EXPRESSION Bagong Alyansang Makabayan-Southern Tagalog (BAYAN-ST), other regional
chapters and organizations mostly based in the Southern Tagalog Region,7 and
Republic of the Philippines
SUPREME COURT
Manila
EN BANC
G.R. No. 178552 October 5, 2010
SOUTHERN HEMISPHERE ENGAGEMENT NETWORK, INC., on behalf of
the South-South Network (SSN) for Non-State Armed Group Engagement,
and ATTY. SOLIMAN M. SANTOS, JR., Petitioners,
vs.
ANTI-TERRORISM COUNCIL, THE EXECUTIVE SECRETARY, THE
SECRETARY OF JUSTICE, THE SECRETARY OF FOREIGN AFFAIRS, THE
SECRETARY OF NATIONAL DEFENSE, THE SECRETARY OF THE
INTERIOR AND LOCAL GOVERNMENT, THE SECRETARY OF FINANCE,
THE NATIONAL SECURITY ADVISER, THE CHIEF OF STAFF OF THE
ARMED FORCES OF THE PHILIPPINES, AND THE CHIEF OF THE
PHILIPPINE NATIONAL POLICE, Respondents.
x - - - - - - - - - - - - - - - - - - - - - - -x
G.R. No. 178554
x - - - - - - - - - - - - - - - - - - - - - - -x
G.R. No. 178581
x - - - - - - - - - - - - - - - - - - - - - - -x
G.R. No. 178890
x - - - - - - - - - - - - - - - - - - - - - - -x
G.R. No. 179157
x - - - - - - - - - - - - - - - - - - - - - - -x
G.R. No. 179461
DECISION
CARPIO MORALES, J.:
Before the Court are six petitions challenging the constitutionality of Republic
Act No. 9372 (RA 9372), "An Act to Secure the State and Protect our People
from Terrorism," otherwise known as the Human Security Act of 2007,1 signed
into law on March 6, 2007.
Following the effectivity of RA 9372 on July 15, 2007,2 petitioner Southern
Hemisphere Engagement Network, Inc., a non-government organization, and
Atty. Soliman Santos, Jr., a concerned citizen, taxpayer and lawyer, filed a
petition for certiorari and prohibition on July 16, 2007 docketed as G.R. No.
178552. On even date, petitioners Kilusang Mayo Uno (KMU), National
Federation of Labor Unions-Kilusang Mayo Uno (NAFLU-KMU), and Center for
Trade Union and Human Rights (CTUHR), represented by their respective
officers3 who are also bringing the action in their capacity as citizens, filed a
petition for certiorari and prohibition docketed as G.R. No. 178554.
The following day, July 17, 2007, organizations Bagong Alyansang Makabayan
(BAYAN), General Alliance Binding Women for Reforms, Integrity, Equality,
Leadership and Action (GABRIELA), Kilusang Magbubukid ng Pilipinas (KMP),
Movement of Concerned Citizens for Civil Liberties (MCCCL), Confederation for
Unity, Recognition and Advancement of Government Employees (COURAGE),
Kalipunan ng Damayang Mahihirap (KADAMAY), Solidarity of Cavite Workers
(SCW), League of Filipino Students (LFS), Anakbayan, Pambansang Lakas ng
Kilusang Mamamalakaya (PAMALAKAYA), Alliance of Concerned Teachers
(ACT), Migrante, Health Alliance for Democracy (HEAD), and Agham,
represented by their respective officers,4 and joined by concerned citizens and
taxpayers Teofisto Guingona, Jr., Dr. Bienvenido Lumbera, Renato
Constantino, Jr., Sister Mary John Manansan, OSB, Dean Consuelo Paz, Atty.
Josefina Lichauco, Retired Col. Gerry Cunanan, Carlitos Siguion-Reyna, Dr.
Carolina Pagaduan-Araullo, Renato Reyes, Danilo Ramos, Emerenciana de
Jesus, Rita Baua and Rey Claro Casambre filed a petition for certiorari and
prohibition docketed as G.R. No. 178581.
On August 6, 2007, Karapatan and its alliance member organizations Hustisya,
Desaparecidos, Samahan ng mga Ex-Detainees Laban sa Detensyon at para
sa Amnestiya (SELDA), Ecumenical Movement for Justice and Peace (EMJP),
and Promotion of Church People’s Response (PCPR), which were represented
by their respective officers5 who are also bringing action on their own behalf,
filed a petition for certiorari and prohibition docketed as G.R. No. 178890.
On August 29, 2007, the Integrated Bar of the Philippines (IBP), Counsels for
the Defense of Liberty (CODAL),6 Senator Ma. Ana Consuelo A.S. Madrigal,
Sergio Osmeña III, and Wigberto E. Tañada filed a petition for certiorari and
prohibition docketed as G.R. No. 179157.
Page 1 of 72
individuals8 followed suit by filing on September 19, 2007 a petition for certiorari
and prohibition docketed as G.R. No. 179461 that replicates the allegations
raised in the BAYAN petition in G.R. No. 178581.
Impleaded as respondents in the various petitions are the Anti-Terrorism
Council9 composed of, at the time of the filing of the petitions, Executive
Secretary Eduardo Ermita as Chairperson, Justice Secretary Raul Gonzales as
Vice Chairperson, and Foreign Affairs Secretary Alberto Romulo, Acting
Defense Secretary and National Security Adviser Norberto Gonzales, Interior
and Local Government Secretary Ronaldo Puno, and Finance Secretary
Margarito Teves as members. All the petitions, except that of the IBP, also
impleaded Armed Forces of the Philippines (AFP) Chief of Staff Gen.
Hermogenes Esperon and Philippine National Police (PNP) Chief Gen. Oscar
Calderon.
The Karapatan, BAYAN and BAYAN-ST petitions likewise impleaded President
Gloria Macapagal-Arroyo and the support agencies for the Anti-Terrorism
Council like the National Intelligence Coordinating Agency, National Bureau of
Investigation, Bureau of Immigration, Office of Civil Defense, Intelligence
Service of the AFP, Anti-Money Laundering Center, Philippine Center on
Transnational Crime, and the PNP intelligence and investigative elements.
The petitions fail.
Petitioners’ resort to certiorari is improper
Preliminarily, certiorari does not lie against respondents who do not exercise
judicial or quasi-judicial functions. Section 1, Rule 65 of the Rules of Court is
clear:
Section 1. Petition for certiorari.—When any tribunal, board or officer exercising
judicial or quasi-judicial functions has acted without or in excess of its or his
jurisdiction, or with grave abuse of discretion amounting to lack or excess of
jurisdiction, and there is no appeal, nor any plain, speedy, and adequate remedy
in the ordinary course of law, a person aggrieved thereby may file a verified
petition in the proper court, alleging the facts with certainty and praying that
judgment be rendered annulling or modifying the proceedings of such tribunal,
board or officer, and granting such incidental reliefs as law and justice may
require. (Emphasis and underscoring supplied)
Parenthetically, petitioners do not even allege with any modicum of particularity
how respondents acted without or in excess of their respective jurisdictions, or
with grave abuse of discretion amounting to lack or excess of jurisdiction.
The impropriety of certiorari as a remedy aside, the petitions fail just the same.
In constitutional litigations, the power of judicial review is limited by four exacting
requisites, viz: (a) there must be an actual case or controversy; (b) petitioners
must possess locus standi; (c) the question of constitutionality must be raised
at the earliest opportunity; and (d) the issue of constitutionality must be the lis
mota of the case.10
In the present case, the dismal absence of the first two requisites, which are the
most essential, renders the discussion of the last two superfluous.
Petitioners lack locus standi
Locus standi or legal standing requires a personal stake in the outcome of the
controversy as to assure that concrete adverseness which sharpens the
presentation of issues upon which the court so largely depends for illumination
of difficult constitutional questions.11
Anak Mindanao Party-List Group v. The Executive Secretary12 summarized the
rule on locus standi, thus:
Locus standi or legal standing has been defined as a personal and substantial
interest in a case such that the party has sustained or will sustain direct injury
as a result of the governmental act that is being challenged. The gist of the
question on standing is whether a party alleges such personal stake in the
outcome of the controversy as to assure that concrete adverseness which
sharpens the presentation of issues upon which the court depends for
illumination of difficult constitutional questions.
[A] party who assails the constitutionality of a statute must have a direct and
personal interest. It must show not only that the law or any governmental act is
invalid, but also that it sustained or is in immediate danger of sustaining some
direct injury as a result of its enforcement, and not merely that it suffers thereby
in some indefinite way. It must show that it has been or is about to be denied
some right or privilege to which it is lawfully entitled or that it is about to be
subjected to some burdens or penalties by reason of the statute or act
complained of.
For a concerned party to be allowed to raise a constitutional question, it must
show that (1) it has personally suffered some actual or threatened injury as a
result of the allegedly illegal conduct of the government, (2) the injury is fairly
traceable to the challenged action, and (3) the injury is likely to be redressed by
a favorable action. (emphasis and underscoring supplied.)
Petitioner-organizations assert locus standi on the basis of being suspected
"communist fronts" by the government, especially the military; whereas
individual petitioners invariably invoke the "transcendental importance" doctrine
and their status as citizens and taxpayers.
While Chavez v. PCGG13 holds that transcendental public importance
dispenses with the requirement that petitioner has experienced or is in actual
danger of suffering direct and personal injury, cases involving the
constitutionality of penal legislation belong to an altogether different genus of
constitutional litigation. Compelling State and societal interests in the
proscription of harmful conduct, as will later be elucidated, necessitate a closer
judicial scrutiny of locus standi.
Petitioners have not presented any personal stake in the outcome of the
controversy. None of them faces any charge under RA 9372.
KARAPATAN, Hustisya, Desaparecidos, SELDA, EMJP and PCR, petitioners
in G.R. No. 178890, allege that they have been subjected to "close security
surveillance by state security forces," their members followed by "suspicious
persons" and "vehicles with dark windshields," and their offices monitored by
"men with military build." They likewise claim that they have been branded as
"enemies of the [S]tate."14
Even conceding such gratuitous allegations, the Office of the Solicitor General
(OSG) correctly points out that petitioners have yet to show any connection
between the purported "surveillance" and the implementation of RA 9372.
BAYAN, GABRIELA, KMP, MCCCL, COURAGE, KADAMAY, SCW, LFS,
Anakbayan, PAMALAKAYA, ACT, Migrante, HEAD and Agham, petitioner-
organizations in G.R. No. 178581, would like the Court to take judicial notice of
respondents’ alleged action of tagging them as militant organizations fronting
for the Communist Party of the Philippines (CPP) and its armed wing, the
National People’s Army (NPA). The tagging, according to petitioners, is
tantamount to the effects of proscription without following the procedure under
the law.15 The petition of BAYAN-ST, et al. in G.R. No. 179461 pleads the same
allegations.
The Court cannot take judicial notice of the alleged "tagging" of petitioners.
Generally speaking, matters of judicial notice have three material requisites: (1)
the matter must be one of common and general knowledge; (2) it must be well
and authoritatively settled and not doubtful or uncertain; and (3) it must be
known to be within the limits of the jurisdiction of the court. The principal guide
in determining what facts may be assumed to be judicially known is that of
notoriety. Hence, it can be said that judicial notice is limited to facts evidenced
by public records and facts of general notoriety. Moreover, a judicially noticed
fact must be one not subject to a reasonable dispute in that it is either: (1)
generally known within the territorial jurisdiction of the trial court; or (2) capable
of accurate and ready determination by resorting to sources whose accuracy
cannot reasonably be questionable.
Things of "common knowledge," of which courts take judicial matters coming to
the knowledge of men generally in the course of the ordinary experiences of life,
or they may be matters which are generally accepted by mankind as true and
are capable of ready and unquestioned demonstration. Thus, facts which are
universally known, and which may be found in encyclopedias, dictionaries or
other publications, are judicially noticed, provided, they are of such universal
notoriety and so generally understood that they may be regarded as forming
part of the common knowledge of every person. As the common knowledge of
man ranges far and wide, a wide variety of particular facts have been judicially
noticed as being matters of common knowledge. But a court cannot take judicial
notice of any fact which, in part, is dependent on the existence or non-existence
of a fact of which the court has no constructive knowledge.16 (emphasis and
underscoring supplied.)
No ground was properly established by petitioners for the taking of judicial
notice. Petitioners’ apprehension is insufficient to substantiate their plea. That
no specific charge or proscription under RA 9372 has been filed against them,
three years after its effectivity, belies any claim of imminence of their perceived
threat emanating from the so-called tagging.
The same is true with petitioners KMU, NAFLU and CTUHR in G.R. No. 178554,
who merely harp as well on their supposed "link" to the CPP and NPA. They fail
to particularize how the implementation of specific provisions of RA 9372 would
result in direct injury to their organization and members.
While in our jurisdiction there is still no judicially declared terrorist organization,
the United States of America17 (US) and the European Union18 (EU) have both
classified the CPP, NPA and Abu Sayyaf Group as foreign terrorist
organizations. The Court takes note of the joint statement of Executive
Secretary Eduardo Ermita and Justice Secretary Raul Gonzales that the Arroyo
Administration would adopt the US and EU classification of the CPP and NPA
as terrorist organizations.19 Such statement notwithstanding, there is yet to be
filed before the courts an application to declare the CPP and NPA organizations
as domestic terrorist or outlawed organizations under RA 9372. Again, RA 9372
has been in effect for three years now. From July 2007 up to the present,
petitioner-organizations have conducted their activities fully and freely without
any threat of, much less an actual, prosecution or proscription under RA 9372.
Parenthetically, the Fourteenth Congress, in a resolution initiated by Party-list
Representatives Saturnino Ocampo, Teodoro Casiño, Rafael Mariano and
Luzviminda Ilagan,20 urged the government to resume peace negotiations with
the NDF by removing the impediments thereto, one of which is the adoption of
designation of the CPP and NPA by the US and EU as foreign terrorist
organizations. Considering the policy statement of the Aquino Administration21
Page 2 of 72
of resuming peace talks with the NDF, the government is not imminently
disposed to ask for the judicial proscription of the CPP-NPA consortium and its
allied organizations.
More important, there are other parties not before the Court with direct and
specific interests in the questions being raised.22 Of recent development is the
filing of the first case for proscription under Section 1723 of RA 9372 by the
Department of Justice before the Basilan Regional Trial Court against the Abu
Sayyaf Group.24 Petitioner-organizations do not in the least allege any link to
the Abu Sayyaf Group.
Some petitioners attempt, in vain though, to show the imminence of a
prosecution under RA 9372 by alluding to past rebellion charges against them.
In Ladlad v. Velasco,25 the Court ordered the dismissal of rebellion charges
filed in 2006 against then Party-List Representatives Crispin Beltran and Rafael
Mariano of Anakpawis, Liza Maza of GABRIELA, and Joel Virador, Teodoro
Casiño and Saturnino Ocampo of Bayan Muna. Also named in the dismissed
rebellion charges were petitioners Rey Claro Casambre, Carolina Pagaduan-
Araullo, Renato Reyes, Rita Baua, Emerencia de Jesus and Danilo Ramos; and
accused of being front organizations for the Communist movement were
petitioner-organizations KMU, BAYAN, GABRIELA, PAMALAKAYA, KMP,
KADAMAY, LFS and COURAGE.26
The dismissed rebellion charges, however, do not save the day for petitioners.
For one, those charges were filed in 2006, prior to the enactment of RA 9372,
and dismissed by this Court. For another, rebellion is defined and punished
under the Revised Penal Code. Prosecution for rebellion is not made more
imminent by the enactment of RA 9372, nor does the enactment thereof make
it easier to charge a person with rebellion, its elements not having been altered.
Conversely, previously filed but dismissed rebellion charges bear no relation to
prospective charges under RA 9372. It cannot be overemphasized that three
years after the enactment of RA 9372, none of petitioners has been charged.
Petitioners IBP and CODAL in G.R. No. 179157 base their claim of locus standi
on their sworn duty to uphold the Constitution. The IBP zeroes in on Section 21
of RA 9372 directing it to render assistance to those arrested or detained under
the law.
The mere invocation of the duty to preserve the rule of law does not, however,
suffice to clothe the IBP or any of its members with standing.27 The IBP failed
to sufficiently demonstrate how its mandate under the assailed statute revolts
against its constitutional rights and duties. Moreover, both the IBP and CODAL
have not pointed to even a single arrest or detention effected under RA 9372.
Former Senator Ma. Ana Consuelo Madrigal, who claims to have been the
subject of "political surveillance," also lacks locus standi. Prescinding from the
veracity, let alone legal basis, of the claim of "political surveillance," the Court
finds that she has not shown even the slightest threat of being charged under
RA 9372. Similarly lacking in locus standi are former Senator Wigberto Tañada
and Senator Sergio Osmeña III, who cite their being respectively a human rights
advocate and an oppositor to the passage of RA 9372. Outside these gratuitous
statements, no concrete injury to them has been pinpointed.
Petitioners Southern Hemisphere Engagement Network and Atty. Soliman
Santos Jr. in G.R. No. 178552 also conveniently state that the issues they raise
are of transcendental importance, "which must be settled early" and are of "far-
reaching implications," without mention of any specific provision of RA 9372
under which they have been charged, or may be charged. Mere invocation of
human rights advocacy has nowhere been held sufficient to clothe litigants with
locus standi. Petitioners must show an actual, or immediate danger of
sustaining, direct injury as a result of the law’s enforcement. To rule otherwise
would be to corrupt the settled doctrine of locus standi, as every worthy cause
is an interest shared by the general public.
Neither can locus standi be conferred upon individual petitioners as taxpayers
and citizens. A taxpayer suit is proper only when there is an exercise of the
spending or taxing power of Congress,28 whereas citizen standing must rest on
direct and personal interest in the proceeding.29
RA 9372 is a penal statute and does not even provide for any appropriation from
Congress for its implementation, while none of the individual petitioner-citizens
has alleged any direct and personal interest in the implementation of the law.
It bears to stress that generalized interests, albeit accompanied by the assertion
of a public right, do not establish locus standi. Evidence of a direct and personal
interest is key.
Petitioners fail to present an actual case or controversy
By constitutional fiat, judicial power operates only when there is an actual case
or controversy.
Section 1. The judicial power shall be vested in one Supreme Court and in such
lower courts as may be established by law.
Judicial power includes the duty of the courts of justice to settle actual
controversies involving rights which are legally demandable and enforceable,
and to determine whether or not there has been a grave abuse of discretion
amounting to lack or excess of jurisdiction on the part of any branch or
instrumentality of the Government.30 (emphasis and underscoring supplied.)
As early as Angara v. Electoral Commission,31 the Court ruled that the power
of judicial review is limited to actual cases or controversies to be exercised after
full opportunity of argument by the parties. Any attempt at abstraction could only
lead to dialectics and barren legal questions and to sterile conclusions unrelated
to actualities.
An actual case or controversy means an existing case or controversy that is
appropriate or ripe for determination, not conjectural or anticipatory, lest the
decision of the court would amount to an advisory opinion.32
Information Technology Foundation of the Philippines v. COMELEC33 cannot
be more emphatic:
[C]ourts do not sit to adjudicate mere academic questions to satisfy scholarly
interest, however intellectually challenging. The controversy must be
justiciable—definite and concrete, touching on the legal relations of parties
having adverse legal interests. In other words, the pleadings must show an
active antagonistic assertion of a legal right, on the one hand, and a denial
thereof on the other hand; that is, it must concern a real and not merely a
theoretical question or issue. There ought to be an actual and substantial
controversy admitting of specific relief through a decree conclusive in nature, as
distinguished from an opinion advising what the law would be upon a
hypothetical state of facts. (Emphasis and underscoring supplied)
Thus, a petition to declare unconstitutional a law converting the Municipality of
Makati into a Highly Urbanized City was held to be premature as it was tacked
on uncertain, contingent events.34 Similarly, a petition that fails to allege that
an application for a license to operate a radio or television station has been
denied or granted by the authorities does not present a justiciable controversy,
and merely wheedles the Court to rule on a hypothetical problem.35
The Court dismissed the petition in Philippine Press Institute v. Commission on
Elections36 for failure to cite any specific affirmative action of the Commission
on Elections to implement the assailed resolution. It refused, in Abbas v.
Commission on Elections,37 to rule on the religious freedom claim of the therein
petitioners based merely on a perceived potential conflict between the
provisions of the Muslim Code and those of the national law, there being no
actual controversy between real litigants.
The list of cases denying claims resting on purely hypothetical or anticipatory
grounds goes on ad infinitum.
The Court is not unaware that a reasonable certainty of the occurrence of a
perceived threat to any constitutional interest suffices to provide a basis for
mounting a constitutional challenge. This, however, is qualified by the
requirement that there must be sufficient facts to enable the Court to intelligently
adjudicate the issues.38
Very recently, the US Supreme Court, in Holder v. Humanitarian Law Project,39
allowed the pre-enforcement review of a criminal statute, challenged on
vagueness grounds, since plaintiffs faced a "credible threat of prosecution" and
"should not be required to await and undergo a criminal prosecution as the sole
means of seeking relief."40 The plaintiffs therein filed an action before a federal
court to assail the constitutionality of the material support statute, 18 U.S.C.
§2339B (a) (1),41 proscribing the provision of material support to organizations
declared by the Secretary of State as foreign terrorist organizations. They
claimed that they intended to provide support for the humanitarian and political
activities of two such organizations.
Prevailing American jurisprudence allows an adjudication on the merits when
an anticipatory petition clearly shows that the challenged prohibition forbids the
conduct or activity that a petitioner seeks to do, as there would then be a
justiciable controversy.42
Unlike the plaintiffs in Holder, however, herein petitioners have failed to show
that the challenged provisions of RA 9372 forbid constitutionally protected
conduct or activity that they seek to do. No demonstrable threat has been
established, much less a real and existing one.
Petitioners’ obscure allegations of sporadic "surveillance" and supposedly being
tagged as "communist fronts" in no way approximate a credible threat of
prosecution. From these allegations, the Court is being lured to render an
advisory opinion, which is not its function.43
Without any justiciable controversy, the petitions have become pleas for
declaratory relief, over which the Court has no original jurisdiction. Then again,
declaratory actions characterized by "double contingency," where both the
activity the petitioners intend to undertake and the anticipated reaction to it of a
public official are merely theorized, lie beyond judicial review for lack of
ripeness.44
The possibility of abuse in the implementation of RA 9372 does not avail to take
the present petitions out of the realm of the surreal and merely imagined. Such
possibility is not peculiar to RA 9372 since the exercise of any power granted
by law may be abused.45 Allegations of abuse must be anchored on real events
before courts may step in to settle actual controversies involving rights which
are legally demandable and enforceable.
A facial invalidation of a statute is allowed only in free speech cases, wherein
certain rules of constitutional litigation are rightly excepted
Petitioners assail for being intrinsically vague and impermissibly broad the
definition of the crime of terrorism46 under RA 9372 in that terms like
Page 3 of 72
"widespread and extraordinary fear and panic among the populace" and "coerce
the government to give in to an unlawful demand" are nebulous, leaving law
enforcement agencies with no standard to measure the prohibited acts.
Respondents, through the OSG, counter that the doctrines of void-for-
vagueness and overbreadth find no application in the present case since these
doctrines apply only to free speech cases; and that RA 9372 regulates conduct,
not speech.
For a jurisprudentially guided understanding of these doctrines, it is imperative
to outline the schools of thought on whether the void-for-vagueness and
overbreadth doctrines are equally applicable grounds to assail a penal statute.
Respondents interpret recent jurisprudence as slanting toward the idea of
limiting the application of the two doctrines to free speech cases. They
particularly cite Romualdez v. Hon. Sandiganbayan47 and Estrada v.
Sandiganbayan.48
The Court clarifies.
At issue in Romualdez v. Sandiganbayan was whether the word "intervene" in
Section 549 of the Anti-Graft and Corrupt Practices Act was intrinsically vague
and impermissibly broad. The Court stated that "the overbreadth and the
vagueness doctrines have special application only to free-speech cases," and
are "not appropriate for testing the validity of penal statutes."50 It added that, at
any rate, the challenged provision, under which the therein petitioner was
charged, is not vague.51
While in the subsequent case of Romualdez v. Commission on Elections,52 the
Court stated that a facial invalidation of criminal statutes is not appropriate, it
nonetheless proceeded to conduct a vagueness analysis, and concluded that
the therein subject election offense53 under the Voter’s Registration Act of
1996, with which the therein petitioners were charged, is couched in precise
language.54
The two Romualdez cases rely heavily on the Separate Opinion55 of Justice
Vicente V. Mendoza in the Estrada case, where the Court found the Anti-
Plunder Law (Republic Act No. 7080) clear and free from ambiguity respecting
the definition of the crime of plunder.
The position taken by Justice Mendoza in Estrada relates these two doctrines
to the concept of a "facial" invalidation as opposed to an "as-applied" challenge.
He basically postulated that allegations that a penal statute is vague and
overbroad do not justify a facial review of its validity. The pertinent portion of the
Concurring Opinion of Justice Mendoza, which was quoted at length in the main
Estrada decision, reads:
A facial challenge is allowed to be made to a vague statute and to one which is
overbroad because of possible "chilling effect" upon protected speech. The
theory is that "[w]hen statutes regulate or proscribe speech and no readily
apparent construction suggests itself as a vehicle for rehabilitating the statutes
in a single prosecution, the transcendent value to all society of constitutionally
protected expression is deemed to justify allowing attacks on overly broad
statutes with no requirement that the person making the attack demonstrate that
his own conduct could not be regulated by a statute drawn with narrow
specificity." The possible harm to society in permitting some unprotected speech
to go unpunished is outweighed by the possibility that the protected speech of
others may be deterred and perceived grievances left to fester because of
possible inhibitory effects of overly broad statutes.
This rationale does not apply to penal statutes. Criminal statutes have general
in terrorem effect resulting from their very existence, and, if facial challenge is
allowed for this reason alone, the State may well be prevented from enacting
laws against socially harmful conduct. In the area of criminal law, the law cannot
take chances as in the area of free speech.
The overbreadth and vagueness doctrines then have special application only to
free speech cases. They are inapt for testing the validity of penal statutes. As
the U.S. Supreme Court put it, in an opinion by Chief Justice Rehnquist, "we
have not recognized an 'overbreadth' doctrine outside the limited context of the
First Amendment." In Broadrick v. Oklahoma, the Court ruled that "claims of
facial overbreadth have been entertained in cases involving statutes which, by
their terms, seek to regulate only spoken words" and, again, that "overbreadth
claims, if entertained at all, have been curtailed when invoked against ordinary
criminal laws that are sought to be applied to protected conduct." For this
reason, it has been held that "a facial challenge to a legislative act is the most
difficult challenge to mount successfully, since the challenger must establish
that no set of circumstances exists under which the Act would be valid." As for
the vagueness doctrine, it is said that a litigant may challenge a statute on its
face only if it is vague in all its possible applications. "A plaintiff who engages in
some conduct that is clearly proscribed cannot complain of the vagueness of
the law as applied to the conduct of others."
In sum, the doctrines of strict scrutiny, overbreadth, and vagueness are
analytical tools developed for testing "on their faces" statutes in free speech
cases or, as they are called in American law, First Amendment cases. They
cannot be made to do service when what is involved is a criminal statute. With
respect to such statute, the established rule is that "one to whom application of
a statute is constitutional will not be heard to attack the statute on the ground
that impliedly it might also be taken as applying to other persons or other
situations in which its application might be unconstitutional." As has been
pointed out, "vagueness challenges in the First Amendment context, like
overbreadth challenges typically produce facial invalidation, while statutes
found vague as a matter of due process typically are invalidated [only] 'as
applied' to a particular defendant." Consequently, there is no basis for
petitioner's claim that this Court review the Anti-Plunder Law on its face and in
its entirety.
Indeed, "on its face" invalidation of statutes results in striking them down entirely
on the ground that they might be applied to parties not before the Court whose
activities are constitutionally protected. It constitutes a departure from the case
and controversy requirement of the Constitution and permits decisions to be
made without concrete factual settings and in sterile abstract contexts. But, as
the U.S. Supreme Court pointed out in Younger v. Harris
[T]he task of analyzing a proposed statute, pinpointing its deficiencies, and
requiring correction of these deficiencies before the statute is put into effect, is
rarely if ever an appropriate task for the judiciary. The combination of the relative
remoteness of the controversy, the impact on the legislative process of the relief
sought, and above all the speculative and amorphous nature of the required
line-by-line analysis of detailed statutes, . . . ordinarily results in a kind of case
that is wholly unsatisfactory for deciding constitutional questions, whichever way
they might be decided.
For these reasons, "on its face" invalidation of statutes has been described as
"manifestly strong medicine," to be employed "sparingly and only as a last
resort," and is generally disfavored. In determining the constitutionality of a
statute, therefore, its provisions which are alleged to have been violated in a
case must be examined in the light of the conduct with which the defendant is
charged.56 (Underscoring supplied.)
The confusion apparently stems from the interlocking relation of the overbreadth
and vagueness doctrines as grounds for a facial or as-applied challenge against
a penal statute (under a claim of violation of due process of law) or a speech
regulation (under a claim of abridgement of the freedom of speech and cognate
rights).
To be sure, the doctrine of vagueness and the doctrine of overbreadth do not
operate on the same plane.
A statute or act suffers from the defect of vagueness when it lacks
comprehensible standards that men of common intelligence must necessarily
guess at its meaning and differ as to its application. It is repugnant to the
Constitution in two respects: (1) it violates due process for failure to accord
persons, especially the parties targeted by it, fair notice of the conduct to avoid;
and (2) it leaves law enforcers unbridled discretion in carrying out its provisions
and becomes an arbitrary flexing of the Government muscle.57 The overbreadth
doctrine, meanwhile, decrees that a governmental purpose to control or prevent
activities constitutionally subject to state regulations may not be achieved by
means which sweep unnecessarily broadly and thereby invade the area of
protected freedoms.58
As distinguished from the vagueness doctrine, the overbreadth doctrine
assumes that individuals will understand what a statute prohibits and will
accordingly refrain from that behavior, even though some of it is protected.59
A "facial" challenge is likewise different from an "as-applied" challenge.
Distinguished from an as-applied challenge which considers only extant facts
affecting real litigants, a facial invalidation is an examination of the entire law,
pinpointing its flaws and defects, not only on the basis of its actual operation to
the parties, but also on the assumption or prediction that its very existence may
cause others not before the court to refrain from constitutionally protected
speech or activities.60
Justice Mendoza accurately phrased the subtitle61 in his concurring opinion that
the vagueness and overbreadth doctrines, as grounds for a facial challenge, are
not applicable to penal laws. A litigant cannot thus successfully mount a facial
challenge against a criminal statute on either vagueness or overbreadth
grounds.
The allowance of a facial challenge in free speech cases is justified by the aim
to avert the "chilling effect" on protected speech, the exercise of which should
not at all times be abridged.62 As reflected earlier, this rationale is inapplicable
to plain penal statutes that generally bear an "in terrorem effect" in deterring
socially harmful conduct. In fact, the legislature may even forbid and penalize
acts formerly considered innocent and lawful, so long as it refrains from
diminishing or dissuading the exercise of constitutionally protected rights.63
The Court reiterated that there are "critical limitations by which a criminal statute
may be challenged" and "underscored that an ‘on-its-face’ invalidation of penal
statutes x x x may not be allowed."64
[T]he rule established in our jurisdiction is, only statutes on free speech,
religious freedom, and other fundamental rights may be facially challenged.
Under no case may ordinary penal statutes be subjected to a facial challenge.
The rationale is obvious. If a facial challenge to a penal statute is permitted, the
prosecution of crimes may be hampered. No prosecution would be possible. A
strong criticism against employing a facial challenge in the case of penal
statutes, if the same is allowed, would effectively go against the grain of the
doctrinal requirement of an existing and concrete controversy before judicial
power may be appropriately exercised. A facial challenge against a penal
statute is, at best, amorphous and speculative. It would, essentially, force the
court to consider third parties who are not before it. As I have said in my
opposition to the allowance of a facial challenge to attack penal statutes, such
a test will impair the State’s ability to deal with crime. If warranted, there would
Page 4 of 72
be nothing that can hinder an accused from defeating the State’s power to
prosecute on a mere showing that, as applied to third parties, the penal statute
is vague or overbroad, notwithstanding that the law is clear as applied to him.65
(Emphasis and underscoring supplied)
It is settled, on the other hand, that the application of the overbreadth doctrine
is limited to a facial kind of challenge and, owing to the given rationale of a facial
challenge, applicable only to free speech cases.
By its nature, the overbreadth doctrine has to necessarily apply a facial type of
invalidation in order to plot areas of protected speech, inevitably almost always
under situations not before the court, that are impermissibly swept by the
substantially overbroad regulation. Otherwise stated, a statute cannot be
properly analyzed for being substantially overbroad if the court confines itself
only to facts as applied to the litigants.
The most distinctive feature of the overbreadth technique is that it marks an
exception to some of the usual rules of constitutional litigation. Ordinarily, a
particular litigant claims that a statute is unconstitutional as applied to him or
her; if the litigant prevails, the courts carve away the unconstitutional aspects of
the law by invalidating its improper applications on a case to case basis.
Moreover, challengers to a law are not permitted to raise the rights of third
parties and can only assert their own interests. In overbreadth analysis, those
rules give way; challenges are permitted to raise the rights of third parties; and
the court invalidates the entire statute "on its face," not merely "as applied for"
so that the overbroad law becomes unenforceable until a properly authorized
court construes it more narrowly. The factor that motivates courts to depart from
the normal adjudicatory rules is the concern with the "chilling;" deterrent effect
of the overbroad statute on third parties not courageous enough to bring suit.
The Court assumes that an overbroad law’s "very existence may cause others
not before the court to refrain from constitutionally protected speech or
expression." An overbreadth ruling is designed to remove that deterrent effect
on the speech of those third parties.66 (Emphasis in the original omitted;
underscoring supplied.)
In restricting the overbreadth doctrine to free speech claims, the Court, in at
least two cases,67 observed that the US Supreme Court has not recognized an
overbreadth doctrine outside the limited context of the First Amendment,68 and
that claims of facial overbreadth have been entertained in cases involving
statutes which, by their terms, seek to regulate only spoken words.69 In Virginia
v. Hicks,70 it was held that rarely, if ever, will an overbreadth challenge succeed
against a law or regulation that is not specifically addressed to speech or
speech-related conduct. Attacks on overly broad statutes are justified by the
"transcendent value to all society of constitutionally protected expression."71
Since a penal statute may only be assailed for being vague as applied to
petitioners, a limited vagueness analysis of the definition of "terrorism" in RA
9372 is legally impermissible absent an actual or imminent charge against them
While Estrada did not apply the overbreadth doctrine, it did not preclude the
operation of the vagueness test on the Anti-Plunder Law as applied to the
therein petitioner, finding, however, that there was no basis to review the law
"on its face and in its entirety."72 It stressed that "statutes found vague as a
matter of due process typically are invalidated only 'as applied' to a particular
defendant."73
American jurisprudence74 instructs that "vagueness challenges that do not
involve the First Amendment must be examined in light of the specific facts of
the case at hand and not with regard to the statute's facial validity."
For more than 125 years, the US Supreme Court has evaluated defendants’
claims that criminal statutes are unconstitutionally vague, developing a doctrine
hailed as "among the most important guarantees of liberty under law."75
In this jurisdiction, the void-for-vagueness doctrine asserted under the due
process clause has been utilized in examining the constitutionality of criminal
statutes. In at least three cases,76 the Court brought the doctrine into play in
analyzing an ordinance penalizing the non-payment of municipal tax on
fishponds, the crime of illegal recruitment punishable under Article 132(b) of the
Labor Code, and the vagrancy provision under Article 202 (2) of the Revised
Penal Code. Notably, the petitioners in these three cases, similar to those in the
two Romualdez and Estrada cases, were actually charged with the therein
assailed penal statute, unlike in the present case.
There is no merit in the claim that RA 9372 regulates speech so as to permit a
facial analysis of its validity
From the definition of the crime of terrorism in the earlier cited Section 3 of RA
9372, the following elements may be culled: (1) the offender commits an act
punishable under any of the cited provisions of the Revised Penal Code, or
under any of the enumerated special penal laws; (2) the commission of the
predicate crime sows and creates a condition of widespread and extraordinary
fear and panic among the populace; and (3) the offender is actuated by the
desire to coerce the government to give in to an unlawful demand.
In insisting on a facial challenge on the invocation that the law penalizes speech,
petitioners contend that the element of "unlawful demand" in the definition of
terrorism77 must necessarily be transmitted through some form of expression
protected by the free speech clause.
The argument does not persuade. What the law seeks to penalize is conduct,
not speech.
Before a charge for terrorism may be filed under RA 9372, there must first be a
predicate crime actually committed to trigger the operation of the key qualifying
phrases in the other elements of the crime, including the coercion of the
government to accede to an "unlawful demand." Given the presence of the first
element, any attempt at singling out or highlighting the communicative
component of the prohibition cannot recategorize the unprotected conduct into
a protected speech.
Petitioners’ notion on the transmission of message is entirely inaccurate, as it
unduly focuses on just one particle of an element of the crime. Almost every
commission of a crime entails some mincing of words on the part of the offender
like in declaring to launch overt criminal acts against a victim, in haggling on the
amount of ransom or conditions, or in negotiating a deceitful transaction. An
analogy in one U.S. case78 illustrated that the fact that the prohibition on
discrimination in hiring on the basis of race will require an employer to take down
a sign reading "White Applicants Only" hardly means that the law should be
analyzed as one regulating speech rather than conduct.
Utterances not elemental but inevitably incidental to the doing of the criminal
conduct alter neither the intent of the law to punish socially harmful conduct nor
the essence of the whole act as conduct and not speech. This holds true a
fortiori in the present case where the expression figures only as an inevitable
incident of making the element of coercion perceptible.
[I]t is true that the agreements and course of conduct here were as in most
instances brought about through speaking or writing. But it has never been
deemed an abridgement of freedom of speech or press to make a course of
conduct illegal merely because the conduct was, in part, initiated, evidenced, or
carried out by means of language, either spoken, written, or printed. Such an
expansive interpretation of the constitutional guaranties of speech and press
would make it practically impossible ever to enforce laws against agreements in
restraint of trade as well as many other agreements and conspiracies deemed
injurious to society.79 (italics and underscoring supplied)
Certain kinds of speech have been treated as unprotected conduct, because
they merely evidence a prohibited conduct.80 Since speech is not involved here,
the Court cannot heed the call for a facial analysis.1avvphi1
IN FINE, Estrada and the other cited authorities engaged in a vagueness
analysis of the therein subject penal statute as applied to the therein petitioners
inasmuch as they were actually charged with the pertinent crimes challenged
on vagueness grounds. The Court in said cases, however, found no basis to
review the assailed penal statute on its face and in its entirety.
In Holder, on the other hand, the US Supreme Court allowed the pre-
enforcement review of a criminal statute, challenged on vagueness grounds,
since the therein plaintiffs faced a "credible threat of prosecution" and "should
not be required to await and undergo a criminal prosecution as the sole means
of seeking relief."
As earlier reflected, petitioners have established neither an actual charge nor a
credible threat of prosecution under RA 9372. Even a limited vagueness
analysis of the assailed definition of "terrorism" is thus legally impermissible.
The Court reminds litigants that judicial power neither contemplates speculative
counseling on a statute’s future effect on hypothetical scenarios nor allows the
courts to be used as an extension of a failed legislative lobbying in Congress.
WHEREFORE, the petitions are DISMISSED.
SO ORDERED.
CONCHITA CARPIO MORALES
Associate Justice
Republic of the Philippines
SUPREME COURT
Manila
EN BANC
G.R. No. 173034 October 9, 2007
PHARMACEUTICAL AND HEALTH CARE ASSOCIATION OF THE
PHILIPPINES, petitioner,
vs.
HEALTH SECRETARY FRANCISCO T. DUQUE III; HEALTH UNDER
SECRETARIES DR. ETHELYN P. NIETO, DR. MARGARITA M. GALON,
ATTY. ALEXANDER A. PADILLA, & DR. JADE F. DEL MUNDO; and
ASSISTANT SECRETARIES DR. MARIO C. VILLAVERDE, DR. DAVID J.
LOZADA, AND DR. NEMESIO T. GAKO, respondents.
DECISION
AUSTRIA-MARTINEZ, J.:
The Court and all parties involved are in agreement that the best nourishment
for an infant is mother's milk. There is nothing greater than for a mother to
nurture her beloved child straight from her bosom. The ideal is, of course, for
each and every Filipino child to enjoy the unequaled benefits of breastmilk. But
how should this end be attained?
Page 5 of 72
Before the Court is a petition for certiorari under Rule 65 of the Rules of Court,
seeking to nullify Administrative Order (A.O.) No. 2006-0012 entitled, Revised
Implementing Rules and Regulations of Executive Order No. 51, Otherwise
Known as The "Milk Code," Relevant International Agreements, Penalizing
Violations Thereof, and for Other Purposes (RIRR). Petitioner posits that the
RIRR is not valid as it contains provisions that are not constitutional and go
beyond the law it is supposed to implement.
Named as respondents are the Health Secretary, Undersecretaries, and
Assistant Secretaries of the Department of Health (DOH). For purposes of
herein petition, the DOH is deemed impleaded as a co-respondent since
respondents issued the questioned RIRR in their capacity as officials of said
executive agency.1
Executive Order No. 51 (Milk Code) was issued by President Corazon Aquino
on October 28, 1986 by virtue of the legislative powers granted to the president
under the Freedom Constitution. One of the preambular clauses of the Milk
Code states that the law seeks to give effect to Article 112 of the International
Code of Marketing of Breastmilk Substitutes (ICMBS), a code adopted by the
World Health Assembly (WHA) in 1981. From 1982 to 2006, the WHA adopted
several Resolutions to the effect that breastfeeding should be supported,
promoted and protected, hence, it should be ensured that nutrition and health
claims are not permitted for breastmilk substitutes.
In 1990, the Philippines ratified the International Convention on the Rights of the
Child. Article 24 of said instrument provides that State Parties should take
appropriate measures to diminish infant and child mortality, and ensure that all
segments of society, specially parents and children, are informed of the
advantages of breastfeeding.
On May 15, 2006, the DOH issued herein assailed RIRR which was to take
effect on July 7, 2006.
However, on June 28, 2006, petitioner, representing its members that are
manufacturers of breastmilk substitutes, filed the present Petition for Certiorari
and Prohibition with Prayer for the Issuance of a Temporary Restraining Order
(TRO) or Writ of Preliminary Injunction.
The main issue raised in the petition is whether respondents officers of the DOH
acted without or in excess of jurisdiction, or with grave abuse of discretion
amounting to lack or excess of jurisdiction, and in violation of the provisions of
the Constitution in promulgating the RIRR.3
On August 15, 2006, the Court issued a Resolution granting a TRO enjoining
respondents from implementing the questioned RIRR.
After the Comment and Reply had been filed, the Court set the case for oral
arguments on June 19, 2007. The Court issued an Advisory (Guidance for Oral
Arguments) dated June 5, 2007, to wit:
The Court hereby sets the following issues:
1. Whether or not petitioner is a real party-in-interest;
2. Whether Administrative Order No. 2006-0012 or the Revised Implementing
Rules and Regulations (RIRR) issued by the Department of Health (DOH) is not
constitutional;
2.1 Whether the RIRR is in accord with the provisions of Executive Order No.
51 (Milk Code);
2.2 Whether pertinent international agreements1 entered into by the Philippines
are part of the law of the land and may be implemented by the DOH through the
RIRR; If in the affirmative, whether the RIRR is in accord with the international
agreements;
2.3 Whether Sections 4, 5(w), 22, 32, 47, and 52 of the RIRR violate the due
process clause and are in restraint of trade; and
2.4 Whether Section 13 of the RIRR on Total Effect provides sufficient
standards.
_____________
1 (1) United Nations Convention on the Rights of the Child; (2) the WHO and
Unicef "2002 Global Strategy on Infant and Young Child Feeding;" and (3)
various World Health Assembly (WHA) Resolutions.
The parties filed their respective memoranda.
The petition is partly imbued with merit.
On the issue of petitioner's standing
With regard to the issue of whether petitioner may prosecute this case as the
real party-in-interest, the Court adopts the view enunciated in Executive
Secretary v. Court of Appeals,4 to wit:
The modern view is that an association has standing to complain of injuries to
its members. This view fuses the legal identity of an association with that of its
members. An association has standing to file suit for its workers despite its lack
of direct interest if its members are affected by the action. An organization has
standing to assert the concerns of its constituents.

xxxx
x x x We note that, under its Articles of Incorporation, the respondent was
organized x x x to act as the representative of any individual, company, entity or
association on matters related to the manpower recruitment industry, and to
perform other acts and activities necessary to accomplish the purposes
embodied therein. The respondent is, thus, the appropriate party to assert the
rights of its members, because it and its members are in every practical sense
identical. x x x The respondent [association] is but the medium through which
its individual members seek to make more effective the expression of their
voices and the redress of their grievances. 5 (Emphasis supplied)
which was reasserted in Purok Bagong Silang Association, Inc. v. Yuipco,6
where the Court ruled that an association has the legal personality to represent
its members because the results of the case will affect their vital interests.7
Herein petitioner's Amended Articles of Incorporation contains a similar
provision just like in Executive Secretary, that the association is formed "to
represent directly or through approved representatives the pharmaceutical and
health care industry before the Philippine Government and any of its agencies,
the medical professions and the general public."8 Thus, as an organization,
petitioner definitely has an interest in fulfilling its avowed purpose of
representing members who are part of the pharmaceutical and health care
industry. Petitioner is duly authorized9 to take the appropriate course of action
to bring to the attention of government agencies and the courts any grievance
suffered by its members which are directly affected by the RIRR. Petitioner,
which is mandated by its Amended Articles of Incorporation to represent the
entire industry, would be remiss in its duties if it fails to act on governmental
action that would affect any of its industry members, no matter how few or
numerous they are. Hence, petitioner, whose legal identity is deemed fused with
its members, should be considered as a real party-in-interest which stands to
be benefited or injured by any judgment in the present action.
On the constitutionality of the provisions of the RIRR
First, the Court will determine if pertinent international instruments adverted to
by respondents are part of the law of the land.
Petitioner assails the RIRR for allegedly going beyond the provisions of the Milk
Code, thereby amending and expanding the coverage of said law. The defense
of the DOH is that the RIRR implements not only the Milk Code but also various
international instruments10 regarding infant and young child nutrition. It is
respondents' position that said international instruments are deemed part of the
law of the land and therefore the DOH may implement them through the RIRR.
The Court notes that the following international instruments invoked by
respondents, namely: (1) The United Nations Convention on the Rights of the
Child; (2) The International Covenant on Economic, Social and Cultural Rights;
and (3) the Convention on the Elimination of All Forms of Discrimination Against
Women, only provide in general terms that steps must be taken by State Parties
to diminish infant and child mortality and inform society of the advantages of
breastfeeding, ensure the health and well-being of families, and ensure that
women are provided with services and nutrition in connection with pregnancy
and lactation. Said instruments do not contain specific provisions regarding the
use or marketing of breastmilk substitutes.
The international instruments that do have specific provisions regarding
breastmilk substitutes are the ICMBS and various WHA Resolutions.
Under the 1987 Constitution, international law can become part of the sphere of
domestic law either by transformation or incorporation.11 The transformation
method requires that an international law be transformed into a domestic law
through a constitutional mechanism such as local legislation. The incorporation
method applies when, by mere constitutional declaration, international law is
deemed to have the force of domestic law.12
Treaties become part of the law of the land through transformation pursuant to
Article VII, Section 21 of the Constitution which provides that "[n]o treaty or
international agreement shall be valid and effective unless concurred in by at
least two-thirds of all the members of the Senate." Thus, treaties or conventional
international law must go through a process prescribed by the Constitution for it
to be transformed into municipal law that can be applied to domestic conflicts.13
The ICMBS and WHA Resolutions are not treaties as they have not been
concurred in by at least two-thirds of all members of the Senate as required
under Section 21, Article VII of the 1987 Constitution.
However, the ICMBS which was adopted by the WHA in 1981 had been
transformed into domestic law through local legislation, the Milk Code.
Consequently, it is the Milk Code that has the force and effect of law in this
jurisdiction and not the ICMBS per se.
The Milk Code is almost a verbatim reproduction of the ICMBS, but it is well to
emphasize at this point that the Code did not adopt the provision in the ICMBS
absolutely prohibiting advertising or other forms of promotion to the general
public of products within the scope of the ICMBS. Instead, the Milk Code
expressly provides that advertising, promotion, or other marketing materials
may be allowed if such materials are duly authorized and approved by the Inter-
Agency Committee (IAC).
On the other hand, Section 2, Article II of the 1987 Constitution, to wit:
Page 6 of 72
SECTION 2. 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. (Emphasis supplied)
embodies the incorporation method.14
In Mijares v. Ranada,15 the Court held thus:
[G]enerally accepted principles of international law, by virtue of the incorporation
clause of the Constitution, form part of the laws of the land even if they do not
derive from treaty obligations. The classical formulation in international law sees
those customary rules accepted as binding result from the combination [of] two
elements: the established, widespread, and consistent practice on the part of
States; and a psychological element known as the opinion juris sive
necessitates (opinion as to law or necessity). Implicit in the latter element is a
belief that the practice in question is rendered obligatory by the existence of a
rule of law requiring it.16 (Emphasis supplied)
"Generally accepted principles of international law" refers to norms of general
or customary international law which are binding on all states,17 i.e.,
renunciation of war as an instrument of national policy, the principle of sovereign
immunity,18 a person's right to life, liberty and due process,19 and pacta sunt
servanda,20 among others. The concept of "generally accepted principles of
law" has also been depicted in this wise:
Some legal scholars and judges look upon certain "general principles of law" as
a primary source of international law because they have the "character of jus
rationale" and are "valid through all kinds of human societies." (Judge Tanaka
in his dissenting opinion in the 1966 South West Africa Case, 1966 I.C.J. 296).
O'Connell holds that certain priniciples are part of international law because they
are "basic to legal systems generally" and hence part of the jus gentium. These
principles, he believes, are established by a process of reasoning based on the
common identity of all legal systems. If there should be doubt or disagreement,
one must look to state practice and determine whether the municipal law
principle provides a just and acceptable solution. x x x 21 (Emphasis supplied)
Fr. Joaquin G. Bernas defines customary international law as follows:
Custom or customary international law means "a general and consistent
practice of states followed by them from a sense of legal obligation [opinio juris]."
(Restatement) This statement contains the two basic elements of custom: the
material factor, that is, how states behave, and the psychological or subjective
factor, that is, why they behave the way they do.
xxxx
The initial factor for determining the existence of custom is the actual behavior
of states. This includes several elements: duration, consistency, and generality
of the practice of states.
The required duration can be either short or long. x x x
xxxx
Duration therefore is not the most important element. More important is the
consistency and the generality of the practice. x x x
xxxx
Once the existence of state practice has been established, it becomes
necessary to determine why states behave the way they do. Do states behave
the way they do because they consider it obligatory to behave thus or do they
do it only as a matter of courtesy? Opinio juris, or the belief that a certain form
of behavior is obligatory, is what makes practice an international rule. Without
it, practice is not law.22 (Underscoring and Emphasis supplied)
Clearly, customary international law is deemed incorporated into our domestic
system.23
WHA Resolutions have not been embodied in any local legislation. Have they
attained the status of customary law and should they then be deemed
incorporated as part of the law of the land?
The World Health Organization (WHO) is one of the international specialized
agencies allied with the United Nations (UN) by virtue of Article 57,24 in relation
to Article 6325 of the UN Charter. Under the 1946 WHO Constitution, it is the
WHA which determines the policies of the WHO,26 and has the power to adopt
regulations concerning "advertising and labeling of biological, pharmaceutical
and similar products moving in international commerce,"27 and to "make
recommendations to members with respect to any matter within the competence
of the Organization."28 The legal effect of its regulations, as opposed to
recommendations, is quite different.
Regulations, along with conventions and agreements, duly adopted by the WHA
bind member states thus:
Article 19. The Health Assembly shall have authority to adopt conventions or
agreements with respect to any matter within the competence of the
Organization. A two-thirds vote of the Health Assembly shall be required for the
adoption of such conventions or agreements, which shall come into force for
each Member when accepted by it in accordance with its constitutional
processes.
Article 20. Each Member undertakes that it will, within eighteen months after the
adoption by the Health Assembly of a convention or agreement, take action
relative to the acceptance of such convention or agreement. Each Member shall
notify the Director-General of the action taken, and if it does not accept such
convention or agreement within the time limit, it will furnish a statement of the
reasons for non-acceptance. In case of acceptance, each Member agrees to
make an annual report to the Director-General in accordance with Chapter XIV.
Article 21. The Health Assembly shall have authority to adopt regulations
concerning: (a) sanitary and quarantine requirements and other procedures
designed to prevent the international spread of disease; (b) nomenclatures with
respect to diseases, causes of death and public health practices; (c) standards
with respect to diagnostic procedures for international use; (d) standards with
respect to the safety, purity and potency of biological, pharmaceutical and
similar products moving in international commerce; (e) advertising and labeling
of biological, pharmaceutical and similar products moving in international
commerce.
Article 22. Regulations adopted pursuant to Article 21 shall come into force for
all Members after due notice has been given of their adoption by the Health
Assembly except for such Members as may notify the Director-General of
rejection or reservations within the period stated in the notice. (Emphasis
supplied)
On the other hand, under Article 23, recommendations of the WHA do not come
into force for members, in the same way that conventions or agreements under
Article 19 and regulations under Article 21 come into force. Article 23 of the
WHO Constitution reads:
Article 23. The Health Assembly shall have authority to make recommendations
to Members with respect to any matter within the competence of the
Organization. (Emphasis supplied)
The absence of a provision in Article 23 of any mechanism by which the
recommendation would come into force for member states is conspicuous.
The former Senior Legal Officer of WHO, Sami Shubber, stated that WHA
recommendations are generally not binding, but they "carry moral and political
weight, as they constitute the judgment on a health issue of the collective
membership of the highest international body in the field of health."29 Even the
ICMBS itself was adopted as a mere recommendation, as WHA Resolution No.
34.22 states:
"The Thirty-Fourth World Health Assembly x x x adopts, in the sense of Article
23 of the Constitution, the International Code of Marketing of Breastmilk
Substitutes annexed to the present resolution." (Emphasis supplied)
The Introduction to the ICMBS also reads as follows:
In January 1981, the Executive Board of the World Health Organization at its
sixty-seventh session, considered the fourth draft of the code, endorsed it, and
unanimously recommended to the Thirty-fourth World Health Assembly the text
of a resolution by which it would adopt the code in the form of a recommendation
rather than a regulation. x x x (Emphasis supplied)
The legal value of WHA Resolutions as recommendations is summarized in
Article 62 of the WHO Constitution, to wit:
Art. 62. Each member shall report annually on the action taken with respect to
recommendations made to it by the Organization, and with respect to
conventions, agreements and regulations.
Apparently, the WHA Resolution adopting the ICMBS and subsequent WHA
Resolutions urging member states to implement the ICMBS are merely
recommendatory and legally non-binding. Thus, unlike what has been done with
the ICMBS whereby the legislature enacted most of the provisions into law
which is the Milk Code, the subsequent WHA Resolutions,30 specifically
providing for exclusive breastfeeding from 0-6 months, continued breastfeeding
up to 24 months, and absolutely prohibiting advertisements and promotions of
breastmilk substitutes, have not been adopted as a domestic law.
It is propounded that WHA Resolutions may constitute "soft law" or non-binding
norms, principles and practices that influence state behavior.31
"Soft law" does not fall into any of the categories of international law set forth in
Article 38, Chapter III of the 1946 Statute of the International Court of Justice.32
It is, however, an expression of non-binding norms, principles, and practices
that influence state behavior.33 Certain declarations and resolutions of the UN
General Assembly fall under this category.34 The most notable is the UN
Declaration of Human Rights, which this Court has enforced in various cases,
specifically, Government of Hongkong Special Administrative Region v.
Olalia,35 Mejoff v. Director of Prisons,36 Mijares v. Rañada37 and Shangri-la
International Hotel Management, Ltd. v. Developers Group of Companies,
Inc..38
The World Intellectual Property Organization (WIPO), a specialized agency
attached to the UN with the mandate to promote and protect intellectual property
worldwide, has resorted to soft law as a rapid means of norm creation, in order
"to reflect and respond to the changing needs and demands of its
constituents."39 Other international organizations which have resorted to soft
law include the International Labor Organization and the Food and Agriculture
Organization (in the form of the Codex Alimentarius).40
Page 7 of 72
WHO has resorted to soft law. This was most evident at the time of the Severe
Acute Respiratory Syndrome (SARS) and Avian flu outbreaks.
Although the IHR Resolution does not create new international law binding on
WHO member states, it provides an excellent example of the power of "soft law"
in international relations. International lawyers typically distinguish binding rules
of international law-"hard law"-from non-binding norms, principles, and practices
that influence state behavior-"soft law." WHO has during its existence generated
many soft law norms, creating a "soft law regime" in international governance
for public health.
The "soft law" SARS and IHR Resolutions represent significant steps in laying
the political groundwork for improved international cooperation on infectious
diseases. These resolutions clearly define WHO member states' normative duty
to cooperate fully with other countries and with WHO in connection with
infectious disease surveillance and response to outbreaks.
This duty is neither binding nor enforceable, but, in the wake of the SARS
epidemic, the duty is powerful politically for two reasons. First, the SARS
outbreak has taught the lesson that participating in, and enhancing, international
cooperation on infectious disease controls is in a country's self-interest x x x if
this warning is heeded, the "soft law" in the SARS and IHR Resolution could
inform the development of general and consistent state practice on infectious
disease surveillance and outbreak response, perhaps crystallizing eventually
into customary international law on infectious disease prevention and control.41
In the Philippines, the executive department implemented certain measures
recommended by WHO to address the outbreaks of SARS and Avian flu by
issuing Executive Order (E.O.) No. 201 on April 26, 2003 and E.O. No. 280 on
February 2, 2004, delegating to various departments broad powers to close
down schools/establishments, conduct health surveillance and monitoring, and
ban importation of poultry and agricultural products.
It must be emphasized that even under such an international emergency, the
duty of a state to implement the IHR Resolution was still considered not binding
or enforceable, although said resolutions had great political influence.
As previously discussed, for an international rule to be considered as customary
law, it must be established that such rule is being followed by states because
they consider it obligatory to comply with such rules (opinio juris). Respondents
have not presented any evidence to prove that the WHA Resolutions, although
signed by most of the member states, were in fact enforced or practiced by at
least a majority of the member states; neither have respondents proven that any
compliance by member states with said WHA Resolutions was obligatory in
nature.
Respondents failed to establish that the provisions of pertinent WHA
Resolutions are customary international law that may be deemed part of the law
of the land.
Consequently, legislation is necessary to transform the provisions of the WHA
Resolutions into domestic law. The provisions of the WHA Resolutions cannot
be considered as part of the law of the land that can be implemented by
executive agencies without the need of a law enacted by the legislature.
Second, the Court will determine whether the DOH may implement the
provisions of the WHA Resolutions by virtue of its powers and functions under
the Revised Administrative Code even in the absence of a domestic law.
Section 3, Chapter 1, Title IX of the Revised Administrative Code of 1987
provides that the DOH shall define the national health policy and implement a
national health plan within the framework of the government's general policies
and plans, and issue orders and regulations concerning the implementation of
established health policies.
It is crucial to ascertain whether the absolute prohibition on advertising and other
forms of promotion of breastmilk substitutes provided in some WHA Resolutions
has been adopted as part of the national health policy.
Respondents submit that the national policy on infant and young child feeding
is embodied in A.O. No. 2005-0014, dated May 23, 2005. Basically, the
Administrative Order declared the following policy guidelines: (1) ideal
breastfeeding practices, such as early initiation of breastfeeding, exclusive
breastfeeding for the first six months, extended breastfeeding up to two years
and beyond; (2) appropriate complementary feeding, which is to start at age six
months; (3) micronutrient supplementation; (4) universal salt iodization; (5) the
exercise of other feeding options; and (6) feeding in exceptionally difficult
circumstances. Indeed, the primacy of breastfeeding for children is emphasized
as a national health policy. However, nowhere in A.O. No. 2005-0014 is it
declared that as part of such health policy, the advertisement or promotion of
breastmilk substitutes should be absolutely prohibited.
The national policy of protection, promotion and support of breastfeeding cannot
automatically be equated with a total ban on advertising for breastmilk
substitutes.
In view of the enactment of the Milk Code which does not contain a total ban on
the advertising and promotion of breastmilk substitutes, but instead, specifically
creates an IAC which will regulate said advertising and promotion, it follows that
a total ban policy could be implemented only pursuant to a law amending the
Milk Code passed by the constitutionally authorized branch of government, the
legislature.
 because they tend to convey or give
Thus, only the provisions of the Milk Code, but not those of subsequent WHA subliminal messages or impressions that
Resolutions, can be validly implemented by the DOH through the subject RIRR. undermine breastmilk and breastfeeding
or otherwise exaggerate breastmilk
Third, the Court will now determine whether the provisions of the RIRR are in substitutes and/or replacements, as well
accordance with those of the Milk Code. as related products covered within the
scope of this Code.
In support of its claim that the RIRR is inconsistent with the Milk Code, petitioner
alleges the following:
Section 13. "Total Effect" - Promotion
1. The Milk Code limits its coverage to children 0-12 months old, but the RIRR of products within the scope of this Code
extended its coverage to "young children" or those from ages two years old and must be objective and should not equate
beyond: or make the product appear to be as
good or equal to breastmilk or
MILK CODE RIRR breastfeeding in the advertising concept.
It must not in any case undermine
WHEREAS, in order to ensure that Section 2. Purpose – These Revised breastmilk or breastfeeding. The "total
safe and adequate nutrition for Rules and Regulations are hereby effect" should not directly or indirectly
infants is provided, there is a need to promulgated to ensure the provision of suggest that buying their product would
protect and promote breastfeeding safe and adequate nutrition for infants produce better individuals, or resulting in
and to inform the public about the and young children by the promotion, greater love, intelligence, ability,
proper use of breastmilk substitutes protection and support of breastfeeding harmony or in any manner bring better
and supplements and related and by ensuring the proper use of health to the baby or other such
products through adequate, breastmilk substitutes, breastmilk exaggerated and unsubstantiated claim.
consistent and objective information supplements and related products when
and appropriate regulation of the these are medically indicated and only
marketing and distribution of the said when necessary, on the basis of Section 15. Content of Materials. - The
substitutes, supplements and related adequate information and through following shall not be included in
products; appropriate marketing and distribution. advertising, promotional and marketing
materials:
SECTION 4(e). "Infant" means a Section 5(ff). "Young Child" means a
person falling within the age bracket person from the age of more than twelve a. Texts, pictures, illustrations or
of 0-12 months. (12) months up to the age of three (3) information which discourage or tend to
years (36 months). undermine the benefits or superiority of
breastfeeding or which idealize the use
of breastmilk substitutes and milk
supplements. In this connection, no
2. The Milk Code recognizes that infant formula may be a proper and possible pictures of babies and children together
substitute for breastmilk in certain instances; but the RIRR provides "exclusive with their mothers, fathers, siblings,
breastfeeding for infants from 0-6 months" and declares that "there is no grandparents, other relatives or
substitute nor replacement for breastmilk": caregivers (or yayas) shall be used in
any advertisements for infant formula
and breastmilk supplements;
MILK CODE RIRR
WHEREAS, in order to ensure that safe and Section 4. Declaration of
adequate nutrition for infants is provided, there is Principles – The following b. The term "humanized,"
a need to protect and promote breastfeeding and are the underlying "maternalized," "close to mother's milk"
to inform the public about the proper use of principles from which the or similar words in describing breastmilk
breastmilk substitutes and supplements and revised rules and substitutes or milk supplements;
related products through adequate, consistent and regulations are premised
objective information and appropriate regulation of upon:
c. Pictures or texts that idealize the use
the marketing and distribution of the said
of infant and milk formula.
substitutes, supplements and related products;
a. Exclusive breastfeeding
is for infants from 0 to six
Section 16. All health and nutrition
(6) months.
claims for products within the scope of
the Code are absolutely prohibited. For
b. There is no substitute or this purpose, any phrase or words that
replacement for connotes to increase emotional,
breastmilk. intellectual abilities of the infant and
young child and other like phrases shall
not be allowed.
3. The Milk Code only regulates and does not impose unreasonable
requirements for advertising and promotion; RIRR imposes an absolute ban on
such activities for breastmilk substitutes intended for infants from 0-24 months 4. The RIRR imposes additional labeling requirements not found in the Milk
old or beyond, and forbids the use of health and nutritional claims. Section 13 Code:
of the RIRR, which provides for a "total effect" in the promotion of products within
the scope of the Code, is vague: MILK CODE RIRR
SECTION 10. Containers/Label. – Section 26. Content – Each
MILK CODE RIRR container/label shall contain such
SECTION 6. The General Public Section 4. Declaration of Principles message, in both Filipino and
(a) Containers and/or labels shall be English languages, and which
and Mothers. – – The following are the underlying
designed to provide the necessary message cannot be readily
principles from which the revised rules
information about the appropriate use of separated therefrom, relative the
and regulations are premised upon:
(a) No advertising, promotion or the products, and in such a way as not to following points:
other marketing materials, whether discourage breastfeeding.
written, audio or visual, for products x x x x
within the scope of this Code shall (a) The words or phrase "Important
(b) Each container shall have a clear, Notice" or "Government Warning" or
be printed, published, distributed,
conspicuous and easily readable and their equivalent;
exhibited and broadcast unless f. Advertising, promotions, or sponsor-
understandable message in Pilipino or
such materials are duly authorized ships of infant formula, breastmilk
English printed on it, or on a label, which
and approved by an inter-agency substitutes and other related
message can not readily become (b) A statement of the superiority of
committee created herein pursuant products are prohibited.
separated from it, and which shall breastfeeding;
to the applicable standards
include the following points:
provided for in this Code.
Section 11. Prohibition – No
advertising, promotions, sponsorships, (c) A statement that there is no
or marketing materials and activities for (i) the words "Important Notice" or their substitute for breastmilk;
breastmilk substitutes intended for equivalent;
infants and young children up to twenty-
(d) A statement that the product
four (24) months, shall be allowed,
shall be used only on the advice of a
Page 8 of 72
(ii) a statement of the superiority of health worker as to the need for its of the health workers to promote, protect and
breastfeeding; use and the proper methods of use; support breastfeeding and appropriate infant
and young child feeding. Part of this
responsibility is to continuously update their
(iii) a statement that the product shall be (e) Instructions for appropriate knowledge and skills on breastfeeding. No
used only on the advice of a health prepara-tion, and a warning against assistance, support, logistics or training from
worker as to the need for its use and the the health hazards of inappropriate milk companies shall be permitted.
proper methods of use; and preparation; and
7. The Milk Code regulates the giving of donations; RIRR absolutely prohibits it.
(iv) instructions for appropriate (f) The health hazards of
preparation, and a warning against the unnecessary or improper use of
health hazards of inappropriate infant formula and other related MILK CODE RIRR
preparation. products including information that
powdered infant formula may SECTION 6. The General Section 51. Donations Within the Scope of
contain pathogenic microorganisms Public and Mothers. – This Code - Donations of products, materials,
and must be prepared and used defined and covered under the Milk Code and
appropriately. these implementing rules and regulations, shall
(f) Nothing herein contained be strictly prohibited.
shall prevent donations from
manufacturers and
5. The Milk Code allows dissemination of information on infant formula to health distributors of products Section 52. Other Donations By Milk
professionals; the RIRR totally prohibits such activity: within the scope of this Code Companies Not Covered by this Code. -
upon request by or with the Donations of products, equipments, and the like,
MILK CODE RIRR approval of the Ministry of not otherwise falling within the scope of this
Health. Code or these Rules, given by milk companies
SECTION 7. Health Care Section 22. No manufacturer, distributor, or and their agents, representatives, whether in
System. – representatives of products covered by the kind or in cash, may only be coursed through the
Code shall be allowed to conduct or be Inter Agency Committee (IAC), which shall
involved in any activity on breastfeeding determine whether such donation be accepted
(b) No facility of the health care promotion, education and production of
or otherwise.
system shall be used for the Information, Education and Communication
purpose of promoting infant (IEC) materials on breastfeeding, holding of
formula or other products within or participating as speakers in classes or
the scope of this Code. This seminars for women and children activities 8. The RIRR provides for administrative sanctions not imposed by the Milk
Code does not, however, and to avoid the use of these venues to Code.
preclude the dissemination of market their brands or company names.
information to health
professionals as provided in MILK RIRR
Section 8(b). SECTION 16. All health and nutrition claims CODE
for products within the scope of the Code are
Section 46. Administrative Sanctions. – The following
absolutely prohibited. For this purpose, any
SECTION 8. Health Workers. - phrase or words that connotes to increase administrative sanctions shall be imposed upon any person, juridical
or natural, found to have violated the provisions of the Code and its
emotional, intellectual abilities of the infant
implementing Rules and Regulations:
and young child and other like phrases shall
(b) Information provided by
not be allowed.
manufacturers and distributors
to health professionals a) 1st violation – Warning;
regarding products within the
scope of this Code shall be
b) 2nd violation – Administrative fine of a minimum of Ten Thousand
restricted to scientific and
(P10,000.00) to Fifty Thousand (P50,000.00) Pesos, depending on
factual matters and such
the gravity and extent of the violation, including the recall of the
information shall not imply or
offending product;
create a belief that bottle-
feeding is equivalent or superior
to breastfeeding. It shall also c) 3rd violation – Administrative Fine of a minimum of Sixty Thousand
include the information (P60,000.00) to One Hundred Fifty Thousand (P150,000.00) Pesos,
specified in Section 5(b). depending on the gravity and extent of the violation, and in addition
thereto, the recall of the offending product, and suspension of the
Certificate of Product Registration (CPR);
6. The Milk Code permits milk manufacturers and distributors to extend
assistance in research and continuing education of health professionals; RIRR
absolutely forbids the same. d) 4th violation –Administrative Fine of a minimum of Two Hundred
Thousand (P200,000.00) to Five Hundred (P500,000.00) Thousand
Pesos, depending on the gravity and extent of the violation; and in
MILK CODE RIRR
addition thereto, the recall of the product, revocation of the CPR,
SECTION 8. Health Section 4. Declaration of Principles – suspension of the License to Operate (LTO) for one year;
Workers –

The following are the underlying principles from
(e) Manufacturers and which the revised rules and regulations are
distributors of products within premised upon:
the scope of this Code may
assist in the research,
scholarships and continuing i. Milk companies, and their
education, of health representatives, should not form part of any
professionals, in accordance policymaking body or entity in relation to the
with the rules and regulations advancement of breasfeeding.
promulgated by the Ministry
of Health.
SECTION 22. No manufacturer, distributor, or
representatives of products covered by the
Code shall be allowed to conduct or be involved
in any activity on breastfeeding promotion,
education and production of Information,
Education and Communication (IEC) materials
on breastfeeding, holding of or participating as
speakers in classes or seminars for women and
children activitiesand to avoid the use of these
venues to market their brands or company
names.
SECTION 32. Primary Responsibility of
Health Workers - It is the primary responsibility
Page 9 of 72
e) 5th and succeeding repeated violations – Administrative Fine of One
Million (P1,000,000.00) Pesos, the recall of the offending product,
cancellation of the CPR, revocation of the License to Operate (LTO)
of the company concerned, including the blacklisting of the company
to be furnished the Department of Budget and Management (DBM)
and the Department of Trade and Industry (DTI);
f) An additional penalty of Two Thou-sand Five Hundred (P2,500.00)
Pesos per day shall be made for every day the violation continues
after having received the order from the IAC or other such appropriate
body, notifying and penalizing the company for the infraction.
For purposes of determining whether or not there is "repeated"
violation, each product violation belonging or owned by a company,
including those of their subsidiaries, are deemed to be violations of
the concerned milk company and shall not be based on the specific
violating product alone.
9. The RIRR provides for repeal of existing laws to the contrary.
The Court shall resolve the merits of the allegations of petitioner seriatim.
1. Petitioner is mistaken in its claim that the Milk Code's coverage is limited only
to children 0-12 months old. Section 3 of the Milk Code states:
SECTION 3. Scope of the Code – The Code applies to the marketing, and
practices related thereto, of the following products: breastmilk substitutes,
including infant formula; other milk products, foods and beverages, including
bottle-fed complementary foods, when marketed or otherwise represented to be
suitable, with or without modification, for use as a partial or total replacement of
breastmilk; feeding bottles and teats. It also applies to their quality and
availability, and to information concerning their use.
Clearly, the coverage of the Milk Code is not dependent on the age of the child
but on the kind of product being marketed to the public. The law treats infant
formula, bottle-fed complementary food, and breastmilk substitute as separate
and distinct product categories.
Section 4(h) of the Milk Code defines infant formula as "a breastmilk substitute
x x x to satisfy the normal nutritional requirements of infants up to between four
to six months of age, and adapted to their physiological characteristics"; while
under Section 4(b), bottle-fed complementary food refers to "any food, whether
manufactured or locally prepared, suitable as a complement to breastmilk or
infant formula, when either becomes insufficient to satisfy the nutritional
requirements of the infant." An infant under Section 4(e) is a person falling within
the age bracket 0-12 months. It is the nourishment of this group of infants or
children aged 0-12 months that is sought to be promoted and protected by the
Milk Code.
But there is another target group. Breastmilk substitute is defined under Section
4(a) as "any food being marketed or otherwise presented as a partial or total
replacement for breastmilk, whether or not suitable for that purpose." This
section conspicuously lacks reference to any particular age-group of children.
Hence, the provision of the Milk Code cannot be considered exclusive for
children aged 0-12 months. In other words, breastmilk substitutes may also be
intended for young children more than 12 months of age. Therefore, by
regulating breastmilk substitutes, the Milk Code also intends to protect and
promote the nourishment of children more than 12 months old.
Evidently, as long as what is being marketed falls within the scope of the Milk
Code as provided in Section 3, then it can be subject to regulation pursuant to
said law, even if the product is to be used by children aged over 12 months.
There is, therefore, nothing objectionable with Sections 242 and 5(ff)43 of the
RIRR.
2. It is also incorrect for petitioner to say that the RIRR, unlike the Milk Code,
does not recognize that breastmilk substitutes may be a proper and possible
substitute for breastmilk.
The entirety of the RIRR, not merely truncated portions thereof, must be
considered and construed together. As held in De Luna v. Pascual,44 "[t]he
particular words, clauses and phrases in the Rule should not be studied as
detached and isolated expressions, but the whole and every part thereof must
be considered in fixing the meaning of any of its parts and in order to produce a
harmonious whole."
Section 7 of the RIRR provides that "when medically indicated and only when
necessary, the use of breastmilk substitutes is proper if based on complete and
updated information." Section 8 of the RIRR also states that information and
educational materials should include information on the proper use of infant
formula when the use thereof is needed.
Hence, the RIRR, just like the Milk Code, also recognizes that in certain cases,
the use of breastmilk substitutes may be proper.
3. The Court shall ascertain the merits of allegations 345 and 446 together as
they are interlinked with each other.
To resolve the question of whether the labeling requirements and advertising
regulations under the RIRR are valid, it is important to deal first with the nature,
purpose, and depth of the regulatory powers of the DOH, as defined in general
under the 1987 Administrative Code,47 and as delegated in particular under the
Milk Code.
Health is a legitimate subject matter for regulation by the DOH (and certain other
administrative agencies) in exercise of police powers delegated to it. The sheer
span of jurisprudence on that matter precludes the need to further discuss it..48
However, health information, particularly advertising materials on apparently
non-toxic products like breastmilk substitutes and supplements, is a relatively
new area for regulation by the DOH.49
As early as the 1917 Revised Administrative Code of the Philippine Islands,50
health information was already within the ambit of the regulatory powers of the
predecessor of DOH.51 Section 938 thereof charged it with the duty to protect
the health of the people, and vested it with such powers as "(g) the
dissemination of hygienic information among the people and especially the
inculcation of knowledge as to the proper care of infants and the methods of
preventing and combating dangerous communicable diseases."
Seventy years later, the 1987 Administrative Code tasked respondent DOH to
carry out the state policy pronounced under Section 15, Article II of the 1987
Constitution, which is "to protect and promote the right to health of the people
and instill health consciousness among them."52 To that end, it was granted
under Section 3 of the Administrative Code the power to "(6) propagate health
information and educate the population on important health, medical and
environmental matters which have health implications."53
Page 10 of 72
When it comes to information regarding nutrition of infants and young children,
however, the Milk Code specifically delegated to the Ministry of Health
(hereinafter referred to as DOH) the power to ensure that there is adequate,
consistent and objective information on breastfeeding and use of breastmilk
substitutes, supplements and related products; and the power to control such
information. These are expressly provided for in Sections 12 and 5(a), to wit:
SECTION 12. Implementation and Monitoring –
xxxx
(b) The Ministry of Health shall be principally responsible for the implementation
and enforcement of the provisions of this Code. For this purpose, the Ministry of
Health shall have the following powers and functions:
(1) To promulgate such rules and regulations as are necessary or proper for the
implementation of this Code and the accomplishment of its purposes and
objectives.
xxxx
(4) To exercise such other powers and functions as may be necessary for or
incidental to the attainment of the purposes and objectives of this Code.
SECTION 5. Information and Education –
(a) The government shall ensure that objective and consistent information is
provided on infant feeding, for use by families and those involved in the field of
infant nutrition. This responsibility shall cover the planning, provision, design
and dissemination of information, and the control thereof, on infant nutrition.
(Emphasis supplied)
Further, DOH is authorized by the Milk Code to control the content of any
information on breastmilk vis-à-vis breastmilk substitutes, supplement and
related products, in the following manner:
SECTION 5. x x x
(b) Informational and educational materials, whether written, audio, or visual,
dealing with the feeding of infants and intended to reach pregnant women and
mothers of infants, shall include clear information on all the following points: (1)
the benefits and superiority of breastfeeding; (2) maternal nutrition, and the
preparation for and maintenance of breastfeeding; (3) the negative effect on
breastfeeding of introducing partial bottlefeeding; (4) the difficulty of reversing
the decision not to breastfeed; and (5) where needed, the proper use of infant
formula, whether manufactured industrially or home-prepared. When such
materials contain information about the use of infant formula, they shall include
the social and financial implications of its use; the health hazards of
inappropriate foods or feeding methods; and, in particular, the health hazards of
unnecessary or improper use of infant formula and other breastmilk substitutes.
Such materials shall not use any picture or text which may idealize the use of
breastmilk substitutes.
SECTION 8. Health Workers –
xxxx
(b) Information provided by manufacturers and distributors to health
professionals regarding products within the scope of this Code shall be
restricted to scientific and factual matters, and such information shall not imply
or create a belief that bottlefeeding is equivalent or superior to breastfeeding. It
shall also include the information specified in Section 5(b).
SECTION 10. Containers/Label –
(a) Containers and/or labels shall be designed to provide the necessary
information about the appropriate use of the products, and in such a way as not
to discourage breastfeeding.
xxxx
(d) The term "humanized," "maternalized" or similar terms shall not be used.
(Emphasis supplied)
The DOH is also authorized to control the purpose of the information and to
whom such information may be disseminated under Sections 6 through 9 of the
Milk Code54 to ensure that the information that would reach pregnant women,
mothers of infants, and health professionals and workers in the health care
system is restricted to scientific and factual matters and shall not imply or create
a belief that bottlefeeding is equivalent or superior to breastfeeding.
It bears emphasis, however, that the DOH's power under the Milk Code to
control information regarding breastmilk vis-a-vis breastmilk substitutes is not
absolute as the power to control does not encompass the power to absolutely
prohibit the advertising, marketing, and promotion of breastmilk substitutes.
The following are the provisions of the Milk Code that unequivocally indicate that
the control over information given to the DOH is not absolute and that absolute
prohibition is not contemplated by the Code:
a) Section 2 which requires adequate information and appropriate marketing
and distribution of breastmilk substitutes, to wit:

SECTION 2. Aim of the Code – The aim of the Code is to contribute to the
provision of safe and adequate nutrition for infants by the protection and
promotion of breastfeeding and by ensuring the proper use of breastmilk
substitutes and breastmilk supplements when these are necessary, on the basis
of adequate information and through appropriate marketing and distribution.
b) Section 3 which specifically states that the Code applies to the marketing of
and practices related to breastmilk substitutes, including infant formula, and to
information concerning their use;
c) Section 5(a) which provides that the government shall ensure that objective
and consistent information is provided on infant feeding;
d) Section 5(b) which provides that written, audio or visual informational and
educational materials shall not use any picture or text which may idealize the
use of breastmilk substitutes and should include information on the health
hazards of unnecessary or improper use of said product;
e) Section 6(a) in relation to Section 12(a) which creates and empowers the IAC
to review and examine advertising, promotion, and other marketing materials;
f) Section 8(b) which states that milk companies may provide information to
health professionals but such information should be restricted to factual and
scientific matters and shall not imply or create a belief that bottlefeeding is
equivalent or superior to breastfeeding; and
g) Section 10 which provides that containers or labels should not contain
information that would discourage breastfeeding and idealize the use of infant
formula.
It is in this context that the Court now examines the assailed provisions of the
RIRR regarding labeling and advertising.
Sections 1355 on "total effect" and 2656 of Rule VII of the RIRR contain some
labeling requirements, specifically: a) that there be a statement that there is no
substitute to breastmilk; and b) that there be a statement that powdered infant
formula may contain pathogenic microorganisms and must be prepared and
used appropriately. Section 1657 of the RIRR prohibits all health and nutrition
claims for products within the scope of the Milk Code, such as claims of
increased emotional and intellectual abilities of the infant and young child.
These requirements and limitations are consistent with the provisions of Section
8 of the Milk Code, to wit:
SECTION 8. Health workers -
xxxx
(b) Information provided by manufacturers and distributors to health
professionals regarding products within the scope of this Code shall be
restricted to scientific and factual matters, and such information shall not imply
or create a belief that bottlefeeding is equivalent or superior to breastfeeding. It
shall also include the information specified in Section 5.58 (Emphasis supplied)
and Section 10(d)59 which bars the use on containers and labels of the terms
"humanized," "maternalized," or similar terms.
These provisions of the Milk Code expressly forbid information that would imply
or create a belief that there is any milk product equivalent to breastmilk or which
is humanized or maternalized, as such information would be inconsistent with
the superiority of breastfeeding.
It may be argued that Section 8 of the Milk Code refers only to information given
to health workers regarding breastmilk substitutes, not to containers and labels
thereof. However, such restrictive application of Section 8(b) will result in the
absurd situation in which milk companies and distributors are forbidden to claim
to health workers that their products are substitutes or equivalents of breastmilk,
and yet be allowed to display on the containers and labels of their products the
exact opposite message. That askewed interpretation of the Milk Code is
precisely what Section 5(a) thereof seeks to avoid by mandating that all
information regarding breastmilk vis-a-vis breastmilk substitutes be consistent,
at the same time giving the government control over planning, provision, design,
and dissemination of information on infant feeding.
Thus, Section 26(c) of the RIRR which requires containers and labels to state
that the product offered is not a substitute for breastmilk, is a reasonable means
of enforcing Section 8(b) of the Milk Code and deterring circumvention of the
protection and promotion of breastfeeding as embodied in Section 260 of the
Milk Code.
Section 26(f)61 of the RIRR is an equally reasonable labeling requirement. It
implements Section 5(b) of the Milk Code which reads:
SECTION 5. x x x
xxxx
(b) Informational and educational materials, whether written, audio, or visual,
dealing with the feeding of infants and intended to reach pregnant women and
mothers of infants, shall include clear information on all the following points: x x
x (5) where needed, the proper use of infant formula, whether manufactured
industrially or home-prepared. When such materials contain information about
Page 11 of 72
the use of infant formula, they shall include the social and financial implications
of its use; the health hazards of inappropriate foods or feeding methods; and, in
particular, the health hazards of unnecessary or improper use of infant formula
and other breastmilk substitutes. Such materials shall not use any picture or text
which may idealize the use of breastmilk substitutes. (Emphasis supplied)
The label of a product contains information about said product intended for the
buyers thereof. The buyers of breastmilk substitutes are mothers of infants, and
Section 26 of the RIRR merely adds a fair warning about the likelihood of
pathogenic microorganisms being present in infant formula and other related
products when these are prepared and used inappropriately.
Petitioner’s counsel has admitted during the hearing on June 19, 2007 that
formula milk is prone to contaminations and there is as yet no technology that
allows production of powdered infant formula that eliminates all forms of
contamination.62
Ineluctably, the requirement under Section 26(f) of the RIRR for the label to
contain the message regarding health hazards including the possibility of
contamination with pathogenic microorganisms is in accordance with Section
5(b) of the Milk Code.
The authority of DOH to control information regarding breastmilk vis-a-vis
breastmilk substitutes and supplements and related products cannot be
questioned. It is its intervention into the area of advertising, promotion, and
marketing that is being assailed by petitioner.
In furtherance of Section 6(a) of the Milk Code, to wit:
SECTION 6. The General Public and Mothers. –
(a) No advertising, promotion or other marketing materials, whether written,
audio or visual, for products within the scope of this Code shall be printed,
published, distributed, exhibited and broadcast unless such materials are duly
authorized and approved by an inter-agency committee created herein pursuant
to the applicable standards provided for in this Code.
the Milk Code invested regulatory authority over advertising, promotional and
marketing materials to an IAC, thus:
SECTION 12. Implementation and Monitoring -
(a) For purposes of Section 6(a) of this Code, an inter-agency committee
composed of the following members is hereby created:
Minister of Health ------------------- Chairman
Minister of Trade and Industry ------------------- Member
Minister of Justice ------------------- Member
Minister of Social Services and Development ------------------- Member
The members may designate their duly authorized representative to every
meeting of the Committee.
The Committee shall have the following powers and functions:
(1) To review and examine all advertising. promotion or other marketing
materials, whether written, audio or visual, on products within the scope of this
Code;
(2) To approve or disapprove, delete objectionable portions from and prohibit
the printing, publication, distribution, exhibition and broadcast of, all advertising
promotion or other marketing materials, whether written, audio or visual, on
products within the scope of this Code;
(3) To prescribe the internal and operational procedure for the exercise of its
powers and functions as well as the performance of its duties and
responsibilities; and
(4) To promulgate such rules and regulations as are necessary or proper for the
implementation of Section 6(a) of this Code. x x x (Emphasis supplied)
However, Section 11 of the RIRR, to wit:
SECTION 11. Prohibition – No advertising, promotions, sponsorships, or
marketing materials and activities for breastmilk substitutes intended for infants
and young children up to twenty-four (24) months, shall be allowed, because
they tend to convey or give subliminal messages or impressions that undermine
breastmilk and breastfeeding or otherwise exaggerate breastmilk substitutes
and/or replacements, as well as related products covered within the scope of
this Code.
prohibits advertising, promotions, sponsorships or marketing materials and
activities for breastmilk substitutes in line with the RIRR’s declaration of principle
under Section 4(f), to wit:
SECTION 4. Declaration of Principles –
xxxx
(f) Advertising, promotions, or sponsorships of infant formula, breastmilk
substitutes and other related products are prohibited.
The DOH, through its co-respondents, evidently arrogated to itself not only the
regulatory authority given to the IAC but also imposed absolute prohibition on
advertising, promotion, and marketing.
Yet, oddly enough, Section 12 of the RIRR reiterated the requirement of the Milk
Code in Section 6 thereof for prior approval by IAC of all advertising, marketing
and promotional materials prior to dissemination.
Even respondents, through the OSG, acknowledged the authority of IAC, and
repeatedly insisted, during the oral arguments on June 19, 2007, that the
prohibition under Section 11 is not actually operational, viz:
SOLICITOR GENERAL DEVANADERA:
xxxx
x x x Now, the crux of the matter that is being questioned by Petitioner is whether
or not there is an absolute prohibition on advertising making AO 2006-12
unconstitutional. We maintained that what AO 2006-12 provides is not an
absolute prohibition because Section 11 while it states and it is entitled
prohibition it states that no advertising, promotion, sponsorship or marketing
materials and activities for breast milk substitutes intended for infants and young
children up to 24 months shall be allowed because this is the standard they tend
to convey or give subliminal messages or impression undermine that breastmilk
or breastfeeding x x x.
We have to read Section 11 together with the other Sections because the other
Section, Section 12, provides for the inter agency committee that is empowered
to process and evaluate all the advertising and promotion materials.
xxxx
What AO 2006-12, what it does, it does not prohibit the sale and manufacture,
it simply regulates the advertisement and the promotions of breastfeeding milk
substitutes.
xxxx
Now, the prohibition on advertising, Your Honor, must be taken together with
the provision on the Inter-Agency Committee that processes and evaluates
because there may be some information dissemination that are straight forward
information dissemination. What the AO 2006 is trying to prevent is any material
that will undermine the practice of breastfeeding, Your Honor.
xxxx
ASSOCIATE JUSTICE SANTIAGO:
Madam Solicitor General, under the Milk Code, which body has authority or
power to promulgate Rules and Regulations regarding the Advertising,
Promotion and Marketing of Breastmilk Substitutes?
SOLICITOR GENERAL DEVANADERA:
Your Honor, please, it is provided that the Inter-Agency Committee, Your Honor.
xxxx
ASSOCIATE JUSTICE SANTIAGO:
x x x Don't you think that the Department of Health overstepped its rule making
authority when it totally banned advertising and promotion under Section 11
prescribed the total effect rule as well as the content of materials under Section
13 and 15 of the rules and regulations?
SOLICITOR GENERAL DEVANADERA:
Your Honor, please, first we would like to stress that there is no total absolute
ban. Second, the Inter-Agency Committee is under the Department of Health,
Your Honor.
xxxx
ASSOCIATE JUSTICE NAZARIO:
x x x Did I hear you correctly, Madam Solicitor, that there is no absolute ban on
advertising of breastmilk substitutes in the Revised Rules?
SOLICITOR GENERAL DEVANADERA:
Yes, your Honor.
ASSOCIATE JUSTICE NAZARIO:
But, would you nevertheless agree that there is an absolute ban on advertising
of breastmilk substitutes intended for children two (2) years old and younger?
SOLICITOR GENERAL DEVANADERA:
Page 12 of 72
It's not an absolute ban, Your Honor, because we have the Inter-Agency
Committee that can evaluate some advertising and promotional materials,
subject to the standards that we have stated earlier, which are- they should not
undermine breastfeeding, Your Honor.
xxxx
x x x Section 11, while it is titled Prohibition, it must be taken in relation with the
other Sections, particularly 12 and 13 and 15, Your Honor, because it is
recognized that the Inter-Agency Committee has that power to evaluate
promotional materials, Your Honor.
ASSOCIATE JUSTICE NAZARIO:
So in short, will you please clarify there's no absolute ban on advertisement
regarding milk substitute regarding infants two (2) years below?
SOLICITOR GENERAL DEVANADERA:
We can proudly say that the general rule is that there is a prohibition, however,
we take exceptions and standards have been set. One of which is that, the Inter-
Agency Committee can allow if the advertising and promotions will not
undermine breastmilk and breastfeeding, Your Honor.63
Sections 11 and 4(f) of the RIRR are clearly violative of the Milk Code.
However, although it is the IAC which is authorized to promulgate rules and
regulations for the approval or rejection of advertising, promotional, or other
marketing materials under Section 12(a) of the Milk Code, said provision must
be related to Section 6 thereof which in turn provides that the rules and
regulations must be "pursuant to the applicable standards provided for in this
Code." Said standards are set forth in Sections 5(b), 8(b), and 10 of the Code,
which, at the risk of being repetitious, and for easy reference, are quoted
hereunder:
SECTION 5. Information and Education –
xxxx
(b) Informational and educational materials, whether written, audio, or visual,
dealing with the feeding of infants and intended to reach pregnant women and
mothers of infants, shall include clear information on all the following points: (1)
the benefits and superiority of breastfeeding; (2) maternal nutrition, and the
preparation for and maintenance of breastfeeding; (3) the negative effect on
breastfeeding of introducing partial bottlefeeding; (4) the difficulty of reversing
the decision not to breastfeed; and (5) where needed, the proper use of infant
formula, whether manufactured industrially or home-prepared. When such
materials contain information about the use of infant formula, they shall include
the social and financial implications of its use; the health hazards of
inappropriate foods of feeding methods; and, in particular, the health hazards of
unnecessary or improper use of infant formula and other breastmilk substitutes.
Such materials shall not use any picture or text which may idealize the use of
breastmilk substitutes.
xxxx
SECTION 8. Health Workers. –
xxxx
(b) Information provided by manufacturers and distributors to health
professionals regarding products within the scope of this Code shall be
restricted to scientific and factual matters and such information shall not imply
or create a belief that bottle feeding is equivalent or superior to breastfeeding. It
shall also include the information specified in Section 5(b).
xxxx
SECTION 10. Containers/Label –
(a) Containers and/or labels shall be designed to provide the necessary
information about the appropriate use of the products, and in such a way as not
to discourage breastfeeding.
(b) Each container shall have a clear, conspicuous and easily readable and
understandable message in Pilipino or English printed on it, or on a label, which
message can not readily become separated from it, and which shall include the
following points:
(i) the words "Important Notice" or their equivalent;
(ii) a statement of the superiority of breastfeeding;
(iii) a statement that the product shall be used only on the advice of a health
worker as to the need for its use and the proper methods of use; and
(iv) instructions for appropriate preparation, and a warning against the health
hazards of inappropriate preparation.
Section 12(b) of the Milk Code designates the DOH as the principal
implementing agency for the enforcement of the provisions of the Code. In
relation to such responsibility of the DOH, Section 5(a) of the Milk Code states
that:

SECTION 5. Information and Education –
(a) The government shall ensure that objective and consistent information is
provided on infant feeding, for use by families and those involved in the field of
infant nutrition. This responsibility shall cover the planning, provision, design
and dissemination of information, and the control thereof, on infant nutrition.
(Emphasis supplied)
Thus, the DOH has the significant responsibility to translate into operational
terms the standards set forth in Sections 5, 8, and 10 of the Milk Code, by which
the IAC shall screen advertising, promotional, or other marketing materials.
It is pursuant to such responsibility that the DOH correctly provided for Section
13 in the RIRR which reads as follows:
SECTION 13. "Total Effect" - Promotion of products within the scope of this
Code must be objective and should not equate or make the product appear to
be as good or equal to breastmilk or breastfeeding in the advertising concept. It
must not in any case undermine breastmilk or breastfeeding. The "total effect"
should not directly or indirectly suggest that buying their product would produce
better individuals, or resulting in greater love, intelligence, ability, harmony or in
any manner bring better health to the baby or other such exaggerated and
unsubstantiated claim.
Such standards bind the IAC in formulating its rules and regulations on
advertising, promotion, and marketing. Through that single provision, the DOH
exercises control over the information content of advertising, promotional and
marketing materials on breastmilk vis-a-vis breastmilk substitutes, supplements
and other related products. It also sets a viable standard against which the IAC
may screen such materials before they are made public.
In Equi-Asia Placement, Inc. vs. Department of Foreign Affairs,64 the Court
held:
x x x [T]his Court had, in the past, accepted as sufficient standards the following:
"public interest," "justice and equity," "public convenience and welfare," and
"simplicity, economy and welfare."65
In this case, correct information as to infant feeding and nutrition is infused with
public interest and welfare.
4. With regard to activities for dissemination of information to health
professionals, the Court also finds that there is no inconsistency between the
provisions of the Milk Code and the RIRR. Section 7(b)66 of the Milk Code, in
relation to Section 8(b)67 of the same Code, allows dissemination of information
to health professionals but such information is restricted to scientific and factual
matters.
Contrary to petitioner's claim, Section 22 of the RIRR does not prohibit the giving
of information to health professionals on scientific and factual matters. What it
prohibits is the involvement of the manufacturer and distributor of the products
covered by the Code in activities for the promotion, education and production of
Information, Education and Communication (IEC) materials regarding
breastfeeding that are intended for women and children. Said provision cannot
be construed to encompass even the dissemination of information to health
professionals, as restricted by the Milk Code.
5. Next, petitioner alleges that Section 8(e)68 of the Milk Code permits milk
manufacturers and distributors to extend assistance in research and in the
continuing education of health professionals, while Sections 22 and 32 of the
RIRR absolutely forbid the same. Petitioner also assails Section 4(i)69 of the
RIRR prohibiting milk manufacturers' and distributors' participation in any
policymaking body in relation to the advancement of breastfeeding.
Section 4(i) of the RIRR provides that milk companies and their representatives
should not form part of any policymaking body or entity in relation to the
advancement of breastfeeding. The Court finds nothing in said provisions which
contravenes the Milk Code. Note that under Section 12(b) of the Milk Code, it is
the DOH which shall be principally responsible for the implementation and
enforcement of the provisions of said Code. It is entirely up to the DOH to decide
which entities to call upon or allow to be part of policymaking bodies on
breastfeeding. Therefore, the RIRR's prohibition on milk companies’
participation in any policymaking body in relation to the advancement of
breastfeeding is in accord with the Milk Code.
Petitioner is also mistaken in arguing that Section 22 of the RIRR prohibits milk
companies from giving reasearch assistance and continuing education to health
professionals. Section 2270 of the RIRR does not pertain to research assistance
to or the continuing education of health professionals; rather, it deals with
breastfeeding promotion and education for women and children. Nothing in
Section 22 of the RIRR prohibits milk companies from giving assistance for
research or continuing education to health professionals; hence, petitioner's
argument against this particular provision must be struck down.
It is Sections 971 and 1072 of the RIRR which govern research assistance. Said
sections of the RIRR provide that research assistance for health workers and
researchers may be allowed upon approval of an ethics committee, and with
certain disclosure requirements imposed on the milk company and on the
recipient of the research award.
The Milk Code endows the DOH with the power to determine how such research
or educational assistance may be given by milk companies or under what
Page 13 of 72
conditions health workers may accept the assistance. Thus, Sections 9 and 10
of the RIRR imposing limitations on the kind of research done or extent of
assistance given by milk companies are completely in accord with the Milk
Code.
Petitioner complains that Section 3273 of the RIRR prohibits milk companies
from giving assistance, support, logistics or training to health workers. This
provision is within the prerogative given to the DOH under Section 8(e)74 of the
Milk Code, which provides that manufacturers and distributors of breastmilk
substitutes may assist in researches, scholarships and the continuing
education, of health professionals in accordance with the rules and regulations
promulgated by the Ministry of Health, now DOH.
6. As to the RIRR's prohibition on donations, said provisions are also consistent
with the Milk Code. Section 6(f) of the Milk Code provides that donations may
be made by manufacturers and distributors of breastmilk substitutes upon the
request or with the approval of the DOH. The law does not proscribe the refusal
of donations. The Milk Code leaves it purely to the discretion of the DOH
whether to request or accept such donations. The DOH then appropriately
exercised its discretion through Section 5175 of the RIRR which sets forth its
policy not to request or approve donations from manufacturers and distributors
of breastmilk substitutes.
It was within the discretion of the DOH when it provided in Section 52 of the
RIRR that any donation from milk companies not covered by the Code should
be coursed through the IAC which shall determine whether such donation
should be accepted or refused. As reasoned out by respondents, the DOH is
not mandated by the Milk Code to accept donations. For that matter, no person
or entity can be forced to accept a donation. There is, therefore, no real
inconsistency between the RIRR and the law because the Milk Code does not
prohibit the DOH from refusing donations.
7. With regard to Section 46 of the RIRR providing for administrative sanctions
that are not found in the Milk Code, the Court upholds petitioner's objection
thereto.
Respondent's reliance on Civil Aeronautics Board v. Philippine Air Lines, Inc.76
is misplaced. The glaring difference in said case and the present case before
the Court is that, in the Civil Aeronautics Board, the Civil Aeronautics
Administration (CAA) was expressly granted by the law (R.A. No. 776) the power
to impose fines and civil penalties, while the Civil Aeronautics Board (CAB) was
granted by the same law the power to review on appeal the order or decision of
the CAA and to determine whether to impose, remit, mitigate, increase or
compromise such fine and civil penalties. Thus, the Court upheld the CAB's
Resolution imposing administrative fines.
In a more recent case, Perez v. LPG Refillers Association of the Philippines,
Inc.,77 the Court upheld the Department of Energy (DOE) Circular No. 2000-
06-10 implementing Batas Pambansa (B.P.) Blg. 33. The circular provided for
fines for the commission of prohibited acts. The Court found that nothing in the
circular contravened the law because the DOE was expressly authorized by
B.P. Blg. 33 and R.A. No. 7638 to impose fines or penalties.
In the present case, neither the Milk Code nor the Revised Administrative Code
grants the DOH the authority to fix or impose administrative fines. Thus, without
any express grant of power to fix or impose such fines, the DOH cannot provide
for those fines in the RIRR. In this regard, the DOH again exceeded its authority
by providing for such fines or sanctions in Section 46 of the RIRR. Said provision
is, therefore, null and void.
The DOH is not left without any means to enforce its rules and regulations.
Section 12(b) (3) of the Milk Code authorizes the DOH to "cause the prosecution
of the violators of this Code and other pertinent laws on products covered by
this Code." Section 13 of the Milk Code provides for the penalties to be imposed
on violators of the provision of the Milk Code or the rules and regulations issued
pursuant to it, to wit:
SECTION 13. Sanctions –
(a) Any person who violates the provisions of this Code or the rules and
regulations issued pursuant to this Code shall, upon conviction, be punished by
a penalty of two (2) months to one (1) year imprisonment or a fine of not less
than One Thousand Pesos (P1,000.00) nor more than Thirty Thousand Pesos
(P30,000.00) or both. Should the offense be committed by a juridical person,
the chairman of the Board of Directors, the president, general manager, or the
partners and/or the persons directly responsible therefor, shall be penalized.
(b) Any license, permit or authority issued by any government agency to any
health worker, distributor, manufacturer, or marketing firm or personnel for the
practice of their profession or occupation, or for the pursuit of their business,
may, upon recommendation of the Ministry of Health, be suspended or revoked
in the event of repeated violations of this Code, or of the rules and regulations
issued pursuant to this Code. (Emphasis supplied)
8. Petitioner’s claim that Section 57 of the RIRR repeals existing laws that are
contrary to the RIRR is frivolous.
Section 57 reads:
SECTION 57. Repealing Clause - All orders, issuances, and rules and
regulations or parts thereof inconsistent with these revised rules and
implementing regulations are hereby repealed or modified accordingly.
Section 57 of the RIRR does not provide for the repeal of laws but only orders,
issuances and rules and regulations. Thus, said provision is valid as it is within
the DOH's rule-making power.
An administrative agency like respondent possesses quasi-legislative or rule-
making power or the power to make rules and regulations which results in
delegated legislation that is within the confines of the granting statute and the
Constitution, and subject to the doctrine of non-delegability and separability of
powers.78 Such express grant of rule-making power necessarily includes the
power to amend, revise, alter, or repeal the same.79 This is to allow
administrative agencies flexibility in formulating and adjusting the details and
manner by which they are to implement the provisions of a law,80 in order to
make it more responsive to the times. Hence, it is a standard provision in
administrative rules that prior issuances of administrative agencies that are
inconsistent therewith are declared repealed or modified.
In fine, only Sections 4(f), 11 and 46 are ultra vires, beyond the authority of the
DOH to promulgate and in contravention of the Milk Code and, therefore, null
and void. The rest of the provisions of the RIRR are in consonance with the Milk
Code.
Lastly, petitioner makes a "catch-all" allegation that:
x x x [T]he questioned RIRR sought to be implemented by the Respondents is
unnecessary and oppressive, and is offensive to the due process clause of the
Constitution, insofar as the same is in restraint of trade and because a provision
therein is inadequate to provide the public with a comprehensible basis to
determine whether or not they have committed a violation.81 (Emphasis
supplied)
Petitioner refers to Sections 4(f),82 4(i),83 5(w),84 11,85 22,86 32,87 46,88 and
5289 as the provisions that suppress the trade of milk and, thus, violate the due
process clause of the Constitution.
The framers of the constitution were well aware that trade must be subjected to
some form of regulation for the public good. Public interest must be upheld over
business interests.90 In Pest Management Association of the Philippines v.
Fertilizer and Pesticide Authority,91 it was held thus:
x x x Furthermore, as held in Association of Philippine Coconut Desiccators v.
Philippine Coconut Authority, despite the fact that "our present Constitution
enshrines free enterprise as a policy, it nonetheless reserves to the government
the power to intervene whenever necessary to promote the general welfare."
There can be no question that the unregulated use or proliferation of pesticides
would be hazardous to our environment. Thus, in the aforecited case, the Court
declared that "free enterprise does not call for removal of ‘protective
regulations’." x x x It must be clearly explained and proven by competent
evidence just exactly how such protective regulation would result in the restraint
of trade. [Emphasis and underscoring supplied]
In this case, petitioner failed to show that the proscription of milk manufacturers’
participation in any policymaking body (Section 4(i)), classes and seminars for
women and children (Section 22); the giving of assistance, support and logistics
or training (Section 32); and the giving of donations (Section 52) would
unreasonably hamper the trade of breastmilk substitutes. Petitioner has not
established that the proscribed activities are indispensable to the trade of
breastmilk substitutes. Petitioner failed to demonstrate that the aforementioned
provisions of the RIRR are unreasonable and oppressive for being in restraint
of trade.
Petitioner also failed to convince the Court that Section 5(w) of the RIRR is
unreasonable and oppressive. Said section provides for the definition of the
term "milk company," to wit:
SECTION 5 x x x. (w) "Milk Company" shall refer to the owner, manufacturer,
distributor of infant formula, follow-up milk, milk formula, milk supplement,
breastmilk substitute or replacement, or by any other description of such nature,
including their representatives who promote or otherwise advance their
commercial interests in marketing those products;
On the other hand, Section 4 of the Milk Code provides:
(d) "Distributor" means a person, corporation or any other entity in the public or
private sector engaged in the business (whether directly or indirectly) of
marketing at the wholesale or retail level a product within the scope of this Code.
A "primary distributor" is a manufacturer's sales agent, representative, national
distributor or broker.
xxxx
(j) "Manufacturer" means a corporation or other entity in the public or private
sector engaged in the business or function (whether directly or indirectly or
through an agent or and entity controlled by or under contract with it) of
manufacturing a products within the scope of this Code.
Notably, the definition in the RIRR merely merged together under the term "milk
company" the entities defined separately under the Milk Code as "distributor"
and "manufacturer." The RIRR also enumerated in Section 5(w) the products
manufactured or distributed by an entity that would qualify it as a "milk
company," whereas in the Milk Code, what is used is the phrase "products within
the scope of this Code." Those are the only differences between the definitions
given in the Milk Code and the definition as re-stated in the RIRR.
Page 14 of 72
Since all the regulatory provisions under the Milk Code apply equally to both
manufacturers and distributors, the Court sees no harm in the RIRR providing
for just one term to encompass both entities. The definition of "milk company"
in the RIRR and the definitions of "distributor" and "manufacturer" provided for
under the Milk Code are practically the same.
The Court is not convinced that the definition of "milk company" provided in the
RIRR would bring about any change in the treatment or regulation of
"distributors" and "manufacturers" of breastmilk substitutes, as defined under
the Milk Code.
Except Sections 4(f), 11 and 46, the rest of the provisions of the RIRR are in
consonance with the objective, purpose and intent of the Milk Code, constituting
reasonable regulation of an industry which affects public health and welfare and,
as such, the rest of the RIRR do not constitute illegal restraint of trade nor are
they violative of the due process clause of the Constitution.
WHEREFORE, the petition is PARTIALLY GRANTED. Sections 4(f), 11 and 46
of Administrative Order No. 2006-0012 dated May 12, 2006 are declared NULL
and VOID for being ultra vires. The Department of Health and respondents are
PROHIBITED from implementing said provisions.
The Temporary Restraining Order issued on August 15, 2006 is LIFTED insofar
as the rest of the provisions of Administrative Order No. 2006-0012 is
concerned.
SO ORDERED.
Puno, (Chief Justice), Quisumbing, Ynares-Santiago, Sandoval-Gutierrez,
Carpio, Corona, Carpio-Morales, Azcuna, Tinga, Chico-Nazario, Garcia,
Velasco, Jr., Nachura, Reyes, JJ., concur.
Republic of the Philippines
SUPREME COURT
Manila
EN BANC
A.M. No. 10-10-4-SC March 8, 2011
RE: LETTER OF THE UP LAW FACULTY ENTITLED "RESTORING
INTEGRITY: A STATEMENT BY THE FACULTY OF THE UNIVERSITY OF
THE PHILIPPINES COLLEGE OF LAW ON THE ALLEGATIONS OF
PLAGIARISM AND MISREPRESENTATION IN THE SUPREME COURT"
DECISION
LEONARDO-DE CASTRO, J.:
For disposition of the Court are the various submissions of the 37 respondent
law professors1 in response to the Resolution dated October 19, 2010 (the
Show Cause Resolution), directing them to show cause why they should not be
disciplined as members of the Bar for violation of specific provisions of the Code
of Professional Responsibility enumerated therein.
At the outset, it must be stressed that the Show Cause Resolution clearly
dockets this as an administrative matter, not a special civil action for indirect
contempt under Rule 71 of the Rules of Court, contrary to the dissenting opinion
of Associate Justice Maria Lourdes P. A. Sereno (Justice Sereno) to the said
October 19, 2010 Show Cause Resolution. Neither is this a disciplinary
proceeding grounded on an allegedly irregularly concluded finding of indirect
contempt as intimated by Associate Justice Conchita Carpio Morales (Justice
Morales) in her dissenting opinions to both the October 19, 2010 Show Cause
Resolution and the present decision.
With the nature of this case as purely a bar disciplinary proceeding firmly in
mind, the Court finds that with the exception of one respondent whose
compliance was adequate and another who manifested he was not a member
of the Philippine Bar, the submitted explanations, being mere denials and/or
tangential to the issues at hand, are decidedly unsatisfactory. The proffered
defenses even more urgently behoove this Court to call the attention of
respondent law professors, who are members of the Bar, to the relationship of
their duties as such under the Code of Professional Responsibility to their civil
rights as citizens and academics in our free and democratic republic.
The provisions of the Code of Professional Responsibility involved in this case
are as follows:
CANON 1 — A lawyer shall uphold the constitution, obey the laws of the land
and promote respect for law and legal processes.
RULE 1.02 - A lawyer shall not counsel or abet activities aimed at defiance of
the law or at lessening confidence in the legal system.
CANON 10 - A lawyer owes candor, fairness and good faith to the court.
Rule 10.01 - A lawyer shall not do any falsehood, nor consent to the doing of
any in court; nor shall he mislead, or allow the Court to be misled by any artifice.
Rule 10.02 - A lawyer shall not knowingly misquote or misrepresent the contents
of paper, the language or the argument of opposing counsel, or the text of a
decision or authority, or knowingly cite as law a provision already rendered
inoperative by repeal or amendment, or assert as a fact that which has not been
proved.
Rule 10.03 - A lawyer shall observe the rules of procedure and shall not misuse
them to defeat the ends of justice.
CANON 11 — A lawyer shall observe and maintain the respect due to the courts
and to judicial officers and should insist on similar conduct by others.
RULE 11.05 A lawyer shall submit grievances against a Judge to the proper
authorities only.
CANON 13 — A lawyer shall rely upon the merits of his cause and refrain from
any impropriety which tends to influence, or gives the appearance of influencing
the court.
Established jurisprudence will undeniably support our view that when lawyers
speak their minds, they must ever be mindful of their sworn oath to observe
ethical standards of their profession, and in particular, avoid foul and abusive
language to condemn the Supreme Court, or any court for that matter, for a
decision it has rendered, especially during the pendency of a motion for such
decision’s reconsideration. The accusation of plagiarism against a member of
this Court is not the real issue here but rather this plagiarism issue has been
used to deflect everyone’s attention from the actual concern of this Court to
determine by respondents’ explanations whether or not respondent members of
the Bar have crossed the line of decency and acceptable professional conduct
and speech and violated the Rules of Court through improper intervention or
interference as third parties to a pending case. Preliminarily, it should be
stressed that it was respondents themselves who called upon the Supreme
Court to act on their Statement,2 which they formally submitted, through Dean
Marvic M.V.F. Leonen (Dean Leonen), for the Court’s proper disposition.
Considering the defenses of freedom of speech and academic freedom invoked
by the respondents, it is worth discussing here that the legal reasoning used in
the past by this Court to rule that freedom of expression is not a defense in
administrative cases against lawyers for using intemperate speech in open court
or in court submissions can similarly be applied to respondents’ invocation of
academic freedom. Indeed, it is precisely because respondents are not merely
lawyers but lawyers who teach law and mould the minds of young aspiring
attorneys that respondents’ own non-observance of the Code of Professional
Responsibility, even if purportedly motivated by the purest of intentions, cannot
be ignored nor glossed over by this Court.
To fully appreciate the grave repercussions of respondents’ actuations, it is
apropos to revisit the factual antecedents of this case.
BACKGROUND OF THE CASE
Antecedent Facts and Proceedings
On April 28, 2010, the ponencia of Associate Justice Mariano del Castillo
(Justice Del Castillo) in Vinuya, et al. v. Executive Secretary (G.R. No. 162230)
was promulgated. On May 31, 2010, the counsel3 for Vinuya, et al. (the "Malaya
Lolas"), filed a Motion for Reconsideration of the Vinuya decision, raising solely
the following grounds:
I. Our own constitutional and jurisprudential histories reject this Honorable
Courts’ (sic) assertion that the Executive’s foreign policy prerogatives are
virtually unlimited; precisely, under the relevant jurisprudence and constitutional
provisions, such prerogatives are proscribed by international human rights and
humanitarian standards, including those provided for in the relevant
international conventions of which the Philippines is a party.4
II. This Honorable Court has confused diplomatic protection with the broader, if
fundamental, responsibility of states to protect the human rights of its citizens –
especially where the rights asserted are subject of erga omnes obligations and
pertain to jus cogens norms.5
On July 19, 2010,6 counsel for the Malaya Lolas, Attys. H. Harry L. Roque, Jr.
(Atty. Roque) and Romel Regalado Bagares (Atty. Bagares), filed a
Supplemental Motion for Reconsideration in G.R. No. 162230, where they
posited for the first time their charge of plagiarism as one of the grounds for
reconsideration of the Vinuya decision. Among other arguments, Attys. Roque
and Bagares asserted that:
I.
IN THE FIRST PLACE, IT IS HIGHLY IMPROPER FOR THIS HONORABLE
COURT’S JUDGMENT OF APRIL 28, 2010 TO PLAGIARIZE AT LEAST
THREE SOURCES – AN ARTICLE PUBLISHED IN 2009 IN THE YALE LAW
JOURNAL OF INTERNATIONAL LAW, A BOOK PUBLISHED BY THE
CAMBRIDGE UNIVERSITY PRESS IN 2005 AND AN ARTICLE PUBLISHED
IN 2006 IN THE CASE WESTERN RESERVE JOURNAL OF INTERNATIONAL
LAW – AND MAKE IT APPEAR THAT THESE SOURCES SUPPORT THE
JUDGMENT’S ARGUMENTS FOR DISMISSING THE INSTANT PETITION
WHEN IN TRUTH, THE PLAGIARIZED SOURCES EVEN MAKE A STRONG
CASE FOR THE PETITION’S CLAIMS.7
They also claimed that "[i]n this controversy, the evidence bears out the fact not
only of extensive plagiarism but of (sic) also of twisting the true intents of the
plagiarized sources by the ponencia to suit the arguments of the assailed
Judgment for denying the Petition."8
Page 15 of 72
According to Attys. Roque and Bagares, the works allegedly plagiarized in the
Vinuya decision were namely: (1) Evan J. Criddle and Evan Fox-Decent’s article
"A Fiduciary Theory of Jus Cogens;"9 (2) Christian J. Tams’ book Enforcing
Erga Omnes Obligations in International Law;10 and (3) Mark Ellis’ article
"Breaking the Silence: On Rape as an International Crime."11
On the same day as the filing of the Supplemental Motion for Reconsideration
on July 19, 2010, journalists Aries C. Rufo and Purple S. Romero posted an
article, entitled "SC justice plagiarized parts of ruling on comfort women," on the
Newsbreak website.12 The same article appeared on the GMA News TV
website also on July 19, 2010.13
On July 22, 2010, Atty. Roque’s column, entitled "Plagiarized and Twisted,"
appeared in the Manila Standard Today.14 In the said column, Atty. Roque
claimed that Prof. Evan Criddle, one of the authors purportedly not properly
acknowledged in the Vinuya decision, confirmed that his work, co-authored with
Prof. Evan Fox-Decent, had been plagiarized. Atty. Roque quoted Prof.
Criddle’s response to the post by Julian Ku regarding the news report15 on the
alleged plagiarism in the international law blog, Opinio Juris. Prof. Criddle
responded to Ku’s blog entry in this wise:
The newspaper’s16 [plagiarism] claims are based on a motion for
reconsideration filed yesterday with the Philippine Supreme Court yesterday.
The motion is available here:
http://harryroque.com/2010/07/18/supplemental-motion-alleging-plagiarism-in-
the-supreme-court/
The motion suggests that the Court’s decision contains thirty-four sentences
and citations that are identical to sentences and citations in my 2009 YJIL article
(co-authored with Evan Fox-Decent). Professor Fox-Decent and I were unaware
of the petitioners’ [plagiarism] allegations until after the motion was filed today.
Speaking for myself, the most troubling aspect of the court’s jus cogens
discussion is that it implies that the prohibitions against crimes against
humanity, sexual slavery, and torture are not jus cogens norms. Our article
emphatically asserts the opposite. The Supreme Court’s decision is available
here: http://sc.judiciary.gov.ph/jurisprudence/2010/april2010/162230.htm17
On even date, July 22, 2010, Justice Del Castillo wrote to his colleagues on the
Court in reply to the charge of plagiarism contained in the Supplemental Motion
for Reconsideration.18
In a letter dated July 23, 2010, another purportedly plagiarized author in the
Vinuya decision, Dr. Mark Ellis, wrote the Court, to wit:
Your Honours:
I write concerning a most delicate issue that has come to my attention in the last
few days.
Much as I regret to raise this matter before your esteemed Court, I am
compelled, as a question of the integrity of my work as an academic and as an
advocate of human rights and humanitarian law, to take exception to the
possible unauthorized use of my law review article on rape as an international
crime in your esteemed Court’s Judgment in the case of Vinuya et al. v.
Executive Secretary et al. (G.R. No. 162230, Judgment of 28 April 2010).
My attention was called to the Judgment and the issue of possible plagiarism by
the Philippine chapter of the Southeast Asia Media Legal Defence Initiative
(SEAMLDI),19 an affiliate of the London-based Media Legal Defence Initiative
(MLDI), where I sit as trustee.
In particular, I am concerned about a large part of the extensive discussion in
footnote 65, pp. 27-28, of the said Judgment of your esteemed Court. I am also
concerned that your esteemed Court may have misread the arguments I made
in the article and employed them for cross purposes. This would be ironic since
the article was written precisely to argue for the appropriate legal remedy for
victims of war crimes, genocide, and crimes against humanity.
I believe a full copy of my article as published in the Case Western Reserve
Journal of International Law in 2006 has been made available to your esteemed
Court. I trust that your esteemed Court will take the time to carefully study the
arguments I made in the article.
I would appreciate receiving a response from your esteemed Court as to the
issues raised by this letter.
With respect,
(Sgd.)
Dr. Mark Ellis20
In Memorandum Order No. 35-2010 issued on July 27, 2010, the Court formed
the Committee on Ethics and Ethical Standards (the Ethics Committee)
pursuant to Section 13, Rule 2 of the Internal Rules of the Supreme Court. In an
En Banc Resolution also dated July 27, 2010, the Court referred the July 22,
2010 letter of Justice Del Castillo to the Ethics Committee. The matter was
subsequently docketed as A.M. No. 10-7-17-SC.
On August 2, 2010, the Ethics Committee required Attys. Roque and Bagares
to comment on the letter of Justice Del Castillo.21
On August 9, 2010, a statement dated July 27, 2010, entitled "Restoring
Integrity: A Statement by the Faculty of the University of the Philippines College
of Law on the Allegations of Plagiarism and Misrepresentation in the Supreme
Court" (the Statement), was posted in Newsbreak’s website22 and on Atty.
Roque’s blog.23 A report regarding the statement also appeared on various on-
line news sites, such as the GMA News TV24 and the Sun Star25 sites, on the
same date. The statement was likewise posted at the University of the
Philippines College of Law’s bulletin board allegedly on August 10, 201026 and
at said college’s website.27
On August 11, 2010, Dean Leonen submitted a copy of the Statement of the
University of the Philippines College of Law Faculty (UP Law faculty) to the
Court, through Chief Justice Renato C. Corona (Chief Justice Corona). The
cover letter dated August 10, 2010 of Dean Leonen read:
The Honorable
Supreme Court of the Republic of the Philippines
Through: Hon. Renato C. Corona
Chief Justice
Subject: Statement of faculty
from the UP College of Law
on the Plagiarism in the case of
Vinuya v Executive Secretary
Your Honors:
We attach for your information and proper disposition a statement signed by
thirty[-]eight (38)28 members of the faculty of the UP College of Law. We hope
that its points could be considered by the Supreme Court en banc.
Respectfully,
(Sgd.)
Marvic M.V.F. Leonen
Dean and Professor of Law
(Emphases supplied.)
The copy of the Statement attached to the above-quoted letter did not contain
the actual signatures of the alleged signatories but only stated the names of 37
UP Law professors with the notation (SGD.) appearing beside each name. For
convenient reference, the text of the UP Law faculty Statement is reproduced
here:
RESTORING INTEGRITY
A STATEMENT BY THE FACULTY OF
THE UNIVERSITY OF THE PHILIPPINES COLLEGE OF LAW
ON THE ALLEGATIONS OF PLAGIARISM AND MISREPRESENTATION
IN THE SUPREME COURT
An extraordinary act of injustice has again been committed against the brave
Filipinas who had suffered abuse during a time of war. After they courageously
came out with their very personal stories of abuse and suffering as "comfort
women", waited for almost two decades for any meaningful relief from their own
government as well as from the government of Japan, got their hopes up for a
semblance of judicial recourse in the case of Vinuya v. Executive Secretary,
G.R. No. 162230 (28 April 2010), they only had these hopes crushed by a
singularly reprehensible act of dishonesty and misrepresentation by the Highest
Court of the land.
It is within this frame that the Faculty of the University of the Philippines College
of Law views the charge that an Associate Justice of the Supreme Court
committed plagiarism and misrepresentation in Vinuya v. Executive Secretary.
The plagiarism and misrepresentation are not only affronts to the individual
scholars whose work have been appropriated without correct attribution, but
also a serious threat to the integrity and credibility of the Philippine Judicial
System.
In common parlance, ‘plagiarism’ is the appropriation and misrepresentation of
another person’s work as one’s own. In the field of writing, it is cheating at best,
and stealing at worst. It constitutes a taking of someone else’s ideas and
expressions, including all the effort and creativity that went into committing such
ideas and expressions into writing, and then making it appear that such ideas
and expressions were originally created by the taker. It is dishonesty, pure and
simple. A judicial system that allows plagiarism in any form is one that allows
dishonesty. Since all judicial decisions form part of the law of the land, to allow
plagiarism in the Supreme Court is to allow the production of laws by dishonest
means. Evidently, this is a complete perversion and falsification of the ends of
justice.
A comparison of the Vinuya decision and the original source material shows that
the ponente merely copied select portions of other legal writers’ works and
interspersed them into the decision as if they were his own, original work. Under
the circumstances, however, because the Decision has been promulgated by
the Court, the Decision now becomes the Court’s and no longer just the
ponente’s. Thus the Court also bears the responsibility for the Decision. In the
absence of any mention of the original writers’ names and the publications from
which they came, the thing speaks for itself.
So far there have been unsatisfactory responses from the ponente of this case
and the spokesman of the Court.
Page 16 of 72
It is argued, for example, that the inclusion of the footnotes from the original
articles is a reference to the ‘primary’ sources relied upon. This cursory
explanation is not acceptable, because the original authors’ writings and the
effort they put into finding and summarizing those primary sources are precisely
the subject of plagiarism. The inclusion of the footnotes together with portions
of their writings in fact aggravates, instead of mitigates, the plagiarism since it
provides additional evidence of a deliberate intention to appropriate the original
authors’ work of organizing and analyzing those primary sources.
It is also argued that the Members of the Court cannot be expected to be familiar
with all legal and scholarly journals. This is also not acceptable, because
personal unfamiliarity with sources all the more demands correct and careful
attribution and citation of the material relied upon. It is a matter of diligence and
competence expected of all Magistrates of the Highest Court of the Land.
But a far more serious matter is the objection of the original writers, Professors
Evan Criddle and Evan Fox-Descent, that the High Court actually misrepresents
the conclusions of their work entitled "A Fiduciary Theory of Jus Cogens," the
main source of the plagiarized text. In this article they argue that the
classification of the crimes of rape, torture, and sexual slavery as crimes against
humanity have attained the status of jus cogens, making it obligatory upon the
State to seek remedies on behalf of its aggrieved citizens. Yet, the Vinuya
decision uses parts of the same article to arrive at the contrary conclusion. This
exacerbates the intellectual dishonesty of copying works without attribution by
transforming it into an act of intellectual fraud by copying works in order to
mislead and deceive.
The case is a potential landmark decision in International Law, because it deals
with State liability and responsibility for personal injury and damage suffered in
a time of war, and the role of the injured parties’ home States in the pursuit of
remedies against such injury or damage. National courts rarely have such
opportunities to make an international impact. That the petitioners were Filipino
"comfort women" who suffered from horrific abuse during the Second World War
made it incumbent on the Court of last resort to afford them every solicitude. But
instead of acting with urgency on this case, the Court delayed its resolution for
almost seven years, oblivious to the deaths of many of the petitioners seeking
justice from the Court. When it dismissed the Vinuya petition based on
misrepresented and plagiarized materials, the Court decided this case based
on polluted sources. By so doing, the Supreme Court added insult to injury by
failing to actually exercise its "power to urge and exhort the Executive
Department to take up the claims of the Vinuya petitioners. Its callous
disposition, coupled with false sympathy and nonchalance, belies a more
alarming lack of concern for even the most basic values of decency and respect.
The reputation of the Philippine Supreme Court and the standing of the
Philippine legal profession before other Judiciaries and legal systems are truly
at stake.
The High Court cannot accommodate less than absolute honesty in its decisions
and cannot accept excuses for failure to attain the highest standards of conduct
imposed upon all members of the Bench and Bar because these undermine the
very foundation of its authority and power in a democratic society. Given the
Court’s recent history and the controversy that surrounded it, it cannot allow the
charges of such clear and obvious plagiarism to pass without sanction as this
would only further erode faith and confidence in the judicial system. And in light
of the significance of this decision to the quest for justice not only of Filipino
women, but of women elsewhere in the world who have suffered the horrors of
sexual abuse and exploitation in times of war, the Court cannot coldly deny relief
and justice to the petitioners on the basis of pilfered and misinterpreted texts.
The Court cannot regain its credibility and maintain its moral authority without
ensuring that its own conduct, whether collectively or through its Members, is
beyond reproach. This necessarily includes ensuring that not only the content,
but also the processes of preparing and writing its own decisions, are credible
and beyond question. The Vinuya Decision must be conscientiously reviewed
and not casually cast aside, if not for the purpose of sanction, then at least for
the purpose of reflection and guidance. It is an absolutely essential step toward
the establishment of a higher standard of professional care and practical
scholarship in the Bench and Bar, which are critical to improving the system of
administration of justice in the Philippines. It is also a very crucial step in
ensuring the position of the Supreme Court as the Final Arbiter of all
controversies: a position that requires competence and integrity completely
above any and all reproach, in accordance with the exacting demands of judicial
and professional ethics.
With these considerations, and bearing in mind the solemn duties and trust
reposed upon them as teachers in the profession of Law, it is the opinion of the
Faculty of the University of the Philippine College of Law that:
(1) The plagiarism committed in the case of Vinuya v. Executive Secretary is
unacceptable, unethical and in breach of the high standards of moral conduct
and judicial and professional competence expected of the Supreme Court;
(2) Such a fundamental breach endangers the integrity and credibility of the
entire Supreme Court and undermines the foundations of the Philippine judicial
system by allowing implicitly the decision of cases and the establishment of legal
precedents through dubious means;
(3) The same breach and consequent disposition of the Vinuya case does
violence to the primordial function of the Supreme Court as the ultimate
dispenser of justice to all those who have been left without legal or equitable
recourse, such as the petitioners therein;
(4) In light of the extremely serious and far-reaching nature of the dishonesty The relevant passage of the judgment is to be found on p. 30 of your Court’s
and to save the honor and dignity of the Supreme Court as an institution, it is Judgment, in the section addressing the concept of obligations erga omnes. As
necessary for the ponente of Vinuya v. Executive Secretary to resign his the table annexed to this letter shows, the relevant sentences were taken almost
position, without prejudice to any other sanctions that the Court may consider word by word from the introductory chapter of my book Enforcing Obligations
appropriate; Erga Omnes in International Law (Cambridge University Press 2005). I note that
there is a generic reference to my work in footnote 69 of the Judgment, but as
(5) The Supreme Court must take this opportunity to review the manner by which this is in relation to a citation from another author (Bruno Simma) rather than
it conducts research, prepares drafts, reaches and finalizes decisions in order with respect to the substantive passages reproduced in the Judgment, I do not
to prevent a recurrence of similar acts, and to provide clear and concise think it can be considered an appropriate form of referencing.
guidance to the Bench and Bar to ensure only the highest quality of legal
research and writing in pleadings, practice, and adjudication. I am particularly concerned that my work should have been used to support the
Judgment’s cautious approach to the erga omnes concept. In fact, a most
Malcolm Hall, University of the Philippines College of Law, Quezon City, 27 July cursory reading shows that my book’s central thesis is precisely the opposite:
2010. namely that the erga omnes concept has been widely accepted and has a firm
place in contemporary international law. Hence the introductory chapter notes
(SGD.) MARVIC M.V.F. LEONEN that "[t]he present study attempts to demystify aspects of the ‘very mysterious’
Dean and Professor of Law concept and thereby to facilitate its implementation" (p. 5). In the same vein, the
concluding section notes that "the preceding chapters show that the concept is
(SGD.) FROILAN M. now a part of the reality of international law, established in the jurisprudence of
(SGD.) PACIFICO A. AGABIN courts and the practice of States" (p. 309).
BACUNGAN
Dean (1989-1995)
Dean (1978-1983)
With due respect to your Honourable Court, I am at a loss to see how my work
should have been cited to support – as it seemingly has – the opposite
(SGD.) MERLIN M. (SGD.) SALVADOR T. CARLOTA approach. More generally, I am concerned at the way in which your Honourable
MAGALLONA Dean (2005-2008) and Professor of Court’s Judgment has drawn on scholarly work without properly acknowledging
Dean (1995-1999) Law it.

REGULAR FACULTY On both aspects, I would appreciate a prompt response from your Honourable
Court.
(SGD.) JAY L.
(SGD.) CARMELO V. SISON I remain
BATONGBACAL
Professor
Assistant Professor
Sincerely yours

(Sgd.)
(SGD.) PATRICIA R.P.
(SGD.) EVELYN (LEO) D. Christian J. Tams31
SALVADOR DAWAY
BATTAD
Associate Dean and
Assistant Professor In the course of the submission of Atty. Roque and Atty. Bagares’ exhibits during
Associate Professor
the August 26, 2010 hearing in the ethics case against Justice Del Castillo, the
Ethics Committee noted that Exhibit "J" (a copy of the Restoring Integrity
Statement) was not signed but merely reflected the names of certain faculty
(SGD.) DANTE B.
(SGD.) GWEN G. DE VERA members with the letters (SGD.) beside the names. Thus, the Ethics Committee
GATMAYTAN
Assistant Professor directed Atty. Roque to present the signed copy of the said Statement within
Associate Professor
three days from the August 26 hearing.32

(SGD.) THEODORE O. TE
Assistant Professor
(SGD.) FLORIN T. HILBAY
Assistant Professor
LECTURERS
(SGD.) JOSE GERARDO A.
(SGD.) JOSE C. LAURETA
ALAMPAY
(SGD.) ARTHUR P. AUTEA
(SGD.) ROSA MARIA J. BAUTISTA
(SGD.) MARK R. BOCOBO
(SGD.) DAN P. CALICA
(SGD.) TRISTAN A. CATINDIG
(SGD.) SANDRA MARIE O.
CORONEL
(SGD.) ROSARIO O. GALLO
(SGD.) CONCEPCION L.
JARDELEZA
(SGD.) ANTONIO G.M. LA VIÑA
(SGD.) SUSAN D. VILLANUEVA29
(SGD.) CARINA C. LAFORTEZA
(SGD.) SOLOMON F.
LUMBA
Assistant Professor
(SGD.) ROMMEL J. CASIS
Assistant Professor
(SGD.) DINA D. LUCENARIO
(SGD.) OWEN J. LYNCH
(SGD.) ANTONIO M. SANTOS
(SGD.) VICENTE V. MENDOZA
(SGD.) RODOLFO NOEL S.
QUIMBO
(SGD.) GMELEEN FAYE B.
TOMBOC
(SGD.) NICHOLAS FELIX L. TY
(SGD.) EVALYN G. URSUA
(SGD.) RAUL T. VASQUEZ
(Underscoring supplied.)
It was upon compliance with this directive that the Ethics Committee was given
a copy of the signed UP Law Faculty Statement that showed on the signature
pages the names of the full roster of the UP Law Faculty, 81 faculty members
in all. Indubitable from the actual signed copy of the Statement was that only 37
of the 81 faculty members appeared to have signed the same. However, the 37
actual signatories to the Statement did not include former Supreme Court
Associate Justice Vicente V. Mendoza (Justice Mendoza) as represented in the
previous copies of the Statement submitted by Dean Leonen and Atty. Roque.
It also appeared that Atty. Miguel R. Armovit (Atty. Armovit) signed the
Statement although his name was not included among the signatories in the
previous copies submitted to the Court. Thus, the total number of ostensible
signatories to the Statement remained at 37.
The Ethics Committee referred this matter to the Court en banc since the same
Statement, having been formally submitted by Dean Leonen on August 11,
2010, was already under consideration by the Court.33
In a Resolution dated October 19, 2010, the Court en banc made the following
observations regarding the UP Law Faculty Statement:
Notably, while the statement was meant to reflect the educators’ opinion on the
allegations of plagiarism against Justice Del Castillo, they treated such
allegation not only as an established fact, but a truth. In particular, they
expressed dissatisfaction over Justice Del Castillo’s explanation on how he cited
the primary sources of the quoted portions and yet arrived at a contrary
conclusion to those of the authors of the articles supposedly plagiarized.
Beyond this, however, the statement bore certain remarks which raise concern
for the Court. The opening sentence alone is a grim preamble to the institutional
attack that lay ahead. It reads:

Meanwhile, in a letter dated August 18, 2010, Prof. Christian J. Tams made
known his sentiments on the alleged plagiarism issue to the Court.30 We quote
Prof. Tams’ letter here:
Glasgow, 18 August 2010
Vinuya, et al. v. Executive Secretary et al. (G.R. No. 162230)
Hon. Renato C. Corona, Chief Justice
Your Excellency,
My name is Christian J. Tams, and I am a professor of international law at the
University of Glasgow. I am writing to you in relation to the use of one of my
publications in the above-mentioned judgment of your Honourable Court.
An extraordinary act of injustice has again been committed against the brave
Filipinas who had suffered abuse during a time of war.
The first paragraph concludes with a reference to the decision in Vinuya v.
Executive Secretary as a reprehensible act of dishonesty and misrepresentation
by the Highest Court of the land. x x x.
The insult to the members of the Court was aggravated by imputations of
deliberately delaying the resolution of the said case, its dismissal on the basis
of "polluted sources," the Court’s alleged indifference to the cause of petitioners
[in the Vinuya case], as well as the supposed alarming lack of concern of the
members of the Court for even the most basic values of decency and respect.34
x x x. (Underscoring ours.)
In the same Resolution, the Court went on to state that:

Page 17 of 72
While most agree that the right to criticize the judiciary is critical to maintaining
a free and democratic society, there is also a general consensus that healthy
criticism only goes so far. Many types of criticism leveled at the judiciary cross
the line to become harmful and irresponsible attacks. These potentially
devastating attacks and unjust criticism can threaten the independence of the
judiciary. The court must "insist on being permitted to proceed to the disposition
of its business in an orderly manner, free from outside interference obstructive
of its functions and tending to embarrass the administration of justice."
The Court could hardly perceive any reasonable purpose for the faculty’s less
than objective comments except to discredit the April 28, 2010 Decision in the
Vinuya case and undermine the Court’s honesty, integrity and competence in
addressing the motion for its reconsideration. As if the case on the comfort
women’s claims is not controversial enough, the UP Law faculty would fan the
flames and invite resentment against a resolution that would not reverse the
said decision. This runs contrary to their obligation as law professors and
officers of the Court to be the first to uphold the dignity and authority of this
Court, to which they owe fidelity according to the oath they have taken as
attorneys, and not to promote distrust in the administration of justice.35 x x x.
(Citations omitted; emphases and underscoring supplied.)
Thus, the Court directed Attys. Marvic M.V.F. Leonen, Froilan M. Bacungan,
Pacifico A. Agabin, Merlin M. Magallona, Salvador T. Carlota, Carmelo V. Sison,
Patricia R.P. Salvador Daway, Dante B. Gatmaytan, Theodore O. Te, Florin T.
Hilbay, Jay L. Batongbacal, Evelyn (Leo) D. Battad, Gwen G. De Vera, Solomon
F. Lumba, Rommel J. Casis, Jose Gerardo A. Alampay, Miguel R. Armovit,
Arthur P. Autea, Rosa Maria J. Bautista, Mark R. Bocobo, Dan P. Calica, Tristan
A. Catindig, Sandra Marie O. Coronel, Rosario O. Gallo, Concepcion L.
Jardeleza, Antonio G.M. La Viña, Carina C. Laforteza, Jose C. Laureta, Owen
J. Lynch, Rodolfo Noel S. Quimbo, Antonio M. Santos, Gmeleen Faye B.
Tomboc, Nicholas Felix L. Ty, Evalyn G. Ursua, Raul T. Vasquez, Susan D.
Villanueva and Dina D. Lucenario to show cause, within ten (10) days from
receipt of the copy of the Resolution, why they should not be disciplined as
members of the Bar for violation of Canons 1,36 11 and 13 and Rules 1.02 and
11.05 of the Code of Professional Responsibility.37
Dean Leonen was likewise directed to show cause within the same period why
he should not be disciplinarily dealt with for violation of Canon 10, Rules 10.01,
10.02 and 10.03 for submitting through his letter dated August 10, 2010, during
the pendency of G.R. No. 162230 and of the investigation before the Ethics
Committee, for the consideration of the Court en banc, a dummy which is not a
true and faithful reproduction of the UP Law Faculty Statement.38
In the same Resolution, the present controversy was docketed as a regular
administrative matter.
Summaries of the Pleadings Filed by Respondents in Response to the October
19, 2010 Show Cause Resolution
On November 19, 2010, within the extension for filing granted by the Court,
respondents filed the following pleadings:
(1) Compliance dated November 18, 2010 by counsels for 35 of the 37
respondents, excluding Prof. Owen Lynch and Prof. Raul T. Vasquez, in relation
to the charge of violation of Canons 1, 11 and 13 and Rules 1.02 and 11.05 of
the Code of Professional Responsibility;
(2) Compliance and Reservation dated November 18, 2010 by Prof. Rosa Maria
T. Juan-Bautista in relation to the same charge in par. (1);
(3) Compliance dated November 19, 2010 by counsel for Prof. Raul T. Vasquez
in relation to the same charge in par. (1);
(4) Compliance dated November 19, 2010 by counsels for Dean Leonen, in
relation to the charge of violation of Canon 10, Rules 10.01, 10.02 and 10.03;
and
(5) Manifestation dated November 19, 2010 by counsel for Prof. Owen Lynch.
Common Compliance of 35 Respondents (Excluding Prof. Owen Lynch and
Prof. Raul Vasquez)
Thirty-five (35) of the respondent UP Law professors filed on November 19,
2010 a common compliance which was signed by their respective counsels (the
Common Compliance). In the "Preface" of said Common Compliance,
respondents stressed that "[they] issued the Restoring Integrity Statement in the
discharge of the ‘solemn duties and trust reposed upon them as teachers in the
profession of law,’ and as members of the Bar to speak out on a matter of public
concern and one that is of vital interest to them."39 They likewise alleged that
"they acted with the purest of intentions" and pointed out that "none of them was
involved either as party or counsel"40 in the Vinuya case. Further, respondents
"note with concern" that the Show Cause Resolution’s findings and conclusions
were "a prejudgment – that respondents indeed are in contempt, have breached
their obligations as law professors and officers of the Court, and have violated
‘Canons [1], 11 and 13 and Rules 1.02 and 11.05 of the Code of Professional
Responsibility."41
By way of explanation, the respondents emphasized the following points:
(a) Respondents’ alleged noble intentions
In response to the charges of failure to observe due respect to legal
processes42 and the courts43 and of tending to influence, or giving the
Page 18 of 72
appearance of influencing the Court44 in the issuance of their Statement,
respondents assert that their intention was not to malign the Court but rather to
defend its integrity and credibility and to ensure continued confidence in the
legal system. Their noble motive was purportedly evidenced by the portion of
their Statement "focusing on constructive action."45 Respondents’ call in the
Statement for the Court "to provide clear and concise guidance to the Bench
and Bar to ensure only the highest quality of legal research and writing in
adjudication," was reputedly "in keeping with strictures enjoining lawyers to
‘participate in the development of the legal system by initiating or supporting
efforts in law reform and in the improvement of the administration of justice’"
(under Canon 4 of the Code of Professional Responsibility) and to "promote
respect for the law and legal processes" (under Canon 1, id.).46 Furthermore,
as academics, they allegedly have a "special interest and duty to vigilantly guard
against plagiarism and misrepresentation because these unwelcome
occurrences have a profound impact in the academe, especially in our law
schools."47
Respondents further "[called] on this Court not to misconstrue the Restoring
Integrity Statement as an ‘institutional attack’ x x x on the basis of its first and
ninth paragraphs."48 They further clarified that at the time the Statement was
allegedly drafted and agreed upon, it appeared to them the Court "was not going
to take any action on the grave and startling allegations of plagiarism and
misrepresentation."49 According to respondents, the bases for their belief were
(i) the news article published on July 21, 2010 in the Philippine Daily Inquirer
wherein Court Administrator Jose Midas P. Marquez was reported to have said
that Chief Justice Corona would not order an inquiry into the matter;50 and (ii)
the July 22, 2010 letter of Justice Del Castillo which they claimed "did nothing
but to downplay the gravity of the plagiarism and misrepresentation charges."51
Respondents claimed that it was their perception of the Court’s indifference to
the dangers posed by the plagiarism allegations against Justice Del Castillo that
impelled them to urgently take a public stand on the issue.
(b) The "correctness" of respondents’ position that Justice Del Castillo
committed plagiarism and should be held accountable in accordance with the
standards of academic writing
A significant portion of the Common Compliance is devoted to a discussion of
the merits of respondents’ charge of plagiarism against Justice Del Castillo.
Relying on University of the Philippines Board of Regents v. Court of Appeals52
and foreign materials and jurisprudence, respondents essentially argue that
their position regarding the plagiarism charge against Justice Del Castillo is the
correct view and that they are therefore justified in issuing their Restoring
Integrity Statement. Attachments to the Common Compliance included, among
others: (i) the letter dated October 28, 2010 of Peter B. Payoyo, LL.M, Ph.D.,53
sent to Chief Justice Corona through Justice Sereno, alleging that the Vinuya
decision likewise lifted without proper attribution the text from a legal article by
Mariana Salazar Albornoz that appeared in the Anuario Mexicano De Derecho
Internacional and from an International Court of Justice decision; and (ii) a 2008
Human Rights Law Review Article entitled "Sexual Orientation, Gender Identity
and International Human Rights Law" by Michael O’Flaherty and John Fisher,
in support of their charge that Justice Del Castillo also lifted passages from said
article without proper attribution, but this time, in his ponencia in Ang Ladlad
LGBT Party v. Commission on Elections.54
(c) Respondents’ belief that they are being "singled out" by the Court when
others have likewise spoken on the "plagiarism issue"
In the Common Compliance, respondents likewise asserted that "the plagiarism
and misrepresentation allegations are legitimate public issues."55 They
identified various published reports and opinions, in agreement with and in
opposition to the stance of respondents, on the issue of plagiarism, specifically:
(i) Newsbreak report on July 19, 2010 by Aries Rufo and Purple Romero;56
(ii) Column of Ramon Tulfo which appeared in the Philippine Daily Inquirer on
July 24, 2010;57
(iii) Editorial of the Philippine Daily Inquirer published on July 25, 2010;58
(iv) Letter dated July 22, 2010 of Justice Del Castillo published in the Philippine
Star on July 30, 2010;59
(v) Column of Former Intellectual Property Office Director General Adrian
Cristobal, Jr. published in the Business Mirror on August 5, 2010;60
(vi) Column of Former Chief Justice Artemio Panganiban published in the
Philippine Daily Inquirer on August 8, 2010;61
(vii) News report regarding Senator Francis Pangilinan’s call for the resignation
of Justice Del Castillo published in the Daily Tribune and the Manila Standard
Today on July 31, 2010;62
(viii) News reports regarding the statement of Dean Cesar Villanueva of the
Ateneo de Manila University School of Law on the calls for the resignation of
Justice Del Castillo published in The Manila Bulletin, the Philippine Star and the
Business Mirror on August 11, 2010;63
(ix) News report on expressions of support for Justice Del Castillo from a former
dean of the Pamantasan ng Lungsod ng Maynila, the Philippine Constitutional
Association, the Judges Association of Bulacan and the Integrated Bar of the
Philippines – Bulacan Chapter published in the Philippine Star on August 16,
2010;64 and
(x) Letter of the Dean of the Liceo de Cagayan University College of Law
published in the Philippine Daily Inquirer on August 10, 2010.65
In view of the foregoing, respondents alleged that this Court has singled them
out for sanctions and the charge in the Show Cause Resolution dated October
19, 2010 that they may have violated specific canons of the Code of
Professional Responsibility is unfair and without basis.
(d) Freedom of expression
In paragraphs 28 to 30 of the Common Compliance, respondents briefly
discussed their position that in issuing their Statement, "they should be seen as
not only to be performing their duties as members of the Bar, officers of the
court, and teachers of law, but also as citizens of a democracy who are
constitutionally protected in the exercise of free speech."66 In support of this
contention, they cited United States v. Bustos,67 In re: Atty. Vicente Raul
Almacen, 68 and In the Matter of Petition for Declaratory Relief Re:
Constitutionality of Republic Act 4880, Gonzales v. Commission on Elections.69
(e) Academic freedom
In paragraphs 31 to 34 of the Common Compliance, respondents asserted that
their Statement was also issued in the exercise of their academic freedom as
teachers in an institution of higher learning. They relied on Section 5 of the
University of the Philippines Charter of 2008 which provided that "[t]he national
university has the right and responsibility to exercise academic freedom." They
likewise adverted to Garcia v. The Faculty Admission Committee, Loyola School
of Theology70 which they claimed recognized the extent and breadth of such
freedom as to encourage a free and healthy discussion and communication of
a faculty member’s field of study without fear of reprisal. It is respondents’ view
that had they remained silent on the plagiarism issue in the Vinuya decision they
would have "compromised [their] integrity and credibility as teachers; [their
silence] would have created a culture and generation of students, professionals,
even lawyers, who would lack the competence and discipline for research and
pleading; or, worse, [that] their silence would have communicated to the public
that plagiarism and misrepresentation are inconsequential matters and that
intellectual integrity has no bearing or relevance to one’s conduct."71
In closing, respondents’ Common Compliance exhorted this Court to consider
the following portion of the dissenting opinion of Justice George A. Malcolm in
Salcedo v. Hernandez,72 to wit:
Respect for the courts can better be obtained by following a calm and impartial
course from the bench than by an attempt to compel respect for the judiciary by
chastising a lawyer for a too vigorous or injudicious exposition of his side of a
case. The Philippines needs lawyers of independent thought and courageous
bearing, jealous of the interests of their clients and unafraid of any court, high
or low, and the courts will do well tolerantly to overlook occasional intemperate
language soon to be regretted by the lawyer which affects in no way the
outcome of a case.73
On the matter of the reliefs to which respondents believe they are entitled, the
Common Compliance stated, thus:
WHEREFORE:
A. Respondents, as citizens of a democracy, professors of law, members of the
Bar and officers of the Court, respectfully pray that:
1. the foregoing be noted; and
2. the Court reconsider and reverse its adverse findings in the Show Cause
Resolution, including its conclusions that respondents have: [a] breached their
"obligation as law professors and officers of the Court to be the first to uphold
the dignity and authority of this Court, … and not to promote distrust in the
administration of justice;" and [b] committed "violations of Canons 10, 11, and
13 and Rules 1.02 and 11.05 of the Code of Professional Responsibility."
B. In the event the Honorable Court declines to grant the foregoing prayer,
respondents respectfully pray, in the alternative, and in assertion of their due
process rights, that before final judgment be rendered:
1. the Show Cause Resolution be set for hearing;
2. respondents be given a fair and full opportunity to refute and/or address the
findings and conclusions of fact in the Show Cause Resolution (including
especially the finding and conclusion of a lack of malicious intent), and in that
connection, that appropriate procedures and schedules for hearing be adopted
and defined that will allow them the full and fair opportunity to require the
production of and to present testimonial, documentary, and object evidence
bearing on the plagiarism and misrepresentation issues in Vinuya v. Executive
Secretary (G.R. No. 162230, April 28, 2010) and In the Matter of the Charges
of Plagiarism, etc. Against Associate Justice Mariano C. Del Castillo (A.M. No.
10-7-17-SC); and
3. respondents be given fair and full access to the transcripts, records, drafts,
reports and submissions in or relating to, and accorded the opportunity to cross-
examine the witnesses who were or could have been called in In The Matter of
the Charges of Plagiarism, etc. Against Associate Justice Mariano C. Del
Castillo (A.M. No. 10-7-17-SC).74
Compliance and Reservation of Prof. Rosa Maria T. Juan-Bautista
Page 19 of 72
Although already included in the Common Compliance, Prof. Rosa Maria T.
Juan-Bautista (Prof. Juan-Bautista) filed a separate Compliance and
Reservation (the Bautista Compliance), wherein she adopted the allegations in
the Common Compliance with some additional averments.
Prof. Juan-Bautista reiterated that her due process rights allegedly entitled her
to challenge the findings and conclusions in the Show Cause Resolution.
Furthermore, "[i]f the Restoring Integrity Statement can be considered indirect
contempt, under Section 3 of Rule 71 of the Rules of Court, such may be
punished only after charge and hearing."75
Prof. Juan-Bautista stressed that respondents signed the Statement "in good
faith and with the best intentions to protect the Supreme Court by asking one
member to resign."76 For her part, Prof. Juan-Bautista intimated that her deep
disappointment and sadness for the plight of the Malaya Lolas were what
motivated her to sign the Statement.
On the point of academic freedom, Prof. Juan-Bautista cited jurisprudence77
which in her view highlighted that academic freedom is constitutionally
guaranteed to institutions of higher learning such that schools have the freedom
to determine for themselves who may teach, what may be taught, how lessons
shall be taught and who may be admitted to study and that courts have no
authority to interfere in the schools’ exercise of discretion in these matters in the
absence of grave abuse of discretion. She claims the Court has encroached on
the academic freedom of the University of the Philippines and other universities
on their right to determine how lessons shall be taught.
Lastly, Prof. Juan-Bautista asserted that the Statement was an exercise of
respondents’ constitutional right to freedom of expression that can only be
curtailed when there is grave and imminent danger to public safety, public
morale, public health or other legitimate public interest.78
Compliance of Prof. Raul T. Vasquez
On November 19, 2010, Prof. Raul T. Vasquez (Prof. Vasquez) filed a separate
Compliance by registered mail (the Vasquez Compliance). In said Compliance,
Prof. Vasquez narrated the circumstances surrounding his signing of the
Statement. He alleged that the Vinuya decision was a topic of conversation
among the UP Law faculty early in the first semester (of academic year 2010-
11) because it reportedly contained citations not properly attributed to the
sources; that he was shown a copy of the Statement by a clerk of the Office of
the Dean on his way to his class; and that, agreeing in principle with the main
theme advanced by the Statement, he signed the same in utmost good faith.79
In response to the directive from this Court to explain why he should not be
disciplined as a member of the Bar under the Show Cause Resolution, Prof.
Vasquez also took the position that a lawyer has the right, like all citizens in a
democratic society, to comment on acts of public officers. He invited the
attention of the Court to the following authorities: (a) In re: Vicente Sotto;80 (b)
In re: Atty. Vicente Raul Almacen;81 and (c) a discussion appearing in American
Jurisprudence (AmJur) 2d.82 He claims that he "never had any intention to
unduly influence, nor entertained any illusion that he could or should influence,
[the Court] in its disposition of the Vinuya case"83 and that "attacking the
integrity of [the Court] was the farthest thing on respondent’s mind when he
signed the Statement."84 Unlike his colleagues, who wish to impress upon this
Court the purported homogeneity of the views on what constitutes plagiarism,
Prof. Vasquez stated in his Compliance that:
13. Before this Honorable Court rendered its Decision dated 12 October 2010,
some espoused the view that willful and deliberate intent to commit plagiarism
is an essential element of the same. Others, like respondent, were of the opinion
that plagiarism is committed regardless of the intent of the perpetrator, the way
it has always been viewed in the academe. This uncertainty made the issue a
fair topic for academic discussion in the College. Now, this Honorable Court has
ruled that plagiarism presupposes deliberate intent to steal another’s work and
to pass it off as one’s own.85 (Emphases supplied.)
Also in contrast to his colleagues, Prof. Vasquez was willing to concede that he
"might have been remiss in correctly assessing the effects of such language [in
the Statement] and could have been more careful."86 He ends his discussion
with a respectful submission that with his explanation, he has faithfully complied
with the Show Cause Resolution and that the Court will rule that he had not in
any manner violated his oath as a lawyer and officer of the Court.
Separate Compliance of Dean Leonen regarding the charge of violation of
Canon 10 in relation to his submission of a "dummy" of the UP Law Faculty
Statement to this Court
In his Compliance, Dean Leonen claimed that there were three drafts/versions
of the UP Law Faculty Statement, which he described as follows:
"Restoring Integrity I" which bears the entire roster of the faculty of the UP
College of Law in its signing pages, and the actual signatures of the thirty-seven
(37) faculty members subject of the Show Cause Resolution. A copy was filed
with the Honorable Court by Roque and Butuyan on 31 August 2010 in A.M. No.
10-7-17-SC.
"Restoring Integrity II" which does not bear any actual physical signature, but
which reflects as signatories the names of thirty-seven (37) members of the
faculty with the notation "(SGD.)". A copy of Restoring Integrity II was publicly
and physically posted in the UP College of Law on 10 August 2010. Another
copy of Restoring Integrity II was also officially received by the Honorable Court
from the Dean of the UP College of Law on 11 August 2010, almost three weeks
before the filing of Restoring Integrity I.
"Restoring Integrity III" which is a reprinting of Restoring Integrity II, and which
presently serves as the official file copy of the Dean’s Office in the UP College
of Law that may be signed by other faculty members who still wish to. It bears
the actual signatures of the thirty- seven original signatories to Restoring
Integrity I above their printed names and the notation "(SGD.") and, in addition,
the actual signatures of eight (8) other members of the faculty above their
handwritten or typewritten names.87
For purposes of this discussion, only Restoring Integrity I and Restoring Integrity
II are relevant since what Dean Leonen has been directed to explain are the
discrepancies in the signature pages of these two documents. Restoring
Integrity III was never submitted to this Court.
On how Restoring Integrity I and Restoring Integrity II were prepared and came
about, Dean Leonen alleged, thus:
2.2 On 27 July 2010, sensing the emergence of a relatively broad agreement in
the faculty on a draft statement, Dean Leonen instructed his staff to print the
draft and circulate it among the faculty members so that those who wished to
may sign. For this purpose, the staff encoded the law faculty roster to serve as
the printed draft’s signing pages. Thus did the first printed draft of the Restoring
Integrity Statement, Restoring Integrity I, come into being.
2.3. As of 27 July 2010, the date of the Restoring Integrity Statement, Dean
Leonen was unaware that a Motion for Reconsideration of the Honorable
Court’s Decision in Vinuya vs. Executive Secretary (G.R. No. 162230, 28 April
2010) had already been filed, or that the Honorable Court was in the process of
convening its Committee on Ethics and Ethical Standards in A.M. No. 10-7-17-
SC.
2.4. Dean Leonen’s staff then circulated Restoring Integrity I among the
members of the faculty. Some faculty members visited the Dean’s Office to sign
the document or had it brought to their classrooms in the College of Law, or to
their offices or residences. Still other faculty members who, for one reason or
another, were unable to sign Restoring Integrity I at that time, nevertheless
conveyed to Dean Leonen their assurances that they would sign as soon as
they could manage.
2.5. Sometime in the second week of August, judging that Restoring Integrity I
had been circulated long enough, Dean Leonen instructed his staff to reproduce
the statement in a style and manner appropriate for posting in the College of
Law. Following his own established practice in relation to significant public
issuances, he directed them to reformat the signing pages so that only the
names of those who signed the first printed draft would appear, together with
the corresponding "(SGD.)" note following each name. Restoring Integrity II thus
came into being.88
According to Dean Leonen, the "practice of eliminating blanks opposite or above
the names of non-signatories in the final draft of significant public issuances, is
meant not so much for aesthetic considerations as to secure the integrity of such
documents."89 He likewise claimed that "[p]osting statements with blanks would
be an open invitation to vandals and pranksters."90
With respect to the inclusion of Justice Mendoza’s name as among the
signatories in Restoring Integrity II when in fact he did not sign Restoring
Integrity I, Dean Leonen attributed the mistake to a miscommunication involving
his administrative officer. In his Compliance, he narrated that:
2.7. Upon being presented with a draft of Restoring Integrity II with the
reformatted signing pages, Dean Leonen noticed the inclusion of the name of
Justice Mendoza among the "(SGD.)" signatories. As Justice Mendoza was not
among those who had physically signed Restoring Integrity I when it was
previously circulated, Dean Leonen called the attention of his staff to the
inclusion of the Justice’s name among the "(SGD.)" signatories in Restoring
Integrity II.
2.8. Dean Leonen was told by his administrative officer that she had spoken to
Justice Mendoza over the phone on Friday, 06 August 2010. According to her,
Justice Mendoza had authorized the dean to sign the Restoring Integrity
Statement for him as he agreed fundamentally with its contents. Also according
to her, Justice Mendoza was unable at that time to sign the Restoring Integrity
Statement himself as he was leaving for the United States the following week.
It would later turn out that this account was not entirely accurate.91
(Underscoring and italics supplied.)
Dean Leonen claimed that he "had no reason to doubt his administrative officer,
however, and so placed full reliance on her account"92 as "[t]here were indeed
other faculty members who had also authorized the Dean to indicate that they
were signatories, even though they were at that time unable to affix their
signatures physically to the document."93
However, after receiving the Show Cause Resolution, Dean Leonen and his
staff reviewed the circumstances surrounding their effort to secure Justice
Mendoza’s signature. It would turn out that this was what actually transpired:
2.22.1. On Friday, 06 August 2010, when the dean’s staff talked to Justice
Mendoza on the phone, he [Justice Mendoza] indeed initially agreed to sign the
Restoring Integrity Statement as he fundamentally agreed with its contents.
However, Justice Mendoza did not exactly say that he authorized the dean to
sign the Restoring Integrity Statement. Rather, he inquired if he could authorize
Page 20 of 72
the dean to sign it for him as he was about to leave for the United States. The
dean’s staff informed him that they would, at any rate, still try to bring the
Restoring Integrity Statement to him.
2.22.2. Due to some administrative difficulties, Justice Mendoza was unable to
sign the Restoring Integrity Statement before he left for the U.S. the following
week.
2.22.3. The staff was able to bring Restoring Integrity III to Justice Mendoza
when he went to the College to teach on 24 September 2010, a day after his
arrival from the U.S. This time, Justice Mendoza declined to sign.94
According to the Dean:
2.23. It was only at this time that Dean Leonen realized the true import of the
call he received from Justice Mendoza in late September. Indeed, Justice
Mendoza confirmed that by the time the hard copy of the Restoring Integrity
Statement was brought to him shortly after his arrival from the U.S., he declined
to sign it because it had already become controversial. At that time, he predicted
that the Court would take some form of action against the faculty. By then, and
under those circumstances, he wanted to show due deference to the Honorable
Court, being a former Associate Justice and not wishing to unduly aggravate the
situation by signing the Statement.95 (Emphases supplied.)
With respect to the omission of Atty. Armovit’s name in the signature page of
Restoring Integrity II when he was one of the signatories of Restoring Integrity I
and the erroneous description in Dean Leonen’s August 10, 2010 letter that the
version of the Statement submitted to the Court was signed by 38 members of
the UP Law Faculty, it was explained in the Compliance that:
Respondent Atty. Miguel Armovit physically signed Restoring Integrity I when it
was circulated to him. However, his name was inadvertently left out by Dean
Leonen’s staff in the reformatting of the signing pages in Restoring Integrity II.
The dean assumed that his name was still included in the reformatted signing
pages, and so mentioned in his cover note to Chief Justice Corona that 38
members of the law faculty signed (the original 37 plus Justice Mendoza.)96
Dean Leonen argues that he should not be deemed to have submitted a dummy
of the Statement that was not a true and faithful reproduction of the same. He
emphasized that the main body of the Statement was unchanged in all its three
versions and only the signature pages were not the same. This purportedly is
merely "reflective of [the Statement’s] essential nature as a ‘live’ public
manifesto meant to continuously draw adherents to its message, its signatory
portion is necessarily evolving and dynamic x x x many other printings of [the
Statement] may be made in the future, each one reflecting the same text but
with more and more signatories."97 Adverting to criminal law by analogy, Dean
Leonen claims that "this is not an instance where it has been made to appear in
a document that a person has participated in an act when the latter did not in
fact so participate"98 for he "did not misrepresent which members of the faculty
of the UP College of Law had agreed with the Restoring Integrity Statement
proper and/or had expressed their desire to be signatories thereto."99
In this regard, Dean Leonen believes that he had not committed any violation of
Canon 10 or Rules 10.01 and 10.02 for he did not mislead nor misrepresent to
the Court the contents of the Statement or the identities of the UP Law faculty
members who agreed with, or expressed their desire to be signatories to, the
Statement. He also asserts that he did not commit any violation of Rule 10.03
as he "coursed [the Statement] through the appropriate channels by transmitting
the same to Honorable Chief Justice Corona for the latter’s information and
proper disposition with the hope that its points would be duly considered by the
Honorable Court en banc."100 Citing Rudecon Management Corporation v.
Camacho,101 Dean Leonen posits that the required quantum of proof has not
been met in this case and that no dubious character or motivation for the act
complained of existed to warrant an administrative sanction for violation of the
standard of honesty provided for by the Code of Professional Responsibility.102
Dean Leonen ends his Compliance with an enumeration of nearly identical
reliefs as the Common Compliance, including the prayers for a hearing and for
access to the records, evidence and witnesses allegedly relevant not only in this
case but also in A.M. No. 10-7-17-SC, the ethical investigation involving Justice
Del Castillo.
Manifestation of Prof. Owen Lynch (Lynch Manifestation)
For his part, Prof. Owen Lynch (Prof. Lynch) manifests to this Court that he is
not a member of the Philippine bar; but he is a member of the bar of the State
of Minnesota. He alleges that he first taught as a visiting professor at the UP
College of Law in 1981 to 1988 and returned in the same capacity in 2010. He
further alleges that "[h]e subscribes to the principle, espoused by this Court and
the Supreme Court of the United States, that ‘…[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 government and public
officials."103 In signing the Statement, he believes that "the right to speak
means the right to speak effectively."104 Citing the dissenting opinions in Manila
Public School Teachers Association v. Laguio, Jr.,105 Prof. Lynch argued that
"[f]or speech to be effective, it must be forceful enough to make the intended
recipients listen"106 and "[t]he quality of education would deteriorate in an
atmosphere of repression, when the very teachers who are supposed to provide
an example of courage and self-assertiveness to their pupils can speak only in
timorous whispers."107 Relying on the doctrine in In the Matter of Petition for
Declaratory Relief Re: Constitutionality of Republic Act 4880, Gonzales v.
Commission on Elections,108 Prof. Lynch believed that the Statement did not
pose any danger, clear or present, of any substantive evil so as to remove it
from the protective mantle of the Bill of Rights (i.e., referring to the constitutional
guarantee on free speech).109 He also stated that he "has read the Compliance
of the other respondents to the Show Cause Resolution" and that "he signed
the Restoring Integrity Statement for the same reasons they did."110
ISSUES
Based on the Show Cause Resolution and a perusal of the submissions of
respondents, the material issues to be resolved in this case are as follows:
1.) Does the Show Cause Resolution deny respondents their freedom of
expression?
2.) Does the Show Cause Resolution violate respondents’ academic freedom
as law professors?
3.) Do the submissions of respondents satisfactorily explain why they should not
be disciplined as Members of the Bar under Canons 1, 11, and 13 and Rules
1.02 and 11.05 of the Code of Professional Responsibility?
4.) Does the separate Compliance of Dean Leonen satisfactorily explain why he
should not be disciplined as a Member of the Bar under Canon 10, Rules 10.01,
10.02 and 10.03?
5.) Are respondents entitled to have the Show Cause Resolution set for hearing
and in relation to such hearing, are respondents entitled to require the
production or presentation of evidence bearing on the plagiarism and
misrepresentation issues in the Vinuya case (G.R. No. 162230) and the ethics
case against Justice Del Castillo (A.M. No. 10-7-17-SC) and to have access to
the records and transcripts of, and the witnesses and evidence presented, or
could have been presented, in the ethics case against Justice Del Castillo (A.M.
No. 10-7-17-SC)?
DISCUSSION
The Show Cause Resolution does not deny respondents their freedom of
expression.
It is respondents’ collective claim that the Court, with the issuance of the Show
Cause Resolution, has interfered with respondents’ constitutionally mandated
right to free speech and expression. It appears that the underlying assumption
behind respondents’ assertion is the misconception that this Court is denying
them the right to criticize the Court’s decisions and actions, and that this Court
seeks to "silence" respondent law professors’ dissenting view on what they
characterize as a "legitimate public issue."
This is far from the truth. A reading of the Show Cause Resolution will plainly
show that it was neither the fact that respondents had criticized a decision of the
Court nor that they had charged one of its members of plagiarism that motivated
the said Resolution. It was the manner of the criticism and the contumacious
language by which respondents, who are not parties nor counsels in the Vinuya
case, have expressed their opinion in favor of the petitioners in the said pending
case for the "proper disposition" and consideration of the Court that gave rise to
said Resolution. The Show Cause Resolution painstakingly enumerated the
statements that the Court considered excessive and uncalled for under the
circumstances surrounding the issuance, publication, and later submission to
this Court of the UP Law faculty’s Restoring Integrity Statement.
To reiterate, it was not the circumstance that respondents expressed a belief
that Justice Del Castillo was guilty of plagiarism but rather their expression of
that belief as "not only as an established fact, but a truth"111 when it was "[o]f
public knowledge [that there was] an ongoing investigation precisely to
determine the truth of such allegations."112 It was also pointed out in the Show
Cause Resolution that there was a pending motion for reconsideration of the
Vinuya decision.113 The Show Cause Resolution made no objections to the
portions of the Restoring Integrity Statement that respondents claimed to be
"constructive" but only asked respondents to explain those portions of the said
Statement that by no stretch of the imagination could be considered as fair or
constructive, to wit:
Beyond this, however, the statement bore certain remarks which raise concern
for the Court. The opening sentence alone is a grim preamble to the institutional
attack that lay ahead. It reads:
An extraordinary act of injustice has again been committed against the brave
Filipinas who had suffered abuse during a time of war.
The first paragraph concludes with a reference to the decision in Vinuya v.
Executive Secretary as a reprehensible act of dishonesty and misrepresentation
by the Highest Court of the land. x x x.
The insult to the members of the Court was aggravated by imputations of
deliberately delaying the resolution of the said case, its dismissal on the basis
of "polluted sources," the Court’s alleged indifference to the cause of petitioners
[in the Vinuya case], as well as the supposed alarming lack of concern of the
members of the Court for even the most basic values of decency and
respect.114 x x x. (Underscoring ours.)
To be sure, the Show Cause Resolution itself recognized respondents’ freedom
of expression when it stated that:
While most agree that the right to criticize the judiciary is critical to maintaining
a free and democratic society, there is also a general consensus that healthy
Page 21 of 72
criticism only goes so far. Many types of criticism leveled at the judiciary cross
the line to become harmful and irresponsible attacks. These potentially
devastating attacks and unjust criticism can threaten the independence of the
judiciary. The court must "insist on being permitted to proceed to the disposition
of its business in an orderly manner, free from outside interference obstructive
of its functions and tending to embarrass the administration of justice."
The Court could hardly perceive any reasonable purpose for the faculty’s less
than objective comments except to discredit the April 28, 2010 Decision in the
Vinuya case and undermine the Court’s honesty, integrity and competence in
addressing the motion for its reconsideration. As if the case on the comfort
women’s claims is not controversial enough, the UP Law faculty would fan the
flames and invite resentment against a resolution that would not reverse the
said decision. This runs contrary to their obligation as law professors and
officers of the Court to be the first to uphold the dignity and authority of this
Court, to which they owe fidelity according to the oath they have taken as
attorneys, and not to promote distrust in the administration of justice.115 x x x.
(Citations omitted; emphases and underscoring supplied.)
Indeed, in a long line of cases, including those cited in respondents’
submissions, this Court has held that the right to criticize the courts and judicial
officers must be balanced against the equally primordial concern that the
independence of the Judiciary be protected from due influence or interference.
In cases where the critics are not only citizens but members of the Bar,
jurisprudence has repeatedly affirmed the authority of this Court to discipline
lawyers whose statements regarding the courts and fellow lawyers, whether
judicial or extrajudicial, have exceeded the limits of fair comment and common
decency.
As early as the 1935 case of Salcedo v. Hernandez,116 the Court found Atty.
Vicente J. Francisco both guilty of contempt and liable administratively for the
following paragraph in his second motion for reconsideration:
We should like frankly and respectfully to make it of record that the resolution of
this court, denying our motion for reconsideration, is absolutely erroneous and
constitutes an outrage to the rights of the petitioner Felipe Salcedo and a
mockery of the popular will expressed at the polls in the municipality of Tiaong,
Tayabas. We wish to exhaust all the means within our power in order that this
error may be corrected by the very court which has committed it, because we
should not want that some citizen, particularly some voter of the municipality of
Tiaong, Tayabas, resort to the press publicly to denounce, as he has a right to
do, the judicial outrage of which the herein petitioner has been the victim, and
because it is our utmost desire to safeguard the prestige of this honorable court
and of each and every member thereof in the eyes of the public. But, at the
same time we wish to state sincerely that erroneous decisions like these, which
the affected party and his thousands of voters will necessarily consider unjust,
increase the proselytes of 'sakdalism' and make the public lose confidence in
the administration of justice.117 (Emphases supplied.)
The highlighted phrases were considered by the Court as neither justified nor
necessary and further held that:
[I]n order to call the attention of the court in a special way to the essential points
relied upon in his argument and to emphasize the force thereof, the many
reasons stated in his said motion were sufficient and the phrases in question
were superfluous. In order to appeal to reason and justice, it is highly improper
and amiss to make trouble and resort to threats, as Attorney Vicente J.
Francisco has done, because both means are annoying and good practice can
never sanction them by reason of their natural tendency to disturb and hinder
the free exercise of a serene and impartial judgment, particularly in judicial
matters, in the consideration of questions submitted for resolution.
There is no question that said paragraph of Attorney Vicente J. Francisco's
motion contains a more or less veiled threat to the court because it is insinuated
therein, after the author shows the course which the voters of Tiaong should
follow in case he fails in his attempt, that they will resort to the press for the
purpose of denouncing, what he claims to be a judicial outrage of which his
client has been the victim; and because he states in a threatening manner with
the intention of predisposing the mind of the reader against the court, thus
creating an atmosphere of prejudices against it in order to make it odious in the
public eye, that decisions of the nature of that referred to in his motion promote
distrust in the administration of justice and increase the proselytes of sakdalism,
a movement with seditious and revolutionary tendencies the activities of which,
as is of public knowledge, occurred in this country a few days ago. This cannot
mean otherwise than contempt of the dignity of the court and disrespect of the
authority thereof on the part of Attorney Vicente J. Francisco, because he
presumes that the court is so devoid of the sense of justice that, if he did not
resort to intimidation, it would maintain its error notwithstanding the fact that it
may be proven, with good reasons, that it has acted erroneously.118
(Emphases supplied.)
Significantly, Salcedo is the decision from which respondents culled their quote
from the minority view of Justice Malcolm. Moreover, Salcedo concerned
statements made in a pleading filed by a counsel in a case, unlike the
respondents here, who are neither parties nor counsels in the Vinuya case and
therefore, do not have any standing at all to interfere in the Vinuya case. Instead
of supporting respondents’ theory, Salcedo is authority for the following
principle:
As a member of the bar and an officer of this court, Attorney Vicente J.
Francisco, as any attorney, is in duty bound to uphold its dignity and authority
and to defend its integrity, not only because it has conferred upon him the high
privilege, not a right (Malcolm, Legal Ethics, 158 and 160), of being what he now
is: a priest of justice (In re Thatcher, 80 Ohio St. Rep., 492, 669), but also
because in so doing, he neither creates nor promotes distrust in the
administration of justice, and prevents anybody from harboring and encouraging
discontent which, in many cases, is the source of disorder, thus undermining
the foundation upon which rests that bulwark called judicial power to which
those who are aggrieved turn for protection and relief.119 (Emphases supplied.)
Thus, the lawyer in Salcedo was fined and reprimanded for his injudicious
statements in his pleading, by accusing the Court of "erroneous ruling." Here,
the respondents’ Statement goes way beyond merely ascribing error to the
Court.
Other cases cited by respondents likewise espouse rulings contrary to their
position. In re: Atty. Vicente Raul Almacen,120 cited in the Common
Compliance and the Vasquez Compliance, was an instance where the Court
indefinitely suspended a member of the Bar for filing and releasing to the press
a "Petition to Surrender Lawyer’s Certificate of Title" in protest of what he
claimed was a great injustice to his client committed by the Supreme Court. In
the decision, the petition was described, thus:
He indicts this Court, in his own phrase, as a tribunal "peopled by men who are
calloused to our pleas for justice, who ignore without reasons their own
applicable decisions and commit culpable violations of the Constitution with
impunity." His client's he continues, who was deeply aggrieved by this Court's
"unjust judgment," has become "one of the sacrificial victims before the altar of
hypocrisy." In the same breath that he alludes to the classic symbol of justice,
he ridicules the members of this Court, saying "that justice as administered by
the present members of the Supreme Court is not only blind, but also deaf and
dumb." He then vows to argue the cause of his client "in the people's forum," so
that "the people may know of the silent injustices committed by this Court," and
that "whatever mistakes, wrongs and injustices that were committed must never
be repeated." He ends his petition with a prayer that
"x x x a resolution issue ordering the Clerk of Court to receive the certificate of
the undersigned attorney and counsellor-at-law IN TRUST with reservation that
at any time in the future and in the event we regain our faith and confidence, we
may retrieve our title to assume the practice of the noblest profession."121
It is true that in Almacen the Court extensively discussed foreign jurisprudence
on the principle that a lawyer, just like any citizen, has the right to criticize and
comment upon actuations of public officers, including judicial authority.
However, the real doctrine in Almacen is that such criticism of the courts,
whether done in court or outside of it, must conform to standards of fairness and
propriety. This case engaged in an even more extensive discussion of the legal
authorities sustaining this view.1awphi1 To quote from that decision:
But it is the cardinal condition of all such criticism that it shall be bona fide, and
shall not spill over the walls of decency and propriety. A wide chasm exists
between fair criticism, on the one hand, and abuse and slander of courts and
the judges thereof, on the other. Intemperate and unfair criticism is a gross
violation of the duty of respect to courts. It is such a misconduct that subjects a
lawyer to disciplinary action.
For, membership in the Bar imposes upon a person obligations and duties which
are not mere flux and ferment. His investiture into the legal profession places
upon his shoulders no burden more basic, more exacting and more imperative
than that of respectful behavior toward the courts. He vows solemnly to conduct
himself "with all good fidelity x x x to the courts;" and the Rules of Court
constantly remind him "to observe and maintain the respect due to courts of
justice and judicial officers." The first canon of legal ethics enjoins him "to
maintain towards the courts a respectful attitude, not for the sake of the
temporary incumbent of the judicial office, but for the maintenance of its
supreme importance."
As Mr. Justice Field puts it:
"x x x the obligation which attorneys impliedly assume, if they do not by express
declaration take upon themselves, when they are admitted to the Bar, is not
merely to be obedient to the Constitution and laws, but to maintain at all times
the respect due to courts of justice and judicial officers. This obligation is not
discharged by merely observing the rules of courteous demeanor in open court,
but includes abstaining out of court from all insulting language and offensive
conduct toward judges personally for their judicial acts." (Bradley, v. Fisher, 20
Law. 4d. 647, 652)
The lawyer's duty to render respectful subordination to the courts is essential to
the orderly administration of justice. Hence, in the assertion of their clients'
rights, lawyers — even those gifted with superior intellect — are enjoined to rein
up their tempers.
"The counsel in any case may or may not be an abler or more learned lawyer
than the judge, and it may tax his patience and temper to submit to rulings which
he regards as incorrect, but discipline and self-respect are as necessary to the
orderly administration of justice as they are to the effectiveness of an army. The
decisions of the judge must be obeyed, because he is the tribunal appointed to
decide, and the bar should at all times be the foremost in rendering respectful
submission." (In Re Scouten, 40 Atl. 481)
xxxx
In his relations with the courts, a lawyer may not divide his personality so as to
be an attorney at one time and a mere citizen at another. Thus, statements
made by an attorney in private conversations or communications or in the
Page 22 of 72
course of a political campaign, if couched in insulting language as to bring into
scorn and disrepute the administration of justice, may subject the attorney to
disciplinary action.122 (Emphases and underscoring supplied.)
In a similar vein, In re: Vicente Sotto,123 cited in the Vasquez Compliance,
observed that:
[T]his Court, in In re Kelly, held the following:
The publication of a criticism of a party or of the court to a pending cause,
respecting the same, has always been considered as misbehavior, tending to
obstruct the administration of justice, and subjects such persons to contempt
proceedings. Parties have a constitutional right to have their causes tried fairly
in court, by an impartial tribunal, uninfluenced by publications or public clamor.
Every citizen has a profound personal interest in the enforcement of the
fundamental right to have justice administered by the courts, under the
protection and forms of law, free from outside coercion or interference. x x x.
Mere criticism or comment on the correctness or wrongness, soundness or
unsoundness of the decision of the court in a pending case made in good faith
may be tolerated; because if well founded it may enlighten the court and
contribute to the correction of an error if committed; but if it is not well taken and
obviously erroneous, it should, in no way, influence the court in reversing or
modifying its decision. x x x.
xxxx
To hurl the false charge that this Court has been for the last years committing
deliberately "so many blunders and injustices," that is to say, that it has been
deciding in favor of one party knowing that the law and justice is on the part of
the adverse party and not on the one in whose favor the decision was rendered,
in many cases decided during the last years, would tend necessarily to
undermine the confidence of the people in the honesty and integrity of the
members of this Court, and consequently to lower or degrade the administration
of justice by this Court. The Supreme Court of the Philippines is, under the
Constitution, the last bulwark to which the Filipino people may repair to obtain
relief for their grievances or protection of their rights when these are trampled
upon, and if the people lose their confidence in the honesty and integrity of the
members of this Court and believe that they cannot expect justice therefrom,
they might be driven to take the law into their own hands, and disorder and
perhaps chaos might be the result. As a member of the bar and an officer of the
courts Atty. Vicente Sotto, like any other, is in duty bound to uphold the dignity
and authority of this Court, to which he owes fidelity according to the oath he
has taken as such attorney, and not to promote distrust in the administration of
justice. Respect to the courts guarantees the stability of other institutions, which
without such guaranty would be resting on a very shaky foundation.124
(Emphases and underscoring supplied.)
That the doctrinal pronouncements in these early cases are still good law can
be easily gleaned even from more recent jurisprudence.
In Choa v. Chiongson,125 the Court administratively disciplined a lawyer,
through the imposition of a fine, for making malicious and unfounded criticisms
of a judge in the guise of an administrative complaint and held, thus:
As an officer of the court and its indispensable partner in the sacred task of
administering justice, graver responsibility is imposed upon a lawyer than any
other to uphold the integrity of the courts and to show respect to its officers. This
does not mean, however, that a lawyer cannot criticize a judge. As we stated in
Tiongco vs. Hon. Aguilar:
It does not, however, follow that just because a lawyer is an officer of the court,
he cannot criticize the courts. That is his right as a citizen, and it is even his duty
as an officer of the court to avail of such right. Thus, in In Re: Almacen (31 SCRA
562, 579-580 [1970]), this Court explicitly declared:
Hence, as a citizen and as officer of the court, a lawyer is expected not only to
exercise the right, but also to consider it his duty to avail of such right. No law
may abridge this right. Nor is he "professionally answerable to a scrutiny into
the official conduct of the judges, which would not expose him to legal
animadversion as a citizen." (Case of Austin, 28 Am Dec. 657, 665).
xxxx
Nevertheless, such a right is not without limit. For, as this Court warned in
Almacen:
But it is a cardinal condition of all such criticism that it shall be bona fide, and
shall not spill over the walls of decency and propriety. A wide chasm exists
between fair criticism, on the one hand, and abuse and slander of courts and
the judges thereof, on the other. Intemperate and unfair criticism is a gross
violation of the duty of respect to courts. It is such a misconduct, that subjects a
lawyer to disciplinary action.
xxxx
Elsewise stated, the right to criticize, which is guaranteed by the freedom of
speech and of expression in the Bill of Rights of the Constitution, must be
exercised responsibly, for every right carries with it a corresponding obligation.
Freedom is not freedom from responsibility, but freedom with responsibility. x x
x.
xxxx

Proscribed then are, inter alia, the use of unnecessary language which
jeopardizes high esteem in courts, creates or promotes distrust in judicial
administration (Rheem, supra), or tends necessarily to undermine the
confidence of people in the integrity of the members of this Court and to degrade
the administration of justice by this Court (In re: Sotto, 82 Phil. 595 [1949]); or
of offensive and abusive language (In re: Rafael Climaco, 55 SCRA 107 [1974]);
or abrasive and offensive language (Yangson vs. Salandanan, 68 SCRA 42
[1975]; or of disrespectful, offensive, manifestly baseless, and malicious
statements in pleadings or in a letter addressed to the judge (Baja vs.
Macandog, 158 SCRA [1988], citing the resolution of 19 January 1988 in Phil.
Public Schools Teachers Association vs. Quisumbing, G.R. No. 76180, and
Ceniza vs. Sebastian, 130 SCRA 295 [1984]); or of disparaging, intemperate,
and uncalled-for remarks (Sangalang vs. Intermediate Appellate Court, 177
SCRA 87 [1989]).
Any criticism against a judge made in the guise of an administrative complaint
which is clearly unfounded and impelled by ulterior motive will not excuse the
lawyer responsible therefor under his duty of fidelity to his client. x x x.126
(Emphases and underscoring supplied.)
In Saberon v. Larong,127 where this Court found respondent lawyer guilty of
simple misconduct for using intemperate language in his pleadings and imposed
a fine upon him, we had the occasion to state:
The Code of Professional Responsibility mandates:
CANON 8 - A lawyer shall conduct himself with courtesy, fairness and candor
toward his professional colleagues, and shall avoid harassing tactics against
opposing counsel.
Rule 8.01 - A lawyer shall not, in his professional dealings, use language which
is abusive, offensive or otherwise improper.
CANON 11 - A lawyer shall observe and maintain the respect due to the courts
and to judicial officers and should insist on similar conduct by others.
Rule 11.03 - A lawyer shall abstain from scandalous, offensive or menacing
language or behavior before the Courts.
To be sure, the adversarial nature of our legal system has tempted members of
the bar to use strong language in pursuit of their duty to advance the interests
of their clients.
However, while a lawyer is entitled to present his case with vigor and courage,
such enthusiasm does not justify the use of offensive and abusive language.
Language abounds with countless possibilities for one to be emphatic but
respectful, convincing but not derogatory, illuminating but not offensive.
On many occasions, the Court has reminded members of the Bar to abstain
from all offensive personality and to advance no fact prejudicial to the honor or
reputation of a party or witness, unless required by the justice of the cause with
which he is charged. In keeping with the dignity of the legal profession, a
lawyer’s language even in his pleadings must be dignified.128
Verily, the accusatory and vilifying nature of certain portions of the Statement
exceeded the limits of fair comment and cannot be deemed as protected free
speech. Even In the Matter of Petition for Declaratory Relief Re: Constitutionality
of Republic Act 4880, Gonzales v. Commission on Elections,129 relied upon by
respondents in the Common Compliance, held that:
From the language of the specific constitutional provision, it would appear that
the right is not susceptible of any limitation. No law may be passed abridging
the freedom of speech and of the press. The realities of life in a complex society
preclude however a literal interpretation. Freedom of expression is not an
absolute. It would be too much to insist that at all times and under all
circumstances it should remain unfettered and unrestrained. There are other
societal values that press for recognition. x x x.130 (Emphasis supplied.)
One such societal value that presses for recognition in the case at bar is the
threat to judicial independence and the orderly administration of justice that
immoderate, reckless and unfair attacks on judicial decisions and institutions
pose. This Court held as much in Zaldivar v. Sandiganbayan and Gonzales,131
where we indefinitely suspended a lawyer from the practice of law for issuing to
the media statements grossly disrespectful towards the Court in relation to a
pending case, to wit:
Respondent Gonzales is entitled to the constitutional guarantee of free speech.
No one seeks to deny him that right, least of all this Court. What respondent
seems unaware of is that freedom of speech and of expression, like all
constitutional freedoms, is not absolute and that freedom of expression needs
on occasion to be adjusted to and accommodated with the requirements of
equally important public interest. One of these fundamental public interests is
the maintenance of the integrity and orderly functioning of the administration of
justice. There is no antinomy between free expression and the integrity of the
system of administering justice. For the protection and maintenance of freedom
of expression itself can be secured only within the context of a functioning and
orderly system of dispensing justice, within the context, in other words, of viable
independent institutions for delivery of justice which are accepted by the general
community. x x x.132 (Emphases supplied.)
Page 23 of 72
For this reason, the Court cannot uphold the view of some respondents133 that
the Statement presents no grave or imminent danger to a legitimate public
interest.
The Show Cause Resolution does not interfere with respondents’ academic
freedom.
It is not contested that respondents herein are, by law and jurisprudence,
guaranteed academic freedom and undisputably, they are free to determine
what they will teach their students and how they will teach. We must point out
that there is nothing in the Show Cause Resolution that dictates upon
respondents the subject matter they can teach and the manner of their
instruction. Moreover, it is not inconsistent with the principle of academic
freedom for this Court to subject lawyers who teach law to disciplinary action for
contumacious conduct and speech, coupled with undue intervention in favor of
a party in a pending case, without observing proper procedure, even if
purportedly done in their capacity as teachers.
A novel issue involved in the present controversy, for it has not been passed
upon in any previous case before this Court, is the question of whether lawyers
who are also law professors can invoke academic freedom as a defense in an
administrative proceeding for intemperate statements tending to pressure the
Court or influence the outcome of a case or degrade the courts.
Applying by analogy the Court’s past treatment of the "free speech" defense in
other bar discipline cases, academic freedom cannot be successfully invoked
by respondents in this case. The implicit ruling in the jurisprudence discussed
above is that the constitutional right to freedom of expression of members of the
Bar may be circumscribed by their ethical duties as lawyers to give due respect
to the courts and to uphold the public’s faith in the legal profession and the
justice system. To our mind, the reason that freedom of expression may be so
delimited in the case of lawyers applies with greater force to the academic
freedom of law professors.
It would do well for the Court to remind respondents that, in view of the broad
definition in Cayetano v. Monsod,134 lawyers when they teach law are
considered engaged in the practice of law. Unlike professors in other disciplines
and more than lawyers who do not teach law, respondents are bound by their
oath to uphold the ethical standards of the legal profession. Thus, their actions
as law professors must be measured against the same canons of professional
responsibility applicable to acts of members of the Bar as the fact of their being
law professors is inextricably entwined with the fact that they are lawyers.
Even if the Court was willing to accept respondents’ proposition in the Common
Compliance that their issuance of the Statement was in keeping with their duty
to "participate in the development of the legal system by initiating or supporting
efforts in law reform and in the improvement of the administration of justice"
under Canon 4 of the Code of Professional Responsibility, we cannot agree that
they have fulfilled that same duty in keeping with the demands of Canons 1, 11
and 13 to give due respect to legal processes and the courts, and to avoid
conduct that tends to influence the courts. Members of the Bar cannot be
selective regarding which canons to abide by given particular situations. With
more reason that law professors are not allowed this indulgence, since they are
expected to provide their students exemplars of the Code of Professional
Responsibility as a whole and not just their preferred portions thereof.
The Court’s rulings on the submissions regarding the charge of violation of
Canons 1, 11 and 13.
Having disposed of respondents’ main arguments of freedom of expression and
academic freedom, the Court considers here the other averments in their
submissions.
With respect to good faith, respondents’ allegations presented two main ideas:
(a) the validity of their position regarding the plagiarism charge against Justice
Del Castillo, and (b) their pure motive to spur this Court to take the correct action
on said issue.
The Court has already clarified that it is not the expression of respondents’
staunch belief that Justice Del Castillo has committed a misconduct that the
majority of this Court has found so unbecoming in the Show Cause Resolution.
No matter how firm a lawyer’s conviction in the righteousness of his cause there
is simply no excuse for denigrating the courts and engaging in public behavior
that tends to put the courts and the legal profession into disrepute. This doctrine,
which we have repeatedly upheld in such cases as Salcedo, In re Almacen and
Saberong, should be applied in this case with more reason, as the respondents,
not parties to the Vinuya case, denounced the Court and urged it to change its
decision therein, in a public statement using contumacious language, which with
temerity they subsequently submitted to the Court for "proper disposition."
That humiliating the Court into reconsidering the Vinuya Decision in favor of the
Malaya Lolas was one of the objectives of the Statement could be seen in the
following paragraphs from the same:
And in light of the significance of this decision to the quest for justice not only of
Filipino women, but of women elsewhere in the world who have suffered the
horrors of sexual abuse and exploitation in times of war, the Court cannot coldly
deny relief and justice to the petitioners on the basis of pilfered and
misinterpreted texts.
xxxx
(3) The same breach and consequent disposition of the Vinuya case does
violence to the primordial function of the Supreme Court as the ultimate
dispenser of justice to all those who have been left without legal or equitable
recourse, such as the petitioners therein.135 (Emphases and underscoring
supplied.)
Whether or not respondents’ views regarding the plagiarism issue in the Vinuya
case had valid basis was wholly immaterial to their liability for contumacious
speech and conduct. These are two separate matters to be properly threshed
out in separate proceedings. The Court considers it highly inappropriate, if not
tantamount to dissembling, the discussion devoted in one of the compliances
arguing the guilt of Justice Del Castillo. In the Common Compliance,
respondents even go so far as to attach documentary evidence to support the
plagiarism charges against Justice Del Castillo in the present controversy. The
ethics case of Justice Del Castillo (A.M. No. 10-7-17-SC), with the filing of a
motion for reconsideration, was still pending at the time of the filing of
respondents’ submissions in this administrative case. As respondents
themselves admit, they are neither parties nor counsels in the ethics case
against Justice Del Castillo. Notwithstanding their professed overriding interest
in said ethics case, it is not proper procedure for respondents to bring up their
plagiarism arguments here especially when it has no bearing on their own
administrative case.
Still on motive, it is also proposed that the choice of language in the Statement
was intended for effective speech; that speech must be "forceful enough to
make the intended recipients listen."136 One wonders what sort of effect
respondents were hoping for in branding this Court as, among others, callous,
dishonest and lacking in concern for the basic values of decency and respect.
The Court fails to see how it can ennoble the profession if we allow respondents
to send a signal to their students that the only way to effectively plead their cases
and persuade others to their point of view is to be offensive.
This brings to our mind the letters of Dr. Ellis and Prof. Tams which were
deliberately quoted in full in the narration of background facts to illustrate the
sharp contrast between the civil tenor of these letters and the antagonistic
irreverence of the Statement. In truth, these foreign authors are the ones who
would expectedly be affected by any perception of misuse of their works.
Notwithstanding that they are beyond the disciplinary reach of this Court, they
still obviously took pains to convey their objections in a deferential and scholarly
manner. It is unfathomable to the Court why respondents could not do the same.
These foreign authors’ letters underscore the universality of the tenet that legal
professionals must deal with each other in good faith and due respect. The mark
of the true intellectual is one who can express his opinions logically and soberly
without resort to exaggerated rhetoric and unproductive recriminations.
As for the claim that the respondents’ noble intention is to spur the Court to take
"constructive action" on the plagiarism issue, the Court has some doubts as to
its veracity. For if the Statement was primarily meant for this Court’s
consideration, why was the same published and reported in the media first
before it was submitted to this Court? It is more plausible that the Statement
was prepared for consumption by the general public and designed to capture
media attention as part of the effort to generate interest in the most controversial
ground in the Supplemental Motion for Reconsideration filed in the Vinuya case
by Atty. Roque, who is respondents’ colleague on the UP Law faculty.
In this regard, the Court finds that there was indeed a lack of observance of
fidelity and due respect to the Court, particularly when respondents knew fully
well that the matter of plagiarism in the Vinuya decision and the merits of the
Vinuya decision itself, at the time of the Statement’s issuance, were still both
sub judice or pending final disposition of the Court. These facts have been
widely publicized. On this point, respondents allege that at the time the
Statement was first drafted on July 27, 2010, they did not know of the
constitution of the Ethics Committee and they had issued the Statement under
the belief that this Court intended to take no action on the ethics charge against
Justice Del Castillo. Still, there was a significant lapse of time from the drafting
and printing of the Statement on July 27, 2010 and its publication and
submission to this Court in early August when the Ethics Committee had already
been convened. If it is true that the respondents’ outrage was fueled by their
perception of indifference on the part of the Court then, when it became known
that the Court did intend to take action, there was nothing to prevent
respondents from recalibrating the Statement to take this supervening event into
account in the interest of fairness.
Speaking of the publicity this case has generated, we likewise find no merit in
the respondents’ reliance on various news reports and commentaries in the print
media and the internet as proof that they are being unfairly "singled out." On the
contrary, these same annexes to the Common Compliance show that it is not
enough for one to criticize the Court to warrant the institution of disciplinary137
or contempt138 action. This Court takes into account the nature of the criticism
and weighs the possible repercussions of the same on the Judiciary. When the
criticism comes from persons outside the profession who may not have a full
grasp of legal issues or from individuals whose personal or other interests in
making the criticism are obvious, the Court may perhaps tolerate or ignore them.
However, when law professors are the ones who appear to have lost sight of
the boundaries of fair commentary and worse, would justify the same as an
exercise of civil liberties, this Court cannot remain silent for such silence would
have a grave implication on legal education in our country.
With respect to the 35 respondents named in the Common Compliance,
considering that this appears to be the first time these respondents have been
involved in disciplinary proceedings of this sort, the Court is willing to give them
the benefit of the doubt that they were for the most part well-intentioned in the
issuance of the Statement. However, it is established in jurisprudence that
Page 24 of 72
where the excessive and contumacious language used is plain and undeniable,
then good intent can only be mitigating. As this Court expounded in Salcedo:
In his defense, Attorney Vicente J. Francisco states that it was not his intention
to offend the court or to be recreant to the respect thereto but, unfortunately,
there are his phrases which need no further comment. Furthermore, it is a well
settled rule in all places where the same conditions and practice as those in this
jurisdiction obtain, that want of intention is no excuse from liability (13 C. J., 45).
Neither is the fact that the phrases employed are justified by the facts a valid
defense:
"Where the matter is abusive or insulting, evidence that the language used was
justified by the facts is not admissible as a defense. Respect for the judicial
office should always be observed and enforced." (In re Stewart, 118 La., 827;
43 S., 455.) Said lack or want of intention constitutes at most an extenuation of
liability in this case, taking into consideration Attorney Vicente J. Francisco's
state of mind, according to him when he prepared said motion. This court is
disposed to make such concession. However, in order to avoid a recurrence
thereof and to prevent others, by following the bad example, from taking the
same course, this court considers it imperative to treat the case of said attorney
with the justice it deserves.139 (Emphases supplied.)
Thus, the 35 respondents named in the Common Compliance should,
notwithstanding their claim of good faith, be reminded of their lawyerly duty,
under Canons 1, 11 and 13, to give due respect to the courts and to refrain from
intemperate and offensive language tending to influence the Court on pending
matters or to denigrate the courts and the administration of justice.
With respect to Prof. Vasquez, the Court favorably notes the differences in his
Compliance compared to his colleagues. In our view, he was the only one
among the respondents who showed true candor and sincere deference to the
Court. He was able to give a straightforward account of how he came to sign
the Statement. He was candid enough to state that his agreement to the
Statement was in principle and that the reason plagiarism was a "fair topic of
discussion" among the UP Law faculty prior to the promulgation of the October
12, 2010 Decision in A.M. No. 10-7-17-SC was the uncertainty brought about
by a division of opinion on whether or not willful or deliberate intent was an
element of plagiarism. He was likewise willing to acknowledge that he may have
been remiss in failing to assess the effect of the language of the Statement and
could have used more care. He did all this without having to retract his position
on the plagiarism issue, without demands for undeserved reliefs (as will be
discussed below) and without baseless insinuations of deprivation of due
process or of prejudgment. This is all that this Court expected from respondents,
not for them to sacrifice their principles but only that they recognize that they
themselves may have committed some ethical lapse in this affair. We commend
Prof. Vaquez for showing that at least one of the respondents can grasp the true
import of the Show Cause Resolution involving them. For these reasons, the
Court finds Prof. Vasquez’s Compliance satisfactory.
As for Prof. Lynch, in view of his Manifestation that he is a member of the Bar
of the State of Minnesota and, therefore, not under the disciplinary authority of
this Court, he should be excused from these proceedings. However, he should
be reminded that while he is engaged as a professor in a Philippine law school
he should strive to be a model of responsible and professional conduct to his
students even without the threat of sanction from this Court. For even if one is
not bound by the Code of Professional Responsibility for members of the
Philippine Bar, civility and respect among legal professionals of any nationality
should be aspired for under universal standards of decency and fairness.
The Court’s ruling on Dean Leonen’s Compliance regarding the charge of
violation of Canon 10.
To recall, the Show Cause Resolution directed Dean Leonen to show cause
why he should not be disciplinary dealt with for violation of Canon 10, Rules
10.01, 10.02 and 10.03 and for submitting a "dummy" that was not a true and
faithful reproduction of the signed Statement.
In his Compliance, Dean Leonen essentially denies that Restoring Integrity II
was not a true and faithful reproduction of the actual signed copy, Restoring
Integrity I, because looking at the text or the body, there were no differences
between the two. He attempts to downplay the discrepancies in the signature
pages of the two versions of the Statement (i.e., Restoring Integrity I and
Restoring Integrity II) by claiming that it is but expected in "live" public
manifestos with dynamic and evolving pages as more and more signatories add
their imprimatur thereto. He likewise stresses that he is not administratively
liable because he did not misrepresent the members of the UP Law faculty who
"had agreed with the Restoring Integrity Statement proper and/or who had
expressed their desire to be signatories thereto."140
To begin with, the Court cannot subscribe to Dean Leonen’s implied view that
the signatures in the Statement are not as significant as its contents. Live public
manifesto or not, the Statement was formally submitted to this Court at a specific
point in time and it should reflect accurately its signatories at that point. The
value of the Statement as a UP Law Faculty Statement lies precisely in the
identities of the persons who have signed it, since the Statement’s persuasive
authority mainly depends on the reputation and stature of the persons who have
endorsed the same. Indeed, it is apparent from respondents’ explanations that
their own belief in the "importance" of their positions as UP law professors
prompted them to publicly speak out on the matter of the plagiarism issue in the
Vinuya case.
Further, in our assessment, the true cause of Dean Leonen’s predicament is the
fact that he did not from the beginning submit the signed copy, Restoring
Integrity I, to this Court on August 11, 2010 and, instead, submitted Restoring
Integrity II with its retyped or "reformatted" signature pages. It would turn out,
according to Dean Leonen’s account, that there were errors in the retyping of
the signature pages due to lapses of his unnamed staff. First, an unnamed
administrative officer in the dean’s office gave the dean inaccurate information
that led him to allow the inclusion of Justice Mendoza as among the signatories
of Restoring Integrity II. Second, an unnamed staff also failed to type the name
of Atty. Armovit when encoding the signature pages of Restoring Integrity II
when in fact he had signed Restoring Integrity I.
The Court can understand why for purposes of posting on a bulletin board or a
website a signed document may have to be reformatted and signatures may be
indicated by the notation (SGD). This is not unusual. We are willing to accept
that the reformatting of documents meant for posting to eliminate blanks is
necessitated by vandalism concerns.
However, what is unusual is the submission to a court, especially this Court, of
a signed document for the Court’s consideration that did not contain the actual
signatures of its authors. In most cases, it is the original signed document that
is transmitted to the Court or at the very least a photocopy of the actual signed
document. Dean Leonen has not offered any explanation why he deviated from
this practice with his submission to the Court of Restoring Integrity II on August
11, 2010. There was nothing to prevent the dean from submitting Restoring
Integrity I to this Court even with its blanks and unsigned portions. Dean Leonen
cannot claim fears of vandalism with respect to court submissions for court
employees are accountable for the care of documents and records that may
come into their custody. Yet, Dean Leonen deliberately chose to submit to this
Court the facsimile that did not contain the actual signatures and his silence on
the reason therefor is in itself a display of lack of candor.
Still, a careful reading of Dean Leonen’s explanations yield the answer. In the
course of his explanation of his willingness to accept his administrative officer’s
claim that Justice Mendoza agreed to be indicated as a signatory, Dean Leonen
admits in a footnote that other professors had likewise only authorized him to
indicate them as signatories and had not in fact signed the Statement. Thus, at
around the time Restoring Integrity II was printed, posted and submitted to this
Court, at least one purported signatory thereto had not actually signed the same.
Contrary to Dean Leonen’s proposition, that is precisely tantamount to making
it appear to this Court that a person or persons participated in an act when such
person or persons did not.
We are surprised that someone like Dean Leonen, with his reputation for
perfection and stringent standards of intellectual honesty, could proffer the
explanation that there was no misrepresentation when he allowed at least one
person to be indicated as having actually signed the Statement when all he had
was a verbal communication of an intent to sign. In the case of Justice Mendoza,
what he had was only hearsay information that the former intended to sign the
Statement. If Dean Leonen was truly determined to observe candor and
truthfulness in his dealings with the Court, we see no reason why he could not
have waited until all the professors who indicated their desire to sign the
Statement had in fact signed before transmitting the Statement to the Court as
a duly signed document. If it was truly impossible to secure some signatures,
such as that of Justice Mendoza who had to leave for abroad, then Dean Leonen
should have just resigned himself to the signatures that he was able to secure.
We cannot imagine what urgent concern there was that he could not wait for
actual signatures before submission of the Statement to this Court. As
respondents all asserted, they were neither parties to nor counsels in the Vinuya
case and the ethics case against Justice Del Castillo. The Statement was
neither a pleading with a deadline nor a required submission to the Court; rather,
it was a voluntary submission that Dean Leonen could do at any time.
In sum, the Court likewise finds Dean Leonen’s Compliance unsatisfactory.
However, the Court is willing to ascribe these isolated lapses in judgment of
Dean Leonen to his misplaced zeal in pursuit of his objectives. In due
consideration of Dean Leonen’s professed good intentions, the Court deems it
sufficient to admonish Dean Leonen for failing to observe full candor and
honesty in his dealings with the Court as required under Canon 10.
Respondents’ requests for a hearing, for production/presentation of evidence
bearing on the plagiarism and misrepresentation issues in G.R. No. 162230 and
A.M. No. 10-7-17-SC, and for access to the records of A.M. No. 10-7-17-SC are
unmeritorious.
In the Common Compliance, respondents named therein asked for alternative
reliefs should the Court find their Compliance unsatisfactory, that is, that the
Show Cause Resolution be set for hearing and for that purpose, they be allowed
to require the production or presentation of witnesses and evidence bearing on
the plagiarism and misrepresentation issues in the Vinuya case (G.R. No.
162230) and the plagiarism case against Justice Del Castillo (A.M. No. 10-7-17-
SC) and to have access to the records of, and evidence that were presented or
may be presented in the ethics case against Justice Del Castillo. The prayer for
a hearing and for access to the records of A.M. No. 10-7-17-SC was
substantially echoed in Dean Leonen’s separate Compliance. In Prof. Juan-
Bautista’s Compliance, she similarly expressed the sentiment that "[i]f the
Restoring Integrity Statement can be considered indirect contempt, under
Section 3 of Rule 71 of the Rules of Court, such may be punished only after
charge and hearing."141 It is this group of respondents’ premise that these
reliefs are necessary for them to be accorded full due process.
The Court finds this contention unmeritorious.
Page 25 of 72
Firstly, it would appear that the confusion as to the necessity of a hearing in this
case springs largely from its characterization as a special civil action for indirect
contempt in the Dissenting Opinion of Justice Sereno (to the October 19, 2010
Show Cause Resolution) and her reliance therein on the majority’s purported
failure to follow the procedure in Rule 71 of the Rules of Court as her main
ground for opposition to the Show Cause Resolution.
However, once and for all, it should be clarified that this is not an indirect
contempt proceeding and Rule 71 (which requires a hearing) has no application
to this case. As explicitly ordered in the Show Cause Resolution this case was
docketed as an administrative matter.
The rule that is relevant to this controversy is Rule 139-B, Section 13, on
disciplinary proceedings initiated motu proprio by the Supreme Court, to wit:
SEC. 13. Supreme Court Investigators.—In proceedings initiated motu proprio
by the Supreme Court or in other proceedings when the interest of justice so
requires, the Supreme Court may refer the case for investigation to the Solicitor
General or to any officer of the Supreme Court or judge of a lower court, in which
case the investigation shall proceed in the same manner provided in sections 6
to 11 hereof, save that the review of the report of investigation shall be
conducted directly by the Supreme Court. (Emphasis supplied.)
From the foregoing provision, it cannot be denied that a formal investigation,
through a referral to the specified officers, is merely discretionary, not
mandatory on the Court. Furthermore, it is only if the Court deems such an
investigation necessary that the procedure in Sections 6 to 11 of Rule 139-A will
be followed.
As respondents are fully aware, in general, administrative proceedings do not
require a trial type hearing. We have held that:
The essence of due process is simply an opportunity to be heard or, as applied
to administrative proceedings, an opportunity to explain one's side or an
opportunity to seek a reconsideration of the action or ruling complained of. What
the law prohibits is absolute absence of the opportunity to be heard, hence, a
party cannot feign denial of due process where he had been afforded the
opportunity to present his side. A formal or trial type hearing is not at all times
and in all instances essential to due process, the requirements of which are
satisfied where the parties are afforded fair and reasonable opportunity to
explain their side of the controversy.142 (Emphases supplied.)
In relation to bar discipline cases, we have had the occasion to rule in Pena v.
Aparicio143 that:
Disciplinary proceedings against lawyers are sui generis. Neither purely civil nor
purely criminal, they do not involve a trial of an action or a suit, but is rather an
investigation by the Court into the conduct of one of its officers. Not being
intended to inflict punishment, it is in no sense a criminal prosecution.
Accordingly, there is neither a plaintiff nor a prosecutor therein. It may be
initiated by the Court motu proprio. Public interest is its primary objective, and
the real question for determination is whether or not the attorney is still a fit
person to be allowed the privileges as such. Hence, in the exercise of its
disciplinary powers, the Court merely calls upon a member of the Bar to account
for his actuations as an officer of the Court with the end in view of preserving
the purity of the legal profession and the proper and honest administration of
justice by purging the profession of members who by their misconduct have
proved themselves no longer worthy to be entrusted with the duties and
responsibilities pertaining to the office of an attorney. In such posture, there can
thus be no occasion to speak of a complainant or a prosecutor.144 (Emphases
supplied.)
In Query of Atty. Karen M. Silverio-Buffe, Former Clerk of Court – Br. 81,
Romblon – On the Prohibition from Engaging in the Private Practice of Law,145
we further observed that:
[I]n several cases, the Court has disciplined lawyers without further inquiry or
resort to any formal investigation where the facts on record sufficiently provided
the basis for the determination of their administrative liability.
In Prudential Bank v. Castro, the Court disbarred a lawyer without need of any
further investigation after considering his actions based on records showing his
unethical misconduct; the misconduct not only cast dishonor on the image of
both the Bench and the Bar, but was also inimical to public interest and welfare.
In this regard, the Court took judicial notice of several cases handled by the
errant lawyer and his cohorts that revealed their modus operandi in
circumventing the payment of the proper judicial fees for the astronomical sums
they claimed in their cases. The Court held that those cases sufficiently provided
the basis for the determination of respondents' administrative liability, without
need for further inquiry into the matter under the principle of res ipsa loquitur.
Also on the basis of this principle, we ruled in Richards v. Asoy, that no
evidentiary hearing is required before the respondent may be disciplined for
professional misconduct already established by the facts on record.
xxxx
These cases clearly show that the absence of any formal charge against and/or
formal investigation of an errant lawyer do not preclude the Court from
immediately exercising its disciplining authority, as long as the errant lawyer or
judge has been given the opportunity to be heard. As we stated earlier, Atty.
Buffe has been afforded the opportunity to be heard on the present matter
through her letter-query and Manifestation filed before this Court.146
(Emphases supplied.)
Under the rules and jurisprudence, respondents clearly had no right to a hearing
and their reservation of a right they do not have has no effect on these
proceedings. Neither have they shown in their pleadings any justification for this
Court to call for a hearing in this instance. They have not specifically stated what
relevant evidence, documentary or testimonial, they intend to present in their
defense that will necessitate a formal hearing.
Instead, it would appear that they intend to present records, evidence, and
witnesses bearing on the plagiarism and misrepresentation issues in the Vinuya
case and in A.M. No. 10-7-17-SC on the assumption that the findings of this
Court which were the bases of the Show Cause Resolution were made in A.M.
No. 10-7-17-SC, or were related to the conclusions of the Court in the Decision
in that case. This is the primary reason for their request for access to the records
and evidence presented in A.M. No. 10-7-17-SC.
This assumption on the part of respondents is erroneous. To illustrate, the only
incident in A.M. No. 10-7-17-SC that is relevant to the case at bar is the fact that
the submission of the actual signed copy of the Statement (or Restoring Integrity
I, as Dean Leonen referred to it) happened there. Apart from that fact, it bears
repeating that the proceedings in A.M. No. 10-7-17-SC, the ethics case against
Justice Del Castillo, is a separate and independent matter from this case.
To find the bases of the statements of the Court in the Show Cause Resolution
that the respondents issued a Statement with language that the Court deems
objectionable during the pendency of the Vinuya case and the ethics case
against Justice Del Castillo, respondents need to go no further than the four
corners of the Statement itself, its various versions, news reports/columns
(many of which respondents themselves supplied to this Court in their Common
Compliance) and internet sources that are already of public knowledge.
Considering that what respondents are chiefly required to explain are the
language of the Statement and the circumstances surrounding the drafting,
printing, signing, dissemination, etc., of its various versions, the Court does not
see how any witness or evidence in the ethics case of Justice Del Castillo could
possibly shed light on these facts. To be sure, these facts are within the
knowledge of respondents and if there is any evidence on these matters the
same would be in their possession.
We find it significant that in Dean Leonen’s Compliance he narrated how as
early as September 2010, i.e., before the Decision of this Court in the ethics
case of Justice Del Castillo on October 12, 2010 and before the October 19,
2010 Show Cause Resolution, retired Supreme Court Justice Vicente V.
Mendoza, after being shown a copy of the Statement upon his return from
abroad, predicted that the Court would take some form of action on the
Statement. By simply reading a hard copy of the Statement, a reasonable
person, even one who "fundamentally agreed" with the Statement’s principles,
could foresee the possibility of court action on the same on an implicit
recognition that the Statement, as worded, is not a matter this Court should
simply let pass. This belies respondents’ claim that it is necessary for them to
refer to any record or evidence in A.M. No. 10-7-17-SC in order to divine the
bases for the Show Cause Resolution.
If respondents have chosen not to include certain pieces of evidence in their
respective compliances or chosen not to make a full defense at this time,
because they were counting on being granted a hearing, that is respondents’
own look-out. Indeed, law professors of their stature are supposed to be aware
of the above jurisprudential doctrines regarding the non-necessity of a hearing
in disciplinary cases. They should bear the consequence of the risk they have
taken.
Thus, respondents’ requests for a hearing and for access to the records of, and
evidence presented in, A.M. No. 10-7-17-SC should be denied for lack of merit.
A final word
In a democracy, members of the legal community are hardly expected to have
monolithic views on any subject, be it a legal, political or social issue. Even as
lawyers passionately and vigorously propound their points of view they are
bound by certain rules of conduct for the legal profession. This Court is certainly
not claiming that it should be shielded from criticism. All the Court demands is
the same respect and courtesy that one lawyer owes to another under
established ethical standards. All lawyers, whether they are judges, court
employees, professors or private practitioners, are officers of the Court and
have voluntarily taken an oath, as an indispensable qualification for admission
to the Bar, to conduct themselves with good fidelity towards the courts. There is
no exemption from this sworn duty for law professors, regardless of their status
in the academic community or the law school to which they belong.
WHEREFORE, this administrative matter is decided as follows:
(1) With respect to Prof. Vasquez, after favorably noting his submission, the
Court finds his Compliance to be satisfactory.
(2) The Common Compliance of 35 respondents, namely, Attys. Marvic M.V.F.
Leonen, Froilan M. Bacungan, Pacifico A. Agabin, Merlin M. Magallona,
Salvador T. Carlota, Carmelo V. Sison, Patricia R.P. Salvador Daway, Dante B.
Gatmaytan, Theodore O. Te, Florin T. Hilbay, Jay L. Batongbacal, Evelyn (Leo)
D. Battad, Gwen G. De Vera, Solomon F. Lumba, Rommel J. Casis, Jose
Gerardo A. Alampay, Miguel R. Armovit, Arthur P. Autea, Rosa Maria J.
Bautista, Mark R. Bocobo, Dan P. Calica, Tristan A. Catindig, Sandra Marie O.
Page 26 of 72
Coronel, Rosario O. Gallo, Concepcion L. Jardeleza, Antonio G.M. La Viña,
Carina C. Laforteza, Jose C. Laureta, Rodolfo Noel S. Quimbo, Antonio M.
Santos, Gmeleen Faye B. Tomboc, Nicholas Felix L. Ty, Evalyn G. Ursua,
Susan D. Villanueva and Dina D. Lucenario, is found UNSATISFACTORY.
These 35 respondent law professors are reminded of their lawyerly duty, under
Canons 1, 11 and 13 of the Code of Professional Responsibility, to give due
respect to the Court and to refrain from intemperate and offensive language
tending to influence the Court on pending matters or to denigrate the Court and
the administration of justice and warned that the same or similar act in the future
shall be dealt with more severely.
(3) The separate Compliance of Dean Marvic M.V.F. Leonen regarding the
charge of violation of Canon 10 is found UNSATISFACTORY. He is further
ADMONISHED to be more mindful of his duty, as a member of the Bar, an officer
of the Court, and a Dean and professor of law, to observe full candor and
honesty in his dealings with the Court and warned that the same or similar act
in the future shall be dealt with more severely.
(4) Prof. Lynch, who is not a member of the Philippine bar, is excused from these
proceedings. However, he is reminded that while he is engaged as a professor
in a Philippine law school he should strive to be a model of responsible and
professional conduct to his students even without the threat of sanction from
this Court.
(5) Finally, respondents’ requests for a hearing and for access to the records of
A.M. No. 10-7-17-SC are denied for lack of merit.
SO ORDERED.
TERESITA J. LEONARDO-DE CASTRO
Associate Justice
Republic of the Philippines
SUPREME COURT
Manila
EN BANC
A.M. No. 10-10-4-SC June 7, 2011
Re: Letter of the UP Law Faculty entitled Restoring Integrity: A Statement
by the Faculty of the University of the Philippines College of Law on the
Allegations of Plagiarism and Misrepresentation in the Supreme Court
RESOLUTION
LEONARDO-DE CASTRO, J.:
For disposition of the Court are the following:
(a) the Motion for Reconsideration1 dated April 1, 2011 filed by respondent
University of the Philippines (UP) law professors Tristan A. Catindig and Carina
C. Laforteza; and
(b) the Manifestation2 dated April 1, 2011 filed by respondents Dean Marvic
M.V.F. Leonen and Prof. Theodore O. Te.
In support of their Motion for Reconsideration, Professors Catindig and
Laforteza relied on the following grounds:
GROUNDS
A. THIS PROCEEDING, WHILE OSTENSIBLY DOCKETED AS AN
ADMINISTRATIVE MATTER, IS PREMISED ON A FINDING OF INDIRECT
CONTEMPT. ACCORDINGLY, WITH ALL DUE RESPECT, THE HONORABLE
COURT ERRED IN FINDING THAT THE RESPONDENTS BREACHED THEIR
ETHICAL OBLIGATIONS WITHOUT OBSERVANCE OF THE DUE PROCESS
SAFEGUARDS GUARANTEED IN AN INDIRECT CONTEMPT PROCEEDING.
B. WITH DUE RESPECT, THE HONORABLE COURT ERRED IN RULING
THAT (1) THE PLAGIARISM AND MISREPRESENTATION ISSUES IN THE
VINUYA CASE AND IN A.M. NO. 10-7-17-SC HAVE NO RELATION TO THE
RESTORING INTEGRITY STATEMENT AND THE SHOW CAUSE
RESOLUTION, AND THEREFORE (2) THE RESPONDENTS ARE NOT
ENTITLED TO ACCESS AND ADDRESS THE EVIDENCE PRESENTED IN
A.M. NO. 10-7-17-SC, TO PRESENT THEIR OWN EVIDENCE IN RESPECT
OF THE PLAGIARISM AND MISREPRESENTATION ISSUES, AND TO
SUPPORT THEIR RESPONSE TO THE SHOW CAUSE RESOLUTION WITH
SUCH EVIDENCE.
C. WITH DUE RESPECT, THE HONORABLE COURT ERRED IN FINDING
THAT THE RESPONDENTS ARE IN BREACH OF THEIR ETHICAL
OBLIGATIONS FOR HAVING ISSUED THE RESTORING INTEGRITY
STATEMENT.3
In their Motion for Reconsideration, respondents pray that (a) the Court’s
Decision dated March 8, 2011 be reconsidered and set aside and the
respondents’ Compliance dated November 18, 2010 be deemed satisfactory,
and (b) the Court expunge the reference in A.M. No. 10-7-17-SC to the
respondents (i.e., "joined by some faculty members of the University of the
Philippines school of law") effectively finding them guilty of making false charges
against Associate Justice Mariano C. del Castillo (Justice Del Castillo). In the
alternative, they pray that they be afforded their full rights to due process and
provided the full opportunity to present evidence on the matters subject of the
Show Cause Resolution dated October 19, 2010.4
Anent the first ground, Professors Catindig and Laforteza insist that,
notwithstanding the docketing of this matter as an administrative case, there
was purportedly a finding that respondents were guilty of indirect contempt in
view of (1) the mention made in the Show Cause Resolution dated October 19,
2010 of In re Kelly,5 a case involving a contempt charge; and (2) the references
to respondents’ "contumacious language" or "contumacious speech and
conduct" and to several authorities which dealt with contempt proceedings in
the Decision dated March 8, 2011.
The shallowness of such argument is all too easily revealed. It is true that
contumacious speech and conduct directed against the courts done by any
person, whether or not a member of the Bar, may be considered as indirect
contempt under Rule 71, Section 3 of the Rules of Court, to wit:
Sec. 3. Indirect contempt to be punished after charge and hearing. – After a
charge in writing has been filed, and an opportunity given to the respondent to
comment thereon within such period as may be fixed by the court and to be
heard by himself or counsel, a person guilty of any of the following acts may be
punished for indirect contempt:
xxxx
(d) Any improper conduct tending, directly or indirectly, to impede, obstruct, or
degrade the administration of justice.
A charge of indirect contempt, if proven in due proceedings, carry with it penal
sanctions such as imprisonment or a fine or both.6
The very same contumacious speech or conduct directed against a court or
judicial officer, if committed by a member of the Bar, may likewise subject the
offender to disciplinary proceedings under the Code of Professional
Responsibility, which prescribes that lawyers observe and promote due respect
for the courts.7 In such disciplinary cases, the sanctions are not penal but
administrative such as, disbarment, suspension, reprimand or admonition.
Contrary to Professors Catindig and Laforteza’s theory, what established
jurisprudence tells us is that the same incident of contumacious speech and/or
behavior directed against the Court on the part of a lawyer may be punishable
either as contempt or an ethical violation, or both in the discretion of the Court.
In Salcedo v. Hernandez,8 for the same act of filing in court a pleading with
intemperate and offensive statements, the concerned lawyer was found guilty
of contempt and liable administratively. For this reason, two separate penalties
were imposed upon him, a fine (for the contempt charge) and reprimand (for his
failure to observe his lawyerly duty to give due respect to the Court).
The full case title9 of In re: Atty. Vicente Raul Almacen10 and the sanction
imposed indubitably show that the proceeding involved therein was disciplinary.
Notwithstanding the fact that the Court in Almacen adverted to a few principles
and authorities involving contempt proceedings aside from jurisprudence on
ethical responsibilities of lawyers, Atty. Almacen was only meted out an
administrative sanction (indefinite suspension from the practice of law) and no
penal sanction was imposed upon him. Indeed, in Almacen, the Court explicitly
stated that whether or not respondent lawyer could be held liable for contempt
for his utterances and actuations was immaterial as the sole issue in his
disciplinary case concerns his professional identity, his sworn duty as a lawyer
and his fitness as an officer of the Court.11
Conversely, In re Vicente Sotto12 was purely a contempt proceeding.
Nonetheless, the Court in that case saw fit to remind Atty. Sotto that:
As a member of the bar and an officer of the courts Atty. Vicente Sotto, like any
other, is in duty bound to uphold the dignity and authority of this Court, to which
he owes fidelity according to the oath he has taken as such attorney, and not to
promote distrust in the administration of justice. Respect to the courts
guarantees the stability of other institutions, which without such guaranty would
be resting on a very shaky foundation.13
Atty. Sotto was expressly found liable only for contempt and accordingly fined
the amount of ₱1,000.00 payable within 15 days from promulgation of judgment.
The unmistakable reference to Atty. Sotto’s failure to observe his ethical duties
as a lawyer did not convert the action against him into a disciplinary proceeding.
In fact, part of the disposition of the case was to require Atty. Sotto to show
cause, within the same period given for the payment of the fine, why he should
not be disbarred for his contemptuous statements against the Court published
in a newspaper.
Similar to Salcedo, Zaldivar v. Sandiganbayan14 involved both contempt and
disciplinary proceedings for the lawyer’s act of making public statements to the
media that were offensive and disrespectful of the Court and its members
relating to matters that were sub judice. This was evident in the May 2, 1988
Resolution of the Court which required respondent lawyer to "explain in writing
within ten (10) days from notice hereof, why he should not be punished for
contempt of court and/or subjected to administrative sanctions."15 In Zaldivar,
however, although the Court found that respondent’s act constituted both
contempt and gross misconduct as a member of the Bar, he was only
administratively sanctioned with an indefinite suspension from the practice of
law.
Page 27 of 72
The lesson imparted by the foregoing authorities is that, when the Court initiates
contempt proceedings and/or disciplinary proceedings against lawyers for
intemperate and discourteous language and behavior directed at the courts, the
evil sought to be prevented is the same – the degradation of the courts and the
loss of trust in the administration of justice. For this reason, it is not unusual for
the Court to cite authorities on bar discipline (involving the duty to give due
respect to the courts) in contempt cases against lawyers and vice versa.
Thus, when the Court chooses to institute an administrative case against a
respondent lawyer, the mere citation or discussion in the orders or decision in
the administrative case of jurisprudence involving contempt proceedings does
not transform the action from a disciplinary proceeding to one for contempt.
Respondents’ contrary position in their motion for reconsideration is bereft of
any rational merit. Had this Court opted to cite respondents for contempt of
court, which is punishable by imprisonment or fine, this Court would have
initiated contempt proceedings in accordance with the Rules of Court. Clearly,
the Court did not opt to do so. We cannot see why respondents would stubbornly
cling to the notion that they were being cited for indirect contempt under the
Show Cause Resolution when there is no basis for such belief other than their
own apparent misreading of the same.1avvphi1
With respect to the second ground offered for reconsideration of the Decision
dated March 8, 2011, respondents continue to insist on their theory, previously
expounded in their Compliance, that the evidence and proceedings in A.M. No.
10-7-17-SC was relevant to their own administrative case and thus, it was
necessary for them to be granted access to the evidence and records of that
case in order to prove their own defenses in the present case. The Decision
already debunked at length the theory that if respondents are able to prove the
bases for their "well founded" concerns regarding the plagiarism charge against
Justice Del Castillo, then they would be exonerated of the administrative
charges against them. It bears repeating here that what respondents have been
required to explain was their contumacious, intemperate and irresponsible
language and/or conduct in the issuance of the Restoring Integrity Statement,
which most certainly cannot be justified by a belief, well-founded or not, that
Justice Del Castillo and/or his legal researcher committed plagiarism.
To dispel respondents’ misconception once and for all, it should be stressed that
this Court did not call the attention of respondents for having an opinion contrary
to that of the Court in the plagiarism case against Justice Del Castillo. Notably,
even their co-respondent Prof. Raul T. Vasquez stood fast on his opinion
regarding the plagiarism issue. Still, he was able to simply relate to this Court
how he came to sign the Restoring Integrity Statement and candidly conceded
that he may have failed to assess the effect of the language of the Statement.
This straightforward and honest explanation was found satisfactory despite the
lack of reference to the evidence in A.M. No. 10-7-17-SC or the holding of any
formal trial-type evidentiary hearing, which respondents know fully well was not
mandatory in administrative proceedings. This circumstance belied
respondents’ justification for seeking access to the evidence and records of A.M.
No. 10-7-17-SC and their assertion that they have in any way been denied their
due process rights. For the same reason that A.M. 10-7-17-SC and the present
case are independent of each other, a passing mention of respondent law
professors in the Resolution dated February 8, 2011 in A.M. 10-7-17-SC is not
proof that this Court has found respondents guilty of falsely accusing Justice Del
Castillo of plagiarism nor is it any prejudgment of the present case. For if so, no
one would be exonerated or none of the compliances would be found
satisfactory in this administrative case. Again, the case of Prof. Vasquez
confirms that this Court duly considered respondents’ submissions in this case
before coming to a decision.
To buttress their third ground for reconsideration, respondents mainly contend
that the Court erred in taking the "emphatic language" in the Statement in
isolation from the other statements evidencing the good intentions of
respondents and calling for constructive action. Again, these arguments have
been substantially addressed in the Decision dated March 8, 2011 and there is
no need to belabor these points here. Suffice it to say that respondents’ avowed
noble motives have been given due weight and factored in the determination of
the action taken with respect to submissions of respondents.
In all, the Court finds that respondent Professors Catindig and Laforteza have
offered no substantial arguments to warrant a reconsideration of the Decision
dated March 8, 2011 nor to justify the grant of the reliefs prayed for in their
motion.
As for the Manifestation dated April 1, 2011, Dean Leonen and Professor Te
alleged that "they support the Motion for Reconsideration which was filed by
Respondents Professors Tristan Catindig and Caren Laforteza on April 1, 2011."
The rest of the assertions therein are mere restatements of arguments
previously proffered in respondents’ compliances and have been extensively
taken up in the Decision dated March 8, 2011.
Since the Manifestation, apart from being an expression of support for
Professors Catindig and Laforteza’s motion for reconsideration, did not raise
any new matter nor pray for any affirmative relief, the Court resolves to merely
note the same.
WHEREFORE, premises considered, the Court hereby RESOLVES to (a)
DENY the Motion for Reconsideration dated April 1, 2011 filed by respondent
Professors Tristan A. Catindig and Carina C. Laforteza; and (b) NOTE the
Manifestation dated April 1, 2011 filed by Dean Marvic M.V.F. Leonen and
Professor Theodore O. Te.
SO ORDERED.

TERESITA J. LEONARDO-DE CASTRO
Associate Justice
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. 1âwphi1.nêt
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. 1âwphi1.nêt
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.
Page 28 of 72
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 Osmeña 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 Osmeña 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 Osmeña, 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
Page 29 of 72
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. 1âwphi1.nêt
SO ORDERED.1âwphi1.nêt
Davide, JI:, C.J., Vitug, and Gonzaga-Reyes, JJ., concur.
Republic of the Philippines
SUPREME COURT
Manila
EN BANC
G.R. No. 205357 September 2, 2014
GMA NETWORK, INC., Petitioner,
vs.
COMMISSION ON ELECTIONS, Respondent.
SENATOR ALAN PETER "COMPAÑERO" S. CAYETANO,Petitioner-
Intervenor.
x-----------------------x
G.R. No. 205374
ABC DEVELOPMENT CORPORATION, Petitioner,
vs.
COMMISSION ON ELECTIONS, Respondent.
x-----------------------x
G.R. No. 205592
MANILA BROADCASTING COMPANY, INC. and NEWSOUNDS
BROADCASTING NETWORK, INC., Petitioner,
vs.
COMMISSION ON ELECTIONS, Respondent.
x-----------------------x
G.R. No. 205852
KAPISANAN NG MGA BRODKASTER NG PILIPINAS (KBP) and ABS-CBN
CORPORATION, Petitioners,
vs.
COMMISSION ON ELECTIONS, Respondent.
x-----------------------x
G.R. No. 206360
RADIO MINDANAO NETWORK, INC., Petitioner,
vs.
COMMISSION ON ELECTIONS, Respondent.
DECISION
PERALTA, J.:
"The clash of rights demands a delicate balancing of interests approach which
is a 'fundamental postulate of constitutional law.'"1
Once again the Court is asked to draw a carefully drawn balance in the
incessant conflicts between rights and regulations, liberties and limitations, and
competing demands of the different segments of society. Here, we are
confronted with the need to strike a workable and viable equilibrium between a
constitutional mandate to maintain free, orderly, honest, peaceful and credible
elections, together with the aim of ensuring equal opportunity, time and space,
and the right to reply, including reasonable, equal rates therefor, for public
information campaigns and forums among candidates,2 on one hand, and the
imperatives of a republican and democratic state,3 together with its guaranteed
rights of suffrage,4 freedom of speech and of the press,5 and the people's right
to information,6 on the other.
In a nutshell, the present petitions may be seen as in search of the answer to
the question - how does the Charter of a republican and democratic State
achieve a viable and acceptable balance between liberty, without which,
government becomes an unbearable tyrant, and authority, without which,
society becomes an intolerable and dangerous arrangement?
Assailed in these petitions are certain regulations promulgated by the
Commission on Elections (COMELEC) relative to the conduct of the 2013
national and local elections dealing with political advertisements. Specifically,
the petitions question the constitutionality of the limitations placed on aggregate
airtime allowed to candidates and political parties, as well as the requirements
incident thereto, such as the need to report the same, and the sanctions
imposed for violations.
The five (5) petitions before the Court put in issue the alleged unconstitutionality
of Section 9 (a) of COMELEC Resolution No. 9615 (Resolution) limiting the
broadcast and radio advertisements of candidates and political parties for
national election positions to an aggregate total of one hundred twenty (120)
minutes and one hundred eighty (180) minutes, respectively. They contend that
such restrictive regulation on allowable broadcast time violates freedom of the
press, impairs the people's right to suffrage as well as their right to information
relative to the exercise of their right to choose who to elect during the forth
coming elections.
The heart of the controversy revolves upon the proper interpretation of the
limitation on the number of minutes that candidates may use for television and
radio advertisements, as provided in Section 6 of Republic Act No. 9006 (R.A.
No. 9006), otherwise known as the Fair Election Act. Pertinent portions of said
provision state, thus:
Sec. 6. Equal Access to Media Time and Space. - All registered parties and
bona fide candidates shall have equal access to media time and space. The
following guidelines may be amplified on by the COMELEC:
xxxx
6.2 (a) Each bona fide candidate or registered political party for a nationally
elective office shall be entitled to not more than one hundred twenty (120)
minutes of television advertisement and one hundred eighty (180) minutes of
radio advertisement whether by purchase or donation.
b. Each bona fide candidate or registered political party for a locally elective
office shall be entitled to not more than sixty ( 60) minutes of television
advertisement and ninety (90) minutes of radio advertisement whether by
purchase or donation.
For this purpose, the COMELEC shall require any broadcast station or entity to
submit to the COMELEC a copy of its broadcast logs and certificates of
performance for the review and verification of the frequency, date, time and
duration of advertisements broadcast for any candidate or political party.
During the previous elections of May 14, 2007 and May 10, 2010, COMELEC
issued Resolutions implementing and interpreting Section 6 of R.A. No. 9006,
regarding airtime limitations, to mean that a candidate is entitled to the
aforestated number of minutes "per station."7 For the May 2013 elections,
however, respondent COMELEC promulgated Resolution No. 9615 dated
January 15, 2013, changing the interpretation of said candidates' and political
parties' airtime limitation for political campaigns or advertisements from a "per
station" basis, to a "total aggregate" basis.
Petitioners ABS-CBN Corporation (ABS-CBN), ABC Development Corporation
(ABC), GMA Network, Incorporated ( GMA), Manila Broadcasting Company,
Inc. (MBC), Newsounds Broadcasting Network, Inc. (NBN), and Radio
Mindanao Network, Inc. (RMN) are owners/operators of radio and television
networks in the Philippines, while petitioner Kapisanan ng mga Brodkaster ng
Pilipinas (KBP) is the national organization of broadcasting companies in the
Page 30 of 72
Philippines representing operators of radio and television stations and said
stations themselves. They sent their respective letters to the COMELEC
questioning the provisions of the aforementioned Resolution, thus, the
COMELEC held public hearings. Thereafter, on February 1, 2013, respondent
issued Resolution No. 9631 amending provisions of Resolution No. 9615.
Nevertheless, petitioners still found the provisions objectionable and
oppressive, hence, the present petitions.
All of the petitioners assail the following provisions of the Resolution:
a) Section 7 (d),8 which provides for a penalty of suspension or revocation of
an offender's franchise or permit, imposes criminal liability against broadcasting
entities and their officers in the event they sell airtime in excess of the size,
duration, or frequency authorized in the new rules;
b) Section 9 (a),9 which provides for an "aggregate total" airtime instead of the
previous "per station" airtime for political campaigns or dvertisements, and also
required prior COMELEC approval for candidates' television and radio
guestings and appearances; and
c) Section 14,10 which provides for a candidate's "right to reply."
In addition, petitioner ABC also questions Section 1 (4) 11 thereof, which defines
the term "political advertisement" or "election propaganda," while petitioner
GMA further assails Section 35, 12 which states that any violation of said Rules
shall constitute an election offense.
On March 15, 2013, Senator Alan Peter S. Cayetano (Petitioner-Intervenor) filed
a Motion for Leave to Intervene and to File and Admit the Petition-in-
Intervention, which was granted by the Court per its Resolution dated March 19,
2013. Petitioner-Intervenor also assails Section 9 (a) of the Resolution changing
the interpretation of candidates' and political parties' airtime limitation for political
campaigns or advertisements from a "per station" basis, to a "total aggregate"
basis. Petitioners allege that Resolutions No. 9615 and 9631, amending the
earlier Resolution, are unconstitutional and issued without jurisdiction or with
grave abuse of discretion amounting to lack or excess of jurisdiction, for the
reasons set forth hereunder.
Petitioners posit that Section 9 (a) of the assailed Resolution provides for a very
restrictive aggregate airtime limit and a vague meaning for a proper computation
of "aggregate total" airtime, and violates the equal protection guarantee, thereby
defeating the intent and purpose of R.A. No. 9006.
Petitioners contend that Section 9 (a), which imposes a notice requirement, is
vague and infringes on the constitutionally protected freedom of speech, of the
press and of expression, and on the right of people to be informed on matters
of public concern
Also, Section 9 (a) is a cruel and oppressive regulation as it imposes an
unreasonable and almost impossible burden on broadcast mass media of
monitoring a candidate's or political party's aggregate airtime, otherwise, it may
incur administrative and criminal liability.
Further, petitioners claim that Section 7 (d) is null and void for unlawfully
criminalizing acts not prohibited and penalized as criminal offenses by R.A. No.
9006.
Section 14 of Resolution No. 9615, providing for a candidate's or political party's
"right to reply," is likewise assailed to be unconstitutional for being an improper
exercise of the COMELEC's regulatory powers; for constituting prior restraint
and infringing petitioners' freedom of expression, speech and the press; and for
being violative of the equal protection guarantee. In addition to the foregoing,
petitioner GMA further argues that the Resolution was promulgated without
public consultations, in violation of petitioners' right to due process. Petitioner
ABC also avers that the Resolution's definition of the terms "political
advertisement" and "election propaganda" suffers from overbreadth, thereby
producing a "chilling effect," constituting prior restraint.
On the other hand, respondent posits in its Comment and Opposition13 dated
March 8, 2013, that the petition should be denied based on the following
reasons:
Respondent contends that the remedies of certiorari and prohibition are not
available to petitioners, because the writ of certiorari is only available against
the COMELEC's adjudicatory or quasi-judicial powers, while the writ of
prohibition only lies against the exercise of judicial, quasijudicial or ministerial
functions. Said writs do not lie against the COMELEC's administrative or rule-
making powers.
Respondent likewise alleges that petitioners do not have locus standi, as the
constitutional rights and freedoms they enumerate are not personal to them,
rather, they belong to candidates, political parties and the Filipino electorate in
general, as the limitations are imposed on candidates, not on media outlets. It
argues that petitioners' alleged risk of exposure to criminal liability is insufficient
to give them legal standing as said "fear of injury" is highly speculative and
contingent on a future act.
Respondent then parries petitioners' attack on the alleged infirmities of the
Resolution's provisions.
Respondent maintains that the per candidate rule or total aggregate airtime limit
is in accordance with R.A. No. 9006 as this would truly give life to the
constitutional objective to equalize access to media during elections. It sees this
as a more effective way of levelling the playing field between candidates/political
parties with enormous resources and those without much. Moreover, the
COMELEC's issuance of the assailed Resolution is pursuant to Section 4,
Article IX (C) of the Constitution which vests on the COMELEC the power to
supervise and regulate, during election periods, transportation and other public
utilities, as well as mass media, to wit:
Sec. 4. The Commission may, during the election period, supervise or regulate
the enjoyment or utilization of all franchises or permits for the operation of
transportation and other public utilities, media of communication or information,
all grants, special privileges, or concessions granted by the Government or any
subdivision, agency, or instrumentality thereof, including any government-
owned or controlled corporation or its subsidiary. Such supervision or regulation
shall aim to ensure equal opportunity, and equal rates therefor, for public
information campaigns and forums among candidates in connection with the
objective of holding free, orderly, honest, peaceful, and credible elections.
This being the case, then the Resolutions cannot be said to have been issued
with grave abuse of discretion amounting to lack of jurisdiction.
Next, respondent claims that the provisions are not vague because the assailed
Resolutions have given clear and adequate mechanisms to protect broadcast
stations from potential liability arising from a candidate's or party's violation of
airtime limits by putting in the proviso that the station "may require buyer to
warrant under oath that such purchase [of airtime] is not in excess of size,
duration or frequency authorized by law or these rules." Furthermore, words
should be understood in the sense that they have in common usage, and should
be given their ordinary meaning. Thus, in the provision for the right to reply,
"charges" against candidates or parties must be understood in the ordinary
sense, referring to accusations or criticisms.
Respondent also sees no prior restraint in the provisions requiring notice to the
COMELEC for appearances or guestings of candidates in bona fide news
broadcasts. It points out that the fact that notice may be given 24 hours after
first broadcast only proves that the mechanism is for monitoring purposes only,
not for censorship. Further, respondent argues, that for there to be prior
restraint, official governmental restrictions on the press or other forms of
expression must be done in advance of actual publication or dissemination.
Moreover, petitioners are only required to inform the COMELEC of
candidates'/parties' guestings, but there is no regulation as to the content of the
news or the expressions in news interviews or news documentaries.
Respondent then emphasized that the Supreme Court has held that freedom of
speech and the press may be limited in light of the duty of the COMELEC to
ensure equal access to opportunities for public service.
With regard to the right to reply provision, respondent also does not consider it
as restrictive of the airing of bona fide news broadcasts. More importantly, it
stressed, the right to reply is enshrined in the Constitution, and the assailed
Resolutions provide that said right can only be had after going through
administrative due process. The provision was also merely lifted from Section
10 of R.A. No. 9006, hence, petitioner ABC is actually attacking the
constitutionality of R.A. No. 9006, which cannot be done through a collateral
attack.
Next, respondent counters that there is no merit to ABC's claim that the
Resolutions' definition of "political advertisement" or "election propaganda"
suffers from overbreadth, as the extent or scope of what falls under said terms
is clearly stated in Section 1 (4) of Resolution No. 9615.
It is also respondent's view that the nationwide aggregate total airtime does not
violate the equal protection clause, because it does not make any substantial
distinctions between national and regional and/or local broadcast stations, and
even without the aggregate total airtime rule, candidates and parties are likely
to be more inclined to advertise in national broadcast stations. Respondent
likewise sees no merit in petitioners' claim that the Resolutions amount to taking
of private property without just compensation. Respondent emphasizes that
radio and television broadcasting companies do not own the airwaves and
frequencies through which they transmit broadcast signals; they are merely
given the temporary privilege to use the same. Since they are merely enjoying
a privilege, the same may be reasonably burdened with some form of public
service, in this case, to provide candidates with the opportunity to reply to
charges aired against them.
Lastly, respondent contends that the public consultation requirement does not
apply to constitutional commissions such as the COMELEC, pursuant to Section
1, Chapter I, Book VII of the Administrative Code of 1987. Indeed, Section 9,
Chapter II, Book VII of said Code provides, thus:
Section 9. Public Participation. - (1) If not otherwise required by law, an agency
shall, as far as practicable, publish or circulate notices of proposed rules and
afford interested parties the opportunity to submit their views prior to the
adoption of any rule.
However, Section 1, Chapter 1, Book VII of said Code clearly provides:
Section 1. Scope. -This Book shall be applicable to all agencies as defined in
the next succeeding section, except the Congress, the Judiciary, the
Constitutional Commissions, military establishments in all matters relating
exclusively to Armed Forces personnel, the Board of Pardons and Parole, and
state universities and colleges.
Nevertheless, even if public participation is not required, respondent still
conducted a meeting with representatives of the KBP and various media outfits
Page 31 of 72
on December 26, 2012, almost a month before the issuance of Resolution No.
9615.
On April 2, 2013, petitioner GMA filed its Reply,14 where it advanced the
following counter-arguments:
According to GMA, a petition for certiorari is the proper remedy to question the
herein assailed Resolutions, which should be considered as a "decision, order
or ruling of the Commission" as mentioned in Section 1, Rule 37 of the
COMELEC Rules of Procedure which provides:
Section 1. Petition for Certiorari,· and Time to File. - Unless otherwise provided
by law, or by any specific provisions in these Rules, any decision, order or ruling
of the Commission may be brought to the Supreme Court on certiorari by the
aggrieved party within thirty (30) days from its promulgation.
GMA further stressed that this case involves national interest, and the urgency
of the matter justifies its resort to the remedy of a petition for certiorari.
Therefore, GMA disagrees with the COMELEC's position that the proper remedy
is a petition for declaratory relief because such action only asks the court to
make a proper interpretation of the rights of parties under a statute or regulation.
Such a petition does not nullify the assailed statute or regulation, or grant
injunctive relief, which petitioners are praying for in their petition. Thus, GMA
maintains that a petition for certiorari is the proper remedy.
GMA further denies that it is making a collateral attack on the Fair Election Act,
as it is not attacking said law. GMA points out that it has stated in its petition that
the law in fact allows the sale or donation of airtime for political advertisements
and does not impose criminal liability against radio and television stations. What
it is assailing is the COMELEC's erroneous interpretation of the law's provisions
by declaring such sale and/or donation of airtime unlawful, which is contrary to
the purpose of the Fair Election Act.
GMA then claims that it has legal standing to bring the present suit because:
x x x First, it has personally suffered a threatened injury in the form of risk of
criminal liability because of the alleged unconstitutional and unlawful conduct of
respondent COMELEC in expanding what was provided for in R.A. No. 9006.
Second, the injury is traceable to the challenged action of respondent
COMELEC, that is, the issuance of the assailed Resolutions. Third, the injury is
likely to be redressed by the remedy sought in petitioner GMA's Petition, among
others, for the Honorable Court to nullify the challenged pertinent provisions of
the assailed Resolutions.15
On substantive issues, GMA first argues that the questioned Resolutions are
contrary to the objective and purpose of the Fair Election Act. It points out that
the Fair Election Act even repealed the political ad ban found in the earlier law,
R.A. No. 6646. The Fair Election Act also speaks of "equal opportunity" and
"equal access,'' but said law never mentioned equalizing the economic station
of the rich and the poor, as a declared policy. Furthermore, in its opinion, the
supposed correlation between candidates' expenditures for TV ads and actually
winning the elections, is a mere illusion, as there are other various factors
responsible for a candidate's winning the election. GMA then cites portions of
the deliberations of the Bicameral Conference Committee on the bills that led to
the enactment of the Fair Election Act, and alleges that this shows the legislative
intent that airtime allocation should be on a "per station" basis. Thus, GMA
claims it was arbitrary and a grave abuse of discretion for the COMELEC to
issue the present Resolutions imposing airtime limitations on an "aggregate
total" basis.
It is likewise insisted by GMA that the assailed Resolutions impose an
unconstitutional burden on them, because their failure to strictly monitor the
duration of total airtime that each candidate has purchased even from other
stations would expose their officials to criminal liability and risk losing the
station's good reputation and goodwill, as well as its franchise. It argues that the
wordings of the Resolutions belie the COMELEC's claim that petitioners would
only incur liability if they "knowingly" sell airtime beyond the limits imposed by
the Resolutions, because the element of knowledge is clearly absent from the
provisions thereof. This makes the provisions have the nature of malum
prohibitum.
Next, GMA also says that the application of the aggregate airtime limit
constitutes prior restraint and is unconstitutional, opining that "[t]he reviewing
power of respondent COMELEC and its sole judgment of a news event as a
political advertisement are so pervasive under the assailed Resolutions, and
provoke the distastes or chilling effect of prior restraint"16 as even a legitimate
exercise of a constitutional right might expose it to legal sanction. Thus, the
governmental interest of leveling the playing field between rich and poor
candidates cannot justify the restriction on the freedoms of expression, speech
and of the press.
On the issue of lack of prior public participation, GMA cites Section 82 of the
Omnibus Election Code, pertinent portions of which provide, thus:
Section 82. Lawful election propaganda. - Lawful election propaganda shall
include:
xxxx
All other forms of election propaganda not prohibited by this Code as the
Commission may authorize after due notice to all interested parties and hearing
where all the interested parties were given an equal opportunity to be heard:
Provided, That the Commission's authorization shall be published in two
newspapers of general circulation throughout the nation for at least twice within
one week after the authorization has been granted.
There having been no prior public consultation held, GMA contends that the
COMELEC is guilty of depriving petitioners of its right to due process of law.
GMA then concludes that it is also entitled to a temporary restraining order,
because the implementation of the Resolutions in question will cause grave and
irreparable damage to it by disrupting and emasculating its mandate to provide
television and radio services to the public, and by exposing it to the risk of
incurring criminal and administrative liability by requiring it to perform the
impossible task of surveillance and monitoring, or the broadcasts of other radio
and television stations.
Thereafter, on April 4, 2013, the COMELEC, through the Office of the Solicitor
General (OSG), filed a Supplemental Comment and Opposition17 where it
further expounded on the legislative intent behind the Fair Election Act, also
quoting portions of the deliberations of the Bicameral Conference Committee,
allegedly adopting the Senate Bill version setting the computation of airtime
limits on a per candidate, not per station, basis. Thus, as enacted into law, the
wordings of Section 6 of the Fair Election Act shows that the airtime limit is
imposed on a per candidate basis, rather than on a per station basis.
Furthermore, the COMELEC states that petitioner intervenor Senator Cayetano
is wrong in arguing that there should be empirical data to support the need to
change the computation of airtime limits from a per station basis to a per
candidate basis, because nothing in law obligates the COMELEC to support its
Resolutions with empirical data, as said airtime limit was a policy decision
dictated by the legislature itself, which had the necessary empirical and other
data upon which to base said policy decision.
The COMELEC then points out that Section 2 (7),18 Article IX (C) of the
Constitution empowers it to recommend to Congress effective measures to
minimize election spending and in furtherance of such constitutional power, the
COMELEC issued the questioned Resolutions, in faithful implementation of the
legislative intent and objectives of the Fair Election Act.
The COMELEC also dismisses Senator Cayetano's fears that unauthorized or
inadvertent inclusion of his name, initial, image, brand, logo, insignia and/or
symbol in tandem advertisements will be charged against his airtime limits by
pointing out that what will be counted against a candidate's airtime and
expenditures are those advertisements that have been paid for or donated to
them to which the candidate has given consent.
With regard to the attack that the total aggregate airtime limit constitutes prior
restraint or undue abridgement of the freedom of speech and expression, the
COMELEC counters that "the Resolutions enjoy constitutional and
congressional imprimatur. It is the Constitution itself that imposes the restriction
on the freedoms of speech and expression, during election period, to promote
an important and significant governmental interest, which is to equalize, as far
as practicable, the situation of rich and poor candidates by preventing the former
from enjoying the undue advantage offered by huge campaign 'war chests."'19
Lastly, the COMELEC also emphasizes that there is no impairment of the
people's right to information on matters of public concern, because in this case,
the COMELEC is not withholding access to any public record.
On April 16, 2013, this Court issued a Temporary Restraining Order20 (TRO) in
view of the urgency involved and to prevent irreparable injury that may be
caused to the petitioners if respondent COMELEC is not enjoined from
implementing Resolution No. 9615.
On April 19, 2013 respondent filed an Urgent Motion to Lift Temporary
Restraining Order and Motion for Early Resolution of the Consolidated
Petitions.21
On May 8, 2013, petitioners ABS-CBN and the KBP filed its
Opposition/Comment22 to the said Motion. Not long after, ABC followed suit
and filed its own Opposition to the Motion23 filed by the respondent.
In the interim, respondent filed a Second Supplemental Comment and
Opposition24 dated April 8, 2013.
In the Second Supplemental Comment and Opposition, respondent delved on
points which were not previously discussed in its earlier Comment and
Supplemental Comment, particularly those raised in the petition filed by
petitioner ABS-CBN and KBP.
Respondent maintains that certiorari in not the proper remedy to question the
Constitutionality of the assailed Resolutions and that petitioners ABS-CBN and
KBP have no locus standi to file the present petition.
Respondent posits that contrary to the contention of petitioners, the legislative
history of R.A. No. 9006 conclusively shows that congress intended the airtime
limits to be computed on a "per candidate" and not on a "per station" basis. In
addition, the legal duty of monitoring lies with the COMELEC. Broadcast stations
are merely required to submit certain documents to aid the COMELEC in
ensuring that candidates are not sold airtime in excess of the allowed limits.
Also, as discussed in the earlier Comment, the prior notice requirement is a
mechanism designed to inform the COMELEC of the appearances or guesting
of candidates in bona fide news broadcasts. It is for monitoring purposes only,
not censorship. It does not control the subject matter of news broadcasts in
Page 32 of 72
anyway. Neither does it prevent media outlets from covering candidates in news
interviews, news events, and news documentaries, nor prevent the candidates
from appearing thereon.
As for the right to reply, respondent insists that the right to reply provision cannot
be considered a prior restraint on the freedoms of expression, speech and the
press, as it does not in any way restrict the airing of bona fide new broadcasts.
Media entities are free to report any news event, even if it should turn out to be
unfavourable to a candidate or party. The assailed Resolutions merely give the
candidate or party the right to reply to such charges published or aired against
them in news broadcasts.
Moreover, respondent contends that the imposition of the penalty of suspension
and revocation of franchise or permit for the sale or donation of airtime beyond
the allowable limits is sanctioned by the Omnibus Election Code.
Meanwhile, RMN filed its Petition on April 8, 2013. On June 4, 2013, the Court
issued a Resolution25 consolidating the case with the rest of the petitions and
requiring respondent to comment thereon.
On October 10, 2013, respondent filed its Third Supplemental Comment and
Opposition.26 Therein, respondent stated that the petition filed by RMN repeats
the issues that were raised in the previous petitions. Respondent, likewise,
reiterated its arguments that certiorari in not the proper remedy to question the
assailed resolutions and that RMN has no locus standi to file the present
petition. Respondent maintains that the arguments raised by RMN, like those
raised by the other petitioners are without merit and that RMN is not entitled to
the injunctive relief sought.
The petition is partly meritorious.
At the outset, although the subject of the present petit10ns are Resolutions
promulgated by the COMELEC relative to the conduct of the 2013 national and
local elections, nevertheless the issues raised by the petitioners have not been
rendered moot and academic by the conclusion of the 2013 elections.
Considering that the matters elevated to the Court for resolution are susceptible
to repetition in the conduct of future electoral exercises, these issues will be
resolved in the present action.
PROCEDURAL ASPECTS
Matters of procedure and technicalities normally take a backseat when issues
of substantial and transcendental importance are presented before the Court.
So the Court does again in this particular case.
Proper Remedy
Respondent claims that certiorari and prohibition are not the proper remedies
that petitioners have taken to question the assailed Resolutions of the
COMELEC. Technically, respondent may have a point. However, considering
the very important and pivotal issues raised, and the limited time, such
technicality should not deter the Court from having to make the final and
definitive pronouncement that everyone else depends for enlightenment and
guidance. "[T]his Court has in the past seen fit to step in and resolve petitions
despite their being the subject of an improper remedy, in view of the public
importance of the tile issues raised therein.27
It has been in the past, we do so again.
Locus Standi
Every time a constitutional issue is brought before the Court, the issue of locus
standi is raised to question the personality of the parties invoking the Court's
jurisdiction. The Court has routinely made reference to a liberalized stance when
it comes to petitions raising issues of transcendental importance to the country.
Invariably, after some discussions, the Court would eventually grant standing.28
In this particular case, respondent also questions the standing of the petitioners.
We rule for the petitioners. For petitioner-intervenor Senator Cayetano, he
undoubtedly has standing since he is a candidate whose ability to reach out to
the electorate is impacted by the assailed Resolutions.
For the broadcast companies, they similarly have the standing in view of the
direct injury they may suffer relative to their ability to carry out their tasks of
disseminating information because of the burdens imposed on them.
Nevertheless, even in regard to the broadcast companies invoking the injury
that may be caused to their customers or the public - those who buy
advertisements and the people who rely on their broadcasts - what the Court
said in White Light Corporation v. City of Manila29 may dispose of the question.
In that case, there was an issue as to whether owners of establishments offering
"wash-up" rates may have the requisite standing on behalf of their patrons' equal
protection claims relative to an ordinance of the City of Manila which prohibited
"short-time" or "wash-up" accommodation in motels and similar establishments.
The Court essentially condensed the issue in this manner: "[T]he crux of the
matter is whether or not these establishments have the requisite standing to
plead for protection of their patrons' equal protection rights."30 The Court then
went on to hold:
Standing or locus standi is the ability of a party to demonstrate to the court
sufficient connection to and harm from the law or action challenged to support
that party's participation in the case. More importantly, the doctrine of standing
is built on the principle of separation of powers, sparing as it does unnecessary
interference or invalidation by the judicial branch of the actions rendered by its
co-equal branches of government.
The requirement of standing is a core component of the judicial system derived
directly from the Constitution. The constitutional component of standing doctrine
incorporates concepts which concededly are not susceptible of precise
definition. In this jurisdiction, the extancy of "a direct and personal interest"
presents the most obvious cause, as well as the standard test for a petitioner's
standing. In a similar vein, the United States Supreme Court reviewed and
elaborated on the meaning of the three constitutional standing requirements of
injury, causation, and redressability in Allen v. Wright.
Nonetheless, the general rules on standing admit of several exceptions such as
the overbreadth doctrine, taxpayer suits, third party standing and, especially in
the Philippines, the doctrine of transcendental importance.
For this particular set of facts, the concept of third party standing as an exception
and the overbreadth doctrine are appropriate. x x x
xxxx
American jurisprudence is replete with examples where parties-ininterest were
allowed standing to advocate or invoke the fundamental due process or equal
protection claims of other persons or classes of persons injured by state action.
xxx
xxxx
Assuming arguendo that petitioners do not have a relationship with their patrons
for the former to assert the rights of the latter, the overbreadth doctrine comes
into play. In overbreadth analysis, challengers to government action are in effect
permitted to raise the rights of third parties. Generally applied to statutes
infringing on the freedom of speech, the overbreadth doctrine applies when a
statute needlessly restrains even constitutionally guaranteed rights. In this case,
the petitioners claim that the Ordinance makes a sweeping intrusion into the
right to liberty of their clients. We can see that based on the allegations in the
petition, the Ordinance suffers from overbreadth.
We thus recognize that the petitioners have a right to assert the constitutional
rights of their clients to patronize their establishments for a "wash-rate" time
frame.31
If in regard to commercial undertakings, the owners may have the right to assert
a constitutional right of their clients, with more reason should establishments
which publish and broadcast have the standing to assert the constitutional
freedom of speech of candidates and of the right to information of the public, not
to speak of their own freedom of the press. So, we uphold the standing of
petitioners on that basis.
SUBSTANTIVE ASPECTS
Aggregate Time Limits
COMELEC Resolution No. 9615 introduced a radical departure from the
previous COMELEC resolutions relative to the airtime limitations on political
advertisements. This essentially consists in computing the airtime on an
aggregate basis involving all the media of broadcast communications compared
to the past where it was done on a per station basis. Thus, it becomes
immediately obvious that there was effected a drastic reduction of the allowable
minutes within which candidates and political parties would be able to campaign
through the air. The question is accordingly whether this is within the power of
the COMELEC to do or not. The Court holds that it is not within the power of the
COMELEC to do so.
a. Past elections and airtime limits
The authority of the COMELEC to impose airtime limits directly flows from the
Fair Election Act (R.A. No. 9006 [2001])32 - one hundred (120) minutes of
television advertisement and one-hundred· eighty (180) minutes for radio
advertisement. For the 2004 elections, the respondent COMELEC promulgated
Resolution No. 652033 implementing the airtime limits by applying said
limitation on a per station basis.34 Such manner of determining airtime limits
was likewise adopted for the 2007 elections, through Resolution No. 7767.35 In
the 2010 elections, under Resolution No. 8758,36 the same was again adopted.
But for the 2013 elections, the COMELEC, through Resolution No. 9615, as
amended by Resolution No. 9631, chose to aggregate the total broadcast time
among the different broadcast media, thus: Section 9. Requirements and/or
Limitations on the Use of Election Propaganda through Mass Media. - All parties
and bona fide candidates shall have equal access to media time and space for
their election propaganda during the campaign period subject to the following
requirements and/or limitations:
a. Broadcast Election Propaganda
The duration of an air time that a candidate, or party may use for their broadcast
advertisements or election propaganda shall be, as follows:
For Candidates/Registered Not more than an aggregate total of one
Political parties for a hundred (120) minutes of television
National Elective Position advertising, whether appearing on national,
regional, or local, free or cable television,
Page 33 of 72
and one hundred eighty (180) minutes of
radio advertising, whether airing on national,
regional, or local radio, whether by purchase
or donation
For Candidates/Registered Not more than an aggregate total of sixty
Political parties for a Local (60) minutes of television advertising,
Elective Position whether appearing on national, regional, or
local, free or cable television, and ninety (90)
minutes of radio advertising, whether airing
on national, regional, or local radio, whether
by purchase or donation.
In cases where two or more candidates or parties whose names, initials, images,
brands, logos, insignias, color motifs, symbols, or forms of graphical
representations are displayed, exhibited, used, or mentioned together in the
broadcast election propaganda or advertisements, the length of time during
which they appear or are being mentioned or promoted will be counted against
the airtime limits allotted for the said candidates or parties and the cost of the
said advertisement will likewise be considered as their expenditures, regardless
of whoever paid for the advertisements or to whom the said advertisements
were donated.
x x x x37
Corollarily, petitioner-intervenor, Senator Cayetano, alleges:
6.15. The change in the implementation of Section 6 of R.A. 9006 was
undertaken by respondent Comelec without consultation with the candidates for
the 2013 elections, affected parties such as media organizations, as well as the
general public. Worse, said change was put into effect without explaining the
basis therefor and without showing any data in support of such change.
Respondent Comelec merely maintained that such action "is meant to level the
playing field between the moneyed candidates and those who don i have
enough resources," without particularizing the empirical data upon which such
a sweeping statement was based. This was evident in the public hearing held
on 31 January 2013 where petitioner GMA, thru counsel, explained that no
empirical data on he excesses or abuses of broadcast media were brought to
the attention of the public by respondent Comelec, or even stated in the
Comelec
Resolution No. 9615. Thus –
xxxx
Chairman Brillantes
So if we can regulate and amplify, we may amplify meaning we can expand if
we want to. But the authority of the Commission is if we do not want to amplify
and we think that the 120 or 180 is okay we cannot be compelled to amplify. We
think that 120 or 180 is okay, is enough.
Atty. Lucila
But with due respect Your Honor, I think the basis of the resolution is found in
the law and the law has been enterpreted (sic) before in 2010 to be 120 per
station, so why the change, your Honor?
Chairman Brillantes
No, the change is not there, the right to amplify is with the Commission on
Elections. Nobody can encroach in our right to amplify. Now, if in 2010 the
Commission felt that per station or per network is the rule then that is the
prerogative of the Commission then they could amplify it to expand it. If the
current Commission feels that 120 is enough for the particular medium like TV
and 180 for radio, that is our prerogative. How can you encroach and what is
unconstitutional about it?
Atty. Lucila
We are not questioning the authority of the Honorable Commission to regulate
Your Honor, we are just raising our concern on the manner of regulation
because as it is right now, there is a changing mode or sentiments of the
Commission and the public has the right to know, was there rampant
overspending on political ads in 2010, we were not informed Your Honor. Was
there abuse of the media in 2010, we were not informed Your Honor. So we
would like to know what is the basis of the sudden change in this limitation, Your
Honor .. And law must have a consistent interpretation that [is]our position, Your
Honor.
Chairman Brillantes
But my initial interpretation, this is personal to this representation counsel, is
that if the Constitution allows us to regulate and then it gives us the prerogative
to amplify then the prerogative to amplify you should leave this to the discretion
of the Commission. Which means if previous Commissions felt that expanding
it should be part of our authority that was a valid exercise if we reduce it to what
is provided for by law which is 120-180 per medium, TV, radio, that is also within
the law and that is still within our prerogative as provided for by the Constitution.
If you say we have to expose the candidates to the public then I think the
reaction should come, the negative reaction should come from the candidates
not from the media, unless you have some interest to protect directly. Is there
any interest on the part of the media to expand it?
Atty. Lucila
Well, our interest Your Honor is to participate in this election Your Honor and
we have been constantly (sic) as the resolution says and even in the part
involved because you will be getting some affirmative action time coming from
the media itself and Comelec time coming from the media itself. So we could
like to be both involved in the whole process of the exercise of the freedom of
suffrage Your Honor.
Chairman Brillantes
Yes, but the very essence of the Constitutional provision as well as the provision
of 9006 is actually to level the playing field. That should be the paramount
consideration. If we allow everybody to make use of all their time and all radio
time and TV time then there will be practically unlimited use of the mass media
....
Atty. Lucila
Was there in 2010 Your Honor, was there any data to support that there was an
unlimited and abuse of a (sic) political ads in the mass media that became the
basis of this change in interpretation Your Honor? We would like to know about
it Your Honor.
Chairman Brillantes
What do you think there was no abuse in 201 O?
Atty. Lucila
As far as the network is concern, there was none Your Honor.
Chairman Brillantes
There was none ..... .
Atty. Lucila
I'm sorry, Your Honor ...
Chairman Brillantes
Yes, there was no abuse, okay, but there was some advantage given to those
who took ... who had the more moneyed candidates took advantage of it.
Atty. Lucila
But that is the fact in life, Your Honor there are poor candidates, there are rich
candidates. No amount of law or regulation can even level the playing filed (sic)
as far as the economic station in life of the candidates are concern (sic) our
Honor.38
Given the foregoing observations about what happened during the hearing,
Petitioner-Intervenor went on to allege that:
6.16. Without any empirical data upon which to base the regulatory measures
in Section 9 (a), respondent Comelec arbitrarily changed the rule from per
station basis to aggregate airtime basis. Indeed, no credence should be given
to the cliched explanation of respondent Comelec (i.e. leveling the playing field)
in its published statements which in itself is a mere reiteration of the rationale
for the enactment of the political ad ban of Republic Act No. 6646, and which
has likewise been foisted when said political ad ban was lifted by R.A. 9006.39
From the foregoing, it does appear that the COMELEC did not have any other
basis for coming up with a new manner of determining allowable time limits
except its own idea as to what should be the maximum number of minutes based
on its exercise of discretion as to how to level the playing field. The same could
be encapsulized in the remark of the COMELEC Chairman that "if the
Constitution allows us to regulate and then it gives us the prerogative to amplify
then the prerogative to amplify you should leave this to the discretion of the
Commission."40
The Court could not agree with what appears as a nonchalant exercise of
discretion, as expounded anon.
b. COMELEC is duty bound to come up with reasonable basis for changing the
interpretation and implementation of the airtime limits
There is no question that the COMELEC is the office constitutionally and
statutorily authorized to enforce election laws but it cannot exercise its powers
without limitations - or reasonable basis. It could not simply adopt measures or
regulations just because it feels that it is the right thing to do, in so far as it might
be concerned. It does have discretion, but such discretion is something that
must be exercised within the bounds and intent of the law. The COMELEC is
not free to simply change the rules especially if it has consistently interpreted a
legal provision in a particular manner in the past. If ever it has to change the
rules, the same must be properly explained with sufficient basis.
Based on the transcripts of the hearing conducted by the COMELEC after it had
already promulgated the Resolution, the respondent did not fully explain or
Page 34 of 72
justify the change in computing the airtime allowed candidates and political
parties, except to make reference to the need to "level the playing field." If the
"per station" basis was deemed enough to comply with that objective in the past,
why should it now be suddenly inadequate? And, the short answer to that from
the respondent, in a manner which smacks of overbearing exercise of
discretion, is that it is within the discretion of the COMELEC. As quoted in the
transcript, "the right to amplify is with the COMELEC. Nobody can encroach in
our right to amplify. Now, if in 2010 the Commission felt that per station or per
network is the rule then that is the prerogative of the Commission then they
could amplify it to expand it. If the current Commission feels that 120 is enough
for the particular medium like TV and 180 for radio, that is our prerogative. How
can you encroach and what is unconstitutional about it?"41
There is something basically wrong with that manner of explaining changes in
administrative rules. For one, it does not really provide a good basis for change.
For another, those affected by such rules must be given a better explanation
why the previous rules are no longer good enough. As the Court has said in one
case:
While stability in the law, particularly in the business field, is desirable, there is
no demand that the NTC slavishly follow precedent. However, we think it
essential, for the sake of clarity and intellectual honesty, that if an administrative
agency decides inconsistently with previous action, that it explain thoroughly
why a different result is warranted, or ?f need be, why the previous standards
should no longer apply or should be overturned. Such explanation is warranted
in order to sufficiently establish a decision as having rational basis. Any
inconsistent decision lacking thorough, ratiocination in support may be struck
down as being arbitrary. And any decision with absolutely nothing to support it
is a nullity.42
What the COMELEC came up with does not measure up to that level of
requirement and accountability which elevates administrative rules to the level
of respectability and acceptability. Those governed by administrative
regulations are entitled to a reasonable and rational basis for any changes in
those rules by which they are supposed to live by, especially if there is a radical
departure from the previous ones.
c. The COMELEC went beyond the authority granted it by the law in adopting
"aggregate" basis in the determination of allowable airtime
The law, which is the basis of the regulation subject of these petitions,
pertinently provides:
6.2. (a) Each bona fide candidate or registered political party for a nationally
elective office shall be entitled to not more than one hundred twenty (120)
minutes of television advertisement and one hundred eighty (180) minutes of
radio advertisement whether by purchase or donation.
(b) Each bona fide candidate or registered political party for a locally elective
office shall be entitled to not more than sixty (60) minutes of television
advertisement and ninety (90) minutes of radio advertisement whether by
purchase or donation; x x x
The law, on its face, does not justify a conclusion that the maximum allowable
airtime should be based on the totality of possible broadcast in all television or
radio stations. Senator Cayetano has called our attention to the legislative intent
relative to the airtime allowed - that it should be on a "per station" basis.43
This is further buttressed by the fact that the Fair Election Act (R.A. No. 9006)
actually repealed the previous provision, Section ll(b) of Republic Act No.
6646,44 which prohibited direct political advertisements -the so-called "political
ad ban." If under the previous law, no candidate was allowed to directly buy or
procure on his own his broadcast or print campaign advertisements, and that he
must get it through the COMELEC Time or COMELEC Space, R.A. No. 9006
relieved him or her from that restriction and allowed him or her to broadcast time
or print space subject to the limitations set out in the law. Congress, in enacting
R.A. No. 9006, felt that the previous law was not an effective and efficient way
of giving voice to the people. Noting the debilitating effects of the previous law
on the right of suffrage and Philippine democracy, Congress decided to repeal
such rule by enacting the Fair Election Act.
In regard to the enactment of the new law, taken in the context of the restrictive
nature of the previous law, the sponsorship speech of Senator Raul Roco is
enlightening:
The bill seeks to repeal Section 85 of the Omnibus Election Code and Sections
10 and 11 of RA 6646. In view of the importance of their appeal in connection
with the thrusts of the bill, I hereby quote these sections in full:
"SEC. 85. Prohibited forms of election propaganda. - It shall be unlawful:
"(a) To print, publish, post or distribute any poster, pamphlet, circular, handbill,
or printed matter urging voters to vote for or against any candidate unless they
hear the names and addresses of the printed and payor as required in Section
84 hereof;
"(b) To erect, put up, make use of, attach, float or display any billboard, tinplate-
poster, balloons and the like, of whatever size, shape, form or kind, advertising
for or against any candidate or political party;
"(c) To purchase, manufacture, request, distribute or accept electoral
propaganda gadgets, such as pens, lighters, fans of whatever nature,
flashlights, athletic goods or materials, wallets, shirts, hats, bandannas,
matches, cigarettes and the like, except that campaign supporters
accompanying a candidate shall be allowed to wear hats and/or shirts or T-shirts
advertising a candidate;
"(d) To show or display publicly any advertisement or propaganda for or against
any candidate by means of cinematography, audio-visual units or other screen
projections except telecasts which may be allowed as hereinafter provided; and
"(e) For any radio broadcasting or television station to sell or give free of charge
airtime for campaign and other political purposes except as authorized in this
Code under the rules and regulations promulgated by the Commission pursuant
thereto;
"Any prohibited election propaganda gadget or advertisement shall be stopped,
confiscated or tom down by the representative of the Commission upon specific
authority of the Commission." "SEC. 10. Common Poster Areas. - The
Commission shall designate common poster areas in strategic public places
such as markets, barangay centers and the like wherein candidates can post,
display or exhibit election propaganda to announce or further their candidacy.
"Whenever feasible, common billboards may be installed by the Commission
and/or non-partisan private or civic organizations which the Commission may
authorize whenever available, after due notice and hearing, in strategic areas
where it may readily be seen or read, with the heaviest pedestrian and/or
vehicular traffic in the city or municipality.
The space in such common poster areas or billboards shall be allocated free of
charge, if feasible, equitably and impartially among the candidates in the
province, city or municipality. "SEC. 11. Prohibite,d Forms of Election
Propaganda. - In addition to the forms of election propaganda prohibited under
Section 85 of Batas Pambansa Blg. 881, it shall be unlawful: (a) to draw, paint,
inscribe, write, post, display or puolicly exhibit any election propaganda in any
place, whether private or public, except in common poster areas and/or
billboards provided in the immediately preceding section, at the candidate's own
residence, or at the campaign headquarters of the candidate or political party:
Provided, That such posters or election propaganda shall in no case exceed two
(2) feet by three (3) feet in area; Provided, further, That at the site of and on the
occasion of a public meeting or rally, streamers, not more than two (2) feet and
not exceeding three (3) feet by eight (8) each may be displayed five (5) days
before the date of the meeting or rally, and shall be removed within twenty-four
(24) hours after said meeting or rally; and
"(b) For any newspapers, radio broadcasting or television station, or other mass
media, or any person making use of the mass media to sell or give for free of
charge print space or air time for campaign or other political purposes except to
the Commission as provided under Section 90 and 92 of Batas Pambansa Big.
881. Any mass media columnist, commentator, announcer or personality who is
a candidate for any elective public office shall take a leave of absence from his
work as such during the campaign."
The repeal of the provision on the Common Poster Area implements the strong
recommendations of the Commission on Elections during the hearings. It also
seeks to apply the doctrine enunciated by the Supreme Court in the case of Blo
Umpar Adiong vs. Commission on Elections, 207 SCRA 712, 31 March 1992.
Here a unanimous Supreme Court ruled: The COMELEC's prohibition on the
posting of decals and stickers on "mobile" places whether public or private
except [in] designated areas provided for by the COMELEC itself is null and void
on constitutional grounds.
For the foregoing reasons, we commend to our colleagues the early passage of
Senate Bill No. 1742. In so doing, we move one step towards further ensuring
"free, orderly, honest, peaceful and credible elections" as mandated by the
Constitution.45
Given the foregoing background, it is therefore ineluctable to conclude that
Congress intended to provide a more expansive and liberal means by which the
candidates, political parties, citizens and other stake holders in the periodic
electoral exercise may be given a chance to fully explain and expound on their
candidacies and platforms of governance, and for the electorate to be given a
chance to know better the personalities behind the candidates. In this regard,
the media is also given a very important part in that undertaking of providing the
means by which the political exercise becomes an interactive process. All of
these would be undermined and frustrated with the kind of regulation that the
respondent came up with.
The respondent gave its own understanding of the import of the legislative
deliberations on the adoption of R.A. No. 9006 as follows:
The legislative history of R.A. 9006 clearly shows that Congress intended to
impose the per candidate or political party aggregate total airtime limits on
political advertisements and election propaganda. This is evidenced by the
dropping of the "per day per station" language embodied in both versions of the
House of Representatives and Senate bills in favour of the "each candidate" and
"not more than" limitations now found in Section 6 of R.A. 9006.
The pertinent portions of House Bill No. 9000 and Senate Bill No. 1742 read as
follows:
House Bill No. 9000:
SEC. 4. Section 86 of the same Batas is hereby amended to read as follows:
Sec. 86. Regulation of Election Propaganda Through Mass Media.
Page 35 of 72
xxx xxx xxx
A) The total airtime available to the candidate and political party, whether by
purchase or by donation, shall be limited to five (5) minutes per day in each
television, cable television and radio stations during the applicable campaign
period.
Senate Bill No. 1742:
SEC. 5. Equal Access to Media Space and Time. -All registered parties and
bona fide candidates shall have equal access to media space and time. The
following guidelines may be amplified by the COMELEC.
xxx xxx xxx
2. The total airtime available for each registered party and bona fide candidate
whether by purchase or donation shall not exceed a total of one (1) minute per
day per television or radio station. (Emphasis supplied.)
As Section 6 of R.A. 9006 is presently worded, it can be clearly seen that the
legislature intended the aggregate airtime limits to be computed on per
candidate or party basis. Otherwise, if the legislature intended the computation
to be on per station basis, it could have left the original "per day per station"
formulation.46
The Court does not agree. It cannot bring itself to read the changes in the bill as
disclosing an intent that the COMELEC wants this Court to put on the final
language of the law. If anything, the change in language meant that the
computation must not be based on a "per day" basis for each television or radio
station. The same could not therefore lend itself to an understanding that the
total allowable time is to be done on an aggregate basis for all television or radio
stations. Clearly, the respondent in this instance went beyond its legal mandate
when it provided for rules beyond what was contemplated by the law it is
supposed to implement. As we held in Lakin, Jr. v. Commission on Elections:47
The COMELEC, despite its role as the implementing arm of the Government in
the enforcement and administration of all laws and regulations relative to the
conduct of an election, has neither the authority nor the license to expand,
extend, or add anything to the law it seeks to implement thereby. The IRRs the
COMELEC issued for that purpose should always be in accord with the law to
be implemented, and should not override, supplant, or modify the law. It is basic
that the IRRs should remain consistent with the law they intend to carry out.
Indeed, administrative IRRs adopted by a particular department of the
Government under legislative authority must be in harmony with the provisions
of the law, and should be for the sole purpose of carrying the law's general
provisions into effect. The law itself cannot be expanded by such IRRs, because
an administrative agency cannot amend an act of Congress.48
In the case of Lakin, Jr., the COMELEC's explanation that the Resolution then
in question did not add anything but merely reworded and rephrased the
statutory provision did not persuade the Court. With more reason here since the
COMELEC not only reworded or rephrased the statutory provision - it practically
replaced it with its own idea of what the law should be, a matter that certainly is
not within its authority. As the Court said in Villegas v. Subido:49
One last word. Nothing is better settled in the law than that a public official
exercises power, not rights. The government itself is merely an agency through
which the will of the state is expressed and enforced. Its officers therefore are
likewise agents entrusted with the responsibility of discharging its functions. As
such there is no presumption that they are empowered to act. There must be a
delegation of such authority, either express or implied. In the absence of a valid
grant, they are devoid of power. What they do suffers from a fatal infirmity. That
principle cannot be sufficiently stressed. In the appropriate language of Chief
Justice Hughes: "It must be conceded that departmental zeal may not be
permitted to outrun the authority conferred by statute." Neither the high dignity
of the office nor the righteousness of the motive then is an acceptable substitute.
Otherwise the rule of law becomes a myth. Such an eventuality, we must take
all pains to avoid.50
So it was then. So does the rule still remains the same.
d. Section 9 (a) of COMELEC Resolution No. 9615 on airtime limits also goes
against the constitutional guaranty of freedom of expression, of speech and of
the press
The guaranty of freedom to speak is useless without the ability to communicate
and disseminate what is said. And where there is a need to reach a large
audience, the need to access the means and media for such dissemination
becomes critical. This is where the press and broadcast media come along. At
the same time, the right to speak and to reach out would not be meaningful if it
is just a token ability to be heard by a few. It must be coupled with substantially
reasonable means by which the communicator and the audience could
effectively interact. Section 9 (a) of COMELEC Resolution No. 9615, with its
adoption of the "aggregate-based" airtime limits unreasonably restricts the
guaranteed freedom of speech and of the press.
Political speech is one of the most important expressions protected by the
Fundamental Law. "[F]reedom of speech, of expression, and of the press are at
the core of civil liberties and have to be protected at all costs for the sake of
democracy."51 Accordingly, the same must remain unfettered unless otherwise
justified by a compelling state interest.
In regard to limitations on political speech relative to other state interests, an
American case observed:
A restriction on the amount of money a person or group can spend on political
communication during a campaign necessarily reduces the quantity of
expression by restricting the number of issues discussed, the depth of their
exploration, and the size of the audience reached. This is because virtually
every means of communicating ideas in today's mass society requires the
expenditure of money. The distribution of the humblest handbill or leaflet entails
printing, paper, and circulation costs. Speeches and rallies generally
necessitate hiring a hall and publicizing the event. The electorate's increasing
dependence on television, radio, and other mass media for news and
information has made these expensive modes of communication indispensable
instruments of effective political speech.
The expenditure limitations contained in the Act represent substantial, rather
than merely theoretical restraints on the quantity and diversity of political
speech. The $1,000 ceiling on spending "relative to a clearly identified
candidate," 18 U.S.C. § 608(e)(l) (1970 ed., Supp. IV), would appear to exclude
all citizens and groups except candidates, political parties, and the institutional
press from any significant use of the most effective modes of communication.
Although the Act's limitations on expenditures by campaign organizations and
political parties provide substantially greater room for discussion and debate,
they would have required restrictions in the scope of a number of past
congressional and Presidential campaigns and would operate to constrain
campaigning by candidates who raise sums in excess of the spending ceiling.52
Section 9 (a) ofCOMELEC Resolution No. 9615 comes up with what is
challenged as being an unreasonable basis for determining the allowable air
time that candidates and political parties may avail of. Petitioner GMA came up
with its analysis of the practical effects of such a regulation:
5.8. Given the reduction of a candidate's airtime minutes in the New Rules,
petitioner GMA estimates that a national candidate will only have 120 minutes
to utilize for his political advertisements in television during the whole campaign
period of 88 days, or will only have 81.81 seconds per day TV exposure
allotment. If he chooses to place his political advertisements in the 3 major TV
networks in equal allocation, he will only have 27.27 seconds of airtime per
network per day. This barely translates to 1 advertisement spot on a 30-second
spot basis in television.
5.9. With a 20-hour programming per day and considering the limits of a station's
coverage, it will be difficult for 1 advertising spot to make a sensible and feasible
communication to the public, or in political propaganda, to "make known [a
candidate's] qualifications and stand on public issues".
5.10 If a candidate loads all of his 81.81 seconds per day in one network, this
will translate to barely three 30-second advertising spots in television on a daily
basis using the same assumptions above.
5.11 Based on the data from the 2012 Nielsen TV audience measurement in
Mega Manila, the commercial advertisements in television are viewed by only
39.2% of the average total day household audience if such advertisements are
placed with petitioner GMA, the leading television network nationwide and in
Mega Manila. In effect, under the restrictive aggregate airtime limits in the New
Rules, the three 30-second political advertisements of a candidate in petitioner
GMA will only be communicated to barely 40% of the viewing audience, not
even the voting population, but only in Mega Manila, which is defined by AGB
Nielsen Philippines to cover Metro Manila and certain urban areas in the
provinces of Bulacan, Cavite, Laguna, Rizal, Batangas and Pampanga.
Consequently, given the voting population distribution and the drastically
reduced supply of airtime as a result of the New Rules' aggregate airtime limits,
a national candidate will be forced to use all of his airtime for political
advertisements in television only in urban areas such as Mega Manila as a
political campaign tool to achieve maximum exposure.
5.12 To be sure, the people outside of Mega Manila or other urban areas
deserve to be informed of the candidates in the national elections, and the said
candidates also enjoy the right to be voted upon by these informed populace.53
The Court agrees. The assailed rule on "aggregate-based" airtime limits is
unreasonable and arbitrary as it unduly restricts and constrains the ability of
candidates and political parties to reach out and communicate with the people.
Here, the adverted reason for imposing the "aggregate-based" airtime limits -
leveling the playing field - does not constitute a compelling state interest which
would justify such a substantial restriction on the freedom of candidates and
political parties to communicate their ideas, philosophies, platforms and
programs of government. And, this is specially so in the absence of a clear-cut
basis for the imposition of such a prohibitive measure. In this particular instance,
what the COMELEC has done is analogous to letting a bird fly after one has
clipped its wings.
It is also particularly unreasonable and whimsical to adopt the aggregate-based
time limits on broadcast time when we consider that the Philippines is not only
composed of so many islands. There are also a lot of languages and dialects
spoken among the citizens across the country. Accordingly, for a national
candidate to really reach out to as many of the electorates as possible, then it
might also be necessary that he conveys his message through his
advertisements in languages and dialects that the people may more readily
understand and relate to. To add all of these airtimes in different dialects would
greatly hamper the ability of such candidate to express himself - a form of
suppression of his political speech.
Page 36 of 72
Respondent itself states that "[t]elevision is arguably the most costeffective
medium of dissemination. Even a slight increase in television exposure can
significantly boost a candidate's popularity, name recall and electability."54 If
that be so, then drastically curtailing the ability of a candidate to effectively reach
out to the electorate would unjustifiably curtail his freedom to speak as a means
of connecting with the people.
Finally on this matter, it is pertinent to quote what Justice Black wrote in his
concurring opinion in the landmark Pentagon Papers case: "In the First
Amendment, the Founding Fathers gave the free press the protection it must
have to fulfill its essential role in our democracy. The press was to serve the
governed, not the governors. The Government's power to censor the press was
abolished so that the press would remain forever free to censure the
Government. The press was protected so that it could bare the secrets of
government and inform the people. Only a free and unrestrained press can
effectively expose deception in government."55
In the ultimate analysis, when the press is silenced, or otherwise muffled in its
undertaking of acting as a sounding board, the people ultimately would be the
victims.
e. Section 9 (a) of Resolution 9615 is violative of the people's right to suffrage
Fundamental to the idea of a democratic and republican state is the right of the
people to determine their own destiny through the choice of leaders they may
have in government. Thus, the primordial importance of suffrage and the
concomitant right of the people to be adequately informed for the intelligent
exercise of such birthright. It was said that:
x x x As long as popular government is an end to be achieved and safeguarded,
suffrage, whatever may be the modality and form devised, must continue to be
the means by which the great reservoir of power must be emptied into the
receptacular agencies wrought by the people through their Constitution in the
interest of good government and the common weal. Republicanism, in so far as
it implies the adoption of a representative type of government, necessarily points
to the enfranchised citizen as a particle of popular sovereignty and as the
ultimate source of the established authority. He has a voice in his Government
and whenever possible it is the solemn duty of the judiciary, when called upon
to act in justifiable cases, to give it efficacy and not to stifle or frustrate it. This,
fundamentally, is the reason for the rule that ballots should be read and
appreciated, if not with utmost, with reasonable, liberality. x x x56 It has also
been said that "[ c ]ompetition in ideas and governmental policies is at the core
of our electoral process and of the First Amendment freedoms."57 Candidates
and political parties need adequate breathing space - including the means to
disseminate their ideas. This could not be reasonably addressed by the very
restrictive manner by which the respondent implemented the time limits in
regard to political advertisements in the broadcast media.
f. Resolution No. 9615 needs prior hearing before adoption
The COMELEC promulgated Resolution No. 9615 on January 15, 2013 then
came up with a public hearing on January 31, 2013 to explain what it had done,
particularly on the aggregate-based air time limits. This circumstance also
renders the new regulation, particularly on the adoption of the aggregate-based
airtime limit, questionable. It must not be overlooked that the new Resolution
introduced a radical change in the manner in which the rules on airtime for
political advertisements are to be reckoned. As such there is a need for
adequate and effective means by which they may be adopted, disseminated
and implemented. In this regard, it is not enough that they be published - or
explained - after they have been adopted.
While it is true that the COMELEC is an independent office and not a mere
administrative agency under the Executive Department, rules which apply to the
latter must also be deemed to similarly apply to the former, not as a matter of
administrative convenience but as a dictate of due process. And this assumes
greater significance considering the important and pivotal role that the
COMELEC plays in the life of the nation. Thus, whatever might have been said
in Commissioner of Internal Revenue v. Court of Appeals,58 should also apply
mutatis mutandis to the COMELEC when it comes to promulgating rules and
regulations which adversely affect, or impose a heavy and substantial burden
on, the citizenry in a matter that implicates the very nature of government we
have adopted:
It should be understandable that when an administrative rule is merely
interpretative in nature, its applicability needs nothing further than its bare
issuance for it gives no real consequence more than what the law itself has
already prescribed. When, upon the other hand, the administrative rule goes
beyond merely providing for the means that can facilitate or render least
cumbersome the implementation of the law but substantially adds to or
increases the burden of those governed, it behooves the agency to accord at
least to those directly affected a chance to be heard, and thereafter to be duly
informed, before that new issuance is given the force and effect of law.
A reading of RMC 37-93, particularly considering the circumstances under
which it has been issued, convinces us that the circular cannot be viewed simply
as a corrective measure (revoking in the process the previous holdings of past
Commissioners) or merely as construing Section 142(c)(l) of the NIRC, as
amended, but has, in fact and most importantly, been made in order to place
"Hope Luxury," "Premium More" and "Champion" within the classification of
locally manufactured cigarettes bearing foreign brands and to thereby have
them covered by RA 7654. Specifically, the new law would have its amendatory
provisions applied to locally manufactured cigarettes which at the time of its
effectivity were not so classified as bearing foreign brands. x x x In so doing, the
BIR not simply interpreted the law; verily, it legislated under its quasi-legislative
authority. The due observance of the requirements of notice, of hearing, and of
publication should not have been then ignored.59
For failing to conduct prior hearing before coming up with Resolution No. 9615,
said Resolution, specifically in regard to the new rule on aggregate airtime is
declared defective and ineffectual.
g. Resolution No. 9615 does not impose an unreasonable burden on the
broadcast industry
It is a basic postulate of due process, specifically in relation to its substantive
component, that any governmental rule or regulation must be reasonable in its
operations and its impositions. Any restrictions, as well as sanctions, must be
reasonably related to the purpose or objective of the government in a manner
that would not work unnecessary and unjustifiable burdens on the citizenry.
Petitioner GMA assails certain requirements imposed on broadcast stations as
unreasonable. It explained:
5.40 Petitioner GMA currently operates and monitors 21 FM and AM radio
stations nationwide and 8 originating television stations (including its main
transmitter in Quezon City) which are authorized to dechain national programs
for airing and insertion of local content and advertisements.
5.41 In light of the New Rules wherein a candidate's airtime minutes are applied
on an aggregate basis and considering that said Rules declare it unlawful in
Section 7( d) thereof for a radio, television station or other mass media to sell or
give for free airtime to a candidate in excess of that allowed by law or by said
New Rules:
"Section 7. Prohibited Forms of Election Propaganda -During the campaign
period, it is unlawful: x x x xxx xxx
(d) for any newspaper or publication, radio, television or cable television station,
or other mass media, or any person making use of the mass media to sell or to
give free of charge print space or air time for campaign or election propaganda
purposes to any candidate or party in excess of the size, duration or frequency
authorized by law or these rules;
xxx xxx xxx
(Emphasis supplied)
petitioner GMA submits that compliance with the New Rules in order to avoid
administrative or criminal liability would be unfair, cruel and oppressive.
x x x x.
5.43 In the present situation wherein airtime minutes shall be shared by all
television and radio stations, broadcast mass media organizations would surely
encounter insurmountable difficulties in monitoring the airtime minutes spent by
the numerous candidates for various elective positions, in real time.
5.44 An inquiry with the National Telecommunications Commission (NTC) bears
out that there are 372 television stations and 398 AM and 800 FM radio stations
nationwide as of June 2012. In addition, there are 1, 113 cable TV providers
authorized by the NTC to operate within the country as of the said date.
5.45 Given such numbers of broadcast entities and the necessity to monitor
political advertisements pursuant to the New Rules, petitioner OMA estimates
that monitoring television broadcasts of all authorized television station would
involve 7,440 manhours per day. To aggravate matters, since a candidate may
also spend his/her broadcasting minutes on cable TV, additional 281,040
manhours per day would have to be spent in monitoring the various channels
carried by cable TV throughout the Philippines. As far as radio broadcasts (both
AM and FM stations) are concerned, around 23,960 manhours per day would
have to be devoted by petitioner OMA to obtain an accurate and timely
determination of a political candidate's remaining airtime minutes. During the
campaign period, petitioner OMA would have to spend an estimated 27,494,720
manhours in monitoring the election campaign commercials of the different
candidates in the country.1âwphi1
5.46 In order to carry-out the obligations imposed by the New Rules, petitioner
OMA further estimates that it would need to engage and train 39,055 additional
persons on an eight-hour shift, and assign them all over the country to perform
the required monitoring of radio, television and cable TV broadcasts. In addition,
it would likewise need to allot radio, television, recording equipment and
computers, as well as telecommunications equipment, for this surveillance and
monitoring exercise, thus imputing additional costs to the company. Attached
herewith are the computations explaining how the afore-said figures were
derived and the conservative assumptions made by petitioner OMA in reaching
said figures, as Annex "H".
5.47 Needless to say, such time, manpower requirements, expense and effort
would have to be replicated by each and every radio station to ensure that they
have properly monitored around 33 national and more than 40,000 local
candidates' airtime minutes and thus, prevent any risk of administrative and
criminal liability.60
The Court cannot agree with the contentions of GMA. The apprehensions of the
petitioner appear more to be the result of a misappreciation of the real import of
Page 37 of 72
the regulation rather than a real and present threat to its broadcast activities.
The Court is more in agreement with the respondent when it explained that:
The legal duty of monitoring lies with the Comelec. Broadcast stations are
merely required to submit certain documents to aid the Comelec in ensuring that
candidates are not sold airtime in excess of the allowed limits. These documents
include: (1) certified true copies of broadcast logs, certificates of performance,
and certificates of acceptance, or other analogous record on specified dates
(Section 9[d][3], Resolution No. 9615, in relation to Section 6.2, R.A. 9006; and
(2) copies of all contract for advertising, promoting or opposing any political
party or the candidacy of any person for public office within five (5) days after its
signing (Section 6.3, R.A. 9006).
*****
[T]here is absolutely no duty on the broadcast stations to do monitoring, much
less monitoring in real time. GMA grossly exaggerates when it claims that the
non-existent duty would require them to hire and train an astounding additional
39,055 personnel working on eight-hour shifts all over the country.61
The Court holds, accordingly, that, contrary to petitioners' contention, the
Reporting Requirement for the COMELEC's monitoring is reasonable.
Further, it is apropos to note that, pursuant to Resolution No. 9631,62 the
respondent revised the third paragraph of Section 9 (a). As revised, the
provision now reads:
Appearance or guesting by a candidate on any bona fide newscast, bona fide
news interview, bona fide news documentary, if the appearance of the candidate
is incidental to the presentation of the subject or subjects covered by the news
documentary, or on-the-spot coverage of bona fide news events, including but
not limited to events sanctioned by the Commission on Elections, political
conventions, and similar activities, shall not be deemed to be broadcast election
propaganda within the meaning of this provision. For purposes of monitoring by
the COMELEC and ensuring that parties and candidates were afforded equal
opportunities to promote their candidacy, the media entity shall give prior notice
to the COMELEC, through the appropriate Regional Election Director (RED), or
in the case of the National Capital Region (NCR), the Education and Information
Department (EID). If such prior notice is not feasible or practicable, the notice
shall be sent within twenty-four (24) hours from the first broadcast or
publication.1awp++i1 Nothing in the foregoing sentence shall be construed as
relieving broadcasters, in connection with the presentation of newscasts, news
interviews, news documentaries, and on-the-spot coverage of news events,
from the obligation imposed upon them under Sections 10 and 14 of these
Rules."63
Further, the petitioner in G.R. No. 205374 assails the constitutionality of such
monitoring requirement, contending, among others, that it constitutes prior
restraint. The Court finds otherwise. Such a requirement is a reasonable means
adopted by the COMELEC to ensure that parties and candidates are afforded
equal opportunities to promote their respective candidacies. Unlike the
restrictive aggregate-based airtime limits, the directive to give prior notice is not
unduly burdensome and unreasonable, much less could it be characterized as
prior restraint since there is no restriction on dissemination of information before
broadcast. Additionally, it is relevant to point out that in the original Resolution
No. 9615, the paragraph in issue was worded in this wise:
Appearance or guesting by a candidate on any bona fide newscast, bona fide
news interview, bona fide news documentary, if the appearance of the candidate
is incidental to the presentation of the subject or subjects covered by the news
documentary, or on-the-spot coverage of bona fide news events, including but
not limited to events sanctioned by the Commission on Elections, political
conventions, and similar activities, shall not be deemed to be broadcast election
propaganda within the meaning of this provision. To determine whether the
appearance or guesting in a program is bona fide, the broadcast stations or
entities must show that (1) prior approval of the Commission was secured; and
(2) candidates and parties were afforded equal opportunities to promote their
candidacy. Nothing in the foregoing sentence shall be construed as relieving
broadcasters, in connection with the presentation of newscasts, news
interviews, news documentaries, and on-the-spot coverage of news events,
from the obligation imposed upon them under Sections 10 and 14 of these
Rules.64
Comparing the original with the revised paragraph, one could readily appreciate
what the COMELEC had done - to modify the requirement from "prior approval"
to "prior notice." While the former may be suggestive of a censorial tone, thus
inviting a charge of prior restraint, the latter is more in the nature of a content-
neutral regulation designed to assist the poll body to undertake its job of
ensuring fair elections without having to undertake any chore of approving or
disapproving certain expressions.
Also, the right to reply provision is reasonable
In the same way that the Court finds the "prior notice" requirement as not
constitutionally infirm, it similarly concludes that the "right to reply" provision is
reasonable and consistent with the constitutional mandate.
Section 14 of Resolution No. 9615, as revised by Resolution No. 9631, provides:
SECTION 14. Right to Reply. - All registered political parties, party-list groups
or coalitions and bona fide candidates shall have the right to reply to charges
published or aired against them. The reply shall be given publicity by the
newspaper, television, and/or radio station which first printed or aired the
charges with the same prominence or in the same page or section or in the
same time slot as the first statement.
Registered political parties, party-list groups or coalitions and bona fide
candidates may invoke the right to reply by submitting within a nonextendible
period of forty-eight hours from first broadcast or publication, a formal verified
claim against the media outlet to the COMELEC, through the appropriate RED.
The claim shall include a detailed enumeration of the circumstances and
occurrences which warrant the invocation of the right to reply and must be
accompanied by supporting evidence, such a copy of the publication or
recording of the television or radio broadcast, as the case may be. If the
supporting evidence is not yet available due to circumstances beyond the power
of the claimant, the latter shall supplement his claim as soon as the supporting
evidence becomes available, without delay on the part of the claimant. The
claimant must likewise furnish a copy of the verified claim and its attachments
to the media outlet concerned prior to the filing of the claim with the COMELEC.
The COMELEC, through the RED, shall view the verified claim within forty-eight
( 48) hours from receipt thereof, including supporting evidence, and if
circumstances warrant, give notice to the media outlet involved for appropriate
action, which shall, within forty-eight ( 48) hours, submit its comment, answer or
response to the RED, explaining the action it has taken to address the claim.
The media outlet must likewise furnish a copy of the said comment, answer or
response to the claimant invoking the right to reply.
Should the claimant insist that his/her right to reply was not addressed, he/she
may file the appropriate petition and/or complaint before the Commission on
Elections or its field offices, which shall be endorsed to the Clerk of Court.
The attack on the validity of the "right to reply" provision is primarily anchored
on the alleged ground of prior restraint, specifically in so far as such a
requirement may have a chilling effect on speech or of the freedom of the press.
Petitioner ABC states, inter alia:
5 .14 5. A "conscious and detailed consideration" of the interplay of the relevant
interests - the constitutional mandate granting candidates the right to reply and
the inviolability of the constitutional freedom of expression, speech, and the
press - will show that the Right to Reply, as provided for in the Assailed
Resolution, is an impermissible restraint on these fundamental freedoms.
5.146. An evaluation of the factors set forth in Soriano (for the balancing of
interests test) with respect to the present controversy will show that the
Constitution does not tilt the balance in favor of the Right to Reply provision in
the Assailed Resolution and the supposed governmental interest it attempts to
further.65
The Constitution itself provides as part of the means to ensure free, orderly,
honest, fair and credible elections, a task addressed to the COMELEC to
provide for a right to reply.66 Given that express constitutional mandate, it could
be seen that the Fundamental Law itself has weighed in on the balance to be
struck between the freedom of the press and the right to reply. Accordingly, one
is not merely to see the equation as purely between the press and the right to
reply. Instead, the constitutionallymandated desiderata of free, orderly, honest,
peaceful, and credible elections would necessarily have to be factored in trying
to see where the balance lies between press and the demands of a right-to-
reply.
Moreover, as already discussed by the Court in Telecommunications and
Broadcast Attorneys of the Philippines, Inc. v. Commission on Elections.67
In truth, radio and television broadcasting companies, which are given
franchises, do not own the airwaves and frequencies through which they
transmit broadcast signals and images. They are merely given the temporary
privilege of using them. Since a franchise is a mere privilege, the exercise of the
privilege may reasonably be burdened with the performance by the grantee of
some form of public service. x x x68
Relevant to this aspect are these passages from an American Supreme Court
decision with regard to broadcasting, right to reply requirements, and the
limitations on speech:
We have long recognized that each medium of expression presents special First
Amendment problems. Joseph Burstyn, Inc. v. Wilson, 343 US 495, 502-503,
96 L Ed 1098, 72 S Ct 777. And of all forms of communication, it is broadcasting
that has received the most limited First Amendment protection. Thus, although
other speakers cannot be licensed except under laws that carefully define and
narrow official discretion, a broadcaster may be deprived of his license and his
forum if the Commission decides that such an action would serve "the public
interest, convenience, and necessity." Similarly, although the First Amendment
protects newspaper publishers from being required to print the replies of those
whom they criticize, Miami Herald Publishing Co. v. Tornillo, 418 US 241, 41 L
Ed 2d 730, 94 S Ct 2831, it affords no such protection to broadcasters; on the
contrary, they must give free time to the victims of their criticism. Red Lion
Broadcasting Co. v. FCC, 395 US. 367, 23 L Ed 2d 371, 89 S Ct 1794.
The reasons for these distinctions are complex, but two have relevance to the
present case. First, the broadcast media have established a uniquely pervasive
presence in the lives of all Americans. Patently offensive, indecent material
presented over the airwaves confronts the citizen not only in public, but also in
the privacy of the home, where the individual's right to be left alone plainly
outweighs the First Amendment rights of an intruder. Rowan v. Post Office
Dept., 397 US 728, 25 L Ed 2d 736, 90 S Ct 1484. Because the broadcast
Page 38 of 72
audience is constantly tuning in and out, prior warnings cannot completely
protect the listener or viewer from unexpected program content. To say that one
may avoid further offense by turning off the radio when he hears indecent
language is like saying that the remedy for an assault is to run away after the
first blow. One may hang up on an indecent phone call, but that option does not
give the caller a constitutional immunity or avoid a harm that has already taken
place.
Second, broadcasting is uniquely accessible to children, even those too young
to read. Although Cohen's written message might have been incomprehensible
to a first grader, Pacifica's broadcast could have enlarged a child's vocabulary
in an instant. Other forms of offensive expression may be withheld from the
young without restricting the expression at its source. Bookstores and motion
picture theaters, for example, may be prohibited from making indecent material
available to children. We held in Ginsberg v. New York, 390 US 629, that the
government's interest in the "well-being of its youth" and in supporting "parents'
claim to authority in their own household" justified the regulation of otherwise
protected expression. The ease with which children may obtain access to
broadcast material, coupled with the concerns recognized in Ginsberg, amply
justify special treatment of indecent broadcasting.69
Given the foregoing considerations, the traditional notions of preferring speech
and the press over so many other values of society do not readily lend itself to
this particular matter. Instead, additional weight should be accorded on the
constitutional directive to afford a right to reply. If there was no such mandate,
then the submissions of petitioners may more easily commend themselves for
this Court's acceptance. But as noted above, this is not the case. Their
arguments simplistically provide minimal importance to that constitutional
command to the point of marginalizing its importance in the equation.
In fine, when it comes to election and the exercise of freedom of speech, of
expression and of the press, the latter must be properly viewed in context as
being necessarily made to accommodate the imperatives of fairness by giving
teeth and substance to the right to reply requirement.
WHEREFORE, premises considered, the petitions are PARTIALLY GRANTED,
Section 9 (a) of Resolution No. 9615, as amended by Resolution No. 9631, is
declared UNCONSTITUTIONAL and, therefore, NULL and VOID. The
constitutionality of the remaining provisions of Resolution No. 9615, as
amended by Resolution No. 9631, is upheld and remain in full force and effect.
In view of this Decision, the Temporary Restraining Order issued by the Court
on April 16, 2013 is hereby made PERMANENT.
SO ORDERED.
DIOSDADO M. PERALTA
Associate Justice
Republic of the Philippines
SUPREME COURT
Manila
EN BANC
G.R. No. 208062, April 07, 2015
SOCIAL WEATHER STATIONS, INC. AND PULSE ASIA, INC., Petitioners,
v. COMMISSION ON ELECTIONS, Respondent.
DECISION
LEONEN, J.:
This resolves the Petition1 for certiorari and prohibition under Rule 64, in relation
to Rule 65, of the 1997 Rules of Civil Procedure praying that respondent
Commission on Elections' Resolution No. 96742 dated April 23, 2013 be nullified
and set aside and that the Commission on Elections be permanently enjoined
from enforcing the same Resolution, as well as prosecuting Social Weather
Stations, Inc. and Pulse Asia, Inc. for violating it or otherwise compelling
compliance with it.3
Commission on Elections' (COMELEC) Resolution No. 9674 directed Social
Weather Stations, Inc. (SWS) and Pulse Asia, Inc. (Pulse Asia), as well as "other
survey firms of similar circumstance"4 to submit to COMELEC the names of all
commissioners and payors of all surveys published from February 12, 2013 to
April 23, 2013, including those of their "subscribers."5
SWS and Pulse Asia are social research and public polling firms. Among their
activities is the conduct of pre-election surveys.6
As recounted by SWS and Pulse Asia, on February 15 to February 17, 2013,
SWS conducted a pre-election survey on voters' preferences for senatorial
candidates. Thereafter, it published its findings.7 The following question was
asked in the survey:
Kung ang eleksyon ay gaganapin ngayon, sino ang pinakamalamang ninyong
iboboto bilang mga SENADOR ng PILIPINAS? Narito ang listahan ng mga
kandidato. Paki-shade o itiman po ang naaangkop na oval katabi ng pangalan
hg mga taong pinakamalamang ninyong iboboto. Maaari po kayong pumili ng
hanggang labindalawang (12) kandidato.
(LIST OF CANDIDATES OMITTED)
If the elections were held today, whom would you most probably vote for as
SENATORS of the PHILIPPINES? Here is a list of candidates. Please shade
the oval beside the name of the persons you would most likely vote for. You
may choose up to twelve (12) candidates.
(LIST OF CANDIDATES OMITTED)8 (Emphasis in the original)
On March 20, 2013, Representative Tobias M. Tiangco (Tiangco), Secretary-
General of the United Nationalist Alliance (UNA), wrote Atty. Esmeralda Ladra,
Director of COMELEC's Law Department.9 In his letter,10 Tiangco asked
COMELEC to "compel [SWS] to either comply with the directive in the Fair
Election Act and COMELEC Resolution No. 9[6]1[5] and give the names or
identities of the subscribers who paid for the [pre-election survey conducted
from February 15 to February 17, 2013], or be liable for the violation thereof, an
act constitutive of an election offense."11
Tiangco recounted that on February 28, 2013, he wrote to SWS requesting,
among others, that he "be furnished the identity of persons who paid for the [pre-
election survey conducted from February 15 to February 17, 2013] as well as
those who subscribed to it."12 Sometime in March 2013, SWS supposedly
replied to Tiangco, "furnishing [him] with some particulars about the survey but
[without] disclosing] the identity of the persons who commissioned or subscribed
to the survey."13
Acting on Tiangco's letter and on the COMELEC Law Department's
recommendation, the COMELEC En Bane issued the Order14 dated April 10,
2013 setting the matter for hearing on April 16, 2013. The same Order directed
SWS to submit its Comment within three (3) days of receipt.15 On April 12,
2013, Pulse Asia received a letter from COMELEC "requesting its
representative to attend the COMELEC hearing on 16 April 2013."16
SWS and Pulse Asia recounted that during the hearing, COMELEC Chairman
Sixto S. Brillantes, Jr. (COMELEC Chairman Brillantes) stated that the
proceeding was merely a clarificatory hearing and not a formal hearing or an
investigation.17
On April 23, 2013, COMELEC issued the assailed Resolution No. 9674. The
entire dispositive portion of this Resolution reads:
WHEREFORE, premises considered, the Commis[s]ion RESOLVED, as it
hereby RESOLVES, to DIRECT the SWS, Pulse Asia and other survey firms of
similar circumstance to submit within three (3) days from receipt of this
Resolution the names of all commissioners and payors of surveys published
from February 12, 2013 to the date of the promulgation of this Resolution for
copying and verification by the Commission. The submission shall include the
names of all "subscribers" of those published surveys. Such information/data
shall be for the exclusive and confidential use of the Commission;
RESOLVED FURTHER, that all surveys published subsequent to the
promulgation of this Resolution must be accompanied by all the information
required in Republic Act no. 9006, including the names of commissioners,
payors and subscribers.
This resolution shall take effect immediately after publication.
A violation of these rules shall constitu[t]e an election offense as provided in
Republic Act no. 9006, or the Fair Election Act.18 (Emphasis in the original)
As basis for Resolution No. 9674, COMELEC cited Article IX-C, Section 2(1)19
of the 1987 Constitution and Sections 5.1 to 5.320 of Republic Act No. 9006,
otherwise known as the Fair Election Act, as implemented by COMELEC
Resolution No. 9615.21
SWS and Pulse Asia alleged that following the issuance of Resolution No. 9674
and as of their filing before this court of the present Petition, they had not been
furnished copies of Resolution No. 9674.22 (They emphasized that while a
certified true copy of this Resolution was attached to their Petition, this was a
copy which they themselves secured "for the purpose of complying.with the
requirement that Rule 65 petitions must be accompanied by a certified true copy
of the assailed order or resolution[.]"23)
In the letter24 dated April 30, 2013, SWS and Pulse Asia informed COMELEC
Chairman Brillantes that they had not received a copy of Resolution No. 9674.
They also articulated their view that Resolution No. 9674 was tainted with
irregularities, having been issued ultra vires (i.e., in excess of what the Fair
Election Act allows) and in violation of the non-impairment of contracts clause
of the Constitution. They also expressed their intention to bring the matter before
this court on account of these supposed irregularities. Thus, they requested that
COMELEC defer or hold in abeyance Resolution No. 9674's enforcement.25
On May 8, 2013, the COMELEC Law Department issued a Notice26 to SWS
(and also to Pulse Asia) directing it to furnish COMELEC with a list of the names
of all "commissioners, subscribers, and payors of surveys published from
February 12, 2013 until April 23, 2013."27 SWS was warned that failure to
comply with the Notice shall constitute an election offense punishable under the
Omnibus Election Code.28
Page 39 of 72
On July 1, 2013, COMELEC issued a Subpoena29 notifying SWS and Pulse
Asia that a Complaint "for violation of Section 264[,] par. 1 and 2 of the Omnibus
Election Code30 in relation to R.A. 9006"31 was filed against them. (This was
docketed as E.O. Case No. 13-222). They were also directed to appear and to
submit their counter-affidavits and other supporting documents at the hearing
set on August 6, 2013.32
SWS and Pulse Asia maintained that before receiving the Subpoena, they were
never informed that a criminal case had been filed against them. They added
that they were never furnished copies of the relevant criminal Complaint.33
On July 26, 2013, petitioners Social Weather Stations, Inc. and Pulse Asia, Inc.
filed the present Petition.34 They assail Resolution No. 9674 as having been
issued ultra vires. They are of the position that Resolution No. 9674, in requiring
the submission of information on subscribers, is in excess of what the Fair
Election Act requires.35 Likewise, they, assert that Resolution No. 9674
transgresses the Fair Election Act in making itself executory immediately after
publication.36 Moreover, they claim that it violates the non-impairment of
contracts clause of the Constitution,37 and was enforced in violation of their
right to due process (as they were charged with its violation despite not having
been properly served with copies of the complaint filed against them).38
Petitioners pray for the issuance of a temporary restraining order and/or writ of
preliminary injunction in the interim.39
In this court's July 30, 2013 Resolution,40 COMELEC was required to file a
Comment on the Petition. In the same Resolution, this court issued a temporary
restraining order "enjoining the enforcement of COMELEC Resolution No. 9674
with respect to submission of the names of regular subscribers but not to the
submission of (1) the names of specific subscribers for the limited period of
February 12, 2013 to April 23, 2013 who have paid a substantial amount of
money for access to survey results and privileged survey data; and (2) the
names of all commissioners and payors of surveys published within the same
period."41
On October 10, 2013, COMELEC filed its Comment.42 On February 12, 2014,
petitioners filed their Joint Reply.43
In this court's February 18, 2014 Resolution,44 the present Petition was given
due course, and the parties were directed to file their memoranda. Petitioners
complied on May 16, 201445 and COMELEC on June 25, 2014.46
For resolution are the following issues:
First, whether Resolution No. 9674 is invalid in that it requires the disclosure of
the names of "subscribers" of election surveys;
Second, whether the rights of petitioners to free speech will be curtailed by the
requirement to submit the names of their subscribers;
Third, whether Resolution No. 9674, insofar as it compels petitioners to submit
the names of their subscribers, violates the constitutional proscription against
the impairment of contracts (Article II, Section 10);
Fourth, whether at the time petitioners were required by COMELEC to reveal
the names of the subscribers to their election surveys, Resolution No. 9674 was
already in force and effect; and
Lastly, whether COMELEC deprived petitioners of due process of law when it:
a) failed to provide them with a copy of Resolution No. 9674 and the criminal
complaint for an election offense; and
b) refused to specify the election offense under which they were being
prosecuted.
We sustain the validity of Resolution No. 9674. The names of those who
commission or pay for election surveys, including subscribers of survey firms,
must be disclosed pursuant to Section 5.2(a) of the Fair Election Act. This
requirement is a valid regulation in the exercise of police power and effects the
constitutional policy of "guarantee[ing] equal access to opportunities for public
service[.]"47 Section 5.2(a)'s requirement of disclosing subscribers neither
curtails petitioners' free speech rights nor violates the constitutional proscription
against the impairment of contracts.
However, it is evident that Resolution No. 9674 was promulgated in violation of
the period set by the Fair Election Act. Petitioners were also not served a copy
of Resolution No. 9674 with which they were asked to comply. They were neither
shown nor served copies of the criminal Complaint subject of E.O. Case No. 13-
222. Petitioners' right to due process was, thus, violated.
Petitioners assail Resolution No. 9674's requirement of submission of names of
subscribers, including those who did not commission or pay for a specific survey
or cause its publication, for being ultra vires. They maintain that the Fair Election
Act "as it was written by Congress covers only those who commission or pay for
a particular election survey, and requires disclosure of their names only when
that particular survey is published."48 From this, they add that COMELEC
exceeded its authority — "creating] an election offense where there was none
before"49 — in considering as an election offense any violation of Resolution
No. 9674.
COMELEC, for its part, insists on the "wide latitude of discretion"50 granted to
it in the performance of its constitutional duty to "[e]nforce and administer all
laws and regulations relative to the conduct of an election[.]"51 It adds that "as
the specialized constitutional body charged with the enforcement and
administration of election laws,"52 its contemporaneous construction of Section
5.2(a) of the Fair Election Act is "entitled to great weight and respect."53 Citing
the supposed legislative intent of Section 5.2 as "broaden[ing] the subject of
disclosure,"54 COMELEC claims that Section 5.2(a) "draws no distinction
between the direct payors and the indirect payors of the survey."55 It adds that
requiring the disclosure of survey subscribers addresses the requirement of
reporting election expenditures by candidates and political parties, thereby
helping COMELEC check compliance with this requirement.56
Section 5.2(a) of the Fair Election Act, read in a manner consistent not only with
its text but also with the purpose for which it, along with the Fair Election Act,
was adopted, sustains COMELEC's position.
Republic Act No. 9006 was adopted with the end in mind of "guarantee[ing] or
ensuring] equal opportunity for public service"57 and to this end, stipulates
mechanisms for the "supervision] or regulation of] the enjoyment or utilization of
all franchises or permits for the operation of media of communication or
information[.]"58 Hence, its short title: Fair Election Act.
Situated within the constitutional order, the Fair Election Act provides means to
realize the policy articulated in Article II, Section 26 of the 1987 Constitution to
"guarantee equal access to opportunities for public service[.]" Article II, Section
26 models an understanding of Philippine political and electoral reality. It is not
merely hortatory or a statement of value. Among others, it sums up an aversion
to the perpetuation of political power through electoral contests skewed in favor
of those with resources to dominate the deliberative space in any media.
Apart from making real Article II, Section 26's constitutional policy, the Fair
Election Act represents the legislature's compliance with the requirement of
Article XIII, Section 1: "Congress . . . give[s] highest priority to the enactment of
measures that. . . reduce . . . political inequalities ... by equitably diffusing wealth
and political power for the common good."59
Moreover, the constitutional desire to "guarantee equal access to opportunities
for public service"60 is the same intent that animates the Constitution's
investiture in COMELEC of the power to "supervise or regulate the enjoyment
or utilization of all franchises or permits for the operation of transportation and
other public utilities, media of communication or information, all grants, special
privileges, or concessions granted by the Government or any subdivision,
agency, or instrumentality thereof, including any government-owned or
controlled corporation or its subsidiary."61
Specific provisions in the Fair Election Act regulate the means through which
candidates for elective public office, as well as political parties and groups
participating in the party-list system, are able to make themselves known to
voters, the same means through which they earn votes.
Section 3 permits the use of lawful election propaganda.62 Section 4 regulates
published or printed, and broadcast election propaganda.63 Section 6 governs
access to media time and space.64 Sections 7 and 8 provide for COMELEC's
competencies (i.e., affirmative action, and the so-called "COMELEC Space" and
"COMELEC Time") that enable it to equalize candidates' exposure to voters.65
Section 9 regulates venues for the posting of campaign materials.66 Section 10
provides for parties' and candidates' right to reply.67 Section 11 requires media
outlets to make available the use of their facilities for election propaganda at
discounted rates.68
The Fair Election Act also governs published surveys during elections.
Section 5.1 defines election surveys-as "the measurement of opinions and
perceptions of the voters as regards a candidate's popularity, qualifications,
platforms or a matter of public discussion in relation to the election, including
voters' preference for candidates or publicly discussed issues during the
campaign period[.]" Sections 5.2 and 5.3 provide regulations that facilitate
transparency with respect to ' election surveys. Section 5.469 is no longer in
effect, having been declared unconstitutional in this court's May 5, 2001
Decision in Social Weather Stations and Kamahalan Publishing Corp. v.
COMELEC.70 Section 5.571 pertains to exit polls.
Section 5.2 enumerates the information that a person publishing an election
survey must publish along with the survey itself:
5.2 During the election period, any person, natural as well as juridical, candidate
or organization who publishes a survey must likewise publish the following
information:chanroblesvirtuallawlibrary
The name of the person, candidate, party or. organization who commissioned
or paid for the survey;
The name of the person, polling firm or survey organization who conducted the
survey;
The period during which the survey was conducted, the methodology used,
including the number of individual respondents and the areas from which they
were selected, and the specific questions asked;
The margin of error of the survey;
For each question for which the margin of error is greater than that reported
under paragraph (d), the margin of error for that question; and
A mailing address and telephone number, indicating it as an address or
telephone number at which the sponsor can be contacted to obtain a written
report regarding the survey in accordance with Subsection 5.3. (Emphasis
supplied)
Section 5.3 facilitates the inspection, copying, and verification not only of an
election survey but also of the raw data used as bases for its conclusions:
Page 40 of 72
5.3 The survey together with raw data gathered to support its conclusions shall
be available for inspection, copying and verification by the COMELEC or by a
registered political party or a bona fide candidate, or by any COMELEC-
accredited citizen's arm. A reasonable fee sufficient to cover the costs of
inspection, copying and verification may be charged.
As with all the other provisions of the Fair Election Act, Section 5 is a means to
guarantee equal access to the deliberative forums essential to win an elective
public office. Any reading of Section 5 and of its individual components, such as
Section 5.2(a), cannot be divorced from this purpose.
The inclusion of election surveys in the list of items regulated by the Fair Election
Act is a recognition that election surveys are not a mere descriptive aggregation
of data. Publishing surveys are a means to shape the preference of voters,
inform the strategy of campaign machineries, and ultimately, affect the outcome
of elections. Election surveys have a similar nature as election propaganda.
They are expensive, normally paid for by those interested in the outcome of
elections, and have tremendous consequences on election results.
II
Views vary on the precise extent to which surveys or "polls" shape voter
preferences, if at all.
Election surveys have been critiqued for amplifying the notion of an election as
a "horse race"72 and for reducing elections to the lowest common denominator
of percentage points or a candidate's erstwhile share in the vote market rather
than focusing on issues, principles, programs, and platforms.
Several possible, albeit conflicting, effects of surveys on voter behavior have
been postulated:
First, there is the bandwagon effect where "electors rally to support the
candidate leading in the polls."73 This "assumes that knowledge of a popular
'tide' will likely change voting intentions in [favor] of the frontrunner, that many
electors feel more comfortable supporting a popular choice or that people
accept the perceived collective wisdom of others as being enough reason for
supporting a candidate."74
Second, there is the underdog effect where "electors rally to support the
candidate trailing in the polls."75 This shift can be motivated by sympathy for
the perceived underdog.76
Third, there is the motivating effect where "individuals who had not intended to
vote are persuaded to do so,"77 having been alerted to the fact of an election's
imminence.78
Fourth, there is also the demotivating effect where "voters abstain from voting
out of certainty that their candidate or party will win[.]"79
Fifth, there are reports of a behavior known as strategic voting where "voting is
influenced by the chances of winning[.]"80
Lastly, there is also the theory of a free-will effect where "voters cast their ballots
to prove the polls wrong[.]"81
Election surveys published during election periods create the "politics of
expectations."82 Voters act in accordance with what is perceived to be an
existing or emerging state of affairs with respect to how candidates are faring.
Of the six (6) effects, the bandwagon effect has a particular resonance and has
been of concern. Surveys, or opinion polls, "by directly influencing individual-
level support . . . , can be self-fulfilling prophecies and produce opinion
cascades."83 "[A] poll's prediction may come to pass not only because it
measures public opinion but also because it may influence public opinion."84
The bandwagon effect is of particular concern because of the observed human
tendency to conform. Three (3) mechanisms through which survey results may
induce conformity have been posited:
(1) normative social influence, or people's desire to adopt the majority position
in order to feel liked and accepted or believe they are on the winning team;
(2) informational social influence, or people learning from the 'wisdom of crowds'
via social proof because they 'believe that others' interpretation of an ambiguous
situation is more accurate . . . and will help [them] choose an appropriate course
of action'; and
(3) people resolving cognitive dissonance by switching to the side they infer is
going to win based on the poll.85cralawlawlibrary
Likewise, it has been argued that the bandwagon effect is but the obverse of the
so-called false-consensus effect or false-consensus bias:
The bandwagon effect, a form of conformity, is the mirror image of the false
consensus effect, where people misperceive that their own behaviors and
attitudes are more popular than they actually are. In the political domain, one
mechanism underlying the false consensus effect is wishful thinking - people
gaining utility from thinking their candidate is ahead or their opinions are
popular.86
The bandwagon effect induced by election surveys assumes even greater
significance in considering the health of a democracy.
Integral to our appreciation of democracy is the recognition that democracy is
fundamentally deliberative. It is rooted in the exchange and dialogue of ideas.
Accordingly, free expression, not least of all from the minority and from those
who do not conform, i.e., those who dissent and criticize, is indispensable:
Proponents of the political theory on "deliberative democracy" submit that
"substantial, open, [and] ethical dialogue is a critical, and indeed defining,
feature of a good polity." This theory may be considered broad, but it definitely
"includes [a] collective decision making with the participation of all who will be
affected by the decision." It anchors on the principle that the cornerstone of
every democracy is that sovereignty resides in the people. To ensure order in
running the state's affairs, sovereign powers were delegated and individuals
would be elected or nominated in key government positions to represent the
people. On this note, the theory on deliberative democracy may evolve to the
right of the people to make government accountable. Necessarily, this includes
the right of the people to criticize acts made pursuant to governmental functions.
Speech that promotes dialogue on public affairs, or airs out grievances and
political discontent, should thus be protected and encouraged.
Borrowing the words of Justice Brandeis, "it is hazardous to discourage thought,
hope and imagination; that fear breeds repression; that repression breeds hate;
that hate menaces stable government; that the path of safety lies in the
opportunity to discuss freely supposed grievances and proposed remedies."
In this jurisdiction, this court held that "[t]he interest of society and the
maintenance of good government demand a full discussion of public affairs."
This court has, thus, adopted the principle that "debate on public issues should
be uninhibited, robust, and wide open . . . [including even] unpleasantly sharp
attacks on government and public officials."87cralawlawlibrary
However, "conformity pressures can suppress minority opinion."88 The
bandwagon effect conjures images of an impregnable majority, thereby tending
to push farther toward the peripheries those who are already marginalized.
Worse, the bandwagon effect foments the illusion of a homogenous monolith
denying the very existence of those in the minority. This undermines the
"normative conceptions of democracy"89 substituting the democratic dialogue
with acquiescence to perceived or projected orthodoxy.
Surveys, far from being a passive "snapshot of many viewpoints held by a
segment of the population at a given time,"90 can warp existing public opinion
and can mould public opinion. They are constitutive. Published election surveys
offer valuable insight into public opinion not just because they represent it but
more so because they also tend to make it.
Appreciating this tendency to both entrench and marginalize is of acute
relevance in the context of Philippine political reality. This is the same reality
that our policymakers, primarily the framers of the Constitution, have seen fit to
address.
III
The constitutional dictum to "guarantee equal access to opportunities for public
service"91 and (even more specifically and explicitly) to "prohibit political
dynasties"92 does not exist in a vacuum.
Politics in the Philippines has been criticized as "a lucrative means of self-
aggrandizement."93 Ours is an exclusive system that perpetuates power and
provides sanctuary to those who have already secured their place. Traditional
Filipino politics connotes elite families that, with the state, are "engaged in a
reciprocal relationship that constantly defines and redefines both."94 As
recounted by Alfred McCoy, this reciprocal relationship, typified by rent-seeking
(i.e., "taking advantage of their access to state privileges to expand proprietary
wealth"95), is a vicious cycle propagated for as long as the Philippines has been
a republic: "The emergence of the Republic as a weak postcolonial state
augmented the power of rent-seeking political families — a development that
further weakened the state's own resources."96
The Philippines, as it emerged in the wake of Ferdinand Marcos' presidency and
the adoption of the 1987 Constitution, saw the "celebritification"97 of political
office. On the legislature and studying emerging contrasts in the composition of
its two chambers — the Senate and the House of Representatives — it has
been noted:
The old political families, however are not as strong in the Senate as they are in
the House. This could be read, if not as a total repudiation by voters of family
power, then at least as an attempt by them to tap other sources of national
leadership. Celebrities and military and police officers have emerged as
alternatives to traditional politicians. It could be that these new men and women
have captured the popular imagination or that they are more in tune with the
public pulse. But their emergence could very well be seen as an indication of
the paucity of choices: Political parties, for one, have not succeeded in proffering
a wider range of options to an electorate weary of trapos.98
This celebritification nurtures misleading notions of an enhanced or healthier
democracy, one that opens avenues to a crop of political leaders not belonging
to oligarchic families. Viewed critically however, this is nothing more than a pipe
dream. New elites now share the political stage with the old. The tension
between two contrary tendencies actually serves to preserve the status quo of
Page 41 of 72
elitism — an expanded elitism perhaps, but elitism no less. To evoke a truism,
"the more things change, the more they stay the same":
But the "celebritification" of the Senate can also be interpreted as the
democratization of an exclusive body once reserved only for the very rich, the
politically experienced, and the intellectually brilliant. In a sense, the bar of entry
has been lowered, and anyone with national renown can contest a seat in a
chamber once famous for sharp debates and polysyllabic peroration.
The main criterion for a Senate seat is now name recall. This is where celebrities
have the edge even over older political families with bankable names. . . .
....
The diminishing clout of old families in the Senate—and their continued
dominance in the House—shows the push and pull of two contrary tendencies.
The first tendency is toward the new: The importance of name recall in national
elections taking place in a media-inundated environment makes it easier for
movie and media personalities, and harder for old-style politicians, to be elected.
The second tendency is veering toward the old: At the district level, trapo-style
patronage and machine politics remain deeply entrenched, giving political
families the edge in elections."99
Thus, where once there was elitism solely along lines of kinship — Alfred
McCoy's so-called "anarchy of families" — now there is also elitism demarcated
by name recall, populist projection, and media exposure, arguably, an "anarchy
of celebrities."
Certainly, it is not the business of this court to engage in its own determination
of the wisdom of policy. Nevertheless, having to grapple with the tasks of
adjudication and interpretation, it has become necessary to bring to light the
intent that underlies the disputed statutory provision, as well as the constitutional
regime and social context, in which this provision is situated.
To reiterate, the inclusion of published election surveys in a statute that
regulates election propaganda and other means through which candidates may
shape voter preferences is itself telling of the recognition that published election
surveys, too, may influence voter preferences. This inclusion is similarly telling
of a recognition that, left unregulated, election surveys can undermine the
purposes of ensuring "fair" elections. These recognitions are embedded in the
Fair Election Act; they are not judicial constructs. In adjudicating with these' as
bases, this court is merely adhering to the legislative imperative.
IV
It is necessary that the Fair Election Act be appreciated for what it is: a
mechanism for ensuring equality. The Fair Election Act is a means to effect the
"necessary condition" to a genuine democratic dialogue, to realizing a
deliberative democracy. The concept of this "necessary condition" was
previously considered by this court in Diocese of Bacolod v. COMELEC:100
In his seminal work, Repressive Tolerance, philosopher and social theorist
Herbert Marcuse recognized how institutionalized inequality exists as a
background limitation, rendering freedoms exercised within such limitation as
merely "protecting] the already established machinery of discrimination." In his
view, any improvement "in the normal course of events" within an unequal
society, without subversion, only strengthens existing interests of those in power
and control.
In other words, abstract guarantees of fundamental rights like freedom of
expression may become meaningless if not taken in a real context. This
tendency to tackle rights in the abstract compromises liberties. In his words:
Liberty is selfi-determination, autonomy—this is almost a tautology, but a
tautology which results from a whole series of synthetic judgments. It stipulates
the ability to determine one's own life: to be able to determine what to do and
what not to do, what to suffer and what not. But the subject of this autonomy is
never the contingent, private individual as that which he actually is or happens
to be; it is rather the individual as a human being who is capable of being free
with the others. And the problem of making possible such a harmony between
every individual liberty and the other is not that of finding a compromise between
competitors, or between freedom and law, between general and individual
interest, common and private welfare in an established society, but of creating
the society in which man is no longer enslaved by institutions which vitiate self-
determination from the beginning. In other words, freedom is still to be created
even for the freest of the existing societies.
Marcuse suggests that the democratic argument — with all opinions presented
to and deliberated by the people — "implies a necessary condition, namely, that
the people must be capable of deliberating and choosing on the basis of
knowledge, that they must have access to authentic information, and that, on
this basis, their evaluation must be the result of autonomous thought'." He
submits that "[different opinions and 'philosophies' can no longer compete
peacefully for adherence and persuasion on rational grounds: the 'marketplace
of ideas' is organized and delimited by those who determine the national and
the individual interest."
A slant toward left manifests from his belief that "there is a 'natural right' of
resistance for oppressed and overpowered minorities to use extralegal means
if the legal ones have proved to be inadequate." Marcuse, thus, stands for an
equality that breaks away and transcends from established hierarchies, power
structures, and indoctrinations. The tolerance of libertarian society he refers to
as "repressive tolerance."101

What is involved here is petitioners' freedom of speech and of expression, that
is, to publish their findings. More specifically, what is involved here is their right
to political speech, that which "refers to speech 'both intended and received as
a contribution to public deliberation about some issue,' 'foster[ing] informed and
civic-minded deliberation."102
The nature of the speech involved, as well as the Fair Election Act's purpose of
ensuring political equality, calls into operation the equality-based approach to
weighing liberty to express vis-a-vis equality of opportunities. As explained in
Diocese of Bacolod:103
In an equality-based approach, "politically disadvantaged speech prevails over
regulation[,] but regulation promoting political equality prevails over speech."
This view allows the government leeway to redistribute or equalize 'speaking
power,' such as protecting, even implicitly subsidizing, unpopular or dissenting
voices often systematically subdued within society's ideological ladder. This
view acknowledges that there are dominant political actors who, through
authority, power, resources, identity, or status, have capabilities that may drown
out the messages of others. This is especially true in a developing or emerging
economy that is part of the majoritarian world like ours.
...
The scope of the guarantee of free expression takes into consideration the
constitutional respect for human potentiality and the effect of speech. It valorizes
the ability of human beings to express and their necessity to relate. On the other
hand, a complete guarantee must also take into consideration the effects it will
have in a deliberative democracy. Skewed distribution of resources as well as
the cultural hegemony of the majority may have the effect of drowning out the
speech and the messages of those in the minority. In a sense, social inequality
does have its effect on the exercise and effect of the guarantee of free speech.
Those who have more will have better access to media that reaches a wider
audience than those who have less. Those who espouse the more popular ideas
will have better reception than the subversive and the dissenters of society. To
be really heard and understood, the marginalized view normally undergoes its
own degree of struggle.
The traditional view has been to tolerate the viewpoint of the speaker and the
content of his or her expression. This view, thus, restricts laws or regulation that
allows public officials to make judgments of the value of such viewpoint or
message content. This should still be the principal approach.
However, the requirements of the Constitution regarding equality in opportunity
must provide limits to some expression during electoral campaigns.104
The required judicial temperament in appraising speech in the context of
electoral campaigns which is principally designed to endorse a candidate, both
by candidates and / or political parties, on the one hand, and private citizens, on
the other, has thus been articulated:
Thus clearly, regulation of speech in the context of electoral campaigns made
by candidates or the members of their political parties or their political parties
may be regulated as to time, place, and manner. This is the effect of our rulings
in Osmeña v. COMELEC and National Press Club v. COMELEC.
Regulation of speech in the context of electoral campaigns made by persons
who are not candidates or who do not speak as members of a political party
which are, taken as a whole, principally advocacies of a social issue that the
public must consider during elections is unconstitutional. Such regulation is
inconsistent with the guarantee of according the fullest possible range of
opinions coming from the electorate including those that can catalyze candid,
uninhibited, and robust debate in the criteria for the choice of a candidate.
This does not mean that there cannot be a specie of speech by a private citizen
which will not amount to an election paraphernalia to be validly regulated by law.
Regulation of election paraphernalia will still be constitutionally valid if it reaches
into speech of persons who are not candidates or who do not speak as members
of a political party if they are not candidates, only if what is regulated is
declarative speech that, taken as a whole, has for its principal object the
endorsement of a candidate only. The regulation (a) should be provided by law,
(b) reasonable, (c) narrowly tailored to meet the objective of enhancing the
opportunity of all candidates to be heard and considering the primacy of the
guarantee of free expression, and (d) demonstrably the least restrictive means
to achieve that object. The regulation must only be with respect to the time,
place, and manner of the rendition of the message. In no situation may the
speech be prohibited or censored on the basis of its content. For this purpose,
it will not matter whether the speech is made with or on private property.105
[Emphasis in the original]
V First, verba legis or the so-called plain-meaning rule applies only when the law
Concededly, what is involved here is not election propaganda per se. Election
surveys, on their face, do not state or allude to preferred candidates. As a
means, election surveys are ambivalent. To an academician, they are an
aggrupation of data. To a journalist, they are matters for reportage. To a
historian, they form part of a chronicle. Election surveys thus become
unambiguous only when viewed in relation to the end for which they are
employed. To those whose end is to get a candidate elected, election surveys,
when limited to their own private consumption, are a means to formulate
strategy. When published, however, the tendency to shape voter preferences
comes into play. In this respect, published election surveys partake of the nature
Page 42 of 72
of election propaganda. It is then declarative speech in the context of an
electoral campaign properly subject to regulation. Hence, Section 5.2 of the Fair
Election Act's regulation of published surveys.
We thus proceed to evaluate Resolution No. 9674's requirement of disclosing
the names of subscribers to election surveys in light of the requisites for valid
regulation of declarative speech by private entities in the context of an election
campaign:
First, the text of Section 5.2(a) of the Fair Election Act supports the inclusion of
subscribers among those persons who "paid for the survey[.]"106 Thus,
Resolution No. 9674 is a regulation finding basis in statute.
COMELEC correctly points out that in Section 5.2(a) of the Fair Election Act,
those who "commissioned" and those who "paid for" the published survey are
separated by the disjunctive term "or."107 This disassociates those who
"commissioned" from those who "paid for" and identifies them as alternatives to
each other.108 Section 5.2(a) thus requires the disclosure of two (2) classes of
persons: "[first,] those who commissioned or sponsored the survey; and
[second,] those who paid for the survey."109
The second class makes no distinction between those who pay for a specific
survey and those who pay for election surveys in general. Indeed, subscribers
do not escape the burden of paying for the component articles comprising a
subscription. They may pay for them in aggregate, but they pay for them just the
same. From the text of Section 5.2(a), the legislative intent or regulatory concern
is clear: "those who have financed, one way or another, the [published]
survey"110 must be disclosed.
Second, not only an important or substantial state interest but even a compelling
one reasonably grounds Resolution No. 9674's inclusion of subscribers to
election surveys. Thus, regardless of whether an intermediate or a strict
standard is used, Resolution No. 9674 passes scrutiny.
It is settled that constitutionally declared principles are a compelling state
interest:
Compelling governmental interest would include constitutionally declared
principles. We have held, for example, that "the welfare of children and the
State's mandate to protect and care for them, as parens patriae, constitute a
substantial and compelling government interest in regulating . . . utterances in
TV broadcast."111
Here, we have established that the regulation of election surveys effects the
constitutional policy, articulated in Article II, Section 26, and reiterated and
affirmed in Article IX-C, Section 4 and Article XIII, Section 26 of the 1987
Constitution, of "guarantee[ing] equal access to opportunities for public
service[.]"112
Resolution No. 9674 addresses the reality that an election survey is formative
as it is descriptive. It can be a means to shape the preference of voters and,
thus, the outcome of elections. In the hands of those whose end is to get a
candidate elected, it is a means for such end and partakes of the nature of
election propaganda. Accordingly, the imperative of "fair" elections impels their
regulation.
Lastly, Resolution No. 9674 is "narrowly tailored to meet the objective of
enhancing the opportunity of all candidates to be heard and considering the
primacy of the guarantee of free expression"113 and is "demonstrably the least
restrictive means to achieve that object."114
While it does regulate expression (i.e., petitioners' publication of election
surveys), it does not go so far as to suppress desired expression. There is
neither prohibition nor censorship specifically aimed at election surveys. The
freedom to publish election surveys remains. All Resolution No. 9674 does is
articulate a regulation as regards the manner of publication, that is, that the
disclosure of those who commissioned and/or paid for, including those
subscribed to, published election surveys must be made.cralawlawlibrary
VI
Petitioners harp on what they claim to be Section 5.2(a)'s "plain meaning" and
assert that there is no room to entertain COMELEC's construction of Section
5.2(a).115
It has been said that "[a] cardinal rule in statutory construction is that when the
law is clear and free from any doubt or ambiguity, there is no room for
construction or interpretation. There is only room for application."116
Clarifications, however, are in order.
is completely clear, such that there is absolutely no room for interpretation. Its
application is premised on a situation where the words of the legislature are
clear that its intention, insofar as the facts of a case demand from the point of
view of a contemporary interpretative community, is neither vague nor
ambiguous. This is a matter of judicial appreciation. It cannot apply merely on a
party's contention of supposed clarity and lack of room for interpretation.
This is descriptive of the situation here.
Interestingly, both COMELEC and petitioners appeal to what they (respectively)
construe to be plainly evident from Section 5.2(a)'s text: on the part of
COMELEC, that the use of the words "paid for" evinces no distinction between
direct purchasers and those who purchase via subscription schemes; and, on
the part of petitioners, that Section 5.2(a)'s desistance from actually using the
word "subscriber" means that subscribers are beyond its contemplation.117 The
variance in the parties' positions, considering that they are both banking on what
they claim to be the Fair Election Act's plain meaning, is the best evidence of an
extant ambiguity.
Second, statutory construction cannot lend itself to pedantic rigor that foments
absurdity. The dangers of inordinate insistence on literal interpretation are
commonsensical and need not be belabored. These dangers are by no means
endemic to legal interpretation. Even in everyday conversations, misplaced
literal interpretations are fodder for humor. A fixation on technical rules of
grammar is no less innocuous. A pompously doctrinaire' approach to text can
stifle, rather than facilitate, the legislative wisdom that unbridled textualism
purports to bolster.118
Third, the assumption that there is, in all cases, a universal plain language is
erroneous. In reality, universality and uniformity of meaning is a rarity. A contrary
belief wrongly assumes that language is static.
The more appropriate and more effective approach is, thus, holistic rather than
parochial: to consider context and the interplay of the historical, the
contemporary, and even the envisioned. Judicial interpretation entails the
convergence of social realities and social ideals. The latter are meant to be
effected by the legal apparatus, chief of which is the bedrock of the prevailing
legal order: the Constitution. Indeed, the word in the vernacular that describes
the Constitution — saligan — demonstrates this imperative of constitutional
primacy.
Thus, we refuse to read Section 5.2(a) of the Fair Election Act in isolation. Here,
we consider not an abstruse provision but a stipulation that is part of the whole,
i.e., the statute of which it is a part, that is aimed at realizing the ideal of fair
elections. We consider not a cloistered provision but a norm that should have a
present authoritative effect to achieve the ideals of those who currently read,
depend on, and demand fealty from the Constitution.cralawlawlibrary
VII
We note with favor COMELEC's emphasis on the "wide latitude of
discretion"119 granted to it in the performance of its constitutional duty to
"[e]nforce and administer all laws arid regulations relative to the conduct of an
election[.]"120 But this is with the caution that it does not reach "grave abuse of
discretion[.]121
Alliance for Nationalism and Democracy v. COMELEC122 had the following to
say regarding factual findings made by COMELEC, an independent
constitutional organ:
[T]he rule that factual findings of administrative bodies will not be disturbed by
courts of justice except when there is absolutely no evidence or no substantial
evidence in support of such findings should be applied with greater force when
it concerns the COMELEC, as the framers of the Constitution intended to place
the COMELEC—created and explicitly made independent by the Constitution
itself—on a level higher than statutory administrative organs.123
Proceeding from this, we emphasize that this norm of deference applies not only
to factual findings. This applies with equal force to independent constitutional
organs' general exercise of their functions. The constitutional placing of
independent constitutional organs on a plane higher than those of administrative
agencies created only by statute is not restricted to competence in fact-finding.
It extends to all purposes for which the Constitution created them.
We reiterate, however, that our recognition of this deferential norm is made with
caution. This rule of deference does not give independent constitutional organs,
like COMELEC, license to gravely abuse their discretion. With respect to rule-
making, while the wisdom of "subordinate legislation" or the rule-making power
of agencies tasked with the administration of government is acknowledged, rule-
making agencies are not given unfettered power to promulgate rules. As
explained in Gerochi v. Department of Energy,124 it is imperative that
subordinate legislation "be germane to the objects and purposes of the law and
that the regulation be not in contradiction to, but in conformity with, the standards
prescribed by the law."125 A regulation that purports to effect a statute but goes
beyond the bounds of that statute is ultra vires; it is in excess of the rule-making
agency's competence. Thus, it is void and ineffectual.
This is not the case here. There is no grave abuse of discretion. Resolution No.
9674 serves a constitutional purpose and works well within the bounds of the
Constitution and of statute.cralawlawlibrary
VIII
Petitioners argue that Resolution No. 9674 constitutes a prior restraint in that:
Resolution No. 9674 makes it an election offense for a survey firm not to
disclose the names of subscribers who have paid substantial amounts to them,
even if ihe survey portions provided to them have not been published. 1'his
requirement is unduly burdensome and onerous and constitutes a prior restraint
on the right of survey firms to gather information on public opinion and
disseminate it to the citizenry.
. . . If Resolution No. 9674 is allowed to stand, survey firms will no longer be
able to operate because they will not have enough clients and will not be
Page 43 of 72
financially sustainable. COMELEC will finally be able to do indirectly what it
could not do directly, which is to prohibit the conduct of election surveys and the
publication or dissemination of the results to the public.126
Petitioners' assertions are erroneous.
Chavez v. Gonzales127 explained the concept of prior restraint as follows:
Prior restraint refers to official governmental restrictions on the press or other
forms of expression in advance of actual publication or dissemination. Freedom
from prior restraint is largely freedom from government censorship of
publications, whatever the form of censorship, and regardless of whether it is
wielded by the executive, legislative or judicial branch of the government. Thus,
it precludes governmental acts that required approval of a proposal to publish;
licensing or permits as prerequisites to publication including the payment of
license taxes for the privilege to publish; and even injunctions against
publication. Even the closure of the business and printing offices of certain
newspapers, resulting in the discontinuation of their printing and publication, are
deemed as previous restraint or censorship. Any law or official that requires
some form of permission to be had before publication can be made, commits an
infringement of the constitutional right, and remedy can be had at the courts.128
(Emphasis supplied, citations omitted)
The very definition of "prior restraint" negates petitioner's assertions. Resolution
No. 9674 poses no prohibition or censorship specifically aimed at election
surveys. Apart from regulating the manner of publication, petitioners remain free
to publish election surveys. COMELEC correctly points out that "[t]he disclosure
requirement kicks in only upon, not prior to, publication."129
In any case, the requirement of disclosing subscribers is neither unduly
burdensome nor onerous. Prior to the promulgation of Resolution No. 9674,
survey firms were already understood to be bound by the requirement to
disclose those who commissioned or paid for published election surveys.
Petitioners have been complying with this without incident since the Fair
Election Act was enacted in 2001. After more than a decade of compliance, it is
odd for petitioners to suddenly assail the disclosure requirement as unduly
burdensome or onerous.
Petitioners' claim that "[i]f Resolution No. 9674 is allowed to stand, survey firms
will no longer be able to operate because they will not have enough clients and
will not be financially sustainable"130 is too speculative and conjectural to
warrant our consideration. The assumption is that persons who want to avail of
election survey results will automatically be dissuaded from doing so when there
is a requirement of submission of their names during the campaign period. This
is neither self-evident, nor a presumption that is susceptible to judicial notice.
There is no evidence to establish a causal connection.
Petitioners' free speech rights must be weighed in relation to the Fair Election
Act's purpose of ensuring political equality and, therefore, the speech of others
who want to participate unencumbered in our political spaces. On one hand,
there are petitioners' right to publish and publications which are attended by the
interests of those who can employ published data to their partisan ends. On the
other, there is regulation that may effect equality and, thus, strengthen the
capacity of those on society's margins or those who grope for resources to
engage in the democratic dialogue. The latter fosters the ideals of deliberative
democracy. It does not trump the former; rather, it provides the environment
where the survey group's free speech rights should reside.cralawlawlibrary
IX
Petitioners argue that Resolution No. 9674 violates Article III, Section 10 of the
1987 Constitution.131 They claim that it "unduly interferes with [their] existing
contracts . . . by forcing [them] to disclose information that, under the contracts,
is confidential or privileged."132
For its part, COMELEC argues that "[t]he non-impairment clause of the
Constitution must yield to the loftier purposes sought to be achieved by the
government."133 It adds that "[petitioners' existing contracts with third parties
must be understood to have been made in reference to the possible exercise of
the COMELEC's regulatory powers."134
It is settled that "the constitutional guaranty of non-impairment... is limited by the
exercise of the police power of the State, in the interest of public health, safety,
morals and general welfare."135 "It is a basic rule in contracts that the law is
deemed written into the contract between the parties."136 The incorporation of
regulations into contracts is "a postulate of the police power of the State."137
The relation of the state's police power to the principle of non-impairment of
contracts was thoroughly explained in Ortigas and Co. V. Feati Bank:138
[W]hile non-impairment of contracts is constitutionally guaranteed, the rule is
not absolute, since it has to be reconciled with the legitimate exercise of police
power, i.e., "the power to prescribe regulations to promote the health, morals,
peace, education, good order or safety and general welfare of the people."
Invariably described as "the most essential, insistent, and illimitable of powers"
and "in a sense, the greatest and most powerful attribute of government," the
exercise of the power may be judicially inquired into and corrected only if it is
capricious, whimsical, unjust or unreasonable, there having been a denial of due
process or a violation of any other applicable constitutional guarantee. As this
Court held through Justice Jose P. Bengzon in Philippine Long Distance
Company vs. City of Davao, et al. police power "is elastic and must be
responsive to various social conditions; it is not confined within narrow
circumscriptions of precedents resting on past conditions; it must follow the legal
progress of a democratic way of life." We were even more emphatic in Vda. de
Genuino vs. The Court of Agrarian Relations, et al, when We declared: "We do
not see why public welfare when clashing with the individual right to property
should not be made to prevail through the state's exercise of its police
power."139 (Citations omitted)
This case does not involve a "capricious, whimsical, unjust or unreasonable"140
regulation. We have demonstrated that not only an important or substantial state
interest, but even a compelling one anchors Resolution No. 9674's requirement
of disclosing subscribers to election surveys. It effects the constitutional policy
of "guarantee[ing] equal access to opportunities for public service"141 and is
impelled by the imperative of "fair" elections.
As a valid exercise of COMELEC's regulatory powers, Resolution No. 9674 is
correctly deemed written into petitioners' existing contracts.
Parenthetically, the obligations of agreements manifested in the concept of
contracts are creations of law. This right to demand performance not only
involves its requisites, privileges, and regulation in the Civil Code or special
laws, but is also subject to the Constitution. The expectations inherent in a
contract may be compelling, but so are the normative frameworks demanded by
law and the provisions of the Constitution.cralawlawlibrary
X
Petitioners point out that Section 13 of the Fair Election Act provides that "[r]ules
and regulations promulgated by the COMELEC under and by authority of this
Section shall take effect on the seventh day after their publication in at least two
(2) daily newspapers of general circulation." In contrast, Resolution No. 9674
provides that it "shall take effect immediately after publication."142 Thus, they
assert that Resolution No. 9674's effectivity clause is invalid. From this, they
argue that Resolution No. 9674 has not taken effect and cannot be enforced
against them or against other persons.143
COMELEC counters that Section 13 of the Fair Election Act's provision that
rules shall take effect "on the seventh day after their publication" applies only to
Resolution No. 9615, the Implementing Rules and Regulations (IRR) of the Fair
Election Act, and not to Resolution No. 9674, which "merely enforces Section
26144 of Resolution No. 9615."145
Noting that Resolution No. 9674 was nevertheless published in the Philippine
Daily Inquirer and the Philippine Star both on April 25, 2013, COMELEC adds
that, in any case, "the lapse of the seven-day period from the date of its
publication has rendered the instant issue moot and academic."146
It is COMELEC which is in error on this score. Section 13 of the Fair Election
Act reads:
Section 13. Authority of the COMELEC to Promulgate Rules; Election Offenses.
- The COMELEC shall promulgate and furnish all political parties and
candidates and the mass media entities the rules and regulations for the
implementation of this Act, consistent with the criteria established in Article IX-
C, Section 4 of the Constitution and Section 86 of the Omnibus Election Code
(Batas Pambansa Bldg. 881).
Rules and regulations promulgated by the COMELEC under and by authority of
this Section shall take effect on the seventh day after their publication in at least
two (2) daily newspapers of general circulation. Prior to effectivity of said rules
and regulations, no political advertisement or propaganda for or against any
candidate or political party shall be published or broadcast through mass media.
Violation of this Act and the rules and regulations of the COMELEC issued to
implement this Act shall be an election offense punishable under the first and
second paragraphs of Section 264 of the Omnibus Election Code (Batas
Pambansa Bldg. 881). (Emphasis supplied)
Resolution No. 9615 is denominated "Rules and Regulations Implementing
Republic Act No. 9006, otherwise known as the 'Fair Election Act', in connection
to [sic] the 13 May 2013 National and Local Elections, and Subsequent
Elections[.]"
The only conceivable reason that would lead COMELEC to the conclusion that
it is only Resolution No. 9615 (and not the assailed Resolution No. 9674) that
needs to comply with the requirement of Section 13 of the Fair Election Act is
Section 13's use of the phrase "rules and regulations for the implementation of
this Act[.]" That is, since Resolution No. 9615 is the Resolution which, by name,
is called the "Rules and Regulations Implementing Republic Act No. 9006,"
COMELEC seems to think that other rules named differently need not comply.
It is an error to insist on this literal reasoning.
Section 13 applies to all rules and regulations implementing the Fair Election
Act, regardless of how they are denominated or called. COMELEC's further
reasoning that what Resolution No. 9674 intends to implement is Resolution No.
9615 and not the Fair Election Act itself is nothing but a circuitous denial of
Resolution No. 9674's true nature. COMELEC's reasoning is its own admission
that the assailed Resolution supplements what the Implementing Rules and
Regulations of the Fair Election Act provides. Ultimately, Resolution No. 9674
also implements the Fair Election Act and must, thus, comply with the
requirements of its Section 13.
Accordingly, Resolution No. 9674 could not have become effective as soon as
it was published in the Philippine Daily Inquirer and the Philippine Star on April
Page 44 of 72
25, 2013. Taking into consideration the seven-day period required by Section
13, the soonest that it could have come into effect was on May 2, 2013.
This notwithstanding, petitioners were not bound to comply with the requirement
"to submit within three (3) days from receipt of this Resolution the names of all
commissioners and payors of surveys published from February 12, 2013 to the
date of the promulgation of this Resolution[.]"147 As shall be discussed,
COMELEC's (continuing) failure to serve copies of Resolution No. 9674 on
petitioners prevented this three-day period from even
commencing.cralawlawlibrary
XI
Petitioners point out that they were never served copies of Resolution No. 9674.
Thus, they claim that this Resolution's self-stated three-day period within which
they must comply has not begun to run and that COMELEC's insistence on their
compliance violates their right to due process. They add that COMELEC has
also failed to provide them with copies of the criminal complaint subject of E.O.
Case No. 13-222 for which the Subpoena dated July 1, 2013 was issued against
them.
COMELEC, however, insists that "[petitioners were given fair notice of the
Resolution"148 in that:
[t]he-Notice dated 08 May 2013 sent to and received by petitioners not only
makes reference to the Resolution by its number and title but also indicates its
date of promulgation, the two newspapers of general circulation in which it was
published, it date of publication, and, more important [sic], reproduces in full its
dispositive portion[.]149
COMELEC adds that, in any case, petitioners were "able to secure a certified
true copy of the [assailed] Resolution."150 On the filing of a criminal complaint,
COMELEC asserts that attached to the Subpoena served on petitioners was a
copy of Resolution No. 13-0739 of the COMELEC En Bane which "provides a
verbatim reproduction of the Memorandum of the Director of the Law
Department detailing petitioners' failure to comply with the assailed Resolution
and of the Memorandum of Commissioner [Christian Robert S.] Lim submitting
the matter for the appropriate action of the COMELEC en bane."151
COMELEC relies on infirm reasoning and reveals how, in criminally charging
petitioners, it acted arbitrarily, whimsically, and capriciously, and violated
petitioners' right to due process.
By its own reasoning, COMELEC admits that petitioners were never actually
served copies of Resolution No. 9674 after it was promulgated on April 23, 2013.
It insists, however, that this flaw has been remedied by service to petitioners of
the May 8, 2013 Notice which reproduced Resolution No. 9674's dispositive
portion.
Dismembering an official issuance by producing only a portion of it (even if the
reproduced portion is the most significant, i.e., dispositive, portion) is not the
same as serving on the concerned parties a copy of the official issuance itself.
Petitioners may have been informed of what the dispositive portion stated, but
it remains that they were never notified and served copies of the assailed
Resolution itself. In Resolution No. 9674's own words, compliance was expected
"within three (3) days from receipt of this Resolution[,]"152 not of its partial,
dismembered, reproduction.
Not having been served with copies of Resolution No. 9674 itself, petitioners
are right in construing the three-day period for compliance as not having begun
to run. From this, it follows that no violation of the requirement "to submit within
three (3) days from receipt of this Resolution the names of all commissioners
and payors of surveys published from February 12, 2013 to the date of the
promulgation of this Resolution[.]"153 could have been committed. Thus, there
was no basis for considering petitioners to have committed an election offense
arising from this alleged violation.
It is of no consequence that the May 8, 2013 Notice warned petitioners that
failure to comply with it "shall constitute an election offense punishable under
the first and second paragraphs of Section 264 of the Omnibus Election
Code."154 It is true that the Omnibus Election Code has been in force and effect
long before Resolution No. 9674 was promulgated; nevertheless, the supposed
violation of the Omnibus Election Code rests on petitioners' alleged non-
compliance with Resolution No. 9674. This is a matter which, as we have
demonstrated, is baseless, the three-day period for compliance not having even
commenced.
It is similarly inconsequential that petitioners were subsequently able to obtain
certified true copies of Resolution No. 9674. Petitioners' own diligence in
complying with the formal requirements of Rule 65 petitions filed before this
court cannot possibly be the cure for COMELEC's inaction. These certified true
copies were secured precisely to enable petitioners to assail COMELEC's
actions, not to validate them. It would be misguided to subscribe to COMELEC's
suggestion that petitioners' diligence should be their own undoing. To accede to
this would be to effectively intimidate parties with legitimate grievances against
government actions from taking the necessary steps to comply with (formal)
requisites for judicial remedies and, ultimately, prevent them from protecting
their rights.
COMELEC's error is compounded by its failure to provide petitioners with copies
of the criminal complaint subject of E.O. Case No. 13-222. COMELEC has
neither alleged nor proven that it has done so. Per its own allegations, all it did
was serve petitioners with the May 8, 2013 Notice and the July 1, 2013
Subpoena.
These facts considered, it was not only grave error, but grave abuse of
discretion, for COMELEC to pursue unfounded criminal charges against
petitioners. In so doing, COMELEC violated petitioners' right to due process.
WHEREFORE, the Petition is PARTIALLY GRANTED in that COMELEC
Resolution No. 9674 is upheld, and respondent Commission on Elections is
ENJOINED from prosecuting petitioners Social Weather Stations, Inc. and
Pulse Asia, Inc. for their supposed violation of COMELEC Resolution No. 9674
in respect of their non-submission of the names of all commissioners and
payors, including subscribers, of surveys published during the campaign period
for the 2013 elections.
SO ORDERED.
Sereno, C.J., Carpio, Velasco, Jr., Leonardo-De Castro, Brion, Peralta,
Bersamin, Del Castillo, Perez, Mendoza, Reyes, and Leonen, JJ., concur.
Villarama, Jr., J., on official leave.
Perlas-Bernabe, J., on leave.
Jardeleza, J., no part, prior action as SolGen.
ASSEMBLY
Republic of the Philippines
SUPREME COURT
Manila
EN BANC
G.R. No. 169838 April 25, 2006
BAYAN, KARAPATAN, KILUSANG MAGBUBUKID NG PILIPINAS (KMP),
GABRIELA, Fr. Jose Dizon, Renato Constantino, Jr., Froyel Yaneza, and
Fahima Tajar, Petitioners,
vs.
EDUARDO ERMITA, in his capacity as Executive Secretary, Manila City
Mayor LITO ATIENZA, Chief of the Philippine National Police, Gen.
ARTURO M. LOMIBAO, NCRPO Chief Maj. Gen. VIDAL QUEROL, and
Western Police District Chief Gen. PEDRO BULAONG, Respondents.
x---------------------------------x
G.R. No. 169848 April 25, 2006
x---------------------------------x
G.R. No. 169881 April 25, 2006
DECISION
AZCUNA, J.:
Petitioners come in three groups.
The first petitioners, Bayan, et al., in G.R. No. 169838,1 allege that they are
citizens and taxpayers of the Philippines and that their rights as organizations
and individuals were violated when the rally they participated in on October 6,
2005 was violently dispersed by policemen implementing Batas Pambansa
(B.P.) No. 880.
The second group consists of 26 individual petitioners, Jess del Prado, et al., in
G.R. No. 169848,2 who allege that they were injured, arrested and detained
when a peaceful mass action they held on September 26, 2005 was preempted
and violently dispersed by the police. They further assert that on October 5,
2005, a group they participated in marched to Malacañang to protest issuances
of the Palace which, they claim, put the country under an "undeclared" martial
rule, and the protest was likewise dispersed violently and many among them
were arrested and suffered injuries.
The third group, Kilusang Mayo Uno (KMU), et al., petitioners in G.R. No.
169881,3 allege that they conduct peaceful mass actions and that their rights
as organizations and those of their individual members as citizens, specifically
the right to peaceful assembly, are affected by Batas Pambansa No. 880 and
the policy of "Calibrated Preemptive Response" (CPR) being followed to
implement it.
KMU, et al., claim that on October 4, 2005, a rally KMU co-sponsored was to be
conducted at the Mendiola bridge but police blocked them along C.M. Recto and
Lepanto Streets and forcibly dispersed them, causing injuries to several of their
members. They further allege that on October 6, 2005, a multi-sectoral rally
which KMU also co-sponsored was scheduled to proceed along España Avenue
in front of the University of Santo Tomas and going towards Mendiola bridge.
Police officers blocked them along Morayta Street and prevented them from
Page 45 of 72
proceeding further. They were then forcibly dispersed, causing injuries on one
of them.4 Three other rallyists were arrested.
All petitioners assail Batas Pambansa No. 880, some of them in toto and others
only Sections 4, 5, 6, 12, 13(a), and 14(a), as well as the policy of CPR. They
seek to stop violent dispersals of rallies under the "no permit, no rally" policy
and the CPR policy recently announced.
B.P. No. 880, "The Public Assembly Act of 1985," provides:
Batas Pambansa Blg. 880
An Act Ensuring The Free Exercise By The People Of Their Right Peaceably To
Assemble And Petition The Government [And] For Other Purposes
Be it enacted by the Batasang Pambansa in session assembled:
Section 1. Title. – This Act shall be known as "The Public Assembly Act of 1985."
Sec. 2. Declaration of policy. – The constitutional right of the people peaceably
to assemble and petition the government for redress of grievances is essential
and vital to the strength and stability of the State. To this end, the State shall
ensure the free exercise of such right without prejudice to the rights of others to
life, liberty and equal protection of the law.
Sec. 3. Definition of terms. – For purposes of this Act:
(a) "Public assembly" means any rally, demonstration, march, parade,
procession or any other form of mass or concerted action held in a public place
for the purpose of presenting a lawful cause; or expressing an opinion to the
general public on any particular issue; or protesting or influencing any state of
affairs whether political, economic or social; or petitioning the government for
redress of grievances.
The processions, rallies, parades, demonstrations, public meetings and
assemblages for religious purposes shall be governed by local ordinances;
Provided, however, That the declaration of policy as provided in Section 2 of
this Act shall be faithfully observed.
The definition herein contained shall not include picketing and other concerted
action in strike areas by workers and employees resulting from a labor dispute
as defined by the Labor Code, its implementing rules and regulations, and by
the Batas Pambansa Bilang 227.
(b) "Public place" shall include any highway, boulevard, avenue, road, street,
bridge or other thoroughfare, park, plaza, square, and/or any open space of
public ownership where the people are allowed access.
(c) "Maximum tolerance" means the highest degree of restraint that the military,
police and other peace keeping authorities shall observe during a public
assembly or in the dispersal of the same.
(d) "Modification of a permit" shall include the change of the place and time of
the public assembly, rerouting of the parade or street march, the volume of loud-
speakers or sound system and similar changes.
Sec. 4. Permit when required and when not required. – A written permit shall be
required for any person or persons to organize and hold a public assembly in a
public place. However, no permit shall be required if the public assembly shall
be done or made in a freedom park duly established by law or ordinance or in
private property, in which case only the consent of the owner or the one entitled
to its legal possession is required, or in the campus of a government-owned and
operated educational institution which shall be subject to the rules and
regulations of said educational institution. Political meetings or rallies held
during any election campaign period as provided for by law are not covered by
this Act.
Sec. 5. Application requirements. – All applications for a permit shall comply
with the following guidelines:
(a) The applications shall be in writing and shall include the names of the leaders
or organizers; the purpose of such public assembly; the date, time and duration
thereof, and place or streets to be used for the intended activity; and the
probable number of persons participating, the transport and the public address
systems to be used.
(b) The application shall incorporate the duty and responsibility of the applicant
under Section 8 hereof.
(c) The application shall be filed with the office of the mayor of the city or
municipality in whose jurisdiction the intended activity is to be held, at least five
(5) working days before the scheduled public assembly.
(d) Upon receipt of the application, which must be duly acknowledged in writing,
the office of the city or municipal mayor shall cause the same to immediately be
posted at a conspicuous place in the city or municipal building.
Sec. 6. Action to be taken on the application. –
(a) It shall be the duty of the mayor or any official acting in his behalf to issue or
grant a permit unless there is clear and convincing evidence that the public
assembly will create a clear and present danger to public order, public safety,
public convenience, public morals or public health.

(b) The mayor or any official acting in his behalf shall act on the application
within two (2) working days from the date the application was filed, failing which,
the permit shall be deemed granted. Should for any reason the mayor or any
official acting in his behalf refuse to accept the application for a permit, said
application shall be posted by the applicant on the premises of the office of the
mayor and shall be deemed to have been filed.
(c) If the mayor is of the view that there is imminent and grave danger of a
substantive evil warranting the denial or modification of the permit, he shall
immediately inform the applicant who must be heard on the matter.
(d) The action on the permit shall be in writing and served on the applica[nt]
within twenty-four hours.
(e) If the mayor or any official acting in his behalf denies the application or
modifies the terms thereof in his permit, the applicant may contest the decision
in an appropriate court of law.
(f) In case suit is brought before the Metropolitan Trial Court, the Municipal Trial
Court, the Municipal Circuit Trial Court, the Regional Trial Court, or the
Intermediate Appellate court, its decisions may be appealed to the appropriate
court within forty-eight (48) hours after receipt of the same. No appeal bond and
record on appeal shall be required. A decision granting such permit or modifying
it in terms satisfactory to the applicant shall be immediately executory.
(g) All cases filed in court under this section shall be decided within twenty-four
(24) hours from date of filing. Cases filed hereunder shall be immediately
endorsed to the executive judge for disposition or, in his absence, to the next in
rank.
(h) In all cases, any decision may be appealed to the Supreme Court.
(i) Telegraphic appeals to be followed by formal appeals are hereby allowed.
Sec. 7. Use of Public throroughfare. – Should the proposed public assembly
involve the use, for an appreciable length of time, of any public highway,
boulevard, avenue, road or street, the mayor or any official acting in his behalf
may, to prevent grave public inconvenience, designate the route thereof which
is convenient to the participants or reroute the vehicular traffic to another
direction so that there will be no serious or undue interference with the free flow
of commerce and trade.
Sec. 8. Responsibility of applicant. – It shall be the duty and responsibility of the
leaders and organizers of a public assembly to take all reasonable measures
and steps to the end that the intended public assembly shall be conducted
peacefully in accordance with the terms of the permit. These shall include but
not be limited to the following:
(a) To inform the participants of their responsibility under the permit;|avvphi|.net
(b) To police the ranks of the demonstrators in order to prevent non-
demonstrators from disrupting the lawful activities of the public assembly;
(c) To confer with local government officials concerned and law enforcers to the
end that the public assembly may be held peacefully;
(d) To see to it that the public assembly undertaken shall not go beyond the time
stated in the permit; and
(e) To take positive steps that demonstrators do not molest any person or do
any act unduly interfering with the rights of other persons not participating in the
public assembly.
Sec. 9. Non-interference by law enforcement authorities. – Law enforcement
agencies shall not interfere with the holding of a public assembly. However, to
adequately ensure public safety, a law enforcement contingent under the
command of a responsible police officer may be detailed and stationed in a
place at least one hundred (100) meters away from the area of activity ready to
maintain peace and order at all times.
Sec. 10. Police assistance when requested. – It shall be imperative for law
enforcement agencies, when their assistance is requested by the leaders or
organizers, to perform their duties always mindful that their responsibility to
provide proper protection to those exercising their right peaceably to assemble
and the freedom of expression is primordial. Towards this end, law enforcement
agencies shall observe the following guidelines:
(a) Members of the law enforcement contingent who deal with the
demonstrators shall be in complete uniform with their nameplates and units to
which they belong displayed prominently on the front and dorsal parts of their
uniform and must observe the policy of "maximum tolerance" as herein defined;
(b) The members of the law enforcement contingent shall not carry any kind of
firearms but may be equipped with baton or riot sticks, shields, crash helmets
with visor, gas masks, boots or ankle high shoes with shin guards;
(c) Tear gas, smoke grenades, water cannons, or any similar anti-riot device
shall not be used unless the public assembly is attended by actual violence or
serious threats of violence, or deliberate destruction of property.
Page 46 of 72
Sec. 11. Dispersal of public assembly with permit. – No public assembly with a
permit shall be dispersed. However, when an assembly becomes violent, the
police may disperse such public assembly as follows:
(a) At the first sign of impending violence, the ranking officer of the law
enforcement contingent shall call the attention of the leaders of the public
assembly and ask the latter to prevent any possible disturbance;
(b) If actual violence starts to a point where rocks or other harmful objects from
the participants are thrown at the police or at the non-participants, or at any
property causing damage to such property, the ranking officer of the law
enforcement contingent shall audibly warn the participants that if the
disturbance persists, the public assembly will be dispersed;
(c) If the violence or disturbance prevailing as stated in the preceding
subparagraph should not stop or abate, the ranking officer of the law
enforcement contingent shall audibly issue a warning to the participants of the
public assembly, and after allowing a reasonable period of time to lapse, shall
immediately order it to forthwith disperse;
(d) No arrest of any leader, organizer or participant shall also be made during
the public assembly unless he violates during the assembly a law, statute,
ordinance or any provision of this Act. Such arrest shall be governed by Article
125 of the Revised Penal Code, as amended;
(e) Isolated acts or incidents of disorder or breach of the peace during the public
assembly shall not constitute a ground for dispersal.
Sec. 12. Dispersal of public assembly without permit. – When the public
assembly is held without a permit where a permit is required, the said public
assembly may be peacefully dispersed.
Sec. 13. Prohibited acts. – The following shall constitute violations of the Act:
(a) The holding of any public assembly as defined in this Act by any leader or
organizer without having first secured that written permit where a permit is
required from the office concerned, or the use of such permit for such purposes
in any place other than those set out in said permit: Provided, however, That no
person can be punished or held criminally liable for participating in or attending
an otherwise peaceful assembly;
(b) Arbitrary and unjustified denial or modification of a permit in violation of the
provisions of this Act by the mayor or any other official acting in his behalf;
(c) The unjustified and arbitrary refusal to accept or acknowledge receipt of the
application for a permit by the mayor or any official acting in his behalf;
(d) Obstructing, impeding, disrupting or otherwise denying the exercise of the
right to peaceful assembly;
(e) The unnecessary firing of firearms by a member of any law enforcement
agency or any person to disperse the public assembly;
(f) Acts in violation of Section 10 hereof;
(g) Acts described hereunder if committed within one hundred (100) meters from
the area of activity of the public assembly or on the occasion thereof:
1. the carrying of a deadly or offensive weapon or device such as firearm,
pillbox, bomb, and the like;
2. the carrying of a bladed weapon and the like;
3. the malicious burning of any object in the streets or thoroughfares;
4. the carrying of firearms by members of the law enforcement unit;
5. the interfering with or intentionally disturbing the holding of a public assembly
by the use of a motor vehicle, its horns and loud sound systems.
Sec. 14. Penalties. – Any person found guilty and convicted of any of the
prohibited acts defined in the immediately preceding section shall be punished
as follows:
(a) violation of subparagraph (a) shall be punished by imprisonment of one
month and one day to six months;
(b) violations of subparagraphs (b), (c), (d), (e), (f), and item 4, subparagraph
(g) shall be punished by imprisonment of six months and one day to six years;
(c) violation of item 1, subparagraph (g) shall be punished by imprisonment of
six months and one day to six years without prejudice to prosecution under
Presidential Decree No. 1866;
(d) violations of item 2, item 3, or item 5 of subparagraph (g) shall be punished
by imprisonment of one day to thirty days.
Sec. 15. Freedom parks. – Every city and municipality in the country shall within
six months after the effectivity of this Act establish or designate at least one
suitable "freedom park" or mall in their respective jurisdictions which, as far as
practicable, shall be centrally located within the poblacion where
demonstrations and meetings may be held at any time without the need of any
prior permit.

In the cities and municipalities of Metropolitan Manila, the respective mayors
shall establish the freedom parks within the period of six months from the
effectivity this Act.
Sec. 16. Constitutionality. – Should any provision of this Act be declared invalid
or unconstitutional, the validity or constitutionality of the other provisions shall
not be affected thereby.
Sec. 17. Repealing clause. – All laws, decrees, letters of instructions,
resolutions, orders, ordinances or parts thereof which are inconsistent with the
provisions of this Act are hereby repealed, amended, or modified accordingly.
Sec. 18. Effectivity. – This Act shall take effect upon its approval.
Approved, October 22, 1985.
CPR, on the other hand, is a policy set forth in a press release by Malacañang
dated September 21, 2005, shown in Annex "A" to the Petition in G.R. No.
169848, thus:
Malacañang Official
Manila, Philippines NEWS
Release No. 2 September 21, 2005
STATEMENT OF EXECUTIVE SECRETARY EDUARDO ERMITA
On Unlawful Mass Actions
In view of intelligence reports pointing to credible plans of anti-government
groups to inflame the political situation, sow disorder and incite people against
the duly constituted authorities, we have instructed the PNP as well as the local
government units to strictly enforce a "no permit, no rally" policy, disperse
groups that run afoul of this standard and arrest all persons violating the laws of
the land as well as ordinances on the proper conduct of mass actions and
demonstrations.
The rule of calibrated preemptive response is now in force, in lieu of maximum
tolerance. The authorities will not stand aside while those with ill intent are
herding a witting or unwitting mass of people and inciting them into actions that
are inimical to public order, and the peace of mind of the national community.
Unlawful mass actions will be dispersed. The majority of law-abiding citizens
have the right to be protected by a vigilant and proactive government.
We appeal to the detractors of the government to engage in lawful and peaceful
conduct befitting of a democratic society.
The President’s call for unity and reconciliation stands, based on the rule of law.
Petitioners Bayan, et al., contend that Batas Pambansa No. 880 is clearly a
violation of the Constitution and the International Covenant on Civil and Political
Rights and other human rights treaties of which the Philippines is a signatory.5
They argue that B.P. No. 880 requires a permit before one can stage a public
assembly regardless of the presence or absence of a clear and present danger.
It also curtails the choice of venue and is thus repugnant to the freedom of
expression clause as the time and place of a public assembly form part of the
message for which the expression is sought. Furthermore, it is not content-
neutral as it does not apply to mass actions in support of the government. The
words "lawful cause," "opinion," "protesting or influencing" suggest the
exposition of some cause not espoused by the government. Also, the phrase
"maximum tolerance" shows that the law applies to assemblies against the
government because they are being tolerated. As a content-based legislation, it
cannot pass the strict scrutiny test.
Petitioners Jess del Prado, et al., in turn, argue that B.P. No. 880 is
unconstitutional as it is a curtailment of the right to peacefully assemble and
petition for redress of grievances because it puts a condition for the valid
exercise of that right. It also characterizes public assemblies without a permit as
illegal and penalizes them and allows their dispersal. Thus, its provisions are
not mere regulations but are actually prohibitions.
Furthermore, the law delegates powers to the Mayor without providing clear
standards. The two standards stated in the laws (clear and present danger and
imminent and grave danger) are inconsistent.
Regarding the CPR policy, it is void for being an ultra vires act that alters the
standard of maximum tolerance set forth in B.P. No. 880, aside from being void
for being vague and for lack of publication.
Finally, petitioners KMU, et al., argue that the Constitution sets no limits on the
right to assembly and therefore B.P. No. 880 cannot put the prior requirement
of securing a permit. And even assuming that the legislature can set limits to
this right, the limits provided are unreasonable: First, allowing the Mayor to deny
the permit on clear and convincing evidence of a clear and present danger is
too comprehensive. Second, the five-day requirement to apply for a permit is
too long as certain events require instant public assembly, otherwise interest on
the issue would possibly wane.
Page 47 of 72
As to the CPR policy, they argue that it is preemptive, that the government takes
action even before the rallyists can perform their act, and that no law, ordinance
or executive order supports the policy. Furthermore, it contravenes the
maximum tolerance policy of B.P. No. 880 and violates the Constitution as it
causes a chilling effect on the exercise by the people of the right to peaceably
assemble.
Respondents in G.R. No. 169838 are Eduardo Ermita, as Executive Secretary,
Manila City Mayor Lito Atienza, Chief, of the Philippine National Police (PNP)
Gen. Arturo Lomibao, National Capital Region Police Office (NCRPO) Chief,
PNP Maj. Gen. Vidal Querol, and Manila Police District (MPD) Chief Gen. Pedro
Bulaong.
Respondents in G.R. No. 169848 are Eduardo Ermita as Executive Secretary
and in his personal capacity; Angelo Reyes, as Secretary of the Interior and
Local Governments; Arturo Lomibao, as Chief Vidal Querol, as Chief, NCRPO;
Pedro Bulaong, as Chief, MPD, and all other public officers and private
individuals acting under their control, supervision and instruction.
Respondents in G.R. No. 169881 are the Honorable Executive Secretary, PNP
Director General Arturo Lomibao, the Honorable Mayor Joselito Atienza, and
PNP MPD Chief Pedro Bulaong.
Respondents argue that:
1. Petitioners have no standing because they have not presented evidence that
they had been "injured, arrested or detained because of the CPR," and that
"those arrested stand to be charged with violating Batas Pambansa [No.] 880
and other offenses."
2. Neither B.P. No. 880 nor CPR is void on its face. Petitioners cannot honestly
claim that the time, place and manner regulation embodied in B.P. No. 880
violates the three-pronged test for such a measure, to wit: (a) B.P. No. 880 is
content-neutral, i.e., it has no reference to content of regulated speech; (b) B.P.
No. 880 is narrowly tailored to serve a significant governmental interest, i.e., the
interest cannot be equally well served by a means that is less intrusive of free
speech interests; and (c) B.P. No. 880 leaves open alternative channels for
communication of the information.6
3. B.P. No. 880 is content-neutral as seen from the text of the law. Section 5
requires the statement of the public assembly’s time, place and manner of
conduct. It entails traffic re-routing to prevent grave public inconvenience and
serious or undue interference in the free flow of commerce and trade.
Furthermore, nothing in B.P. No. 880 authorizes the denial of a permit on the
basis of a rally’s program content or the statements of the speakers therein,
except under the constitutional precept of the "clear and present danger test."
The status of B.P. No. 880 as a content-neutral regulation has been recognized
in Osmeña v. Comelec.7
4. Adiong v. Comelec8 held that B.P. No. 880 is a content-neutral regulation of
the time, place and manner of holding public assemblies and the law passes the
test for such regulation, namely, these regulations need only a substantial
governmental interest to support them.
5. Sangalang v. Intermediate Appellate Court9 held that a local chief executive
has the authority to exercise police power to meet "the demands of the common
good in terms of traffic decongestion and public convenience." Furthermore, the
discretion given to the mayor is narrowly circumscribed by Sections 5 (d), and 6
(a), (b), (c), (d), (e), 13 and 15 of the law.
6. The standards set forth in the law are not inconsistent. "Clear and convincing
evidence that the public assembly will create a clear and present danger to
public order, public safety, public convenience, public morals or public health"
and "imminent and grave danger of a substantive evil" both express the meaning
of the "clear and present danger test."10
7. CPR is simply the responsible and judicious use of means allowed by existing
laws and ordinances to protect public interest and restore public order. Thus, it
is not accurate to call it a new rule but rather it is a more pro-active and dynamic
enforcement of existing laws, regulations and ordinances to prevent chaos in
the streets. It does not replace the rule of maximum tolerance in B.P. No. 880.
Respondent Mayor Joselito Atienza, for his part, submitted in his Comment that
the petition in G.R. No. 169838 should be dismissed on the ground that Republic
Act No. 7160 gives the Mayor power to deny a permit independently of B.P. No.
880; that his denials of permits were under the "clear and present danger" rule
as there was a clamor to stop rallies that disrupt the economy and to protect the
lives of other people; that J. B. L. Reyes v. Bagatsing,11 Primicias v. Fugoso,12
and Jacinto v. CA,13 have affirmed the constitutionality of requiring a permit;
that the permit is for the use of a public place and not for the exercise of rights;
and that B.P. No. 880 is not a content-based regulation because it covers all
rallies.
The petitions were ordered consolidated on February 14, 2006. After the
submission of all the Comments, the Court set the cases for oral arguments on
April 4, 2006,14 stating the principal issues, as follows:
1. On the constitutionality of Batas Pambansa No. 880, specifically Sections 4,
5, 6, 12 13(a) and 14(a) thereof, and Republic Act No. 7160:
(a) Are these content-neutral or content-based regulations?
(b) Are they void on grounds of overbreadth or vagueness?

(c) Do they constitute prior restraint?
(d) Are they undue delegations of powers to Mayors?
(e) Do they violate international human rights treaties and the Universal
Declaration of Human Rights?
2. On the constitutionality and legality of the policy of Calibrated Preemptive
Response (CPR):
(a) Is the policy void on its face or due to vagueness?
(b) Is it void for lack of publication?
(c) Is the policy of CPR void as applied to the rallies of September 26 and
October 4, 5 and 6, 2005?
During the course of the oral arguments, the following developments took place
and were approved and/or noted by the Court:
1. Petitioners, in the interest of a speedy resolution of the petitions, withdrew the
portions of their petitions raising factual issues, particularly those raising the
issue of whether B.P. No. 880 and/or CPR is void as applied to the rallies of
September 20, October 4, 5 and 6, 2005.
2. The Solicitor General agreed with the observation of the Chief Justice that
CPR should no longer be used as a legal term inasmuch as, according to
respondents, it was merely a "catchword" intended to clarify what was thought
to be a misunderstanding of the maximum tolerance policy set forth in B.P. No.
880 and that, as stated in the affidavit executed by Executive Secretary Eduardo
Ermita and submitted to the Ombudsman, it does not replace B.P. No. 880 and
the maximum tolerance policy embodied in that law.
The Court will now proceed to address the principal issues, taking into account
the foregoing developments.
Petitioners’ standing cannot be seriously challenged. Their right as citizens to
engage in peaceful assembly and exercise the right of petition, as guaranteed
by the Constitution, is directly affected by B.P. No. 880 which requires a permit
for all who would publicly assemble in the nation’s streets and parks. They have,
in fact, purposely engaged in public assemblies without the required permits to
press their claim that no such permit can be validly required without violating the
Constitutional guarantee. Respondents, on the other hand, have challenged
such action as contrary to law and dispersed the public assemblies held without
the permit.
Section 4 of Article III of the Constitution provides:
Sec. 4. No law shall be passed abridging the freedom of speech, of expression,
or of the press, or the right of the people peaceably to assemble and petition the
government for redress of grievances.
The first point to mark is that the right to peaceably assemble and petition for
redress of grievances is, together with freedom of speech, of expression, and of
the press, a right that enjoys primacy in the realm of constitutional protection.
For these rights constitute the very basis of a functional democratic polity,
without which all the other rights would be meaningless and unprotected. As
stated in Jacinto v. CA,15 the Court, as early as the onset of this century, in U.S.
v. Apurado,16 already upheld the right to assembly and petition, as follows:
There is no question as to the petitioners’ rights to peaceful assembly to petition
the government for a redress of grievances and, for that matter, to organize or
form associations for purposes not contrary to law, as well as to engage in
peaceful concerted activities. These rights are guaranteed by no less than the
Constitution, particularly Sections 4 and 8 of the Bill of Rights, Section 2(5) of
Article IX, and Section 3 of Article XIII. Jurisprudence abounds with hallowed
pronouncements defending and promoting the people’s exercise of these rights.
As early as the onset of this century, this Court in U.S. vs. Apurado, already
upheld the right to assembly and petition and even went as far as to
acknowledge:
"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. 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 tumultuous rising
against the authorities, then the right to assemble and to petition for redress of
grievances would become a delusion and a 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, but the utmost discretion must be exercised in drawing the line
between disorderly and seditious conduct and between an essentially
peaceable assembly and a tumultuous uprising."
Page 48 of 72
Again, in Primicias v. Fugoso,17 the Court likewise sustained the primacy of
freedom of speech and to assembly and petition over comfort and convenience
in the use of streets and parks.
Next, however, it must be remembered that the right, while sacrosanct, is not
absolute. In Primicias, this Court said:
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.
But it is a settled principle growing out of the nature of well-ordered civil societies
that the exercise of those rights is not absolute for it may be so regulated that it
shall not be injurious to the equal enjoyment of others having equal rights, nor
injurious to the rights of the community or society. The power to regulate the
exercise of such and other constitutional rights is termed the sovereign "police
power," which is the power to prescribe regulations, to promote the health,
morals, peace, education, good order or safety, and general welfare of the
people. This sovereign police power is exercised by the government through its
legislative branch by the enactment of laws regulating those and other
constitutional and civil rights, and it may be delegated to political subdivisions,
such as towns, municipalities and cities by authorizing their legislative bodies
called municipal and city councils to enact ordinances for the purpose.18
Reyes v. Bagatsing19 further expounded on the right and its limits, as follows:
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." 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. There is to be
then no previous restraint on the communication of views or subsequent liability
whether in libel suits, prosecution for sedition, or action for damages, or
contempt proceedings unless there be a "clear and present danger of a
substantive evil that [the State] has a right to prevent." Freedom of assembly
connotes the right of the people to meet peaceably for consultation and
discussion of matters of public concern. It is entitled to be accorded the utmost
deference and respect. It is not to be limited, much less denied, except on a
showing, as is the case with freedom of expression, of a clear and present
danger of a substantive evil that the state has a right to prevent. Even prior to
the 1935 Constitution, Justice Malcolm had occasion to stress that it is a
necessary consequence of our republican institutions and complements the
right of free speech. To paraphrase the opinion of Justice Rutledge, speaking
for the majority of the American Supreme Court in Thomas v. Collins, it was not
by accident or coincidence that the rights to freedom of speech and of the press
were coupled in a single guarantee with the rights of the people peaceably to
assemble and to petition the government for redress of grievances. All these
rights, while not identical, are inseparable. In every case, therefore, where 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.
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." 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: "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." 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.
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:
"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 must not, in the guise of regulation, be abridged or
denied." The above excerpt was quoted with approval in Primicias v. Fugoso.
Primicias made explicit what was implicit in Municipality of Cavite v. Rojas, 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," 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 proposed march and rally starting from a public park 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 blocks 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 v. 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 be permitted unless a special license therefor shall first be
obtained 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, * * *. "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."
xxx
6. x x x 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." 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."
xxx
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
Page 49 of 72
them at the earliest opportunity. Thus if so minded, they 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. x x x.
B.P. No. 880 was enacted after this Court rendered its decision in Reyes.
The provisions of B.P. No. 880 practically codify the ruling in Reyes:
Reyes v. Bagatsing
(G.R. No. L-65366, November 9, 1983, 125 SCRA 553, 569)
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, they can have recourse to
the proper judicial authority.
B.P. No. 880
Sec. 4. Permit when required and when not required.-- A written permit shall be
required for any person or persons to organize and hold a public assembly in a
public place. However, no permit shall be required if the public assembly shall
be done or made in a freedom park duly established by law or ordinance or in
private property, in which case only the consent of the owner or the one entitled
to its legal possession is required, or in the campus of a government-owned and
operated educational institution which shall be subject to the rules and
regulations of said educational institution. Political meetings or rallies held
during any election campaign period as provided for by law are not covered by
this Act.
Sec. 5. Application requirements.-- All applications for a permit shall comply with
the following guidelines:
(a) The applications shall be in writing and shall include the names of the leaders
or organizers; the purpose of such public assembly; the date, time and duration
thereof, and place or streets to be used for the intended activity; and the
probable number of persons participating, the transport and the public address
systems to be used.
(b) The application shall incorporate the duty and responsibility of applicant
under Section 8 hereof.
(c) The application shall be filed with the office of the mayor of the city or
municipality in whose jurisdiction the intended activity is to be held, at least five
(5) working days before the scheduled public assembly.
(d) Upon receipt of the application, which must be duly acknowledged in writing,
the office of the city or municipal mayor shall cause the same to immediately be
posted at a conspicuous place in the city or municipal building.
Sec. 6. Action to be taken on the application. –
(a) It shall be the duty of the mayor or any official acting in his behalf to issue or
grant a permit unless there is clear and convincing evidence that the public
assembly will create a clear and present danger to public order, public safety,
public convenience, public morals or public health.
(b) The mayor or any official acting in his behalf shall act on the application
within two (2) working days from the date the application was filed, failing which,
the permit shall be deemed granted. Should for any reason the mayor or any
official acting in his behalf refuse to accept the application for a permit, said
application shall be posted by the applicant on the premises of the office of the
mayor and shall be deemed to have been filed.
(c) If the mayor is of the view that there is imminent and grave danger of a
substantive evil warranting the denial or modification of the permit, he shall
immediately inform the applicant who must be heard on the matter.
(d) The action on the permit shall be in writing and served on the applica[nt]
within twenty-four hours.
(e) If the mayor or any official acting in his behalf denies the application or
modifies the terms thereof in his permit, the applicant may contest the decision
in an appropriate court of law.
(f) In case suit is brought before the Metropolitan Trial Court, the Municipal Trial
Court, the Municipal Circuit Trial Court, the Regional Trial Court, or the
Intermediate Appellate Court, its decisions may be appealed to the appropriate
court within forty-eight (48) hours after receipt of the same. No appeal bond and
record on appeal shall be required. A decision granting such permit or modifying
it in terms satisfactory to the applicant shall be immediately executory.
(g) All cases filed in court under this section shall be decided within twenty-four
(24) hours from date of filing. Cases filed hereunder shall be immediately
endorsed to the executive judge for disposition or, in his absence, to the next in
rank.
(h) In all cases, any decision may be appealed to the Supreme Court.
(i) Telegraphic appeals to be followed by formal appeals are hereby allowed.
It is very clear, therefore, that B.P. No. 880 is not an absolute ban of public
assemblies but a restriction that simply regulates the time, place and manner of
the assemblies. This was adverted to in Osmeña v. Comelec,20 where the Court
referred to it as a "content-neutral" regulation of the time, place, and manner of
holding public assemblies.21
A fair and impartial reading of B.P. No. 880 thus readily shows that it refers to
all kinds of public assemblies22 that would use public places. The reference to
"lawful cause" does not make it content-based because assemblies really have
to be for lawful causes, otherwise they would not be "peaceable" and entitled to
protection. Neither are the words "opinion," "protesting" and "influencing" in the
definition of public assembly content based, since they can refer to any subject.
The words "petitioning the government for redress of grievances" come from the
wording of the Constitution, so its use cannot be avoided. Finally, maximum
tolerance is for the protection and benefit of all rallyists and is independent of
the content of the expressions in the rally.
Furthermore, the permit can only be denied on the ground of clear and present
danger to public order, public safety, public convenience, public morals or public
health. This is a recognized exception to the exercise of the right even under
the Universal Declaration of Human Rights and the International Covenant on
Civil and Political Rights, thus:
Universal Declaration of Human Rights
Article 20
1. Everyone has the right to freedom of peaceful assembly and association.
xxx
Article 29
1. Everyone has duties to the community in which alone the free and full
development of his personality is possible.
2. In the exercise of his rights and freedoms, everyone shall be subject only to
such limitations as are determined by law solely for the purpose of securing due
recognition and respect for the rights and freedoms of others and of meeting the
just requirements of morality, public order and the general welfare in a
democratic society.
3. These rights and freedoms may in no case be exercised contrary to the
purposes and principles of the United Nations.
The International Covenant on Civil and Political Rights
Article 19.
1. Everyone shall have the right to hold opinions without interference.
2. Everyone shall have the right to freedom of expression; this right shall include
freedom to seek, receive and impart information and ideas of all kinds,
regardless of frontiers, either orally, in writing or in print, in the form of art, or
through any other media of his choice.
3. The exercise of the rights provided for in paragraph 2 of this article carries
with it special duties and responsibilities. It may therefore be subject to certain
restrictions, but these shall only be such as are provided by law and are
necessary:
(a) For respect of the rights or reputations of others;
(b) For the protection of national security or of public order (ordre public), or of
public health or morals.
Contrary to petitioner’s claim, the law is very clear and is nowhere vague in its
provisions. "Public" does not have to be defined. Its ordinary meaning is well-
known. Webster’s Dictionary defines it, thus:23
public, n, x x x 2a: an organized body of people x x x 3: a group of people
distinguished by common interests or characteristics x x x.
Not every expression of opinion is a public assembly. The law refers to "rally,
demonstration, march, parade, procession or any other form of mass or
concerted action held in a public place." So it does not cover any and all kinds
of gatherings.
Page 50 of 72
Neither is the law overbroad. It regulates the exercise of the right to peaceful
assembly and petition only to the extent needed to avoid a clear and present
danger of the substantive evils Congress has the right to prevent.
There is, likewise, no prior restraint, since the content of the speech is not
relevant to the regulation.
As to the delegation of powers to the mayor, the law provides a precise and
sufficient standard – the clear and present danger test stated in Sec. 6(a). The
reference to "imminent and grave danger of a substantive evil" in Sec. 6(c)
substantially means the same thing and is not an inconsistent standard. As to
whether respondent Mayor has the same power independently under Republic
Act No. 716024 is thus not necessary to resolve in these proceedings, and was
not pursued by the parties in their arguments.
Finally, for those who cannot wait, Section 15 of the law provides for an
alternative forum through the creation of freedom parks where no prior permit is
needed for peaceful assembly and petition at any time:
Sec. 15. Freedom parks. – Every city and municipality in the country shall within
six months after the effectivity of this Act establish or designate at least one
suitable "freedom park" or mall in their respective jurisdictions which, as far as
practicable, shall be centrally located within the poblacion where
demonstrations and meetings may be held at any time without the need of any
prior permit.
In the cities and municipalities of Metropolitan Manila, the respective mayors
shall establish the freedom parks within the period of six months from the
effectivity this Act.
This brings up the point, however, of compliance with this provision.
The Solicitor General stated during the oral arguments that, to his knowledge,
only Cebu City has declared a freedom park – Fuente Osmeña.
That of Manila, the Sunken Gardens, has since been converted into a golf
course, he added.
If this is so, the degree of observance of B.P. No. 880’s mandate that every city
and municipality set aside a freedom park within six months from its effectivity
in 1985, or 20 years ago, would be pathetic and regrettable. The matter appears
to have been taken for granted amidst the swell of freedom that rose from the
peaceful revolution of 1986.
Considering that the existence of such freedom parks is an essential part of the
law’s system of regulation of the people’s exercise of their right to peacefully
assemble and petition, the Court is constrained to rule that after thirty (30) days
from the finality of this Decision, no prior permit may be required for the exercise
of such right in any public park or plaza of a city or municipality until that city or
municipality shall have complied with Section 15 of the law. For without such
alternative forum, to deny the permit would in effect be to deny the right.
Advance notices should, however, be given to the authorities to ensure proper
coordination and orderly proceedings.
The Court now comes to the matter of the CPR. As stated earlier, the Solicitor
General has conceded that the use of the term should now be discontinued,
since it does not mean anything other than the maximum tolerance policy set
forth in B.P. No. 880. This is stated in the Affidavit of respondent Executive
Secretary Eduardo Ermita, submitted by the Solicitor General, thus:
14. The truth of the matter is the policy of "calibrated preemptive response" is in
consonance with the legal definition of "maximum tolerance" under Section 3 (c)
of B.P. Blg. 880, which is the "highest degree of restraint that the military, police
and other peacekeeping authorities shall observe during a public assembly or
in the dispersal of the same." Unfortunately, however, the phrase "maximum
tolerance" has acquired a different meaning over the years. Many have taken it
to mean inaction on the part of law enforcers even in the face of mayhem and
serious threats to public order. More so, other felt that they need not bother
secure a permit when holding rallies thinking this would be "tolerated." Clearly,
the popular connotation of "maximum tolerance" has departed from its real
essence under B.P. Blg. 880.
15. It should be emphasized that the policy of maximum tolerance is provided
under the same law which requires all pubic assemblies to have a permit, which
allows the dispersal of rallies without a permit, and which recognizes certain
instances when water cannons may be used. This could only mean that
"maximum tolerance" is not in conflict with a "no permit, no rally policy" or with
the dispersal and use of water cannons under certain circumstances for indeed,
the maximum amount of tolerance required is dependent on how peaceful or
unruly a mass action is. Our law enforcers should calibrate their response based
on the circumstances on the ground with the view to preempting the outbreak
of violence.
16. Thus, when I stated that calibrated preemptive response is being enforced
in lieu of maximum tolerance I clearly was not referring to its legal definition but
to the distorted and much abused definition that it has now acquired. I only
wanted to disabuse the minds of the public from the notion that law enforcers
would shirk their responsibility of keeping the peace even when confronted with
dangerously threatening behavior. I wanted to send a message that we would
no longer be lax in enforcing the law but would henceforth follow it to the letter.
Thus I said, "we have instructed the PNP as well as the local government units
to strictly enforce a no permit, no rally policy . . . arrest all persons violating the
laws of the land . . . unlawful mass actions will be dispersed." None of these is
at loggerheads with the letter and spirit of Batas Pambansa Blg. 880. It is thus
absurd for complainants to even claim that I ordered my co-respondents to
violate any law.25
At any rate, the Court rules that in view of the maximum tolerance mandated by
B.P. No. 880, CPR serves no valid purpose if it means the same thing as
maximum tolerance and is illegal if it means something else. Accordingly, what
is to be followed is and should be that mandated by the law itself, namely,
maximum tolerance, which specifically means the following:
Sec. 3. Definition of terms. – For purposes of this Act:
xxx
(c) "Maximum tolerance" means the highest degree of restraint that the military,
police and other peace keeping authorities shall observe during a public
assembly or in the dispersal of the same.
xxx
Sec. 9. Non-interference by law enforcement authorities. – Law enforcement
agencies shall not interfere with the holding of a public assembly. However, to
adequately ensure public safety, a law enforcement contingent under the
command of a responsible police officer may be detailed and stationed in a
place at least one hundred (100) meters away from the area of activity ready to
maintain peace and order at all times.
Sec. 10. Police assistance when requested. – It shall be imperative for law
enforcement agencies, when their assistance is requested by the leaders or
organizers, to perform their duties always mindful that their responsibility to
provide proper protection to those exercising their right peaceably to assemble
and the freedom of expression is primordial.1avvphil.net Towards this end, law
enforcement agencies shall observe the following guidelines:
(a) Members of the law enforcement contingent who deal with the
demonstrators shall be in complete uniform with their nameplates and units to
which they belong displayed prominently on the front and dorsal parts of their
uniform and must observe the policy of "maximum tolerance" as herein defined;
(b) The members of the law enforcement contingent shall not carry any kind of
firearms but may be equipped with baton or riot sticks, shields, crash helmets
with visor, gas masks, boots or ankle high shoes with shin guards;
(c) Tear gas, smoke grenades, water cannons, or any similar anti-riot device
shall not be used unless the public assembly is attended by actual violence or
serious threats of violence, or deliberate destruction of property.
Sec. 11. Dispersal of public assembly with permit. – No public assembly with a
permit shall be dispersed. However, when an assembly becomes violent, the
police may disperse such public assembly as follows:
(a) At the first sign of impending violence, the ranking officer of the law
enforcement contingent shall call the attention of the leaders of the public
assembly and ask the latter to prevent any possible disturbance;
(b) If actual violence starts to a point where rocks or other harmful objects from
the participants are thrown at the police or at the non-participants, or at any
property causing damage to such property, the ranking officer of the law
enforcement contingent shall audibly warn the participants that if the
disturbance persists, the public assembly will be dispersed;
(c) If the violence or disturbance prevailing as stated in the preceding
subparagraph should not stop or abate, the ranking officer of the law
enforcement contingent shall audibly issue a warning to the participants of the
public assembly, and after allowing a reasonable period of time to lapse, shall
immediately order it to forthwith disperse;
(d) No arrest of any leader, organizer or participant shall also be made during
the public assembly unless he violates during the assembly a law, statute,
ordinance or any provision of this Act. Such arrest shall be governed by Article
125 of the Revised Penal Code, as amended;
(d) Isolated acts or incidents of disorder or breach of the peace during the public
assembly shall not constitute a ground for dispersal.
xxx
Sec. 12. Dispersal of public assembly without permit. – When the public
assembly is held without a permit where a permit is required, the said public
assembly may be peacefully dispersed.
Sec. 13. Prohibited acts. – The following shall constitute violations of the Act:
(e) Obstructing, impeding, disrupting or otherwise denying the exercise of the
right to peaceful assembly;
(f) The unnecessary firing of firearms by a member of any law enforcement
agency or any person to disperse the public assembly;
(g) Acts described hereunder if committed within one hundred (100) meters from
the area of activity of the public assembly or on the occasion thereof:
Page 51 of 72
xxx
4. the carrying of firearms by members of the law enforcement unit;
5. the interfering with or intentionally disturbing the holding of a public assembly
by the use of a motor vehicle, its horns and loud sound systems.
Furthermore, there is need to address the situation adverted to by petitioners
where mayors do not act on applications for a permit and when the police
demand a permit and the rallyists could not produce one, the rally is immediately
dispersed. In such a situation, as a necessary consequence and part of
maximum tolerance, rallyists who can show the police an application duly filed
on a given date can, after two days from said date, rally in accordance with their
application without the need to show a permit, the grant of the permit being then
presumed under the law, and it will be the burden of the authorities to show that
there has been a denial of the application, in which case the rally may be
peacefully dispersed following the procedure of maximum tolerance prescribed
by the law.
In sum, this Court reiterates its basic policy of upholding the fundamental rights
of our people, especially freedom of expression and freedom of assembly. In
several policy addresses, Chief Justice Artemio V. Panganiban has repeatedly
vowed to uphold the liberty of our people and to nurture their prosperity. He said
that "in cases involving liberty, the scales of justice should weigh heavily against
the government and in favor of the poor, the oppressed, the marginalized, the
dispossessed and the weak. Indeed, laws and actions that restrict fundamental
rights come to the courts with a heavy presumption against their validity. These
laws and actions are subjected to heightened scrutiny."26
For this reason, the so-called calibrated preemptive response policy has no
place in our legal firmament and must be struck down as a darkness that
shrouds freedom. It merely confuses our people and is used by some police
agents to justify abuses. On the other hand, B.P. No. 880 cannot be condemned
as unconstitutional; it does not curtail or unduly restrict freedoms; it merely
regulates the use of public places as to the time, place and manner of
assemblies. Far from being insidious, "maximum tolerance" is for the benefit of
rallyists, not the government. The delegation to the mayors of the power to issue
rally "permits" is valid because it is subject to the constitutionally-sound "clear
and present danger" standard.
In this Decision, the Court goes even one step further in safeguarding liberty by
giving local governments a deadline of 30 days within which to designate
specific freedom parks as provided under B.P. No. 880. If, after that period, no
such parks are so identified in accordance with Section 15 of the law, all public
parks and plazas of the municipality or city concerned shall in effect be deemed
freedom parks; no prior permit of whatever kind shall be required to hold an
assembly therein. The only requirement will be written notices to the police and
the mayor’s office to allow proper coordination and orderly activities.
WHEREFORE, the petitions are GRANTED in part, and respondents, more
particularly the Secretary of the Interior and Local Governments, are DIRECTED
to take all necessary steps for the immediate compliance with Section 15 of
Batas Pambansa No. 880 through the establishment or designation of at least
one suitable freedom park or plaza in every city and municipality of the country.
After thirty (30) days from the finality of this Decision, subject to the giving of
advance notices, no prior permit shall be required to exercise the right to
peaceably assemble and petition in the public parks or plazas of a city or
municipality that has not yet complied with Section 15 of the law. Furthermore,
Calibrated Preemptive Response (CPR), insofar as it would purport to differ
from or be in lieu of maximum tolerance, is NULL and VOID and respondents
are ENJOINED to REFRAIN from using it and to STRICTLY OBSERVE the
requirements of maximum tolerance. The petitions are DISMISSED in all other
respects, and the constitutionality of Batas Pambansa No. 880 is SUSTAINED.
No costs.
SO ORDERED.
ADOLFO S. AZCUNA
Associate Justice
Republic of the Philippines
SUPREME COURT
Manila
FIRST DIVISION
G.R. No. 175241 February 24, 2010
INTEGRATED BAR OF THE PHILIPPINES represented by its National
President, Jose Anselmo I. Cadiz, H. HARRY L. ROQUE, and JOEL RUIZ
BUTUYAN, Petitioners,
vs.
HONORABLE MANILA MAYOR JOSE "LITO" ATIENZA, Respondent.
DECISION
CARPIO MORALES, J.:
Petitioners Integrated Bar of the Philippines1 (IBP) and lawyers H. Harry L.
Roque and Joel R. Butuyan appeal the June 28, 2006 Decision2 and the
October 26, 2006 Resolution3 of the Court of Appeals that found no grave abuse
of discretion on the part of respondent Jose "Lito" Atienza, the then mayor of
Manila, in granting a permit to rally in a venue other than the one applied for by
the IBP.
On June 15, 2006, the IBP, through its then National President Jose Anselmo
Cadiz (Cadiz), filed with the Office of the City Mayor of Manila a letter
application4 for a permit to rally at the foot of Mendiola Bridge on June 22, 2006
from 2:30 p.m. to 5:30 p.m. to be participated in by IBP officers and members,
law students and multi-sectoral organizations.
Respondent issued a permit5 dated June 16, 2006 allowing the IBP to stage a
rally on given date but indicated therein Plaza Miranda as the venue, instead of
Mendiola Bridge, which permit the IBP received on June 19, 2006.
Aggrieved, petitioners filed on June 21, 2006 before the Court of Appeals a
petition for certiorari docketed as CA-G.R. SP No. 94949.6 The petition having
been unresolved within 24 hours from its filing, petitioners filed before this Court
on June 22, 2006 a petition for certiorari docketed as G.R. No. 172951 which
assailed the appellate court’s inaction or refusal to resolve the petition within the
period provided under the Public Assembly Act of 1985.7
The Court, by Resolutions of July 26, 2006, August 30, 2006 and November 20,
2006, respectively, denied the petition for being moot and academic, denied the
relief that the petition be heard on the merits in view of the pendency of CA-G.R.
SP No. 94949, and denied the motion for reconsideration.
The rally pushed through on June 22, 2006 at Mendiola Bridge, after Cadiz
discussed with P/Supt. Arturo Paglinawan whose contingent from the Manila
Police District (MPD) earlier barred petitioners from proceeding thereto.
Petitioners allege that the participants voluntarily dispersed after the peaceful
conduct of the program.
The MPD thereupon instituted on June 26, 2006 a criminal action,8 docketed as
I.S. No. 06I-12501, against Cadiz for violating the Public Assembly Act in
staging a rally at a venue not indicated in the permit, to which charge Cadiz filed
a Counter-Affidavit of August 3, 2006.
In the meantime, the appellate court ruled, in CA-G.R. SP No. 94949, by the
first assailed issuance, that the petition became moot and lacked merit. The
appellate court also denied petitioners’ motion for reconsideration by the second
assailed issuance.
Hence, the filing of the present petition for review on certiorari, to which
respondent filed his Comment of November 18, 2008 which merited petitioners’
Reply of October 2, 2009.
The main issue is whether the appellate court erred in holding that the
modification of the venue in IBP’s rally permit does not constitute grave abuse
of discretion.
Petitioners assert that the partial grant of the application runs contrary to the
Pubic Assembly Act and violates their constitutional right to freedom of
expression and public assembly.
The Court shall first resolve the preliminary issue of mootness.
Undoubtedly, the petition filed with the appellate court on June 21, 2006 became
moot upon the passing of the date of the rally on June 22, 2006.
A moot and academic case is one that ceases to present a justiciable
controversy by virtue of supervening events, so that a declaration thereon would
be of no practical use or value. Generally, courts decline jurisdiction over such
case or dismiss it on ground of mootness. However, even in cases where
supervening events had made the cases moot, this Court did not hesitate to
resolve the legal or constitutional issues raised to formulate controlling
principles to guide the bench, bar and public. Moreover, as an exception to the
rule on mootness, courts will decide a question otherwise moot if it is capable
of repetition, yet evading review.9
In the present case, the question of the legality of a modification of a permit to
rally will arise each time the terms of an intended rally are altered by the
concerned official, yet it evades review, owing to the limited time in processing
the application where the shortest allowable period is five days prior to the
assembly. The susceptibility of recurrence compels the Court to definitively
resolve the issue at hand.
Respecting petitioners’ argument that the issues presented in CA-G.R. SP No.
94949 pose a prejudicial question to the criminal case against Cadiz, the Court
finds it improper to resolve the same in the present case.
Under the Rules,10 the existence of a prejudicial question is a ground in a
petition to suspend proceedings in a criminal action. Since suspension of the
proceedings in the criminal action may be made only upon petition and not at
the instance of the judge or the investigating prosecutor,11 the latter cannot take
cognizance of a claim of prejudicial question without a petition to suspend being
filed. Since a petition to suspend can be filed only in the criminal action,12 the
determination of the pendency of a prejudicial question should be made at the
first instance in the criminal action, and not before this Court in an appeal from
the civil action.
In proceeding to resolve the petition on the merits, the appellate court found no
grave abuse of discretion on the part of respondent because the Public
Page 52 of 72
Assembly Act does not categorically require respondent to specify in writing the
imminent and grave danger of a substantive evil which warrants the denial or
modification of the permit and merely mandates that the action taken shall be in
writing and shall be served on respondent within 24 hours. The appellate court
went on to hold that respondent is authorized to regulate the exercise of the
freedom of expression and of public assembly which are not absolute, and that
the challenged permit is consistent with Plaza Miranda’s designation as a
freedom park where protest rallies are allowed without permit.
The Court finds for petitioners.
Section 6 of the Public Assembly Act reads:
Section 6. Action to be taken on the application -
(a) It shall be the duty of the mayor or any official acting in his behalf to issue or
grant a permit unless there is clear and convincing evidence that the public
assembly will create a clear and present danger to public order, public safety,
public convenience, public morals or public health.
(b) The mayor or any official acting in his behalf shall act on the application
within two (2) working days from the date the application was filed, failing which,
the permit shall be deemed granted. Should for any reason the mayor or any
official acting in his behalf refuse to accept the application for a permit, said
application shall be posted by the applicant on the premises of the office of the
mayor and shall be deemed to have been filed.
(c) If the mayor is of the view that there is imminent and grave danger of a
substantive evil warranting the denial or modification of the permit, he shall
immediately inform the applicant who must be heard on the matter.
(d) The action on the permit shall be in writing and served on the application
[sic] within twenty-four hours.
(e) If the mayor or any official acting in his behalf denies the application or
modifies the terms thereof in his permit, the applicant may contest the decision
in an appropriate court of law.
(f) In case suit is brought before the Metropolitan Trial Court, the Municipal Trial
Court, the Municipal Circuit Trial Court, the Regional Trial Court, or the
Intermediate Appellate Court, its decisions may be appealed to the appropriate
court within forty-eight (48) hours after receipt of the same. No appeal bond and
record on appeal shall be required. A decision granting such permit or modifying
it in terms satisfactory to the applicant shall, be immediately executory.
(g) All cases filed in court under this Section shall be decided within twenty-four
(24) hours from date of filing. Cases filed hereunder shall be immediately
endorsed to the executive judge for disposition or, in his absence, to the next in
rank.
(h) In all cases, any decision may be appealed to the Supreme Court.
(i) Telegraphic appeals to be followed by formal appeals are hereby allowed.
(underscoring supplied)
In Bayan, Karapatan, Kilusang Magbubukid ng Pilipinas (KMP) v. Ermita,13 the
Court reiterated:
x x x Freedom of assembly connotes the right of the people to meet peaceably
for consultation and discussion of matters of public concern. It is entitled to be
accorded the utmost deference and respect. It is not to be limited, much less
denied, except on a showing, as is the case with freedom of expression, of a
clear and present danger of a substantive evil that the state has a right to
prevent. Even prior to the 1935 Constitution, Justice Malcolm had occasion to
stress that it is a necessary consequence of our republican institutions and
complements the right of free speech. To paraphrase the opinion of Justice
Rutledge, speaking for the majority of the American Supreme Court in Thomas
v. Collins, it was not by accident or coincidence that the rights to freedom of
speech and of the press were coupled in a single guarantee with the rights of
the people peaceably to assemble and to petition the government for redress of
grievances. All these rights, while not identical, are inseparable. In every case,
therefore, where 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.14 (emphasis
supplied)
The Court in Bayan stated that the provisions of the Public Assembly Act of
1985 practically codified the 1983 ruling in Reyes v. Bagatsing.15 In juxtaposing
Sections 4 to 6 of the Public Assembly Act with the pertinent portion of the Reyes
case, the Court elucidated as follows:
x x x [The public official concerned shall] 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, they can have recourse to the proper judicial authority.16
(italics and underscoring supplied)

In modifying the permit outright, respondent gravely abused his discretion when
he did not immediately inform the IBP who should have been heard first on the
matter of his perceived imminent and grave danger of a substantive evil that
may warrant the changing of the venue. The opportunity to be heard precedes
the action on the permit, since the applicant may directly go to court after an
unfavorable action on the permit.1avvphi1
Respondent failed to indicate how he had arrived at modifying the terms of the
permit against the standard of a clear and present danger test which, it bears
repeating, is an indispensable condition to such modification. Nothing in the
issued permit adverts to an imminent and grave danger of a substantive evil,
which "blank" denial or modification would, when granted imprimatur as the
appellate court would have it, render illusory any judicial scrutiny thereof.
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."17
(emphasis and underscoring supplied)
Notably, respondent failed to indicate in his Comment any basis or explanation
for his action. It smacks of whim and caprice for respondent to just impose a
change of venue for an assembly that was slated for a specific public place. It
is thus reversible error for the appellate court not to have found such grave
abuse of discretion and, under specific statutory
provision, not to have modified the permit "in terms satisfactory to the
applicant."18
WHEREFORE, the assailed Decision and Resolution of the Court of Appeals in
CA-G.R. SP No. 94949 are REVERSED. The Court DECLARES that
respondent committed grave abuse of discretion in modifying the rally permit
issued on June 16, 2006 insofar as it altered the venue from Mendiola Bridge to
Plaza Miranda.
SO ORDERED.
CONCHITA CARPIO MORALES
Associate Justice
RELIGION
Republic of the Philippines
SUPREME COURT
Manila
FIRST DIVISION
A.M. No. P-07-2333 December 19, 2007
(formerly OCA IPI No. 07-2510-P)
ANONYMOUS, complainant,
vs.
MA. VICTORIA P. RADAM, Utility Worker, Office of the Clerk of Court,
Regional Trial Court of Alaminos City, respondent.
RESOLUTION
CORONA, J.:
In an anonymous letter-complaint dated September 30, 2005,1 respondent Ma.
Victoria Radam, utility worker in the Office of the Clerk of Court of the Regional
Trial Court of Alaminos City in Pangasinan, was charged with immorality. The
unnamed complainant alleged that respondent was unmarried but got pregnant
and gave birth sometime in October 2005.2 The complainant claimed that
respondent’s behavior tainted the image of the judiciary.
In connection with the complaint, Judge Elpidio N. Abella3 conducted a discreet
investigation to verify the allegations against respondent.
In his report dated March 8, 2006,4 Judge Abella made the following findings:
On March 1, 2006, respondent submitted a letter addressed to the Honorable
Court Administrator, thru the undersigned, duly subscribed and sworn to before
the Clerk of Court VI of the Court, alleging among others, the following:
1) She admitted that she is single/unmarried, and indeed she was pregnant and
actually gave birth to a baby boy named Christian Jeon Radam on 03 November
2005 at the Western Pangasinan District Hospital, Alaminos City;
2) The reason why she did not yet marry the father of her child Christian Jeon
was that she and the child’s father have pending application[s] [to migrate to
Canada] as in fact they have [a] mutual plan to remain unmarried [and]
Page 53 of 72
3) Nevertheless, she expressed her remorse and promised not to commit the
same mistake and indiscretion in the future.
Further investigation reveal[ed] the following:
1) That respondent was appointed as Utility Worker on September 4, 2000;
2) The father of Christian Jeon Radam is unknown, as shown by the child’s
Certificate of Live Birth, hereto attached;5
3) It was verbally admitted by the respondent that she had given birth to two (2)
other children before Christian Jeon, but they were conceived and born while
respondent was working abroad and before she was employed in the [Office of
the Clerk of Court of the Regional Trial Court of] Alaminos City.6
In this connection, Judge Abella made the following recommendation:
Since respondent admitted that she is single and that she got pregnant and gave
birth to a baby boy without being married to the father of the child, albeit she
advanced the reason for her remaining unmarried, it being that she and her
boyfriend had a mutual plan to migrate to Canada, this Investigating Judge
considers that such conduct of the respondent fell short of the strict standards
of Court personnel and contrary to the Code of Judicial Ethics and the Civil
Service Rules. A place in the judiciary demands upright men and women who
must carry on with dignity, hence respondent is guilty of disgraceful and immoral
conduct which cannot be countenanced by the Court. Certainly, the image of
the Judiciary has been affected by such conduct of the respondent.
Premises considered, it is hereby respectfully recommended that respondent
MA. VICTORIA RADAM be accordingly found GUILTY of IMMORAL CONDUCT
or ACT UNBECOMING A COURT EMPLOYEE. A suspension of one (1) month
or a fine of Php5,000.00 is respectfully recommended, with warning that a
repetition of the same or similar act in the future will be dealt with more
severely.7
After reviewing the findings and recommendation of Judge Abella, the Office of
the Court Administrator (OCA) recommended that, in accordance with
Villanueva v. Milan,8 respondent be absolved of the charge of immorality
because her alleged misconduct (that is, giving birth out of wedlock) did not
affect the character and nature of her position as a utility worker.9 It observed:
[T]here is no indication that the relationship of respondent to her alleged
boyfriend has caused prejudice to any person or has adversely affected the
performance of her function as utility worker to the detriment of the public
service.
However, it proposed that she be held liable for conduct unbecoming a court
employee and imposed a fine of P5,000 for stating in the birth certificate of her
child Christian Jeon that the father was "unknown" to her.10
The OCA correctly exonerated respondent from the charge of immorality.
However, its recommendation to hold her liable for a charge of which she was
not previously informed was wrong.
For purposes of determining administrative responsibility, giving birth out of
wedlock is not per se immoral under civil service laws. For such conduct to
warrant disciplinary action, the same must be "grossly immoral," that is, it must
be so corrupt and false as to constitute a criminal act or so unprincipled as to
be reprehensible to a high degree.11
In Estrada v. Escritor,12 we emphasized that in determining whether the acts
complained of constitute "disgraceful and immoral behavior" under civil service
laws, the distinction between public and secular morality on the one hand, and
religious morality, on the other should be kept in mind.13 The distinction
between public and secular morality as expressed — albeit not exclusively — in
the law, on the one hand, and religious morality, on the other, is important
because the jurisdiction of the Court extends only to public and secular
morality.14 Thus, government action, including its proscription of immorality as
expressed in criminal law like adultery or concubinage, must have a secular
purpose.15
For a particular conduct to constitute "disgraceful and immoral" behavior under
civil service laws, it must be regulated on account of the concerns of public and
secular morality. It cannot be judged based on personal bias, specifically those
colored by particular mores. Nor should it be grounded on "cultural" values not
convincingly demonstrated to have been recognized in the realm of public policy
expressed in the Constitution and the laws.16 At the same time, the
constitutionally guaranteed rights (such as the right to privacy) should be
observed to the extent that they protect behavior that may be frowned upon by
the majority.17
Under these tests, two things may be concluded from the fact that an unmarried
woman gives birth out of wedlock:
(1) if the father of the child is himself unmarried, the woman is not ordinarily
administratively liable for disgraceful and immoral conduct.18 It may be a not-
so-ideal situation and may cause complications for both mother and child but it
does not give cause for administrative sanction. There is no law which penalizes
an unmarried mother under those circumstances by reason of her sexual
conduct or proscribes the consensual sexual activity between two unmarried
persons. Neither does the situation contravene any fundamental state policy as
expressed in the Constitution, a document that accommodates various belief
systems irrespective of dogmatic origins.19

(2) if the father of the child born out of wedlock is himself married to a woman
other than the mother, then there is a cause for administrative sanction against
either the father or the mother.20 In such a case, the "disgraceful and immoral
conduct" consists of having extramarital relations with a married person.21 The
sanctity of marriage is constitutionally recognized22 and likewise affirmed by
our statutes as a special contract of permanent union.23 Accordingly, judicial
employees have been sanctioned for their dalliances with married persons or
for their own betrayals of the marital vow of fidelity.
In this case, it was not disputed that, like respondent, the father of her child was
unmarried. Therefore, respondent cannot be held liable for disgraceful and
immoral conduct simply because she gave birth to the child Christian Jeon out
of wedlock.
Respondent was indicted only for alleged immorality for giving birth out of
wedlock. It was the only charge of which she was informed. Judge Abella’s
investigation focused solely on that matter. Thus, the recommendation of the
OCA that she be held administratively liable in connection with an entry in the
birth certificate of Christian Jeon came like a thief in the night. It was
unwarranted. Respondent was neither confronted with it nor given the chance
to explain it. To hold her liable for a totally different charge of which she was
totally unaware will violate her right to due process.
The essence of due process in an administrative proceeding is the opportunity
to explain one’s side, whether written or verbal.24 This presupposes that one
has been previously apprised of the accusation against him or her. Here,
respondent was deprived of both with regard to her alleged unbecoming conduct
in relation to a certain statement in the birth certificate of her child.
An employee must be informed of the charges proferred against him, and … the
normal way by which the employee is so informed is by furnishing him with a
copy of the charges against him. This is a basic procedural requirement that …
cannot [be] dispense[d] with and still remain consistent with the constitutional
provision on due process. The second minimum requirement is that the
employee charged with some misfeasance or malfeasance must have a
reasonable opportunity to present his side of the matter, that is to say, his
defenses against the charges levelled against him and to present evidence in
support of his defense(s).25
One’s employment is not merely a specie of property rights. It is also the means
by which he and those who depend on him live.26 It is therefore protected by
the guarantee of security of tenure. And in the civil service, this means that no
government employee may be removed, suspended or disciplined unless for
cause provided by law27 and after due process. Unless the constitutional
guarantee of due process is a mere platitude, it is the Court’s duty to insist on
its observance in all cases involving a deprivation, denigration or dilution of
one’s right to life, liberty and property.
WHEREFORE, the administrative complaint against respondent Ma. Victoria P.
Radam is hereby DISMISSED. She is, however, strongly advised to be more
circumspect in her personal and official actuations in the future.
SO ORDERED.
Puno, C.J., Chairperson, Sandoval-Gutierrez, Azcuna, Leonardo-de Castro, JJ.,
concur.
Republic of the Philippines
SUPREME COURT
Manila
EN BANC
March 7, 2017
A.M. No. 10-4-19-SC
RE: LETTER OF TONY Q. V ALENCIANO, HOLDING OF RELIGIOUS
RITUALS AT THE HALL OF JUSTICE BUILDING IN QUEZON CITY
RESOLUTION
MENDOZA, J.:
One of our fundamental differences lies in our chosen religion. Some put their
faith in a god different from ours, while some may not believe in a god at all.
Nevertheless, despite the inconveniences this difference may cause us, we
must accept it unconditionally for only upon acceptance of the fact that we are
different from each other will we learn to respect one another.
This controversy originated from a series of letters, written by Tony Q.
Valenciano (Valenciano) and addressed to then Chief Justice Reynato S.
Puno (Chief Justice Puno).
In his first Letter,1 dated January 6, 2009, Valenciano reported that the
basement of the Hall of Justice of Quezon City (QC) had been converted into a
Roman Catholic Chapel, complete with offertory table, images of Catholic
religious icons, a canopy, an electric organ, and a projector. He believed that
such practice violated the constitutional provision on the separation of Church
Page 54 of 72
and State and the constitutional prohibition against the appropriation of public
money or property for the benefit of a sect, church, denomination, or any other
system of religion.
Valenciano further averred that the holding of masses at the basement of the
QC Hall of Justice showed that it tended to favor Catholic litigants; that the
rehearsals of the choir caused great disturbance to other employees; that the
public could no longer use the basement as resting place; that the employees
and litigants of the Public Attorney's Office (PAO), Branches 82 and 83 of the
Regional Trial Court (RTC), Legal Library, Philippine Mediation Center, and
Records Section of the Office of the Clerk of Court (OCC) could not attend to
their personal necessities such as going to the lavatories because they could
not traverse the basement between 12:00 o'clock noontime and 1: 15 o'clock in
the afternoon; that the court employees became hostile toward each other as
they vied for the right to read the epistle; and that the water supply in the entire
building was cut off during the mass because the generator was turned off to
ensure silence.
In his 1st Indorsement,2 dated February 6, 2009, Chief Justice Puno referred
Valenciano 's letter to then Deputy Court Administrator (DCA) and Officer-in-
Charge of the Office on Halls of Justice, Antonio H. Dujua (DCA Dujua).
In turn, DCA Dujua, in his 1st Indorsement,3 dated February 11, 2009, referred
the letter to Executive Judge Teodoro A. Bay (Judge Bay) of the RTC and to
Executive Judge Luis Zenon Q. Maceren (Judge Maceren) of the Metropolitan
Trial Court (MeTC) for their respective comments.
In his March 6, 2009 Letter,4 addressed to DCA Dujua, Judge Maceren clarified
that the basement of the QC Hall of Justice was known as the prayer corner. He
opined that the use of the said area for holding masses did not violate the
constitutional prohibition against the use of public property for religious
purposes because the religious character of such use was merely incidental to
a temporary use.
In his Memorandum,5 dated March 10, 2009, Judge Bay manifested that he was
due to compulsorily retire on April 29, 2009, and he was taking a leave of
absence prior to such date to concentrate in resolving cases submitted for
decision before his sala and requested that then Vice-Executive Judge Jaime
N. Salazar (Judge Salazar) be assigned to further investigate, study, and make
recommendations on the matter raised by Valenciana.
In the meantime, Judge Bay recommended that, pending the final resolution of
the case, daily masses be permitted to continue, provided that: (1) the mass be
limited to thirty (30) minutes; (2) no loud singing be allowed so as not to disturb
others; and (3) the inconveniences caused by the mass be addressed.
In his 1st Indorsement,6 dated May 27, 2009, Chief Justice Puno referred
another letter of Valenciano, dated May 13, 2009, to DCA Dujua for appropriate
action, as he complained that masses continued to be held at the basement of
the QC Hall of Justice.
On March 23, 2010, Valenciano wrote another letter,7 praying that rules be
promulgated by the Court to put a stop to the holding of Catholic masses, or any
other religious rituals, at the QC Hall of Justice and in all other halls of justice in
the country.
In its June 22, 2010 Resolution,8 the Court noted the March 23, 2010 letter of
Valenciano and referred the matter to the Office of the Court Administrator
(OCA) for evaluation, report and recommendation.
Thus, in its 1st Indorsement,9 dated September 6, 2010, the OCA, through then
Assistant Court Administrator (ACA) Jenny Lind R. AldecoaDelorino (now
Deputy Court Administrator), referred the letters of Valenciano to the incumbent
RTC Executive Judge Fernando T. Sagun, Jr. (Judge Sagun, Jr.) and incumbent
MeTC Executive Judge Caridad M. WalseLutero (Judge Lutero).
In his Letter-Comment,10 dated September 9, 2010, Judge Sagun, Jr. informed
the Court that his office had already implemented measures to address
Valenciano's complaints. He reported that masses were shortened to a little over
thirty (30) minutes; that it was only during special holy days of obligation when
the celebration of mass went beyond one (1) o'clock in the afternoon; that the
pathways leading to the lavatories were open and could be used without
obstruction; that there was never an instance where the actions of court
personnel, who were vying to read the epistle during mass, caused back-biting
and irritation among themselves; that the water generator had been broken
beyond repair and decommissioned since December 2009; and that the court
employees prepared for the mass before the day officially started, so that the
performance of their official duties in court was not hampered.
In her letter,11 Judge Lutero reported that Catholic masses were being held only
during lunch breaks and did not disturb court proceedings; that the basement of
the QC Hall of Justice could still be used as waiting area for the public; that court
personnel and the public were never physically prevented from reaching the
lavatories during mass as there was a clear path from the public offices leading
to the comfort rooms; that water service interruptions were caused by
maintenance problems and not because the water pump was being shut off
during mass; and that the elevators could not be used during mass because
elevator attendants took their lunch break from twelve (12) o'clock to one (1)
o'clock in the afternoon.
Judge Lutero opined that it is not the conduct of masses in public places which
the Constitution prohibited, but the passage of laws or the use of public funds
for the purpose of establishing a religion or prohibiting the free exercise thereof.
She conveyed the fact that no law or rule had been passed and that no public
funds had been appropriated or used to support the celebration of masses. She
added that the holding of Catholic masses did not mean that Catholics had
better chances of obtaining favorable resolutions from the court.
Accordingly, Judge Lutero recommended that the holding of masses at the
basement of the QC Hall of Justice be allowed to continue considering that it
was not inimical to the interests of the court employees and the public.
The OCA Report
and Recommendation
In its Memorandum,12 dated August 7, 2014, the OCA believed that the
practical inconveniences cited by Valenciano were unfounded. It, thus,
recommended that his letter-complaints, dated January 6, 2009, May 13, 2009
and March 23, 2010, be dismissed for lack of merit and that the RTC and MeTC
Executive Judges of QC be directed to closely regulate and monitor the holding
of masses and other religious practices within the premises of the QC Hall of
Justice.1âwphi1
The OCA opined that the principle of separation of Church and State,
particularly with reference to the Establishment Clause, ought not to be
interpreted according to the rigid standards of separation; that the neutrality of
the State on religion should be benevolent because religion was an ingrained
part of society and played an important role in it; and that the State, therefore,
instead of being belligerent (in the case of Strict Separation) or being aloof (in
the case of Strict Neutrality) towards religion should instead interact and
forbear.13
The OCA advanced the view that the standard of Benevolent
Neutrality/Accommodation was espoused because the principal religion clauses
in our Constitution were not limited to the Establishment Clause, which created
a wall between the Church and the State, but was quickly followed by the
declaration of the Free Exercise Clause, which protected the right of the people
to practice their religion. In effect, the standard of Benevolent
Neutrality/Accommodation balanced the interest of the State through the
Establishment Clause, and the interest and right of the individual to freely
exercise his religion as guaranteed by the Free Exercise Clause.14
The OCA observed that the present controversy did not involve a national or
local law or regulation in conflict with the Free Exercise Clause. On the contrary,
Valenciano was merely questioning the propriety of holding religious masses at
the basement of the QC Hall of Justice, which was nothing more than an issue
of whether the said religious practice could be accommodated or not. It ended
up concluding that based on prevailing jurisprudence, as well as the
interpretations given to the religion clauses of the 1987 Constitution, there was
nothing constitutionally abhorrent in allowing the continuation of the masses.15
The OCA added that by allowing or accommodating the celebration of Catholic
masses within the premises of the QC Hall of Justice, the Court could not be
said to have established Roman Catholicism as an official religion or to have
endorsed the said religion, for the reason that it also allowed other religious
denominations to practice their religion within the courthouses.16
ISSUE
WHETHER THE HOLDING OF MASSES AT THE BASEMENT OF THE
QUEZON CITY HALL OF JUSTICE VIOLATES THE CONSTITUTIONAL
PRINCIPLE OF SEPARATION OF CHURCH AND STATE AS WELL AS THE
CONSTITUTIONAL PROHIBITION AGAINST APPROPRIATION OF PUBLIC
MONEY OR PROPERTY FOR THE BENEFIT OF ANY SECT, CHURCH,
DENOMINATION, SECTARIAN INSTITUTION, OR SYSTEM OF RELIGION.
The Court's Ruling
The Court agrees with the findings and recommendation of the OCA and denies
the prayer of Valenciano that the holding of religious rituals of any of the world's
religions in the QC Hall of Justice or any halls of justice all over the country be
prohibited.
The Holding of Religious
Rituals in the Halls of Justice
does not Amount to a Union of
Church and State
As earlier stated, Valenciano is against the holding of religious rituals in the halls
of justice on the ground that it violates the constitutional provision on the
separation of Church and State and the constitutional prohibition against the
appropriation of public money or property for the benefit of a sect, church,
denomination, or any other system of religion. Indeed, Section 6, Article II of the
1987 Constitution provides:
The separation of Church and State shall be inviolable.17
The Court once pronounced that "our history, not to speak of the history of
mankind, has taught us that the union of church and state is prejudicial to both,
for occasions might arise when the state will use the church, and the church the
state, as a weapon in the furtherance of their respective ends and aims."18
Justice Isagani Cruz expounded on this doctrine, viz.:
The rationale of the rule is summed up in the familiar saying, "Strong fences
make good neighbors." The idea is to delineate the boundaries between the two
Page 55 of 72
institutions and, thus, avoid encroachments by one against the other because
of a misunderstanding of the limits of their respective exclusive jurisdictions. The
demarcation line calls on the entities to "render therefore unto Caesar the things
that are Caesar's and unto God the things that are God's."19
This, notwithstanding, the State still recognizes the inherent right of the people
to have some form of belief system, whether such may be belief in a Supreme
Being, a certain way of life, or even an outright rejection of religion. Our very
own Constitution recognizes the heterogeneity and religiosity of our people as
reflected in lmbong v. Ochoa,20 as follows:
At the outset, it cannot be denied that we all live in a heterogeneous society. It
is made up of people of diverse ethnic, cultural and religious beliefs and
backgrounds. History has shown us that our government, in law and in practice,
has allowed these various religious, cultural, social and racial groups to thrive
in a single society together. It has embraced minority groups and is tolerant
towards all - the religious people of different sects and the non-believers. The
undisputed fact is that our people generally believe in a deity, whatever they
conceived Him to be, and to Whom they called for guidance and enlightenment
in crafting our fundamental law. Thus, the preamble of the present Constitution
reads:
We, the sovereign Filipino people, imploring the aid of Almighty God, in order to
build a just and humane society, and establish a Government that shall embody
our ideals and aspirations, promote the common good, conserve and develop
our patrimony, and secure to ourselves and our posterity, the blessings of
independence and democracy under the rule of law and a regime of truth,
justice, freedom, love, equality, and peace, do ordain and promulgate this
Constitution.
The Filipino people in "imploring the aid of Almighty God" manifested their
spirituality innate in our nature and consciousness as a people, shaped by
tradition and historical experience. As this is embodied in the preamble, it means
that the State recognizes with respect the influence of religion in so far as it
instills into the mind the purest principles of morality. Moreover, in recognition of
the contributions of religion to society, the 1935, 1973 and 1987 Constitutions
contain benevolent and accommodating provisions towards religions such as
tax exemption of church property, salary of religious officers in government
institutions, and optional religious instructions in public schools. [Emphases
supplied]
In Aglipay v. Ruiz21 (Aglipay), the Court acknowledged how religion could serve
as a motivating force behind each person's actions:
Religious freedom, however, as a constitutional mandate is not inhibition of
profound reverence for religion and is not a denial of its influence in human
affairs. Religion as a profession of faith to an active power that binds and
elevates man to his Creator is recognized. And, in so far as it instills into the
minds the purest principles of morality, its influence is deeply felt and highly
appreciated. When the Filipino people, in the preamble of their Constitution,
implored "the aid of Divine Providence, in order to establish a government that
shall embody their ideals, conserve and develop the patrimony of the nation,
promote the general welfare, and secure to themselves and their posterity the
blessings of independence under a regime of justice, liberty and democracy,"
they thereby manifested their intense religious nature and placed unfaltering
reliance upon Him who guides the destinies of men and nations. The elevating
influence of religion in human society is recognized here as elsewhere. In fact,
certain general concessions are indiscriminately accorded to religious sects and
denominations. Our Constitution and laws exempt from taxation properties
devoted exclusively to religious purposes (sec. 14, subsec. 3, Art. VI,
Constitution of the Philippines and sec. 1, subsec. Ordinance appended thereto;
Assessment Law, sec. 344, par [c], Adm. Code) sectarian aid is not prohibited
when a priest, preacher, minister or other religious teacher or dignitary as such
is assigned to the armed forces or to any penal institution, orphanage or
leprosarium xxx. Optional religious instruction in the public schools is by
constitutional mandate allowed xxx. Thursday and Friday of Holy Week,
Thanksgiving Day, Christmas Day, and Sundays are made legal holidays (sec.
29, Adm. Code) because of the secular idea that their observance is conducive
to beneficial moral results. The law allows divorce but punishes polygamy and
bigamy; and certain crimes against religious worship are considered crimes
against the fundamental laws of the state xxx.22 [Emphasis supplied]
Thus, the right to believe or not to believe has again been enshrined in Section
5, Article III of the 1987 Constitution:
Section 5. xxx. The free exercise and enjoyment of religious profession and
worship, without discrimination or preference, shall forever be allowed. xxx.
Free Exercise Clause
Freedom of religion was accorded preferred status by the framers of our
fundamental law. And this Court has consistently affirmed this preferred status,
well aware that it is "designed to protect the broadest possible liberty of
conscience, to allow each man to believe as his conscience directs, to profess
his beliefs, and to live as he believes he ought to live, consistent with the liberty
of others and with the common good."23
"The right to religious profession and worship has a two-fold aspect - freedom
to believe and freedom to act on one's beliefs. The first is absolute as long as
the belief is confined within the realm of thought. The second is subject to
regulation where the belief is translated into external acts that affect the public
welfare."24 Justice Isagani A. Cruz explained these two (2) concepts in this
wise:

(1) Freedom to Believe
The individual is free to believe (or disbelieve) as he pleases concerning the
hereafter. He may indulge his own theories about life and death; worship any
god he chooses, or none at all; embrace or reject any religion; acknowledge the
divinity of God or of any being that appeals to his reverence; recognize or deny
the immortality of his soul - in fact, cherish any religious conviction as he and he
alone sees fit. However absurd his beliefs may be to others, even if they be
hostile and heretical to the majority, he has full freedom to believe as he pleases.
He may not be required to prove his beliefs. He may not be punished for his
inability to do so. Religion, after all, is a matter of faith. "Men may believe what
they cannot prove." Every one has a right to his beliefs and he may not be called
to account because he cannot prove what he believes.
(2) Freedom to Act on One's Beliefs
But where the individual externalizes his beliefs in acts or omissions that affect
the public, his freedom to do so becomes subject to the authority of the State.
As great as this liberty may be, religious freedom, like all other rights guaranteed
in the Constitution, can be enjoyed only with a proper regard for the rights of
others.
It is error to think that the mere invocation of religious freedom will stalemate the
State and render it impotent in protecting the general welfare. The inherent
police power can be exercised to prevent religious practices inimical to society.
And this is true even if such practices are pursued out of sincere religious
conviction and not merely for the purpose of evading the reasonable
requirements or prohibitions of the law.
Justice Frankfurter put it succinctly: "The constitutional provision on religious
freedom terminated disabilities, it did not create new privileges. It gave religious
liberty, not civil immunity. Its essence is freedom from conformity to religious
dogma, not freedom from conformity to law because of religious dogma."25
Allowing religion to flourish is not contrary to the principle of separation of
Church and State. In fact, these two principles are in perfect harmony with each
other.
The State is aware of the existence of religious movements whose members
believe in the divinity of Jose Rizal. Yet, it does not implement measures to
suppress the said religious sects. Such inaction or indifference on the part of
the State gives meaning to the separation of Church and State, and at the same
time, recognizes the religious freedom of the members of these sects to worship
their own Supreme Being.
As pointed out by Judge Lutero, "the Roman Catholics express their worship
through the holy mass and to stop these would be tantamount to repressing the
right to the free exercise of their religion. Our Muslim brethren, who are
government employees, are allowed to worship their Allah even during office
hours inside their own offices. The Seventh Day Adventists are exempted from
rendering Saturday duty because their religion prohibits them from working on
a Saturday. Even Christians have been allowed to conduct their own bible
studies in their own offices. All these have been allowed in respect of the
workers' right to the free exercise of their religion. xxx"26
Clearly, allowing the citizens to practice their religion is not equivalent to a fusion
of Church and State.
No Compelling State Interest
Religious freedom, however, is not absolute. It cannot have its way if there is a
compelling state interest. To successfully invoke compelling state interest, it
must be demonstrated that the masses in the QC Hall of Justice unduly disrupt
the delivery of public services or affect the judges and employees in the
performance of their official functions. In Estrada v. Escritor,27 the Court
expounded on the test as follows:
The "compelling state interest" test is proper where conduct is involved for the
whole gamut of human conduct has different effects on the state's interests:
some effects may be immediate and short-term while others delayed and far-
reaching. A test that would protect the interests of the state in preventing a
substantive evil, whether immediate or delayed, is therefore necessary.
However, not any interest of the state would suffice to prevail over the right to
religious freedom as this is a fundamental .right that enjoys a preferred position
in the hierarchy of rights - "the most inalienable and sacred of all human rights",
in the words of Jefferson. This right is sacred for an invocation of the Free
Exercise Clause is an appeal to a higher sovereignty. The entire constitutional
order of limited government is premised upon an acknowledgment of such
higher sovereignty, thus the Filipinos implore the "aid of Almighty God in order
to build a just and humane society and establish a government." As held in
Sherbert, only the gravest abuses, endangering paramount interests can limit
this fundamental right. A mere balancing of interests which balances a right with
just a colorable state interest is therefore not appropriate. Instead, only a
compelling interest of the state can prevail over the fundamental right to
religious liberty. The test requires the state to carry a heavy burden, a
compelling one, for to do otherwise would allow the state to batter religion,
especially the less powerful ones until they are destroyed. In determining which
shall prevail between the state's interest and religious liberty, reasonableness
shall be the guide. The "compelling state interest" serves the purpose of revering
religious liberty while at the same time affording protection to the paramount
interests of the state. This was the test used in Sherbert which involved conduct,
i.e. refusal to work on Saturdays. In the end, the "compelling state interest" test,
Page 56 of 72
by upholding the paramount interests of the state, seeks to protect the very
state, without which, religious liberty will not be preserved.137 [Citations
omitted] [Emphases supplied]
As reported by the Executive Judges of Quezon City, the masses were being
conducted only during noon breaks and were not disruptive of public services.
The court proceedings were not being distracted or interrupted and that the
performance of the judiciary employees were not being adversely affected.
Moreover, no Civil Service rules were being violated. As there has been no
detrimental effect on the public service or prejudice to the State, there is simply
no state interest compelling enough to prohibit the exercise of religious freedom
in the halls of justice.
In fact, the Civil Service Commission (CSC) was more lenient or tolerant. On
November 13, 1981, the CSC came out with Resolution No. 81-1277, which
provided, among others, that "during Friday, the Muslim pray day, Muslims are
excused from work from 10:00 o'clock in the morning to 2:00 o'clock in the
afternoon." The Court struck this down28 as not sanctioned by the law. It wrote:
To allow the Muslim employees in the Judiciary to be excused from work from
10:00 a.m. to 2:00 p.m. every Friday (Muslim Prayer Day) during the entire
calendar year would mean a diminution of the prescribed government working
hours. For then, they would be rendering service twelve (12) hours less than
that required by the civil service rules for each month. Further, this would
encourage other religious denominations to request for similar treatment.
The performance of religious practices, whether by the Muslim employees or
those belonging to other religious denominations, should not prejudice the
courts and the public. Indeed, the exercise of religious freedom does not exempt
anyone from compliance with reasonable requirements of the law, including civil
service laws.
Accommodation, Not Establishment of Religion
In order to give life to the constitutional right of freedom of religion, the State
adopts a policy of accommodation. Accommodation is a recognition of the reality
that some governmental measures may not be imposed on a certain portion of
the population for the reason that these measures are contrary to their religious
beliefs. As long as it can be shown that the exercise of the right does not impair
the public welfare, the attempt of the State to regulate or prohibit such right
would be an unconstitutional encroachment.29
In Estrada v. Escritor,30 the Court adopted a policy of benevolent neutrality:
With religion looked upon with benevolence and not hostility, benevolent
neutrality allows accommodation of religion under certain circumstances.
Accommodations are government policies that take religion specifically into
account not to promote the government's favored form of religion, but to allow
individuals and groups to exercise their religion without hindrance. Their
purpose or effect therefore is to remove a burden on, or facilitate the exercise
of, a person's or institution's religion. As Justice Brennan explained, the
"government [may] take religion into account ... to exempt, when possible, from
generally applicable governmental regulation individuals whose religious beliefs
and practices would otherwise thereby be infringed, or to create without state
involvement an atmosphere in which voluntary religious exercise may flourish."
[Emphases supplied]
In Victoriano v. Elizalde Rope Workers Union,31 the Court upheld the exemption
of members of Iglesia ni Cristo from the coverage of a closed shop agreement
between their employer and a union, because it would violate the teaching of
their church not to affiliate with a labor organization.
In Ebralinag v. Division Superintendent of Schools of Cebu,32 the petitioners,
who were members of the Jehovah 's Witnesses, refused to salute the flag, sing
the national anthem, and recite the patriotic pledge for it is their belief that those
were acts of worship or religious devotion, which they could not conscientiously
give to anyone or anything except God. The Court accommodated them and
granted them an exemption from observing the flag ceremony out of respect for
their religious beliefs.
Further, several laws have been enacted to accommodate religion. The Revised
Administrative Code of 1987 has declared Maundy Thursday, Good Friday, and
Christmas Day as regular holidays. Republic Act (R.A.) No. 9177 proclaimed
the FIRST Day of Shawwal, the tenth month of the Islamic Calendar, a national
holiday for the observance of Eidul Fitr (the end of Ramadan). R.A. No. 9849
declared the tenth day of Zhu/ Hijja, the twelfth month of the Islamic Calendar,
a national holiday for the observance of Eidul Adha. Presidential Decree (P.D.)
No. 1083, otherwise known as the Code of Muslim Personal Laws of the
Philippines, expressly allows a Filipino Muslim to have more than one (1) wife
and exempts him from the crime of bigamy punishable under Revised Penal
Code (RPC). The same Code allows Muslims to have divorce.33
As to Muslims in government offices, Section 3 of P.D. No. 291, as amended by
P.D. No. 322, provides:
Sec. 3. (a) During the fasting season on the month of Ramadan, all Muslim
employees in the national government, government-owned or controlled
corporations, provinces, cities, municipalities and other instrumentalities shall
observe office hours from seven-thirty in the morning (7:30 a.m.) to three-thirty
in the afternoon (3:30 p.m.) without lunch break or coffee breaks, and that there
shall be no diminution of salary or wages, provided, that the employee who is
not fasting is not entitled to the benefit of this provision.
Pursuant thereto, the CSC promulgated Resolution No. 81-1277, dated
November 13, 1981, which reads in part:
2. During "Ramadan" the Fasting month (30 days) of the Muslims, the Civil
Service official time of 8 o'clock to 12 o'clock and 1 o'clock to 5 o'clock is hereby
modified to 7:30 AM. to 3:30 P.M. without noon break and the difference of 2
hours is not counted as undertime.
Following the decree, in Re: Request of Muslim Employees in the Different
Courts in Iligan City (Re: Office Hours),34 the Court recognized that the
observance of Ramadan as integral to the Islamic faith and allowed Muslim
employees in the Judiciary to hold flexible office hours from 7:30 o'clock in the
morning to 3:30 o'clock in the afternoon without any break during the period.
This is a clear case of accommodation because Section 5, Rule XVII of the
Omnibus Rules Implementing Book V of E.0. No. 292, enjoins all civil servants,
of whatever religious denomination, to render public service of no less than eight
(8) hours a day or forty (40) hours a week.
Non-Establishment Clause
On the opposite side of the spectrum is the constitutional mandate that "no law
shall be made respecting an establishment of religion,"35 otherwise known as
the non-establishment clause. Indeed, there is a thin line between
accommodation and establishment, which makes it even more imperative to
understand each of these concepts by placing them in the Filipino society's
perspective.
The non-establishment clause reinforces the wall of separation between Church
and State. It simply means that the State cannot set up a Church; nor pass laws
which aid one religion, aid all religion, or prefer one religion over another nor
force nor influence a person to go to or remain away from church against his will
or force him to profess a belief or disbelief in any religion; that the state cannot
punish a person for entertaining or professing religious beliefs or disbeliefs, for
church attendance or nonattendance; that no tax in any amount, large or small,
can be levied to support any religious activity or institution whatever they may
be called or whatever form they may adopt or teach or practice religion; that the
state cannot openly or secretly participate in the affairs of any religious
organization or group and vice versa.36 Its minimal sense is that the state
cannot establish or sponsor an official religion.37
In the same breath that the establishment clause restricts what the government
can do with religion, it also limits what religious sects can or cannot do. They
can neither cause the government to adopt their particular doctrines as policy
for everyone, nor can they cause the government to restrict other groups. To do
so, in simple terms, would cause the State to adhere to a particular religion and,
thus, establish a state religion.38
Father Bernas further elaborated on this matter, as follows:
"In effect, what non-establishment calls for is government neutrality in religious
matters. Such government neutrality may be summarized in four general
propositions: (1) Government must not prefer one religion over another or
religion over irreligion because such preference would violate voluntarism and
breed dissension; (2) Government funds must not be applied to religious
purposes because this too would violate voluntarism and breed interfaith
dissension; (3) Government action must not aid religion because this too can
violate voluntarism and breed interfaith dissension; [and] (4) Government action
must not result in excessive entanglement with religion because this too can
violate voluntarism and breed interfaith dissension."39
Establishment entails a positive action on the part of the State. Accommodation,
on the other hand, is passive. In the former, the State becomes involved through
the use of government resources with the primary intention of setting up a state
religion. In the latter, the State, without being entangled, merely gives
consideration to its citizens who want to freely exercise their religion.
In a September 12, 2003 Memorandum for Chief Justice Hilario G. Davide, Jr.,
the Office of the Chief Attorney recommended to deny, on constitutional
grounds, the request of Rev. Fr. Carlo M. Ilagan to hold a oneday vigil in honor
of the Our Lady of Caysasay within the premises of the Court. Such controversy
must be distinguished from the present issue in that with respect to the former,
a Catholic priest was the one who requested for the vigil. Moreover, in that case,
the vigil would take one (1) whole working day; whereas in this case, the masses
are held at the initiative of Catholic employees and only during the thirty-minute
lunch break.
Guided by the foregoing, it is our considered view that the holding of Catholic
masses at the basement of the QC Hall of Justice is not a case of establishment,
but merely accommodation. First, there is no law, ordinance or circular issued
by any duly constitutive authorities expressly mandating that judiciary
employees attend the Catholic masses at the basement. Second, when judiciary
employees attend the masses to profess their faith, it is at their own initiative as
they are there on their own free will and volition, without any coercion from the
judges or administrative officers. Third, no government funds are being spent
because the lightings and airconditioning continue to be operational even if
there are no religious rituals there. Fourth, the basement has neither been
converted into a Roman Catholic chapel nor has it been permanently
appropriated for the exclusive use of its faithful. Fifth, the allowance of the
masses has not prejudiced other religions.
No Appropriation of Public
Money or Property for the
Benefit of any Church
Page 57 of 72
Section 29 (2), Article VI of the 1987 Constitution provides, "No public money or
property shall be appropriated, applied, paid, or employed, directly or indirectly,
for the use, benefit, or support of any sect, church, denomination, sectarian
institution, or system of religion, or of any priest, preacher, minister, or other
religious teacher, or dignitary as such, except when such priest, preacher,
minister, or dignitary is assigned to the armed forces, or to any penal institution,
or government orphanage or leprosarium."
The word "apply" means "to use or employ for a particular purpose."40
"Appropriate" means "to prescribe a particular use for particular moneys or to
designate or destine a fund or property for a distinct use, or for the payment of
a particular demand."41
Under the principle of noscitur a sociis, where a particular word or phrase is
ambiguous in itself or is equally susceptible of various meanings, its correct
construction may be made clear and specific by considering the company of
words in which it is found or with which it is associated. This is because a word
or phrase in a statute is always used in association with other words or phrases,
and its meaning may, thus, be modified or restricted by the latter. The particular
words, clauses and phrases should not be studied as detached and isolated
expressions, but the whole and every part of the statute must be considered in
fixing the meaning of any of its parts and in order to produce a harmonious
whole. A statute must be so construed as to harmonize and give effect to all its
provisions whenever possible.42
Thus, the words "pay" and "employ" should be understood to mean that what is
prohibited is the use of public money or property for the sole purpose of
benefiting or supporting any church. The prohibition contemplates a scenario
where the appropriation is primarily intended for the furtherance of a particular
church.
It has also been held that the aforecited constitutional provision "does not inhibit
the use of public property for religious purposes when the religious character of
such use is merely incidental to a temporary use which is available
indiscriminately to the public in general." Hence, a public street may be used for
a religious procession even as it is available for a civic parade, in the same way
that a public plaza is not barred to a religious rally if it may also be used for a
political assemblage.43
In relation thereto, the phrase "directly or indirectly" refers to the manner of
appropriation of public money or property, not as to whether a particular act
involves a direct or a mere incidental benefit to any church. Otherwise, the
framers of the Constitution would have placed it before "use, benefit or support"
to describe the same. Even the exception to the same provision bolsters this
interpretation. The exception contemplates a situation wherein public funds are
paid to a priest, preacher, minister, or other religious teacher, or dignitary
because they rendered service in the armed forces, or to any penal institution,
or government orphanage or leprosarium. That a priest belongs to a particular
church and the latter may have benefited from the money he received is of no
moment, for the purpose of the payment of public funds is merely to compensate
the priest for services rendered and for which other persons, who will perform
the same services will also be compensated in the same manner.
Ut magis valeat quam pereat. The Constitution is to be interpreted as a whole.44
As such, the foregoing interpretation finds support in the
Establishment Clause, which is as clear as daylight in stating that what is
proscribed is the passage of any law which tends to establish a religion, not
merely to accommodate the free exercise thereof.
The Constitution even grants tax exemption to properties actually, directly and
exclusively devoted to religious purposes.45 Certainly, this benefits the religious
sects for a portion of what could have been collected for the benefit of the public
is surrendered in their favor.
In Manosca v. CA,46 a parcel of land located in Taguig was determined by the
National Historical Institute to be the birthsite of Felix Y. Manalo, the founder of
Iglesia ni Cristo. The Republic then sought to expropriate the said property. The
exercise of the power of eminent domain was questioned on the ground that it
would only benefit members of Iglesia ni Cristo. The Court upheld the legality of
the expropriation, viz.:
The practical reality that greater benefit may be derived by members of the
Iglesia ni Cristo than by most others could well be true but such a peculiar
advantage still remains to be merely incidental and secondary in nature.47
[Emphasis supplied]
Again, in Aglipay, the issuing and selling of postage stamps commemorative of
the Thirty-third International Eucharistic Congress was assailed on the ground
that it violated the constitutional prohibition against the appropriation of public
money or property for the benefit of any church. In ruling that there was no such
violation, the Court held:
It is obvious that while the issuance and sale of the stamps in question may be
said to be inseparably linked with an event of a religious character, the resulting
propaganda, if any, received by the Roman Catholic Church, was not the aim
and purpose of the Government. We are of the opinion that the Government
should not be embarrassed in its activities simply because of incidental results,
more or less religious in character, if the purpose had in view is one which could
legitimately be undertaken by appropriate legislation. The main purpose should
not be frustrated by its subordination to mere incidental results not
contemplated.48 [Emphasis supplied]

Here, the basement of the QC Hall of Justice is not appropriated, applied or
employed for the sole purpose of supporting the Roman Catholics.
Further, it has not been converted into a Roman Catholic chapel for the
exclusive use of its faithful contrary to the claim of Valenciana. Judge
Maceren reported that the basement is also being used as a public waiting area
for most of the day and a meeting place for different employee organizations.
The use of the area for holding masses is limited to lunch break period from
twelve (12) o'clock to one (1) o'clock in the afternoon. Further, Judge Sagun, Jr.
related that masses run for just a little over thirty (30) minutes. It is, therefore,
clear that no undue religious bias is being committed when the subject
basement is allowed to be temporarily used by the Catholics to celebrate mass,
as the same area can be used by other groups of people and for other
purposes.49 Thus, the basement of the QC Hall of Justice has remained to be
a public property devoted for public use because the holding of Catholic masses
therein is a mere incidental consequence of its primary purpose.
Conclusion
Directing the Executive Judges of the RTC and MeTC to regulate and closely
monitor the holding of masses and other religious practices within the courts
does not promote excessive collaboration between courts and various religions.
On the contrary, this is necessary to ensure that there would be no excessive
entanglement.
To disallow the holding of religious rituals within halls of justice would set a
dangerous precedent and commence a domino effect. Strict separation, rather
than benevolent neutrality/accommodation, would be the norm. Thus, the
establishment of Shari'a courts, the National Commission for Muslim Filipinos,
and the exception of Muslims from the provisions of the RPC relative to the
crime of bigamy would all be rendered nugatory because of strict separation.
The exception of members of Iglesia ni Cristo from joining a union or the non-
compulsion recognized in favor of members of the Jehovah's Witnesses from
doing certain gestures during the flag ceremony, will all go down the drain simply
because we insist on strict separation.
That the holding of masses at the basement of the QC Hall of Justice may offend
non-Catholics is no reason to proscribe it. Our Constitution ensures and
mandates an unconditional tolerance, without regard to whether those who seek
to profess their faith belong to the majority or to the minority. It is emphatic in
saying that "the free exercise and enjoyment of religious profession and worship
shall be without discrimination or preference." Otherwise, accommodation or
tolerance would just be mere lip service.
One cannot espouse that the constitutional freedom of religion ensures
tolerance, but, in reality, refuses to practice what he preaches. One cannot ask
for tolerance when he refuses to do the same for others.
In fine, the Court denies the plea that the holding of Catholic masses at the
basement of the QC Hall of Justice be prohibited because the said practice does
not violate the constitutional principle of separation of Church and State and the
constitutional prohibition against appropriation of public money or property for
the benefit of a sect, church, denomination, or any other system of religion.
WHEREFORE, the Court resolves to:
1. NOTE the letter-complaints of Mr. Tony Q. Valenciano, dated January 6,
2009, May 13, 2009, and March 23, 2010;
2. NOTE the 1st Indorsement, dated September 21, 2010, by the Office on Halls
of Justice, containing photocopies and certified photocopies of previous actions
made relative to the complaint;
3. NOTE the Letter-Comment, dated September 9, 2010, of Quezon City
Regional Trial Court Executive Judge Fernando T. Sagun, Jr.;
4. NOTE the undated Letter-Comment of Quezon City Metropolitan Trial Court
Executive Judge Caridad M. Walse-Lutero;
5. DENY the prayer of Tony Q. Valenciano to prohibit the holding of religious
rituals in the QC Hall of Justice and in all halls of justice in the country; and
6. DIRECT the Executive Judges of Quezon City to REGULATE and CLOSELY
MONITOR the holding of masses and other religious practices within the
Quezon City Hall of Justice by ensuring, among others, that:
(a) it does not disturb or interrupt court proceedings;
(b) it does not adversely affect and interrupt the delivery of public service; and
(c) it does not unduly inconvenience the public.
In no case shall a particular part of a public building be a permanent place for
worship for the benefit of any and all religious groups. There shall also be no
permanent display of religious icons in all halls of justice in the country. In case
of religious rituals, religious icons and images may be displayed but their
presentation is limited only during the celebration of such activities so as not to
offend the sensibilities of members of other religious denominations or the non-
religious public. After any religious affair, the icons and images shall be hidden
or concealed from public view.
Page 58 of 72
The disposition in this administrative matter shall apply to all halls of justice in
the country. Other churches, religious denominations or sects are entitled to the
same rights, privileges, and practices in every hall of justice. In other buildings
not owned or controlled by the Judiciary, the Executive Judges should
coordinate and seek approval of the building owners/administrators
accommodating their courts.
SO ORDERED.
JOSE CATRAL MENDOZA
Associate Justice
Republic of the Philippines
SUPREME COURT
Baguio City
EN BANC
G.R. No. 190582 April 8, 2010
ANG LADLAD LGBT PARTY represented herein by its Chair, DANTON
REMOTO, Petitioner,
vs.
COMMISSION ON ELECTIONS Respondent.
DECISION
DEL CASTILLO, J.:
... [F]reedom to differ is not limited to things that do not matter much. That would
be a mere shadow of freedom. The test of its substance is the right to differ as
to things that touch the heart of the existing order.
Justice Robert A. Jackson
West Virginia State Board of Education v. Barnette1
One unavoidable consequence of everyone having the freedom to choose is
that others may make different choices – choices we would not make for
ourselves, choices we may disapprove of, even choices that may shock or
offend or anger us. However, choices are not to be legally prohibited merely
because they are different, and the right to disagree and debate about important
questions of public policy is a core value protected by our Bill of Rights. Indeed,
our democracy is built on genuine recognition of, and respect for, diversity and
difference in opinion.
Since ancient times, society has grappled with deep disagreements about the
definitions and demands of morality. In many cases, where moral convictions
are concerned, harmony among those theoretically opposed is an
insurmountable goal. Yet herein lies the paradox – philosophical justifications
about what is moral are indispensable and yet at the same time powerless to
create agreement. This Court recognizes, however, that practical solutions are
preferable to ideological stalemates; accommodation is better than
intransigence; reason more worthy than rhetoric. This will allow persons of
diverse viewpoints to live together, if not harmoniously, then, at least, civilly.
Factual Background
This is a Petition for Certiorari under Rule 65 of the Rules of Court, with an
application for a writ of preliminary mandatory injunction, filed by Ang Ladlad
LGBT Party (Ang Ladlad) against the Resolutions of the Commission on
Elections (COMELEC) dated November 11, 20092 (the First Assailed
Resolution) and December 16, 20093 (the Second Assailed Resolution) in SPP
No. 09-228 (PL) (collectively, the Assailed Resolutions). The case has its roots
in the COMELEC’s refusal to accredit Ang Ladlad as a party-list organization
under Republic Act (RA) No. 7941, otherwise known as the Party-List System
Act.4
Ang Ladlad is an organization composed of men and women who identify
themselves as lesbians, gays, bisexuals, or trans-gendered individuals
(LGBTs). Incorporated in 2003, Ang Ladlad first applied for registration with the
COMELEC in 2006. The application for accreditation was denied on the ground
that the organization had no substantial membership base. On August 17, 2009,
Ang Ladlad again filed a Petition5 for registration with the COMELEC.
Before the COMELEC, petitioner argued that the LGBT community is a
marginalized and under-represented sector that is particularly disadvantaged
because of their sexual orientation and gender identity; that LGBTs are victims
of exclusion, discrimination, and violence; that because of negative societal
attitudes, LGBTs are constrained to hide their sexual orientation; and that Ang
Ladlad complied with the 8-point guidelines enunciated by this Court in Ang
Bagong Bayani-OFW Labor Party v. Commission on Elections.6 Ang Ladlad laid
out its national membership base consisting of individual members and
organizational supporters, and outlined its platform of governance.7
On November 11, 2009, after admitting the petitioner’s evidence, the COMELEC
(Second Division) dismissed the Petition on moral grounds, stating that:
x x x This Petition is dismissible on moral grounds. Petitioner defines the Filipino
Lesbian, Gay, Bisexual and Transgender (LGBT) Community, thus:
x x x a marginalized and under-represented sector that is particularly
disadvantaged because of their sexual orientation and gender identity.
and proceeded to define sexual orientation as that which:
x x x refers to a person’s capacity for profound emotional, affectional and sexual
attraction to, and intimate and sexual relations with, individuals of a different
gender, of the same gender, or more than one gender."
This definition of the LGBT sector makes it crystal clear that petitioner tolerates
immorality which offends religious beliefs. In Romans 1:26, 27, Paul wrote:
For this cause God gave them up into vile affections, for even their women did
change the natural use into that which is against nature: And likewise also the
men, leaving the natural use of the woman, burned in their lust one toward
another; men with men working that which is unseemly, and receiving in
themselves that recompense of their error which was meet.
In the Koran, the hereunder verses are pertinent:
For ye practice your lusts on men in preference to women "ye are indeed a
people transgressing beyond bounds." (7.81) "And we rained down on them a
shower (of brimstone): Then see what was the end of those who indulged in sin
and crime!" (7:84) "He said: "O my Lord! Help Thou me against people who do
mischief" (29:30).
As correctly pointed out by the Law Department in its Comment dated October
2, 2008:
The ANG LADLAD apparently advocates sexual immorality as indicated in the
Petition’s par. 6F: ‘Consensual partnerships or relationships by gays and
lesbians who are already of age’. It is further indicated in par. 24 of the Petition
which waves for the record: ‘In 2007, Men Having Sex with Men or MSMs in the
Philippines were estimated as 670,000 (Genesis 19 is the history of Sodom and
Gomorrah).
Laws are deemed incorporated in every contract, permit, license, relationship,
or accreditation. Hence, pertinent provisions of the Civil Code and the Revised
Penal Code are deemed part of the requirement to be complied with for
accreditation.
ANG LADLAD collides with Article 695 of the Civil Code which defines nuisance
as ‘Any act, omission, establishment, business, condition of property, or
anything else which x x x (3) shocks, defies; or disregards decency or morality
xxx
It also collides with Article 1306 of the Civil Code: ‘The contracting parties may
establish such stipulations, clauses, terms and conditions as they may deem
convenient, provided they are not contrary to law, morals, good customs, public
order or public policy. Art 1409 of the Civil Code provides that ‘Contracts whose
cause, object or purpose is contrary to law, morals, good customs, public order
or public policy’ are inexistent and void from the beginning.
Finally to safeguard the morality of the Filipino community, the Revised Penal
Code, as amended, penalizes ‘Immoral doctrines, obscene publications and
exhibitions and indecent shows’ as follows:
Art. 201. Immoral doctrines, obscene publications and exhibitions, and indecent
shows. — The penalty of prision mayor or a fine ranging from six thousand to
twelve thousand pesos, or both such imprisonment and fine, shall be imposed
upon:
1. Those who shall publicly expound or proclaim doctrines openly contrary to
public morals;
2. (a) The authors of obscene literature, published with their knowledge in any
form; the editors publishing such literature; and the owners/operators of the
establishment selling the same;
(b) Those who, in theaters, fairs, cinematographs or any other place, exhibit
indecent or immoral plays, scenes, acts or shows, it being understood that the
obscene literature or indecent or immoral plays, scenes, acts or shows, whether
live or in film, which are prescribed by virtue hereof, shall include those which:
(1) glorify criminals or condone crimes; (2) serve no other purpose but to satisfy
the market for violence, lust or pornography; (3) offend any race or religion; (4)
tend to abet traffic in and use of prohibited drugs; and (5) are contrary to law,
public order, morals, good customs, established policies, lawful orders, decrees
and edicts.
3. Those who shall sell, give away or exhibit films, prints, engravings, sculpture
or literature which are offensive to morals.
Petitioner should likewise be denied accreditation not only for advocating
immoral doctrines but likewise for not being truthful when it said that it "or any
of its nominees/party-list representatives have not violated or failed to comply
with laws, rules, or regulations relating to the elections."
Furthermore, should this Commission grant the petition, we will be exposing our
youth to an environment that does not conform to the teachings of our faith.
Lehman Strauss, a famous bible teacher and writer in the U.S.A. said in one
article that "older practicing homosexuals are a threat to the youth." As an
agency of the government, ours too is the State’s avowed duty under Section
Page 59 of 72
13, Article II of the Constitution to protect our youth from moral and spiritual
degradation.8
When Ang Ladlad sought reconsideration,9 three commissioners voted to
overturn the First Assailed Resolution (Commissioners Gregorio Y. Larrazabal,
Rene V. Sarmiento, and Armando Velasco), while three commissioners voted
to deny Ang Ladlad’s Motion for Reconsideration (Commissioners Nicodemo T.
Ferrer, Lucenito N. Tagle, and Elias R. Yusoph). The COMELEC Chairman,
breaking the tie and speaking for the majority in his Separate Opinion, upheld
the First Assailed Resolution, stating that:
I. The Spirit of Republic Act No. 7941
Ladlad is applying for accreditation as a sectoral party in the party-list system.
Even assuming that it has properly proven its under-representation and
marginalization, it cannot be said that Ladlad’s expressed sexual orientations
per se would benefit the nation as a whole.
Section 2 of the party-list law unequivocally states that the purpose of the party-
list system of electing congressional representatives is to enable Filipino citizens
belonging to marginalized and under-represented sectors, organizations and
parties, and who lack well-defined political constituencies but who could
contribute to the formulation and enactment of appropriate legislation that will
benefit the nation as a whole, to become members of the House of
Representatives.
If entry into the party-list system would depend only on the ability of an
organization to represent its constituencies, then all representative
organizations would have found themselves into the party-list race. But that is
not the intention of the framers of the law. The party-list system is not a tool to
advocate tolerance and acceptance of misunderstood persons or groups of
persons. Rather, the party-list system is a tool for the realization of aspirations
of marginalized individuals whose interests are also the nation’s – only that their
interests have not been brought to the attention of the nation because of their
under representation. Until the time comes when Ladlad is able to justify that
having mixed sexual orientations and transgender identities is beneficial to the
nation, its application for accreditation under the party-list system will remain
just that.
II. No substantial differentiation
In the United States, whose equal protection doctrine pervades Philippine
jurisprudence, courts do not recognize lesbians, gays, homosexuals, and
bisexuals (LGBT) as a "special class" of individuals. x x x Significantly, it has
also been held that homosexuality is not a constitutionally protected
fundamental right, and that "nothing in the U.S. Constitution discloses a
comparable intent to protect or promote the social or legal equality of
homosexual relations," as in the case of race or religion or belief.
xxxx
Thus, even if society’s understanding, tolerance, and acceptance of LGBT’s is
elevated, there can be no denying that Ladlad constituencies are still males and
females, and they will remain either male or female protected by the same Bill
of Rights that applies to all citizens alike.
xxxx
IV. Public Morals
x x x There is no question about not imposing on Ladlad Christian or Muslim
religious practices. Neither is there any attempt to any particular religious
group’s moral rules on Ladlad. Rather, what are being adopted as moral
parameters and precepts are generally accepted public morals. They are
possibly religious-based, but as a society, the Philippines cannot ignore its more
than 500 years of Muslim and Christian upbringing, such that some moral
precepts espoused by said religions have sipped [sic] into society and these are
not publicly accepted moral norms.
V. Legal Provisions
But above morality and social norms, they have become part of the law of the
land. Article 201 of the Revised Penal Code imposes the penalty of prision
mayor upon "Those who shall publicly expound or proclaim doctrines openly
contrary to public morals." It penalizes "immoral doctrines, obscene publications
and exhibition and indecent shows." "Ang Ladlad" apparently falls under these
legal provisions. This is clear from its Petition’s paragraph 6F: "Consensual
partnerships or relationships by gays and lesbians who are already of age’ It is
further indicated in par. 24 of the Petition which waves for the record: ‘In 2007,
Men Having Sex with Men or MSMs in the Philippines were estimated as
670,000. Moreoever, Article 694 of the Civil Code defines "nuisance" as any act,
omission x x x or anything else x x x which shocks, defies or disregards decency
or morality x x x." These are all unlawful.10
On January 4, 2010, Ang Ladlad filed this Petition, praying that the Court annul
the Assailed Resolutions and direct the COMELEC to grant Ang Ladlad’s
application for accreditation. Ang Ladlad also sought the issuance ex parte of a
preliminary mandatory injunction against the COMELEC, which had previously
announced that it would begin printing the final ballots for the May 2010
elections by January 25, 2010.
On January 6, 2010, we ordered the Office of the Solicitor General (OSG) to file
its Comment on behalf of COMELEC not later than 12:00 noon of January 11,
2010.11 Instead of filing a Comment, however, the OSG filed a Motion for
Extension, requesting that it be given until January 16, 2010 to Comment.12
Somewhat surprisingly, the OSG later filed a Comment in support of petitioner’s
application.13 Thus, in order to give COMELEC the opportunity to fully ventilate
its position, we required it to file its own comment.14 The COMELEC, through
its Law Department, filed its Comment on February 2, 2010.15
In the meantime, due to the urgency of the petition, we issued a temporary
restraining order on January 12, 2010, effective immediately and continuing until
further orders from this Court, directing the COMELEC to cease and desist from
implementing the Assailed Resolutions.16
Also, on January 13, 2010, the Commission on Human Rights (CHR) filed a
Motion to Intervene or to Appear as Amicus Curiae, attaching thereto its
Comment-in-Intervention.17 The CHR opined that the denial of Ang Ladlad’s
petition on moral grounds violated the standards and principles of the
Constitution, the Universal Declaration of Human Rights (UDHR), and the
International Covenant on Civil and Political Rights (ICCPR). On January 19,
2010, we granted the CHR’s motion to intervene.
On January 26, 2010, Epifanio D. Salonga, Jr. filed his Motion to Intervene18
which motion was granted on February 2, 2010.19
The Parties’ Arguments
Ang Ladlad argued that the denial of accreditation, insofar as it justified the
exclusion by using religious dogma, violated the constitutional guarantees
against the establishment of religion. Petitioner also claimed that the Assailed
Resolutions contravened its constitutional rights to privacy, freedom of speech
and assembly, and equal protection of laws, as well as constituted violations of
the Philippines’ international obligations against discrimination based on sexual
orientation.
The OSG concurred with Ang Ladlad’s petition and argued that the COMELEC
erred in denying petitioner’s application for registration since there was no basis
for COMELEC’s allegations of immorality. It also opined that LGBTs have their
own special interests and concerns which should have been recognized by the
COMELEC as a separate classification. However, insofar as the purported
violations of petitioner’s freedom of speech, expression, and assembly were
concerned, the OSG maintained that there had been no restrictions on these
rights.
In its Comment, the COMELEC reiterated that petitioner does not have a
concrete and genuine national political agenda to benefit the nation and that the
petition was validly dismissed on moral grounds. It also argued for the first time
that the LGBT sector is not among the sectors enumerated by the Constitution
and RA 7941, and that petitioner made untruthful statements in its petition when
it alleged its national existence contrary to actual verification reports by
COMELEC’s field personnel.
Our Ruling
We grant the petition.
Compliance with the Requirements of the Constitution and Republic Act No.
7941
The COMELEC denied Ang Ladlad’s application for registration on the ground
that the LGBT sector is neither enumerated in the Constitution and RA 7941,
nor is it associated with or related to any of the sectors in the enumeration.
Respondent mistakenly opines that our ruling in Ang Bagong Bayani stands for
the proposition that only those sectors specifically enumerated in the law or
related to said sectors (labor, peasant, fisherfolk, urban poor, indigenous
cultural communities, elderly, handicapped, women, youth, veterans, overseas
workers, and professionals) may be registered under the party-list system. As
we explicitly ruled in Ang Bagong Bayani-OFW Labor Party v. Commission on
Elections,20 "the enumeration of marginalized and under-represented sectors
is not exclusive". The crucial element is not whether a sector is specifically
enumerated, but whether a particular organization complies with the
requirements of the Constitution and RA 7941.
Respondent also argues that Ang Ladlad made untruthful statements in its
petition when it alleged that it had nationwide existence through its members
and affiliate organizations. The COMELEC claims that upon verification by its
field personnel, it was shown that "save for a few isolated places in the country,
petitioner does not exist in almost all provinces in the country."21
This argument that "petitioner made untruthful statements in its petition when it
alleged its national existence" is a new one; previously, the COMELEC claimed
that petitioner was "not being truthful when it said that it or any of its
nominees/party-list representatives have not violated or failed to comply with
laws, rules, or regulations relating to the elections." Nowhere was this ground
for denial of petitioner’s accreditation mentioned or even alluded to in the
Assailed Resolutions. This, in itself, is quite curious, considering that the reports
of petitioner’s alleged non-existence were already available to the COMELEC
prior to the issuance of the First Assailed Resolution. At best, this is irregular
procedure; at worst, a belated afterthought, a change in respondent’s theory,
and a serious violation of petitioner’s right to procedural due process.
Nonetheless, we find that there has been no misrepresentation. A cursory
perusal of Ang Ladlad’s initial petition shows that it never claimed to exist in
each province of the Philippines. Rather, petitioner alleged that the LGBT
Page 60 of 72
community in the Philippines was estimated to constitute at least 670,000
persons; that it had 16,100 affiliates and members around the country, and
4,044 members in its electronic discussion group.22 Ang Ladlad also
represented itself to be "a national LGBT umbrella organization with affiliates
around the Philippines composed of the following LGBT networks:"
§ Abra Gay Association
§ Aklan Butterfly Brigade (ABB) – Aklan
§ Albay Gay Association
§ Arts Center of Cabanatuan City – Nueva Ecija
§ Boys Legion – Metro Manila
§ Cagayan de Oro People Like Us (CDO PLUS)
§ Can’t Live in the Closet, Inc. (CLIC) – Metro Manila
§ Cebu Pride – Cebu City
§ Circle of Friends
§ Dipolog Gay Association – Zamboanga del Norte
§ Gay, Bisexual, & Transgender Youth Association (GABAY)
§ Gay and Lesbian Activists Network for Gender Equality (GALANG) – Metro
Manila
§ Gay Men’s Support Group (GMSG) – Metro Manila
§ Gay United for Peace and Solidarity (GUPS) – Lanao del Norte
§ Iloilo City Gay Association – Iloilo City
§ Kabulig Writer’s Group – Camarines Sur
§ Lesbian Advocates Philippines, Inc. (LEAP)
§ LUMINA – Baguio City
§ Marikina Gay Association – Metro Manila
§ Metropolitan Community Church (MCC) – Metro Manila
§ Naga City Gay Association – Naga City
§ ONE BACARDI
§ Order of St. Aelred (OSAe) – Metro Manila
§ PUP LAKAN
§ RADAR PRIDEWEAR
§ Rainbow Rights Project (R-Rights), Inc. – Metro Manila
§ San Jose del Monte Gay Association – Bulacan
§ Sining Kayumanggi Royal Family – Rizal
§ Society of Transexual Women of the Philippines (STRAP) – Metro Manila
§ Soul Jive – Antipolo, Rizal
§ The Link – Davao City
§ Tayabas Gay Association – Quezon
§ Women’s Bisexual Network – Metro Manila
§ Zamboanga Gay Association – Zamboanga City23
Since the COMELEC only searched for the names ANG LADLAD LGBT or
LADLAD LGBT, it is no surprise that they found that petitioner had no presence
in any of these regions. In fact, if COMELEC’s findings are to be believed,
petitioner does not even exist in Quezon City, which is registered as Ang
Ladlad’s principal place of business.
Against this backdrop, we find that Ang Ladlad has sufficiently demonstrated its
compliance with the legal requirements for accreditation. Indeed, aside from
COMELEC’s moral objection and the belated allegation of non-existence,
nowhere in the records has the respondent ever found/ruled that Ang Ladlad is
not qualified to register as a party-list organization under any of the requisites
under RA 7941 or the guidelines in Ang Bagong Bayani. The difference,
COMELEC claims, lies in Ang Ladlad’s morality, or lack thereof.
Religion as the Basis for Refusal to Accept Ang Ladlad’s Petition for Registration
Our Constitution provides in Article III, Section 5 that "[n]o law shall be made
respecting an establishment of religion, or prohibiting the free exercise thereof."
At bottom, what our non-establishment clause calls for is "government neutrality
in religious matters."24 Clearly, "governmental reliance on religious justification
is inconsistent with this policy of neutrality."25 We thus find that it was grave
violation of the non-establishment clause for the COMELEC to utilize the Bible
and the Koran to justify the exclusion of Ang Ladlad.
Rather than relying on religious belief, the legitimacy of the Assailed Resolutions
should depend, instead, on whether the COMELEC is able to advance some
justification for its rulings beyond mere conformity to religious doctrine.
Otherwise stated, government must act for secular purposes and in ways that
have primarily secular effects. As we held in Estrada v. Escritor:26
x x x The morality referred to in the law is public and necessarily secular, not
religious as the dissent of Mr. Justice Carpio holds. "Religious teachings as
expressed in public debate may influence the civil public order but public moral
disputes may be resolved only on grounds articulable in secular terms."
Otherwise, if government relies upon religious beliefs in formulating public
policies and morals, the resulting policies and morals would require conformity
to what some might regard as religious programs or agenda. The non-believers
would therefore be compelled to conform to a standard of conduct buttressed
by a religious belief, i.e., to a "compelled religion," anathema to religious
freedom. Likewise, if government based its actions upon religious beliefs, it
would tacitly approve or endorse that belief and thereby also tacitly disapprove
contrary religious or non-religious views that would not support the policy. As a
result, government will not provide full religious freedom for all its citizens, or
even make it appear that those whose beliefs are disapproved are second-class
citizens.1avvphi1
In other words, government action, including its proscription of immorality as
expressed in criminal law like concubinage, must have a secular purpose. That
is, the government proscribes this conduct because it is "detrimental (or
dangerous) to those conditions upon which depend the existence and progress
of human society" and not because the conduct is proscribed by the beliefs of
one religion or the other. Although admittedly, moral judgments based on
religion might have a compelling influence on those engaged in public
deliberations over what actions would be considered a moral disapprobation
punishable by law. After all, they might also be adherents of a religion and thus
have religious opinions and moral codes with a compelling influence on them;
the human mind endeavors to regulate the temporal and spiritual institutions of
society in a uniform manner, harmonizing earth with heaven. Succinctly put, a
law could be religious or Kantian or Aquinian or utilitarian in its deepest roots,
but it must have an articulable and discernible secular purpose and justification
to pass scrutiny of the religion clauses. x x x Recognizing the religious nature of
the Filipinos and the elevating influence of religion in society, however, the
Philippine constitution's religion clauses prescribe not a strict but a benevolent
neutrality. Benevolent neutrality recognizes that government must pursue its
secular goals and interests but at the same time strive to uphold religious liberty
to the greatest extent possible within flexible constitutional limits. Thus, although
the morality contemplated by laws is secular, benevolent neutrality could allow
for accommodation of morality based on religion, provided it does not offend
compelling state interests.27
Public Morals as a Ground to Deny Ang Ladlad’s Petition for Registration
Respondent suggests that although the moral condemnation of homosexuality
and homosexual conduct may be religion-based, it has long been transplanted
into generally accepted public morals. The COMELEC argues:
Petitioner’s accreditation was denied not necessarily because their group
consists of LGBTs but because of the danger it poses to the people especially
the youth. Once it is recognized by the government, a sector which believes that
there is nothing wrong in having sexual relations with individuals of the same
gender is a bad example. It will bring down the standard of morals we cherish
in our civilized society. Any society without a set of moral precepts is in danger
of losing its own existence.28
We are not blind to the fact that, through the years, homosexual conduct, and
perhaps homosexuals themselves, have borne the brunt of societal disapproval.
It is not difficult to imagine the reasons behind this censure – religious beliefs,
convictions about the preservation of marriage, family, and procreation, even
dislike or distrust of homosexuals themselves and their perceived lifestyle.
Nonetheless, we recall that the Philippines has not seen fit to criminalize
homosexual conduct. Evidently, therefore, these "generally accepted public
morals" have not been convincingly transplanted into the realm of law.29
The Assailed Resolutions have not identified any specific overt immoral act
performed by Ang Ladlad. Even the OSG agrees that "there should have been
a finding by the COMELEC that the group’s members have committed or are
committing immoral acts."30 The OSG argues:
x x x A person may be sexually attracted to a person of the same gender, of a
different gender, or more than one gender, but mere attraction does not
translate to immoral acts. There is a great divide between thought and action.
Reduction ad absurdum. If immoral thoughts could be penalized, COMELEC
would have its hands full of disqualification cases against both the "straights"
and the gays." Certainly this is not the intendment of the law.31
Respondent has failed to explain what societal ills are sought to be prevented,
or why special protection is required for the youth. Neither has the COMELEC
condescended to justify its position that petitioner’s admission into the party-list
system would be so harmful as to irreparably damage the moral fabric of society.
We, of course, do not suggest that the state is wholly without authority to
regulate matters concerning morality, sexuality, and sexual relations, and we
recognize that the government will and should continue to restrict behavior
considered detrimental to society. Nonetheless, we cannot countenance
advocates who, undoubtedly with the loftiest of intentions, situate morality on
one end of an argument or another, without bothering to go through the rigors
of legal reasoning and explanation. In this, the notion of morality is robbed of all
value. Clearly then, the bare invocation of morality will not remove an issue from
our scrutiny.
We also find the COMELEC’s reference to purported violations of our penal and
civil laws flimsy, at best; disingenuous, at worst. Article 694 of the Civil Code
defines a nuisance as "any act, omission, establishment, condition of property,
or anything else which shocks, defies, or disregards decency or morality," the
remedies for which are a prosecution under the Revised Penal Code or any
local ordinance, a civil action, or abatement without judicial proceedings.32 A
violation of Article 201 of the Revised Penal Code, on the other hand, requires
proof beyond reasonable doubt to support a criminal conviction. It hardly needs
to be emphasized that mere allegation of violation of laws is not proof, and a
mere blanket invocation of public morals cannot replace the institution of civil or
criminal proceedings and a judicial determination of liability or culpability.
As such, we hold that moral disapproval, without more, is not a sufficient
governmental interest to justify exclusion of homosexuals from participation in
the party-list system. The denial of Ang Ladlad’s registration on purely moral
grounds amounts more to a statement of dislike and disapproval of
homosexuals, rather than a tool to further any substantial public interest.
Respondent’s blanket justifications give rise to the inevitable conclusion that the
COMELEC targets homosexuals themselves as a class, not because of any
particular morally reprehensible act. It is this selective targeting that implicates
our equal protection clause.
Equal Protection
Page 61 of 72
Despite the absolutism of Article III, Section 1 of our Constitution, which
provides "nor shall any person be denied equal protection of the laws," courts
have never interpreted the provision as an absolute prohibition on classification.
"Equality," said Aristotle, "consists in the same treatment of similar persons."33
The equal protection clause guarantees that no person or class of persons shall
be deprived of the same protection of laws which is enjoyed by other persons
or other classes in the same place and in like circumstances.34
Recent jurisprudence has affirmed that if a law neither burdens a fundamental
right nor targets a suspect class, we will uphold the classification as long as it
bears a rational relationship to some legitimate government end.35 In Central
Bank Employees Association, Inc. v. Banko Sentral ng Pilipinas,36 we declared
that "[i]n our jurisdiction, the standard of analysis of equal protection challenges
x x x have followed the ‘rational basis’ test, coupled with a deferential attitude to
legislative classifications and a reluctance to invalidate a law unless there is a
showing of a clear and unequivocal breach of the Constitution."37
The COMELEC posits that the majority of the Philippine population considers
homosexual conduct as immoral and unacceptable, and this constitutes
sufficient reason to disqualify the petitioner. Unfortunately for the respondent,
the Philippine electorate has expressed no such belief. No law exists to
criminalize homosexual behavior or expressions or parties about homosexual
behavior. Indeed, even if we were to assume that public opinion is as the
COMELEC describes it, the asserted state interest here – that is, moral
disapproval of an unpopular minority – is not a legitimate state interest that is
sufficient to satisfy rational basis review under the equal protection clause. The
COMELEC’s differentiation, and its unsubstantiated claim that Ang Ladlad
cannot contribute to the formulation of legislation that would benefit the nation,
furthers no legitimate state interest other than disapproval of or dislike for a
disfavored group.
From the standpoint of the political process, the lesbian, gay, bisexual, and
transgender have the same interest in participating in the party-list system on
the same basis as other political parties similarly situated. State intrusion in this
case is equally burdensome. Hence, laws of general application should apply
with equal force to LGBTs, and they deserve to participate in the party-list
system on the same basis as other marginalized and under-represented
sectors.
It bears stressing that our finding that COMELEC’s act of differentiating LGBTs
from heterosexuals insofar as the party-list system is concerned does not imply
that any other law distinguishing between heterosexuals and homosexuals
under different circumstances would similarly fail. We disagree with the OSG’s
position that homosexuals are a class in themselves for the purposes of the
equal protection clause.38 We are not prepared to single out homosexuals as a
separate class meriting special or differentiated treatment. We have not
received sufficient evidence to this effect, and it is simply unnecessary to make
such a ruling today. Petitioner itself has merely demanded that it be recognized
under the same basis as all other groups similarly situated, and that the
COMELEC made "an unwarranted and impermissible classification not justified
by the circumstances of the case."
Freedom of Expression and Association
Under our system of laws, every group has the right to promote its agenda and
attempt to persuade society of the validity of its position through normal
democratic means.39 It is in the public square that deeply held convictions and
differing opinions should be distilled and deliberated upon. As we held in
Estrada v. Escritor:40
In a democracy, this common agreement on political and moral ideas is distilled
in the public square. Where citizens are free, every opinion, every prejudice,
every aspiration, and every moral discernment has access to the public square
where people deliberate the order of their life together. Citizens are the bearers
of opinion, including opinion shaped by, or espousing religious belief, and these
citizens have equal access to the public square. In this representative
democracy, the state is prohibited from determining which convictions and moral
judgments may be proposed for public deliberation. Through a constitutionally
designed process, the people deliberate and decide. Majority rule is a necessary
principle in this democratic governance. Thus, when public deliberation on moral
judgments is finally crystallized into law, the laws will largely reflect the beliefs
and preferences of the majority, i.e., the mainstream or median groups.
Nevertheless, in the very act of adopting and accepting a constitution and the
limits it specifies – including protection of religious freedom "not only for a
minority, however small – not only for a majority, however large – but for each
of us" – the majority imposes upon itself a self-denying ordinance. It promises
not to do what it otherwise could do: to ride roughshod over the dissenting
minorities.
Freedom of expression constitutes one of the essential foundations of a
democratic society, and this freedom applies not only to those that are favorably
received but also to those that offend, shock, or disturb. Any restriction imposed
in this sphere must be proportionate to the legitimate aim pursued. Absent any
compelling state interest, it is not for the COMELEC or this Court to impose its
views on the populace. Otherwise stated, the COMELEC is certainly not free to
interfere with speech for no better reason than promoting an approved message
or discouraging a disfavored one.
This position gains even more force if one considers that homosexual conduct
is not illegal in this country. It follows that both expressions concerning one’s
homosexuality and the activity of forming a political association that supports
LGBT individuals are protected as well.
Other jurisdictions have gone so far as to categorically rule that even
overwhelming public perception that homosexual conduct violates public
morality does not justify criminalizing same-sex conduct.41 European and
United Nations judicial decisions have ruled in favor of gay rights claimants on
both privacy and equality grounds, citing general privacy and equal protection
provisions in foreign and international texts.42 To the extent that there is much
to learn from other jurisdictions that have reflected on the issues we face here,
such jurisprudence is certainly illuminating. These foreign authorities, while not
formally binding on Philippine courts, may nevertheless have persuasive
influence on the Court’s analysis.
In the area of freedom of expression, for instance, United States courts have
ruled that existing free speech doctrines protect gay and lesbian rights to
expressive conduct. In order to justify the prohibition of a particular expression
of opinion, public institutions must show that their actions were caused by
"something more than a mere desire to avoid the discomfort and
unpleasantness that always accompany an unpopular viewpoint."43
With respect to freedom of association for the advancement of ideas and beliefs,
in Europe, with its vibrant human rights tradition, the European Court of Human
Rights (ECHR) has repeatedly stated that a political party may campaign for a
change in the law or the constitutional structures of a state if it uses legal and
democratic means and the changes it proposes are consistent with democratic
principles. The ECHR has emphasized that political ideas that challenge the
existing order and whose realization is advocated by peaceful means must be
afforded a proper opportunity of expression through the exercise of the right of
association, even if such ideas may seem shocking or unacceptable to the
authorities or the majority of the population.44 A political group should not be
hindered solely because it seeks to publicly debate controversial political issues
in order to find solutions capable of satisfying everyone concerned.45 Only if a
political party incites violence or puts forward policies that are incompatible with
democracy does it fall outside the protection of the freedom of association
guarantee.46
We do not doubt that a number of our citizens may believe that homosexual
conduct is distasteful, offensive, or even defiant. They are entitled to hold and
express that view. On the other hand, LGBTs and their supporters, in all
likelihood, believe with equal fervor that relationships between individuals of the
same sex are morally equivalent to heterosexual relationships. They, too, are
entitled to hold and express that view. However, as far as this Court is
concerned, our democracy precludes using the religious or moral views of one
part of the community to exclude from consideration the values of other
members of the community.
Of course, none of this suggests the impending arrival of a golden age for gay
rights litigants. It well may be that this Decision will only serve to highlight the
discrepancy between the rigid constitutional analysis of this Court and the more
complex moral sentiments of Filipinos. We do not suggest that public opinion,
even at its most liberal, reflect a clear-cut strong consensus favorable to gay
rights claims and we neither attempt nor expect to affect individual perceptions
of homosexuality through this Decision.
The OSG argues that since there has been neither prior restraint nor
subsequent punishment imposed on Ang Ladlad, and its members have not
been deprived of their right to voluntarily associate, then there has been no
restriction on their freedom of expression or association. The OSG argues that:
There was no utterance restricted, no publication censored, or any assembly
denied. [COMELEC] simply exercised its authority to review and verify the
qualifications of petitioner as a sectoral party applying to participate in the party-
list system. This lawful exercise of duty cannot be said to be a transgression of
Section 4, Article III of the Constitution.
xxxx
A denial of the petition for registration x x x does not deprive the members of
the petitioner to freely take part in the conduct of elections. Their right to vote
will not be hampered by said denial. In fact, the right to vote is a constitutionally-
guaranteed right which cannot be limited.
As to its right to be elected in a genuine periodic election, petitioner contends
that the denial of Ang Ladlad’s petition has the clear and immediate effect of
limiting, if not outrightly nullifying the capacity of its members to fully and equally
participate in public life through engagement in the party list elections.
This argument is puerile. The holding of a public office is not a right but a
privilege subject to limitations imposed by law. x x x47
The OSG fails to recall that petitioner has, in fact, established its qualifications
to participate in the party-list system, and – as advanced by the OSG itself – the
moral objection offered by the COMELEC was not a limitation imposed by law.
To the extent, therefore, that the petitioner has been precluded, because of
COMELEC’s action, from publicly expressing its views as a political party and
participating on an equal basis in the political process with other equally-
qualified party-list candidates, we find that there has, indeed, been a
transgression of petitioner’s fundamental rights.
Non-Discrimination and International Law
In an age that has seen international law evolve geometrically in scope and
promise, international human rights law, in particular, has grown dynamically in
its attempt to bring about a more just and humane world order. For individuals
and groups struggling with inadequate structural and governmental support,
Page 62 of 72
international human rights norms are particularly significant, and should be
effectively enforced in domestic legal systems so that such norms may become
actual, rather than ideal, standards of conduct.
Our Decision today is fully in accord with our international obligations to protect
and promote human rights. In particular, we explicitly recognize the principle of
non-discrimination as it relates to the right to electoral participation, enunciated
in the UDHR and the ICCPR.
The principle of non-discrimination is laid out in Article 26 of the ICCPR, as
follows:
Article 26
All persons are equal before the law and are entitled without any discrimination
to the equal protection of the law. In this respect, the law shall prohibit any
discrimination and guarantee to all persons equal and effective protection
against discrimination on any ground such as race, colour, sex, language,
religion, political or other opinion, national or social origin, property, birth or other
status.
In this context, the principle of non-discrimination requires that laws of general
application relating to elections be applied equally to all persons, regardless of
sexual orientation. Although sexual orientation is not specifically enumerated as
a status or ratio for discrimination in Article 26 of the ICCPR, the ICCPR Human
Rights Committee has opined that the reference to "sex" in Article 26 should be
construed to include "sexual orientation."48 Additionally, a variety of United
Nations bodies have declared discrimination on the basis of sexual orientation
to be prohibited under various international agreements.49
The UDHR provides:
Article 21.
(1) Everyone has the right to take part in the government of his country, directly
or through freely chosen representatives.
Likewise, the ICCPR states:
Article 25
Every citizen shall have the right and the opportunity, without any of the
distinctions mentioned in article 2 and without unreasonable restrictions:
(a) To take part in the conduct of public affairs, directly or through freely chosen
representatives;
(b) To vote and to be elected at genuine periodic elections which shall be by
universal and equal suffrage and shall be held by secret ballot, guaranteeing
the free expression of the will of the electors;
(c) To have access, on general terms of equality, to public service in his country.
As stated by the CHR in its Comment-in-Intervention, the scope of the right to
electoral participation is elaborated by the Human Rights Committee in its
General Comment No. 25 (Participation in Public Affairs and the Right to Vote)
as follows:
1. Article 25 of the Covenant recognizes and protects the right of every citizen
to take part in the conduct of public affairs, the right to vote and to be elected
and the right to have access to public service. Whatever form of constitution or
government is in force, the Covenant requires States to adopt such legislative
and other measures as may be necessary to ensure that citizens have an
effective opportunity to enjoy the rights it protects. Article 25 lies at the core of
democratic government based on the consent of the people and in conformity
with the principles of the Covenant.
xxxx
15. The effective implementation of the right and the opportunity to stand for
elective office ensures that persons entitled to vote have a free choice of
candidates. Any restrictions on the right to stand for election, such as minimum
age, must be justifiable on objective and reasonable criteria. Persons who are
otherwise eligible to stand for election should not be excluded by unreasonable
or discriminatory requirements such as education, residence or descent, or by
reason of political affiliation. No person should suffer discrimination or
disadvantage of any kind because of that person's candidacy. States parties
should indicate and explain the legislative provisions which exclude any group
or category of persons from elective office.50
We stress, however, that although this Court stands willing to assume the
responsibility of giving effect to the Philippines’ international law obligations, the
blanket invocation of international law is not the panacea for all social ills. We
refer now to the petitioner’s invocation of the Yogyakarta Principles (the
Application of International Human Rights Law In Relation to Sexual Orientation
and Gender Identity),51 which petitioner declares to reflect binding principles of
international law.
At this time, we are not prepared to declare that these Yogyakarta Principles
contain norms that are obligatory on the Philippines. There are declarations and
obligations outlined in said Principles which are not reflective of the current state
of international law, and do not find basis in any of the sources of international
law enumerated under Article 38(1) of the Statute of the International Court of
Justice.52 Petitioner has not undertaken any objective and rigorous analysis of
these alleged principles of international law to ascertain their true status.
We also hasten to add that not everything that society – or a certain segment of
society – wants or demands is automatically a human right. This is not an
arbitrary human intervention that may be added to or subtracted from at will. It
is unfortunate that much of what passes for human rights today is a much
broader context of needs that identifies many social desires as rights in order to
further claims that international law obliges states to sanction these innovations.
This has the effect of diluting real human rights, and is a result of the notion that
if "wants" are couched in "rights" language, then they are no longer
controversial.1avvphi1
Using even the most liberal of lenses, these Yogyakarta Principles, consisting
of a declaration formulated by various international law professors, are – at best
– de lege ferenda – and do not constitute binding obligations on the Philippines.
Indeed, so much of contemporary international law is characterized by the "soft
law" nomenclature, i.e., international law is full of principles that promote
international cooperation, harmony, and respect for human rights, most of which
amount to no more than well-meaning desires, without the support of either
State practice or opinio juris.53
As a final note, we cannot help but observe that the social issues presented by
this case are emotionally charged, societal attitudes are in flux, even the
psychiatric and religious communities are divided in opinion. This Court’s role is
not to impose its own view of acceptable behavior. Rather, it is to apply the
Constitution and laws as best as it can, uninfluenced by public opinion, and
confident in the knowledge that our democracy is resilient enough to withstand
vigorous debate.
WHEREFORE, the Petition is hereby GRANTED. The Resolutions of the
Commission on Elections dated November 11, 2009 and December 16, 2009 in
SPP No. 09-228 (PL) are hereby SET ASIDE. The Commission on Elections is
directed to GRANT petitioner’s application for party-list accreditation.
SO ORDERED.
MARIANO C. DEL CASTILLO
Associate Justice
Republic of the Philippines
SUPREME COURT
Manila
EN BANC
G.R. No. 135306 January 28, 2003
MVRS PUBLICATIONS, INC., MARS C. LACONSAY, MYLA C. AGUJA and
AGUSTINO G. BINEGAS, JR., petitioners,
vs.
ISLAMIC DA'WAH COUNCIL OF THE PHILIPPINES, INC., ABDULRAHMAN
R.T. LINZAG, IBRAHIM F.P. ARCILLA, ABDUL RASHID DE GUZMAN, AL-
FARED DA SILVA and IBRAHIM B.A. JUNIO, respondents.
BELLOSILLO, J.:
I may utterly detest what you write, but I shall fight to the death to make it
possible for you to continue writing it. —
Voltaire
VOLTAIRE'S PONTIFICAL VERSE bestirs once again the basic liberties to free
speech and free press — liberties that belong as well, if not more, to those who
question, who do not conform, who differ. For the ultimate good which we all
strive to achieve for ourselves and our posterity can better be reached by a free
exchange of ideas, where the best test of truth is the power of the thought to get
itself accepted in the competition of the free market — not just the ideas we
desire, but including those thoughts we despise.1
ISLAMIC DA'WAH COUNCIL OF THE PHILIPPINES, INC., a local federation of
more than seventy (70) Muslim religious organizations, and individual Muslims
ABDULRAHMAN R.T. LINZAG, IBRAHIM F.P. ARCILLA, ABDUL RASHID DE
GUZMAN, AL-FARED DA SILVA and IBRAHIM B.A. JUNIO, filed in the
Regional Trial Court of Manila a complaint for damages in their own behalf and
as a class suit in behalf of the Muslim members nationwide against MVRS
PUBLICATIONS, INC., MARS C. LACONSAY, MYLA C. AGUJA and
AGUSTINO G. BINEGAS, JR., arising from an article published in the 1 August
1992 issue of Bulgar, a daily tabloid. The article reads:
"ALAM BA NINYO?
Na ang mga baboy at kahit anong uri ng hayop sa Mindanao ay hindi kinakain
ng mga Muslim?
Para sa kanila ang mga ito ay isang sagradong bagay. Hindi nila ito kailangang
kainin kahit na sila pa ay magutom at mawalan ng ulam sa tuwing sila ay kakain.
Ginagawa nila itong Diyos at sinasamba pa nila ito sa tuwing araw ng kanilang
pangingilin lalung-lalo na sa araw na tinatawag nilang 'Ramadan'."
Page 63 of 72
The complaint alleged that the libelous statement was insulting and damaging
to the Muslims; that these words alluding to the pig as the God of the Muslims
was not only published out of sheer ignorance but with intent to hurt the feelings,
cast insult and disparage the Muslims and Islam, as a religion in this country, in
violation of law, public policy, good morals and human relations; that on account
of these libelous words Bulgar insulted not only the Muslims in the Philippines
but the entire Muslim world, especially every Muslim individual in non-Muslim
countries.
MVRS PUBLICATIONS, INC., and AGUSTINO G. BINEGAS, JR., in their
defense, contended that the article did not mention respondents as the object
of the article and therefore were not entitled to damages; and, that the article
was merely an expression of belief or opinion and was published without malice
nor intention to cause damage, prejudice or injury to Muslims.2
On 30 June 1995 the trial court dismissed the complaint holding that the plaintiffs
failed to establish their cause of action since the persons allegedly defamed by
the article were not specifically identified —
It must be noted that the persons allegedly defamed, the herein plaintiffs, were
not identified with specificity. The subject article was directed at the Muslims
without mentioning or identifying the herein plaintiffs x x x. It is thus apparent
that the alleged libelous article refers to the larger collectivity of Muslims for
which the readers of the libel could not readily identify the personalities of the
persons defamed. Hence, it is difficult for an individual Muslim member to prove
that the defamatory remarks apply to him. The evidence presented in this case
failed to convince this court that, indeed, the defamatory remarks really applied
to the herein plaintiffs.3
On 27 August 1998 the Court of Appeals reversed the decision of the trial court.
It opined that it was "clear from the disputed article that the defamation was
directed to all adherents of the Islamic faith. It stated that pigs were sacred and
idolized as god by members of the Muslim religion. This libelous imputation
undeniably applied to the plaintiff-appellants who are Muslims sharing the same
religious beliefs." It added that the suit for damages was a "class suit" and that
ISLAMIC DA'WAH COUNCIL OF THE PHILIPPINES, INC.'s religious status as
a Muslim umbrella organization gave it the requisite personality to sue and
protect the interests of all Muslims.4
Hence, the instant petition for review assailing the findings of the appellate court
(a) on the existence of the elements of libel, (b) the right of respondents to
institute the class suit, and, (c) the liability of petitioners for moral damages,
exemplary damages, attorney's fees and costs of suit.
Defamation, which includes libel and slander, means the offense of injuring a
person's character, fame or reputation through false and malicious statements.5
It is that which tends to injure reputation or to diminish the esteem, respect, good
will or confidence in the plaintiff or to excite derogatory feelings or opinions about
the plaintiff.6 It is the publication of anything which is injurious to the good name
or reputation of another or tends to bring him into disrepute.7 Defamation is an
invasion of a relational interest since it involves the opinion which others in the
community may have, or tend to have, of the plaintiff.8
It must be stressed that words which are merely insulting are not actionable as
libel or slander per se, and mere words of general abuse however opprobrious,
ill-natured, or vexatious, whether written or spoken, do not constitute a basis for
an action for defamation in the absence of an allegation for special damages.9
The fact that the language is offensive to the plaintiff does not make it actionable
by itself.10
Declarations made about a large class of people cannot be interpreted to advert
to an identified or identifiable individual. Absent circumstances specifically
pointing or alluding to a particular member of a class, no member of such class
has a right of action11 without at all impairing the equally demanding right of
free speech and expression, as well as of the press, under the Bill of Rights.12
Thus, in Newsweek, Inc. v. Intermediate Appellate Court,13 we dismissed a
complaint for libel against Newsweek, Inc., on the ground that private
respondents failed to state a cause of action since they made no allegation in
the complaint that anything contained in the article complained of specifically
referred to any of them. Private respondents, incorporated associations of
sugarcane planters in Negros Occidental claiming to have 8,500 members and
several individual members, filed a class action suit for damages in behalf of all
sugarcane planters in Negros Occidental. The complaint filed in the Court of
First Instance of Bacolod City alleged that Newsweek, Inc., committed libel
against them by the publication of the article "Island of Fear" in its weekly
newsmagazine allegedly depicting Negros Province as a place dominated by
wealthy landowners and sugar planters who not only exploited the impoverished
and underpaid sugarcane workers but also brutalized and killed them with
impunity. Private respondents alleged that the article showed a deliberate and
malicious use of falsehood, slanted presentation and/or misrepresentation of
facts intended to put the sugarcane planters in a bad light, expose them to public
ridicule, discredit and humiliation in the Philippines and abroad, and make them
the objects of hatred, contempt and hostility of their agricultural workers and of
the public in general. We ratiocinated —
x x x where the defamation is alleged to have been directed at a group or class,
it is essential that the statement must be so sweeping or all-embracing as to
apply to every individual in that group or class, or sufficiently specific so that
each individual in the class or group can prove that the defamatory statement
specifically pointed to him, so that he can bring the action separately, if need be
x x x x The case at bar is not a class suit. It is not a case where one or more
may sue for the benefit of all, or where the representation of class interest
affected by the judgment or decree is indispensable to make each member of
the class an actual party. We have here a case where each of the plaintiffs has
a separate and distinct reputation in the community. They do not have a
common or general interest in the subject matter of the controversy.
In the present case, there was no fairly identifiable person who was allegedly
injured by the Bulgar article. Since the persons allegedly defamed could not be
identifiable, private respondents have no individual causes of action; hence,
they cannot sue for a class allegedly disparaged. Private respondents must
have a cause of action in common with the class to which they belong to in order
for the case to prosper.
An individual Muslim has a reputation that is personal, separate and distinct in
the community. Each Muslim, as part of the larger Muslim community in the
Philippines of over five (5) million people, belongs to a different trade and
profession; each has a varying interest and a divergent political and religious
view — some may be conservative, others liberal. A Muslim may find the article
dishonorable, even blasphemous; others may find it as an opportunity to
strengthen their faith and educate the non-believers and the "infidels." There is
no injury to the reputation of the individual Muslims who constitute this
community that can give rise to an action for group libel. Each reputation is
personal in character to every person. Together, the Muslims do not have a
single common reputation that will give them a common or general interest in
the subject matter of the controversy.
In Arcand v. The Evening Call Publishing Company,14 the United States Court
of Appeals held that one guiding principle of group libel is that defamation of a
large group does not give rise to a cause of action on the part of an individual
unless it can be shown that he is the target of the defamatory matter.
The rule on libel has been restrictive. In an American case,15 a person had
allegedly committed libel against all persons of the Jewish religion. The Court
held that there could be no libel against an extensive community in common
law. In an English case, where libel consisted of allegations of immorality in a
Catholic nunnery, the Court considered that if the libel were on the whole Roman
Catholic Church generally, then the defendant must be absolved.16 With regard
to the largest sectors in society, including religious groups, it may be generally
concluded that no criminal action at the behest of the state, or civil action on
behalf of the individual, will lie.
In another case, the plaintiffs claimed that all Muslims, numbering more than
600 million, were defamed by the airing of a national television broadcast of a
film depicting the public execution of a Saudi Arabian princess accused of
adultery, and alleging that such film was "insulting and defamatory" to the
Islamic religion.17 The United States District Court of the Northern District of
California concluded that the plaintiffs' prayer for $20 Billion in damages arising
from "an international conspiracy to insult, ridicule, discredit and abuse followers
of Islam throughout the world, Arabs and the Kingdom of Saudi Arabia" bordered
on the "frivolous," ruling that the plaintiffs had failed to demonstrate an
actionable claim for defamation. The California Court stressed that the aim of
the law on defamation was to protect individuals; a group may be sufficiently
large that a statement concerning it could not defame individual group
members.18
Philip Wittenberg, in his book "Dangerous Words: A Guide to the Law of
Libel,"19 discusses the inappropriateness of any action for tortious libel
involving large groups, and provides a succinct illustration:
There are groupings which may be finite enough so that a description of the
body is a description of the members. Here the problem is merely one of
evaluation. Is the description of the member implicit in the description of the
body, or is there a possibility that a description of the body may consist of a
variety of persons, those included within the charge, and those excluded from
it?
A general charge that the lawyers in the city are shysters would obviously not
be a charge that all of the lawyers were shysters. A charge that the lawyers in a
local point in a great city, such as Times Square in New York City, were shysters
would obviously not include all of the lawyers who practiced in that district; but
a statement that all of the lawyers who practiced in a particular building in that
district were shysters would be a specific charge, so that any lawyer having an
office within that building could sue.
If the group is a very large one, then the alleged libelous statement is considered
to have no application to anyone in particular, since one might as well defame
all mankind. Not only does the group as such have no action; the plaintiff does
not establish any personal reference to himself.20 At present, modern societal
groups are both numerous and complex. The same principle follows with these
groups: as the size of these groups increases, the chances for members of such
groups to recover damages on tortious libel become elusive. This principle is
said to embrace two (2) important public policies: first, where the group referred
to is large, the courts presume that no reasonable reader would take the
statements as so literally applying to each individual member; and second, the
limitation on liability would satisfactorily safeguard freedom of speech and
expression, as well as of the press, effecting a sound compromise between the
conflicting fundamental interests involved in libel cases.21
In the instant case, the Muslim community is too vast as to readily ascertain who
among the Muslims were particularly defamed. The size of the group renders
the reference as indeterminate and generic as a similar attack on Catholics,
Protestants, Buddhists or Mormons would do. The word "Muslim" is descriptive
of those who are believers of Islam, a religion divided into varying sects, such
as the Sunnites, the Shiites, the Kharijites, the Sufis and others based upon
political and theological distinctions. "Muslim" is a name which describes only a
Page 64 of 72
general segment of the Philippine population, comprising a heterogeneous body
whose construction is not so well defined as to render it impossible for any
representative identification.
The Christian religion in the Philippines is likewise divided into different sects:
Catholic, Baptist, Episcopalian, Presbyterian, Lutheran, and other groups the
essence of which may lie in an inspired charlatan, whose temple may be a
corner house in the fringes of the countryside. As with the Christian religion, so
it is with other religions that represent the nation's culturally diverse people and
minister to each one's spiritual needs. The Muslim population may be divided
into smaller groups with varying agenda, from the prayerful conservative to the
passionately radical. These divisions in the Muslim population may still be too
large and ambiguous to provide a reasonable inference to any personality who
can bring a case in an action for libel.
The foregoing are in essence the same view scholarly expressed by Mr. Justice
Reynato S. Puno in the course of the deliberations in this case. We extensively
reproduce hereunder his comprehensive and penetrating discussion on group
libel —
Defamation is made up of the twin torts of libel and slander — the one being, in
general, written, while the other in general is oral. In either form, defamation is
an invasion of the interest in reputation and good name. This is a "relational
interest" since it involves the opinion others in the community may have, or tend
to have of the plaintiff.
The law of defamation protects the interest in reputation — the interest in
acquiring, retaining and enjoying one's reputation as good as one's character
and conduct warrant. The mere fact that the plaintiff's feelings and sensibilities
have been offended is not enough to create a cause of action for defamation.
Defamation requires that something be communicated to a third person that
may affect the opinion others may have of the plaintiff. The unprivileged
communication must be shown of a statement that would tend to hurt plaintiff's
reputation, to impair plaintiff's standing in the community.
Although the gist of an action for defamation is an injury to reputation, the focus
of a defamation action is upon the allegedly defamatory statement itself and its
predictable effect upon third persons. A statement is ordinarily considered
defamatory if it "tend[s] to expose one to public hatred, shame, obloquy,
contumely, odium, contempt, ridicule, aversion, ostracism, degradation or
disgracex x x." The Restatement of Torts defines a defamatory statement as
one that "tends to so harm the reputation of another as to lower him in the
estimation of the community or to deter third persons from associating or dealing
with him."
Consequently as a prerequisite to recovery, it is necessary for the plaintiff to
prove as part of his prima facie case that the defendant (1) published a
statement that was (2) defamatory (3) of and concerning the plaintiff.
The rule in libel is that the action must be brought by the person against whom
the defamatory charge has been made. In the American jurisdiction, no action
lies by a third person for damages suffered by reason of defamation of another
person, even though the plaintiff suffers some injury therefrom. For recovery in
defamation cases, it is necessary that the publication be "of and concerning the
plaintiff." Even when a publication may be clearly defamatory as to somebody,
if the words have no personal application to the plaintiff, they are not actionable
by him. If no one is identified, there can be no libel because no one's reputation
has been injured x x x x
In fine, in order for one to maintain an action for an alleged defamatory
statement, it must appear that the plaintiff is the person with reference to whom
the statement was made. This principle is of vital importance in cases where a
group or class is defamed since, usually, the larger the collective, the more
difficult it is for an individual member to show that he was the person at whom
the defamation was directed.
If the defamatory statements were directed at a small, restricted group of
persons, they applied to any member of the group, and an individual member
could maintain an action for defamation. When the defamatory language was
used toward a small group or class, including every member, it has been held
that the defamatory language referred to each member so that each could
maintain an action. This small group or class may be a jury, persons engaged
in certain businesses, professions or employments, a restricted subdivision of a
particular class, a society, a football team, a family, small groups of union
officials, a board of public officers, or engineers of a particular company.
In contrast, if defamatory words are used broadly in respect to a large class or
group of persons, and there is nothing that points, or by proper colloquium or
innuendo can be made to apply, to a particular member of the class or group,
no member has a right of action for libel or slander. Where the defamatory
matter had no special, personal application and was so general that no
individual damages could be presumed, and where the class referred to was so
numerous that great vexation and oppression might grow out of the multiplicity
of suits, no private action could be maintained. This rule has been applied to
defamatory publications concerning groups or classes of persons engaged in a
particular business, profession or employment, directed at associations or
groups of association officials, and to those directed at miscellaneous groups or
classes of persons.
Distinguishing a small group — which if defamed entitles all its members to sue
from a large group — which if defamed entitles no one to sue — is not always
so simple. Some authorities have noted that in cases permitting recovery, the
group generally has twenty five (25) or fewer members. However, there is
usually no articulated limit on size. Suits have been permitted by members of
fairly large groups when some distinguishing characteristic of the individual or
group increases the likelihood that the statement could be interpreted to apply
individually. For example, a single player on the 60 to 70 man Oklahoma
University football team was permitted to sue when a writer accused the entire
team of taking amphetamines to "hop up" its performance; the individual was a
fullback, i.e., a significant position on the team and had played in all but two of
the team's games.
A prime consideration, therefore, is the public perception of the size of the group
and whether a statement will be interpreted to refer to every member. The more
organized and cohesive a group, the easier it is to tar all its members with the
same brush and the more likely a court will permit a suit from an individual even
if the group includes more than twenty five (25) members. At some point,
however, increasing size may be seen to dilute the harm to individuals and any
resulting injury will fall beneath the threshold for a viable lawsuit.
x x x x There are many other groupings of men than those that are contained
within the foregoing group classifications. There are all the religions of the world,
there are all the political and ideological beliefs; there are the many colors of the
human race. Group defamation has been a fertile and dangerous weapon of
attack on various racial, religious and political minorities. Some states,
therefore, have passed statutes to prevent concerted efforts to harass minority
groups in the United States by making it a crime to circulate insidious rumors
against racial and religious groups. Thus far, any civil remedy for such broadside
defamation has been lacking.
There have been numerous attempts by individual members to seek redress in
the courts for libel on these groups, but very few have succeeded because it felt
that the groups are too large and poorly defined to support a finding that the
plaintiff was singled out for personal attack x x x x (citations omitted).
Our conclusion therefore is that the statements published by petitioners in the
instant case did not specifically identify nor refer to any particular individuals
who were purportedly the subject of the alleged libelous publication.
Respondents can scarcely claim to having been singled out for social censure
pointedly resulting in damages.
A contrary view is expressed that what is involved in the present case is an
intentional tortious act causing mental distress and not an action for libel. That
opinion invokes Chaplinsky v. New Hampshire22 where the U.S. Supreme
Court held that words heaping extreme profanity, intended merely to incite
hostility, hatred or violence, have no social value and do not enjoy constitutional
protection; and Beauharnais v. Illinois23 where it was also ruled that hate
speech which denigrates a group of persons identified by their religion, race or
ethnic origin defames that group and the law may validly prohibit such speech
on the same ground as defamation of an individual.
We do not agree to the contrary view articulated in the immediately preceding
paragraph. Primarily, an "emotional distress" tort action is personal in nature,
i.e., it is a civil action filed by an individual24 to assuage the injuries to his
emotional tranquility due to personal attacks on his character. It has no
application in the instant case since no particular individual was identified in the
disputed article of Bulgar. Also, the purported damage caused by the article,
assuming there was any, falls under the principle of relational harm — which
includes harm to social relationships in the community in the form of defamation;
as distinguished from the principle of reactive harm — which includes injuries to
individual emotional tranquility in the form of an infliction of emotional distress.
In their complaint, respondents clearly asserted an alleged harm to the standing
of Muslims in the community, especially to their activities in propagating their
faith in Metro Manila and in other non-Muslim communities in the country.25 It
is thus beyond cavil that the present case falls within the application of the
relational harm principle of tort actions for defamation, rather than the reactive
harm principle on which the concept of emotional distress properly belongs.
Moreover, under the Second Restatement of the Law, to recover for the
intentional infliction of emotional distress the plaintiff must show that: (a) The
conduct of the defendant was intentional or in reckless disregard of the plaintiff;
(b) The conduct was extreme and outrageous; (c) There was a causal
connection between the defendant's conduct and the plaintiff's mental distress;
and, (d) The plaintiff's mental distress was extreme and severe.26
"Extreme and outrageous conduct" means conduct that is so outrageous in
character, and so extreme in degree, as to go beyond all possible bounds of
decency, and to be regarded as atrocious, and utterly intolerable in civilized
society. The defendant's actions must have been so terrifying as naturally to
humiliate, embarrass or frighten the plaintiff.27 Generally, conduct will be found
to be actionable where the recitation of the facts to an average member of the
community would arouse his resentment against the actor, and lead him or her
to exclaim, "Outrageous!" as his or her reaction.28
"Emotional distress" means any highly unpleasant mental reaction such as
extreme grief, shame, humiliation, embarrassment, anger, disappointment,
worry, nausea, mental suffering and anguish, shock, fright, horror, and
chagrin.29 "Severe emotional distress," in some jurisdictions, refers to any type
of severe and disabling emotional or mental condition which may be generally
recognized and diagnosed by professionals trained to do so, including
posttraumatic stress disorder, neurosis, psychosis, chronic depression, or
phobia.30 The plaintiff is required to show, among other things, that he or she
has suffered emotional distress so severe that no reasonable person could be
expected to endure it; severity of the distress is an element of the cause of
action, not simply a matter of damages.31
Page 65 of 72
Any party seeking recovery for mental anguish must prove more than mere
worry, anxiety, vexation, embarrassment, or anger. Liability does not arise from
mere insults, indignities, threats, annoyances, petty expressions, or other
trivialities. In determining whether the tort of outrage had been committed, a
plaintiff is necessarily expected and required to be hardened to a certain amount
of criticism, rough language, and to occasional acts and words that are definitely
inconsiderate and unkind; the mere fact that the actor knows that the other will
regard the conduct as insulting, or will have his feelings hurt, is not enough.32
Hustler Magazine v. Falwell33 illustrates the test case of a civil action for
damages on intentional infliction of emotional distress. A parody appeared in
Hustler magazine featuring the American fundamentalist preacher and
evangelist Reverend Jerry Falwell depicting him in an inebriated state having
an incestuous, sexual liaison with his mother in an outhouse. Falwell sued
Hustler and its publisher Larry Flynt for damages. The United States District
Court for the Western District of Virginia ruled that the parody was not libelous,
because no reasonable reader would have understood it as a factual assertion
that Falwell engaged in the act described. The jury, however, awarded $200,000
in damages on a separate count of "intentional infliction of emotional distress,"
a cause of action that did not require a false statement of fact to be made. The
United States Supreme Court in a unanimous decision overturned the jury
verdict of the Virginia Court and held that Reverend Falwell may not recover for
intentional infliction of emotional distress. It was argued that the material might
be deemed outrageous and may have been intended to cause severe emotional
distress, but these circumstances were not sufficient to overcome the free
speech rights guaranteed under the First Amendment of the United States
Constitution. Simply stated, an intentional tort causing emotional distress must
necessarily give way to the fundamental right to free speech.
It must be observed that although Falwell was regarded by the U.S. High Court
as a "public figure," he was an individual particularly singled out or identified in
the parody appearing on Hustler magazine. Also, the emotional distress
allegedly suffered by Reverend Falwell involved a reactive interest — an
emotional response to the parody which supposedly injured his psychological
well-being.
Verily, our position is clear that the conduct of petitioners was not extreme or
outrageous. Neither was the emotional distress allegedly suffered by
respondents so severe that no reasonable person could be expected to endure
it. There is no evidence on record that points to that result.
Professor William Prosser, views tort actions on intentional infliction of
emotional distress in this manner34 —
There is virtually unanimous agreement that such ordinary defendants are not
liable for mere insult, indignity, annoyance, or even threats, where the case is
lacking in other circumstances of aggravation. The reasons are not far to seek.
Our manners, and with them our law, have not yet progressed to the point where
we are able to afford a remedy in the form of tort damages for all intended mental
disturbance. Liability of course cannot be extended to every trivial indignity x x
x x The plaintiff must necessarily be expected and required to be hardened to a
certain amount of rough language, and to acts that are definitely inconsiderate
and unkind x x x The plaintiff cannot recover merely because of hurt feelings.
Professor Calvert Magruder reinforces Prosser with this succinct observation,
viz:35
There is no occasion for the law to intervene in every case where someone's
feelings are hurt. There must still be freedom to express an unflattering opinion,
and some safety valve must be left through which irascible tempers may blow
off relatively harmless steam.
Thus, it is evident that even American courts are reluctant to adopt a rule of
recovery for emotional harm that would "open up a wide vista of litigation in the
field of bad manners," an area in which a "toughening of the mental hide" was
thought to be a more appropriate remedy.36 Perhaps of greater concern were
the questions of causation, proof, and the ability to accurately assess damages
for emotional harm, each of which continues to concern courts today.37
In this connection, the doctrines in Chaplinsky and Beauharnais had largely
been superseded by subsequent First Amendment doctrines. Back in simpler
times in the history of free expression the Supreme Court appeared to espouse
a theory, known as the Two-Class Theory, that treated certain types of
expression as taboo forms of speech, beneath the dignity of the First
Amendment. The most celebrated statement of this view was expressed in
Chaplinsky:
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. It has
been well observed that such 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.
Today, however, the theory is no longer viable; modern First Amendment
principles have passed it by. American courts no longer accept the view that
speech may be proscribed merely because it is "lewd," "profane," "insulting" or
otherwise vulgar or offensive.38 Cohen v. California39 is illustrative: Paul
Robert Cohen wore a jacket bearing the words "Fuck the Draft" in a Los Angeles
courthouse in April 1968, which caused his eventual arrest. Cohen was
convicted for violating a California statute prohibiting any person from
"disturb[ing] the peace x x x by offensive conduct." The U.S. Supreme Court
conceded that Cohen's expletive contained in his jacket was "vulgar," but it
concluded that his speech was nonetheless protected by the right to free
speech. It was neither considered an "incitement" to illegal action nor
"obscenity." It did not constitute insulting or "fighting" words for it had not been
directed at a person who was likely to retaliate or at someone who could not
avoid the message. In other words, no one was present in the Los Angeles
courthouse who would have regarded Cohen's speech as a direct personal
insult, nor was there any danger of reactive violence against him.
No specific individual was targeted in the allegedly defamatory words printed on
Cohen's jacket. The conviction could only be justified by California's desire to
exercise the broad power in preserving the cleanliness of discourse in the public
sphere, which the U.S. Supreme Court refused to grant to the State, holding that
no objective distinctions can be made between vulgar and nonvulgar speech,
and that the emotive elements of speech are just as essential in the exercise of
this right as the purely cognitive. As Mr. Justice Harlan so eloquently wrote:
"[O]ne man's vulgarity is another man's lyric x x x words are often chosen as
much for their emotive as their cognitive force."40 With Cohen, the U.S.
Supreme Court finally laid the Constitutional foundation for judicial protection of
provocative and potentially offensive speech.
Similarly, libelous speech is no longer outside the First Amendment protection.
Only one small piece of the Two-Class Theory in Chaplinsky survives — U.S.
courts continue to treat "obscene" speech as not within the protection of the First
Amendment at all. With respect to the "fighting words" doctrine, while it remains
alive it was modified by the current rigorous clear and present danger test.41
Thus, in Cohen the U.S. Supreme Court in applying the test held that there was
no showing that Cohen's jacket bearing the words "Fuck the Draft" had
threatened to provoke imminent violence; and that protecting the sensibilities of
onlookers was not sufficiently compelling interest to restrain Cohen's speech.
Beauharnais, which closely followed the Chaplinsky doctrine, suffered the same
fate as Chaplinsky. Indeed, when Beauharnais was decided in 1952, the Two-
Class Theory was still flourishing. While concededly the U.S. High Tribunal did
not formally abandon Beauharnais, the seminal shifts in U.S. constitutional
jurisprudence substantially undercut Beauharnais and seriously undermined
what is left of its vitality as a precedent. Among the cases that dealt a crushing
impact on Beauharnais and rendered it almost certainly a dead letter case law
are Brandenburg v. Ohio,42 and, again, Cohen v. California.43 These decisions
recognize a much narrower set of permissible grounds for restricting speech
than did Beauharnais.44
In Brandenburg, appellant who was a leader of the Ku Klux Klan was convicted
under the Ohio Criminal Syndicalism Statute for advocating the necessity, duty
and propriety of crime, sabotage, violence, or unlawful methods of terrorism as
a means of accomplishing industrial or political reforms; and for voluntarily
assembling with a group formed to teach or advocate the doctrines of criminal
syndicalism. Appellant challenged the statute and was sustained by the U.S.
Supreme Court, holding that the advocacy of illegal action becomes punishable
only if such advocacy is directed to inciting or producing imminent lawless action
and is likely to incite or produce such action.45 Except in unusual instances,
Brandenburg protects the advocacy of lawlessness as long as such speech is
not translated into action.
The importance of the Brandenburg ruling cannot be overemphasized. Prof.
Smolla affirmed that "Brandenburg must be understood as overruling
Beauharnais and eliminating the possibility of treating group libel under the
same First Amendment standards as individual libel."46 It may well be
considered as one of the lynchpins of the modern doctrine of free speech, which
seeks to give special protection to politically relevant speech.
In any case, respondents' lack of cause of action cannot be cured by the filing
of a class suit. As correctly pointed out by Mr. Justice Jose C. Vitug during the
deliberations, "an element of a class suit is the adequacy of representation. In
determining the question of fair and adequate representation of members of a
class, the court must consider (a) whether the interest of the named party is
coextensive with the interest of the other members of the class; (b) the
proportion of those made parties as it so bears to the total membership of the
class; and, (c) any other factor bearing on the ability of the named party to speak
for the rest of the class.47
The rules require that courts must make sure that the persons intervening
should be sufficiently numerous to fully protect the interests of all concerned. In
the present controversy, Islamic Da'wah Council of the Philippines, Inc., seeks
in effect to assert the interests not only of the Muslims in the Philippines but of
the whole Muslim world as well. Private respondents obviously lack the
sufficiency of numbers to represent such a global group; neither have they been
able to demonstrate the identity of their interests with those they seek to
represent. Unless it can be shown that there can be a safe guaranty that those
absent will be adequately represented by those present, a class suit, given its
magnitude in this instance, would be unavailing."48
Likewise on the matter of damages, we agree that "moral damages may be
recovered only if the plaintiff is able to satisfactorily prove the existence of the
factual basis for the damages and its causal connection with the acts
complained of,49 and so it must be, as moral damages although incapable of
pecuniary estimation are designed not to impose a penalty but to compensate
for injury sustained and actual damages suffered.50 Exemplary damages, on
the other hand, may only be awarded if claimant is able to establish his right to
moral, temperate, liquidated or compensatory damages.51 Unfortunately,
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neither of the requirements to sustain an award for either of these damages
would appear to have been adequately established by respondents."
In a pluralistic society like the Philippines where misinformation about another
individual's religion is as commonplace as self-appointed critics of government,
it would be more appropriate to respect the fair criticism of religious principles,
including those which may be outrageously appalling, immensely erroneous, or
those couched as fairly informative comments. The greater danger in our society
is the possibility that it may encourage the frequency of suits among religious
fundamentalists, whether Christian, Muslim, Hindu, Buddhist, Jewish, or others.
This would unnecessarily make the civil courts a battleground to assert their
spiritual ideas, and advance their respective religious agenda.
It need not be stressed that this Court has no power to determine which is proper
religious conduct or belief; neither does it have the authority to rule on the merits
of one religion over another, nor declare which belief to uphold or cast asunder,
for the validity of religious beliefs or values are outside the sphere of the
judiciary. Such matters are better left for the religious authorities to address what
is rightfully within their doctrine and realm of influence. Courts must be
viewpoint-neutral when it comes to religious matters if only to affirm the
neutrality principle of free speech rights under modern jurisprudence where "[a]ll
ideas are treated equal in the eyes of the First Amendment — even those ideas
that are universally condemned and run counter to constitutional principles."52
Under the right to free speech, "there is no such thing as a false idea. However
pernicious an opinion may seem, we depend for its correction not on the
conscience of judges and juries but on the competition of other ideas."53
Denying certiorari and affirming the appellate court decision would surely create
a chilling effect on the constitutional guarantees of freedom of speech, of
expression, and of the press.
WHEREFORE, the petition is GRANTED. The assailed Decision of the Court of
Appeals dated 27 August 1998 is REVERSED and SET ASIDE, and the
Decision of the RTC-Br. 4, Manila, dismissing the complaint for lack of merit, is
REINSTATED and AFFIRMED. No pronouncement as to costs.
SO ORDERED.
Davide, Jr., C .J ., Puno, Quisumbing, Ynares-Santiago, Sandoval-Gutierrez,
Corona and Callejo, Sr., JJ ., concur.
Mendoza, J ., in the result.
Vitug, J ., see concurring opinion.
Panganiban, J ., joins the dissenting opinion of Justice A.T. Carpio.
Carpio, J ., see dissenting opinion.
Austria-Martinez, J ., see dissenting opinion.
Carpio-Morales, J ., joins the dissenting opinion of Justice A.T. Carpio.
Azcuna, J ., joins the dissenting opinion of Justice Austria-Martinez.
ASSOCIATION
Republic of the Philippines
SUPREME COURT
Manila
EN BANC
January 9, 1973
IN THE MATTER OF THE INTEGRATION OF THE BAR OF THE
PHILIPPINES.
RESOLUTION
PER CURIAM:
On December 1, 1972, the Commission on Bar Integration1 submitted its Report
dated November 30, 1972, with the "earnest recommendation" — on the basis
of the said Report and the proceedings had in Administrative Case No. 5262 of
the Court, and "consistently with the views and counsel received from its [the
Commission's] Board of Consultants, as well as the overwhelming nationwide
sentiment of the Philippine Bench and Bar" — that "this Honorable Court ordain
the integration of the Philippine Bar as soon as possible through the adoption
and promulgation of an appropriate Court Rule."
The petition in Adm. Case No. 526 formally prays the Court to order the
integration of the Philippine Bar, after due hearing, giving recognition as far as
possible and practicable to existing provincial and other local Bar associations.
On August 16, 1962, arguments in favor of as well as in opposition to the petition
were orally expounded before the Court. Written oppositions were admitted,3
and all parties were thereafter granted leave to file written memoranda.4
Since then, the Court has closely observed and followed significant
developments relative to the matter of the integration of the Bar in this
jurisdiction.
In 1970, convinced from preliminary surveys that there had grown a strong
nationwide sentiment in favor of Bar integration, the Court created the
Commission on Bar Integration for the purpose of ascertaining the advisability
of unifying the Philippine Bar.
In September, 1971, Congress passed House Bill No. 3277 entitled "An Act
Providing for the Integration of the Philippine Bar, and Appropriating Funds
Therefor." The measure was signed by President Ferdinand E. Marcos on
September 17, 1971 and took effect on the same day as Rep. Act 6397. This
law provides as follows:
SECTION 1. Within two years from the approval of this Act, the
Supreme Court may adopt rules of court to effect the integration of the Philippine
Bar under such conditions as it shall see fit in order to raise the standards of the
legal profession, improve the administration of justice, and enable the Bar to
discharge its public responsibility more effectively.
SEC. 2. The sum of five hundred thousand pesos is hereby appropriated, out
of any funds in the National Treasury not otherwise appropriated, to carry out
the purposes of this Act. Thereafter, such sums as may be necessary for the
same purpose shall be included in the annual appropriations for the Supreme
Court.
SEC. 3. This Act shall take effect upon its approval.
The Report of the Commission abounds with argument on the constitutionality
of Bar integration and contains all necessary factual data bearing on the
advisability (practicability and necessity) of Bar integration. Also embodied
therein are the views, opinions, sentiments, comments and observations of the
rank and file of the Philippine lawyer population relative to Bar integration, as
well as a proposed integration Court Rule drafted by the Commission and
presented to them by that body in a national Bar plebiscite. There is thus
sufficient basis as well as ample material upon which the Court may decide
whether or not to integrate the Philippine Bar at this time.
The following are the pertinent issues:
(1) Does the Court have the power to integrate the Philippine Bar?
(2) Would the integration of the Bar be constitutional?
(3) Should the Court ordain the integration of the Bar at this time?
A resolution of these issues requires, at the outset, a statement of the meaning
of Bar integration. It will suffice, for this purpose, to adopt the concept given by
the Commission on Bar Integration on pages 3 to 5 of its Report, thus:
Integration of the Philippine Bar means the official unification of the entire lawyer
population of the Philippines. This requires membership and financial support
(in reasonable amount) of every attorney as conditions sine qua non to the
practice of law and the retention of his name in the Roll of Attorneys of the
Supreme Court.
The term "Bar" refers to the collectivity of all persons whose names appear in
the Roll of Attorneys. An Integrated Bar (or Unified Bar) perforce must include
all lawyers.
Complete unification is not possible unless it is decreed by an entity with power
to do so: the State. Bar integration, therefore, signifies the setting up by
Government authority of a national organization of the legal profession based
on the recognition of the lawyer as an officer of the court.
Designed to improve the position of the Bar as an instrumentality of justice and
the Rule of Law, integration fosters cohesion among lawyers, and ensures,
through their own organized action and participation, the promotion of the
objectives of the legal profession, pursuant to the principle of maximum Bar
autonomy with minimum supervision and regulation by the Supreme Court.
The purposes of an integrated Bar, in general, are:
(1) Assist in the administration of justice;
(2) Foster and maintain on the part of its members high ideals of
integrity, learning, professional competence, public service and conduct;
(3) Safeguard the professional interests of its members;
(4) Cultivate among its members a spirit of cordiality and brotherhood;
(5) Provide a forum for the discussion of law, jurisprudence, law reform,
pleading, practice and procedure, and the relations of the Bar to the Bench and
to the public, and publish information relating thereto;
(6) Encourage and foster legal education;
(7) Promote a continuing program of legal research in substantive and
adjective law, and make reports and recommendations thereon; and
(8) Enable the Bar to discharge its public responsibility effectively.
Integration of the Bar will, among other things, make it possible for the legal
profession to:
(1) Render more effective assistance in maintaining the Rule of Law;
(2) Protect lawyers and litigants against the abuse of tyrannical judges
and prosecuting officers;
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(3) Discharge, fully and properly, its responsibility in the disciplining
and/or removal of incompetent and unworthy judges and prosecuting officers;
(4) Shield the judiciary, which traditionally cannot defend itself except
within its own forum, from the assaults that politics and self-interest may level at
it, and assist it to maintain its integrity, impartiality and independence;
(5) Have an effective voice in the selection of judges and prosecuting
officers;
(6) Prevent the unauthorized practice of law, and break up any
monopoly of local practice maintained through influence or position;
(7) Establish welfare funds for families of disabled and deceased
lawyers;
(8) Provide placement services, and establish legal aid offices and set
up lawyer reference services throughout the country so that the poor may not
lack competent legal service;
(9) Distribute educational and informational materials that are difficult to
obtain in many of our provinces;
(10) Devise and maintain a program of continuing legal education for
practising attorneys in order to elevate the standards of the profession
throughout the country;
(11) Enforce rigid ethical standards, and promulgate minimum fees
schedules;
(12) Create law centers and establish law libraries for legal research;
(13) Conduct campaigns to educate the people on their legal rights and
obligations, on the importance of preventive legal advice, and on the functions
and duties of the Filipino lawyer; and
(14) Generate and maintain pervasive and meaningful country-wide
involvement of the lawyer population in the solution of the multifarious problems
that afflict the nation.
Anent the first issue, the Court is of the view that it may integrate the Philippine
Bar in the exercise of its power, under Article VIII, Sec. 13 of the Constitution,
"to promulgate rules concerning pleading, practice, and procedure in all courts,
and the admission to the practice of law." Indeed, the power to integrate is an
inherent part of the Court's constitutional authority over the Bar. In providing that
"the Supreme Court may adopt rules of court to effect the integration of the
Philippine Bar," Republic Act 6397 neither confers a new power nor restricts the
Court's inherent power, but is a mere legislative declaration that the integration
of the Bar will promote public interest or, more specifically, will "raise the
standards of the legal profession, improve the administration of justice, and
enable the Bar to discharge its public responsibility more effectively."
Resolution of the second issue — whether the unification of the Bar would be
constitutional — hinges on the effects of Bar integration on the lawyer's
constitutional rights of freedom of association and freedom of speech, and on
the nature of the dues exacted from him.
The Court approvingly quotes the following pertinent discussion made by the
Commission on Bar Integration pages 44 to 49 of its Report:
Constitutionality of Bar Integration
Judicial Pronouncements.
In all cases where the validity of Bar integration measures has been put in issue,
the Courts have upheld their constitutionality.
The judicial pronouncements support this reasoning:
— Courts have inherent power to supervise and regulate the practice of law.
— The practice of law is not a vested right but a privilege; a privilege, moreover,
clothed with public interest, because a lawyer owes duties not only to his client,
but also to his brethren in the profession, to the courts, and to the nation; and
takes part in one of the most important functions of the State, the administration
of justice, as an officer of the court.
— Because the practice of law is privilege clothed with public interest, it is far
and just that the exercise of that privilege be regulated to assure compliance
with the lawyer's public responsibilities.
— These public responsibilities can best be discharged through collective
action; but there can be no collective action without an organized body; no
organized body can operate effectively without incurring expenses; therefore, it
is fair and just that all attorneys be required to contribute to the support of such
organized body; and, given existing Bar conditions, the most efficient means of
doing so is by integrating the Bar through a rule of court that requires all lawyers
to pay annual dues to the Integrated Bar.
1. Freedom of Association.
To compel a lawyer to be a member of an integrated Bar is not violative of his
constitutional freedom to associate (or the corollary right not to associate).

Integration does not make a lawyer a member of any group of which he is not
already a member. He became a member of the Bar when he passed the Bar
examinations. All that integration actually does is to provide an official national
organization for the well-defined but unorganized and incohesive group of which
every lawyer is already a member.
Bar integration does not compel the lawyer to associate with anyone. He is free
to attend or not attend the meetings of his Integrated Bar Chapter or vote or
refuse to vote in its elections as he chooses. The body compulsion to which he
is subjected is the payment of annual dues.
Otherwise stated, membership in the Unified Bar imposes only the duty to pay
dues in reasonable amount. The issue therefore, is a question of compelled
financial support of group activities, not involuntary membership in any other
aspect.
The greater part of Unified Bar activities serves the function of elevating the
educational and ethical standards of the Bar to the end of improving the quality
of the legal service available to the people. The Supreme Court, in order to
further the State's legitimate interest in elevating the quality of professional
services, may require that the cost of improving the profession in this fashion be
shared by the subjects and beneficiaries of the regulatory program — the
lawyers.
Assuming that Bar integration does compel a lawyer to be a member of the
Integrated Bar, such compulsion is justified as an exercise of the police power
of the State. The legal profession has long been regarded as a proper subject
of legislative regulation and control. Moreover, the inherent power of the
Supreme Court to regulate the Bar includes the authority to integrate the Bar.
2. Regulatory Fee.
For the Court to prescribe dues to be paid by the members does not mean that
the Court levies a tax.
A membership fee in the Integrated Bar is an exaction for regulation, while the
purpose of a tax is revenue. If the Court has inherent power to regulate the Bar,
it follows that as an incident to regulation, it may impose a membership fee for
that purpose. It would not be possible to push through an Integrated Bar
program without means to defray the concomitant expenses. The doctrine of
implied powers necessarily includes the power to impose such an exaction.
The only limitation upon the State's power to regulate the Bar is that the
regulation does not impose an unconstitutional burden. The public interest
promoted by the integration of the Bar far outweighs the inconsequential
inconvenience to a member that might result from his required payment of
annual dues.
3. Freedom of Speech.
A lawyer is free, as he has always been, to voice his views on any subject in
any manner he wishes, even though such views be opposed to positions taken
by the Unified Bar.
For the Integrated Bar to use a member's due to promote measures to which
said member is opposed, would not nullify or adversely affect his freedom of
speech.
Since a State may constitutionally condition the right to practice law upon
membership in the Integrated Bar, it is difficult to understand why it should
become unconstitutional for the Bar to use the member's dues to fulfill the very
purposes for which it was established.
The objection would make every Governmental exaction the material of a "free
speech" issue. Even the income tax would be suspect. The objection would
carry us to lengths that have never been dreamed of. The conscientious
objector, if his liberties were to be thus extended, might refuse to contribute
taxes in furtherance of war or of any other end condemned by his conscience
as irreligious or immoral. The right of private judgment has never yet been
exalted above the powers and the compulsion of the agencies of Government.
4. Fair to All Lawyers.
Bar integration is not unfair to lawyers already practising because although the
requirement to pay annual dues is a new regulation, it will give the members of
the Bar a new system which they hitherto have not had and through which, by
proper work, they will receive benefits they have not heretofore enjoyed, and
discharge their public responsibilities in a more effective manner than they have
been able to do in the past. Because the requirement to pay dues is a valid
exercise of regulatory power by the Court, because it will apply equally to all
lawyers, young and old, at the time Bar integration takes effect, and because it
is a new regulation in exchange for new benefits, it is not retroactive, it is not
unequal, it is not unfair.
To resolve the third and final issue — whether the Court should ordain the
integration of the Bar at this time — requires a careful overview of the
practicability and necessity as well as the advantages and disadvantages of Bar
integration.
In many other jurisdictions, notably in England, Canada and the United States,
Bar integration has yielded the following benefits: (1) improved discipline among
the members of the Bar; (2) greater influence and ascendancy of the Bar; (3)
Page 68 of 72
better and more meaningful participation of the individual lawyer in the activities
of the Integrated Bar; (4) greater Bar facilities and services; (5) elimination of
unauthorized practice; (6) avoidance of costly membership campaigns; (7)
establishment of an official status for the Bar; (8) more cohesive profession; and
(9) better and more effective discharge by the Bar of its obligations and
responsibilities to its members, to the courts, and to the public. No less than
these salutary consequences are envisioned and in fact expected from the
unification of the Philippine Bar.
Upon the other hand, it has been variously argued that in the event of
integration, Government authority will dominate the Bar; local Bar associations
will be weakened; cliquism will be the inevitable result; effective lobbying will not
be possible; the Bar will become an impersonal Bar; and politics will intrude into
its affairs.
It is noteworthy, however, that these and other evils prophesied by opponents
of Bar integration have failed to materialize in over fifty years of Bar integration
experience in England, Canada and the United States. In all the jurisdictions
where the Integrated Bar has been tried, none of the abuses or evils feared has
arisen; on the other hand, it has restored public confidence in the Bar, enlarged
professional consciousness, energized the Bar's responsibilities to the public,
and vastly improved the administration of justice.
How do the Filipino lawyers themselves regard Bar integration? The official
statistics compiled by the Commission on Bar integration show that in the
national poll recently conducted by the Commission in the matter of the
integration of the Philippine Bar, of a total of 15,090 lawyers from all over the
archipelago who have turned in their individual responses, 14,555 (or 96.45 per
cent) voted in favor of Bar integration, while only 378 (or 2.51 per cent) voted
against it, and 157 (or 1.04 per cent) are non-commital. In addition, a total of
eighty (80) local Bar association and lawyers' groups all over the Philippines
have submitted resolutions and other expressions of unqualified endorsement
and/or support for Bar integration, while not a single local Bar association or
lawyers' group has expressed opposed position thereto. Finally, of the 13,802
individual lawyers who cast their plebiscite ballots on the proposed integration
Court Rule drafted by the Commission, 12,855 (or 93.14 per cent) voted in favor
thereof, 662 (or 4.80 per cent) vote against it, and 285 (or 2.06 per cent) are
non-committal.5 All these clearly indicate an overwhelming nationwide demand
for Bar integration at this time.
The Court is fully convinced, after a thoroughgoing conscientious study of all the
arguments adduced in Adm. Case No. 526 and the authoritative materials and
the mass of factual data contained in the exhaustive Report of the Commission
on Bar Integration, that the integration of the Philippine Bar is "perfectly
constitutional and legally unobjectionable," within the context of contemporary
conditions in the Philippines, has become an imperative means to raise the
standards of the legal profession, improve the administration of justice, and
enable the Bar to discharge its public responsibility fully and effectively.
ACCORDINGLY, the Court, by virtue of the power vested in it by Section 13 of
Article VIII of the Constitution, hereby ordains the integration of the Bar of the
Philippines in accordance with the attached COURT RULE, effective on January
16, 1973.
Concepcion, C.J., Makalintal, Zaldivar, Castillo, Fernando, Teehankee,
Barredo, Makasiar, Antonio and Esguerra, JJ., concur.
Republic of the Philippines
SUPREME COURT
Manila
THIRD DIVISION
G.R. No. 141961 January 23, 2002
STA. CLARA HOMEOWNERS’ ASSOCIATION thru its Board of Directors
composed of ARNEIL CHUA, LUIS SARROSA, JOCELYN GARCIA, MA.
MILAGROS VARGAS, LORENZO LACSON, ERNESTO PICCIO, DINDO
ILAGAN, DANILO GAMBOA JR. and RIZZA DE LA RAMA; SECURITY
GUARD CAPILLO; "JOHN DOE"; and SANTA CLARA ESTATE, INC.,
petitioners,
vs.
Spouses VICTOR MA. GASTON and LYDIA GASTON, respondents.
PANGANIBAN, J.:
A motion to dismiss based on lack of jurisdiction and lack of cause of action
hypothetically admits the truth of the allegations in the complaint. It is not
dependent on the pleas or the theories set forth in the answer or the motion to
dismiss. Membership in a homeowners’ association is voluntary and cannot be
unilaterally forced by a provision in the association’s articles of incorporation or
by-laws, which the alleged member did not agree to be bound to.
Statement of the Case
The Petition for Review before us assails the August 31, 1999 Decision1 and
the February 11, 2000 Resolution2 of the Court of Appeals (CA) in CA-GR SP
No. 49130. The decretal portion of the challenged Decision reads as follows:
"WHEREFORE, the petition is DISMISSED for lack of merit. The assailed
Orders of the trial court are AFFIRMED. No costs."3
The assailed Resolution denied petitioner’s Motion for Reconsideration.
The CA4 affirmed the Orders5 of the Regional Trial Court (RTC) of Bacolod City
(Branch 49) in Civil Case No. 98-10217, which had refused to dismiss herein
respondents’ Complaint for alleged lack of jurisdiction and lack of cause of
action.
The Facts
The factual antecedents of the case are summarized by the Court of Appeals in
this wise:
"On 1 April 1998, Spouses Victor Ma. Gaston and Lydia M. Gaston, private
respondents herein, filed a complaint for damages with preliminary
injunction/preliminary mandatory injunction and temporary restraining order
before the Regional Trial Court in Negros Occidental at Bacolod City against
petitioners Santa Clara Homeowners Association (SCHA for brevity) thru its
Board of Directors, namely: Arneil Chua, Luis Sarrosa, Jocelyn Garcia, Ma.
Milagros Vargas, Lorenzo Lacson, Ernesto Piccio, Dindo Ilagan, Danilo
Gamboa, Jr., Rizza de la Rama and Security Guard Capillo and ‘John Doe’, and
Santa Clara Estate, Incorporated. The case was docketed as Civil Case No 98-
10217 and raffled to RTC-Branch 49, Bacolod City.
"The complaint alleged that private respondents herein [were] residents of San
Jose Avenue, Sta. Clara Subdivision, Mandalagan, Bacolod City. They
purchased their lots in the said subdivision sometime in 1974, and at the time
of purchase, there was no mention or requirement of membership in any
homeowners’ association. From that time on, they have remained non-members
of SCHA. They also stated that an arrangement was made wherein
homeowners who [were] non-members of the association were issued ‘non-
member’ gatepass stickers for their vehicles for identification by the security
guards manning the subdivision’s entrances and exits. This arrangement
remained undisturbed until sometime in the middle of March, 1998, when SCHA
disseminated a board resolution which decreed that only its members in good
standing were to be issued stickers for use in their vehicles. Thereafter, on three
separate incidents, Victor M. Gaston, the son of the private respondents herein
who lives with them, was required by the guards on duty employed by SCHA to
show his driver’s license as a prerequisite to his entrance to the subdivision and
to his residence therein despite their knowing him personally and the exact
location of his residence. On 29 March 1998, private respondent herein Victor
Ma. Gaston was himself prevented from entering the subdivision and
proceeding to his residential abode when petitioner herein security guards
Roger Capillo and a ‘John Doe’ lowered the steel bar of the KAMETAL gate of
the subdivision and demanded from him his driver’s license for identification.
The complaint further alleged that these acts of the petitioners herein done in
the presence of other subdivision owners had caused private respondents to
suffer moral damage.
"On 3 April 1998, during the hearing of the private respondents’ application for
the issuance of a temporary restraining order before the lower court, counsel for
the petitioners informed the court that he would be filing a motion to dismiss the
case and made assurance that pending the issuance of a temporary restraining
order, the private respondents would be granted unrestricted access to and from
their place of residence.
"On 8 April 1998, petitioners herein filed a motion to dismiss arguing that the
trial court ha[d] no jurisdiction over the case as it involve[d] an intra-corporate
dispute between SCHA and its members pursuant to Republic Act No. 580, as
amended by Executive Order Nos. 535 and 90, much [less], to declare as null
and void the subject resolution of the board of directors of SCHA, the proper
forum being the Home Insurance (and Guaranty) Corporation (HIGC). To
support their claim of intra-corporate controversy, petitioners stated that the
Articles of Incorporation of SCHA, which was duly approved by the Securities
and Exchange Commission (SEC) on 4 October 1973, provides ‘that the
association shall be a non-stock corporation with all homeowners of Sta. Clara
constituting its membership’. Also, its by-laws contains a provision that ‘all real
estate owners in Sta. Clara Subdivision automatically become members of the
association’. The private respondents, having become lot owners of Sta. Clara
Subdivision in 1974 after the approval by the SEC of SCHA’s articles of
incorporation and by-laws, became members automatically in 1974 of SCHA
argued the petitioners. Moreover, the private respondents allegedly enjoyed the
privileges and benefits of membership in and abided by the rules of the
association, and even attended the general special meeting of the association
members on 24 March 1998. Their non-payment of the association yearly dues
[did] not make them non-members of SCHA continued the petitioners. And even
granting that the private respondents [were] not members of the association, the
petitioners opined that the HIGC still ha[d] jurisdiction over the case pursuant to
Section 1 (a), Rule II of the Rules of Procedure of the HIGC.
"On 6 July 1998, the lower court, after having received private respondents
opposition to petitioners’ motion to dismiss and other subsequent pleadings filed
by the parties, resolved to deny petitioners’ motion to dismiss, finding that there
existed no intra-corporate controversy since the private respondents alleged
that they ha[d] never joined the association; and, thus, the HIGC had no
jurisdiction to hear the case. On 18 July 1998, petitioners submitted a Motion for
Reconsideration, adding lack of cause of action as ground for the dismissal of
the case. This additional ground was anchored on the principle of damnum
absque injuria as allegedly there [was] no allegation in the complaint that the
private respondents were actually prevented from entering the subdivision and
from having access to their residential abode. On 17 August 1998, the court a
Page 69 of 72
quo, taking into consideration the comment filed by the private respondents[,]
on petitioners’ motion for reconsideration and the pleadings thereafter submitted
by the parties, denied the said motion without however ruling on the additional
ground of lack of cause of action x x x.
xxx xxx xxx
"On 18 August 1998, petitioners filed a motion to resolve defendants’ motion to
dismiss on ground of lack of cause of action. On 8 September 1998, after the
petitioners and the private respondents submitted their pleadings in support of
or in opposition thereto, as the case may be, the trial court issued an order
denying the motion, x x x."6
On September 24, 1998, petitioners elevated the matter to the Court of Appeals
via a Petition for Certiorari.7
Ruling of the Court of Appeals
The Court of Appeals dismissed the Petition and ruled that the RTC had
jurisdiction over the dispute. It debunked petitioners’ contention that an intra-
corporate controversy existed between the SCHA and respondents. The CA
held that the Complaint had stated a cause of action. It likewise opined that
jurisdiction and cause of action were determined by the allegations in the
complaint and not by the defenses and theories set up in the answer or the
motion to dismiss.
Hence, this Petition.8
Issues
In their Memorandum, petitioners raise the following issues for the Court’s
consideration:
I
"Whether or not Respondent Court of Appeals erred in upholding the jurisdiction
of the court a quo, ‘to declare as null and void the resolution of the Board of
SCHA, decreeing that only members [in] good standing of the said association,
were to be issued stickers for use in their vehicles.
II
"Whether or not private respondents are members of SCHA.
III
"Whether or not Respondent Court of Appeals erred in not ordering the
dismissal of the Complaint in Civil Case No. 98-10217 for lack of cause of
action."9
In sum, the issues boil down to two: (1) Did the RTC have jurisdiction over the
Complaint? and (2) Did the Complaint state a cause of action?
This Court’s Rulings
The Petition has no merit.
First Issue:
Jurisdiction
Petitioners contend that the CA erred in upholding the trial court’s jurisdiction to
declare as null and void the SCHA Resolution decreeing that only members in
good standing would be issued vehicle stickers.
The RTC did not void the SCHA Resolution; it merely resolved the Motion to
Dismiss filed by petitioners by holding that it was the RTC, not the Home
Insurance and Guaranty Corporation (HIGC), that had jurisdiction over the
dispute.
HIGC’s Jurisdiction
HIGC10 was created pursuant to Republic Act 580.11 Originally, administrative
supervision over homeowners’ associations was vested by law in the Securities
and Exchange Commission (SEC).12
Pursuant to Executive Order (EO) No. 535, however,13 the HIGC assumed the
regulatory and adjudicative functions of the SEC over homeowners’
associations. Explicitly vesting such powers in the HIGC is paragraph 2 of EO
535, which we quote hereunder:
"2. In addition to the powers and functions vested under the Home Financing
Act, the Corporation, shall have among others, the following additional powers:
(a) x x x; and exercise all the powers, authorities and responsibilities that are
vested in the Securities and Exchange Commission with respect to home
owners associations, the provision of Act 1459, as amended by P.D. 902-A, to
the contrary nothwithstanding;
(b) To regulate and supervise the activities and operations of all houseowners
associations registered in accordance therewith."
Moreover, by virtue of the aforequoted provision, the HIGC also assumed the
SEC’s original and exclusive jurisdiction to hear and decide cases involving
controversies arising from intra-corporate or partnership relations.14
In December 1994, the HIGC adopted the Revised Rules of Procedure in the
Hearing of Homeowners’ Disputes, pertinent portions of which are reproduced
below:
"RULE II
Disputes Triable by HIGC/Nature of Proceedings
Section 1. Types of Disputes. - The HIGC or any person, officer, body, board or
committee duly designated or created by it shall have jurisdiction to hear and
decide cases involving the following:
a) Devices or schemes employed by or any acts of the Board of Directors or
officers of the association amounting to fraud and misrepresentation which may
be detrimental to the interest of the public and/or of the members of the
association or the association registered with HIGC
b) Controversies arising out of intra-corporate relations between and among
members of the association, between any or all of them and the association of
which they are members; and between such association and the state/general
public or other entity in so far as it concerns its right to exist as a corporate entity.
xxx xxx x x x."
The aforesaid powers and responsibilities, which had been vested in the HIGC
with respect to homeowners’ associations, were later transferred to the Housing
and Land Use Regulatory Board (HLURB) pursuant to Republic Act 8763.15
Are Private Respondents SCHA Members?
In order to determine if the HIGC has jurisdiction over the dispute, it is necessary
to resolve preliminarily -- on the basis of the allegations in the Complaint --
whether private respondents are members of the SCHA.
Petitioners contend that because the Complaint arose from intra-corporate
relations between the SCHA and its members, the HIGC therefore has no
jurisdiction over the dispute. To support their contention that private
respondents are members of the association, petitioners cite the SCHA’s
Articles of Incorporation16 and By-laws17 which provide that all landowners of
the Sta. Clara Subdivision are automatically members of the SCHA.
We are not persuaded. The constitutionally guaranteed freedom of
association18 includes the freedom not to associate.19 The right to choose with
whom one will associate oneself is the very foundation and essence of that
partnership.20 It should be noted that the provision guarantees the right to form
an association. It does not include the right to compel others to form or join
one.21
More to the point, private respondents cannot be compelled to become
members of the SCHA by the simple expedient of including them in its Articles
of Incorporation and By-laws without their express or implied consent. True, it
may be to the mutual advantage of lot owners in a subdivision to band
themselves together to promote their common welfare. But that is possible only
if the owners voluntarily agree, directly or indirectly, to become members of the
association. True also, memberships in homeowners’ associations may be
acquired in various ways -- often through deeds of sale, Torrens certificates or
other forms of evidence of property ownership. In the present case, however,
other than the said Articles of Incorporation and By-laws, there is no showing
that private respondents have agreed to be SCHA members.
As correctly observed by the CA:
"x x x. The approval by the SEC of the said documents is not an operative act
which bestows membership on the private respondents because the right to
associate partakes of the nature of freedom of contract which can be exercised
by and between the homeowners amongst themselves, the homeowners’
association and a homeowner, and the subdivision owner and a homeowner/lot
buyer x x x."22
No Privity of Contract
Clearly then, no privity of contract exists between petitioners and private
respondents. As a general rule, a contract is a meeting of minds between two
persons.23 The Civil Code upholds the spirit over the form; thus, it deems an
agreement to exist, provided the essential requisites are present. A contract is
upheld as long as there is proof of consent, subject matter and cause. Moreover,
it is generally obligatory in whatever form it may have been entered into. From
the moment there is a meeting of minds between the parties, it is perfected.24
As already adverted to, there are cases in which a party who enters into a
contract of sale is also bound by a lien annotated on the certificate of title. We
recognized this in Bel Air Village Association, Inc. v. Dionisio,25 in which we
ruled:
"There is no dispute that Transfer Certificate of Title No. 81136 covering the
subject parcel of land issued in the name of the petitioner contains an annotation
to the effect that the lot owner becomes an automatic member of the respondent
Bel-Air Association and must abide by such rules and regulations laid down by
the Association in the interest of the sanitation, security and the general welfare
Page 70 of 72
of the community. It is likewise not disputed that the provision on automatic
membership was expressly annotated on the petitioner’s Transfer Certificate of
Title and on the title of his predecessor-in-interest.
"The question, therefore, boils down to whether or not the petitioner is bound by
such annotation.
"Section 39 of Art. 496 (The Land Registration Act) states:
‘Sec. 39. Every person receiving a certificate of title in pursuance of a decree of
registration, and every subsequent purchaser of registered land who takes a
certificate of title for value in good faith shall hold the same free of all
encumbrances except those noted on said certificate x x x.’" (Italics supplied)
The above ruling, however, does not apply to the case at bar. When private
respondents purchased their property in 1974 and obtained Transfer
Certificates of Title Nos. T-126542 and T-127462 for Lots 11 and 12 of Block 37
along San Jose Avenue in Sta. Clara Subdivision, there was no annotation
showing their automatic membership in the SCHA. Thus, no privity of contract
arising from the title certificate exists between petitioners and private
respondents.
Further, the records are bereft of any evidence that would indicate that private
respondents intended to become members of the SCHA. Prior to the
implementation of the aforesaid Resolution, they and the other homeowners
who were not members of the association were issued non-member gate pass
stickers for their vehicles. This fact has not been disputed by petitioners. Thus,
the SCHA recognized that there were subdivision landowners who were not
members thereof, notwithstanding the provisions of its Articles of Incorporation
and By-laws.
Jurisdiction Determined by Allegations in the Complaint
It is a settled rule that jurisdiction over the subject matter is determined by the
allegations in the complaint. Jurisdiction is not affected by the pleas or the
theories set up by the defendant in an answer or a motion to dismiss. Otherwise,
jurisdiction would become dependent almost entirely upon the whims of the
defendant.26
The Complaint does not allege that private respondents are members of the
SCHA. In point of fact, they deny such membership. Thus, the HIGC has no
jurisdiction over the dispute.
Petitioners likewise contend that even if private respondents are not members
of the SCHA, an intra-corporate controversy under the third type of dispute
provided in Section 1(b) of Rule II of the HIGC Rules exists. Petitioners posit
that private respondents fall within the meaning of "general public." We are not
convinced.
First, the third type of dispute refers only to cases wherein an association’s right
to exist as a corporate entity is at issue. In the present case, the Complaint filed
by private respondents refers to the SCHA’s acts allegedly amounting to an
impairment of their free access to their place of residence inside the Sta. Clara
Subdivision.27 The existence of SCHA as a corporate entity is clearly not at
issue in the instant case.
Second, in United BF Homeowners’ Association v. BF Homes, Inc.,28 we held
that Section 1(b), Rule II of HIGC’s "Revised Rules of Procedure in the Hearing
of Homeowners’ Disputes" was void. The HIGC went beyond its lawful authority
provided by law when it promulgated its revised rules of procedure. There was
a clear attempt to unduly expand the provisions of Presidential Decree 902-A.
As provided by the law, it is only the State -- not the "general public or other
entity" -- that can question an association’s franchise or corporate existence.29
To reiterate, the HIGC exercises limited jurisdiction over homeowners’ disputes.
The law confines its authority to controversies that arise from any of the following
intra-corporate relations: (1) between and among members of the association;
(2) between any and/or all of them and the association of which they are
members; and (3) between the association and the state insofar as the
controversy concerns its right to exist as a corporate entity.30
It should be stressed that the Complaint here is for damages. It does not assert
membership in the SCHA as its basis. Rather, it is based on an alleged violation
of their alleged right of access through the subdivision and on the alleged
embarrassment and humiliation suffered by the plaintiffs.
Second Issue:
Sufficiency of Cause of Action
Petitioners claim that the CA erred in not ordering the dismissal of the Complaint
for lack of cause of action. They argue that there was no allegation therein that
private respondents were actually prevented from entering the subdivision and
gaining access to their residential abode.
This contention is untenable. A defendant moving to dismiss a complaint on the
ground of lack of cause of action is regarded as having hypothetically admitted
all the factual averments in the complaint. The test of the sufficiency of the
allegations constituting the cause of action is whether, admitting the facts
alleged, the court can render a valid judgment on the prayers.31 This test
implies that the issue must be passed upon on the basis of the bare allegations
in the complaint. The court does not inquire into the truth of such allegations and
declare them to be false. To do so would constitute a procedural error and a
denial of the plaintiff’s right to due process.32

A complaint states a cause of action when it contains these three essential
elements: (1) the legal right of the plaintiff, (2) the correlative obligation of the
defendant, and (3) the act or omission of the defendant in violation of the said
legal right.33
In the instant case, the records sufficiently establish a cause of action. First, the
Complaint alleged that, under the Constitution, respondents had a right of free
access to and from their residential abode. Second, under the law, petitioners
have the obligation to respect this right. Third, such right was impaired by
petitioners when private respondents were refused access through the Sta.
Clara Subdivision, unless they showed their driver’s license for identification.
Given these hypothetically admitted facts, the RTC, in the exercise of its original
and exclusive jurisdiction,34 could have rendered judgment over the dispute.
We stress that, in rendering this Decision, this Court is not prejudging the main
issue of whether, in truth and in fact, private respondents are entitled to a
favorable decision by the RTC. That will be made only after the proper
proceedings therein. Later on, if it is proven during the trial that they are indeed
members of the SCHA, then the case may be dismissed on the ground of lack
of jurisdiction. We are merely holding that, on the basis of the allegations in the
Complaint, (1) the RTC has jurisdiction over the controversy and (2) the
Complaint sufficiently alleges a cause of action. Therefore, it is not subject to
attack by a motion to dismiss on these grounds.
WHEREFORE, the Petition is hereby DENIED and the assailed Decision
AFFIRMED. Costs against petitioners.
SO ORDERED.
Melo, (Chairman), Sandoval-Gutierrez, and Carpio, JJ., concur.
Vitug, J., I concur although I might call attention to Article 2174 of the Civil Code
as and when pertinent.
Republic of the Philippines
SUPREME COURT
Manila
FIRST DIVISION
G.R. No. 146807 May 9, 2002
PADCOM CONDOMINIUM CORPORATION, petitioner,
vs.
ORTIGAS CENTER ASSOCIATION, INC., respondent.
DAVIDE, JR., C.J.:
Challenged in this case is the 30 June 2000 decision1 of the Court of Appeals
in CA-G.R. CV No. 60099, reversing and setting aside the 1 September 1997
decision2 of the Regional Trial Court of Pasig City, Branch 264, in Civil Case
No. 63801.3
Petitioner Padcom Condominium Corporation (hereafter PADCOM) owns and
manages the Padilla Office Condominium Building (PADCOM Building) located
at Emerald Avenue, Ortigas Center, Pasig City. The land on which the building
stands was originally acquired from the Ortigas & Company, Limited Partnership
(OCLP), by Tierra Development Corporation (TDC) under a Deed of Sale dated
4 September 1974. Among the terms and conditions in the deed of sale was the
requirement that the transferee and its successor-in-interest must become
members of an association for realty owners and long-term lessees in the area
later known as the Ortigas Center. Subsequently, the said lot, together with
improvements thereon, was conveyed by TDC in favor of PADCOM in a Deed
of Transfer dated 25 February 1975.4
In 1982, respondent Ortigas Center Association, Inc. (hereafter the Association)
was organized to advance the interests and promote the general welfare of the
real estate owners and long-term lessees of lots in the Ortigas Center. It sought
the collection of membership dues in the amount of two thousand seven
hundred twenty-four pesos and forty centavos (P2,724.40) per month from
PADCOM. The corporate books showed that PADCOM owed the Association
P639,961.47, representing membership dues, interests and penalty charges
from April 1983 to June 1993.5 The letters exchanged between the parties
through the years showed repeated demands for payment, requests for
extensions of payment, and even a settlement scheme proposed by PADCOM
in September 1990.
In view of PADCOM’s failure and refusal to pay its arrears in monthly dues,
including interests and penalties thereon, the Association filed a complaint for
collection of sum of money before the trial court below, which was docketed as
Civil Case No. 63801. The Association averred that purchasers of lands within
the Ortigas Center complex from OCLP are obligated under their contracts of
sale to become members of the Association. This obligation was allegedly
passed on to PADCOM when it bought the lot from TDC, its predecessor-in-
interest.6
In its answer, PADCOM contended that it is a non-stock, non-profit association,
and for it to become a special member of the Association, it should first apply
for and be accepted for membership by the latter’s Board of Directors. No
Page 71 of 72
automatic membership was apparently contemplated in the Association’s By-
laws. PADCOM added that it could not be compelled to become a member
without violating its right to freedom of association. And since it was not a
member of the Association, it was not liable for membership dues, interests and
penalties.7
During the trial, the Association presented its accountant as lone witness to
prove that PADCOM was, indeed, one of its members and, as such, did not pay
its membership dues.1âwphi1.nêt
PADCOM, on the other hand, did not present its evidence; instead it filed a
motion to dismiss by way of demurrer to evidence. It alleged that the facts
established by the Association showed no right to the relief prayed for. It claimed
that the provisions of the Association’s By-laws and the Deed of Transfer did
not contemplate automatic membership. Rather, the owner or long-term lessee
becomes a member of the Association only after applying with and being
accepted by its Board of Directors. Assuming further that PADCOM was a
member of the Association, the latter failed to show that the collection of monthly
dues was a valid corporate act duly authorized by a proper resolution of the
Association’s Board of Directors.8
After due consideration of the issues raised in the motion to dismiss, the trial
court rendered a decision dismissing the complaint.9
The Association appealed the case to the Court of Appeals, which docketed the
appeal as CA-G.R. CV No. 60099. In its decision10 of 30 June 2000, the Court
of Appeals reversed and set aside the trial court’s dismissal of Civil Case No.
63801, and decreed as follows:
WHEREFORE, the appealed decision dated September 1, 1997 is REVERSED
and SET ASIDE and, in lieu thereof, a new one is entered ordering the appellee
(PADCOM) to pay the appellant (the Association) the following:
1) P639,961.47 as and for membership dues in arrears inclusive of earned
interests and penalties; and
2) P25,000.00 as and for attorney’s fees.
Costs against the appellees.
SO ORDERED.
The Court of Appeals justified its ruling by declaring that PADCOM automatically
became a member of the Association when the land was sold to TDC. The intent
to pass the obligation to prospective transferees was evident from the
annotation of the same clause at the back of the Transfer Certificate of Title
covering the lot. Despite disavowal of membership, PADCOM’s membership in
the Association was evident from these facts: (1) PADCOM was included in the
Association’s list of bona fide members as of 30 March 1995; (2) Narciso Padilla,
PADCOM’s President, was one of the Association’s incorporators; and (3)
having received the demands for payment, PADCOM not only acknowledged
them, but asked for and was granted repeated extensions, and even proposed
a scheme for the settlement of its obligation. The Court of Appeals also ruled
that PADCOM cannot evade payment of its obligation to the Association without
violating equitable principles underlying quasi-contracts. Being covered by the
Association’s avowed purpose to promote the interests and welfare of its
members, PADCOM cannot be allowed to expediently deny and avoid the
obligation arising from such membership.
Dissatisfied with the adverse judgment of the Court of Appeals, PADCOM filed
the petition for review in this case. It raises the sole issue of whether it can be
compelled to join the association pursuant to the provision on automatic
membership appearing as a condition in the Deed of Sale of 04 September 1974
and the annotation thereof on Transfer Certificate of Title No. 457308.
PADCOM contends that it cannot be compelled to be a member of the
Association solely by virtue of the "automatic membership" clause that appears
on the title of the property and the Deed of Transfer. In 1975, when it bought the
land, the Association was still inexistent. Therefore, the provision on automatic
membership was anticipatory in nature, subject to the actual formation of the
Association and the subsequent formulation of its implementing rules.
PADCOM likewise maintains that the Association’s By-laws requires an
application for membership. Since it never sought membership, the Court of
Appeals erred in concluding that it was a member of the Association by
implication. Aside from the lack of evidence proving such membership, the
Association has no basis to collect monthly dues since there is no board
resolution defining and prescribing how much should be paid.
For its part, the Association claims that the Deed of Sale between OCLP and
TDC clearly stipulates automatic membership for the owners of lots in the
Ortigas Center, including their successors-in-interest. The filing of applications
and acceptance thereof by the Board of Directors of the Association are,
therefore, mere formalities that can be dispensed with or waived. The provisions
of the Association’s By-laws cannot in any manner alter or modify the automatic
membership clause imposed on a property owner by virtue of an annotation of
encumbrance on his title.
The Association likewise asserts that membership therein requires the payment
of certain amounts for its operations and activities, as may be authorized by its
Board of Directors. The membership dues are for the common expenses of the
homeowners for necessary services.
After a careful examination of the records of this case, the Court sees no reason
to disturb the assailed decision. The petition should be denied.
Section 44 of Presidential Decree No. 152911 mandates that:
SEC. 44. Statutory liens affecting title. – Every registered owner receiving a
certificate of title in pursuance of a decree of registration, and every subsequent
purchaser of registered land taking a certificate of title for value and in good
faith, shall hold the same free from all encumbrances except those noted on
said certificate and any of the following encumbrances which may be subsisting,
namely: xxx
never forced to join the association. It could have avoided such membership by
not buying the land from TDC. Nobody forced it to buy the land when it bought
the building with the annotation of the condition or lien on the Certificate of Title
thereof and accepted the Deed. PADCOM voluntarily agreed to be bound by
and respect the condition, and thus to join the Association.
In addition, under the principle of estoppel, PADCOM is barred from disclaiming
membership in the Association. In estoppel, a person, who by his act or conduct
has induced another to act in a particular manner, is barred from adopting an
inconsistent position, attitude or course of conduct that thereby causes loss or
injury to another.18

Under the Torrens system of registration, claims and liens of whatever
character, except those mentioned by law, existing against the land binds the
holder of the title and the whole world.12
It is undisputed that when the land in question was bought by PADCOM’s
predecessor-in-interest, TDC, from OCLP, the sale bound TDC to comply with
paragraph (G) of the covenants, conditions and restrictions of the Deed of Sale,
which reads as follows:13
G. AUTOMATIC MEMBERSHIP WITH THE ASSOCIATION:
We agree with the Court of Appeals’ conclusion from the facts or circumstances
it enumerated in its decision and enumerated above that PADCOM is, indeed,
a regular member of the Association. These facts and circumstances are
sufficient grounds to apply the doctrine of estoppel against PADCOM.
Having ruled that PADCOM is a member of the Association, it is obligated to
pay its dues incidental thereto. Article 1159 of the Civil Code mandates:
Art. 1159. Obligations arising from contracts have the force of law between the
contracting parties and should be complied with in good faith.

The owner of this lot, its successor-in-interest hereby binds himself to become
a member of the ASSOCIATION which will be formed by and among
purchasers, fully paid up Lot BUYERS, Building Owners and the COMPANY in
respect to COMPANY OWNED LOTS.
The OWNER of this lot shall abide by such rules and regulations that shall be
laid down by the ASSOCIATION in the interest of security, maintenance,
beautification and general welfare of the OFFICE BUILDING zone. The
ASSOCIATION when organized shall also, among others, provide for and
collect assessments which shall constitute a lien on the property, junior only to
liens of the Government for taxes.
Evidently, it was agreed by the parties that dues shall be collected from an
automatic member and such fees or assessments shall be a lien on the property.
Assuming in gratis argumenti that PADCOM is not a member of the Association,
it cannot evade payment without violating the equitable principles underlying
quasi-contracts. Article 2142 of the Civil Code provides:
Art. 2142. Certain lawful, voluntary and unilateral acts give rise to the juridical
relation of quasi-contract to the end that no one shall be unjustly enriched or
benefited at the expense of another.
Generally, it may be said that a quasi-contract is based on the presumed will or
intent of the obligor dictated by equity and by the principles of absolute justice.
Examples of these principles are: (1) it is presumed that a person agrees to that
which will benefit him; (2) nobody wants to enrich himself unjustly at the expense
of another; or (3) one must do unto others what he would want others to do unto
him under the same circumstances.19

This stipulation was likewise annotated at the back of Transfer Certificate of Title
No. 457308 issued to TDC.14 And when the latter sold the lot to PADCOM on
25 February 1975, the Deed of Transfer expressly stated:15
NOW, THEREFORE, for and in consideration of the foregoing premises, the
DEVELOPER, by these presents, cedes, transfers and conveys unto the
CORPORATION the above-described parcel of land evidenced by Transfer
Certificate of Title No. 457308, as well as the Common and Limited Common
Areas of the Condominium project mentioned and described in the Master Deed
with Declaration of Restrictions (Annex "A" hereof), free from all liens and
encumbrances, except those already annotated at the back of said Transfer
Certificate of Title No. 457308, xxx
This is so because any lien annotated on previous certificates of title should be
incorporated in or carried over to the new transfer certificates of title. Such lien
is inseparable from the property as it is a right in rem, a burden on the property
whoever its owner may be. It subsists notwithstanding a change in ownership;
in short, the personality of the owner is disregarded.16 As emphasized earlier,
the provision on automatic membership was annotated in the Certificate of Title
and made a condition in the Deed of Transfer in favor of PADCOM.
Consequently, it is bound by and must comply with the covenant.1âwphi1.nêt
Moreover, Article 1311 of the Civil Code provides that contracts take effect
between the parties, their assigns and heirs. Since PADCOM is the successor-
in-interest of TDC, it follows that the stipulation on automatic membership with
the Association is also binding on the former.
As resident and lot owner in the Ortigas area, PADCOM was definitely benefited
by the Association’s acts and activities to promote the interests and welfare of
those who acquire property therein or benefit from the acts or activities of the
Association.1âwphi1.nêt
Finally, PADCOM’s argument that the collection of monthly dues has no basis
since there was no board resolution defining how much fees are to be imposed
deserves scant consideration. Suffice it is to say that PADCOM never protested
upon receipt of the earlier demands for payment of membership dues. In fact,
by proposing a scheme to pay its obligation, PADCOM cannot belatedly
question the Association’s authority to assess and collect the fees in accordance
with the total land area owned or occupied by the members, which finds support
in a resolution dated 6 November 1982 of the Association’s incorporating
directors20 and Section 2 of its By-laws.21
WHEREFORE, the petition is hereby DENIED for lack of merit.
Costs against petitioner.
SO ORDERED.
Puno, Kapunan, Ynares-Santiago, and Austria-Martinez, JJ., concur.

We are not persuaded by PADCOM’s contention that the By-laws of the

Association requires application for membership and acceptance thereof by the
Board of Directors. Section 2 of the By-laws17 reads:

Section 2. Regular Members. – Upon acceptance by the Board of Directors of

Ortigas Center Association, Inc., all real estate owners, or long-term lessees of
lots within the boundaries of the Association as defined in the Articles of
Incorporation become regular members, provided, however that the long-term
lessees of a lot or lots in said area shall be considered as the regular members
in lieu of the owners of the same. Likewise, regular membership in the
Association automatically ceases upon the cessation of a member to be an
owner or long-term lessee of real estate in the area.

A lessee shall be considered a long-term lessee if his lease is in writing and for
a period of two (2) years or more. Membership of a long-term lessee in the
Association shall be co-terminus with his legal possession (or his lease) of the
lot/s in the area. Upon the lessee’s cessation of membership in the Association,
the owner shall automatically succeed the lessee as member thereat.

As lot owner, PADCOM is a regular member of the Association. No application

for membership is necessary. If at all, acceptance by the Board of Directors is a
ministerial function considering that PADCOM is deemed to be a regular
member upon the acquisition of the lot pursuant to the automatic membership
clause annotated in the Certificate of Title of the property and the Deed of
Transfer.

Neither are we convinced by PADCOM’s contention that the automatic

membership clause is a violation of its freedom of association. PADCOM was
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