lodge. It includes, in short, anyone who has arrived at a position where the public
attention is focused upon him as a person.
The FNCLT was air undertaking infused with public interest. It was promoted as a joint project of the
government and the private sector, and organized by top government officials and prominent
businessmen. For this reason, it attracted media mileage and drew public attention not only to the
conference itself but to the personalities behind as well. As its Executive Director and spokesman, private
respondent consequently assumed the status of a public figure.
But even assuming ex-gratia argumenti that private respondent, despite the position he occupied in the
FNCLT, would not qualify as a public figure, it does not necessarily follow that he could not validly be the
subject of a public comment even if he was not a public official or at least a public figure, for he could be,
as long as he was involved in a public issue. If a matter is a subject of public or general interest, it cannot
suddenly became less so merely because a private individual is involved or because in some sense the
individual did not voluntarily choose to become involved. The public's primary interest is in the event; the
public focus is on the conduct of the participant and the content, effect and significance of the conduct,
not the participant's prior anonymity or notoriety.
30

There is no denying that the questioned articles dealt with matters of public interest. A reading of the
imputations of petitioner Borjal against respondent Wenceslao shows that all these necessarily bore upon
the latter's official conduct and his moral and mental fitness as Executive Director of the FNCLT. The
nature and functions of his position which included solicitation of funds, dissemination of information
about the FNCLT in order to generate interest in the conference, and the management and coordination
of the various activities of the conference demanded from him utmost honesty, integrity and competence.
These are matters about which the public has the right to be informed, taking into account the very public
character of the conference itself.
Concededly, petitioner Borjal may have gone overboard in the language employed describing the
"organizer of the conference." One is tempted to wonder if it was by some mischievous gambit that he
would also dare test the limits of the "wild blue yonder" of free speech in this jurisdiction. But no matter
how intemperate or deprecatory the utterances appear to be, the privilege is not to be defeated nor
rendered inutile for, as succinctly expressed by Mr. Justice Brennan in New York Times v. Sullivan,
"[D]ebate on public issues should be uninhibited, robust and wide open, and that it may well include
vehement, caustic and sometimes unpleasantly sharp attacks on the government and public officials.
31

The Court of Appeals concluded that since malice is always presumed in the publication of defamatory
matters in the absence of proof to the contrary, the question of privilege is immaterial.
We reject this postulate. While, generally, malice can be presumed from defamatory words, the privileged
character of a communication destroys the presumption of malice.
32
The onus of proving actual malice
then lies on plaintiff, private respondent Wenceslao herein. He must bring home to the defendant,
petitioner Borjal herein, the existence of malice as the true motive of his conduct.
33

Malice connotes ill will or spite and speaks not in response to duty but merely to injure the reputation of
the person defamed, and implies an intention to do ulterior and unjustifiable harm.
34
Malice is bad faith or
bad motive.
35
It is the essence of the crime of libel.
36

In the milieu obtaining, can it be reasonably inferred that in writing and publishing the articles in question
petitioner Borjal acted with malice?
Primarily, private respondent failed to substantiate by preponderant evidence that petitioner was
animated by a desire to inflict unjustifiable harm on his reputation, or that the articles were written and
published without good motives or justifiable ends. On the other hand, we find petitioner Borjal to have
acted in good faith. Moved by a sense of civic duty and prodded by his responsibility as a newspaperman,
he proceeded to expose and denounce what he perceived to be a public deception. Surely, we cannot
begrudge him for that. Every citizen has the right to enjoy a good name and reputation, but we do not
consider that petitioner Borjal has violated that right in this case nor abused his press freedom.
Furthermore, to be considered malicious, the libelous statements must be shown to have been written or
published with the knowledge that they are false or in reckless disregard of whether they are false or not.
37
"Reckless disregard of what is false or not" means that the defendant entertains serious doubt as to the
truth of the publication,
38
or that he possesses a high degree of awareness of their probable falsity.
39

The articles subject of the instant case can hardly be said to have been written with knowledge that these
are false or in reckless disregard of what is false or not. This is not to say however that the very serious
allegations of petitioner Borjal assumed by private respondent to be directed against him are true. But we
nevertheless find these at least to have been based on reasonable grounds formed after the columnist
conducted several personal interviews and after considering the varied documentary evidence provided
him by his sources. Thus, the following are supported by documentary evidence: (a) that private
respondent requested Gloria Macapagal-Arroyo, then head of the Garments and Textile Export Board
(GTEB), to expedite the processing and release of the import approval and certificate of availability of a
garment firm in exchange for the monetary contribution of Juliano Lim, which necessitated a reply from
the office of Gloria Macapagal-Arroyo explaining the procedure of the GTEB in processing applications
and clarifying that all applicants were treated
equally;
40
(b) that Antonio Periquet was designated Chairman of the Executive Committee of the FNCLT
notwithstanding that he had previously declined the offer;
41
and, (c) that despite the fact that then
President Aquino and her Secretary of Transportation Rainerio Reyes declined the invitation to be guest
speakers in the conference, their names were still included in the, printout of the FNCLT.
42
Added to
these are the admissions of private respondent that: (a) he assisted Juliano Lim in his application for a
quota allocation with the GTEB in exchange for monetary contributions to the FNCLT;
43
(b) he included
the name of then Secretary of Transportation Rainerio Reyes in the promotional materials of the
conference notwithstanding the latter's refusal to lend his name to and participate in the FNCLT;
44
and,
(c) he used different letterheads and telephone numbers.
45

Even assuming that the contents of the articles are false, mere error, inaccuracy or even falsity alone
does not prove actual malice. Errors or misstatements are inevitable in any scheme of truly free
expression and debate. Consistent with good faith and reasonable care, the press should not be held to
account, to a point of suppression, for honest mistakes or imperfections in the choice of language. There
must be some room for misstatement of fact as well as for misjudgment. Only by giving them much
leeway and tolerance can they courageously and effectively function as critical agencies in our
democracy.
46
In Bulletin Publishing Corp. v. Noel
47
we held -
A newspaper especially one national in reach and coverage, should be free to report on
events and developments in which the public has a legitimate interest with minimum fear
of being hauled to court by one group or another on criminal or civil charges for libel, so
long as the newspaper respects and keeps within the standards of morality and civility
prevailing within the general community.
To avoid the self-censorship that would necessarily accompany strict liability for erroneous statements,
rules governing liability for injury to reputation are required to allow an adequate margin of error by
protecting some inaccuracies. It is for the same reason that the New York Times doctrine requires that
liability for defamation of a public official or public figure may not be imposed in the absence of proof of
"actual malice" on the part of the person making the libelous statement.
At any rate, it may be salutary for private respondent to ponder upon the advice of Mr. Justice Malcolm
expressed in U.S. v. Bustos,
48
that "the interest of society and the maintenance of good government
demand a full discussion of public affairs. Complete liberty to comment on the conduct of public men is a
scalpel in the case of free speech. The sharp incision of its probe relieves the abscesses of officialdom.
Men in public life may suffer under a hostile and unjust accusation; the wound may be assuaged by the
balm of a clear conscience. A public official must not be too thin-skinned with reference to comments
upon his official acts."
The foregoing disposition renders the second and seventh assigned errors moot and academic, hence,
we find no necessity to pass upon them.
We must however take this opportunity to likewise remind media practitioners of the high ethical
standards attached to and demanded by their noble profession. The danger of an unbridled irrational
exercise of the right of free speech and press, that is, in utter contempt of the rights of others and in willful
disregard of the cumbrous responsibilities inherent in it, is the eventual self-destruction of the right and
the regression of human society into a veritable Hobbesian state of nature where life is short, nasty and
brutish. Therefore, to recognize that there can be no absolute "unrestraint" in speech is to truly
comprehend the quintessence of freedom in the marketplace of social thought and action, genuine
freedom being that which is limned by the freedom of others. If there is freedom of the press, ought there
not also be freedom from the press? It is in this sense that self-regulation as distinguished from self-
censorship becomes the ideal mean for, as Mr. Justice Frankfurter has warned, "[W]ithout
. . . a lively sense of responsibility, a free press may readily become a powerful instrument of injustice."
49

Lest we be misconstrued, this is not to diminish nor constrict that space in which expression freely
flourishes and operates. For we have always strongly maintained, as we do now, that freedom of
expression is man's birthright -constitutionally protected and guaranteed, and that it has become the
singular role of the press to act as its "defensor fidei" in a democratic society such as ours. But it is also
worth keeping in mind that the press is the servant, not the master, of the citizenry, and its freedom does
not carry with it an restricted hunting license to prey on the ordinary citizen.
50

On petitioners' counterclaim for damages, we find the evidence too meager to sustain any award. Indeed,
private respondent cannot be said to have instituted the present suit in abuse of the legal processes and
with hostility to the press; or that he acted maliciously, wantonly, oppressively, fraudulently and for the
sole purpose of harassing petitioners, thereby entitling the latter to damages. On the contrary, private
respondent acted within his rights to protect his honor from what he perceived to be malicious imputations
against him. Proof and motive that the institution of the action was prompted by a sinister design to vex
and humiliate a person must be clearly and preponderantly established to entitle the victim to damages.
The law could not have meant to impose a penalty on the right to litigate, nor should counsel's fees be
awarded every time a party wins a suit.
51

For, concluding with the wisdom in Warren v. Pulitzer Publishing
Co.
52

Every man has a right to discuss matters of public interest. A clergyman with his flock, an
admiral with his fleet, a general with his army, a judge with his jury; we are, all of us, the
subject of public discussion. The view of our court has been thus stated: "It is only in
despotisms that one must speak sub rosa, or in whispers, with bated breath, around the
corner, or in the dark on a subject touching the common welfare. It is the brightest jewel
in the crown of the law to speak and maintain the golden mean between defamation, on
one hand, and a healthy and robust right of free public discussion, on the other.
WHEREFORE, the petition is GRANTED. The Decision of the Court of Appeals of 25 March 1996 and its
Resolution of 12 September 1996 denying reconsideration are, REVERSED and SET ASIDE, and the
complaint for damages against petitioners is DISMISSED. Petitioners' counterclaim for damages is
likewise DISMISSED for lack of merit. No costs.1wphi1.nt
SO ORDERED.
Puno, Mendoza, Martinez and Buena, JJ., concur.
Footnotes
1 Alfred H. Knight, The Life of the Law, Crown Publisher, Inc., New York 1996, pp. 102,
230 and 231.
2 Decision of the Court of Appeals in CA-G.R. No. 40496, Records, pp. 114-116.
3 Id., pp. 144-149; Exhs. "A" to "G."
4 Published in the 4 June 1989 issue of the Philippine Star; see Exh. "R."
5 TSN, 18 May 1992, p. 43; Exh. "1."
6 Id., pp. 60-64; Exh. "21."
7 Exh. "16."
8 Docketed as Civil Case No. Q-90-70581, raffled to RTC-Br. 98, Quezon City.
9 Wenceslao v. Court of Appeals, G.R. No. 124396.
10 Kunkle v. Cablenews-American, 42 Phil. 757 (1922). See also Corpus v. Cuaderno,
Sr., No. L-16969, 30 April 1966, 16 SCRA 807; People v. Monton, No. L-16772, 30
November 1962, 6 SCRA 801.
11 Exh. "B."
12 Exh. "8;" Annexes "3" and "5."
13 Exh. "SSS-1."
14 Annex "C," Complaint.
15 Annex "B," id.
16 TSN, 9 September 1991, p. 5.
17 Id., 18 May 1992, p. 20.
18 Annex "R."
19 Art. III, Sec. 4, provides: No law shall be passed abridging the freedom of speech, of
expression, or of the press, or the right of the people to peaceably assemble and petition
the government for redress of grievances.
20 38 Phil. 253, 265 (1918).
21 No. L-33615, 22 April 1977, 76 SCRA 448, 454.
22 G.R. No. 45031, 21 October 1991, 203 SCRA 110, 117.
23 Author of "The Irony of free Speech," Harvard University Press, Cambridge,
Massachusetts, 1996.
24 People v. Velasco, 40 O.G., No. 18, p. 3694.
25 TSN, 29 July 1991, p. 15.
26 Id., September 1991, pp. 11-12.
27 376, US 254.
28 NAACP v. Button, 371 US 415.
29 G.R. Nos. 82380 and 82396, 29 April 1988, 160 SCRA 861.
30 Rosenbloom v. Metromedia, 403 US 296.
31 See Note 27; see also Terminiello v. Chicago, 337 US 1, 4, 93 L Ed 1131, 69 S.Ct.
894.
32 Lu Chu Sing v. Lu Tiong Gui, 76 Phil. 669 (1946).
33 See People v. Monton, 116 Phil. 1116 (1962).
34 See Note 20.
35 Potts v. Dies, 132 Fed 734, 735.
36 Rice v. Simmons, Del 2 Har, 309. 310.
37 See Note 27.
38 St. Amant v. Thompson, 390 US 731.
39 Garrison v. Louisiana, 379 US 74.
40 Exhs. "3" and "4."
41 Exh. "5."
42 Exhs. "6, "7," "8," "9," "10," and "11."
43 TSN, 30 Septmeber 1991, p. 14.
44 Id., 9 September 1991, p. 36.
45 Id., 30 September 1991, p. 14.
46 Concurring Opinion of US Supreme Court Justice Rutledge in Pennekamp v. Florida,
328 US 331, 371-372.
47 G.R. No. 76565, 9 November 1988, 167 SCRA 255, 265.
48 Phil. 731 (1918).
49 Pennekamp v. Florida, 328 U.S. 331, 356, 365, 90 L Ed 1295, 66 Ct 1029 (1946).
50 Mr. Justice White, concurring in Miami Herald Publishing Co. v. Tornillo, 418 US 241,
41 L Ed 2d 730, 94 S Ct 2831 (1974).
51 See Que v. Intermidiate Appellate Court, G.R. No. 668565, 13 January 1989, 169
SCRA 137; Arenas v. Court of Appeals, G.R. No. 56624, 27 January 1989, 169 SCRA
558.
52 78 S.W. 2, 413-416 (1934).

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. Taada Jose W. Diokno and Haydee B. Yorac for petitioner.
The Solicitor General for respondent.

FERNANDO, C.J .:+.wph!1
This Court, in this case of first impression, at least as to some aspects, is called upon to
delineate the boundaries of the protected area of the cognate rights to free speech and
peaceable assembly,
1
against an alleged intrusion by respondent Mayor Ramon Bagatsing.
Petitioner, retired Justice JB L. Reyes, on behalf of the Anti-Bases Coalition sought a permit from the City
of Manila to hold a peaceful march and rally on October 26, 1983 from 2:00 to 5:00 in the afternoon,
starting from the Luneta, a public park, to the gates of the United States Embassy, hardly two blocks
away. Once there, and in an open space of public property, a short program would be held.
2
During the
course of the oral argument,
3
it was stated that after the delivery of two brief speeches, a petition based
on the resolution adopted on the last day by the International Conference for General Disbarmament,
World Peace and the Removal of All Foreign Military Bases held in Manila, would be presented to a
representative of the Embassy or any of its personnel who may be there so that it may be delivered to the
United States Ambassador. The march would be attended by the local and foreign participants of such
conference. There was likewise an assurance in the petition that in the exercise of the constitutional rights
to free speech and assembly, all the necessary steps would be taken by it "to ensure a peaceful march
and rally."
4

The filing of this suit for mandamus with alternative prayer for writ of preliminary mandatory injunction on
October 20, 1983 was due to the fact that as of that date, petitioner had not been informed of any action
taken on his request on behalf of the organization to hold a rally. On October 25, 1983, the answer of
respondent Mayor was filed on his behalf by Assistant Solicitor General Eduardo G. Montenegro.
5
It
turned out that on October 19, such permit was denied. Petitioner was unaware of such a fact as the
denial was sent by ordinary mail. The reason for refusing a permit was due to police intelligence reports
which strongly militate against the advisability of issuing such permit at this time and at the place applied
for."
6
To be more specific, reference was made to persistent intelligence reports affirm[ing] the plans of
subversive/criminal elements to infiltrate and/or disrupt any assembly or congregations where a large
number of people is expected to attend."
7
Respondent Mayor suggested, however, in accordance with
the recommendation of the police authorities, that "a permit may be issued for the rally if it is to be held at
the Rizal Coliseum or any other enclosed area where the safety of the participants themselves and the
general public may be ensured."
8

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
t.hqw
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: t.hqw
* * * 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: t.hqw
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
t.hqw
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: t.hqw
* * * 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: t.hqw
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.

Footnotest.hqw
1 Section 9, Article IV of the Constitution.
2 Petition. par. 4.
3 Petitioner was represented by Professor Haydee Yorac of the College of Law, University of the Philippines, assisted
by former Senator Jose W. Diokno. Respondent was represented by Assistant Solicitor General Montenegro.
4 Petition, 2.
5 He was assisted by Solicitor Roberto A. Abad.
6 Answer of Respondent, 2, Annex 1.
7 Ibid, Annex 1-A.
8 Ibid, Annex 1.
9 Minute resolution dated October 25, 1983, 4.
10 Article IV, Section 9 of the Constitution.
11 Cf. Thornhill v. Alabama, 310 US 88 (1940). Justice Malcolm identified freedom of expression with the right to a full
discussion of public affairs." (U.S. v. Bustos, 37 Phil. 731, 740 [1918]). Justice Laurel was partial to the ringing words of
John Milton, "the liberty to know, to utter, and to argue freely according to conscience, above all liberties." (Planas v.
Gil, 67 Phil. 81 [1939]). Justice Johnson spoke of freedom of expression in terms of "a full and free discussion of all
affairs of public interest." For him then, free speech includes complete liberty to "comment upon the administration of
Government as well as the conduct of public men." U S. v. Perfecto,
43 Phil. 58, 62 [1922]). When it is remembered further that time has upset many fighting faiths" there is like] to be a
more widespread acceptance of the view of Justice Holmes "that the ultimate good, desired is better reached by free
trade in ideas that the best test of truth is the power of the thought to get accepted that the competition of the market;
and that truth is the only ground upon which their wishes safely can be carried out." (Abrams v. United States, 250 US
616, 630 [1919]).
12 U.S. v. Bustos, 37 Phil. 1131 (1918); Quisumbing v. Lopez, 96 Phil. 510 (1935).
13 U.S. v. Perfecto, 43 Phil. 58 (1922).
14 Yap v. Boltron 100 Phil. 324 (1956).
15 People v. Alarcon, 69 Phil. 265 (1939); Cabansag v. Fernandez, 102 Phil. 152 (1957); People v. Castelo H. Abaya,
114 Phil. 892 (1962); Bridges v. California, 314 US 252 (1941); Pennekamp v. Florida, 328 US 331 (1946); Craio v.
Harney 331 US 367 (1947); Woods v. Georgia, 370 US 375 (1962).
16 Gonzales v. Commission on Elections, L-27833, April 18, 1969, 27 SCRA 835, 857.
17 Cf. Ibid.
18 Ibid.
19 Cf. United States v. Bustos, 37 Phil. 731 (1918).
20 323 US 516 (1945).
21 Cf. Schneider v. Irvington 308 US 147 (1939).
22 Milk Wagon Drivers Union of Chicago, Local 753 v Meadowmoor Dairies, Inc., 312 US 287, 293 (1940).
23 7 Phil. 422.
24 Ibid, 426.
25 307 US 495.
26 ibid 515.
27 80 Phil. 71 (1948).
28 30 Phil. 602.
29 Ibid, 606.
30 80 Phil. at 78.
31 312 US at 524.
32 Cf. Brownlie Principles of Public International Law, 2nd ed., 339-341. 3,3
33 Article 11, Section 3 reads in full:
34 The Philippines renounces war as an instrument of national policy, adopts the generally accepted principles of
international law as part of the law of the land, and adheres to the policy of peace, equality, justice, freedom,
cooperation, and amity with all nations," 31 The Philippines can rightfully take credit for the acceptance, as early as
1951, of the binding force of the Universal Declaration of Human Rights even if the rights and freedoms therein
declared are considered by other jurisdictions as merely a statement of aspirations and not law until translated into the
appropriate covenants. In the following cases decided in 1951, Mejoff v. Director of Prisons, 90 Phil. 70; Borovsky v.
Commissioner of Immigration, 90 Phil. 107; Chirskoff v. Commissioner of Immigration, 90 Phil. 256; Andreu v.
Commissioner of Immigration, 90 Phil. 347, the Supreme Court applied the Universal Declaration of Human Rights.
35 According to its Article 19: "Everyone has the right to freedom of opinion and expression; this right includes freedom
to hold opinions without interference and to seek, receive, and impart information and Ideas through any media and
regardless of frontiers." The first paragraph of Article 20 reads; "Everyone has the right to freedom of peaceful
assembly and association.
36 De Jorge v. Oregon, 299 US 353, 364 (1937).
37 Schneider v. IrvIngton 308 US 147,163 (1939).
38 G.R. No. L-31687, February 26, 1970, 31 SCRA 731. Two justices dissented, Justice, later Chief Justice, Castro
and the present Chief Justice, then a Justice.
39 G.R. No. 60294, April 30, 1982.
40 Opinion citing par. 4 of Petition. t.hqw
Teehankee, J.:+.wph!1
1 80 Phil. 1.
2 71 U.S. Law ed., 1105-1107.
3 307 U.S. 496, 515, 83 Law ed., 1423.

Republic of the Philippines
SUPREME COURT
Manila
EN BANC
G.R. No. 80806 October 5, 1989
LEO PITA doing business under the name and style of PINOY PLAYBOY,
petitioner,
vs.
THE COURT OF APPEALS, RAMON BAGATSING, and NARCISO CABRERA,
respondents.
William C. Arceno for petitioner.
Casibang, Perello and De Dios for private respondent.

SARMIENTO, J .:
The petitioner, publisher of Pinoy Playboy, a "men's magazine", seeks the review of the
decision of the Court of Appeals,
1
rejecting his appeal from the decision of the Regional Trial
Court, dismissing his complaint for injunctive relief. He invokes, in particular, the guaranty against
unreasonable searches and seizures of the Constitution, as well as its prohibition against deprivation of
property without due process of law. There is no controversy as to the facts. We quote:
On December 1 and 3, 1983, pursuing an Anti-Smut Campaign initiated by the Mayor of
the City of Manila, Ramon D. Bagatsing, elements of the Special Anti-Narcotics Group,
Auxilliary Services Bureau, Western Police District, INP of the Metropolitan Police Force
of Manila, seized and confiscated from dealers, distributors, newsstand owners and
peddlers along Manila sidewalks, magazines, publications and other reading materials
believed to be obscene, pornographic and indecent and later burned the seized materials
in public at the University belt along C.M. Recto Avenue, Manila, in the presence of
Mayor Bagatsing and several officers and members of various student organizations.
Among the publications seized, and later burned, was "Pinoy Playboy" magazines
published and co-edited by plaintiff Leo Pita.
On December 7, 1983, plaintiff filed a case for injunction with prayer for issuance of the
writ of preliminary injunction against Mayor Bagatsing and Narcisco Cabrera, as
superintendent of Western Police District of the City of Manila, seeking to enjoin and/or
restrain said defendants and their agents from confiscating plaintiffs magazines or from
otherwise preventing the sale or circulation thereof claiming that the magazine is a
decent, artistic and educational magazine which is not per se obscene, and that the
publication is protected by the Constitutional guarantees of freedom of speech and of the
press.
By order dated December 8, 1 983 the Court set the hearing on the petition for
preliminary injunction on December 14,1983 and ordered the defendants to show cause
not later than December 13, 1983 why the writ prayed for should not be granted.
On December 12, 1983, plaintiff filed an Urgent Motion for issuance of a temporary
restraining order. against indiscriminate seizure, confiscation and burning of plaintiff's
"Pinoy Playboy" Magazines, pending hearing on the petition for preliminary injunction in
view of Mayor Bagatsing's pronouncement to continue the Anti-Smut Campaign. The
Court granted the temporary restraining order on December 14, 1983.
In his Answer and Opposition filed on December 27,1983 defendant Mayor Bagatsing
admitted the confiscation and burning of obscence reading materials on December 1 and
3, 1983, but claimed that the said materials were voluntarily surrendered by the vendors
to the police authorities, and that the said confiscation and seizure was (sic) undertaken
pursuant to P.D. No. 960, as amended by P.D. No. 969, which amended Article 201 of
the Revised Penal Code. In opposing the plaintiffs application for a writ of preliminary
injunction, defendant pointed out that in that anti- smut campaign conducted on
December 1 and 3, 1983, the materials confiscated belonged to the magazine stand
owners and peddlers who voluntarily surrendered their reading materials, and that the
plaintiffs establishment was not raided.
The other defendant, WPD Superintendent, Narcisco Cabrera, filed no answer.
On January 5,1984, plaintiff filed his Memorandum in support of the issuance of the writ
of preliminary injunction, raising the issue as to "whether or not the defendants and/or
their agents can without a court order confiscate or seize plaintiffs magazine before any
judicial finding is made on whether said magazine is obscene or not".
The restraining order issued on December 14,1983 having lapsed on January 3,1984, the
plaintiff filed an urgent motion for issuance of another restraining order, which was
opposed by defendant on the ground that issuance of a second restraining order would
violate the Resolution of the Supreme Court dated January 11, 1983, providing for the
Interim Rules Relative to the Implementation of Batas Pambansa Blg. 129, which
provides that a temporary restraining order shall be effective only for twenty days from
date of its issuance.
On January 9, 1984 defendant filed his Comment and/or Rejoinder Memorandum in
support of his opposition to the issuance of a writ of preliminary injunction.
On January 11, 1984, the trial court issued an Order setting the case for hearing on
January 16, 1984 "for the parties to adduce evidence on the question of whether the
publication 'Pinoy Playboy Magazine alleged (sic) seized, confiscated and/or burned by
the defendants, are obscence per se or not".
On January 16, 1984, the Court issued an order granting plaintiffs motion to be given
three days "to file a reply to defendants' opposition dated January 9, 1984, serving a copy
thereof to the counsel for the defendants, who may file a rejoinder within the same period
from receipt, after which the issue of Preliminary Injunction shall be resolved".
Plaintiff's supplemental Memorandum was filed on January 18, 1984. Defendant filed his
Comment on plaintiff s supplemental Memorandum on January 20, 1984, and plaintiff
filed his "Reply-Memorandum" to defendants' Comment on January 25, 1984.
On February 3, 1984, the trial court promulgated the Order appealed from denying the
motion for a writ of preliminary injunction, and dismissing the case for lack of merit.
2

The Appellate Court dismissed the appeal upon the grounds, among other things, as follows:
We cannot quarrel with the basic postulate suggested by appellant that seizure of
allegedly obscene publications or materials deserves close scrutiny because of the
constitutional guarantee protecting the right to express oneself in print (Sec. 9, Art. IV),
and the protection afforded by the constitution against unreasonable searches and
seizure (Sec. 3, Art.IV). It must be equally conceded, however, that freedom of the press
is not without restraint as the state has the right to protect society from pornographic
literature that is offensive to public morals, as indeed we have laws punishing the author,
publishers and sellers of obscene publications (Sec. I , Art. 201, Revised Penal Code, as
amended by P.D. No. 960 and P.D. No. 969). Also well settled is the rule that the right
against unreasonable searches and seizures recognizes certain exceptions, as when
there is consent to the search or seizure, (People vs. Malesugui 63 Phil. 22) or search is
an incident to an arrest, (People vs. Veloso, 48 Phil. 169; Alvero vs. Dizon, 76 Phil. 637)
or is conducted in a vehicle or movable structure (See Papa vs. Magno, 22 SCRA 857).
3

The petitioner now ascribes to the respondent court the following errors:
1. The Court of Appeals erred in affirming the decision of the trial court and, in effect,
holding that the police officers could without any court warrant or order seize and
confiscate petitioner's magazines on the basis simply of their determination that they are
obscene.
2. The Court of Appeals erred in affirming the decision of the trial court and, in effect,
holding that the trial court could dismiss the case on its merits without any hearing
thereon when what was submitted to it for resolution was merely the application of
petitioner for the writ of preliminary injunction.
4

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

Yet Kottinger, in its effort to arrive at a "conclusive" definition, succeeded merely in generalizing a
problem that has grown increasingly complex over the years. Precisely, the question is: When does a
publication have a corrupting tendency, or when can it be said to be offensive to human sensibilities? And
obviously, it is to beg the question to say that a piece of literature has a corrupting influence because it is
obscene, and vice-versa.
Apparently, Kottinger was aware of its own uncertainty because in the same breath, it would leave the
final say to a hypothetical "community standard" whatever that is and that the question must
supposedly be judged from case to case.
About three decades later, this Court promulgated People v. Go Pin, 10 a prosecution under Article 201
of the Revised Penal Code. Go Pin, was also even hazier:
...We agree with counsel for appellant in part. If such pictures, sculptures and paintings
are shown in art exhibit and art galleries for the cause of art, to be viewed and
appreciated by people interested in art, there would be no offense committed. However,
the pictures here in question were used not exactly for art's sake but rather for
commercial purposes. In other words, the supposed artistic qualities of said pictures were
being commercialized so that the cause of art was of secondary or minor importance.
Gain and profit would appear to have been the main, if not the exclusive consideration in
their exhibition; and it would not be surprising if the persons who went to see those
pictures and paid entrance fees for the privilege of doing so, were not exactly artists and
persons interested in art and who generally go to art exhibitions and galleries to satisfy
and improve their artistic tastes, but rather people desirous of satisfying their morbid
curiosity and taste, and lust, and for love for excitement, including the youth who because
of their immaturity are not in a position to resist and shield themselves from the ill and
perverting effects of these pictures.
11

xxx xxx xxx
As the Court declared, the issue is a complicated one, in which the fine lines have neither been drawn nor
divided. It is easier said than done to say, indeed, that if "the pictures here in question were used not
exactly for art's sake but rather for commercial purposes,"
12
the pictures are not entitled to any
constitutional protection.
It was People v. Padan y Alova ,
13
however, that introduced to Philippine jurisprudence the "redeeming"
element that should accompany the work, to save it from a valid prosecution. We quote:
...We have had occasion to consider offenses like the exhibition of still or moving pictures
of women in the nude, which we have condemned for obscenity and as offensive to
morals. In those cases, one might yet claim that there was involved the element of art;
that connoisseurs of the same, and painters and sculptors might find inspiration in the
showing of pictures in the nude, or the human body exhibited in sheer nakedness, as
models in tableaux vivants. But an actual exhibition of the sexual act, preceded by acts of
lasciviousness, can have no redeeming feature. In it, there is no room for art. One can
see nothing in it but clear and unmitigated obscenity, indecency, and an offense to public
morals, inspiring and causing as it does, nothing but lust and lewdness, and exerting a
corrupting influence specially on the youth of the land. ...
14

Padan y Alova, like Go Pin, however, raised more questions than answers. For one thing, if the exhibition
was attended by "artists and persons interested in art and who generally go to art exhibitions and
galleries to satisfy and improve their artistic tastes,"
15
could the same legitimately lay claim to "art"? For
another, suppose that the exhibition was so presented that "connoisseurs of [art], and painters and
sculptors might find inspiration,"
16
in it, would it cease to be a case of obscenity?
Padan y Alova, like Go Pin also leaves too much latitude for judicial arbitrament, which has permitted an
ad lib of Ideas and "two-cents worths" among judges as to what is obscene and what is art.
In a much later decision, Gonzalez v. Kalaw Katigbak,
17
the Court, following trends in the United States,
adopted the test: "Whether to the average person, applying contemporary standards, the dominant theme
of the material taken as a whole appeals to prurient interest."
18
Kalaw-Katigbak represented a marked
departure from Kottinger in the sense that it measured obscenity in terms of the "dominant theme" of the
work, rather than isolated passages, which were central to Kottinger (although both cases are agreed that
"contemporary community standards" are the final arbiters of what is "obscene"). Kalaw-Katigbak
undertook moreover to make the determination of obscenity essentially a judicial question and as a
consequence, to temper the wide discretion Kottinger had given unto law enforcers.
It is significant that in the United States, constitutional law on obscenity continues to journey from
development to development, which, states one authoritative commentator (with ample sarcasm), has
been as "unstable as it is unintelligible."
19

Memoirs v. Massachusettes,
20
a 1966 decision, which characterized obscenity as one "utterly without any
redeeming social value,"
21
marked yet another development.
The latest word, however, is Miller v. California,
22
which expressly abandoned Massachusettes, and
established "basic guidelines,"
23
to wit: "(a) whether 'the average person, applying contemporary
standards' would find the work, taken as a whole, appeals to the prurient interest . . .; (b) whether the
work depicts or describes, in a patently offensive way, sexual conduct specifically defined by the
applicable state law; and (c) whether the work, taken as a whole, lacks serious literary, artistic, political, or
scientific value."
24

(A year later, the American Supreme Court decided Hamling v. United States
25
which repeated Miller,
and Jenkins v. Georgia,
26
yet another reiteration of Miller. Jenkins, curiously, acquitted the producers of
the motion picture, Carnal Knowledge, in the absence of "genitals" portrayed on screen, although the film
highlighted contemporary American sexuality.)
The lack of uniformity in American jurisprudence as to what constitutes "obscenity" has been attributed to
the reluctance of the courts to recognize the constitutional dimension of the problem .
27
Apparently, the
courts have assumed that "obscenity" is not included in the guaranty of free speech, an assumption that,
as we averred, has allowed a climate of opinions among magistrates predicated upon arbitrary, if vague
theories of what is acceptable to society. And "[t]here is little likelihood," says Tribe, "that this
development has reached a state of rest, or that it will ever do so until the Court recognizes that obscene
speech is speech nonetheless, although it is subject as in all speech to regulation in the interests of
[society as a whole] but not in the interest of a uniform vision of how human sexuality should be
regarded and portrayed."
28

In the case at bar, there is no challenge on the right of the State, in the legitimate exercise of police
power, to suppress smut provided it is smut. For obvious reasons, smut is not smut simply because one
insists it is smut. So is it equally evident that individual tastes develop, adapt to wide-ranging influences,
and keep in step with the rapid advance of civilization. What shocked our forebears, say, five decades
ago, is not necessarily repulsive to the present generation. James Joyce and D.H. Lawrence were
censored in the thirties yet their works are considered important literature today.
29
Goya's La Maja
desnuda was once banned from public exhibition but now adorns the world's most prestigious museums.
But neither should we say that "obscenity" is a bare (no pun intended) matter of opinion. As we said
earlier, it is the divergent perceptions of men and women that have probably compounded the problem
rather than resolved it.
What the Court is impressing, plainly and simply, is that the question is not, and has not been, an easy
one to answer, as it is far from being a settled matter. We share Tribe's disappointment over the
discouraging trend in American decisional law on obscenity as well as his pessimism on whether or not
an "acceptable" solution is in sight.
In the final analysis perhaps, the task that confronts us is less heroic than rushing to a "perfect" definition
of "obscenity", if that is possible, as evolving standards for proper police conduct faced with the problem,
which, after all, is the plaint specifically raised in the petition.
However, this much we have to say.
Undoubtedly, "immoral" lore or literature comes within the ambit of free expression, although not its
protection. In free expression cases, this Court has consistently been on the side of the exercise of the
right, barring a "clear and present danger" that would warrant State interference and action.
30
But, so we
asserted in Reyes v. Bagatsing,
31
"the burden to show the existence of grave and imminent danger that
would justify adverse action ... lies on the. . . authorit[ies]."
32

"There must be objective and convincing, not subjective or conjectural, proof of the existence of such
clear and present danger."
33
"It is essential for the validity of ... previous restraint or censorship that the ...
authority does not rely solely on his own appraisal of what the public welfare, peace or safety may
require."
34

"To justify such a limitation, there must be proof of such weight and sufficiency to satisfy the clear and
present danger test."
35

The above disposition must not, however, be taken as a neat effort to arrive at a solution-so only we may
arrive at one-but rather as a serious attempt to put the question in its proper perspective, that is, as a
genuine constitutional issue.
It is also significant that in his petition, the petitioner asserts constitutional issues, mainly, due process
and illegal search and seizure.
As we so strongly stressed in Bagatsing, a case involving the delivery of a political speech, the
presumption is that the speech may validly be said. The burden is on the State to demonstrate the
existence of a danger, a danger that must not only be: (1) clear but also, (2) present, to justify State
action to stop the speech. Meanwhile, the Government must allow it (the speech). It has no choice.
However, if it acts notwithstanding that (absence of evidence of a clear and present danger), it must come
to terms with, and be held accountable for, due process.
The Court is not convinced that the private respondents have shown the required proof to justify a ban
and to warrant confiscation of the literature for which mandatory injunction had been sought below. First
of all, they were not possessed of a lawful court order: (1) finding the said materials to be pornography,
and (2) authorizing them to carry out a search and seizure, by way of a search warrant.
The Court of Appeals has no "quarrel that ... freedom of the press is not without restraint, as the state has
the right to protect society from pornographic literature that is offensive to public morals."
36
Neither do we.
But it brings us back to square one: were the "literature" so confiscated "pornographic"? That we have
laws punishing the author, publisher and sellers of obscence publications (Sec. 1, Art. 201, Revised
Penal Code, as amended by P.D. No. 960 and P.D. No. 969),"
37
is also fine, but the question, again, is:
Has the petitioner been found guilty under the statute?
The fact that the former respondent Mayor's act was sanctioned by "police power" is no license to seize
property in disregard of due process. In Philippine Service Exporters, Inc. v. Drilon,
38
We defined police
power as "state authority to enact legislation that may interfere with personal liberty or property in order to
promote the general welfare ."
39
Presidential Decrees Nos. 960 and 969 are, arguably, police power
measures, but they are not, by themselves, authorities for high-handed acts. They do not exempt our law
enforcers, in carrying out the decree of the twin presidential issuances (Mr. Marcos'), from the
commandments of the Constitution, the right to due process of law and the right against unreasonable
searches and seizures, specifically. Significantly, the Decrees themselves lay down procedures for
implementation. We quote:
Sec. 2. Disposition of the Prohibited Articles. The disposition of the literature, films,
prints, engravings, sculptures, paintings, or other materials involved in the violation
referred to in Section 1 hereof (Art. 201), RPC as amended) shall be governed by the
following rules:
(a) Upon conviction of the offender, to be forfeited in favor of the Government to be
destroyed.
(b) Where the criminal case against any violator of this decree results in an acquittal, the
obscene/immoral literature, films, prints, engravings, sculptures, paintings or other
materials and articles involved in the violation referred to in Section 1 (referring to Art.
201) hereof shall nevertheless be forfeited in favor of the government to be destroyed,
after forfeiture proceedings conducted by the Chief of Constabulary.
(c) The person aggrieved by the forfeiture action of the Chief of Constabulary may, within
fifteen (15) days after his receipt of a copy of the decision, appeal the matter to the
Secretary of National Defense for review. The decision of the Secretary of National
Defense shall be final and unappealable. (Sec. 2, PD No, 960 as amended by PD No.
969.)
Sec. 4. Additional Penalties. Additional penalties shall be imposed as follows:
1. In case the offender is a government official or employee who allows the violations of
Section I hereof, the penalty as provided herein shall be imposed in the maximum period
and, in addition, the accessory penalties provided for in the Revised Penal Code, as
amended, shall likewise be imposed .
40

Under the Constitution, on the other hand:
SEC. 3. The right of the people to be secure in their persons, houses, papers, and effects
against unreasonable searches and seizures of whatever nature and for any purpose
shall not be violated, and no search warrant or warrant of arrest shall issue except upon
probable cause to be determined by the judge, or such other responsible officer as may
be authorized by law, after examination under oath or affirmation of the complainant and
the witnesses he may produce, and particularly describing the place to be searched, and
the persons or things to be seized.
It is basic that searches and seizures may be done only through a judicial warrant, otherwise, they
become unreasonable and subject to challenge. In Burgos v. Chief of Staff, AFP,
43
We counter-minded
the orders of the Regional Trial Court authorizing the search of the premises of We Forum and
Metropolitan Mail, two Metro Manila dailies, by reason of a defective warrant. We have greater reason
here to reprobate the questioned raid, in the complete absence of a warrant, valid or invalid. The fact that
the instant case involves an obscenity rap makes it no different from Burgos, a political case, because,
and as we have indicated, speech is speech, whether political or "obscene".
The Court is not ruling out warrantless searches, as the Rules of Court (1964 rev.) (the Rules then
prevailing), provide:
SEC. 12. Search without warrant of personarrested. A person charged with an offense
may be searched for dangerous weapons or anything which may be used as proof of the
commission of the offense.
44

but as the provision itself suggests, the search must have been an incident to a lawful arrest, and the
arrest must be on account of a crime committed. Here, no party has been charged, nor are such charges
being readied against any party, under Article 201, as amended, of the Revised Penal Code.
We reject outright the argument that "[t]here is no constitutional nor legal provision which would free the
accused of all criminal responsibility because there had been no warrant,"
45
and that "violation of penal
law [must] be punished."
46
For starters, there is no "accused" here to speak of, who ought to be
"punished". Second, to say that the respondent Mayor could have validly ordered the raid (as a result of
an anti-smut campaign) without a lawful search warrant because, in his opinion, "violation of penal laws"
has been committed, is to make the respondent Mayor judge, jury, and executioner rolled into one. And
precisely, this is the very complaint of the petitioner.
We make this resume.
1. The authorities must apply for the issuance of a search warrant from a judge, if in their
opinion, an obscenity rap is in order;
2. The authorities must convince the court that the materials sought to be seized are
"obscene", and pose a clear and present danger of an evil substantive enough to warrant
State interference and action;
3. The judge must determine whether or not the same are indeed "obscene:" the question
is to be resolved on a case-to-case basis and on His Honor's sound discretion.
4. If, in the opinion of the court, probable cause exists, it may issue the search warrant
prayed for;
5. The proper suit is then brought in the court under Article 201 of the Revised Penal
Code;
6. Any conviction is subject to appeal. The appellate court may assess whether or not the
properties seized are indeed "obscene".
These do not foreclose, however, defenses under the Constitution or applicable statutes, or remedies
against abuse of official power under the Civil Code"
47
or the Revised Penal code .
48

WHEREFORE, the petition is GRANTED. The decision of the respondent court is REVERSED and SET
ASIDE. It appearing, however, that the magazines subject of the search and seizure ave been destroyed,
the Court declines to grant affirmative relief. To that extent, the case is moot and academic.
SO ORDERED.
Melencio-Herrera, Cruz, Paras, Gancayco, Padilla, Bidin, Cortes, Grio-Aquino, Medialdea and
Regalado, JJ., concur.
Fernan (C.J.), Narvasa and Feliciano, JJ., concur in the result.
Gutierrez, Jr., J., is on leave.

Footnotes
1 Gonzaga-Reyes, Minerva, J., Javellana, Luis A. and Ramirez, Pedro A., JJ., Concurring.
2 Rollo. 30-31
3 Id., 41.
4 Id., 12-13.
5 45 Phil. 352 (1923), per Malcolm, J.
6 Supra, 356
7 Supra, 3511.
8 Supra.
9 Supra, 359.
10 97 Phil. 418 (1955), per Montemayor, J.
11 Supra, 419.
12 Supra.
13 101 Phil. 749 (1957).
14 Supra, 752.
15 Go Pin, supra.
16 Padan y Alova, supra.
17 No 69500, July 21, 1985. 137 SCRA 717, per Fernando, C.J.
18 Supra, 726, citing Roth v. United States, 354 US 476 (1957).
19 TRIBE, AMERICAN CONSTITUTIONAL LAW 656 (1978 ed.).
20 383 US 410 (1966).
21 See TRIBE, Id., 661.
22 413 US 15 (1973).
23 Supra, 24.
24 Supra.
25 418 US 87 (1974).
26 418 US 153 (1974).
27 TRIBE, Id. 281d.
28 Id., 661-662; emphasis in the original.
29 See Kingsley Pictures v. N.Y. Regents, 360 US 684 (1959). The case involved the movie version in Lady
Chatterley's Lover. See also United States v. One Book called "Ulysses", 5 F. Supp. 182 (1934).
30 Gonzales vs. COMELEC, No. L-27833, April 18,1969,27 SCRA 835; Reyes v. Bagatsing, No. 65366, November
9,1983,125 SCRA 553.
31 Supra.
32 Supra, 572 per Teehankee, J., Concurring, emphasis in the original.
33 Supra, emphasis in the original.
34 Supra, emphasis in the original.
35 Supra, emphasis in the original.
36 Rollo, Id., 41.
37 Id., The question whether or not Presidential Decrees Nos. 960 and 969 are unconstitutional is another thing; we will
deal with the problem in the proper hour and in the appropriate case. Judicial restraint is a bar to a consideration of the
problem that does not exist, or if it exists, it exists but in the abstract.
38 G.R. No. 81958, June 30,1988
39 Supra, at 3.
40 Pres. Decree No. 960, Sec. 2 as amended by Pres. Decree No. 969
41 CONST. (1973), the Charter then in force.
42 Supra, art. IV, sec. 3.
43 No. 64266, December, 26,1 984. 133 SCRA 800.
44 RULES OF COURT (1964), Rule 126, sec. 12. As amended, the qqqpioision now reads as follows: "SEC. 12.
Search incident to lawful qqqarrestA person lawfully arrested may be searched for dangerous weapons or anything
which may be used as proof of the commission of an offense, without a search warrant." [RULES ON CRIMINAL
PROCEDURE (1985 rev.), Rule 126, sec. 12.1 Rollo, Id., 51. Id.
45 Rollo, Id., 51.
46 Id.
47 CIVIL CODE, art, 32. The provision states:
ART. 32. Any public officer or employee, or any private individual who directly or indirectly obstructs, defeats, violates
or in any manner impedes or impairs any of the following rights and liberties of another person shall be liable to the
latter for damages:
(1) Freedom of religion;
(2) Freedom of speech;
(3) Freedom to write for the press or to maintain a periodical publication;
(4) Freedom from arbitrary or illegal detention;
(5) Freedom of suffrage;
(6) The right against deprivation of property without due process of law;
(7) The right to a just compensation when private property is taken for public use
(8) The right to the equal protection of the laws;
(9) The right to be secure in one's person, house, papers, and effects against unreasonable
searches and seizures;
(10) The liberty of abode and of changing the same;
(11) The privacy of communication and correspondence;
(12) The right to become member of associations or societies for purposes not contrary to law;
(13) The right to take part in a peaceable assembly to petition the Government for redress of
grievances;
(14) The right to be free from involuntary servitude in any form;
(15) The right of the accused against excessive bail;
(16) The right of the accused to be heard by himself and consel, to be informed of the nature and
cause of the accusation against him, to have a speedy and public trial, to meet the witnesses face
to face, and to have compulsory process to secure the attendance of witness in his behalf
(17) Freedom from bveing compelled to be a witness against one's self, or from being forced to
confess guilt, or from being induced by a promise of immunity or reward to make such
confession, except when the person confessing becomes a State witness;
(18) Freedom from excessive fines,or cruel and unusual punishment, unless the same is imposed
or inflicted in accordance with a statute which has not been judicially declared unconstitutional;
and
(19) Freedom of access to the courts.
In any of the cases referred to in this article, whether or not the defendant's act or omission constitutes a criminal
offense, the aggrieved party has a right to commence an entirely separate and distinct civil action for damages, and for
other relief. Such civil action shall proceed independently of any criminal prosecution (if the latter be instituted), and
may be proved by a preponderance of evidence.
The indemnity shall include moral damages. Exemplary damages may also be adjudicated.
The responsibility herein set forth is not demandable from a judge unless his act or omission constitutes a violation of
the Penal Code or other penal statute.
48 REV. PEN. CODE, arts. 129,130. The provisions state:
"ART. 129. Search warrants maliciously obtained and abuse in the service of those legally obtained. -In addition to the
liability attaching to the offender for commission of any other offense, the penalty of arresto mayor in its maximum
period to prision correccional in its minimum period and a fine not exceeding Pl,000 pesos shall be imposed upon any
public officer or employee who shall procure a search warrant without just cause, or, having legally procured the same,
shall exceed his authority or use unnecessary severity in executing the same.
The acts, committed by a public officer or employee, punishable by the above article are:
(1) Procuring a search warrant without just cause;
(2) Exceeding one's authority or using unnecessary severity in the execution of a legally procured search warrant."
"ART. 130. Searching comicile without witnesses.-The penalty of arresto mayor in its medium and maximum periods
shall be imposed upon a public officer or employee who, in cases where a search is proper, shall search the domicile,
papers or other belongings of any person, in the absence of the latter, any member of his family, or in their default,
without the presence of two witnesses residing in the same locality.

Republic of the Philippines
SUPREME COURT
Manila
SECOND DIVISION
G.R. No. 147571 May 5, 2001
SOCIAL WEATHER STATIONS, INCORPORATED and KAMAHALAN PUBLISHING
CORPORATION, doing business as MANILA STANDARD, petitioners,
vs.
COMMISSION ON ELECTIONS, respondent.
MENDOZA, J .:
Petitioner, Social Weather Stations, Inc. (SWS), is a private non-stock, non-profit social research
institution conducting surveys in various fields, including economics, politics, demography, and
social development, and thereafter processing, analyzing, and publicly reporting the results
thereof. On the other hand, petitioner Kamahalan Publishing Corporation publishes the Manila
Standard, a newspaper of general circulation, which features news- worthy items of information
including election surveys. 1wphi1.nt
Petitioners brought this action for prohibition to enjoin the Commission on Elections from
enforcing 5.4 of RA. No.9006 (Fair Election Act), which provides:
Surveys affecting national candidates shall not be published fifteen (15) days before an
election and surveys affecting local candidates shall not be published seven (7) days be-
fore an election.
The term "election surveys" is defined in 5.1 of the law as follows:
Election surveys refer to the measurement of opinions and perceptions of the voters as
regards a candidate's popularity, qualifications, platforms or a matter of public discussion
in relation to the election, including voters preference for candidates or publicly
discussed issues during the campaign period (hereafter referred to as "Survey").
The implement 5.4, Resolution 3636, 24(h), dated March I, 2001, of the COMELEC enjoins
Surveys affecting national candidates shall not be published fifteen (15) days before an
election and surveys affecting local candidates shall not be published seven (7) days be-
fore an election.
Petitioner SWS states that it wishes to conduct an election survey throughout the period of the
elections both at the national and local levels and release to the media the results of such survey
as well as publish them directly. Petitioner Kamahalan Publishing Corporation, on the other
hand, states that it intends to publish election survey results up to the last day of the elections on
May 14,2001.
Petitioners argue that the restriction on the publication of election survey results constitutes a
prior restraint on the exercise of freedom of speech without any clear and present danger to
justify such restraint. They claim that SWS and other pollsters conducted and published the
results of surveys prior to the 1992, 1995, and 1998 elections up to as close as two days before
the election day without causing confusion among the voters and that there is neither empirical
nor historical evidence to support the conclusion that there is an immediate and inevitable danger
to tile voting process posed by election surveys. They point out that no similar restriction is
imposed on politicians from explaining their opinion or on newspapers or broadcast media from
writing and publishing articles concerning political issues up to the day of the election.
Consequently, they contend that there is no reason for ordinary voters to be denied access to the
results of election surveys, which are relatively objective. 1wphi1.nt
Respondent Commission on Elections justifies the restrictions in 5.4 of R.A. No. 9006 as
necessary to prevent the manipulation and corruption of the electoral process by unscrupulous
and erroneous surveys just before the election. It contends that (1) the prohibition on the
publication of election survey results during the period proscribed by law bears a rational
connection to the objective of the law, i.e., the prevention of the debasement of the electoral
process resulting from manipulated surveys, bandwagon effect, and absence of reply; (2) it is
narrowly tailored to meet the "evils" sought to be prevented; and (3) the impairment of freedom
of expression is minimal, the restriction being limited both in duration, i.e., the last 15 days
before the national election and the last 7 days before a local election, and in scope as it does not
prohibit election survey results but only require timeliness. Respondent claims that in National
Press Club v. COMELEC,
1
a total ban on political advertisements, with candidates being merely
allocated broadcast time during the so-called COMELEC space or COMELEC hour, was upheld
by this Court. In contrast, according to respondent, it states that the prohibition in 5.4 of RA.
No. 9006 is much more limited.
For reasons hereunder given, we hold that 5.4 of R.A. No. 9006 constitutes an unconstitutional
abridgment of freedom of speech, expression, and the press.
To be sure, 5.4Iays a prior restraint on freedom of speech, expression, and the press prohibiting
the publication of election survey results affecting candidates within the prescribed periods of
fifteen (15) days immediately preceding a national election seven (7) days before a local
election. Because of tile preferred status of tile constitutional rights of speech, expression, and he
press, such a measure is vitiated by a weighty presumption of invalidity.
2
Indeed, any system of
prior restraints of expression comes to this Court bearing a heavy Presumption against its
constitutional validity. ...The Government thus carries a heavy burden of showing justification
for in enforcement of such restraint. "'
3
There, thus a reversal of the normal presumption of
validity that inheres in every legislation.
Nor may it be argued that because of Art. IX-C, 4 of the Constitution, which gives the
COMELEC supervisory power to regulate the enjoyment or utilization of franchise for the
operation of media of communication, no presumption of invalidity attaches to a measure like
5.4. For as we have pointed out in sustaining tile ban on media political advertisements, the
grant of power to the COMELEC under Art. IX-C, 4 is limited to ensuring "equal opportunity,
time, space, and the right to reply" as well as uniform and reasonable rates of charges for the use
of such media facilities "public information campaigns and forums among candidates."
4
This
Court stated:
The technical effect of Article IX (C) (4) of the Constitution may be seen to be that no
presumption of invalidity arises in respect of exercises of supervisory or regulatory
authority on the part of the Comelec for the Purpose of securing equal opportunity among
candidates for political office, although such supervision or regulation may result in some
limitation of the rights of free speech and free press.
5

MR JUSTICE KAPUNAN dissents. He rejects as inappropriate the test of clear and present
danger for determining the validity of 5.4. Indeed, as has been pointed out in Osmea v.
COMELEC,
6
this test was originally formulated for the criminal law and only later appropriated
for free speech cases. Hence, while it may be useful for determining the validity of laws dealing
with inciting to sedition or incendiary speech, it may not be adequate for such regulations as the
one in question. For such a test is concerned with questions of the gravity and imminence of the
danger as basis for curtailing free speech, which is not the case of 5.4 and similar regulations.
Instead, MR JUSTICE KAPUNAN purports to engage in a form of balancing by "weighing and
balancing the circumstances to determine whether public interest [in free, orderly, honest,
peaceful and credible elections] is served by the regulation of the free enjoyment of the rights"
(page 7). After canvassing the reasons for the prohibition, i.e., to prevent last-minute pressure on
voters, the creation of bandwagon effect to favor candidates, misinformation, the junking" of
weak and "losing" candidates by their parties, and the form of election cheating called "dagdag-
bawas" and invoking the State's power to supervise media of information during the election
period (pages 11-16), the dissenting opinion simply concludes:
Viewed in the light of the legitimate and significant objectives of Section 5.4, It may be
seen that its limiting impact on the rights of free speech and of the press is not unduly
repressive or unreasonable. In Indeed, it is a mere restriction, not an absolute prohibition,
on the publication of election surveys. It is limited in duration; it applies only during the
period when the voters are presumably contemplating whom they should elect and when
they are most susceptible to such unwarranted persuasion. These surveys may be
published thereafter. (Pages 17-18)
The dissent does not, however, show why, on balance, these considerations should outweigh the
value of freedom of expression. Instead, reliance is placed on Art. IX-C, 4. As already stated,
the purpose of Art. IX-C, 4 is to "ensure equal opportunity, time, and space and the right of
reply, including reasonable, equal rates therefor for public information campaigns and forums
among candidates. " Hence the validity of the ban on media advertising. It is noteworthy that
R.A. No. 9006, 14 has lifted the ban and now allows candidates to advertise their candidacies
in print and broadcast media. Indeed, to sustain the ban on the publication of survey results
would sanction the censorship of all speaking by candidates in an election on the ground that the
usual bombasts and hyperbolic claims made during the campaigns can confuse voters and thus
debase the electoral process.
In sum, the dissent has engaged only in a balancing at the margin. This form of ad hoc balancing
predictably results in sustaining the challenged legislation and leaves freedom of speech,
expression, and the press with little protection. For anyone who can bring a plausible justification
forward can easily show a rational connection between the statute and a legitimate governmental
purpose. In contrast, the balancing of interest undertaken by then Justice Castro in Gonzales v.
COMELEC,
7
from which the dissent in this case takes its cue, was a strong one resulting in his
conclusion that , 50-B of R.A. No. 4880, which limited the period of election campaign and
partisan political activity, was an unconstitutional abridgment of freedom of expression.
Nor can the ban on election surveys be justified on the ground that there are other countries - 78,
according to the Solicitor General, while the dissent cites 28 - which similarly impose
restrictions on the publication of election surveys. At best this survey is inconclusive. It is note
worthy that in the United States no restriction on the publication of election survey results exists.
It cannot be argued that this is because the United States is a mature democracy. Neither are
there laws imposing an embargo on survey results, even for a limited period, in other countries.
As pointed out by petitioners, the United Kingdom, Austria, Belgium, Denmark, Estonia,
Finland, Iceland, Ireland, Latvia, Malta, Macedonia, the Netherlands, Norway, Sweden, and
Ukraine, some of which are no older nor more mature than the Philippines in political
development, do not restrict the publication of election survey results.
What test should then be employed to determine the constitutional validity of 5.4? The United
States Supreme Court, through Chief Justice Warren, held in United States v. O 'Brien:
[A] Government regulation is sufficiently justified [1] if it is within the constitutional
power of the Government; [2] if it furthers an important or substantial governmental
interest; [3] if the governmental interest is unrelated to the suppression of free expression;
and [4] if the incidental restriction on alleged First Amendment freedoms [of speech,
expression and press] is no greater than is essential to the furtherance of that interest.
8

This is so far the most influential test for distinguishing content-based from content neutral
regulations and is said to have "become canonical in the review of such laws."
9
is noteworthy
that the O 'Brien test has been applied by this Court in at least two cases.
10

Under this test, even if a law furthers an important or substantial governmental interest, it should
be invalidated if such governmental interest is "not unrelated to the Expression of free
expression." Moreover, even if the purpose is unrelated to the suppression of free speech, the law
should nevertheless be invalidated if the restriction on freedom of expression is greater than is
necessary to achieve the governmental purpose in question.
Our inquiry should accordingly focus on these two considerations as applied to 5.4.
>First. Sec. 5.4 fails to meet criterion [3] of the O 'Brien test because the causal connection of
expression to the asserted governmental interest makes such interest "not related to the
suppression of free expression." By prohibiting the publication of election survey results because
of the possibility that such publication might undermine the integrity of the election, 5.4
actually suppresses a whole class of expression, while allowing the expression of opinion
concerning the same subject matter by newspaper columnists, radio and TV commentators,
armchair theorists, and other opinion takers. In effect, 5.4 shows a bias for a particular subject
matter, if not viewpoint, by referring personal opinion to statistical results. The constitutional
guarantee of freedom of expression means that "the government has no power to restrict
expression because of its message, its ideas, its subject matter, or its content."
11
The inhibition of
speech should be upheld only if the expression falls within one of the few unprotected categories
dealt with in Chaplinsky v. New Hampshire,
12
thus:
There are certain well-defined and narrowly limited classes of speech, the prevention and
punishment of which have never been thought to raise any Constitutional problem. These
include the lewd and obscene, the profane, the libelous, and the insulting or 'fighting'
words - those which by their very utterance inflict injury or tend to incite an immediate
breach of the peace. [S]uch utterances are no essential part of any exposition of ideas,
and are of such slight social value as a step to truth that any benefit that may be derived
from them is clearly outweighed by the social interest in order and morality
Nor is there justification for the prior restraint which 5.4Iays on protected speech. Near v.
Minnesota,
13
it was held:
[The] protection even as to previous restraint is not absolutely unlimited. But the
limitation has been recognized only in exceptional cases. No one would question but
that a government might prevent actual obstruction to its recruiting service or the
publication of the sailing dates transports or the number and location of troops. On
similar grounds, the primary requirements of decency may be enforced against obscene
publications. The security of the community life may be protected against incitements to
acts of violence and overthrow by force of orderly government
Thus, contrary to the claim of the Solicitor General, the prohibition imposed by 5.4 cannot be
justified on the ground that it is only for a limited period and is only incidental. The prohibition
may be for a limited time, but the curtailment of the right of expression is direct, absolute, and
substantial. It constitutes a total suppression of a category of speech and is not made less so
because it is only for a period of fifteen (15) days immediately before a national election and
seven (7) days immediately before a local election. ..
This sufficiently distinguishes 5.4 from R.A. No. 6646, 11(b), which this Court found to be
valid in National Press Club v. COMELEC,
14
and Osmea v. COMELEC.
15
For the ban imposed
by R.A. No. 6646, 11(b) is not only authorized by a specific constitutional provision,
16
but it
also provided an alternative so that, as this Court pointed out in Osmea, there was actually no
ban but only a substitution of media advertisements by the COMELEC space and COMELEC
hour.
Second. Even if the governmental interest sought to be promoted is unrelated to the suppression
of speech and the resulting restriction of free expression is only incidental, 5.4 nonetheless fails
to meet criterion [4] of the O 'Brien test, namely, that the restriction be not greater than is
necessary to further the governmental interest. As already stated, 5.4 aims at the prevention of
last-minute pressure on voters, the creation of bandwagon effect, "junking" of weak or "losing"
candidates, and resort to the form of election cheating called "dagdag-bawas." Praiseworthy as
these aims of the regulation might be, they cannot be attained at the sacrifice of the fundamental
right of expression, when such aim can be more narrowly pursued by punishing unlawful acts,
rather than speech because of apprehension that such speech creates the danger of such evils.
Thus, under the Administrative Code of 1987,
17
the COMELEC is given the power:
To stop any illegal activity, or confiscate, tear down, and stop any unlawful, libelous,
misleading or false election propaganda, after due notice and hearing.
This is surely a less restrictive means than the prohibition contained in 5.4. Pursuant to this
power of the COMELEC, it can confiscate bogus survey results calculated to mislead voters.
Candidates can have their own surveys conducted. No right of reply can be invoked by others.
No principle of equality is involved. It is a free market to which each candidate brings his ideas.
As for the purpose of the law to prevent bandwagon effects, it is doubtful whether the
Government can deal with this natural-enough tendency of some voters. Some voters want to be
identified with the "winners." Some are susceptible to the herd mentality. Can these be
legitimately prohibited by suppressing the publication of survey results, which are a form of
expression? It has been held that "[mere] legislative preferences or beliefs respecting matters of
public convenience may well support regulation directed at other personal activities, but be
insufficient to justify such as diminishes the exercise of rights so vital to the maintenance of
democratic institutions."
18

To summarize then, we hold that 5.4 is invalid because (1) it imposes a prior restraint on the
freedom of expression, (2) it is a direct and total suppression of a category of expression even
though such suppression is only for a limited period, and (3) the governmental interest sought to
be promoted can be achieved by means other than suppression of freedom of expression.
On the other hand, the COMELEC contends that under Art. IX-A, 7 of the Constitution, its
decisions, orders, or resolution may be reviewed by this Court only certiorari. The flaws in this
argument is that it assumes that its Resolution 3636, March 1, 2001 is a "decision, order, or
resolution" within the meaning of Art. IX-A, 7. Indeed, counsel for COMELEC maintain that
Resolution 3636 was "rendered" by the Commission. However, the Resolution does not purport
to adjudicate the right of any party. It is not an exercise by the COMELEC of its adjudicatory
power to settle the claims of parties. To the contrary, Resolution 3636 clearly states that it is
promulgated to implement the provisions of R.A. No. 9006. Hence, there is no basis for
COMELEC's claim that this petition for prohibition is inappropriate. Prohibition has been fund
appropriate for testing the constitutionality of various election laws, rules, and regulations.
19

WHEREFORE, the petition for prohibited GRANTED and 5.4 of R.A. No. 9006 24(h) of
COMELEC Resolution 3636, March 1, 2001, are declared unconstitutional. 1wphi1.nt
SO ORDERED.1wphi1.nt
Davide, JI:, C.J., Vitug, and Gonzaga-Reyes, JJ., concur.
Footnotes:
1207 SCRA 1 (1992).
2 Ayer Productions Pty. Ltd. v. Capulong, 160 SCRA 861, 873 (1988).
3 New York Times v. United States, 403 U.S. 713, 714, 29 L. Ed. 2d 822, 824 (1971).
4 National Press Club v. COMELEC, 207 SCRA 1 (1992); Osmea v. COMELEC, 288 SCRA 447 (1998).
5 National Press Club v. COMELEC, supra at 9.
6 288 SCRA 447 (1998).
727 SCRA 835, 888 (1969) (Castro, J., concurring and dissenting).
8 391 U.S. 367, 377, 20 L. Ed. 2d 672, 680 (1968) (bracketed numbers added).
9 G. GUNTHER & K. SULLIVAN, CONSTITUTIONAL LAW 1217 (13th ed. 1997).
10 Adiong v. COMELEC, 207 SCRA 712 (1992); Osmea v. COMELEC, supra.
11 Police Dept. v. Moshley, 408 U.S. 92, 95, 33 L. Ed. 2d 212, 216 (l972).
12 315 U.S. 568, 571-572, 86 L. Ed. 1031, 1035 (1942). See John Hart Ely, Flag Desecration: A Case Study in the Roles of
Categorization and Balancing in First Amendment Analysis, 88 HARV. L. REV. 1482, 1497 (1975).
13 U.S. 697, 715-16, 75 L. Ed. 1357, 1367 (1931); See also New York Times v. United States, 403 U.S. 7.13. 29 L. Ed. 2d 822 (197l).
14 Supra.
15 Supra.
16 Art. IX-C, 4..
17 Bk. V, Tit. I. Subtit. C, Ch. I, 3 (I) (emphasis added).
18 Schneider v. Irvington, 308 U.S. 147, 161, 84 L. Ed. 155 (1939).
19 See, e.g., Mutuc v. COMELEC, 36 SCRA 228 (1970); Gonzalez v. COMELEC, 27 SCRA 835 (1969).

Republic of the Philippines
SUPREME COURT
SECOND DIVISION
G.R. No. 128959 September 30, 2005
CIRIACO BOY GUINGGUING, Petitioners,
vs.
THE HONORABLE COURT OF APPEALS and THE PEOPLE OF THE PHILIPPINES,
Respondents.
D E C I S I O N
Tinga, J .:
The liberty of the press is indeed essential. Whoever would overthrow the liberty of a nation
must begin by subduing the freeness of speech.
- Benjamin Franklin
1

The right of free expression stands as a hallmark of the modern democratic and humane state.
2

Not only does it assure a persons right to say freely what is thought freely, it likewise evinces
the politys freedom from psychological insecurity. This fundamental liberty is translated into
the constitutional guarantee that no law shall be passed abridging the freedom of speech, of
expression, or the press,
3
contained in the Bill of Rights,
4
which itself obtains a position of
primacy in our fundamental law.
5

Criminal libel laws present a special problem. At face value, they might strike as laws passed
that abridge the freedom of speech, expression, or the press. Whatever seeming conflict between
these two precepts has long been judicially resolved with the doctrine that libelous speech does
not fall within the ambit of constitutional protection. Nonetheless, in ascertaining what class of
materials may be considered as libelous, the freedom of expression clause, its purposes as well as
the evils it guards against, warrant primordial consideration and application.
Before this Court is a Petition for Review under Rule 45 of the 1997 Rules of Civil Procedure,
assailing the Decision
6
and the Resolution
7
of the Court of Appeals (CA) dated 29 July 1996 and
3 October 1996, respectively, in CA-G.R. CR No. 16413. The CA affirmed with modification
8

the decision
9
rendered by the Regional Trial Court (RTC), Branch 7 of Cebu City, finding
Ciriaco "Boy" Guingguing (petitioner) and Segundo Lim (Lim) guilty beyond reasonable doubt
of the crime of libel. This petition for certiorari was filed by petitioner alone, hence the verdict of
guilt with respect to Lim had already become final and executory.
The antecedent facts follow.
This case originated from a criminal complaint for libel filed by Cirse "Choy" Torralba
(complainant) against Lim and petitioner under Criminal Case No. CBU-26582. Complainant
was a broadcast journalist who handled two programs for radio stations DYLA and DYFX. The
radio stations were based in Cebu City but the programs were aired over a large portion of the
Visayas and Mindanao.
10

On 13 October 1991, Lim caused the publication of records of criminal cases filed against
complainant as well as photographs
11
of the latter being arrested. These were published by means
of a one-page advertisement paid for by Lim in the Sunday Post, a weekly publication edited and
published by petitioner. The Sunday Post was circulated in the province of Bohol, as well as in
the Visayas and Mindanao.
12
The full text of the advertisement which was the basis of the
information
13
for libel reads:
REQUEST FOR PUBLIC SERVICE
ATTN: RADIOMAN CHOY TORRALBA, STATION DYFX, CEBU CITY
TEXT: IN THE INTEREST OF PUBLIC SERVICE, PLEASE DO ENLIGHTEN ME
REGARDING THE DISPOSITION OF THE FOLLOWING WHICH APPEAR HEREUNDER.
THE CASES WERE FOUND IN THE BLOTTER OF THE CEBU CITY POLICE
DEPARTMENT. PLEASE DO TELL ME THE STATUS OF THOSE CASES, WHETHER
THEY HAVE BEEN DISMISSED, ARCHIVED AND/OR PENDING.
Name: CIRSE CHOY TORRALBA
CRIM. CASE NO. R-43035
FOR: MALICIOUS MISCHIEF
DATE FILED: MAY 10, 1979
COMPLAINANTS: DR. JOVENAL ALMENDRAS
ADDRESS: ALMENDRAS ST., MABOLO, CEBU CITY
MR. VICTORIANO VELOSO
ADDRESS: 117 HIPODROMO, MABOLO, CEBU CITY
DISPOSITION: PENDING ARREST
CRIM. CASE NO. 17984-R
FOR : ESTAFA
DATE FILED: July 12, 1982
COMPLAINANTS: MR. PIO Y. GO AND
MRS. ROSALITA R. ROLDAN
ADDRESS: c/o 2nd Floor Martinez Bldg.
(ALPHA MKTG., INC.),
Jones Ave., Cebu City
DISPOSITION: PENDING ARREST
CRIM. CASE NO. 14843-R
FOR: SERIOUS PHYSICAL INJURIES
DATED FILED: APRIL 28, 1980
COMPLAINANTS:
ADDRESS:
DISPOSITION: PROVISIONALLY DISMISSED
DATED: APRIL 14, 1991
NOT TOO LONG AGO, I RECEIVED THE FOLLOWING NEWSPAPER CLIPPING
COURTESY OF A CEBU CITY CONCERNED CITIZEN. THE CAPTION STORY BELOW
TELLS ALL. IF YOU KNOW WHO THE BUSINESSMAN ALLUDED TO IN THE
CAPTION, PLEASE DO TELL ME.
[Thereafter followed by a picture of a person with face blotted out being arrested and an inset
picture of the same person with face likewise blotted out, being detained, these pictures being
followed by the caption, which states]:
ESTAFA CASE. Members of Cebu City Police Intelligence group under Lt. Col. Eduardo
Ricardo arrested last night a businessman (extreme left) for his alleged involvement in estafa
case filed by APOCEMCO. Left photo a member of the team serves the warrant of arrest order
issued by CEBU RTC Judge German Lee.
ANOTHER CLIPPING WHICH IDENTIFIED BUSINESSMAN CHOY TORRALBA TO
HAVE BEEN SERVED A WARRANT OF ARREST IN A (P)LUSH UPTOWN HOTEL IN
CEBU CITY BY OPERATIVES OF THE CEBU CITY POLICE. NOW TELL ME, IS IT YOU
THE SAME CHOY TORRALBA REFERRED TO IN THE CAPTION STORY. IF INDEED
YOU ARE THE ONE AND THE SAME WHO APPEARED IN THE PICTURE BELOW,
PLEASE TO (sic) INFORM ME.:
[Thereafter followed by another picture, this time, the face of the person being arrested is clearly
shown to be that of Cirse Choy Torralba, followed by this caption.]
SERENE EVENING: The otherwise serene evening enjoyed by businessman Choy Torralba
(left) in a plush uptown Hotel was disturbed by operatives (right) of the Cebu City Police under
P/Lt/Col. Eduardo Ricardo just to serve on the former a warrant of arrest issued by Cebu RTC
Judge German Lee relative to the suit filed by Apocemco against the businessman (PR)
THANK YOU, AND MY BEST REGARDS.
PAID SPACE BY: (sgd.) SEGUNDO LIM
14

Asserting inter alia that he had been acquitted and the case/s referred to had already been settled,
complainant sought Lim and petitioners conviction for libel. At the same time, he asked for
moral, compensatory and exemplary damages as well as attorneys fees because the publication
allegedly placed him in public contempt and ridicule. It was claimed that the publication was
also designed to degrade and malign his person and destroy him as a broadcast journalist.
15

Lim, in his defense, claimed that complainant was allegedly making scurrilous attacks against
him and his family over the airwaves. Since Lim had no access to radio time, he opted for paid
advertisements via newspaper to answer the attacks,
16
as a measure of self-defense. Lim also
argued that complainant, as a media man and member of the fourth estate, occupied a position
almost similar to a public functionary and should not be onion-skinned and be able to absorb the
thrust of public scrutiny.
17

After trial, the lower court concluded that the publication complained of was indeed libelous.
18

Declaring that malice is the most important element of libel, it held that the same was present in
the case because every defamatory publication prima facie implies malice on the part of the
author and publisher towards the person subject thereof.
19
The lower court gave no credence to
Lim and petitioners argument that the publication was resorted to in self-defense.
The trial court likewise disregarded the insulative effects of complainants status as a mediaman
to the prosecution of the criminal libel charge. The publication of a calumny even against public
officers or candidates for public office, according to the trial court, is an offense most dangerous
to the people. It deserves punishment because the latter may be deceived thereby and reject the
best and deserving citizens to their great injury.
20
It further held that a private reputation is as
constitutionally protected as the enjoyment of life, liberty and property such that anybody who
attacks a persons reputation by slanderous words or libelous publications is obliged to make full
compensation for the damage done.
21

On appeal, the CA modified the penalty imposed but it affirmed the RTCs finding of guilt. The
CA likewise held that self-defense was unavailing as a justification since the defendant should
not go beyond explaining what was previously said of him. The appellate court asserted that the
purpose of self-defense in libel is to repair, minimize or remove the effect of the damage caused
to him but it does not license the defendant to utter blow-for-blow scurrilous language in return
for what he received. Once the defendant hits back with equal or more scurrilous remarks
unnecessary for his defense, the retaliation becomes an independent act for which he may be
liable.
22
For this reason, the CA refused to sanction the invocation of self-defense.
Petitioner now comes before this Court praying for the reversal of the judgment against him.
Petitioner contends inter alia that as editor-publisher of the Sunday Post and as a member of the
fourth estate, the lower courts finding of guilt against him constitutes an infringement of his
constitutional right to freedom of speech and of the press.
23
Petitioner likewise faults the lower
courts failure to appreciate their invocation of self-defense.
For resolution of this Court, therefore, is the fundamental question of whether the publication
subject matter of the instant case is indeed libelous. While the findings and conclusions of the
lower courts are rigid in their application of the strict letter of the law, the issue seems more
complex than it appears at first blush. The Court is compelled to delve deeper into the issue
considering that libel principles formulated at one time or another have waxed and waned
through the years, in the constant ebb and flow of judicial review.
24
A change in the factual
milieu of a case is apt to evoke a change in the judgment applicable. Viewed in this context, the
petition has merit and the judgment appealed from must be reversed.
Criminal Libel vis--vis the
Guarantee of Free Speech
Under our law, criminal libel is defined as a public and malicious imputation of a crime, or of a
vice or defect, real or imaginary, or any act, omission, condition, status, or circumstance tending
to cause the dishonor, discredit, or contempt of a natural or juridical person, or to blacken the
memory of one who is dead.
25
Thus, the elements of libel are: (a) imputation of a discreditable
act or condition to another; (b) publication of the imputation; (c) identity of the person defamed;
and, (d) existence of malice.
26

Originally, the truth of a defamatory imputation was not considered a defense in the prosecution
for libel. In the landmark opinion of England's Star Chamber in the Libelis Famosis case in 1603,
two major propositions in the prosecution of defamatory remarks were established: first, that
libel against a public person is a greater offense than one directed against an ordinary man, and
second, that it is immaterial that the libel be true.
27
These propositions were due to the fact that
the law of defamatory libel was developed under the common law to help government protect
itself from criticism and to provide an outlet for individuals to defend their honor and reputation
so they would not resort to taking the law into their own hands.
28

Our understanding of criminal libel changed in 1735 with the trial and acquittal of John Peter
Zenger for seditious libel in the then English colony of New York. Zenger, the publisher of the
New-York Weekly Journal, had been charged with seditious libel, for his papers consistent
attacks against Colonel William Cosby, the Royal Governor of New York. In his defense,
Zengers counsel, Andrew Hamilton, argued that the criticisms against Governor Cosby were
"the right of every free-born subject to make when the matters so published can be supported
with truth."
29
The jury, by acquitting Zenger, acknowledged albeit unofficially the defense of
truth in a libel action. The Zenger case also laid to rest the idea that public officials were immune
from criticism.
30

The Zenger case is crucial, not only to the evolution of the doctrine of criminal libel, but also to
the emergence of the American democratic ideal. It has been characterized as the first landmark
in the tradition of a free press, then a somewhat radical notion that eventually evolved into the
First Amendment
31
in the American Bill of Rights and also proved an essential weapon in the
war of words that led into the American War for Independence.
32

Yet even in the young American state, the government paid less than ideal fealty to the
proposition that Congress shall pass no law abridging the freedom of speech. The notorious
Alien and Sedition Acts of 1798
33
made it a crime for any person who, by writing, speaking or
printing, should threaten an officer of the government with damage to his character, person, or
estate. The law was passed at the insistence of President John Adams, whose Federalist Party had
held a majority in Congress, and who had faced persistent criticism from political opponents
belonging to the Jeffersonian Republican Party. As a result, at least twenty-five people, mostly
Jeffersonian Republican editors, were arrested under the law. The Acts were never challenged
before the U.S. Supreme Court, but they were not subsequently renewed upon their expiration.
34

The massive unpopularity of the Alien and Sedition Acts contributed to the electoral defeat of
President Adams in 1800. In his stead was elected Thomas Jefferson, a man who once famously
opined, "Were it left to me to decide whether we should have a government without newspapers,
or newspapers without a government, I should not hesitate a moment to prefer the latter."
35

There is an important observation to be made about the quality of the American press during the
time of Jefferson, one that is crucial to the contemporaneous understanding of the "freedom of
expression" clause at the time of its inception. The tenor of the public debate during that era was
hardly polite. About the impending election of Jefferson, the New England Courant predicted
that "murder, robbery, rape and adultery and incest will be openly taught and practiced, the air
will be rent with cries of distress, the soil soaked with blood and the nation black with crimes."
36

After Jefferson was elected, rumors spread about his dalliances with his slave, Sally Hemmings,
adding more fodder to his critics. The thirteen-year old William Cullen Bryant, who would grow
up to become a prominent poet and abolitionist, published the following doggerel: "Thy
countrys ruin and thy countrys shame!/ Go wretch! Resign the Presidential chair/Disclose thy
secret measures foul and fair/ Go scan, philosophist, thy [Sallys] charms/And sink supinely in
her sable arms."
37

Any comprehensive history of the American media during the first few decades of the existence
of the United States would reveal a similar preference in the media for such "mad-dog
rhetoric."
38
These observations are important in light of the misconception that freedom of
expression extends only to polite, temperate, or reasoned expression. The assailed decision of the
RTC betrays such a perception, when it opined that the subject advertisement was libelous
"because by the language used, it had passed from the bounds of playful gist, and intensive
criticism into the region of scurrilous calumniation and intemperate personalities."
39
Evidently,
the First Amendment was designed to protect expression even at its most rambunctious and
vitriolic form as it had prevalently taken during the time the clause was enacted.
Nonetheless, juristic enforcement of the guarantee of freedom of expression was not
demonstrably prominent in the United States during most of the 1800s. Notably, the prevalent
philosophy then was that the Bill of Rights did not apply to the different federal states.
40
When
the US Supreme Court was confronted with substantial First Amendment issues in the late 1800s
and early 1900s, it responded by repeatedly declining to protect free speech.
41
The subsequent
enactment of the due process clause in the Fourteenth Amendment eventually allowed the U.S.
Supreme Court to accept, in Gitlow v. New York
42
that the First Amendment was protected from
impairment by the States, thus allowing for a more vigorous enforcement of the freedom of
expression clause in the twentieth century.
43

The most important American ruling on libel, arguably from which modern libel law emerged
44

was New York Times v. Sullivan,
45
penned by the liberal lion Justice William Brennan, Jr. In
ascertaining whether the New York Times was liable for damages in a libel action, the U.S.
Supreme Court had acknowledged that the writing in question, an advertisement published in the
paper
46
extolling the virtues of the civil rights movement, had contained several factual
inaccuracies in describing actions taken by Montgomery, Alabama officials on civil rights
protesters.
47
The Court even concluded that at most, there was a finding against the New York
Times of negligence in failing to discover the misstatements against the news stories in the
newspapers own files.
48

Nonetheless, the U.S. Supreme Court squarely assessed the import of the First Amendment
freedoms in the prosecution of criminal libel. Famously, the precedent was established that a
public official may not successfully sue for libel unless the official can prove actual malice,
which was defined as "with knowledge that the statement was false or with reckless disregard as
to
whether or not it was true."
49
By this standard, it was concluded that factual errors aside, actual
malice was not proven to sustain the convictions for libel. Moreover, leeway was allowed even if
the challenged statements were factually erroneous if honestly made.
50

Shortly after New York Times was promulgated, its principles were extended by the U.S.
Supreme Court to criminal libel actions in Garrison v. Louisiana.
51
The decision, also penned by
Justice Brennan, commented on the marked decline in the common resort to criminal libel
actions:
Where criticism of public officials is concerned, we see no merit in the argument that criminal
libel statutes serve interests distinct from those secured by civil libel laws, and therefore should
not be subject to the same limitations. At common law, truth was no defense to criminal libel.
Although the victim of a true but defamatory publication might not have been unjustly damaged
in reputation by the libel, the speaker was still punishable since the remedy was designed to avert
the possibility that the utterance would provoke an enraged victim to a breach of peace . . .
[However], preference for the civil remedy, which enabled the frustrated victim to trade
chivalrous satisfaction for damages, has substantially eroded the breach of peace justification for
criminal libel laws. In fact, in earlier, more violent times, the civil remedy had virtually pre-
empted the field of defamation; except as a weapon against seditious libel, the criminal
prosecution fell into virtual desuetude.
52

Then, the Court proceeded to consider whether the historical limitation of the defense of truth in
criminal libel to utterances published "with good motives and for justifiable ends:"
53

. . . The "good motives" restriction incorporated in many state constitutions and statutes to reflect
Alexander Hamiltons unsuccessfully urged formula in People v. Croswell, liberalized the
common-law rule denying any defense for truth. . . . In any event, where the criticism is of
public officials and their conduct of public business, the interest in private reputation is
overborne by the larger public interest, secured by the Constitution, in the dissemination of
truth. . . .
Moreover, even where the utterance is false, the great principles of the Constitution which
secure freedom of expression in this area preclude attaching adverse consequences to any
except the knowing or reckless falsehood. Debate on public issues will not be uninhibited if the
speaker must run the risk that it will be proved in court that he spoke out of hatred; even if he did
speak out of hatred, utterances honestly believed contribute to the free interchange of ideas and
the ascertainment of truth. . . .
54

Lest the impression be laid that criminal libel law was rendered extinct in regards to public
officials, the Court made this important qualification in Garrison:
The use of calculated falsehood, however, would put a different cast on the constitutional
question. Although honest utterance, even if inaccurate, may further the fruitful exercise of the
right of free speech, it does not follow that the lie, knowingly and deliberately published about a
public official, should enjoy a like immunity. At the time the First Amendment was adopted,
as today, there were those unscrupulous enough and skillful enough to use the deliberate or
reckless falsehood as an effective political tool to unseat the public servant or even topple
an administration. That speech is used as a tool for political ends does not automatically
bring it under the protective mantle of the Constitution. For the use of the known lie as a tool
is at once with odds with the premises of democratic government and with the orderly manner in
which economic, social, or political change is to be effected.
55

Another ruling crucial to the evolution of our understanding was Curtis Publishing Co. v. Butts,
56

which expanded the actual malice test to cover not just public officials, but also public figures.
The U.S. Supreme Court, speaking through Chief Justice Warren, stated that:
[D]ifferentiation between public figures and public officials and adoption of separate
standards of proof for each have no basis in law, logic, or First Amendment policy. Increasingly
in this country, the distinctions between governmental and private sectors are blurred. . . . [I]t is
plain that although they are not subject to the restraints of the political process, public figures,
like public officials, often play an influential role in ordering society. And surely as a class
these public figures have as ready access as public officials to mass media of communication,
both to influence policy and to counter criticism of their views and activities. Our citizenry has a
legitimate and substantial interest in the conduct of such persons, and freedom of the press to
engage in uninhibited debate about their involvement in public issues and events is as crucial as
it is in the case of "public officials." The fact that they are not amenable to the restraints of the
political process only underscores the legitimate and substantial nature of the interest, since it
means that public opinion may be the only instrument by which society can attempt to influence
their conduct.
57

The public figure concept was later qualified in the case of Gertz v. Welch, Inc.,
58
which held
that a private person should be able to recover damages without meeting the New York Times
standard.
59
In doing so, the US Supreme Court recognized the legitimate state interest in
compensating private individuals for wrongful injury to reputation.
60

The prominent American legal commentator, Cass Sunstein, has summarized the current
American trend in libel law as follows:
[C]onsider the law of libel. Here we have an explicit system of free speech tiers. To simplify a
complex body of law: In the highest, most-speech protective tier is libelous speech directed
against a "public figure". Government can allow libel plaintiffs to recover damages as a result of
such speech if and only if the speaker had "actual malice"that is, the speaker must have known
that the speech was false, or he must have been recklessly indifferent to its truth or falsity. This
standard means that the speaker is protected against libel suits unless he knew that he was lying
or he was truly foolish to think that he was telling the truth. A person counts as a public figure
(1) if he is a "public official" in the sense that he works for the government, (2) if, while not
employed by government, he otherwise has pervasive fame or notoriety in the community, or (3)
if he has thrust himself into some particular controversy in order to influence its resolution. Thus,
for example, Jerry Falwell is a public figure and, as a famous case holds, he is barred from
recovering against a magazine that portrays him as having had sex with his mother. Movie stars
and famous athletes also qualify as public figures. False speech directed against public figures is
thus protected from libel actions except in quite extreme circumstances.
61

It may also be noted that this heightened degree of protection afforded to free expression to
comment on public figures or matters against criminal prosecution for libel has also gained a
foothold in Europe. Article 10 of the European Convention on Human Rights and Fundamental
Freedoms provides that "[e]veryone has the right to freedom of expression. This right shall
include freedom to hold opinions and to receive and impart information and ideas without
interference by public authority and regardless of frontiers."
62
The European Court of Human
Rights applied this provision in Lingens v. Austria,
63
in ruling that the Republic of Austria was
liable to pay monetary damages "as just satisfaction" to a journalist who was found guilty for
defamation under the Austrian Criminal Code.
64
The European Court noted:
[Article 10] is applicable not only to information or ideas that are favourably received or
regarded as inoffensive or as a matter of indifference, but also to those that offend, shock or
disturb. Such are the demands of that pluralism, tolerance and broadmindedness without which
there is no democratic society. . . . These principles are of particular importance as far as the
press is concerned. Whilst the press must not overstep the bounds set, inter alia, for the
protection of the reputation of others, it is nevertheless incumbent on it to impart information
and ideas on political issues just as on those in other areas of public interest. Not only does the
press have the task of imparting such information and ideas: the public also has the right to
receive them. . . .
65

The international trend in diminishing the scope, if not the viability, of criminal libel
prosecutions is clear. Most pertinently, it is also evident in our own acceptance in this
jurisdiction of the principles applied by the U.S. Supreme Court in cases such as New York Times
and Garrison.
Particularly, this Court has accepted the proposition that the actual malice standard governs the
prosecution of criminal libel cases concerning public figures. In Adiong v. COMELEC,
66
the
Court cited New York Times in noting that "[w]e 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."
67
The
Court was even more explicit in its affirmation of New York Times in Vasquez v. Court of
Appeals.
68
Speaking through Justice Mendoza:
For that matter, even if the defamatory statement is false, no liability can attach if it relates to
official conduct, unless the public official concerned proves that the statement was made with
actual malice that is, with knowledge that it was false or with reckless disregard of whether it
was false or not. This is the gist of the ruling in the landmark case of New York Times v.
Sullivan, which this Court has cited with approval in several of its own decisions.[
69
] This is the
rule of "actual malice." In this case, the prosecution failed to prove not only that the charges
made by petitioner were false but also that petitioner made them with knowledge of their falsity
or with reckless disregard of whether they were false or not.
70

The Court has likewise extended the "actual malice" rule to apply not only to public officials, but
also to public
figures. In Ayer Productions Pty. Ltd. v. Capulong,
71
the Court cited with approval the following
definition of a public figure propounded by an American textbook on torts:
A public figure has been defined as a person who, by his accomplishments, fame, or mode of
living, or by adopting a profession or calling which gives the public a legitimate interest in his
doings, his affairs, and his character, has become a 'public personage.' He is, in other words, a
celebrity. Obviously to be included in this category are those who have achieved some degree of
reputation by appearing before the public, as in the case of an actor, a professional baseball
player, a pugilist, or any other entertainer. The list is, however, broader than this. It includes
public officers, famous inventors and explorers, war heroes and even ordinary soldiers, an infant
prodigy, and no less a personage than the Grand Exalted Ruler of a lodge. It includes, in short,
anyone who has arrived at a position where public attention is focused upon him as a person.
72

Ayer did not involve a prosecution for libel, but a complaint for injunction on the filming of a
dramatized account of the 1986 EDSA Revolution. Nonetheless, its definition of a public figure
is important to this case, as it clearly establishes that even non-governmental officials are
considered public figures. In fact, the definition propounded in Ayer was expressly applied by the
Court in Borjal v. Court of Appeals
73
in ascertaining whether the complainant therein was a
public figure, thus warranting the application of the actual malice test.
74

We considered the following proposition as settled in this jurisdiction: that in order to justify a
conviction for criminal libel against a public figure, it must be established beyond reasonable
doubt that the libelous statements were made or published with actual malice, meaning
knowledge that the statement was false or with reckless disregard as to whether or not it was
true. As applied to the present petition, there are two main determinants: whether complainant is
a public figure, and assuming that he is, whether the publication of the subject advertisement was
made with actual malice. Sadly, the RTC and the CA failed to duly consider both propositions.
Complainant Is a Public Figure
There should be little controversy in holding that complainant is a public figure. He is a
broadcast journalist hosting two radio programs aired over a large portion of the Visayas and
Mindanao. Measured against the definition provided in Ayer, complainant would definitely
qualify as a public figure. Complainant even asserted before the trial court that his broadcast was
listened to widely, hence, his notoriety is unquestionable.
Complainants standing as a public figure is further militated by the contextual circumstances of
the case. The newspaper in question, the Sunday Post, is particularly in circulation in the areas
where complainants broadcasts were aired. Certainly, it cannot be denied that the target
audience of the newspaper were the same persons who may have listened regularly to the
complainants broadcast. Even if the sphere of complainants renown is limited in geography, it
is in the same plane as the circulation of the offending newspaper. The extent of complainants
ability to influence hearts and minds through his broadcasts need not be established, only that he
has such capacity and willingness to exert an influence. Complainants volition to practice the
radio broadcasting profession necessarily thrusts him in the public sphere.
Actual Malice Not Proven
As it has been established that complainant was a public figure, it was incumbent upon the
prosecution to prove actual malice on the part of Lim and petitioner when the latter published the
article subject matter of the complaint. Set otherwise, the prosecution must have established
beyond reasonable doubt that the defendants knew the statements in the advertisement was false
or nonetheless proceeded with reckless disregard as to publish it whether or not it was true.
It should thus proceed that if the statements made against the public figure are essentially true,
then no conviction for libel can be had. Any statement that does not contain a provably false
factual connotation will receive full constitutional protection.
75
An examination of the records of
this case showed that the prcis of information contained in the questioned publication were
actually true. Thus, complainant himself testified:
Q But is it true that these cases published in Exhibit "F-1" are actually existing or previous
cases?
A At the time of the publication those cases were terminated, long terminated.
Q But is it true that in fact, there was a criminal case No. R-43035 for Malicious Mischief filed
May 10, 1979 against you?
FISCAL ROCAMORA:
Your Honor, I believe the witness did not understand the question.
COURT: (to Stenographer)
Read back the question.
Q Is it true that in fact, there was a criminal case No. R-43035 for Malicious Mischief filed May
10, 1979, against you?
A I really do not know about that accusation.
COURT:
Proceed.
ATTY. FLORIDO:
Q When you came across the publication, did you check if in fact there was a case docketed with
that number against you? Did you check?
A I did not.
Q: Now, is it true that there was a criminal case against you for Estafa docketed as criminal case
No. 17984-R filed July 21, 1982 where the complaints were Pio Go and Mrs. Rosalita Roldan?
A: Yes.
Q: Is it true that there was also a criminal case filed against you numbered 14843-R for Serious
Physical Injuries, date filed April 28, 1980 which in this publication appears provisionally
dismissed April 14, 1991?
A: That case, I do not have any idea about it.
Q: Did you inquire from the appropriate Court when you received a copy of this to find out if it
is true that these cases were filed against you?
A: As far as I know, in fact, I never received any subpoena or anything about this case.
Q: Yes, but did you upon receipt of Exhibit "F-1", did you inquire from the Court whether it is
true that these cases had been recorded as filed against you?
A: Well, as far as I know like the Estafa case, I was already long been acquitted in that case.
Q: You did not answer the question. Will you please answer.
COURT: (to witness)
Q: The question is, did you inquire from the Court concerned whether that case exist?
A: Yes.
COURT:
Proceed.
ATTY. FLORIDO:
Q: And you discovered that they were true that this was provisionally dismissed with reference
to 14843-R for Serious Physical Injuries. You made inquiries?
A: Yes.
Q: And you also know that Dr. Jovenal Almendras your godfather in the wedding had also filed a
case of Malicious Mischief against you?
A: I know but that was in the past.
Q: Yes, I know that that was in the past, but that is true?
A: Yes.
Q: So, there is nothing false so far as Exhibit "F-1"?
A: There is no question about that but that is malicious.
Q: Let me see. On the lefthand side of the bottom it says. "Not too long ago, I received the
following newspaper clippings courtesy of the Cebu City concerned citizens. The caption story
below tells all. If you know who the businessman alluded to in the caption. Please do tells me
and then, there is a photograph a reprint from Sun Star publication. Do you confirm that?
76

x x x
Q: But is it true that you were arrested per this photograph and I quote. "In a plush uptown hotel
was disturbed by operatives (right) of the Cebu City Police under Police Lieutenant Col. Eduardo
Ricardo just to serve on the former a warrant of arrest issued by the Cebu RTC Judge German
Lee relative to the suit filed by Apocemco against a businessman". Is it true that you were
arrested?
A: Yes.
Q: So this photograph is genuine photograph?
A: Yes.
Q: And you claimed that you have a good reputation and that good reputation had been soiled by
the accused in this case. Let me ask you concerning your reputation then. Is it not a fact that
aside from this record of criminal cases appearing in Exhibit "F-1", you have also been at one
time or another been accused of several other criminal cases both in and out of the City of Cebu?
A: Yes, before, 10 years, 15 years ago.
Q: And in the Municipal Trial Court in Cities alone in Cebu City, you have the following per
certificate which we marked as Exhibit "2". Criminal Case Nos. 14843-R for Serious Physical
Injuries, Torralba Cirse "Choy"; 17984-R, for Estafa; Torralba Cirse R. R-43035 for Malicious
Mischief. You will confirm that the same Cirse Torralba and/or Choy Torralba and/or Cirse R.
Torralba mentioned in this certificate refer to your person?
A: Yes.
Q: Now, aside from these criminal cases in the Municipal Trial Courts in Cities, in Cebu City,
you also have 1, 2, 3, 4, 5, 6, 7, 8, 9 criminal cases before the Regional Trial Court of Cebu per
certificate that I marked as Exhibit "3". Is that correct?
A: Yes, but all those cases have already been either acquitted or dismissed. I will present the
certification.
Q: Specifically, these cases has something to do with your character. Let me count 1, 2, 3, 4, 5
cases for Estafa, the 6th case for issuance of a bouncing check, the 7th case is a case for issuance
of a bouncing check; and the 9th is also for issuance of a bouncing check. You will confirm that?
. . . .
COURT: (to witness)
Q: What happened to those cases?
A: I was acquitted your Honor. I was acquitted in all those cases, some are dismissed, and
fortunately, your Honor, I do not have any conviction.
77

From the foregoing, it is clear that there was nothing untruthful about what was published in the
Sunday Post. The criminal cases listed in the advertisement as pending against the complainant
had indeed been filed. It may have been inconvenient for the complainant that these matters may
have been divulged, yet such information hardly falls within any realm of privacy complainant
could invoke, since the pendency of these criminal charges are actually matters of public record.
The information, moreover, went into the very character and integrity of complainant to which
his listening public has a very legitimate interest. Complainant hosts a public affairs program,
one which he himself claimed was imbued with public character since it deals with "corruptions
in government, corruptions by public officials, irregularities in government in comrades."
78
By
entering into this line of work, complainant in effect gave the public a legitimate interest in his
life. He likewise gave them a stake in finding out if he himself had the integrity and character to
have the right to criticize others for their conduct.
In convicting the defendants, the lower courts paid particular heed to Article 354 of the Revised
Penal Code, which provides that "every defamatory imputation is presumed to be malicious,
even if it be true, if no good intention and justifiable motive for making it is shown". We hold
that this provision, as applied to public figures complaining of criminal libel, must be construed
in light of the constitutional guarantee of free expression, and this Courts precedents upholding
the standard of actual malice with the necessary implication that a statement regarding a public
figure if true is not libelous. The provision itself allows for such leeway, accepting as a defense
"good intention and justifiable motive." The exercise of free expression, and its concordant
assurance of commentary on public affairs and public figures, certainly qualify as "justifiable
motive," if not "good intention."
It cannot be helped if the commentary protected by the Bill of Rights is accompanied by
excessive color or innuendo. Certainly, persons in possession of truthful facts are not obliged to
present the same in bland fashion. These true facts may be utilized to convince the listener/reader
against a particular position, or to even dissuade one against accepting the credibility of a public
figure. Dry facts, by themselves, are hardly stirring. It is the commentary thereupon that usually
animates the discourse which is encouraged by the Constitution as integral to the democratic way
of life. This is replete in many components of our daily life, such as political addresses, televised
debates, and even commercial advertisements.
As adverted earlier, the guarantee of free speech was enacted to protect not only polite speech,
but even expression in its most unsophisticated form. Criminal libel stands as a necessary
qualification to any absolutist interpretation of the free speech clause, if only because it prevents
the proliferation of untruths which if unrefuted,
would gain an undue influence in the public discourse. But in order to safeguard against fears
that the public debate might be muted due to the reckless enforcement of libel laws, truth has
been sanctioned as a defense, much more in the case when the statements in question address
public issues or involve public figures.
In ascertaining the degree of falsity that would constitute actual malice, the Court, citing New
York Times, has even gone so far as acknowledging:
Even assuming that the contents of the articles are false, mere error, inaccuracy or even falsity
alone does not prove actual malice. Errors or misstatements are inevitable in any scheme of truly
free expression and debate. Consistent with good faith and reasonable care, the press should not
be held to account, to a point of suppression, for honest mistakes or imperfections in the choice
of language. There must be some room for misstatement of fact as well as for misjudgment. Only
by giving them much leeway and tolerance can they courageously and effectively function as
critical agencies in our democracy. In Bulletin Publishing Corp. v. Noel we held
A newspaper especially one national in reach and coverage, should be free to report on events
and developments in which the public has a legitimate interest with minimum fear of being
hauled to court by one group or another on criminal or civil charges for libel, so long as the
newspaper respects and keeps within the standards of morality and civility prevailing within the
general community.
To avoid the self-censorship that would necessarily accompany strict liability for erroneous
statements, rules governing liability for injury to reputation are required to allow an adequate
margin of error by protecting some inaccuracies. It is for the same reason that the New York
Times doctrine requires that liability for defamation of a public official or public figure may not
be imposed in the absence of proof of "actual malice" on the part of the person making the
libelous statement.
79

To this end, the publication of the subject advertisement by petitioner and Lim cannot be deemed
by this Court to have been done with actual malice. Aside from the fact that the information
contained in said publication was true, the intention to let the public know the character of their
radio commentator can at best be subsumed under the mantle of having been done with good
motives and for justifiable ends. The advertisement in question falls squarely within the bounds
of constitutionally protected expression under Section 4, Article III, and thus, acquittal is
mandated.
WHEREFORE, premises considered, the petition is GRANTED. The assailed Decision and
Resolution of the Court of Appeals dated 29 July 1996 and 3 October 1996, respectively, in CA-
G.R. CR No. 16413 are REVERSED and SET ASIDE insofar as they affect petitioner. The
Decision of the Regional Trial Court of Cebu City, promulgated on 17 May 1994, as regards
petitioner is likewise REVERSED and SET ASIDE and petitioner is ACQUITTED of the charge
of libel therein. No costs.
SO ORDERED.
DANTE O. TINGA
Associate Justice
WE CONCUR:
REYNATO S. PUNO
Associate Justice
Chairman
MA. ALICIA AUSTRIA-MARTINEZ, ROMEO J. CALLEJO, SR.
Associate Justice Associate Justice
MINITA V. CHICO-NAZARIO
Associate Justice
ATTESTATION
I attest that the conclusions in the above Decision had been in consultation before the case was
assigned to the writer of the opinion of the Courts Division.
REYNATO S. PUNO
Associate Justice
Chairman, Second Division
CERTIFICATION
Pursuant to Section 13, Article VIII of the Constitution, and the Division Chairmans Attestation,
it is hereby certified that the conclusions in the above Decision had been reached in consultation
before the case was assigned to the writer of the opinion of the Courts Division.
HILARIO G. DAVIDE, JR.
Chief Justice

Footnotes
1
Published under the pseudonym "Silence Dogood" in the New England Courant (July 2
to 9, 1722 edition).
2
As a matter of fact, the principle is enshrined in Article 19 of the United Nations
Declaration of Human Rights: "Everyone has the right to freedom of opinion and
expression; this right includes freedom to hold opinions without interference and to seek,
receive and impart information and ideas through any media and regardless of frontiers."
3
See Section 4, Article III, Constitution.
4
Article III, Constitution.
5
See People v. Tudtud, G.R. No. 144037, 26 September 2003, 412 SCRA 142, 168; Teves
v. Sandiganbayan, G.R. No. 154182, 17 December 2004, 447 SCRA 309, 335, J. Tinga,
dissenting.
6
Penned by Associate Justice Eduardo G. Montenegro, concurred in by Associate Justices
Emeterio C. Cui and Jose C. De La Rama.
7
Rollo, p. 27.
8
The Court of Appeals lowered the penalty imposed to TWO (2) MONTHS and ONE (1)
DAY of arresto mayor, as minimum to ONE (1) YEAR, EIGHT (8) MONTHS and
TWENTY-ONE (21) DAYS of prision correccional as maximum.
9
"WHEREFORE, the court finds accused SEGUNDO LIM and BOY BG
GUINGGING, GUILTY beyond reasonable doubt, as principals of the crime of libel as
charged in the information, defined and penalized in Art. 353 in relation to Art. 355 of
the Revised Penal Code, and hereby sentences the said accused to a prison term of,
ranging from, One (1) year, Eight (8) months and Twenty-one (21) days as minimum to,
Two (2) years, Eleven (11) months and Eleven (11) days of prision correccional, as
maximum; to indemnify the complainant, damages in the amount of P50,000.00 and to
pay the costs.
SO ORDERED."
10
RTC Records, p. 178.
11
The two photographs were reprinted from the Sun Star Daily and the Freeman,
newspapers of general circulation in Visayas and Mindanao.
12
Rollo, p. 15.
13
"That on or about the 13th day of October, 1991, in the City of Cebu, Philippines, and
within the jurisdiction of this Honorable Court, the said accused, conniving and
confederating together and mutually helping each other, with deliberate intent, with intent
to besmirch, dishonor or discredit the person of one Cirse Choy Torralba and to place
him in public contempt and ridicule, did then and there write and publish or cause to be
written and published on the Sunday Post, a newspaper of wide circulation in the
provinces of Cebu and Bohol on its issue on October 13, 1991, specifically on page 8
thereof, the context of which is hereunder reproduced verbatim, as follows:
. . . .
to the damage and prejudice of the said Cirse "Choy" Torralba."
14
Rollo, p. 13.
15
RTC Records, p. 180.
16
TSN, 19 November 1993, pp. 8-9; TSN, 20 January 1994, pp. 7-9.
17
RTC Records, p. 183.
18
Id. at 184.
19
Supra. note 13.
20
Id. at 185.
21
Ibid.
22
Rollo, p. 22.
23
Id. at 6.
24
Borjal v. Court of Appeals, 361 Phil. 1, 7 (1999).
25
Art. 353 of the Revised Penal Code.
26
Vicario v. Court of Appeals, et. al., 367 Phil. 292, 297 (1990); citing Daez v. Court of
Appeals, G.R. No. 47971, 31 October 1990, 191 SCRA 61, 67.
27
Supra note 24, citing Alfred H. Knight, The Life of the Law, Crown Publishers, Inc.,
New York, 1996, pp. 102, 230 and 231.
28
Robert J. Wagman, The First Amendment Book (1991) at 144.
29
See "Record of the Trial of John Peter Zenger (from Zengers 1736 Narrative)", at
<http://www.law.umkc.edu/faculty/projects/ftrials/zenger/ zengerrecord.html> (Last
visited, 27 September 2005).
30
Wagman, supra note 28 at 146.
31
Which reads: "Congress shall make no law respecting an establishment of religion, or
prohibiting the free exercise thereof, abridging the freedom of speech, or of the press; or
the right of the people peaceably to assemble, and to petition the Government for redress
of grievances."
32
Kenneth Davis, Dont Know Much About History: Everything You Need to Know
About American History But Never Learned (1990), at 41.
33
1 Stat. 596.
34
In 1801. More than one-hundred fifty years later, Justice Brennan noted in New York
Times v. Sullivan, 376 U.S. 254 (1964), "Although the Sedition Act was never tested in
this Court, the attack upon its validity has carried the day in the court of history. Fines
levied in its prosecution were repaid by Act of Congress on the ground that it was
unconstitutional." Id. at 276.
35
In a letter to Col. Edward Carrington dated 16 January 1787.
36
See Gail Collins, Scorpion Tongues: The Irresistible History Of Gossip In American
Politics (1998) at 25.
37
Id. at 29.
38
See id. at 25.
39
See Records, pp. 184-185.
40
See Wagman, supra note 28 at 146.
41
See Laurence H. Tribe, Constitutional Choices (1985), at 190.
42
268 U.S. 652 (1925).
43
"This tentative incorporation of the First Amendment in the Fourteenth Amendment
was accepted in subsequent decisions and moved from dictum to holding in Fiske v.
Kansas, the first case to uphold a defendants claim to protection under the First
Amendment." Thomas Emerson, The System of Freedom of Expression (1970) at 103.
44
See Wagman, supra note 28 at 146.
45
376 U.S. 254 (1964).
46
Published by the Committee to Defend Martin Luther King, Jr.
47
New York Times v. Sullivan, supra note 45 at 258-259.
48
Id. at 287-288.
49
Id. at 280.
50
The U.S. Supreme Court held: "A rule compelling the critic of official conduct to
guarantee the truth of all his factual assertionsand to do so on pain of libel judgments
virtually unlimited in amountleads to a comparable self-censorship. Allowance of the
defense of truth, with the burden of proving it on the defendant, does not mean that only
false speech will be deterred." New York Times v. Sullivan, supra note 45 at 279.
Moreover, cited by way of footnote reference is the statement of John Stuart Mill that
"Even a false statement may be deemed to make a valuable contribution to the public
debate, since it brings about the clearer perception and livelier impression of truth,
produced by its collision with error."
51
379 U.S. 64 (1964).
52
Id. at 67-69.
53
The phraseology, similarly adopted in Article 354 of the Revised Penal Code, was
employed as a standard of defense for criminal libel in several American states. See
Footnote 7, Garrison v. Louisiana, ibid.
54
Id. at 72-74. (Emphasis supplied.)
55
Id. at 75. Emphasis supplied. It seems that the provision of this distinction was the
cause for three of the Justices sitting in the Garrison case, Justices Hugo Black, William
O. Douglas, and Arthur Goldberg, to concur separately, holding the more absolutist view
that the notion of seditious criminal libel was itself noxious to the Constitution.
56
388 U.S. 130 (1967).
57
Id. at 163-164, CJ Warren, concurring. Nonetheless, this passage from the opinion of
Chief Justice Warren acquired precedental value, four other Justices concurring in the
views expressed therein. See id., at 133.
58
418 U.S. 323 (1974).
59
See Kathleen Sullivan and Gerald Gunther, Constitutional Law: Fourteenth Edition
(2001) at 1036.
60
Gertz v. Welch, Inc., supra note 58 at 348.
61
Cass Sunstein, Democracy and the Problem of Free Speech (1995 ed.) at 9-10.
62
Article 10(1), European Convention on Human Rights and Fundamental Freedoms.
63
9815/82 [1986] ECHR 7 (8 July 1986).
64
Particularly, the defendant Lingens had criticized the former Austrian Chancellor Bruno
Kreisky for protecting a political ally accused of having earlier served in the German SS.
65
Lingens v. Austria, supra note 63, at par. 41.
66
G.R. No. 103956, 31 March 1992, 207 SCRA 712.
67
Id. at 716.
68
373 Phil. 238 (1999).
69
Particularly cited are Lopez v. Court of Appeals, 145 Phil. 219 (1970); Mercado v.
Court of First Instance, 201 Phil. 565 (1982); Babst v. National Intelligence Board, 132
SCRA 316, 325 (1984) (Fernando, C.J., concurring).
70
Vasquez, supra note 68 at 254.
71
G.R. Nos. 82380 and 82398, 29 April 1988, 160 SCRA 861.
72
Id. at 874-875; citing Prosser and Keeton on Torts, (5th ed.) at 859-861.
73
Supra note 24.
74
The complainant in Borjal was the Executive Director of the First National Conference
on Land Transportation, "to be participated in by the private sector in the transport
industry and government agencies concerned in order to find ways and means to solve the
transportation crisis." Applying the definition in Ayer, the Court concluded that the
complainant was a public figure, and that the actual malice test found application.
75
Kathleen Sullivan and Gerald Gunther, supra note 59 at 1032; citing Milkovich v.
Lorain Journal Co., 497 U.S. 1 (1990). The opinion therein of Chief Justice Rehnquist
nonetheless qualifies, "a false statement of fact gains no constitutional immunity if the
speaker simply adds the words I think."
76
TSN, 23 April 23 1993, pp. 8-9.
77
TSN, 23 April 1993, pp. 6-11, 13.
78
TSN, 15 March 1993, p. 40.
79
Borjal v. Court of Appeals, supra note 24 at 26-27.

Republic of the Philippines
SUPREME COURT
Manila
THIRD DIVISION
G.R. No. 157643 March 28, 2008
CRISTINELLI S. FERMIN, Petitioner,
vs.
PEOPLE OF THE PHILIPPINES, Respondent.
D E C I S I O N
NACHURA, J .:
Before us is a petition
1
for review on certiorari, under Rule 45 of the Rules of Court, of the
Decision
2
dated September 3, 2002 and the Resolution
3
dated March 24, 2003 of the Court of
Appeals (CA) in CA-G.R. CR No. 20890 entitled "People of the Philippines v. Cristenelli S.
Fermin and Bogs C. Tugas."
On complaint of spouses Annabelle Rama Gutierrez and Eduardo (Eddie) Gutierrez, two (2)
criminal informations for libel
4
were filed against Cristinelli
5
S. Fermin and Bogs C. Tugas
before the Regional Trial Court (RTC) of Quezon City, Branch 218. Except for the name of the
complainant,
6
the informations uniformly read
That on or about the 14th day of June, 1995 in Quezon City, Philippines, the above-named
accused CRISTENELLI SALAZAR FERMIN, publisher, and BOGS C. TUGAS, Editor-in-
Chief of Gossip Tabloid with offices located at 68-A Magnolia Tulip St., Roxas District, Quezon
City, and circulated in Quezon City and other parts of Metro Manila and the whole country,
conspiring together, confederating with and mutually helping each other, publicly and acting
with malice, did then and there willfully, unlawfully and feloniously print and circulate in the
headline and lead story of the said GOSSIP TABLOID issue of June 14, 1995 the following
material, to wit:
"MAS MALAKING HALAGA ANG NADISPALKO NILA SA STATES, MAY MGA
NAIWAN DING ASUNTO DOON SI ANNABELLE"
"IMPOSIBLENG NASA AMERIKA NGAYON SI ANNABELLE DAHIL SA KALAT
DIN ANG ASUNTO NILA DUN, BUKOD PA SA NAPAKARAMING PINOY NA
HUMAHANTING SA KANILA MAS MALAKING PROBLEMA ANG KAILANGAN
NIYANG HARAPIN SA STATES DAHIL SA PERANG NADISPALKO NILA,
NAGHAHANAP LANG NG SAKIT NG KATAWAN SI ANNABELLE KUNG SA
STATES NGA NIYA MAIISIPANG PUMUNTA NGAYON PARA LANG TAKASAN
NIYA SI LIGAYA SANTOS AT ANG SINTENSIYA SA KANYA"
when in truth and in fact, the accused very well knew that the same are entirely false and untrue
but were publicly made for no other purpose than to expose said ANNABELLE RAMA
GUTIERREZ to humiliation and disgrace, as it depicts her to be a fugitive from justice and a
swindler, thereby causing dishonor, discredit and contempt upon the person of the offended
party, to the damage and prejudice of the said ANNABELLE RAMA GUTIERREZ.
CONTRARY TO LAW.
7

Upon arraignment, petitioner and co-accused Bogs C. Tugas (Tugas) both pleaded "not guilty."
Thereafter, a joint trial ensued.
After trial on the merits, the RTC of Quezon City, Branch 218, in its Joint Decision
8
dated
January 27, 1997, found petitioner and Tugas guilty of libel. The dispositive portion of the Joint
Decision reads
WHEREFORE, prosecution having established the guilt of the accused, judgment is hereby
rendered finding CRISTENELLI S. FERMIN and BOGS C. TUGAS GUILTY beyond
reasonable doubt, of libel, punishable under Art. 355 of the Revised Penal Code and sentences
them to an indeterminate penalty of three (3) months and eleven (11) days of arresto mayor, as
minimum, to one (1) year, eight (8) months and twenty-one (21) days of prision correccional, as
maximum, for each case.
Likewise, accused Cristenelli S. Fermin and Bogs Tugas are sentenced to pay jointly and
solidarily:
a) moral damages of:
1. P500,000.00 to Annabelle Rama in Criminal Case No. Q-95-62823; and
2. P500,000.00 to Eddie Gutierrez in Criminal Case No. Q-95-62824;
b) attorneys fees of P50,000.00.
SO ORDERED.
9

Aggrieved, petitioner and Tugas appealed to the CA. The appellate court, in its Decision dated
September 3, 2002, affirmed the conviction of petitioner, but acquitted Tugas on account of non-
participation in the publication of the libelous article. The fallo of the Decision reads
WHEREFORE, judgment is hereby rendered as follows:
1. The appealed decision as against the accused-appellant BOGS C. TUGAS is
REVERSED and SET ASIDE, and another is entered ACQUITTING him of the crime
charged and ABSOLVING him from any civil liability; and
2. The same appealed decision as against accused-appellant CRISTENELLI S. FERMIN
is AFFIRMED, with the MODIFICATION that the award of moral damages is
REDUCED to P300,000.00 for EACH offended party, and the award of attorneys fees is
DELETED.
Costs against the appellant FERMIN.
SO ORDERED.
10

The CA denied petitioners motion for reconsideration for lack of merit in the Resolution dated
March 24, 2003. Hence, this petition, raising the following arguments:
I.
THE RULING IN U.S. VS. TAYLOR, PEOPLE VS. TOPACIO AND SANTIAGO, U.S.
VS. MADRIGAL AND U.S. VS. SANTOS AND THE HOLDING IN U.S. VS.
OCAMPO AS CLARIFIED BY THE COURT OF APPEALS IN PEOPLE VS.
BELTRAN AND SOLIVEN REQUIRING KNOWLEDGE, PARTICIPATION AND
COMPLICITY BY THE PUBLISHER IN THE PREPARATION AND APPROVAL OF
THE LIBELOUS ARTICLE TO SUSTAIN THE LATTERS CONVICTION FOR
LIBEL ARE APPLICABLE IN THE PRESENT CASE.
II.
ART. 360 OF THE REVISED PENAL CODE WHICH MAKES A PUBLISHER
LIABLE FOR LIBEL TO THE SAME EXTENT AS IF HE WERE THE AUTHOR
THEREOF MERELY CREATES A DISPUTABLE PRESUMPTION WHICH MAY BE
REBUTTED BY CONTRARY EVIDENCE.
III.
THE QUESTIONED ARTICLE IS NOT LIBELOUS.
IV.
THE QUESTIONED ARTICLE IS PROTECTED BY THE MANTLE OF THE
FREEDOM OF THE PRESS AND IS WITHIN THE REALM OF FAIR AND HONEST
COMMENT.
11

Being interrelated, we shall discuss the first and the second issues jointly, then the third and the
fourth issues together.
Petitioner posits that, to sustain a conviction for libel under Article 360 of the Revised Penal
Code, it is mandatory that the publisher knowingly participated in or consented to the preparation
and publication of the libelous article. This principle is, allegedly, based on our ruling in U.S. v.
Taylor,
12
People v. Topacio and Santiago,
13
U.S. v. Madrigal,
14
U.S. v. Abad Santos,
15
and U.S.
v. Ocampo,
16
as purportedly clarified in People v. Beltran and Soliven.
17
She submits that these
cases were applied by the CA in acquitting her co-accused Tugas, and being similarly situated
with him, she is also entitled to an acquittal. She claims that she had adduced ample evidence to
show that she had no hand in the preparation and publication of the offending article, nor in the
review, editing, examination, and approval of the articles published in Gossip Tabloid.
The arguments are too simplistic and the cited jurisprudence are either misplaced or, in fact,
damning.
Foremost, U.S. v. Madrigal and U.S. v. Abad Santos are not applicable to the present case. U.S.
v. Madrigal pertains to a criminal prosecution under Section 30 of Act No. 1519 for fraudulently
representing the weight or measure of anything to be greater or less than it is, whereas U.S. v.
Abad Santos refers to criminal responsibility under the Internal Revenue Law (Act. No. 2339).
The other cases are more in point, but they serve to reinforce the conviction of, rather than
absolve, petitioner.
In U.S. v. Taylor, the accused was indicted under Section 6 of Act No. 277 which provides that:
"Every author, editor or proprietor of any book, newspaper, or serial publication is chargeable
with the publication of any words contained in any part of said book or number of each
newspaper or serial as fully as if he were the author of the same." However, proof adduced
during the trial showed that accused was the manager of the publication without the
corresponding evidence that, as such, he was directly responsible for the writing, editing, or
publishing of the matter contained in the said libelous article.
18

In People v. Topacio and Santiago, reference was made to the Spanish text of Article 360 of the
Revised Penal Code which includes the verb "publicar." Thus, it was held that Article 360
includes not only the author or the person who causes the libelous matter to be published, but
also the person who prints or publishes it.
Based on these cases, therefore, proof of knowledge of and participation in the publication of the
offending article is not required, if the accused has been specifically identified as "author, editor,
or proprietor" or "printer/publisher" of the publication, as petitioner and Tugas are in this case.
The rationale for the criminal culpability of those persons enumerated in Article 360 of the
Revised Penal Code
19
was enunciated in U.S. v. Ocampo,
20
to wit:
"According to the legal doctrines and jurisprudence of the United States, the printer of a
publication containing libelous matter is liable for the same by reason of his direct connection
therewith and his cognizance of the contents thereof. With regard to a publication in which a
libel is printed, not only is the publisher but also all other persons who in any way participate in
or have any connection with its publication are liable as publishers."
x x x x
In the case of State vs. Mason (26 L.R.A., 779; 26 Oreg., 273, 46 Am. St. Rep., 629), the
question of the responsibility of the manager or proprietor of a newspaper was discussed. The
court said, among other things (pp. 782, 783):
"The question then recurs as to whether the manager or proprietor of a newspaper can escape
criminal responsibility solely on the ground that the libelous article was published without his
knowledge or consent. When a libel is published in a newspaper, such fact alone is sufficient
evidence prima facie to charge the manager or proprietor with the guilt of its publication.
"The manager and proprietor of a newspaper, we think ought to be held prima facie criminally
for whatever appears in his paper; and it should be no defense that the publication was made
without his knowledge or consent, x x x
"One who furnishes the means for carrying on the publication of a newspaper and entrusts its
management to servants or employees whom he selects and controls may be said to cause to be
published what actually appears, and should be held responsible therefore, whether he was
individually concerned in the publication or not, x x x. Criminal responsibility for the acts of an
agent or servant in the course of his employment necessarily implies some degree of guilt or
delinquency on the part of the publisher; x x x.
"We think, therefore, the mere fact that the libelous article was published in the newspaper
without the knowledge or consent of its proprietor or manager is no defense to a criminal
prosecution against such proprietor or manager."
In the case of Commonwealth vs. Morgan (107 Mass., 197), this same question was considered
and the court held that in the criminal prosecution of a publisher of a newspaper in which a libel
appears, he is prima facie presumed to have published the libel, and that the exclusion of an offer
by the defendant to prove that he never saw the libel and was not aware of its publication until it
was pointed out to him and that an apology and retraction were afterwards published in the same
paper, gave him no ground for exception. In this same case, Mr. Justice Colt, speaking for the
court, said:
"It is the duty of the proprietor of a public paper, which may be used for the publication of
improper communications, to use reasonable caution in the conduct of his business that no libels
be published." (Whartons Criminal Law, secs. 1627, 1649; 1 Bishops Criminal Law, secs. 219,
221; People vs. Wilson, 64 Ill., 195; Commonwealth vs. Damon, 136 Mass., 441.)
The above doctrine is also the doctrine established by the English courts. In the case of Rex vs.
Walter (3 Esp., 21) Lord Kenyon said that he was "clearly of the opinion that the proprietor of a
newspaper was answerable criminally as well as civilly for the acts of his servants or agents for
misconduct in the management of the paper."
This was also the opinion of Lord Hale, Mr. Justice Powell, and Mr. Justice Foster.
Lofft, an English author, in his work on Libel and Slander, said:
"An information for libel will lie against the publisher of a paper, although he did not know of its
being put into the paper and stopped the sale as soon as he discovered it."
In the case of People vs. Clay (86 Ill., 147) the court held that
"A person who makes a defamatory statement to the agent of a newspaper for publication, is
liable both civilly and criminally, and his liability is shared by the agent and all others who aid in
publishing it."
It is worthy to note that petitioner was not only the "publisher," as shown by the editorial box of
Gossip Tabloid,
21
but also its "president" and "chairperson" as she herself admitted on the
witness stand.
22
She also testified that she handled the business aspect of the publication, and
assigns editors to take charge of everything.
23
Obviously, petitioner had full control over the
publication of articles in the said tabloid. Her excuse of lack of knowledge, consent, or
participation in the release of the libelous article fails to persuade. Following our ruling in
Ocampo, petitioners criminal guilt should be affirmed, whether or not she had actual knowledge
and participation, having furnished the means of carrying on the publication of the article
purportedly prepared by the members of the Gossip Reportorial Team, who were employees
under her control and supervision.
Petitioner argues that Ocampo has been clarified by the CA in People v. Beltran and Soliven
such that Maximo V. Soliven, as publisher of The Philippine Star, was acquitted by the appellate
court in view of the lack of evidence that he knew and approved the article written by Luis D.
Beltran about then President Corazon C. Aquino in the newspapers October 12, 1987 issue.
Petitioner submits that People v. Beltran and Soliven serves as a guide to this Court regarding the
criminal liability of the publisher of the newspaper where a libelous article is published. Put
differently, it appears that petitioner wants this Court to follow the CA decision and adopt it as
judicial precedent under the principle of stare decisis.
The doctrine of stare decisis, embodied in Article 8
24
of the Civil Code, is enunciated, thus:
The doctrine of stare decisis enjoins adherence to judicial precedents. It requires courts in a
country to follow the rule established in a decision of the Supreme Court thereof. That decision
becomes a judicial precedent to be followed in subsequent cases by all courts in the land. The
doctrine of stare decisis is based on the principle that once a question of law has been examined
and decided, it should be deemed settled and closed to further argument.
25
(Emphasis supplied)
Unfortunately, the Beltran decision attained finality at the level of the CA. Thus, if the CA
seemingly made a new pronouncement regarding the criminal liability of a publisher under
Article 360 of the Revised Penal Code, that ruling cannot bind this Court unless we purposely
adopt the same. Be that as it may, we find no compelling reason to revisit U.S. v. Ocampo; to
modify it would amount to judicial legislation. Article 360 is clear and unambiguous, and to
apply People v. Beltran and Soliven, which requires specific knowledge, participation, and
approval on the part of the publisher to be liable for the publication of a libelous article, would
be reading into the law an additional requirement that was not intended by it.
In the same vein, we note that the CA erred in acquitting Tugas. Tugas cannot feign lack of
participation in the publication of the questioned article as was evident from his and petitioners
Joint Counter-Affidavit,
26
and as gleaned from his testimony before the trial court, to wit:
WITNESS: As editor-in-chief, I have no participation in the writing of the questioned
article and my only participation in the publication is the handling of the physical lay-
outing, indication and allocation of type-size of the body of the article, before the same
was printed and published in GOSSIP Tabloid.
Q: You do not deny the statements in this publication as executed by you in the counter-
affidavit and sworn in before the City Prosecutor, is this correct?
A: Yes, that is correct.
ATTY. ALENTAJAN:
That is all for the witness, your Honor.
COURT: Do we get it right from you, if you were acting as you were, you will not allow
the said publication of this same article or same stories?
A: If I were, if I was physically present, honestly I will because if you can see the article,
your Honor, it is according to our source, it is not a direct comment.
COURT: So whether you are there or not, [the] same article leading to them (sic) will
still find its way to come out?
A: Yes, your honor.
27

Tugas testimony, in fact, confirms his actual participation in the preparation and
publication of the controversial article and his approval thereof as it was written.
Moreover, his alibi, which was considered meritorious by the CA, that he was confined at
the Mother of Perpetual Help Clinic in Angeles City, is unavailing, in view of the
testimony of his attending physician that Tugas medical condition did not prevent him
from performing his work, thus
Q: How would you describe the condition of the patient on June 13, 1995?
A: He is in stable condition.
Q: You said he was in severe pain, from your opinion, was that condition sufficient to
enable him to work?
A: Yes, in my opinion.
28

Q: You said your impression of the patient was urethral colic and this was caused by
spasm?
A: Yes, sir.
Q: When you say spasm, it is not sustained, it comes every now and then and
[intermittently], it is not sustained?
A: Yes, sir.
Q: Now you said he was in stable condition?
A: Yes, sir.
Q: That means that his ailment is not life-threatening?
A: Correct.
Q: In fact, visitors were allowed to see him?
A: Yes, sir.
Q: He can also write?
A: Yes, sir.
Q: He was allowed to [receive] friends?
A: Yes, sir.
Q: According to you, he was able to work also, he is not totally incapacitated in
performing certain chores in the hospital room?
A: No, sir.
Q: Now, prior to 7:10 oclock in the morning of June 13, 1995, you did not see Mr. Bogs
Tugas?
A: I saw him, he was admitted at 7:00 oclock but I saw him before.
Q: How long before 7:10 were you able to see him?
A: That is about 2 hours.
Q: About 5:00 oclock in the morning?
A: Yes, sir.
Q: Who was his companion when you saw him?
A: He was boarding in my place.
Q: So, you brought him to the hospital?
A: Both of us went to the hospital.
Q: Which boarding house are you referring [to]? In Angeles City?
A: Yes, sir.
Q: Do you know that Mr. Bogs Tugas works here in Quezon City as editor-in-chief of a
newspaper tabloid?
A: Yes, sir.
Q: And some of his work is done in your boarding house?
A: I do not know about it.
Q: How did you know that he is working on his paper works in Quezon City? Did you
see him do that?
A: I only know he goes to Manila everyday.
Q: In your boarding house, you saw him read and write?
A: Probably yes.
29

But, of course, we cannot reinstate the ruling of the trial court convicting Bogs Tugas because
with his acquittal by the CA, we would run afoul of his constitutional right against double
jeopardy.
Anent the third and fourth issues, petitioner argues that the subject article in the June 14, 1995
issue of Gossip Tabloid is not libelous, is covered by the mantle of press freedom, and is merely
in the nature of a fair and honest comment. We disagree.
The banner headlines of the offending article read:
KUNG TOTOONG NAKATAKAS NA SI ANNABELLE RAMA, IMPOSIBLENG SA
STATES SIYA NAGPUNTA!
MAS MALAKING HALAGA ANG NADISPALKO NILA SA STATES, MAY MGA
NAIWAN DING ASUNTO DUN SI ANNABELLE!
On the first page of the same issue of Gossip Tabloid, written in smaller but bold letters, are:
HINDI SIYA MAKAKAPUNTA SA AMERIKA DAHIL NAPAKARAMI RIN
NIYANG ASUNTONG INIWAN DUN NOON PA, NAKAPAG-ABROAD MAN
SIYA, E, PIHADONG HINDI SIYA SA AMERIKA NAGTULOY, SA AMERIKA PA
KAYA SIYA MAGTATAGO, E, ILANG TAON NA RIN SIYANG INAABANGAN
DUN NG NGA KABABAYAN NATING NILOKO NIYA, IN ONE WAY OR
ANOTHER?... NAAALALA PA BA NINYO YUNG MGA MAMAHALING
KALDERO NA IBINEBENTA NILA NOON SA AMERIKA, DUN SILA
NAGKAPROBLEMA, MILYON-MILYON ANG INVOLVED, KAYA
KINAILANGAN NILANG UMUWI SA PILIPINAS NOON!
The rest of the article, which continued to the entire second page of the tabloid, follows
Mainit na pinag-uusapan ngayon ang ibat ibang posibilidad na maaaring gawin ni Annabelle
Rama Gutierrez para lang hindi matuloy ang pag-aresto at pagkukulong sa kanya ng mga
awtoridad kaugnay ng sintensiyang ipinapataw sa kanya ni Manila-RTC Judge Rodolfo Palattao.
Mula noong June 8, nabatid ng Gossip Tabloid, ay wala pang sinumang nakapagtuturo kung saan
talaga naroon ang ina ni Ruffa Gutierrez na hindi pinayagang makapagpiyansa ng Branch 33
para sa pansamantala niyang kalayaan.
May mga nagpapalagay na sa pamamagitan ng tinatawag na back-door exit, ang pag-alis ng
bansa sa paraang hindi na kailangan pang dumaan sa NAIA, ay nakaalis na si Annabelle noon
pang nakaraang Biyernes, June 9, patungong Amerika.
Pero isang mapagkakatiwalaang source ng Gossip Tabloid ang nagsabing napaka-imposibleng sa
Amerika nagtungo si Annabelle dahil doon man ay may mga nakahanda nang awtoridad na
handang magkulong kay Annabelle, sakaling mapatunayang naroon nga siya.
"Hindi siya makapupunta sa Amerika dahil napakarami rin niyang asuntong iniwan doon
noon pa!
"Nag-abroad man siya, e pihadong hindi siya sa Amerika nagtuloy dahil nakaabang na rin
ang sangkatutak niyang maniningil dun ngayon!
"Sa Amerika pa kaya siya magtatago, samantalang ilang taon na rin siyang inaabangan
dun ng mga kababayan nating niloko niya, in one way or another?" simula ng source ng
Gossip Tabloid.
Niliwanag ng naturang source na ang dahilan ng biglaang pag-uwi ng pamilya Gutierrez sa bansa
ilang taon na ang nakararaan ay may kinalaman sa malaking halagang hindi nabayaran nina
Eddie at Annabelle sa ilang kababayan natin sa Amerika.
"Naaalala pa ba ninyo yung mga kalderong ibinebenta noon nina Eddie at Annabelle sa
States?
"Mga mamahaling kaldero yun, hindi basta-basta kaldero ang ibinebenta nila dun, kaya
talagang ang ganda-ganda na sana ng buhay nilang mag-anak dun hanggang sa dumating
yung point na sinisingil na sila nung mismong kompanya ng kaldero!
"Malaki ang halagang involved, milyon-milyon, kaya nung kinasuhan na sila, e
kinailangan nilang umalis sa Amerika para bumalik na dito.
"Isa si Bert Leroy, Jr. sa mga Pilipinong nagkaroon ng malaking problema kina Eddie at
Annabelle, alam ba nyo yun?
"Ang ganda-ganda ng samahan nila nung una sa Amerika, yumaman sila nang dahil sa
mga mamahaling kaldero na ibinebenta nila, kaso, sumabit sina Eddie at Annabelle dun
sa mismong company na pinagkukunan nila ng produkto!
"Bukod sa napakarami na nilang isinabit na Pinoy sa Amerika dahil sa mga kalderong
yun, e sumabit pa sila nang malaking halaga sa mismong manufacturer nung mga
ibinebenta nilang mamahaling kaldero!
"Yun ang dahilan kung bakit bigla-biglang umuwi sa Pilipinas ang pamilya ni Eddie!
"Ang ikinakatwiran nilang mag-asawa noon, e gusto raw kasi nilang lumaking
Pilipinong-Pilipino ang kanilang mga anak, pero ang totoo, e, napakalaki ng problemang
iniwan nila sa Amerika!" mahabang simula ng source ng Gossip Tabloid.
Masamang-masama diumano ang loob ng mga Pilipinong kinatalo roon nina Eddie at Annabelle,
lalo na si Annabelle, na bukod sa mataray na ay may kayabangan pa.
"Dati nang ganyan si Annabelle! Mataray siya na wala sa lugar. Nung nasa Amerika pa
silang mag-anak, e, yun din ang madalas nilang pag-awayan dun ni Eddie!
"Madalas silang magkagalit, kaya si Eddie, para lang makapagpalipas ng mga sama niya
ng loob, e, dun nag-i-stay sa bahay ng mga kaibigan niyang Pinoy!
"Grabe ang naging problema nila dun, kaya wala silang choice that time kung di ang
umuwi na lang sa Pilipinas!
"Ang halagang involved sa pagbebenta nila ng kaldero, e, hindi basta-basta, milyunan
yon!
"Kaso yung pinagbebentahan nila, yung halagang dapat sana, e, ibigay nila sa
kompanya dahil porsiyentuhan lang naman sila dun, nagastos nila!
"Nawala ang pera, at ang balita nga sa States, e, si Annabelle ang dahilan kung bakit
nalubog sila noon sa utang sa States!
"Nag-casino pala si Annabelle! Grabe raw kung magpatalo siya, kaya pati yung kinita
nila sa pagbebenta ng mamahaling kaldero, e, natunaw!" sabi uli ng source ng Gossip
Tabloid.
Maraming Pilipino ang sinabitan doon ng mag-asawa, ayon pa sa source ng Gossip Tabloid, kaya
ngayong may asunto naman si Annabelle dito sa Pilipinas ay napaka-imposibleng sa Amerika pa
rin siya tatakbo.
"Paano siya magpupunta dun para tuluyan nang manirahan, e, ang dami-dami ring Pinoy
na naghihintay sa kanya dun para maningil sa kanya?
"Alam nyo ba, bukod sa galit na galit na sa kanila ang mga Pinoy na nandun, e, may
mga nakaabang na ring asunto para kay Annabelle.
"So, malabong sa Amerika pa siya tumuloy ngayong napapabalitang nasa abroad siya
dahil sa mga naghihintay na kaso sa kanya dun.
"Ang alam namin, e, sa Europe nagbabalak pumunta ang pamilya ni Eddie.
"Di bat ilang beses nang nagpapabalik-balik dun sina Ruffa. Noon pa, e, pinag-aralan
na nina Eddie at Annabelle ang posibilidad ng mga gagawin nila!
"Alam nila na hindi sila puwedeng mag-stay sa States dahil kalat din ang asunto nila
dun, bukod pa sa napakaraming Pinoy na huma-hunting sa kanila!
"Kaya kung totoong nakalusot na nga si Annabelle ngayon para makatakas siya sa
pagkakulong, imposibleng sa States siya nagpunta!
"Mas malaking problema ang kailangan niyang harapin sa States dahil sa perang
nadispalko nila, bukod pa sa asuntong iniwan nilang nakatiwangwang dun!
"Naghahanap ng sakit ng katawan si Annabelle kung sa States nga niya maisipang
pumunta ngayon para lang malusutan si Ligaya Santos at ang sintensiya sa kanya ni
Judge Palattao!" madiin pang pahayag ng mapagkakatiwalaang source ng Gossip
Tabloid.
30

A libel is defined as a public and malicious imputation of a crime, or of a vice or defect, real or
imaginary; or any act, omission, condition, status, or circumstance tending to cause the dishonor,
discredit, or contempt of a natural or juridical person, or to blacken the memory of one who is
dead.
31
In determining whether a statement is defamatory, the words used are to be construed in
their entirety and should be taken in their plain and ordinary meaning as they would naturally be
understood by persons reading them, unless it appears that they were used and understood in
another sense.
32

To say that the article, in its entirety, is not libelous disturbs ones sensibilities; it would certainly
prick ones conscience. There is evident imputation of the crime of malversation (that the
complainants converted for their personal use the money paid to them by fellow Filipinos in
America in their business of distributing high-end cookware); of vices or defects for being
fugitives from the law (that complainants and their family returned to the Philippines to evade
prosecution in America); and of being a wastrel (that Annabelle Rama Gutierrez lost the earnings
from their business through irresponsible gambling in casinos). The attribution was made
publicly, considering that Gossip Tabloid had a nationwide circulation. The victims were
identified and identifiable. More importantly, the article reeks of malice, as it tends to cause the
dishonor, discredit, or contempt of the complainants.
Petitioner claims that there was no malice on her part because, allegedly, the article was merely a
fair and honest comment on the fact that Annabelle Rama Gutierrez was issued a warrant of
arrest for her conviction for estafa before then Judge Palattaos court. She even cited as proof of
her lack of malice the purported absence of any ill will against complainants, as shown by the
article she wrote about complainants daughter Sharmaine Ruffa Gutierrez in the June 15, 1995
issue of the same tabloid where she expressed her sympathy and admiration for the latter.
Notably, however, the complainants successfully refuted the imputations during the trial.
Complainants proved that they could return anytime to the United States of America after the
publication of the article,
33
and that they remained on good terms with the manufacturing
company of the cookware.
34
To the contrary, both petitioner and Tugas failed to adduce evidence
to show the truth of the allegations in the article despite the opportunity to do so.
Further worthy of mention is the admission of petitioner before the trial court that she had very
close association with then Congressman Golez and mayoralty candidate Joey Marquez, and that
she would use her skills as a writer to campaign for them. Complainant Eddie Gutierrez ran
against then incumbent Golez for the congressional seat in Paraaque City. Petitioner testified in
this wise
Q: When you acted as writer during the campaign, as you said, for Joey Marquez and
Golez, of course you did not give your services for free to these candidates, were you
paid?
A: I was not paid, Sir.
Q: You just wanted to help them, am I correct?
A: Yes, because they are my friends, Sir.
Q: And you wanted them to win the election, thru your being a writer, is that correct?
A: Yes, Sir.
Q: You were campaigning hard for Golez and Marquez, right?
A: Right, Sir.
Q: When you say hard, you wanted your candidates to win, is it not?
A: Yes, Sir.
Q: Who was the opponent of Joey Marquez at that time?
A: The former Mayor Olivares, Sir.
Q: How about the opponent of Congressman Golez?
A: One of them is Eddie Gutierrez, Sir.
Q: And the tandem of Marquez and Golez versus the tandem of Olivares and Eddie
Gutierrez, am I correct?
A: Actually, that was the situation at that time, Sir.
Q: Of course, the tandem of Joey Marquez was working hard to win over their opponent,
is it not?
A: Whatever their problems were, I am out.
Q: As a hard campaigner, you wanted your team to win over the other, is this correct?
A: Yes, Sir.
Q: Of course you understand what PRO work is, it includes propaganda, is that correct?
A: I am sorry I dont accept PR work, Sir.
Q: Do you understand PRO work?
A: Yes, Sir, I know.
Q: In propaganda, for your side, you promote it as against the other, right?
A: Yes, Sir.
35

It can be gleaned from her testimony that petitioner had the motive to make defamatory
imputations against complainants. Thus, petitioner cannot, by simply making a general denial,
convince us that there was no malice on her part. Verily, not only was there malice in law, the
article being malicious in itself, but there was also malice in fact, as there was motive to talk ill
against complainants during the electoral campaign.
Neither can petitioner take refuge in the constitutional guarantee of freedom of speech and of the
press. Although a wide latitude is given to critical utterances made against public officials in the
performance of their official duties, or against public figures on matters of public interest, such
criticism does not automatically fall within the ambit of constitutionally protected speech. If the
utterances are false, malicious or unrelated to a public officers performance of his duties or
irrelevant to matters of public interest involving public figures, the same may give rise to
criminal and civil liability.
36
While complainants are considered public figures for being
personalities in the entertainment business, media people, including gossip and intrigue writers
and commentators such as petitioner, do not have the unbridled license to malign their honor and
dignity by indiscriminately airing fabricated and malicious comments, whether in broadcast
media or in print, about their personal lives.
37

We must however take this opportunity to likewise remind media practitioners of the high ethical
standards attached to and demanded by their noble profession. The danger of an unbridled
irrational exercise of the right of free speech and press, that is, in utter contempt of the rights of
others and in willful disregard of the cumbrous responsibilities inherent in it, is the eventual self-
destruction of the right and the regression of human society into a veritable Hobbesian state of
nature where life is short, nasty and brutish. Therefore, to recognize that there can be no absolute
"unrestraint" in speech is to truly comprehend the quintessence of freedom in the marketplace of
social thought and action, genuine freedom being that which is limned by the freedom of others.
If there is freedom of the press, ought there not also be freedom from the press? It is in this sense
that self-regulation as distinguished from self-censorship becomes the ideal mean for, as Mr.
Justice Frankfurter has warned, "[W]ithout x x x a lively sense of responsibility, a free press may
readily become a powerful instrument of injustice.
Lest we be misconstrued, this is not to diminish nor constrict that space in which expression
freely flourishes and operates. For we have always strongly maintained, as we do now, that
freedom of expression is mans birthright constitutionally protected and guaranteed, and that it
has become the singular role of the press to act as its "defensor fidei" in a democratic society
such as ours. But it is also worth keeping in mind that the press is the servant, not the master, of
the citizenry, and its freedom does not carry with it an unrestricted hunting license to prey on the
ordinary citizen.
38

In view of the foregoing disquisitions, the conviction of petitioner for libel should be upheld.
With respect to the penalty to be imposed for this conviction, we note that on January 25, 2008,
the Court issued Administrative Circular No. 08-2008, entitled Guidelines in the Observance of a
Rule of Preference in the Imposition of Penalties in Libel Cases. The Circular expresses a
preference for the imposition of a fine rather than imprisonment, given the circumstances
attendant in the cases
39
cited therein in which only a fine was imposed by this Court on those
convicted of libel. It also states that, if the penalty imposed is merely a fine but the convict is
unable to pay the same, the Revised Penal Code provisions on subsidiary imprisonment should
apply.
However, the Circular likewise allows the court, in the exercise of sound discretion, the option to
impose imprisonment as penalty, whenever the imposition of a fine alone would depreciate the
seriousness of the offense, work violence on the social order, or otherwise be contrary to the
imperatives of justice.
In the case at bench, the Court considers the publics speculations as to the whereabouts of
Annabelle Rama Gutierrez with the issuance of the warrant of arrest after her initial conviction
for estafa. Petitioner fueled these speculations through her article. However, her article went
overboard and exceeded the bounds of fair comment. This warrants her conviction. Nonetheless,
in light of the relatively wide latitude given to utterances against public figures such as private
complainants, and consonant with Administrative Circular No. 08-2008, the Court deems it
proper to modify the penalty of imprisonment to a fine in the amount of P6,000.00, with
subsidiary imprisonment in case of insolvency, in each case. But the award of moral damages for
each of the private complainants in the amount of P500,000.00, as ordered by the trial court,
should be restored on account of the serious anxiety and the wounded feelings suffered by
complainants from the libelous article, particularly taking into account the fact that petitioner and
the private complainants were on relatively good terms with each other, and complainants gave
no cause or offense which could have provoked the malicious publication.
WHEREFORE, the Decision dated September 3, 2002 of the Court of Appeals in CA-G.R. CR
No. 20890 is AFFIRMED with the MODIFICATION that in lieu of imprisonment, petitioner
Cristinelli S. Fermin is sentenced to pay a fine in the amount of P6,000.00, with subsidiary
imprisonment in case of insolvency, in each case. The award of moral damages, in the amount of
P300,000.00 each in favor of complainants Annabelle Rama Gutierrez and Eduardo Gutierrez, is
increased to P500,000.00. Costs against petitioner.
SO ORDERED.
ANTONIO EDUARDO B. NACHURA
Associate Justice
WE CONCUR:
MA. ALICIA AUSTRIA-MARTINEZ
Associate Justice
Acting Chairperson
DANTE O. TINGA
*

Associate Justice
MINITA V. CHICO-NAZARIO
Associate Justice
RUBEN T. REYES
Associate Justice
A T T E S T A T I O N
I attest that the conclusions in the above Decision were reached in consultation before the case
was assigned to the writer of the opinion of the Courts Division.
MA. ALICIA AUSTRIA-MARTINEZ
Associate Justice
Acting Chairperson, Third Division
C E R T I F I C A T I O N
Pursuant to Section 13, Article VIII of the Constitution and the Division Chairperson's
Attestation, I certify that the conclusions in the above Decision had been reached in consultation
before the case was assigned to the writer of the opinion of the Courts Division.
REYNATO S. PUNO
Chief Justice

Footnotes
*
In lieu of Associate Justice Consuelo Ynares-Santiago per Special Order No. 497, dated
March 14, 2008.
1
Rollo, pp. 3-43.
2
Penned by Associate Justice Salvador J. Valdez, Jr., with Associate Justices Mercedes
Gozo-Dadole and Amelita G. Tolentino, concurring; id. at 45-60.
3
Id. at 62-67.
4
Both entitled "People of the Philippines v. Cristenelli S. Fermin and Bogs C. Tugas"
and docketed as Criminal Cases Nos. Q-95-62823 and Q-95-62824.
5
Also referred in the records as Cristenelli.
6
Annabelle Rama Gutierrez in one, and Eduardo (Eddie) Gutierrez in the other.
7
Records, pp. 2-3.
8
Id. at 181-194.
9
Id. at 193-194.
10
Rollo, pp. 59-60.
11
Id. at 7-8.
12
28 Phil. 599 (1914).
13
59 Phil. 356 (1934).
14
27 Phil. 347 (1914).
15
36 Phil. 243 (1917).
16
18 Phil. 1 (1910).
17
CA-G.R. CR No. 13561, November 6, 1995.
18
Supra note 12, at 604-605. (Emphasis supplied.)
19
Art. 360. Persons responsible. Any person who shall publish, exhibit, or cause the
publication or exhibition of any defamation in writing or by similar means, shall be
responsible for the same.
The author or editor of a book or pamphlet, or the editor or business manager of a
daily newspaper, magazine or serial publication, shall be responsible for the
defamations contained therein to the same extent as if he were the author thereof.
x x x (Emphasis supplied)
20
Supra note 16, at 50-52.
21
Exhibit "A-8;" records, p. 60.
22
TSN, May 2, 1996, p. 61.
23
Id. at 29.
24
"Judicial decisions applying or interpreting the laws or the constitution shall form part
of the legal system of the Philippines."
25
Castillo v. Sandiganbayan, 427 Phil. 785, 793 (2002).
26
Records, p. 17.
27
Cross-examination of Bogs Tugas; TSN, March 11, 1996, pp. 36-37.
28
Direct examination of Dr. Richard U. Velez; TSN, March 19, 1996, pp. 7-8.
29
Cross-examination of Bogs Tugas; TSN, March 19, 1996, pp. 15-18.
30
Records, p. 59.
31
REVISED PENAL CODE, Art. 353.
32
Novicio v. Aggabao, 463 Phil. 510, 516 (2003).
33
Exhibits "E-4" to "E-8"; records, pp. 75-76.
34
Testimony of Eddie Gutierrez; TSN, January 15, 1996, pp. 66-68, 85-87.
35
Cross-examination of Cristinelli Fermin; TSN, May 2, 1996, pp. 54-59.
36
Brillante v. Court of Appeals, G.R. Nos. 118757 & 121571, October 19, 2004, 440
SCRA 541, 574.
37
Soriano v. Intermediate Appellate Court, No. L-72383, November 9, 1988, 167 SCRA
222, 231 (1988).
38
Borjal v. Court of Appeals, 361 Phil. 1, 28 (1999).
39
"In Sazon v. Court of Appeals (325 Phil. 1053, 1068 [1996]), the Court modified the
penalty imposed upon petitioner, an officer of a homeowners association, for the crime
of libel from imprisonment and fine in the amount of P200.00, to fine only of P3,000.00,
with subsidiary imprisonment in case of insolvency, for the reason that he wrote the
libelous article merely to defend his honor against the malicious messages that earlier
circulated around the subdivision, which he thought was the handiwork of the private
complainant.
In Mari v. Court of Appeals (388 Phil. 269, 279 [2000]), in which the crime
involved is slander by deed, the Court modified the penalty imposed on petitioner,
an ordinary government employee, from imprisonment to a fine of P1,000.00,
with subsidiary imprisonment in case of insolvency, on the ground that the latter
committed the offense in the heat of anger and in reaction to a perceived
provocation.
In Brillante v. Court of Appeals (G.R. Nos. 118757 & 121571, November 11,
2005, 474 SCRA 480, 484), the Court deleted the penalty of imprisonment
imposed upon petitioner, a local politician, but maintained the penalty of fine of
P4,000.00, with subsidiary imprisonment in case of insolvency, in each of the five
(5) cases of libel, on the ground that the intensely feverish passions evoked during
the election period in 1988 must have agitated petitioner into writing his open
letter, and that incomplete privileged communication should be appreciated in
favor of petitioner, especially considering the wide latitude traditionally given to
defamatory utterances against public officials in connection with or relevant to
their performance of official duties or against public figures in relation to matters
of public interest involving them.
In Buatis, Jr. v. People (G.R No. 142509, March 24, 2006, 485 SCRA 275, 292),
the Court opted to impose upon petitioner, a lawyer, the penalty of fine only for
the crime of libel considering that it was his first offense and he was motivated
purely by his belief that he was merely exercising a civic or moral duty to his
client when he wrote the defamatory letter to private complainant."